Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. RIF122615Paul E. Zellerbach, Judge. As to defendant Delgado, judgment affirmed with directions. As to defendant Love, judgment reversed and remanded with instructions.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Marionno Delgado.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Bobby Leon Love, III.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
IKOLA, J.
A jury convicted Johnny Marionno Delgado and Bobby Leon Love III of four counts of attempted murder (Pen. Code, §§ 187, 664), four counts of assault with a deadly weapon (§ 245), and one count of discharging a firearm at an occupied motor vehicle (§ 246). The jury also convicted Love of two counts of attempting to deter a police officer in the execution of his duties. (§ 69.) The jury found the attempted murders were willful, deliberate, and premeditated (§§ 189, 664, subd. (a)), and (as to the attempted murder and assault with a deadly weapon counts) defendants personally and intentionally discharged a firearm within the meaning of sections 12022.53, subdivision (c), and 1192.7, subdivision (c)(8). The court found Love had four prior serious felony convictions under section 667, subdivision (a), and that those convictions were prior strikes within the meaning of sections 667, subdivisions (c) and (e), and section 1170.12. The court sentenced Love to a term of 70 years to life in state prison and Delgado to a term of 20 years to life in prison.
All statutory references are to the Penal Code, unless otherwise stated.
Although the issue is not raised in Delgado’s brief, the People state in the respondent’s brief that Delgado’s abstract of judgment improperly indicates Delgado’s sentence is 25 years to life for attempted murder. We agree with the People that this error should be corrected. Delgado’s sentence is life in prison with the possibility of parole, plus a separate 20 year sentence enhancement for using a firearm (all attempted murder counts and enhancements run concurrently, and the additional fixed terms under sections 245 and 246 have been stayed pursuant to section 654). In effect, Delgado must serve his 20 year sentence enhancement before he is eligible for parole (not 25 years, plus a 20 year enhancement, as the abstract of judgment now implies). We will order the trial court to prepare an amended abstract of judgment in the disposition.
Delgado raises two arguments on appeal. First, he claims he is entitled to a new trial because of improper testimony volunteered by an eyewitness. Second, he asserts the court erred in denying his posttrial motion for release of juror identifying information. We reject each of these arguments and affirm the Delgado judgment with directions to amend the abstract of judgment to correctly reflect the sentence.
Love appeals the court’s pretrial denial of his Pitchess motion. Because we find the defense articulated in Love’s motion to be “plausible,” we reverse the Love judgment and remand for further proceedings consistent with this opinion.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
On March 28, 2005, four teenagers drove through the Golden Oaks apartment complex in Riverside, California, where one of the quartet lived. After driving to the back of the complex, making a U-turn, and briefly leaving the complex, the vehicle reentered the complex at the front entrance. As the vehicle reentered the driveway, gunshots were fired at the car. The driver of the car backed up, ran over a pole or gate, and drove out of the complex while shots were still being fired. The testimony of the four occupants of the car supports a finding that up to 10 shots were fired.
When the police arrived to question the victims, one victim identified “Johnny” and “Bobby” as the shooters. The police took the four victims back to the apartment complex. Two of the victims identified Delgado and Love as the men that shot at them. Another victim identified (both on the night of the incident and at trial) a Pittsburgh Steelers jacket, linked by other testimony to Delgado, as the jacket one of the shooters had worn at the time of the shooting. A witness named Christine LaForge testified she saw, from the window of her apartment, Love shooting at a car leaving the complex. A swab taken from Love’s left hand tested positive for gunshot residue; swabs of Delgado’s hands tested negative for gunshot residue. The jury apparently disbelieved testimony offered by defense witnesses which suggested (if believed) the police had arrested the wrong individuals.
DISCUSSION
Denial of Love’s Motion to Review Police Officers’ Personnel Records
Love appeals the court’s denial of his pretrial Pitchess motion to require disclosure of the arresting officers’ confidential personnel files. We review the court’s denial of Love’s Pitchess motion for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [affirming denial of Pitchess motion by trial court because court did not abuse its discretion in concluding defendant’s “grandiose” allegations — a police conspiracy to murder or frame him existed — were not plausible].)
“In 1978, the California Legislature codified the holding of Pitchess by enacting... sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) If the Pitchess motion is granted, it “results first in an in camera court review of the records and subsequent disclosure to the defendant of information ‘relevant to the subject matter involved in the pending litigation.’” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048.)
On appeal, Delgado joins in the arguments made on behalf of Love “to the extent such arguments redound to [Delgado’s] benefit.” But Delgado did not make his own Pitchess motion in the trial court, nor did he join in Love’s Pitchess motion. Our decision on Love’s argument on appeal, therefore, cannot benefit Delgado.
Evidence Code section 1043 requires a party seeking discovery of police officers’ personnel records, including records of complaints against particular officers maintained pursuant to section 832.5, to file a written motion. The motion must include “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(3).)
The People maintain the court properly exercised its discretion in denying Love’s motion because the court was entitled to find the affidavits submitted by Love did not establish the materiality of the discovery sought to the subject matter involved in the litigation. The court did not precisely specify the grounds on which it denied Love’s motion, simply noting Love did not “set forth a sufficient basis to warrant the examination of the officers’ personnel records.”
Affidavits “in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses.... [¶] Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.... [¶] In other cases, the trial court hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer misconduct and to ‘articulate a valid theory as to how the information sought might be admissible’ at trial. [Citation.] Although a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Warrick, supra,35 Cal.4th at pp. 1024-1025.)
In many cases (including this one), a defendant’s attorney will file his or her own declaration in support of a Pitchess motion. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-89 (Santa Cruz) [affidavit requirement of Evidence Code section 1043 does not preclude filing of declaration on “information and belief”].)
A court should not attempt to assess the credibility or persuasiveness of a defendant’s theory, only whether it is “plausible.” (Warrick, supra, 35 Cal.4th at p. 1026.) A “plausible” scenario is “one that might or could have occurred.” (Ibid.) For instance, in Warrick, our Supreme Court found plausible a defense that, contrary to police officers’ statements made in their reports, someone other than the defendant discarded 42 pieces of rock cocaine in the path of the fleeing defendant, who claimed he was in the neighborhood (possessing an empty plastic bag) to purchase drugs, not to sell drugs, and that he ran because he was on probation. (Id. at pp. 1016-1018.) Clearly, the “‘good cause’” requirement has been interpreted to embody a “relatively low threshold....” (Santa Cruz, supra, 49 Cal.3d at p. 83.) But “Warrick did not redefine the word ‘plausible’ as synonymous with ‘possible,’ and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319 (Thompson).)
In Thompson, 11 officers were involved in the arrest of defendant Thompson for selling cocaine base (the officers conducted a controlled buy of $10 worth of cocaine base). (Thompson, supra, 141 Cal.App.4th at pp. 1315-1317.) Thompson’s Pitchess motion flatly denied all relevant allegations: “‘the officers did not recover any buy money from the defendant, nor did the defendant offer and sell drugs to the undercover officer.’ The ‘officers saw defendant and arrested him because he was in an area where they were doing arrests.’ The officers “‘fabricated the alleged events....’ The charges ‘are a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish the defendant for being in the wrong area, at the wrong time and for having a prior criminal history....’” (Id. at p. 1317.) The appellate court agreed with the trial court that Thompson’s explanation was “not internally consistent or complete.” The explanation “does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense.... Counsel’s declaration simply denied the elements of the offense charged.” (Ibid.)
In the case before us, along with the relevant police reports, Love submitted three declarations (that of his trial counsel, his mother, and another witness) with his Pitchess motion. For purposes of determining the plausibility of Love’s factual scenario, we quote extensively the contents of the police reports, then summarize the declarations submitted in support of the Pitchess motion.
Officer Meier’s report indicates he and Officer Kauk were familiar with the residents of apartment 207 prior to the night of the incident due to past incidents and knowledge that gang members frequented the apartment, and thought the names (“Johnny” and “Bobby”) and descriptions of the suspects provided by the victims matched individuals who lived in or were associated with apartment 207. Officer Meier’s report states, in relevant part: “We saw several subjects standing just outside the door of #207. We also saw S3/Davis walking outside the building. We knew that S3/Davis lives in #207.... As we began walking toward apartment #207, S3/Davis walked behind us and began cursing at us. She told us to stay away from her apartment. While we were walking toward the apartment, S1/Delgado and S2/Love quickly went inside and shut the apartment door. [¶] S3/Davis continued to advance on us and told us that she was going to enter the apartment. We believed that there were possibly armed suspects inside the apartment and we were trying to establish a secured perimeter around it. S3/Davis told us that she was going to enter the apartment and that we could not stop her. While Officer Kauk and I attempted to secure the outside of the apartment, Officer Johnson attempted to keep S3/Davis away from us. I could hear S3/Davis screaming and cursing at Officer Johnson. S2/Love heard S3/Davis yelling and opened the front door. I was standing about 10 feet away from him and he began screaming unknown words at me. I feared that S2/Love was armed with a gun. I asked him if he had any weapons and ordered him to put his hands in the air. While facing me, S2/Love quickly lifted up his shirt and tucked his hand in his waistband as if he was reaching for a weapon. The lighting near the door was poor and I could not see if he had a weapon. I pointed my gun at him and ordered him to put his hands in the air. S2/Love kept his hand in his waistband and yelled, ‘Shoot me.’ S2/Love then walked inside and shut the door.”
“After S2/Love shut the door, I turned around and saw S3/Davis swinging at Officer Johnson. They were standing about 15 yards west of apartment #207. S3/Davis was swinging her arms and attempting to get around Officer Johnson. I ran over to their location and ordered S3/Davis to stop resisting. I told her to get on the ground. S3/Davis refused to comply with our commands and continued to swing her arms at Officer Johnson. I grabbed one of S3/Davis’ arms and attempted to control her arm. S3/Davis violently pulled her arms away from me. She continued to resist and would not follow my commands. In an attempt to gain control of S3/Davis, I grabbed her right arm and pulled it toward the ground. We then fell to the ground. Officer Johnson told me that S3/Davis was hitting her. I held onto her right arm and attempted to handcuff her right hand. Her left hand was still free and I could not see what she was doing with it. My handcuff got caught in S3/Davis’ shirt and I was unable to secure her hands. I then placed my knee across S3/Davis’ back while Officer Johnson gained control of S3/Davis’ other arm. Officer Johnson then completed handcuffing”
Officer Johnson’s report states, in relevant part: “Officer Kauk and I contacted the residents of apartment #207 who were standing outside. One of the subjects identified herself as Gloria Davis, and immediately took an ag[g]ressive posture with us. S/4 Davis stood in front of her door with her fists clenched and began yelling at us when we asked her if she had seen or heard anything regarding the shooting. S/4 Davis told us to stop accusing her sons and go find the real suspects.”
“Within a few minutes, Officer Williams broadcasted via the radio the descriptions of three named suspects provided to him by the victims. The descriptions matched the subjects who we saw in apartment #207. Officers Kauk, Meier and I returned to apartment #207 to contact the suspects. At this time, I saw S/Davis was standing outside several feet from her apartment yelling at Big Will’s Security personnel, identified as Witness/Williamson. I stopped and attempted to calm S/Davis down. When S/Davis saw Officers Kauk and Meier walk to the door of her apartment, S/Davis became extremely agitated and screamed at the officers, ‘I’ll fuck you up bitch!’ I saw S/Davis push Witness/Williamson in an attempt to get past him. I then grabbed S/Davis’s left arm to prevent her from going toward Officers Kauk and Meier. However, as S/Davis was wearing a coat, she was able to slip out of her coat and out of my grasp. S/Davis then swung at me with her right arm, but did not hit me. I heard S/Davis yell, ‘get away from me bitch or I’ll fuck you up.’ I grabbed one of S/Davis’ bare arms. Officer Meier then assisted me and grabbed S/Davis’ other arm. Due to S/Davis’ struggling against us, her momentum forced us to fall on the ground together. S/Davis landed on her side. S/Davis continued to struggle and kick her legs at us as Officer Meier attempted to place her in handcuffs. S/Davis punched my left leg several times during the struggle with her left arm. I grabbed S/Davis by the hair in an attempt to control her and yelled at Officer Meier to grab S/Davis’ left arm. I was then able to move on top of S/Davis’ back and use my body weight to control S/Davis’ upper body. Officer Meier told me his handcuff was stuck and he was not able to handcuff S/Davis’ left wrist. I grabbed my handcuffs and was able to handcuff S/Davis.” Officer Johnson also states in her report that witness Williamson confirmed many of the details in her version of events and added several other details pertaining to threats made by Davis against the officers.
Finally, Officer Lomeli’s report indicates in relevant part: “I focused my attention on S/Love who was standing in the doorway. S/Love saw the struggle with S/Davis and started to go in that direction. Ofc. Williams then Pepper Sprayed S/Love. I gave S/Love commands to get down and he suddenly reached towards his waistband with his right hand. Due to my close proximity to S/Love (approximately 3’), I quickly reached with my left hand and grabbed S/Love’s right hand in an attempt to gain control. S/Love was named as a shooting suspect and I believed he was possibly reaching for a gun. For my safety I held on to his hand and continued to tell him to get down. S/Love ignored my commands and pulled me into the apartment causing my grasp to break. S/Love then said, ‘Come on Mother fuckers’ as he took a fighting stance. S/Love was standing with his legs shoulder width apart and had his body slightly bladed. S/Love’s left side was closet towards me and his fists were clenched as he continued to say, ‘Come on Mother fuckers.’”
“I delivered three strikes to his left elbow area with my expandable baton in an attempt to end his threat of attack. The strikes did not appear to have an effect on S/Love as he continued to ignore my commands to get down and not move. I struck S/Love two more time in the left elbow area and followed those with two to the left knee area. S/Love fell to the floor and landed with his hands underneath his chest. I continued to order S/Love not to move but he did not listen. With Ofc. Williams to my right, S/Love reached towards our legs with his hands stretched out in an apparent attempt to grab our legs. As I pulled my left foot away from S/Love’s grasp I lost my balance against the coffee table that was to my left. I regained my balance and placed my left foot on top of S/Love’s right shoulder and applied my body weight in order to control S/Love.”
Love’s trial counsel indicated in his declaration that Love’s defense at trial would be the officers “were abusive and used excessive force and that there was no force used by Mr. Love.... Any assaultive behavior or behavior that appeared belligerent on the part of Mr. Love was in response to the illegal force and activity of said officers.” Love’s trial counsel also summarized (and characterized) the contents of the police reports and the other declarations submitted with the motion. Love’s trial counsel characterized certain key facts from the police reports in a manner different from the police officers: defendant was pepper sprayed when he approached officers who were “brutally beat[ing]” his mother and defendant reached into his waistband during the arrest to show he was unarmed.
Love also relied on the declaration of his mother, Gloria Davis. Davis declared she and Love were inside of the apartment when the shooting occurred. She and Love went outside after the shooting, but returned to the apartment after finding her children. Davis then went back outside and saw a police car approach. As the officers approached Davis’s apartment, she asked them why they were proceeding to the apartment and not talking to the neighbors. Davis attempted to return to her apartment, but was prevented from doing so by a security guard. Davis tried to grab the security guard to break her fall; a police officer grabbed her from behind and threw her to the ground. Several officers held her and forced her face into the ground; after several minutes, Davis was handcuffed and allowed to stand up. Davis noticed Love handcuffed in front of the apartment. Love told Davis the police had broken his elbow. Nothing in Davis’s declaration contradicts the police reports with regard to the force used to arrest Love. Instead, Davis’s declaration contradicts the basis provided in the police report for the use of force in her arrest.
In addition, Love submitted the declaration of Chukia Banks Love, who stated she walked to apartment 207 after hearing gunshots. Chukia claims she and Love were inside the apartment when the police arrived at the apartment complex. At this point, Davis walked outside and “a lot of commotion... consist[ing] of shouting” ensued. Chukia remained inside. Subsequently, police officers entered the house and ordered everyone to “Freeze!” The officers pushed Delgado to the floor and ordered everyone else to the floor. Love continued to stand. One officer pulled out his night stick and struck Love in the back of the knee; the officer struck Love once on the shoulder and twice on the elbow until Love finally fell completely to the ground. The officers were yelling “get down” the entire time this occurred, but only one officer struck Love. After Love fell to the ground, three or four officers rushed to Love and kneeled on him while one handcuffed him. Nothing in Chukia’s declaration contradicts the police reports’ contents with regard to the force used to arrest Love.
Ignoring issues of credibility, persuasiveness, and probability, as we must, we think the court abused its discretion in not granting (at least in part) Love’s motion. Section 69 provides that “[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty” is punishable as a felony or a misdemeanor. Love has made a “plausible” (as defined in Warrick) argument that his actions in initially approaching the officers were motivated by concern with excessive force inflicted upon his mother; his actions in retreating and reaching into his waistband were innocent; and his resistance to arrest was passive and prompted by fear of injury rather than aggression. It is undisputed that significant force was utilized in arresting Love. Davis’s declaration includes an alibi for Love — he was in the apartment at the time of the shooting — which, if credited as plausible at the Pitchess hearing, places the officers’ actions in a different light than one of apprehending an attempted murderer. Love made a sufficient showing the arresting officers’ personnel records could conceivably have relevant facts to impeach their version of events.
Pursuant to People v. Gaines (2009) 46 Cal.4th 172, we remand the case to the trial court for an in camera review of documents responsive to Love’s motion and a determination of whether there is any information in the requested records that should have been disclosed to Love. If there is such information, Love must “demonstrate a reasonable probability of a different outcome had the evidence been disclosed” to obtain a new trial. (Id. at p. 182.)
The court summarily denied Love’s motion, presumably on the grounds that he did not establish the materiality of any of the requested discovery to his claim because his description of alleged misconduct by the officers (excessive force and false reporting of the incident in the police reports) was not plausible. The question of whether the discovery requested by Love in his motion was overbroad is not properly before this court, as neither party has briefed the issue and the court’s order does not cite overbreadth as a ground for its order. Love requested information concerning seemingly every category of potential misconduct by the four officers involved in his arrest. We will not attempt to sort through these issues in the first instance, without any briefing on the question of the breadth of Love’s discovery requests.
Denial of Defendants’ Motion for New Trial Based on LaForge’s Testimony
Delgado asserts improper testimony by eyewitness LaForge was so prejudicial as to require a new trial. LaForge testified she saw a man with his hands extended holding a gun when she looked outside after hearing gunshots. While looking at the man, she heard more gunshots as he continued to point the gun at a fleeing car. LaForge testified she “didn’t know the person personally on a personal basis, but I knew of the shooter — everybody knows everybody.” The prosecutor asked LaForge, “In the apartment complex?” She replied, “Yes. Who the ‘bad guys’ are, and —” at this point, the defense objected and the court admonished the jury to disregard LaForge’s statement. LaForge then identified Love as the individual she saw shooting at the car. This came as a surprise to all counsel, as LaForge had not identified the shooter in her 911 call or during previous interviews. The court denied defendants’ motion for a mistrial following this testimony.
Love joins Delgado in making this argument.
On cross-examination, defense counsel attempted to impeach LaForge in various ways. LaForge testified she had been physically attacked by Davis (Love’s mother) years before the shooting incident and she did not like Davis. Defense counsel followed up by trying to establish when LaForge was aware Love was Davis’s son. LaForge testified she learned Love’s name through “word of mouth” and “rumors through the apartment complex.” Defense counsel asked, “[W]ithout saying what the rumors were, you heard it from a third person; correct?” LaForge replied, “As I was threatened with my life through other people.” The court sustained an “objection” to this response. The court subsequently admonished the jury to ignore LaForge’s testimony as to being threatened, explaining “[t]here is no information or evidence whatsoever to believe that the defendants, or anyone associated with them, or any family member, had anything to do with any threat made to Miss LaForge.” But the court again denied defendants’ motion for a mistrial. The court also denied defendants’ post-verdict motions for a new trial based in part on alleged prejudice arising from LaForge’s testimony.
The issue on appeal is whether the court erred in refusing to grant a mistrial. “A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion.” (People v. Avila (2006) 38 Cal.4th 491, 573-574 [holding trial court did not abuse its discretion by admonishing the jury to ignore improper testimony rather than declaring a mistrial].)
The court did not abuse its discretion in opting to admonish the jury rather than grant a mistrial. “We presume the jury followed the court’s instructions.” (People v. Avila, supra, 38 Cal.4th at p. 574.) Defendant provides no authority leading us to conclude it is an abuse of discretion to deny a mistrial motion in the circumstances at issue here, and we decline to so hold. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 682-683 [finding no incurable prejudice arising from witness’s volunteered reference to defendant being on death row]; People v. Wharton (1991) 53 Cal.3d 522, 565 [no incurable prejudice arising from witness’s volunteered statement that defendant “‘got the word out’” the witness was a “‘snitch’”].)
Denial of Defendants’ Motion for Release of Juror Identifying Information
Finally, Delgado claims the court erred when it denied Love’s motion for release of juror identifying information. Such information is sealed after the verdict pursuant to Code of Civil Procedure section 237, subdivision (a)(2). A criminal defendant may obtain release of juror identifying information. (Code Civ. Proc., § 206, subd. (g).) “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.” (Code Civ. Proc., § 237, subd. (b).)
Delgado joined in Love’s motion in the trial court, and Love joins in Delgado’s argument on appeal.
Defense counsel submitted his own brief declaration in support of the motion. The pertinent facts disclosed in the declaration consisted of the following: “That subsequent to the verdict, the jury foreperson stated he had been to Iraq but was more afraid of the Mr. Love’s family than he was in Iraq.” “That upon speaking with co-counsel... in good faith, at least one juror stated ‘they knew they were all bad people.’” Defense counsel argued these statements indicate “the jurors made decisions based on factors outside of properly admitted evidence” such as LaForge’s testimony (discussed above) she knew who the “bad guys” are and other evidence (admitted for the purpose of proving a motive) linking Delgado to a gang.
The court denied the motion, explaining in a minute order that the “alleged statements had no effect on jurors deliberations and or verdict.” The court also conducted a hearing on the motion following its denial of defendants’ new trial motions (although it does not appear the court found a prima facie showing of good cause had been made). At this hearing, the court clarified (by questioning counsel) that the juror’s statement indicating “‘they were all bad people’” referenced the victims (in addition to the defendants) in response to questioning concerning the victims’ credibility as witnesses. In other words, the juror believed the truth of the victims’ testimony notwithstanding the success of the defense in calling into question the character of the victims in general. The court also noted the foreperson’s statement concerning being scared of Love’s family likely related in part to an aggressive outburst by a family member after the verdicts were read in the case. Finally, the court found there was “a compelling interest not to disclose [the jurors’] information in that the jurors should be protected from any threats or danger of physical harm.”
We review the trial court’s denial of the motion for an abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.) A request for disclosure of personal juror information requires a “timely” request “accompanied by a sufficient showing to support a reasonable belief jury misconduct occurred, diligent efforts were made to contact the jurors through other means, and... further investigation was necessary to provide the court with adequate information to rule on a motion for new trial.” (People v. Wilson (1996) 43 Cal.App.4th 839, 850; see also Carrasco, at p. 990; People v. Rhodes (1989) 212 Cal.App.3d 541, 551-554.) “A failure to make this required showing justifie[s] denying the request for disclosure.” (Wilson, at p. 850.)
We disagree with Delgado’s contention that a request for juror identifying information is governed by the case of People v. Simms (1994) 24 Cal.App.4th 462 (Simms). Simms, interpreting previous versions of Code of Civil Procedure sections 206 and 237, held that all a criminal defendant was required to do to obtain juror identifying information was to request such information for a lawful purpose, such as “developing issues” for an appeal or a new trial motion. (Simms, at p. 466.) Even before the current versions of the applicable statutes went into effect, our Supreme Court specifically endorsed the more restrictive test set forth in the text above. (See People v. Jones (1998) 17 Cal.4th 279, 317.)
The court was within its discretion in refusing to disclose juror identifying information. The court convincingly explained why it thought the two juror statements put forth to show possible juror misconduct did not actually suggest any potential misconduct occurred. At the hearing, it was established one juror’s reference to all of the individuals being “bad” was made in the context of being asked about the victims’ credibility, not in the context of being asked the basis for convicting the defendants. Moreover, the court also highlighted the fact that the second juror’s statement concerning his fear of the Love family was likely triggered by an outburst in the courtroom by a member of the Love family. The court was entitled to conclude there was no suggestion in the juror’s comment that the juror’s fear of the Love family (a sentiment expressed after the rendering of the verdicts) played any part in that juror’s (or any other juror’s) deliberations.
DISPOSITION
The Delgado judgment is affirmed. The matter is remanded to the trial court, however, with directions to prepare an amended abstract of judgment reflecting Delgado’s actual sentence (life with the possibility of parole on counts 1, 3, 5, and 7, rather than 25 years to life on those same counts) and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We reverse the Love judgment, and remand the case to the trial court for an in camera review of documents responsive to Love’s Pitchess motion to determine whether there is any information in the requested records that ought to have been disclosed to Love. If there is such information, and if Love demonstrates a reasonable probability of a different outcome had the evidence been disclosed, the trial court shall order a new trial on any of the counts so affected. Otherwise, the judgment against Love shall be reinstated as to any counts for which a new trial is not ordered.
WE CONCUR: SILLS, P. J., ARONSON, J.