Opinion
D057015 Super. Ct. No. SCD212842
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRY WILLIAM MCCLUNEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part; vacated in part and remanded with directions.
Jerry William McCluney appeals the judgment entered after a jury convicted him of assault with a firearm (Count 2) and possession of cocaine for sale (Count 4) and found true allegations that he personally inflicted great bodily injury and personally used a firearm. The jury, however, could not reach a verdict on charges of attempted murder (Count 1) and assault with a deadly weapon, a baseball bat (Count 3). Accordingly, a second trial was held on these charges and a separate jury convicted him on Count 3 and found true that he personally used a baseball bat as a deadly weapon, but was unable to reach a verdict regarding Count 1. McCluney was sentenced to a total prison term of 21 years and 4 months. He challenges the convictions on multiple grounds, contending: (1) defense counsel provided ineffective assistance by presenting him to the prosecutor for an interview without conducting a factual investigation; (2) the trial court violated his Sixth Amendment right to confront the witnesses against him; (3) the trial court erred in admitting evidence that drugs were found in his vehicle; and (4) the trial court erred by failing to conduct a hearing regarding juror misconduct that occurred at his first trial. We conclude the trial court erred in failing to hold a hearing to evaluate whether good cause existed to release identifying juror information. Accordingly, we vacate the convictions reached at the first trial on Counts 2 and 4, and remand with directions set forth below. We reject McCluney's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
On a morning in April 2008, McCluney went to Brian Goodin's house. They had known each other for many years because McCluney is Goodin's stepsister's son. Goodin was in his bedroom with his ex-girlfriend, LaToya Bentley, when McCluney knocked on the bedroom door. When Goodin came out, the two men got into an argument and Goodin suggested taking the matter outside. As McCluney walked outside, Goodin shut the door behind him and locked it.
Goodin next saw McCluney outside of his bedroom window and, after closing the blinds, heard him kicking the wall. Shortly thereafter, Goodin heard a crashing noise and discovered that McCluney had thrown part of a vacuum cleaner through the living room window. Goodin picked up a small glass knickknack and threw it at McCluney, but it hit the bars on the window and broke. McCluney left the house and Goodin went back to his bedroom.
McCluney went across the street to Tornyle Webster's house. He told Webster that Goodin injured his arm and asked for a baseball bat. After Webster gave him a bat, McCluney said, "I'm going to get [Goodin]" and headed back across the street.
Goodin heard a crashing sound at the front door. He then saw McCluney crouched down outside of his bedroom. McCluney revealed a gun and said, "I'm not playing with you." Goodin responded by saying, "What are you going to do? What? Are [you] going to shoot me?" McCluney then shot Goodin twice in the leg. Bentley, who was in the bathroom at the time, heard "firecracker" sounds and then looked out and saw a man shooting.
McCluney put the gun in his waistband and pulled out a bat. He told Goodin that he was going to teach him a lesson and proceeded to swing the bat at Goodin's head multiple times. Goodin eventually grabbed the bat, got McCluney to the ground and tried to hold him down. McCluney wrestled free, grabbed the gun, and shot Goodin in the arm. When Goodin rolled onto the floor, McCluney shot him again. McCluney left the bedroom and then returned and shot Goodin in the shoulder. When Goodin told McCluney that police would be there shortly, McCluney ran out of the house.
Goodin called 911 and told the operator that his step-nephew shot him. The police arrived shortly thereafter and Bentley told them that during the shooting, she looked out of the bathroom and saw Goodin's nephew shooting at him.
After the police received information that McCluney left on foot and was at a nearby house, Sergeant Jeffrey Pace telephoned that location. Sergeant Pace eventually spoke to McCluney, who told him that he did not shoot Goodin but was present when a third person did. McCluney went on to tell Sergeant Pace that Goodin got into a fight with the other person and that after he tried to break up the fight, the other person started shooting.
Police found cocaine in McCluney's car and wallet. Based on the amount of cocaine, the way it was packaged, and cash found, the police concluded that McCluney intended to sell the cocaine. B. The Defense
McCluney testified on his own behalf at his first trial. He testified that in April 2008, he was involved in selling cocaine and on the night before the shooting incident, Goodin asked him if he had any drugs. McCluney said he could get some cocaine the next day.
The next morning, Goodin said he had a gun he would trade for the cocaine. When McCluney arrived at Goodin's house, Goodin was sitting at the kitchen table with another man. They showed McCluney a gun and Goodin said he wanted $400 for it. McCluney handed cocaine to Goodin and indicated that he would trade the gun for an ounce. McCluney later went to his car to get more cocaine and called his friend, Marcus, to come inspect the gun. He left the drugs on the kitchen table and waited for Marcus outside.
Marcus never arrived and McCluney tried to get back into Goodin's house, but the door was locked. McCluney walked around to a window and told the men inside to open the door because his cocaine was in the house. Goodin told McCluney to leave and threw a glass object through the window that hit the bars and broke. McCluney was angry and went across the street to Webster's house to get a bat.
McCluney took the bat, returned to Goodin's house, and kicked down the front door. He was confronted by Goodin and the other man in the house. While holding a gun next to his side, Goodin told McCluney to leave. After McCluney said he was not leaving without his cocaine, Goodin raised the gun and fired a shot past McCluney. McCluney then lunged toward the other man and hit him with the bat. All three men tumbled to the ground and Goodin dropped the gun. McCluney retrieved the gun and demanded the return of his cocaine. When the gun's clip fell to the floor and McCluney bent down to retrieve it, Goodin charged at him with the bat. McCluney reacted by backing up and pulling the gun's trigger, which resulted in Goodin being shot in the leg. The other man pulled a knife out of a duffel bag and McCluney shot at him, possibly hitting him in the arm.
Goodin got up and told McCluney that they should talk and work things out. As he inched toward McCluney, Goodin swung the bat at him. McCluney backed up and fired the gun two more times. He then kicked Goodin in the stomach, picked up the bat, and ran out of the house.
McCluney admitted that he lied to the police when he told them that a third person shot Goodin, but testified that he was currently telling the truth and told the truth in a pretrial statement to the district attorney's office.
DISCUSSION
I. Alleged Ineffective Assistance of Counsel
A. Background
Prior to McCluney's first trial, his counsel, Richard Berkon, arranged for him to be interviewed by the district attorney's office. During the interview, McCluney relayed a version of the incident that was consistent with what he previously told Berkon and his subsequent trial testimony.
After McCluney's second trial, he moved for a new trial alleging that Berkon provided ineffective assistance as to the first trial because he allowed McCluney to be interviewed by the prosecution without an adequate investigation of his story. At a hearing on the motion, the trial court heard testimony from Berkon, a defense investigator, and a criminal defense attorney acting as an expert witness.
Berkon testified that he met and spoke to McCluney numerous times before the first trial. Berkon explained that McCluney originally stated that an unidentified black male shot Goodin, but changed his story after the preliminary hearing and told Berkon that he wanted to tell the truth. According to Berkon, the second version of McCluney's story "made sense with the evidence." As a result of the vastly different facts McCluney initially told the police, Berkon was concerned that the prosecution would use the inconsistencies to impeach him. Accordingly, Berkon believed that presenting McCluney to the district attorney's office for an interview would lead to a beneficial plea agreement.
Prior to the interview, Berkon interviewed witnesses, including Webster, Webster's sister and Webster's father. He also tried to locate Bentley and Marcus, but was unable to do so. When Berkon inquired about locating Marcus, McCluney told him not to bother because Marcus would not cooperate. Berkon also looked into McCluney's claim that a third person was shot during the incident by having the defense investigator contact hospitals. When the defense investigator was unable to identify the third person, Berkon "figured that the . . . District Attorney's Office or the detectives involved would be able to find that information." Berkon felt that even if the prosecution could not corroborate that part of McCluney's story, they also could not disprove it.
The defense investigator testified that he attempted to locate Bentley, but was unable to contact her. He also stated that Berkon asked him to locate a third person that may have been shot during the incident. Accordingly, he contacted several hospitals in the area, but could not get any information. The defense investigator recalled speaking to Berkon about retrieving phone records, but told him that they could not be retrieved without a subpoena or court order.
The expert witness testified that Berkon's conduct in allowing McCluney to be interviewed by the district attorney's office was below the standard of care for criminal defense attorneys because an adequate investigation was not done as to McCluney's version of the events. He stated that it is rare for a criminal defense attorney to offer their client for an interview without an agreement regarding the future use of his statements.
Further, according to the expert, Berkon should have corroborated McCluney's information before the interview. B. Analysis
McCluney argues Berkon provided ineffective assistance by allowing him to be interviewed by the prosecution prior to trial without an agreement regarding the future use of his statements and without conducting an adequate investigation, thereby locking him into a story that could be proven false. Specifically, McCluney faults Berkon because the defense investigator: (1) failed to interview certain witnesses, including Bentley, Webster and Webster's sister; (2) made no serious effort to contact Marcus or the third person allegedly shot during the incident; and (3) made no effort to verify his claim that he called Marcus. We reject his contentions.
To establish ineffective assistance of counsel, McCluney must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).)A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) The claimed prejudice must be affirmatively proved; speculation as to the effect of counsel's errors or omissions is insufficient. (In re Clark (1993) 5 Cal.4th 750, 766 (Clark).) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, supra, 43 Cal.3d at p. 216.) We presume that counsel's conduct fell within the wide range of reasonable professional assistance and tactical errors are generally not deemed reversible. (People v. Maury (2003) 30 Cal.4th 342, 389.)
McCluney first contends Berkon was ineffective because he did not ask the defense investigator to interview Webster, Webster's sister, and Bentley. In regard to Webster and his sister, McCluney's argument is flawed because Berkon interviewed those witnesses himself before McCluney's interview with the district attorney. McCluney does not cite to any authority or offer an argument suggesting that a defense investigator, rather than defense counsel himself, must interview witnesses. Regardless, McCluney also fails to establish how he was prejudiced as a result of Berkon, instead of the defense investigator, conducting the interviews. In regard to Bentley, McCluney fails to explain how the result of his case would have been different had the defense investigator interviewed her. Accordingly, McCluney failed to establish Berkon provided ineffective assistance in relation to the witness interviews.
McCluney next contends Berkon was ineffective because the defense investigator did not make a serious effort to contact Marcus or the third person allegedly shot during the incident. Berkon testified that he attempted to contact Marcus, but was unable to do so. After he made that effort, McCluney told him not to bother because Marcus would not cooperate. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." (Strickland v. Washington (1984) 466 U.S. 668, 691.)
Berkon also looked into McCluney's claim that a third person was shot during the incident by having the defense investigator contact several hospitals in the area. When the defense investigator was unsuccessful, Berkon concluded that even if the prosecution could not corroborate that part of McCluney's story, they also could not disprove it. Further, Berkon's strategy in regard to the interview was to prevent the prosecution from claiming that McCluney had months to concoct a story. We will reverse on the ground of inadequate assistance of counsel only if the record affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980.) Berkon clearly made a tactical decision to allow the prosecution to interview McCluney before confirming whether a third person was shot during the incident. Although the prudent course may have been to obtain an agreement with the prosecution regarding any future use of McCluney's statements, McCluney has failed to establish that he was prejudiced as a result of Berkon's conduct. We find nothing in the record that suggests the outcome of McCluney's case would have been different had Berkon identified the alleged third person shot during the incident or discovered that person did not exist.
Third, McCluney contends Berkon provided ineffective assistance because the defense investigator made no effort to verify his claim that he called Marcus. He argues that the prosecutor emphasized that he was lying about the call to Marcus and absent his impeachment with statements made during the interview, "the jury would have been left with Goodin's testimony and it is reasonably probable that would not have been sufficient to convict [him] of shooting Goodin." McCluney's arguments are merely speculation and are insufficient to establish ineffective assistance of counsel. (See Clark, supra, 5 Cal.4th at p. 766.) Regardless, even if Berkon did discover that McCluney never called Marcus, there is not a reasonable probability that the outcome of the case would have been different. The evidence on Count 2 was strong. Goodin identified McCluney as the shooter, and McCluney admitted that he lied to the police when he said he was present when a third person shot Goodin. With or without the alleged call to Marcus, McCluney's story had problems and he offers no persuasive argument to the contrary. Accordingly, McCluney has not shown any prejudice by the failure to investigate his alleged call to Marcus.
Lastly, even assuming Berkon provided ineffective assistance by allowing McCluney to be interviewed by the prosecution, he has not shown any resulting prejudice. Regardless of the interview, McCluney could have been impeached with his earlier statements to the police and cannot show that, absent the interview, he would have obtained a better result at trial.
McCluney offers little suggesting deficient performance of counsel and nothing suggesting prejudice. Thus, we conclude he was not denied the effective assistance of counsel.
II. Constitutional Right to Confrontation
A. Background
At the time of the second trial, Goodin was in custody as a result of a parole hold and charges unrelated to this case. The prosecutor informed the court that Goodin refused to testify due to threats made against him and fear that he would be killed while in jail. Accordingly, the court held a hearing outside the presence of the jury on Goodin's unavailability.
Goodin testified that he received threats while in jail about testifying in this case. He previously told an investigator in the prosecutor's office that another inmate called him a snitch, threatened that he was "going to get [him]," and said the best thing to do was not testify. Goodin understood the threats to mean that he would be physically harmed.
As a result of the threats, there was a "keep separate order" in place. Regardless, Goodin did not feel that the jail would be able to protect him from physical harm if he testified in this case. He stated that he would not testify, even if ordered by the court. When the court asked him if he would change his mind if faced with more jail time due to contempt, Goodin responded by stating, "I'm in jail now, sir."
The court found Goodin's behavior was consistent with fear and found that Goodin genuinely feared for his safety and his life. Thereafter, the court concluded that he was an unavailable witness within the meaning of Evidence Code section 240 and rejected the defense's request to continue the trial for a period of time to see if Goodin would testify after being held in contempt. (All undesignated statutory references are to the Evidence Code.) The court noted that finding Goodin in contempt was not "going to make one -- one bit of difference to him."
The court granted the prosecution's request to use Goodin's testimony from the first trial. Before Goodin's testimony was read to the jury, the court explained that Goodin was unavailable as a witness and it was to evaluate his testimony, as read, by the same standards as a witness who testified in court. B. Analysis
McCluney contends the trial court violated his Sixth Amendment right to confront his accuser by allowing Goodin's earlier testimony to be read to the jury after finding he was unavailable. We reject his contention.
The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.; see also Cal. Const., art. I, § 15 ["The defendant in a criminal cause has the right . . . to be confronted with the witnesses against the defendant"].) The clause "has long been read as securing an adequate opportunity to cross-examine adverse witnesses." (United States v. Owens (1988) 484 U.S. 554, 557, italics added.) "[T]he use of . . . former testimony does not infringe upon the constitutional right of confrontation as long as there has been due cross-examination." (People v. Rojas (1975) 15 Cal.3d 540, 548 (Rojas).)
In Rojas, the chief prosecution witness, who had testified at the preliminary hearing and defendant's first trial, refused to testify at the second trial. (Rojas, supra, 15 Cal.3d at p. 547.) The witness claimed that he received threats, was called a "snitch" and feared for his life and that of his family. (Ibid.)The court held a witness's refusal to testify out of fear created a mental condition that provided a sufficient basis for finding the witness unavailable pursuant to section 240. (Id. at pp. 551-552.) As the court in Rojas noted: "No [] [sufficient] reason appears to us why the former testimony of a witness who is present in court but refuses to testify because he is in fear of his safety or that of his family should not be used when that of a witness, who claims privilege or who is absent from the hearing and his attendance cannot be compelled or procured, can be used." (Id. at p. 551.)
The situation before us is similar to Rojas. Goodin testified and was cross-examined at McCluney's first trial. When it came time to testify at the second trial, Goodin was in custody and informed the court that he feared for his safety in jail because of threats he received. Although McCluney points out that Goodin did not identify the persons making threats or the specific harm threatened, the trial court concluded and we agree that his failure to provide specificity was consistent with his fear of retaliation. Goodin's testimony regarding the threats and his fear was sufficient to deem him unavailable. Further, we agree with the trial court's denial of McCluney's request to continue the trial to see if Goodin would eventually change his mind. As the trial court noted, Goodin was already in custody. Thus, it is unlikely the threat of further jail time would have had much effect.
Having found that Goodin was an unavailable witness within the meaning of section 240, we next consider whether the trial court properly admitted his testimony from the first trial. "[A]s long as a defendant was provided the opportunity for cross-examination, the admission of [former] testimony . . . does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective." (People v. Samayoa (1997) 15 Cal.4th 795, 851.) McCluney's first trial included the charges he faced in the second trial, and he had an adequate opportunity to cross-examine Goodin. Accordingly, the admission of Goodin's testimony from the first trial does not violate McCluney's right to confrontation.
III. Drug Evidence
A. Background
At McCluney's second trial on Counts 1 and 3, the prosecutor sought to introduce evidence that on the day of the incident police found drugs in McCluney's car. McCluney objected on the grounds that the evidence was improper under section 352 and not relevant. The prosecutor then explained that she intended to ask Detective Maria Estrella about the drugs found in McCluney's vehicle, the value of those drugs, and whether, in her experience, persons who "carry drugs of that quantity carry firearms." The prosecutor argued that this evidence supported the claim that McCluney got the gun from his car.
The court determined that the evidence was "circumstantial evidence as to where [McCluney] got the weapon" and that its probative value was not outweighed by undue prejudice. The court explained, however, that Detective Estrella could only testify that, based on her experience, people who sell drugs tend to have firearms; she could not testify that McCluney had a gun because he was a "dope dealer."
Detective Estrella subsequently testified that she found 20 grams of a substance in McCluney's vehicle that she believed was cocaine. According to Detective Estrella, the amount of cocaine found was consistent with sale of the drug. She also testified, based on her experience, it was common for persons who carry large amounts of cocaine to also carry handguns. A criminalist with the San Diego Police Department crime laboratory also testified that the substance found in the vehicle was 19.5 grams of cocaine. B. Analysis
McCluney contends the trial court erred under sections 352 and 1101 by admitting evidence that the police found cocaine in his vehicle. He further contends admission of this evidence denied him due process and a fair trial.
In order to preserve a claim under section 1101, it is necessary that the individual object on that ground in the trial court; objections on the grounds of relevancy and section 352 are insufficient to preserve a section 1101 claim for appeal. (People v. Doolin (2009) 45 Cal.4th 390, 437 (Doolin).)Here, McCluney objected on the basis of relevancy and section 352. He did not raise a section 1101 objection at trial and thus forfeited the issue on appeal. Accordingly, we consider only whether the trial court abused its discretion by overruling McCluney's objection under section 352 and whether that ruling violated McCluney's rights to due process and a fair trial. (See People v. Partida (2005) 37 Cal.4th 428, 438-439 (Partida)[finding that defendant may argue on appeal that error in overruling a section 352 objection "had the legal consequence of violating his due process rights"].)
Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Even relevant evidence may be excluded "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147.)
Noting that section 352 "speaks in terms of undue prejudice," the California Supreme Court has explained that evidence is not unduly prejudicial for purposes of that section merely because it undermines the opponent's position or strengthens that of the proponent; evidence is relevant when it is able to do so.(Doolin, supra, 45 Cal.4th at pp. 438-439.) The "undue prejudice" that exclusion of evidence under section 352 " ' " ' is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence' " ' " because all evidence that tends to prove guilt is prejudicial or damaging to the defendant's case. (Doolin, supra, 45 Cal.4th at p. 439, citing People v. Zapien (1993) 4 Cal.4th 929, 958.) The evidence that should be excluded as unduly prejudicial under that section is that which inflames the emotions of the jury and motivates them to use the information not to logically evaluate the point upon which it is relevant, but to punish or reward one side of the case because of the jurors' emotional reaction to it. (Doolin, supra, 45 Cal.4th at p. 439.) Evidence of drug use may be considered prejudicial because " '[i]t cannot be doubted that the public generally is influenced with the seriousness of the narcotics problem . . . and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent.' " (People v. Cardenas (1982) 31 Cal.3d 897, 907.)
Here, the drug possession testimony was highly prejudicial and at best only marginally relevant to any disputed issue at the second trial. While evidence of McCluney's retrieval of a gun from his vehicle may be relevant, it is a stretch to infer that because he had drugs in the vehicle, he also had a gun. Even if this inference was reasonable, however, evidence of drug possession is particularly prejudicial because the public generally dislikes persons who are engaged in the sale of drugs. The probative value of the drug possession evidence was substantially outweighed by the inflammatory effect of the testimony on the jury. Thus, we conclude the admission of the testimony was improper under section 352.
Having determined that admission of the drug possession evidence was unduly prejudicial, we must next consider whether that error requires reversal. Error in the admission or exclusion of evidence following an exercise of discretion under section 352 is tested for prejudice under the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) Similarly, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (Partida, supra, 37 Cal.4th at p. 439.) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process. (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230, fn. omitted.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test." (Partida, supra, 37 Cal.4th at p. 439.)
As a result of the second trial, McCluney was convicted of Count 3 (assault with a deadly weapon) with a true finding that he personally used a baseball bat. He was not convicted on the attempted murder charge. The drug possession evidence at this trial was for the purpose of suggesting that because McCluney was engaged in the sale of cocaine, he also had a gun. The evidence did not relate to McCluney's use of a baseball bat and was not of a nature that it rendered the trial fundamentally unfair. Further, it is unlikely that the result of the case would have been different absent the error. There was strong evidence that McCluney obtained a bat from Webster after saying that he was going to get Goodin and that he repeatedly struck Goodin with the bat. There is not a reasonable probability the jury convicted McCluney on Count 3 based on the drug possession testimony rather than on the abundant other evidence establishing his guilt. Accordingly, any error was harmless.
IV. Alleged Juror Misconduct
A. Background
After the jury reached verdicts in the second trial, McCluney requested that the court release the contact information of the jurors from the first trial or set a hearing pursuant to Code of Civil Procedure section 237. The request was based on evidence discovered by a defense investigator concerning juror misconduct. Specifically, according to the investigator, he spoke with one juror from the first trial who "said another juror had looked up 'intent' in a dictionary but did not comment on the meaning of the word. . . . [T]his occurred after the decision on the lesser counts and prior to the jury hanging on the remaining count(s)."
The court held a hearing to further consider McCluney's request for disclosure of the jurors' contact information. The trial court denied the motion and explained its ruling as follows:
"I think there's no information before the Court at this moment that suggests to me any basis for imagining that . . . the apparent efforts of another juror to look up the definition of 'intent' in the dictionary, ah, had any impact whatsoever, any effect whatsoever on the verdicts which were reached by the jury in the first trial.B. Analysis
"I think it's apparent from . . . the statement attributed by Investigator Jon Lane to the juror with whom he met . . . the looking up of the definition of the word 'Intent' related solely to, ah, the attempt murder charge and did not even come up in the jury deliberations until the verdicts had been, ah, reached on the - - the, ah, counts with respect to which the jury did reach verdicts.
"[¶] . . . [¶]
"So, I say, I'm satisfied that there was absolutely no impact on the verdicts which were reached by the first jury. Ah, not that there may not be some other grounds for seeking a new trial, but I think, ah, this situation with the . . . looking up the definition in the dictionary had no impact on those - - on those verdicts.
"And, ah, I also think that, ah, although it was misconduct - - I think we all agree that was misconduct - - but, ah, I'm persuaded the People's position is correct that there's no showing of any demonstrable prejudice since they didn't reach a verdict with respect to the attempted murder. So, therefore, that count cannot be the subject of a motion for new trial.
"And to the extent that, ah, the motion for new trial will be generally based on claim of ineffective assistance of counsel - - which, again, would only relate to the verdicts that they reached, not to when they
didn't reach a verdict - - ah, that - - I can't - - I can't understand how inquiring of the jury would produce any, ah - - that there's any showing of good cause to grant access to the jurors in support of that motion for new trial.
"[¶] . . . [¶]
"Also, it strikes me that, ah, the, ah - - the two counts with respect to which a verdict was reached, one of them was a general intent crime. I don't see why the jurors would have any question about what 'intent' means in the general intent sense. As the CALCRIM instructions say, if you intentionally, you know, knowingly, purposefully do what the law declares to be a crime, that's general criminal intent. So I can't imagine what problem they had at all with respect to the intent in the ADW.
"And the attempt intent involved in the possession for sale. That's straight and clear and forward, too. If you intend to sell something, that's your purpose, that's your goal. That's the object of the exercise, so to speak. So I can't imagine the jury had any problem with intent in those contents."
McCluney contends the trial court erred by failing to conduct a hearing regarding alleged juror misconduct at his first trial. We agree.
Code of Civil Procedure sections 206 and 237 are designed to maximize the safety and privacy of trial jurors after they have served as jurors, while retaining the defendant's ability to contact jurors after trial if he or she shows sufficient need for such information. (See Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087, 1096; People v. Granish (1996) 41 Cal.App.4th 1117, 1124.) Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to personal juror identifying information - their names, addresses and telephone numbers - when the sealed information is "necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) The petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) If the court determines the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing, unless the record establishes a compelling interest against disclosure. (Ibid.) If the court sets a hearing, Code of Civil Procedure section 237 allows jurors to protest the petition's granting, and "[a]fter the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court . . . the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subds. (c), (d).)
To demonstrate good cause, a defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones (1998) 17 Cal.4th 279, 317 (Jones).)The alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) A trial court order denying a request for personal juror identifying information is reviewed for abuse of discretion. (Jones, supra, 17 Cal.4th at p. 317.)
Use of a dictionary by a juror constitutes misconduct. (People v. Karis (1988) 46 Cal.3d 612, 642 (Karis).)"Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law." (Ibid.; see also People v. Barton (1995) 37 Cal.App.4th 709, 715.) Jury misconduct raises a presumption of prejudice. (Karis, supra, 46 Cal.3d at p. 642.) This presumption may be rebutted by an affirmative evidentiary showing there was no evidence of prejudice. (Ibid.)
The procedure set forth in Code of Civil Procedure section 237, subdivision (b), was not followed in this case. McCluney's counsel made a prima facie showing of good cause for release of the personal juror identifying information. To establish good cause, McCluney needed only to make a sufficient showing "to support a reasonable belief that jury misconduct occurred." (Jones, supra, 17 Cal.4th at p. 317.) The fact that a juror consulted a dictionary for the definition of "intent" and that at least one other juror knew this took place established reasonable cause to believe misconduct occurred. Once good cause is shown, absent a countervailing showing of a compelling interest in nondisclosure, a subsequent hearing under Code of Civil Procedure section 237 was required. Because there was nothing in the record to establish a compelling interest against disclosure, McCluney was entitled to a hearing.
Here, the trial court applied the standard applicable on the ultimate question of whether a new trial is in order, rather than the standard for evaluating good cause for a hearing on entitlement to the identifying juror information. The court prematurely gauged the likelihood of McCluney's success on the merits of his new trial motion by evaluating whether the alleged misconduct was prejudicial. It made this assessment before the parties could flesh out the misconduct. Accordingly, it was an abuse of the trial court's discretion not to conduct a hearing under Code of Civil Procedure section 237. The fact that a hearing is held, of course, does not necessarily result in the release of the juror personal identifying information. Affected former jurors are to be given notice of the hearing and an opportunity to oppose the unsealing of the information. (Code Civ. Proc., § 237, subds. (c), (d).)
DISPOSITION
The conviction reached at the second trial on Count 3 is affirmed. The convictions reached at the first trial on Counts 2 and 4 are vacated and the case is remanded to the trial court to set a hearing under Code of Civil Procedure section 237 to determine whether the jurors' identifying information should be released to McCluney's counsel. If, after the hearing, the information is not disclosed, the convictions on Counts 2 and 4 shall be reinstated. If the information is disclosed to McCluney's counsel, the trial court shall permit McCluney to file a new trial motion and then decide the new trial motion on its merits. If the renewed new trial motion is denied, the convictions on Counts 2 and 4 shall be reinstated.
McINTYRE, Acting P. J. WE CONCUR:
O'ROURKE, J.
AARON, J.