Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. BB730348.
Duffy, J.
A jury convicted defendant Todd David Burpee of multiple offenses arising out of his kidnapping, physical assault, and sexual assault of a 17-year-old girl. In a separate opinion, we affirm the judgment of conviction filed this date. (People v. Burpee (H034797).) In this appeal, he claims that the trial court erred in denying his postverdict motion to release juror identifying information so that he could ask the former jurors about any exposure they may have had to news coverage of the proceedings. He also claims that the error violated his jury trial rights under the Sixth and Fourteenth Amendments to the United States Constitution and his right to due process of law under the Fifth and Fourteenth Amendments.
We find no error or constitutional infirmities and will affirm the postverdict order.
The facts of the case are not germane to this appeal and we do not describe them.
A jury convicted defendant of two counts of assault with intent to (1) rape and (2) commit forcible sexual penetration (Pen. Code, § 220, former subd. (a); Initiative Measure (Prop. 83, § 4, approved Nov. 7, 2006, eff. Nov. 8, 2006); see Pen. Code, §§ 261, 289), two counts of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), one count of kidnapping to commit rape and forcible sexual penetration (Pen. Code, §§ 209, subd. (b)(1), 261, 289), and one substantive count of forcible sexual penetration (Pen. Code, § 289, former subd. (a)(1); Stats. 2002, ch. 302, § 5). It found true allegations in all counts that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and, in the substantive sexual penetration count, an allegation under the “One Strike” law that he committed an aggravated form of kidnapping by substantially increasing the risk of harm to the victim and inflicted great bodily injury (Pen. Code, § 667.61, subds. (a), (c)(5), (d)(2), & Pen. Code, § 667.61, former subds. (e)(1), (e)(3); Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006, eff. Nov. 8, 2006). Defendant admitted an allegation that he committed the crimes while out of custody on his own recognizance (Pen. Code, § 12022.1).
The trial court sentenced defendant to serve a sentence of 25 years to life consecutive to 18 years in state prison.
FACTS REGARDING THE POSTVERDICT MOTION
Trial took place in Santa Clara County after the defense’s exhaustive and voluminous change of venue motion was denied. The trial lasted from May 11 to 28, 2009.
Moving the trial out of Santa Clara County appears to have been a major focus of the defense’s pretrial strategy. The crimes had attracted thorough, continual, and sensational coverage because of their brutality and the circumstance that some motorists ignored the victim’s pleas for help when she was running around on a public thoroughfare obviously injured. The defense presented numerous newspaper articles discussing these matters and demographic information about Santa Clara County.
Each prospective juror was given a questionnaire that asked about his or her exposure to news coverage of the case. This gave counsel an opportunity to question prospective jurors about their exposure if they had any.
On May 11, 2009, at the outset of trial and just before opening statements, the trial court admonished the jurors as follows:
“I will now explain some basic rules of law and procedure. These rules ensure that both sides receive a fair trial. During the trial do not talk about the case or about any people or subjects involved in the case with anyone—not even your family, friends, spiritual advisors or therapists. Do not share information about the case by writing, by e-mail or on the Internet. You must not talk about the things with the other jurors either until the time comes for you to begin your deliberations.
“As jurors you may discuss the case only after the evidence has been presented, [and] the attorneys have completed their arguments. I will instruct you on the law. After I tell you to begin your deliberations you may discuss the case only in the jury room and only when the jurors are present. You must not allow anything that happens outside the courtroom to affect you during the trial. Do not listen, read or watch any news or commentary about the case from any source.
“You must reach a verdict without any consideration of punishment. Do not do any research on your own or as [a] group. Do not use a dictionary, Internet or other reference materials. Do not investigate the facts of law. Do not conduct any tests, experiments or visit the scene of any event involved in the case.
“If you happen to pass by the scene, do not stop or investigate.... [¶] During the trial do not speak to any trial witness or lawyer involved in the trial. Do not listen to anyone that tries to talk about the case or any of the people or subjects involved in it. If someone asks you questions, you can tell him or her that you can’t talk about it. If that person keeps talking to you about the case, you must end the conversation. When the trial has ended and you have been released as jurors, you may not [sic] discuss the case with anyone, but under California law you must wait ninety days before negotiating or agreeing to accept any payment for information about the case.
“If you receive any information about the case from any source outside the trial even unintentionally, do not share that information with any other jurors. If you do receive such information or if anyone tries to influence you or any jurors, you must immediately tell the bailiff.”
On May 12, 2009, with the jurors seated and hearing testimony, the trial court decided to make sure that the jurors were following the previous day’s admonition with respect to news coverage or other reading material. The court noted, “[f]irst thing I want to cover—hopefully not an issue at all, [but] there has been some media coverage about the case that was in our newspaper in some articles and on the Internet. Anybody read any of those? Good.” The court added, “if you do read information about the case, it is your obligation to notify the bailiff about that so we can determine if it in any way causes a problem with you being a juror in the case. All right. Anything else?”
In addition, at the close of three of the daily court sessions, the trial court alerted jurors to avoid news coverage about the case. On the other session days, it made no specific admonition to the jurors to avoid news coverage, but reminded them of their duties generally, including the duty not to research the case independently. Only on May 27, 2009, and apparently out of inadvertence, did the court not give a relevant admonition. Closing arguments concluded on that day.
The verdicts came down on May 28, 2009, and the trial court entered judgment and handed down its sentence on September 11, 2009.
On June 15, 2009, defendant filed a motion to unseal juror identifying information under Code of Civil Procedure section 237, subdivision (b). His motion argued: “Good cause exists for disclosure of the jurors’ names, addresses, and telephone numbers. Trial counsel should have asked the court to question the jurors if they were exposed to the media coverage. If they had, trial counsel should have moved for removal of the influenced jurors or for a mistrial, and he should have renewed the motion for a change of venue. His failure to do so was deficient. His deficiency was prejudicial if at least one juror was in fact exposed to the media coverage. Disclosure of the juror information is required for petitioner to establish prejudice in his claim he received ineffective assistance of counsel.”
All further statutory references are to the Code of Civil Procedure.
Defendant has filed a petition for writ of habeas corpus raising this claim, which we have considered with this appeal. (In re Todd David Burpee on Habeas Corpus (H036878).) By separate order of this date, we deny the petition for habeas corpus.
The People responded, “defendant provides absolutely no facts indicating that the jury read, heard of, listened to, or was somehow, in any way, exposed to [news] articles. [¶] Further, to unseal juror identifying information would be to grant defendant an unwarranted fishing expedition for his investigatory purposes.... Such an outing was the exact type of fishing expedition the good cause requirements of California Code of Civil Procedure section 237 [were] designed to prevent.”
In his reply, defendant asserted, “The overall theme of the prosecution’s response is the accusation the defense is on a ‘fishing expedition.’ This common retort... does not fit the present situation.... [Defendant] has specific concerns, based on fact, that can be addressed with a few short questions to the jurors.”
The trial court heard argument on the motion on July 10, 2009.
At the hearing, the trial court and the parties made these points:
The trial court asked, “I know they [the jurors] were repeatedly advised not to [follow news coverage], and they agreed to that. Is it your position that we should not presume that they followed these instructions and that we should, you know, find out?”
Defense counsel replied: “It is my position that although the court did advise the jury not to read the media, and that is something that they agreed to do, that the Mercury News is a ubiquitous newspaper in the area.”
Defense counsel was particularly concerned about reports in the San Jose Mercury News on May 5 and 14, 2009, that asserted that defendant had confessed to police his guilt of the crimes. “[S]ome of [the] information [in] those articles was dynamite, ” counsel asserted. “They were talking about materials, about how he made a confession to the police and wrote an apology to the victim.” “Information that he confessed would have been fatal to the case.”
“When this court did the voir dire, ” defense counsel acknowledged, “a lot of the jurors responded to the questionnaire and some of the questions they had about the case. Most of those people did not end up in the jury pool, and most of those people frankly did not remember details of the case when the earlier details of the case came out previously....”
The trial court commented: “I don’t have it right in front of me, but I am presuming that I instructed them not only not to view any media, but if they started to, to stop, and that if they did, to report that to the court, and that’s essentially what [trial counsel] should have done by having them pre-instructed that they had affirmed a duty to report any exposure in the media to the case. His failure to ask the court to inquire, is that the same thing?”
Defense counsel replied: “Again, the problem becomes human nature.” “I don’t think the question is the bad faith necessarily of the jury, but just human nature. That it is just very difficult in a high-publicity case—certainly one as heart wrenching as this one....” “[T]he question becomes whether or not a jury had stumbled upon something....” “[G]iven the amount of publicity... and the charged nature in the articles, justice requires to at least ask the jurors about the case.”
The trial court asked the prosecution for its views and the prosecution, represented by a certified law clerk, responded: “We have provided many different cases that flesh out the meaning of what a showing of good cause is, and in every single one of those cases the petitioner has provided at least a scrap of evidence showing that there was possible juror misconduct here.
“As defense counsel has admitted, there is absolutely no evidence, yet defense counsel have framed their issue in whether the court would presume that juror misconduct occurred and they base that presumption on human nature.
“If the court presumes solely based on human nature, we would have to go into every single jury of every single trial because it is based of people who have human nature who could possibly be exposed to newspaper articles.”
“[T]here hasn’t been at least a fragment of evidence to support that there was some sort of juror misconduct.”
“What actually occurred in the jury box and the purpose and legislative intent behind section 237 was to protect the privacy of those jurors. Therefore, that is why there is needed some sort of information to establish and meet that good-cause standard of showing before we unlock that key and find out more, and defense counsel clearly has not provided anything to even approach a good-cause showing yet.”
Defense counsel had the last word: “[I]f you can show that a juror actually commits misconduct, we would not need to talk to the juror. We would have evidence.”
The trial court ruled against defendant: “I am going to deny the motion. As I said, I understand the argument. I don’t think there has been evidence presented to show the prima [facie] requirement under [section] 237, and that at this point there has been nothing presented that would require the court to disclose the juror information.”
DISCUSSION
I. Legal Principles
Section 206, subdivision (g), provides that after the jury in a criminal case is discharged, a defendant may petition the court for an order releasing information concerning the jurors’ names, addresses, and telephone numbers for the purpose of preparing a motion for new trial. That statute references section 237, which provides in part that after records containing criminal jurors’ personal identification information are ordered sealed at the conclusion of trial, any person may make a motion to obtain access to the sealed records, accompanied by a showing of good cause. (§ 237, subd. (b).)
“Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.” (§ 206, subd. (g).)
“Any person may petition the court for access to these [juror information] 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.” (§ 237, subd. (b).)
These statutes were enacted “to protect the safety and privacy of jurors.” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091; see also People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321-1322, fn. 8 (Jefflo) [“the Legislature’s concern for juror protection [is] clearly manifested in the current versions of sections 206 and 237.”].) But as our Supreme Court has also observed, prior to the enactment of sections 206 and 237, courts were not powerless to protect jurors following their discharge: “Despite the absence of any affirmative statutory power, trial courts exercised their inherent powers to ensure jurors were protected, following their discharge from a trial, from threats to their physical safety and invasions of their personal privacy. Such inherent judicial power did not disappear as a result of the Legislature’s action in this area. Rather, trial courts retain inherent power to protect both juror safety and juror privacy.” (Townsel, supra, at p. 1091.)
To establish good cause under section 237, a defendant must set forth a sufficient showing to support a reasonable belief that jury misconduct occurred. (See People v. Jones (1998) 17 Cal.4th 279, 317; see also Jefflo, supra, 63 Cal.App.4th at pp. 1321-1322, fn. 8.) Good cause is not established if the allegations of jury misconduct are speculative, vague, or conclusory. (People v. Wilson (1996) 43 Cal.App.4th 839, 852; see also People v. Rhodes (1989) 212 Cal.App.3d 541, 552-554.) We review the denial of a motion to compel disclosure of juror information under an abuse of discretion standard. (Jones, supra, at p. 317.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
In Jefflo, supra, 63 Cal.App.4th at pages 1318-1319, the defendant’s motion for disclosure of juror information was based on a declaration that a juror had told the defendant’s girlfriend the day before the verdict that the jury was hung. Defense counsel declared further that after the trial was concluded, he overheard a juror ask the prosecutor if “ ‘that [was] all the evidence [he] had.’ ” (Id. at p. 1319.) The appellate court upheld the trial court’s denial of the defendant’s motion for disclosure. It found that, even assuming the truth of the girlfriend’s assertions, the juror’s statement simply meant the jury (at the time of the statement) had not yet agreed on a verdict, and did not constitute misconduct. (Id. at p. 1322.) And the court held that the juror’s statement to the prosecutor conveyed “nothing more than that the juror might have been curious about whether evidence existed that was not presented at trial. This did not mean the evidence that was presented failed to persuade the juror, beyond a reasonable doubt, of appellant’s guilt.” (Ibid.)
II. Application of the Law to the Motion in This Case
Here, as in Jefflo, the trial court understandably viewed skeptically defendant’s motion for disclosure of juror information given that defendant did not show a reason to disclose the information other than that the trial was well publicized and of a sensational nature. There was no direct evidence (e.g., a statement from a former juror or anyone else) of juror misconduct. The possibility of juror misconduct claimed by defendant was founded on speculation and surmise, which are inadequate grounds for releasing confidential juror information. (People v. Wilson, supra, 43 Cal.App.4th at p. 852.) Under these circumstances, the trial court did not abuse its discretion when it found an absence of good cause and denied defendant’s motion for disclosure of the jurors’ personal information. The order denying the motion was legally correct and we may not overturn it on appeal.
Defendant’s constitutional claims also are unavailing. He preserved both his Fifth Amendment due process and Sixth Amendment jury trial claims for appeal, and we will address them on the merits.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P. J., Premo, J.
Defendant’s Fifth Amendment claim amounts to a claim of error under state law on which defendant has overlaid a constitutional due process gloss. Our resolution of defendant’s state law claim therefore compels rejection of his due process claim. “[R]ejection on the merits of a claim that the trial court erred... necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
Defendant’s Sixth Amendment claim fails for the simple reason that the record does not show any interference with his constitutional jury trial rights. The Sixth Amendment cannot be read to compel questioning of former jurors in every case in which a convicted defendant desires to do so based on a surmise that misconduct may have occurred in theory. We decline to extend the constitutional guaranty that far.