Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA058805, James R. Brandlin, Judge. Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Rasheena Buchanan.
Nana Gyamfi, under appointment by the Court of Appeal, for Defendant and Appellant Tristian Bennett.
Edmond G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KRIEGER, J.
A jury found defendants Tristian Bennett and Rasheena Buchanan guilty of the attempted automated teller machine robbery of William Palma in violation of Penal Code sections 664 and 211, finding the attempt to have been in the first degree. It also found defendants guilty of the second degree robbery of William’s sister, Daysi Palma, in violation of section 211. As to both convictions, the jury found that a principal was armed with a handgun under section 12022, subdivision (a)(1). Defendant Bennett was sentenced to a four-year eight-month state prison term, consisting of a three-year midterm for the robbery, plus one year for the firearm enhancement, and eight months for the attempted robbery (one-third the midterm). Defendant Buchanan was sentenced to a six-year eight-month prison term, consisting of the same terms as her codefendant, except the trial court imposed the upper term of five years for the robbery.
All statutory references shall be to the Penal Code unless stated otherwise.
Section 212.5, subdivision (b) provides: “Every robbery of any person while using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine is robbery of the first degree.”
Because the victims share the same surname, we shall refer to them by their first names.
In defendant Bennett’s timely appeal, he contends his federal constitutional right to retain the attorney of his choice under the Sixth Amendment was violated when the trial court relieved retained counsel Earl Broady in favor of substituted retained counsel Billy Hairston. Defendant Bennett also contends Hairston rendered constitutionally ineffective assistance in violation of the Sixth Amendment by failing to move to suppress William’s identification of him from a photographic lineup on the ground it was unduly suggestive and by failing to prepare adequately for trial.
In defendant Buchanan’s timely appeal, she contends: her counsel rendered constitutionally ineffective assistance by failing to present evidence of due diligence sufficient to demonstrate witness unavailability and thereby satisfy the hearsay exception for the admission of a favorable third party statement; the trial court violated her federal constitutional due process rights by instructing the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM Nos. 220 and 224, the pattern instructions as to reasonable doubt and the use of circumstantial evidence; the imposition of an upper term sentence for her robbery conviction violated her Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct. 856, 861-862] (Cunningham); and the trial court violated her rights to due process and a fair trial under the federal Constitution by failing to conduct a hearing into potential jury misconduct and in refusing to release a juror’s identifying information. Defendants join in each other’s contentions to the extent they apply. We affirm.
STATEMENT OF FACTS
Prosecution
On October 2, 2005, at approximately 7:30 p.m., William and Daysi went to a Wells Fargo Bank on Hawthorne Boulevard. William drove them in his red Honda; Daysi was in the front passenger seat. William parked in front of the bank’s ATM, turned off the engine, but left his keys in the ignition as he walked to the machine. Daysi had her purse with her. She did not see anyone else in the vicinity. As she curled her eyelashes and waited for William to complete his ATM transaction, she saw two males and a female approach the Honda’s driver side. The female was defendant Buchanan. The males approached William, who was in front of the ATM. Defendant Buchanan entered the Honda, sat in the driver seat, and told Daysi, “Don’t scream, you’re not going to get hurt.” Defendant Buchanan removed William’s keys from the ignition and took his cell phone, which he had left in its charger. She also took Daysi’s purse, opened it, and removed Daysi’s wallet, from which she took Daysi’s ATM and identification cards. Daysi was frightened. When defendant Buchanan exited the car, Daysi saw “something black” in her hand, which she thought was a gun. Defendant Buchanan slammed the car door and ordered, “Give me your PIN or else I’m going to fucking shoot you.” Suddenly, the two males ran from the ATM with William in pursuit. Defendant Buchanan joined them and ran away with them. Daysi called the police from a cell phone she had hidden during the robbery and reported the incident.
William testified that when he approached the ATM, he saw no one in the area. When he placed his card into the machine, however, two males came up behind him, one on either side. One placed a gun to his back and ordered him to withdraw money, but William refused. The gun had a black handle and gray barrel. The assailant continued to force the gun into William’s back and swore at him, repeating: “Give me the fucking money, bitch.” The other assailant was defendant Bennett, who was standing on William’s left side. Defendant Bennett twice slapped William across his head, and unsuccessfully tried to withdraw money from William’s ATM account. Next, defendant Bennett tried to take William’s wallet, but William clutched it to his body and pushed him away. William could see both assailants’ faces as they backed away.
William saw defendant Buchanan exiting the Honda, holding Daysi’s identification card and William’s car keys. As William began to run after the three assailants, defendant Buchanan repeated, “Don’t even try.” All three ran down an alley and entered a blue Ford Taurus and drove away.
Daysi identified defendant Buchanan at trial. She saw her face during the course of the attempted robbery. The area was illuminated by street lights. When Detective Lane first showed Daysi a photographic lineup, she could not identify defendant Buchanan’s photograph with certainty, but she thought it “looks like her” because of the braids in her hair. Daysi was “100 percent sure” of her in court identification at trial. She also identified defendant Buchanan at the preliminary hearing.
William confirmed that the two male assailants were depicted in the photographs from the ATM surveillance camera. Detective Lane showed William a photographic lineup of six female suspects. He identified defendant Buchanan’s photograph and identified her in court. He also identified defendant Bennett from a photographic lineup and in court. William identified photographs of (1) a semi-automatic handgun as the one used during the robbery incident; (2) the rear view of the getaway car; and (3) the hat worn by the second male assailant.
On October 12, 2005, at approximately 2:45 p.m., Samuel Bailey of the Inglewood Police Department was on patrol, when he saw defendants Bennett and Buchanan. Defendant Bennett had parked his Ford Explorer in the middle of Marlboro Avenue—blocking the north and southbound traffic lanes—and walked across the street to defendant Buchanan, who was in a black Ford Taurus parked on the south side of that street. Officer Bailey approached defendants with regard to defendant Bennett’s apparent traffic violation. The latter, having seen the officer approach, had returned to his Explorer and parked it in a nearby driveway (defendant Bennett’s residence, as it turned out) before running back to the Taurus. The officer parked behind the Taurus, summoned defendant Bennett over to him, and questioned him about the traffic violation.
While Officer Bailey was questioning defendant Bennett, the four occupants of the Taurus, including defendant Buchanan, exited the car and entered defendant Bennett’s residence. Meanwhile, the officer detained defendant Bennett, who had no identification and was not the registered owner of the Explorer. When the officer looked into the Explorer’s rear window, he saw a handgun behind the back seat in plain view. Defendant Bennett said the Explorer was his mother’s. Officer Bailey called defendant Buchanan out from the residence and asked for her identification. She said it was in her purse, which she was wearing. The officer opened the purse and saw a semi-automatic handgun inside. Officer Bailey’s subsequent search of the Taurus uncovered handgun rounds. Defendant Buchanan admitted she owned the vehicle. The handgun found in the purse was the one identified by William as being used in the attempted robbery. The ammunition in the Taurus matched the revolver found in the Explorer. The photograph identified by William as the getaway car was taken of defendant Buchanan’s Taurus.
Detective Eric Lane of the Hawthorne Police Department took part in a search of defendants’ Marlboro Avenue residence pursuant to a search warrant. The search uncovered various items, including the hat William identified as being worn by the unidentified male suspect, a semi-automatic handgun, defendant Bennett’s identification card, and a black and silver pellet gun. According to the detective, defendant Bennett appeared to be depicted in photographs taken by the ATM surveillance camera.
The pellet gun found in the Marlboro residence was not the same as the semi-automatic handgun identified by William.
DISCUSSION
Defendant Bennett: Constitutional Right to Retained Counsel
At the same time defendant Bennett filed his opening appellate brief, he moved to augment the record to include the transcripts of three pretrial hearings that he asserted would support a claim that the trial court violated his federal constitutional right to retain the attorney of his choice under the Sixth Amendment when it relieved Broady in favor of Hairston. The opening brief raised the Sixth Amendment claim in perfunctory fashion, merely citing the federal Constitution and some general caselaw, without making any attempt to explain the nature of the supposed Sixth Amendment violation or how those general authorities applied to the facts of his case. Appellate counsel represented that a supplemental brief would be filed if this court granted the motion to augment. We granted the motion to augment, and the supplemental transcripts were filed on April 6, 2007. No supplemental briefing, however, has been filed on behalf of defendant Bennett. Nor has appellate counsel filed a reply brief, despite the Attorney General’s position that the transcripts revealed nothing to support a Sixth Amendment violation.
It is well established: “‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.) Based on defendant Bennett’s perfunctory presentation of his right-to-counsel-of-his-choice claim, we hold he abandoned it on appeal, having failed to identify the nature of the claimed Sixth Amendment violation, along with his failure to provide citations to the record or pertinent legal citations. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37 [“As this contention is perfunctorily asserted without any analysis or argument in support, we reject it as not properly raised”]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [“We need not consider an argument for which no authority is furnished”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
Competency of Trial Counsel Claims
Defendant Bennett contends his trial counsel rendered constitutionally ineffective assistance by failing to move to suppress as unduly suggestive William’s identification of him from a photographic lineup and by failing to prepare adequately for trial. Defendant Buchanan contends her trial counsel rendered constitutionally ineffective assistance by failing to present evidence of reasonable diligence sufficient to demonstrate witness unavailability and thereby satisfy the hearsay exception for the admission of a potentially favorable third-party statement concerning the firearm found in her purse. We find no Sixth Amendment violation arising out of these alleged attorney errors.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland); see Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
In defendant Bennett’s first ineffectiveness claim, he argues counsel inexplicably and prejudicially failed to challenge the admission of William’s identification of his photograph from the six-pack shown to him by Detective Lane based on the testimony that William did not identify defendant Bennett’s photograph from the first photographic lineup shown him, but from the second six-pack that the detective prepared with a different photograph of defendant Bennett. Defendant Bennett contends the detective’s actions in preparing a second six-pack rendered the identification unduly suggestive and, therefore, subject to a motion to suppress. Alternatively, defendant Bennett argues his counsel was ineffective for failing to engage the detective in more extensive cross-examination on this point, and for failing to argue the suggestiveness of the lineup to the jury.
We find the record fails to support defendant Bennett’s claim under Strickland’s competency and prejudice prongs. Detective Lane testified that William identified defendant Bennett’s photograph from a second six-pack, in which the detective had substituted a “better” photograph of defendant Bennett. “‘In deciding whether an extrajudicial identification is so unreliable as to violate a defendant’s right to due process, the court must ascertain (1) ‘whether the identification procedure was unduly suggestive and unnecessary,’ and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. [Citations.]’” (People v. Carter (2005) 36 Cal.4th 1114, 1162-1163.) Defendant Bennett does not explain how the detective’s action was either unduly suggestive or unnecessary—or otherwise served to so taint the subsequent identification that it would have supported a valid suppression motion. Defendant Bennett can only speculate as to the factual basis for the motion and as to its likelihood of success. The Constitution does not require trial counsel to make pointless motions. “Counsel’s failure to make a meritless objection does not constitute deficient performance.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1080.)
Moreover, given that William identified defendant Bennett from the ATM surveillance photographs taken during the attempted robbery—which were admitted into evidence—there is no basis for finding a reasonable likelihood of prejudice. Not only were the jurors aware of the detective’s use of a second photographic lineup and his reason doing so, but they could compare defendant Bennett’s appearance with the surveillance photographs and make their own assessment as to whether he was present at the scene. Given that the surveillance photographs placed defendant Bennett at the scene at the relevant time, William’s identification from the six-pack was certainly of marginal importance to the prosecution’s case.
Defendant Bennett’s other ineffectiveness claim fares no better. Based on trial counsel’s statements to the trial court (outside the jury’s presence) that he had not conducted a pretrial review of the photographs that the prosecution intended to introduce as evidence at trial, defendant Bennett asserts on appeal that counsel’s trial preparation was constitutionally inadequate. However, even assuming trial counsel culpably failed to review the prosecution’s trial exhibits in advance of trial, nothing in the record suggests prejudice. Defendant Bennett does not explain how a more thorough review of the documents would have improved trial counsel’s representation or affected the verdict. Once again, mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark, supra, 5 Cal.4th at p. 766.)
At the start of trial, defendant Bennett’s counsel moved to exclude most of the prosecution’s intended documentary evidence. Hairston explained that the documents had been provided to his associate, Broady, but he had not reviewed them until that day.
Defendant Buchanan premises her ineffectiveness claim on trial counsel’s failure to lay the evidentiary foundation to permit the admission of a hearsay statement that a third party was responsible for putting the handgun in her purse. We find the claim fails under the performance and prejudice aspects of the Sixth Amendment standard.
The trial record shows that Officer Bailey had already found a firearm in the vehicle defendant Bennett was driving when the officer called defendant Buchanan out from the residence and found a semi-automatic handgun inside her purse. On cross-examination, Officer Bailey testified that after he found the handgun in defendant Buchanan’s purse, the three males who had exited the Taurus with her were also detained. The officer did not interview them, but merely sought their identities. Counsel for defendant Buchanan elicited testimony that one or some of those males volunteered statements. At that point, the prosecutor objected on hearsay grounds to admission of any testimony as to the statements themselves. Defense counsel’s offer of proof was that one of the males said that he put the weapon in the purse, and counsel argued that the statement was admissible as a statement against penal interest under Evidence Code section 1230. The trial court agreed with the prosecutor, however, that there had been no showing of the declarant’s unavailability as required by that code provision. Accordingly, it sustained the objection, but placed the officer on call to give defense counsel the opportunity to make the requisite showing of unavailability. The record discloses no attempt to establish the declarant’s unavailability. Nor does it shed any light on counsel’s efforts or decision making process in that regard.
“‘Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show “that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.”’ [Citation.] ‘The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.] ‘[E]ven when a hearsay statement runs generally against the declarant’s penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. . . . [¶] . . . We have recognized that, in this context, assessing trustworthiness “‘requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.’”’ [Citation.] Finally, such statements, even if admissible are nonetheless subject to Evidence Code section 352 under which ‘the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584.)
The record does not support a finding of constitutionally inadequate representation of counsel. Contrary to defendant Buchanan’s assertions, trial counsel’s vague, ambiguous representations to the court do not demonstrate the absence of any practical impediment to obtaining adequate proof of reasonable diligence to secure the witness’s attendance. Counsel stated that his investigator had been “doing everything to obtain all information about all the people that were in the police reports and in Officer Bailey’s reports. So I have not been able to find that individual.” The references to reliance on information in police reports seems less than conclusive since the hearsay declarant appeared to be an acquaintance of defendant Buchanan. In any event, the record does not disclose what additional efforts counsel undertook (if any), and as there could have been legitimate tactical explanations for counsel’s decision, we must presume counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Freeman, supra, 8 Cal.4th at p. 513; People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
Even assuming counsel could have obtained a declaration sufficient to establish unavailability, we can only speculate whether the other requirements of Evidence Code section 1230 could have been satisfied so as to justify the statement’s admission. Moreover, there is no reason to believe the statement would have had any significant impact on the jury’s verdict or special finding. The “principal armed” allegation under section 12022, subdivision (a)(1), did not require a finding that defendant Buchanan was personally armed. Although we note that defendant Buchanan’s statement to Daysi, “Give me your PIN or else I’m going to fucking shoot you,” would certainly evidence personal possession of a firearm. William gave credible testimony that one of the male accomplices was armed, and testimony that a third person possessed or owned the handgun does not undercut that testimony in any way. Nor would third party ownership of the handgun in defendant Buchanan’s purse significantly undercut critical evidence of her identity as defendant Bennett’s accomplice. Even leaving aside the two eyewitness identifications, there was strong evidence of her close criminal association with defendant Bennett, including Officer Bailey’s discovery that the handgun rounds found in her Taurus (the getaway car) matched the caliber of the firearm in the vehicle defendant Bennett was driving just prior to their arrests. Additionally, defendant Buchanan admitted owning the vehicle William identified as the getaway car. In sum, there was no reasonable probability that defendant would have obtained a more favorable result absent counsel’s alleged shortcomings. (See Williams v. Taylor, supra, 529 U.S. at pp. 391-394; People v. Kraft, supra, 23 Cal.4th at p. 1068.)
Instructional Error Claims By Both Defendants
Despite the lack of objection to the challenged instructions below, we review this claim pursuant to section 1259.
Defendant Bennett joins in his codefendant’s contentions that the pattern instructions for reasonable doubt and for the consideration of circumstantial evidence, CALCRIM Nos. 220 and 224, violated her federal constitutional due process rights. More specifically, as to the reasonable doubt instruction, defendants argue CALCRIM No. 220, when read together with CALCRIM No. 222, limits the jurors’ determination of guilt to the evidence received at trial, while prohibiting them from considering the lack of physical evidence implicating them in the crime.
The trial court instructed the jury, pursuant to CALCRIM No. 220: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty.” As is pertinent to this appeal, it also instructed, pursuant to CALCRIM No. 222, that “‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
In a recent decision, our colleagues in the Fourth District addressed this precise contention and cogently explained why it must fail. CALCRIM No. 220 in conjunction with CALCRIM No. 222, “merely instruct[] the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [defendants’] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.” (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.) We agree.
As to CALCRIM No. 224, the jury was instructed: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Defendants assert that the instruction’s reference to “innocence”—rather than to being “not guilty”—improperly lowers the burden of proof by requiring a defendant to affirmatively prove his or her innocence. As our colleagues in the Third District recently explained, this argument misconstrues the instruction by ignoring the context in which the word “innocence” is used. (People v. Anderson (2007) 152 Cal.App.4th 919, 932-933.) CALCRIM No. 224 does not erroneously shift or lessen the burden of proof. Indeed, the instruction’s first sentence emphasizes that even in the context of assessing circumstantial evidence, the jury must be convinced the prosecution has proved every essential fact beyond a reasonable doubt. To the extent the instruction draws a distinction between guilt and innocence, it does so in the logical and unobjectionable context of distinguishing between inferences that favor one party or the other. “[T]he challenged language did not tell the jurors they had to find defendant innocent in order not to convict him. ‘Innocence’ in this jury instruction is used simply to connote a state of evidence opposing guilt. To say that evidence ‘points to’ innocence does not suggest that a defendant has to prove his innocence. The language is used simply as a status of not guilty, a kind of compass or direction signal indicating where the evidence points.” (People v. Wade (1995) 39 Cal.App.4th 1487, 1492 [construing analogous CALJIC instruction].)
As the Anderson court explains: “A particular item of evidence may fall into one of three categories: it may tend to prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or innocence. If the evidence falls into the latter category, it does not support either a guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and should be excluded. Thus, if a particular item of evidence, circumstantial or otherwise, is relevant to the jury’s ultimate determination, it is relevant only because it tends to prove either guilt or innocence. [¶] CALCRIM No. 224 simply recognizes this distinction when the jury is considering the circumstantial evidence as a whole.” (People v. Anderson, supra, 152 Cal.App.4th at p. 933.) Moreover, as Anderson points out, there is a long, unbroken line of California authority recognizing this distinction. (Ibid., citing People v. Bender (1945) 27 Cal.2d 164, 177; People v. Foster (1926) 198 Cal. 112, 128; People v. Barthleman (1898) 120 Cal. 7, 10; People v. Naumcheff (1952) 114 Cal.App.2d 278, 281; People v. Haywood (1952) 109 Cal.App.2d 867, 872; People v. Carroll (1947) 79 Cal.App.2d 146, 150.)
In short, we reject the notion that due process required the trial court to instruct the jurors that if they could draw two or more reasonable conclusions from the circumstantial evidence, they must assess whether one of those reasonable conclusions points to guilt or something along the lines of “not guiltiness”—with the further requirement that they must accept the one that points to the latter.
Defendant Buchanan’s Blakely Claim
Defendant Buchanan contends the trial court’s imposition of the upper term sentence for her robbery conviction violated her Sixth Amendment right to a jury trial, under Blakely, supra, 542 U.S. 296 and Cunningham, supra, __ U.S. __ [127 S.Ct. 856], because there was no jury finding of the aggravating factor relied upon by the court—her criminal history consisting of a prior felony conviction, demonstrating increasingly serious criminal activity. We affirm in accordance with our Supreme Court’s recent opinion in People v. Black (2007) 41 Cal.4th 799 (Black II).
The sentencing hearing took place on July 11, 2006. It was undisputed that defendant Buchanan had suffered a prior felony conviction for forgery in 2001. Defense counsel argued for imposition of a lower term, but the trial court found defendant Buchanan deserving of an upper term sentence based on her criminal history, which showed increasingly serious criminal behavior.
In Cunningham,the United States Supreme Court disagreed with our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and held “California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (Black II, supra, 41 Cal.4th at p. 805.) Nevertheless, the Black II decision made it clear that there is no violation of the constitutional jury trial right as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and its progeny. (Black II, supra, 41 Cal.4th at p. 812.)
Accordingly, consistent with federal Supreme Court precedent, a sentencing court’s finding of criminal history as an aggravating circumstance renders a defendant eligible for the upper term sentence. (Black II, supra, 41 Cal.4th at p. 818.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Ibid.)
Moreover, numerous decisions from other jurisdictions have interpreted the federal Supreme Court’s recidivism exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black II, supra, 41 Cal.4th at p. 819, fn. omitted.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Id. at pp. 819-820, fn. omitted.)
Therefore, pursuant to Black II, we find defendant Buchanan’s criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered her eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 820.)
Failure to Conduct a Juror Misconduct Hearing Claim by Both Defendants
Defendants contend the trial court violated their rights to due process and a fair trial under the federal Constitution by failing to conduct a hearing into potential jury misconduct and in refusing to release a juror’s identifying information pursuant to Code of Civil Procedure section 237, subdivision (b). We disagree.
At a post-trial hearing on June 29, 2006, counsel for defendant Buchanan requested an opportunity to interview or examine Juror No. 10 in preparation for a new trial motion regarding potential juror misconduct. As the trial court found, on May 26, 2006, Juror No. 10 contacted the courtroom clerk regarding the verdicts reached the day before. The juror asked to view the exhibits, saying that he or she was unhappy about the verdict and that he or she felt “rushed into it.” Counsel for all the parties were informed of the request. Five days later, the clerk contacted the juror to arrange a time to review the exhibits. The juror responded that he or she no longer wanted to see them because he or she felt “resolved about the verdict rendered.”
Counsel for defendant Buchanan argued the representations concerning Juror No. 10 were sufficient to warrant further inquiry into whether the juror had evidence that would support a new trial motion. Counsel for defendant Bennett joined. The trial court accurately recited the standard for releasing the information under Code of Civil Procedure section 237, subdivision (b). While the court found no “compelling interest” against disclosure, it identified the determinative issue as whether the juror’s initial concern and subsequent statement disavowing that concern were sufficient to show a prima facie case for disclosure. Having considered the matter, it found no prima facie case based on the juror’s “discomfort initially with the verdict” and “sense of pressure by the other jurors.” The trial court noted the juror “did not indicate that any of the other jurors had threatened the juror or that there was any concern on that juror’s part of allegations of misconduct . . . .” Additionally, “[t]here is also no indication that counsel has attempted to obtain that other information through another source.”
Code of Civil Procedure section 237, subdivision (b) provides: “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” Code of Civil Procedure section 206, subdivision (g) authorizes the making of such a provision “for the purpose of developing a motion for new trial or any other lawful purpose.”
The trial court clarified that in making its ruling, it assumed that the juror’s statements as related by the clerk were truthful and heartfelt. At most, the defendants had argued that they wanted to interview the juror to find out whether improper pressure was brought to bear and why the juror felt unhappy with the verdict. The court explained that there was nothing to indicate that any external pressure was brought to bear on the juror. Therefore, little, if any, of the questioning proposed by defendants would be permissible under Evidence Code section 1150, subdivision (a), which generally excludes evidence “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.”
Initially, we hold that to the extent defendants attempt to allege a violation of due process or the right to a fair trial under the Fourteenth Amendment, they predicate their claim on a the existence of juror misconduct. However, as the arguments below and on appeal make clear, defendants do not argue the record contains evidence sufficient to show juror misconduct. Apart from arguing they were entitled the release of information to investigate possible juror misconduct, defendants make no showing of how the trial court’s ruling denied them a fair trial. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1323.) Therefore, the threshold question is whether the trial court committed reversible error in refusing to grant the juror identifying information that defendants assert they needed to develop a potential showing of juror misconduct.
Defendants assert the post-trial statements by Juror No. 10 were sufficient to mandate further inquiry into whether misconduct occurred. “Denial of a petition filed pursuant to section 237 is reviewed under the deferential abuse of discretion standard.” (People v. Santos (2007) 147 Cal.App.4th 965, 978, citing Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097-1098.) Mere speculation that juror misconduct occurred does not meet the good cause requirement for release of identifying information. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
We conclude there was no abuse of discretion. The record supports the trial court’s finding that Juror No. 10’s representations betrayed no indication of misconduct and, therefore, did not rise above the level of speculation. The mere fact that it could not rule out the possibility that release of the information might potentially lead to the discovery of evidence of misconduct does not require a finding of good cause. As the Wilson court explained, while Code of Civil Procedure section 206, subdivision (g) broadly authorizes the release of personal juror identifying information when it is “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose,” the statutory scheme also contains “a legislative intent to require the defendant show good cause for disclosure and not engage in merely a fishing exhibition.” (People v. Wilson, supra, 43 Cal.App.4th at p. 852.)
DISPOSITION
The judgment is affirmed.
I concur: TURNER, P.J.
MOSK, J., Concurring
I concur.
I believe the record is insufficient to determine the issue of whether counsel was ineffective. The Supreme Court has said, “We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.” (People v. Michaels (2002) 28 Cal.4th 486, 526.)
The failure to explore the eyewitness testimony and to produce or obtain a statement from a witness in this case could have been prejudicial. Accordingly, I would affirm as to the ineffective assistance of counsel claim on the basis that the record does not establish the validity of that claim.