P. v. Dillon
Filed 6/26/12
P. v. Dillon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
BRIAN STEVEN DILLON,
Defendant
and Appellant.
E052344
(Super.Ct.No.
FMB1000169)
OPINION
APPEAL
from the Superior Court
of
County. Rodney A.
Cortez, Judge. Affirmed.
John
Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Lynne G. McGinnis,
Kristine A. Gutierrez, and Marissa Bejarano, Deputy Attorneys General, for
Plaintiff and Appellant.
I. INTRODUCTION
Defendant
Brian Steven Dillon appeals from his conviction of
Code,
means likely to cause great bodily injury (§ 245, subd. (a)). Defendant contends the trial court erred in
denying his motion for new trial after a juror testified she considered
reliability of tracking in reaching a guilty verdict. Defendant further contends the trial court
erred in failing to conduct a hearing regarding juror misconduct or, in the
alternative, to release juror information to the defense. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
John Ernst, a
retiree, lived in Yucca Valley. Defendant lived with his parents in a house
behind Ernst’s property. In November
2009, Ernst loaned defendant $30 to pay a fine and to buy a present for his
daughter. Defendant came to Ernst’s
house three or four times a month to do odd jobs, and Ernst paid him $50. Defendant had last been to Ernst’s house in
January or February 2010.
Between 5:45 and 6:00
a.m. on April 28,
2010, Ernst entered his garage, and someone put a rag over his
face, wrestled him to the floor, dragged him into the kitchen, choked him, and
pulled his clothing over his head. He
did not see his assailant, but the man said something like Ernst was a menace
to the neighborhood and not to struggle.
The man repeatedly banged Ernst’s head on the floor, broke his glasses,
and kept asking him “where is it,” which Ernst understood to mean money. Ernst did not respond. After about 10 minutes, the assailant
left. Ernst did not recognize the
assailant’s voice, although he thought it sounded familiar.
Ten
minutes or so later, defendant knocked on Ernst’s back patio door and asked if
Ernst was all right. Defendant said he
had seen Ernst fall in his kitchen and then had seen a couple cars in front of
the house. Defendant got Ernst a towel,
some ice and aspirin, and told him not to call the police. Defendant offered to clean up blood from the
floor.
Ernst and
defendant talked for awhile, and defendant fell asleep in the living room. Ernst later saw defendant looking at books of
rare coins in Ernst’s living room. When
defendant left, Ernst said he did not have to repay the $30 loan because he had
helped Ernst after the attack. Defendant
departed in a different direction from his parents’ house. Ernst later checked his coin collection and
discovered that some coins were missing, along with some jewelry and a
religious medal.
Ernst telephoned
his sister, Joanne Osgood, and told her he had been attacked, and Ernst’s
brother-in-law called the sheriff’s office.
The brother-in-law told the deputy he had seen a neighbor at Ernst’s
house several times, and the neighbor had once told Osgood he needed money.
Deputy Sheriff
Jeffrey Dieckhoff arrived at Ernst’s house around noon, and Ernst told him
about the attack. Ernst’s head and face
were severely swollen; he had bruises on his forehead and cheeks; his eye was
swelling shut; and he had abrasions on his neck consistent with being choked
from behind. The deputy summoned
paramedics, who recommended that Ernst go to the hospital because of a
potential skull fracture or bleeding on the brain, but Ernst refused. Ernst showed the deputy the clothing he had
been wearing during the attack, which had blood on it. There was also blood on the kitchen tile
grout. Ernst said he did not want to
report the crime because he feared the assailant had friends who would come
back to the house. The deputy did not
see any signs of forced entry into Ernst’s house, although Ernst said he locked
his doors each time he left.
Deputy Dieckhoff
believed Ernst was being evasive. In a
later interview, Ernst said defendant, his neighbor, had come over because he
heard Ernst scream and saw something strange.
Ernst testified that he told the deputy he did not think his assailant
sounded like defendant. However, the
deputy testified that Ernst had said defendant’s voice “rang a bell in his
head,” and “it could have been [defendant’s] voice.” Ernst said that defendant had eventually told
him not to call the police.
Deputy Dieckhoff
saw shoe prints near Ernst’s back patio area that did not match Ernst’s
shoes. The deputy had been trained in
tracking, had used tracking in dozens of cases in the last 10 years, and had
hunted coyotes and game for 42 years. He
testified that the soil around Ernst’s house and the weather conditions were
good for tracking. He found a set of
shoe prints leading to Ernst’s house from the roadway and a second set of shoe
prints that led from the back of Ernst’s garage along a wash in the
desert. The deputy did not see any blood
on defendant’s shoes or on the clothes defendant had been wearing.
Deputy Mark
Kennicutt, also an experienced tracker, testified that the area around Ernst’s
house was good for tracking. He found
two fresh inbound sets of tracks and one outbound set of tracks from Ernst’s
house that matched each other, but did not belong to Ernst. Two sets of fresh tracks led from the garage,
and a zigzagged set of tracks led to defendant’s parent’s house.
The deputies went
to defendant’s parents’ house. Defendant
said he had gone outside between 5:45 and 6:00 a.m. to smoke a cigarette when,
through Ernst’s kitchen window about 200 yards away, he saw Ernst spin and
fall. He then saw two people run from
the house, get into separate cars, and speed away. Defendant said he went over to help
Ernst. He stayed there about four hours
and fell asleep for awhile, but he did not call the police or call for medical
aid, and he did not tell anyone Ernst had been attacked.
Defendant was
wearing shoes that matched the tracks the deputies found. The deputies did not find any footprints in
the area where defendant said he had seen people running, and they did not find
any footprints, spin marks, or tire tracks in the area where defendant said the
cars had been parked.
Defendant
testified in his own behalf. He said he
had been outside smoking a cigarette when he looked towards Ernst’s house and
saw Ernst twirl and fall down. Defendant
saw two people run from the house and saw two cars speed away. Defendant walked over to Ernst’s house to see
if Ernst was okay. Defendant got Ernst
an ice pack and offered to help clean up.
Ernst said he was worried about retaliation and did not want to get the
police involved, so defendant, in response, told him not to call the
police. Defendant also did not call the
police or an ambulance and did not tell anyone about the attack. Defendant denied attacking Ernst.
Defendant admitted
he took coins, a ring, and a gold watch while he was at Ernst’s house. After defendant was arrested, he telephoned
his brother and asked him to get rid of the stolen items he had left at his
parents’ house. An audio recording of
the telephone call was played for the jury.
A defense
investigator trained in tracking testified that the road in front of Ernst’s
house was hard-packed dirt that would show footprints and tire tracks, but that
they could be erased by later vehicle traffic.
Some sections of the road and Ernst’s yard would show footprints, while
others would not. The investigator also
testified that from where defendant said he had been standing that morning, he
could see someone walking in Ernst’s kitchen at 6:10 in the morning.
The jury found
defendant guilty of first degree burglary
of an occupied residence (§§ 459, 667.5, subd. (c)) and assault by means
of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court sentenced him to the
aggravated term of six years for the burglary and a consecutive term of one
year for the assault.
Additional facts
are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
Denial of Motion for New Trial
Defendant contends
the trial court erred in denying his motion for new trial after a juror
testified she considered extrinsic evidence regarding the reliability of
tracking in reaching a guilty verdict.
1. Additional Background
After the verdict,
defendant filed a motion for new trial based on the declaration of Juror
V.K. Juror V.K. declared she had been a
holdout juror for finding defendant not guilty.
She stated that another female juror who had worked at the national park
stated about five times during deliberations that she “had seen law enforcement
officers repeatedly track lost hikers successfully,” and she “had experience
with seeing the tracking of footprints be successful where she worked.” A third juror, described as a grey-haired
nurse, changed her vote to guilty after the national park employee stated that
“their tracking ability is so good.”
The trial court
held a hearing on the motion, at which V.K. testified. She stated her decision had been based on the
national park employee juror’s opinion about law enforcement’s success rate in
tracking lost hikers, not on the evidence presented in court. She believed that juror had been referring to
Deputies Dieckhoff and Kennicutt. She had
come to regret her vote for a guilty verdict.
The trial court
denied the motion, finding that the national park employee juror’s comment did
not refer to specific evidence outside that presented at trial, but was instead
part of the general life experience of the juror. The trial court explained:
“In this case, we
are not given information that she used specialized information that she
vouched for the specifics of the foot tracking other than they’ve done foot
tracking out in the monument and they’ve always been successful. She didn’t talk about how they were accurate
in terms of comparing the shoe to the print.
That would be specialized.
“[H]ere we are
talking about injecting a person’s background.
And that’s the information this court has, is that this person injected
her background as an employee out there at the monument. That they have used foot tracking out there to
find people. We don’t have more
information about them using scientific comparisons like we did in this trial
where we actually had the comparison of the foot and the shoe print. That would be specialized information which
we have no information provided.
[¶] . . . [¶]
“I find this was
common life experience.”
2. Analysis
A criminal
defendant has a constitutional right
to a trial by unbiased and impartial jurors (U.S. Const., 6th & 14th
Amends.; Cal. Const., art. I, § 16), and the jury’s verdict “must be based
on the evidence presented at trial, not on extrinsic matters.” (People
v. Leonard (2007) 40 Cal.4th 1370, 1414 (Leonard) [finding no misconduct when a juror formed an opinion
about the accuracy of a firearm based on his personal experience and shared his
view with the other jurors during deliberations].) Thus, “[a] juror commits misconduct if the
juror conducts an independent investigation of the facts [citation], brings
outside evidence into the jury room [citation], injects the juror’s own
experience into the deliberations [citation], or engages in an experiment that
produces new evidence [citation].” (
829.) However, jurors may properly
interpret the evidence based on their own life experiences. (Id.
at p. 830.) In In re Malone (1996) 12 Cal.4th 935 (Malone), the court explained, “It is not improper for a juror,
regardless of his or her educational or employment background, to express an
opinion on a technical subject, so long as the opinion is based on the evidence
at trial. Jurors’ views of the evidence,
moreover, are necessarily informed by their life experiences, including their
education and professional work. A
juror, however, should not discuss an opinion explicitly based on specialized
information obtained from outside sources.
Such injection of external information in the form of a juror’s own
claim to expertise or specialized knowledge of a matter at issue is
misconduct. [Citations.]” (Id.
at p. 963.)
In
(Steele), the defendant contended
jurors committed misconduct when four jurors with military experience and two
jurors with medical experience offered their expertise during
deliberations. (Id. at p. 1265.) On appeal,
the Supreme Court found no misconduct.
The court explained: “In this
case, as the trial court noted, extensive evidence was produced concerning the
nature and extent of defendant’s military training and Vietnam experience and
its effect, if any, on his crimes, as well as evidence concerning the validity
of BEAM [brain electrical activity mapping] testing. This evidence was susceptible of various
interpretations. The views the jurors
allegedly asserted here were not contrary to, but came within the range of,
permissible interpretations of that evidence.
All the jurors, including those with relevant personal backgrounds, were
entitled to consider this evidence and express opinions regarding it. ‘[I]t is an impossible standard to
require . . . [the jury] to be a laboratory, completely
sterilized and freed from any external factors.’ [Citations.]
. . . . A juror
may not express opinions based on asserted personal experience that is
different from or contrary to the law as the trial court stated it or to the
evidence, but if we allow jurors with specialized knowledge to sit on a jury,
and we do, we must allow those jurors to use their experience in evaluating and
interpreting that evidence. Moreover,
during the give and take of deliberations, it is virtually impossible to
divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay
jurors not versed in the subtle distinctions that attorneys draw, never refer
to their background during deliberations.”
(Id. at pp. 1265-1266.)
Here, the national
park employee’s comments, based on her background and experience, were of the
same general nature as those the court condoned in Steele, Leonard, and
We conclude the juror did not cross the fine line “between using one’s
background in analyzing the evidence, which is appropriate, even inevitable,
and injecting ‘an opinion explicitly based on specialized information obtained
from outside sources,’ which [the Supreme Court has] described as
misconduct. [Citation.]” (Steele,
supra, 27 Cal.4th at p. 1266.)
Defendant argues,
however, that this case is more like People
v. Ault (2004) 33 Cal.4th 1250, in which the court found juror
misconduct. During the trial, a juror
had told her manicurist that she was on the jury in a child molestation case,
and the manicurist told the juror that an acquaintance had been molested by her
father but had nonetheless had him escort her down the aisle at her wedding. The juror then related that conversation
during deliberations when another juror expressed skepticism about the victim’s
demeanor. (Id. at p. 1258) The court
found misconduct both in the juror’s speaking to an outside source while the
trial was still pending and in using the information from that conversation
about how child molestation victims may react to influence other jurors. (Ibid.)
Here, in contrast,
the record does not suggest the national park employee juror spoke to any
nonjuror about the case while it was pending.
Moreover, although defendant asserts the juror necessarily had learned
information about tracking from hearsay sources because the record does not
indicate she herself was a tracker, the record does not support that
assertion: As recounted above, V.K.’s
declaration stated the juror said “she had seen
law enforcement officers repeatedly track lost hikers successfully,” and
she “had experience with seeing the
tracking of footprints be successful where she worked.” (Italics added.) Thus, insofar as the record shows, the
juror’s familiarity with tracking was direct.
That familiarity was part of her life experience which she could
properly bring into the jury room. (
supra, 12 Cal.4th at p. 963;
The trial court
did not err in denying the motion for new trial.
B. Failure to Conduct a further
Hearing on Juror Misconduct or to Release Juror Information
Defendant also
contends the trial court erred in failing to conduct a further hearing
regarding juror misconduct or, in the alternative, to release juror information
to the defense.
1. Additional Background
After the trial
court denied defendant’s motion for new trial, defense counsel moved to unseal
juror contact information based on the declaration of Juror V.K. Defense counsel’s declaration in support of
the motion for disclosure stated his purpose in bringing the motion: “[V.K.] has recalled some, but not
necessarily all, of the out-of-court evidence that was brought into the
jury room by the employee of the National Park.” (Underlining in original.) The declaration stated that defense counsel
had no means of locating other jurors unless the court granted disclosure, and
counsel “would be foreclosed from the possibility
of determining if the National Park employee (juror) said anything more
egregious to a fair jury deliberation than what was heard and recalled by
[V.K.]” (Italics added.)
The trial court
held a hearing on the motion, at which defense counsel argued the court should
contact the female jurors so he could interview the grey-haired nurse and the
national park employee described by V.K. to see if that juror made additional
statements about her experience with tracking that V.K. had not heard.
The trial court
denied the motion, stating: “Based upon
my prior ruling and the information that has been received up until this point,
the court is satisfied that . . . good cause has not been provided. I am satisfied with the information that has
been provided by the one juror as to the information that was disclosed, and I
am satisfied that this should no longer be at issue.”
2. Standard of Review
We review the
trial court’s decision to deny a request for an evidentiary hearing to resolve
factual disputes concerning a claim of juror misconduct under the deferential
abuse of discretion standard. (
604.) Similarly, we review the trial
court’s denial of a motion to disclose juror information after trial under an
abuse of discretion standard. (
317.)
3. Analysis
a.
to conduct a hearing on juror misconduct
A defendant is not
entitled to an evidentiary hearing on the issue of juror misconduct as a matter
of right. (People v. Avila, supra,
38 Cal.4th at p. 604.) Rather, such a hearing should be held only
“‘when the defense has come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred,’” and “the court
concludes an evidentiary hearing is ‘necessary to resolve material, disputed
issues of fact.’” (Ibid.)
Here, the trial
court did conduct a hearing on potential juror misconduct, as discussed
above. After the trial court denied that
motion, defendant moved for release of juror information so he could
investigate the possibility of further misconduct, and he requested a hearing
on whether the juror contact information should be unsealed. However, defendant never requested a further hearing
on the issue of whether misconduct had occurred. We therefore conclude the trial court did not
abuse its discretion in failing to conduct a further hearing on the issue of
juror misconduct.
b.
Denial of motion to release juror information
In a criminal
proceeding, jurors’ personal identification information “shall be sealed,”
unless the defendant submits a declaration stating facts that establish good
cause for release of that information.
If the defendant establishes a prima facie showing of good cause, the
court shall set the matter for a hearing unless the record shows a compelling
interest against disclosure. (Code Civ.
Proc., § 237, subds. (a)(2), (b); see also Code Civ. Proc., § 206,
subd. (g) [authorizing a criminal defendant to petition to court for access to
juror information “for the purpose of developing a new trial or any other
lawful purpose”].) A defendant’s motion
for disclosure of jury information must be “accompanied by a sufficient showing
to support a reasonable belief jury misconduct
occurred . . . .” (
839, 850.) As the court explained in
of Civil Procedure section 206] is broad, it does indicate a legislative intent
to require the defendant to show good cause for disclosure and not engage in a
fishing expedition.” (
Here, defendant
based his motion for disclosure of juror information on the declaration of
Juror V.K. The trial court had already
read that declaration and had heard the testimony of V.K. at the motion for new
trial, and, as we have already concluded, that declaration did not support
granting the motion for new trial. For
the same reasons, the declaration did not support disclosure of juror
information.
Moreover, in his
declaration in support of the motion, defense counsel stated he hoped to
determine if a juror had made improper comments. The motion was thus nothing more than a
fishing expedition. The governing
statutes do not permit disclosure of juror information for such a purpose. (See People
v. Wilson, supra, 43 Cal.App.4th
at p. 852.) The trial court did not
abuse its discretion in denying the motion.
(People v. Jones,
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise specified.
