Opinion
E075125
12-09-2021
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN ALAMO, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1100283, Anthony R. Villalobos, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
Angel Perea left her 21-month-old child in the care of her boyfriend, defendant and appellant Esteban Alamo. While she was gone, the child suffered a traumatic blunt force injury to his brain. When Perea returned home, the child was having trouble breathing, was foaming at the mouth and had abrasions on his face. Perea rushed the child to the hospital. The child had significant hemorrhages in his eyes and bleeding on his brain when he was examined at the hospital, and ultimately died from his injuries.
Defendant was convicted of second degree murder (Pen. Code, § 187, subd. (a))and assault on a child under the age of eight years by means of force likely to produce great bodily injury (Pen. Code, § 273ab). Defendant was sentenced to 25 years to life to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed fees and fines which will be discussed in more detail, post.
Defendant claims on appeal that (1) the trial court abused its discretion by denying his petition to disclose juror information; and (2) Assembly Bill No. 1869 (2019-2020 Reg. Sess.) § 62 (AB 1869) which was effective July 1, 2021, repealed the booking fee authorized by Government Code section 29550.2, and probation report fee authorized by Penal Code section 1203.1b, and requires that the booking fee and probation report fee imposed in this case be stricken.
FACTUAL HISTORY
A. PEOPLE'S CASE IN CHIEF
1. INJURY AND INVESTIGATION
On October 4, 2010, Angel Perea had been dating defendant for seven months. Perea had two children who were not fathered by defendant: S. who was born in December 2005 and the child, who was born on December 12, 2008. Perea and her children were living in a two-bedroom apartment in Indio and defendant frequently visited the apartment. The apartment had a backyard, which was mostly cement. The child had no medical issues when he was born. Perea did not have a phone or a car.
The preliminary hearing in this case was conducted in 2012 and the case was continued for several years until trial finally occurred in 2019.
Perea had subsequently married; her maiden name was Perez.
On October 4, 2010, Perea was working at a retail store but was preparing to take a leave of absence for maternity leave. In the morning on October 4, the child appeared healthy. He did not have any scratches or bruises on his body. Perea left the apartment around 12:30 p.m. to run errands and go to her work. She got a ride from her neighbor's nephew. She left S. and the child in defendant's care. There was no one else in the apartment.
Perea returned home at approximately 5:00 p.m. She did not have her keys, so she knocked on the door. Defendant let her into the apartment, which was very dark. Defendant sat on the couch and Perea began to tell him about her day. Defendant told Perea that S. was in the backyard playing and the child was taking a nap. He seemed very calm. Perea heard a noise coming from where the child was sleeping. It sounded like a heavy breathing noise.
Perea went to the bedroom where the child was sleeping. He was laying on his back and was not breathing normally. Perea tried to wake him. Perea noticed that the child had a red mark above his upper lip. He had what appeared to be saliva or foam coming from this mouth. She lifted his arm but it was limp. She picked him up but he was still not waking up. He was breathing heavily. She tried putting water on his face to wake him up but he did not respond.
Defendant repeatedly said," 'He was fine. He was fine.'" Perea ran with the child to a neighbor who drove them to JFK Medical Center (JFK). Perea noticed that he also had an abrasion on his chin and on his forehead. These injuries were not present when Perea left the house in the morning. The child's father had a history of seizures and Perea thought that the child may be having a seizure. The child had not had seizures before that day. The child was then transferred to Loma Linda University Hospital (Loma Linda). The child died at the hospital on October 8, 2010.
Lorena Lara lived near Perea in Indio. Around 4:30 p.m. on October 4, 2010, Perea came to her apartment with the child and asked to use her phone. Perea told Lara that the child was sick and possibly having a seizure. Lara then asked for a ride to the hospital. Lara drove her and the child to the hospital. Earlier that day, around 3:30 p.m., Lara had been in her backyard and saw the child. He did not seem to be sick or in any distress. Later, she heard a loud noise come from Perea's backyard but she did not go see what it was. She then heard a baby crying.
The Indio apartment was searched. A towel with what appeared to be blood was found near the child's bedding. There was what appeared to be vomit on his pillow.
Perea testified that she spoke with an Indio Police Officer at JFK. She lied to the officer that she had been home all day and that the child had fallen while playing. She went to the Indio Police Department and was interviewed that same night. She again lied that she had been home with the child the entire day. She was scared because she was afraid she would be in trouble for leaving her children with defendant. On October 5, 2010, she met with a social worker and a detective from the Indio Police Department. She finally was truthful that she had not been home that day. She decided to tell the truth when she saw how bad off the child was and she knew defendant had done something to him.
Indio Police Officer Peraza went to JFK on October 4, 2010, and observed the child. He photographed the child's injuries. He spoke with Perea and defendant. Defendant told Officer Peraza that he had been cooking while the child and S. played outside. The child fell while they were playing and busted his lip. Defendant gave him a shower, fed him and put him to bed. Defendant said that Perea was either taking a nap or with the neighbor. Defendant fell asleep and Perea woke him up. When he woke up, the child was having trouble breathing. Defendant thought the child was having a seizure.
Indio Police Sergeant Longoria was at the Indio Police Department on October 4 at around 8:30 p.m. and was present for an interview of defendant at the police station. Defendant again stated he was inside cooking while S. and the child were playing outside. S. told him that the child fell. The child had a bloody lip but otherwise he seemed fine when he went to sleep. Perea was at the neighbor's house when the child fell. Defendant took a nap. Perea woke him up and told him she thought the child was having a seizure. Defendant did not appear to be concerned about the child during the interview.
Defendant was interviewed again at Loma Linda on October 7. Sergeant Longoria advised defendant that the child was in pretty bad condition. Defendant admitted he lied about Perea being at the apartment when the child fell. Defendant again stated that the child and S. were playing outside while he was inside; the child fell and had a bloody lip; the child came inside and showered, ate and went to sleep. The child seemed fine. Defendant fell asleep and Perea woke him up stating that the child was having a seizure. No one else was at the house that day. Detective Longoria then advised defendant that the child's injuries were not consistent with just having fallen. Defendant denied he touched the child and did not know how he was injured.
Jim Torro lived with Perea in an apartment in Coachella for a period of time in 2010. Perea was dating defendant. Torro had observed defendant spank and kick the child when the child cried. He observed one instance where defendant slapped the child on the head and then threw him on the couch. He also observed defendant punch the child in the head. Defendant called the child a" 'little motherfucker.'" On one occasion, Torro heard defendant tell the child," 'Shut up, you little brat. I'm going to kill you one of these days, you little son of a bitch.'" Torro told Perea about the incidents.
2. MEDICAL EVIDENCE
An autopsy was performed on the child on October 13, 2010. the child had abrasions on his face. He had several bruises on the front of his body. The child had blood hemorrhaging on his brain. He did not have any skull fractures or other broken bones. The cause of death was blunt-force cranial cerebral trauma. The source of the blunt-force trauma could not be determined. However, it was not likely the injuries occurred because of a short fall.
A pediatric ophthalmologist at Loma Linda examined the child's eyes on October 7, 2010, while he was still alive. There was extensive hemorrhaging in both eyes. A second pediatric ophthalmologist who also had experience in child abuse reviewed the photographs of the child's eyes and all of his medical records. He observed hemorrhages in the child's eyes "too numerous to count." He also personally examined the child's eyes, which had been removed during the autopsy. The hemorrhaging was evident in both eyes. The hemorrhaging and injuries to the child's eyes were consistent with abusive head trauma. It was most likely caused by repeated back and forth shaking with a significant amount of force, known as "Shaken Baby Syndrome." The injuries were not consistent with a short fall. The child had no skull fractures or broken bones.
Dr. Amy Young was the chief of forensic pediatrics, a specialty focusing on child abuse, at Loma Linda. She was called to examine the child while he was at Loma Linda because the treating doctor suspected child abuse. She had reviewed all of the child's medical records and the autopsy records. He had no significant medical history.
The child came into Loma Linda with a bruise on the side of his head and a tear of the upper flap of skin, which connected the lips to the gums. He had bruises on both of his lips. He had bruises on his right and left chest. They were not consistent with a short fall or accident. The injuries were more severe than what would appear to be present from just a fall. He appeared to have a seizure when he first showed up at JFK. The seizure was most likely caused by bleeding around his brain. Medication helped stop the seizure. The seizure did not cause any further brain injury nor for the child to have cardiac arrest. The child being limp and the foaming at the mouth when found by Perea were consistent with brain injury. The seizure he had at the hospital was consistent with the existing brain injury. The type and extent of the bleeding on the child's brain was not consistent with a short fall but rather with shaking back and forth. Dr. Young observed retinal hemorrhaging.
Dr. Young noted that the child had severe head trauma when he was admitted to Loma Linda, severe retinal hemorrhages, and bruises. It was her opinion that these were inflicted, not accidental injuries. His symptoms after the infliction of the injuries would have been immediate. He would not have been able to eat or take a shower. Intercranial pressure did not cause retinal hemorrhages. Dr. Young noted that current medical literature and clinical experience demonstrate that abusive head trauma can be caused by shaking alone or with impact.
B. DEFENSE
Dr. Ronald Gabriel specialized in pediatric neurology. He had worked with the juvenile and adult courts for over 30 years in assessing brain injuries and whether they were accidental or caused by abuse. Dr. Gabriel had reviewed all of the child's medical records. He reviewed CAT-Scans of the child's brain, which showed blood on the child's brain, a recent injury. Dr. Gabriel surmised that defendant had a traumatic blunt-force head injury that resulted in a seizure. The seizure event caused a lack of blood flow to the brain, which led to his death. The brain injury was caused by something either striking the child in the head or his head striking something. A short fall could cause the brain hemorrhaging. The intracranial pressure and blood on the child's brain could have caused the hemorrhaging in the eyes. Dr. Gabriel did not believe that shaking of the child caused the hemorrhaging in the eyes; blunt force trauma was required. It was blunt force impact that caused the changed in the child's brain, which ultimately led to his death.
The blunt force trauma could have been as a result of a fall.
DISCUSSION
A. DISCLOSURE OF JUROR INFORMATION
Defendant contends the trial court erroneously denied his petition to disclose jurors' personal information made after trial pursuant to Code of Civil Procedure section 237.
1. ADDITIONAL FACTUAL HISTORY
The jury retired for deliberations on October 3, 2019. The trial court instructed the jurors to "decide the case for yourself" and not to hesitate to change "your mind." The following day, the trial court excused Juror No. 4 because she indicated that the case was too upsetting for her and she could no longer serve on the jury. Both parties agreed that she should be dismissed. In her note to the trial court, she stated, "I cannot believe that some of my fellow jurors want the defendant to get away with this. I cannot argue with them, as it is very hard for me to speak when I am emotional." An alternate juror was impaneled and the jury was instructed to begin deliberations anew.
That same afternoon, the jury sent a note stating that it had voted and there was one not-guilty vote. The jurors wanted to know if their decision had to be unanimous. The trial court advised the jurors that a unanimous decision on each count must be reached.
On October 8, 2019, a Monday, the trial court received a noted from Juror No. 8 that stated as follow: "We received your clarification for my question about voting on the various counts and the need for unanimous verdict. After we polled the jurors, submitted our ballots on Number 520, and then on the other murder in the second degree, I was badgered, insulted, yelled at, and attacked for voting not guilty on the murder charge. Everyone else voted guilty. [¶] Is this abusive tirade allowed? We agreed to reassemble at 10:00 a.m. on Monday to continue deliberation. Upon arriving downstairs, I got in our auto with my husband who had came [sic] to pick me up. I told him that I had severe pain on my left arm and side. We drove to urgent care where I was tested and treated for over three hours. Attached is a note from the attending physician who recommends that I resign from jury duty."
Juror No. 8 was questioned by the trial court. Juror No. 8 confirmed she had pain down her left side on the prior Friday and went to the doctor. The doctor recommended no further jury duty due to the chest pain and that she follow up with a cardiologist. She was feeling better, but was still fatigued and was anxious. She did not want to complete jury duty because she felt it was harming her health. She felt that she was being picked on by the other jurors. She stated that if she went back into deliberations she would want to stand her ground, but was concerned about her health. The trial court inquired, "So it's not-your primary issue is not that you don't feel that you can stand your ground and you can voice your concerns. It's that you are more concerned with your health?" Juror No. 8 responded, "Correct." Juror No. 8 advised the trial court she was able to reach a verdict on count 2 and it was not due to intimidation by the other jurors. She felt her health issues were caused by the problems with the other jurors. If not for her medical issues, she would have liked to continue with deliberations.
Defendant's counsel wanted the trial court to inquire of the juror foreperson as to whether there was harassment during deliberations. The trial court initially agreed but took a break for lunch. After the break, the trial court advised the parties that it had no choice but to excuse Juror No. 8 for medical reasons. The trial court also found there was no juror misconduct. Juror No. 8 never disclosed that she was being mistreated or insulted prior to the note. Further, Juror No. 8 believed that despite the conduct of the other jurors, she could return to the jury room and deliberate if not for her concerns about her health. It seemed that there was "heated deliberation" and not misconduct. No other jurors had reported any problems. The trial court offered to have the foreperson questioned. Defense counsel responded, "No your Honor. I'm just trying to not waive any right or objection on appeal for [defendant], if ultimately there are convictions. If the Court, based on what its heard, had not found misconduct, then I think . . . what happens is you release Juror Number 8, and alternate sat, and they start to deliberate again from the beginning." The People agreed that it appeared to just be "spirited debate" and not misconduct.
Juror No. 8 was excused and the jury was advised to begin juror deliberations anew. They were advised, "Each of you must disregard the earlier deliberations and decide the case as if those earlier deliberations had not taken place." The jurors were also advised that they were to keep an open mind and openly exchange ideas. The jury reached its verdict. The jurors were advised they could speak to counsel if they wanted.
On October 28, 2019, defendant filed his petition for order disclosing personal juror information pursuant to Code of Civil Procedure section 237 (petition). Defense counsel contended the information was necessary in order to file a motion for new trial based on juror misconduct. Defendant recognized that he must establish good cause for release of the information.
Defendant contended good cause was shown to disclose the juror names because Juror No. 8 had been excused during deliberations based upon a medical emergency. Defendant alleged that Juror No. 8 had stated the medical emergency "stemmed from the coercive behavior of fellow jurors." Juror No. 8 was a holdout juror who was unable to continue deliberations because of the treatment by other jurors. It was juror misconduct for one juror or a group of jurors to coerce another juror to vote against his or her will, or belief.
The People filed opposition to the petition. The People contended defendant had not shown good cause as there was not a sufficient showing that there was a reasonable belief juror misconduct had occurred. There was no showing of juror misconduct after Juror No. 8 was excused, which was the jury that actually returned the guilty verdict. No juror who rendered the verdict expressed any coercion. Further, at the time that Juror No. 8 was excused, the prosecutor asked that the trial court to determine whether juror misconduct had occurred and it found there was no misconduct. The trial court excused Juror No. 8 for medical reasons. Additionally, both counsel had an opportunity to speak with the jurors after deliberations; there was no evidence from those discussions that misconduct had occurred. Finally, defendant failed to demonstrate he made any diligent effort to contact the jurors by other means.
The matter was heard on February 7, 2020. Defense counsel contended that further inquiry should be made as to whether juror misconduct took place. It was important to inquire whether any other jurors felt that they were coerced. The People contended that based on the inquires of Juror No. 8 there were just disagreements between her and the other jurors. She never testified about any specific attacks or coercion. She was clear that her will was not being overborne by the other jurors. Further, defense counsel had the opportunity to discuss the issue with the jurors after the verdict. The foreperson was available. The prosecutor represented that none of the jurors who stayed to speak with the prosecutor and defense counsel had any concern about harassment or coercion during deliberations.
The trial court again stated that it appeared it had just been heated deliberations. Further, the reason Juror No. 8 wanted to be released from the jury was because of her health. The trial court found there was not good cause to release juror information. The jurors were available after trial; Juror No. 8 was excused for valid reasons; and there was no evidence of mistreatment of Juror No. 8. The petition was denied.
2. ANALYSIS
Pursuant to Code of Civil Procedure section 237, subdivision (a)(2), after the jury returns a verdict, the jurors' personal identifying information is sealed. "Under Code of Civil Procedure section 237, any person may petition the trial court for access to personal juror identifying information. [Citation.] The petition must be accompanied by a declaration (or declarations). [Citation.] . . ., '[t]he 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....' [Citation.] 'Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires "a sufficient showing to support a reasonable belief that jury misconduct occurred." '" (People v. Johnson (2015) 242 Cal.App.4th 1155, 11611162.)
The alleged 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.)" '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.'" (People v. Carrasco (2008) 163 Cal.App.4th 978, 990.)
"We review an order on a motion for disclosure of jurors' identifying information under the deferential abuse of discretion standard." (People v. Johnson (2013) 222 Cal.App.4th 486, 492.)
Here, defendant failed to make a prima facie showing that there was good cause to unseal the jurors' information. In support of the petition, defendant merely stated that it was juror misconduct for one juror or a group of jurors to coerce another juror to vote against his or her will, or belief. However, there was no evidence that any of the jurors, including Juror No. 8, were intimidated, forced, or coerced into voting to convict defendant. It is pure speculation that there was coercion of jurors before and after Juror No. 8 was removed from the jury.
Moreover, any discussions between Juror No. 8 and the other jurors could not have impacted the verdict. As noted, the trial court instructed the jurors to begin deliberations anew and were to completely ignore anything that occurred prior to Juror No. 8 being removed. We must presume the jurors followed the instruction and began the deliberations anew with no consideration of what occurred with Juror No. 8. (People v. Williams (2015) 61 Cal.4th 1244, 1279, see also People v. Fuiava (2012) 53 Cal.4th 622, 716 ["We presume the reconstituted juries followed the trial court's instructions to begin the deliberation anew [citation], and defendant's speculation to the contrary does not persuade us to conclude otherwise"].) It is pure speculation that any of the jurors who actually rendered the verdict were coerced into voting guilty. Such speculation does not support release of juror information.
Further, the trial court, which observed Juror No. 8, found that her concerns about deliberations were based on heated arguments, and there was no evidence of coercion in the jury room. In fact, Juror No. 8 stated that she was willing to return to deliberations and stand her ground, but was concerned about her health.
Defendant contends that Juror No. 8's allegations of abuse coupled with her removal from the panel constitute a showing of good cause sufficient to warrant further investigation. However, as stated, Juror No. 8 was adamant her will was not overborne and she did not disclose that other jurors were targeted. Additionally, defendant does not contend that Juror No. 8 was improperly removed. Further, the trial court found at the time that Juror No. 8 was removed there was no juror misconduct. Juror No. 8 was not part of the panel who ultimately convicted defendant and defendant failed to establish a prima facie case that there was misconduct after Juror No. 8 was removed. The trial court did not abuse its discretion in denying defendant's petition.
B. AB 1869
At sentencing, defendant was ordered by the trial court to pay a booking fee of $514.58 pursuant to Government Code section 29550.2 and the cost of the probation report in an amount not to exceed $1,095 pursuant to Penal Code section 1203.1b. Defendant contends the booking fee and the probation report fee must be vacated pursuant to AB 1869. The People argue that since the booking fee and probation report fee became uncollectible as of July 1, 2021, relief is automatic and we need not vacate the fees. We conclude AB 1869 requires that we vacate the portion of the judgment against defendant that imposes the booking and probation report fees.
Section 2 of AB 1869 provides, "It is the intent of the Legislature to eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and to eliminate all outstanding debt incurred as a result of the imposition of administrative fees." (Assem. Bill No. 1869, § 2.) To further this intent, AB 1869 added Government Code section 6111 which provides as follows, "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Gov. Code, § 6111, subd. (a).) Government Code section 6111, subdivision (b), provides that "[t]his section shall become operative on July 1, 2021."
AB 1869 also added Penal Code section 1465.9, which states: "On and after July 1, 2021, the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Pen. Code, § 1454.9, subd. (a).) Penal Code section 1465.9 became operative on July 1, 2021. (Pen. Code, § 1465.9, subd. (b)
In People v. Clark (2021) 67 Cal.App.5th 248, the court noted AB 1869 "is largely self-executing, and provides both backward-looking and forward-looking relief. [An appellant] may not be charged such fees, and to the extent he already has been charged them, any fees not yet paid are no longer collectible." (Id. at p. 259.) To the extent it is not self-executing, as when uncollectible fees are "phantom debt," imposed but uncollectible, any appellant may request we vacate the portion of the judgment imposing this debt "and if he or she does, we must grant it even though the pertinent fees are no longer collectible. The language of the statute is mandatory." (Ibid., italics omitted.)
Defendant is entitled to have the unpaid balance of the booking fee and probation report fee stricken. (People v. Clark, supra, 67 Cal.App.5th at p. 259.)
DISPOSITION
The judgment is modified to strike any unpaid balance, as of July 1, 2021, of the booking fee imposed under former Government Code section 29550 and the probation report fee imposed under former Penal Code section 1203.1b. The clerk of the superior court is directed to amend the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., CODRINGTON J.