Opinion
C086866
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. GILBERT EARL SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE013303)
Defendant Gilbert Earl Smith robbed and shot a Brink's employee, Jermaine Lazaga, who fired back hitting defendant. Both Smith and Lazaga were found at the scene, seriously injured and unconscious but alive.
A jury convicted defendant of attempted murder (Pen. Code, §§ 664/187, subd. (a)), robbery (§ 211), and unlawful possession of firearm by a felon (§ 29800, subd. (a)(1)), and found allegations of personal use of a firearm, intentional discharge of a firearm, and discharge of a firearm causing great bodily injury (§ 12022.53, subd. (a)-(d)) were true. The trial judge sentenced defendant to seven years for attempted murder and 25 years to life for discharging a firearm causing great bodily injury, staying the sentences on the other counts under section 654. With additional terms for the other firearm enhancements, and pursuant to a plea deal in a trailing case against defendant, the total sentence imposed was 36 years and four months to life.
Undesignated statutory references are to the Penal Code.
The trial court dismissed an additional charge that defendant committed these offenses while released on bail (§ 12022.1) as part of a plea bargain in which defendant pleaded guilty to robbery in the trailing case.
Defendant contends the trial court erred in denying (1) a Batson-Wheeler motion when the prosecutor used a peremptory challenge to excuse one of two African-American prospective jurors, and (2) a motion for access to sealed juror information to substantiate a claim of juror misconduct based on an anonymous letter found in the bushes outside the courthouse. We find no merit to either claim and affirm the judgment.
FACTUAL BACKGROUND
The facts underlying defendant's crimes are not implicated in the resolution of the issues raised on appeal. Accordingly, we provide a brief summary. We will provide further relevant facts in our discussion of the trial court's rulings that defendant challenges on appeal. (People v. Bryant (2019) 40 Cal.App.5th 525, 528 (Bryant).)
Lazaga testified that, on July 8, 2016, he was substituting for a Brink's courier who had called in sick. A Brink's courier services ATMs and delivers and picks up money. Lazaga had no guard and his driver was a new hire not yet authorized to carry a firearm. Lazaga was not wearing a bulletproof vest because he was supposed to be in the office that day.
At about 9:00 a.m., Lazaga and the driver arrived at a Golden 1 Credit Union in Sacramento. Lazaga went into the bank and serviced the ATMs. He left with two large Brink's bags containing $369,667 and headed towards the Brink's truck. Lazaga heard someone yelling, "drop the bag." He turned and saw a man with a gun. The man was wearing a hood and a neon vest and his face was covered. Lazaga dropped the bags, turned away, and took a couple of steps before the man shot him in the back. Lazaga turned back and fired at the man. An exchange of gun fire ensued. Lazaga saw the man go down. Lazaga tried to walk back to the Brink's truck and lost consciousness.
A witness in the bank testified he saw a man in a green reflective jacket come out of a red SUV. The man fired at a man who left the bank with bags of money. The man from the SUV grabbed the bags of money and went towards the SUV. There were shots and this man went down.
A sheriff's deputy testified that on arriving at the scene he found defendant on the ground. Defendant was wearing bandanas and a respirator mask covering his face. He had a pulse but was not breathing. The deputy turned defendant on his side to open his airway. There were multiple bags of currency around defendant and a handgun about 10 feet away.
Defendant testified on his behalf. He acknowledged the red SUV was stolen. He asked a female friend for a stolen car, told her he was going to rob an armored truck, and promised to share the proceeds. Defendant's friend obtained the red SUV and was the driver on the day of the robbery.
Defendant was covered up because he didn't want to be identified. He had a loaded gun but his plan was to scare the Brink's courier, not shoot him. When Lazaga came out of the bank, defendant had the gun in his right hand and bear spray in his left. Defendant wanted to "mace" Lazaga to get the money. Defendant knew that as felon he was not supposed to have a gun or mace.
When Lazaga came out of the bank, defendant ran towards him, yelling at him to drop the bag. Lazaga turned around when defendant got within a couple feet. It was too close to use the mace. Defendant testified that he grabbed one of the bags with his left hand, which held the can of mace, and "hooked" the strap of the other bag, with his right hand that held the gun. There was a tug of war over the bags. The mace fell out of defendant's hand. His gun went off. Defendant thought he had hit Lazaga.
Defendant grabbed the bags and ran, picking up the pepper spray to avoid leaving fingerprints. But when he turned his back Lazaga shot him twice. Defendant kept on running. He turned towards Lazaga, who shot him two or three more times.
Defendant had the gun in his hand as he fell to the ground. He was squeezing a bag handle and holding the gun with the same hand, and the gun started shooting at the ground. Defendant acknowledged that there were eight shell casings matching his gun found at the scene of the crime. Defendant testified he did not mean to intentionally shoot the gun off seven more times.
DISCUSSION
I. Batson-Wheeler Motion
The prosecutor used a peremptory challenge to excuse one of two African-American members in the jury venire. Defendant, who is African-American, challenged the prosecutor's action under Batson-Wheeler. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The trial court denied the motion, finding the prosecutor did not excuse the prospective juror based on race.
Defendant contends that the trial court failed to make a sincere and reasoned effort to determine whether the prosecutor was racially motivated in exercising a peremptory challenge. Defendant argues that the prosecutor did not challenge a non-African-American panelist whose answers in voir dire were similar to those of the excused juror.
We granted defendant's motion to augment the record with the jury questionnaires. The trial court provided copies of the questionnaires that did not redact jurors' personal information. The People returned the questionnaires to the trial court and the parties do not refer to the questionnaires in the augmented record in their briefs on appeal.
A. Background
There were two African-American jurors in the venire: Juror No. 6676359 and M.F.
The prosecutor passed on three opportunities to exercise a peremptory challenge to Juror No. 6676359. Juror No. 6676359 was seated in the jury.
In voir dire, Juror No. 6676359 stated he had served as a juror in three cases, two of which were criminal cases where the jury reached verdicts. Juror No. 667359 stated his belief that "there is a certain amount of bias against black men in the criminal justice system, and that is a concern that I have." The court responded, "I can see where you would have that concern. There is -- the numbers seem to bear that out."
Noting that defendant was himself African-American, the court asked if Juror No. 6676359 could give both defendant and the People a fair trial, based on the facts presented. Juror No. 6676359 answered, yes. Defense counsel asked Juror No. 6676359, if, after having seen all the evidence, and he believed that the prosecution had proven guilt beyond a reasonable doubt, would he have qualms about voting guilty. Juror No. 6676359 said, no. Juror No. 6676359 confirmed that, on the other hand, if the prosecution did not prove guilt beyond a reasonable doubt, he would have no difficulty in voting not guilty. Later in voir dire, the prosecutor noted that Juror No. 6676359 had mentioned potential bias, and asked him if he meant in the justice system or law enforcement, or both. Juror No. 6676359 replied, both. The prosecutor followed up by asking if Juror No. 6676359 saw something on the news where he thought a black man was wrongly convicted, would he be upset about what's going on in this country and hold the People to a higher standard. Juror No. 6676359 said, no.
M.F. was the juror struck by the prosecution. During voir dire, the following colloquy occurred between M.F. and the prosecutor:
"[Q]: [M.F.], if this were a theft case, do you think the standard of proof should be different, meaning, if it's a less serious case should it be -- should it require less for us to convict somebody?
"[A]: No.
"[Q]: Do you think the standard should be the same or different?
"[A]: I would suppose it should be the same.
"[Q]: It's the same.
"And that's what the law is in a criminal case. Doesn't matter whether it's a triple homicide or whether it's a misdemeanor petty theft, the standard is beyond a reasonable doubt.
"As the Judge told you there's a couple different -- there's several charges. It's three total charges plus some allegations.
"Just hypothetically, let's say you believed all three were proven beyond a reasonable doubt, but there was one of those charges that was so overwhelming, you'd never seen that much proof, and the defense even got up and said, this one is a joke, of course he's guilty of this one, what would be your vote in that scenario on the charges?
"[A]: Not guilty until proven so.
"[Q]: Okay. But under my little scenario you believed the evidence proved all three beyond a reasonable doubt, what would your verdict be?
"(Pause.)
"[Q]: Hypothetically -- I'm saying if you voted now, you'd have to vote not guilty, but if the evidence came and you believed based on the evidence the three charges were proven, what would your verdicts have to be?
"[A]: Would have to be guilty, I suppose.
"[Q]: Okay. And is there a reason you would have hesitation with that?
"[A]: No.
"[Q]: Okay. What we want in the system, is each side wants a fair trial. So it's our obligation to prove the charges. If we fall short, then your verdict would be not guilty, but if we do prove the charges we need to have jurors that are willing to say, that charge is proven beyond a reasonable doubt, so the appropriate verdict is guilty.
"Is that something you can do?
"[A]: Yes."
The session ended for the day and the next day the defense passed M.F. and the prosecutor used a peremptory challenge to excuse her.
The defense made a Batson-Wheeler motion. Defense counsel stated as the basis of the motion that the prosecutor's question to M.F. "involved sort of a double negative, and it wasn't a perfectly smooth transition, but . . . I don't believe [M.F.] said anything that would cause the prosecutor to have a concern." He continued that "the entire panel . . . has [M.F.] and then (6676359) as the African Americans. Her answers to me seemed absolutely middle road. I don't believe she said anything to indicate that she was biased towards one side or the other, and I do feel like she's been removed based on her race."
The trial court invited the prosecutor to respond as to whether the defense had established a prima facie case. The prosecutor stated that the People had no intention of dismissing a juror based on race. Juror No. 6676359 appeared to be African-American and was not challenged. There also appeared to be people of different ethnicities on the jury. The reason the People excused M.F. was because "she appeared to have some hesitancy . . . if hypothetically the evidence proved the defendant's guilt beyond a reasonable doubt, would she vote guilty."
Defense counsel responded that the prosecutor's "questions to [M.F.] were not his best. By the end it was clear what she was being asked, and she clearly said that she would be comfortable voting guilty if proof was there beyond a reasonable doubt. [¶] So I disagree with the characterization. I don't think she hesitated. I think she was a little confused at first because of the way the question was phrased."
The trial court observed that "we kind of skipped a step" because the prosecutor did not state whether a prima facie case had been shown, but "did go on to state . . . why he exercised his peremptory challenge as to [M.F.]."
The court then ruled as follows:
"The Court is mindful that the prosecution passed at least, I believe, three times where (6676359) was on the jury. He does appear to be African American. That does at least factor into my analysis.
"While I agree [the Prosecutor's] questions were not as articulate as they possibly could be . . . [M.F.] did seem to have some reluctance, although it was somewhat confusing to the Court because it -- initially it did appear to be some reluctance, and then there was a follow-up question in which [her] reluctance seemed to dissipate on whether or not she could follow the law in terms of finding [the defendant] guilty beyond a reasonable doubt if the People have proved it.
"At this point the Court doesn't feel that the challenge was based on a racial factor. It was more of a neutral finding with respect to whether or not she could follow her burden -- or the People's burden, I should say, in following the law. So at this point I will deny the defense motion pursuant to Batson-Wheeler."
B. Analysis
"The 'Constitution forbids striking even a single prospective juror for a discriminatory purpose.' [Citation]." (Foster v. Chatman (2016) 578 U.S. ___ [136 S.Ct. 1737, 1747] (Foster).) "Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez); People v. Silva (2001) 25 Cal.4th 345, 386.)
"[The Supreme Court's] decision in [Batson], provides a three-step process for determining when a strike is discriminatory: [¶] 'First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.' [Citation.]" (Foster, supra, 136 S.Ct. at p. 1747.)
Here, as the trial court pointed out, the prosecutor skipped a step and volunteered reasons for exercising a peremptory challenge without the court finding a prima facie case of discrimination. In that scenario, the court has impliedly found that the defendant has established a prima facie case of discrimination. (People v. Scott (2015) 61 Cal.4th 363, 387, fn. 1; People v. Arias (1996) 13 Cal.4th 92, 135; Bryant, supra, 40 Cal.App.5th at p. 536.)
In the second step, the burden shifts to the prosecutor to give an adequate nondiscriminatory explanation for the challenges. To meet this burden, the prosecutor must provide a clear and reasonably specific explanation of the legitimate reasons for the challenges. (Batson, supra, 476 U.S. at p. 98.)
Third, if such a showing is made, the trial court must determine whether the defendant has proved purposeful discrimination. The inquiry is on the subjective believability of the prosecutor's reasons, not their objective reasonableness. The credibility of the prosecutor's explanation is pertinent and the court can consider the prosecutor's demeanor, the reasonableness or improbability of the explanation, and whether the prosecutor's reasons have some basis in acceptable trial strategy. The court must make a sincere and reasoned effort to evaluate the prosecutor's justification, considering the facts of the case, acceptable trial tactics, and observations of the prosecutor's examination of potential jurors and the subsequent exercise of challenges to jurors. Implausible or fantastic explanations may be considered pretexts for purposeful discrimination. The trial court has the advantage of being in the courtroom to assess the prosecutor's credibility. (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.)
We review the trial court's decision on the sufficiency of the prosecutor's justifications with great restraint. In addition, we presume the prosecutor's use of peremptory challenges occurs in a constitutional manner. We apply the substantial evidence standard, giving deference to the court's conclusions if made based on a reasonable evaluation of the prosecutor's stated justifications. (Gutierrez, supra, 2 Cal.5th at p. 1159.)
Substantial evidence supports the trial court's denial of defendant's Batson-Wheeler motion. The prosecutor stated that he excused M.F. because she expressed hesitancy in answering a question about a hypothetical scenario. The hypothetical posited that where there were three charges, as in defendant's case, and M.F. believed guilt was proven beyond a reasonable doubt on all three, but the evidence on one charge was "so overwhelming, you'd never seen that much proof since guilt was so obvious the defense even conceded it. As the trial court noted, M.F.'s response indicated a reluctance to convict in that scenario without further proof. Only when the prosecutor reminded M.F. in follow-up questioning that his scenario was premised on proof beyond a reasonable doubt on three charges did her "reluctance seem[] to dissipate . . . ." The court concluded that the challenge involved "more of a neutral finding with respect to whether or not she could follow . . . the People's burden . . . in following the law."
A prospective juror's difficulty and hesitance in understanding the burden of proof can serve as a race-neutral reason to exercise a peremptory challenge. (People v. Mills (2010) 48 Cal.4th 158, 176-177 (Mills), citing, inter alia, People v. Kelly (2008) 162 Cal.App.4th 797, 805, fn. 10; People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1114.) That a prospective juror appears to be confused is a legitimate, nondiscriminatory reason for a peremptory challenge. (People v. Taylor (2009) 47 Cal.4th 850, 893-894; People v. Watson (2008) 43 Cal.4th 652, 682.)
Defendant leans heavily on the trial court's comment that M.F.'s confusion "dissipated" after the prosecutor clarified his question, as indicating that the court did not conduct a proper inquiry into racial bias. However, that M.F. agreed her verdict would be guilty after the prosecutor's follow-up questions does not undermine the prosecutor's reliance on her initial hesitance and confusion. (Mills, supra, 48 Cal.4th at p. 177, fn. 5.)
Additionally, the trial court considered as a "factor" that the prosecutor had passed on one African-American juror, Juror No. 6676359, while excusing M.F. (People v. Hartsch (2010) 49 Cal.4th 472, 487 [the prosecutor's acceptance of African-American prospective jurors "was 'an indication of the prosecutor's good faith in exercising his peremptories, and . . . an appropriate factor for the trial judge to consider in ruling on a Wheeler objection' "].) That the prosecutor did not challenge another African-American juror demonstrates a lack of discriminatory purpose. (People v. Blacksher (2011) 52 Cal.4th 769, 802; see also People v. Jones (2011) 51 Cal.4th 346, 362; People v. Lenix (2008) 44 Cal.4th 602, 629 (Lenix); People v. Kelly (2007) 42 Cal.4th 763, 780.) Further, excusing one or two African-American jurors can rarely establish a pattern of discrimination. (People v. Clark (2016) 63 Cal.4th 522, 567; People v. Harris (2013) 57 Cal.4th 804, 835; People v. Bonilla (2007) 41 Cal.4th 313, 343.)
Lastly, defendant relies on comparative analysis to contend that the prosecutor's explanation for challenging M.F. was implausible. Defendant argues that "the prosecutor presented a convoluted hypothetical to the African American juror, and his reason for striking her was her hesitation, The prosecutor presented a similar convoluted hypothetical to white juror [C.P.], but he did not strike her."
" '[I]f a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.' [Citation.]" (Foster, supra, 136 S.Ct. at p. 1754.) However, "comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination." (Lenix, supra, 44 Cal.4th at p. 622.)
We disagree that comparative analysis indicates that the prosecutor's explanation for excusing M.F. was implausible. The prosecutor questioned C.P. in voir dire after she stated that, in her work with families that experienced incarceration or probation, she had clients of color, including African-Americans, who she felt were disproportionately represented in the criminal justice system. The "convoluted hypothetical" posed to C.P. involved the prosecutor's statement that if defense counsel had conceded that part of the charges were true, i.e., that defendant had a gun that day, what would C.P.'s vote be if asked to vote right now. C.P. answered that she "wouldn't be able to decide without the facts." The prosecutor observed that this was because of the presumption of innocence, which C.P. agreed made sense. Conversely, the prosecutor asked all the prospective jurors present that if defense counsel argued something similar at the end of the case whether they thought they could not make an objective determination. There were no responses. The prosecutor explained that his point was that the decision could not be based on the attorneys' arguments but must be based on the evidence and the trial court's instructions on the law.
The prosecutor passed C.P. but defense counsel excused her.
On the basis of this colloquy, we find that M.F and C.P. are not similar. C.P.'s comments about African-Americans being disproportionately represented in the criminal justice system makes C.P. more similar to Juror No. 6676359, who was passed three times by the prosecutor and served on the jury. Further, unlike M.F., C.P. expressed no confusion or hesitancy in answering the prosecutor's questions, including the "convoluted hypothetical." "[F]or a comparative analysis to be probative, a seated juror must have a ' "substantially similar combination of responses," in all material respects' to an excused juror. [Citation.] Although jurors need not be completely identical for a comparison to be probative [citation], "they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge." ' " (Bryant, supra, 40 Cal.App.5th at p. 540, quoting People v. Winbush (2017) 2 Cal.5th 402, 443.) Defendant did not show that M.F.'s responses were like C.P.'s.
In addition, defendant "did not raise the issue of comparative analysis in the trial court, and thus the prosecution never had the opportunity to explain perceived differences" between M.F. and C.P. (Bryant, supra, 40 Cal.App.5th at p. 542, citing Lenix, supra, 44 Cal.4th at p. 623; Winbush, supra, 2 Cal.5th at p. 442 [" ' "a formulaic comparison of isolated responses [is] an exceptionally poor medium to overturn a trial court's factual finding" ' " concerning the subjective reasonableness of a prosecutor's proffered reasons for excusing a juror].) " '[C]omparative juror analysis on a cold appellate record has inherent limitations. [Citation.] . . . On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.' " (Bryant, supra, 40 Cal.App.5th at p. 542, quoting Lenix, supra, 44 Cal.4th at p. 622.) While we may consider comparative juror analysis for the first time on appeal, the record must be adequate to allow the comparison. (Ibid.) By not raising the issue below, defendant denied the prosecutor the opportunity to make such a record. (Ibid.)
II. Motion for Juror Information
Defendant claims the trial court abused its discretion in denying his motion for release of jurors' addresses and telephone numbers. We conclude that the motion failed to state good cause for release of jurors' information.
A. Background
Defendant moved for release of juror information after the verdict. His motion was supported by a declaration from defense counsel. Counsel stated that, on February 2, 2018, one Gary Wilson found a letter outside the courthouse.
This is apparently an error in the declaration. Other documents indicate Wilson discovered the letter on February 26, 2018.
The letter—undated, unsigned, and handwritten on lined paper—stated: "To Whom it may concern: [¶] In the court case The People vs Gilbert Smith witch [sic] is currently in trail [sic] in Department 20 I would like to inform the judge, the D.A., and Mr. Smith's lawyer that one of your jurors has been openly talking about this Brinks Robbery case. I was present during this conversation, however I wish to remain anonymous because I am a friend of a friend who stated they previously hired Mr. Smith for his lawn services in the past. I feel justice will not be served if you have a juror openly and bluntly speaks on what is going on and what their vote or decision will be before they even hear all the evidence or testimonies. Therefore I am notifying the courts [sic] of this outrageous acts in lieu of this knowledge[.] May justice prevail."
The declaration continued that, on March 2, 2018, Wilson gave the letter to his son, Daniel Walker, a Brink's supervisor. The same day Walker emailed the letter to Brink's management. On March 4, 2018, a Sunday, the prosecutor, having just learned of the existence of the letter, emailed it to defense counsel.
The record contains three reports about the circumstances surrounding the discovery of the letter, prepared by an investigator from the district attorney's office.
The first stated that the investigator had contacted Wilson and Walker and obtained their statements. The investigator also described viewing video from security cameras in the area where the letter was discovered by the bike rack at the courthouse. The video could record individuals in the area but was of poor quality and race and gender could not be determined. Video on the date the letter was discovered, prior to its discovery, showed a person in a dark jacket smoking near the bike rack at about noon.
The second report summarized a telephone call with Wilson. Wilson stated that, on February 26, 2018, he rode his bike to the courthouse to go to the jury commissioner's office regarding his failure to report for jury duty. When he finished at about 2:00 p.m., he went to the bike rack, where he saw a piece of paper in the low-growing shrubs nearby. The note was folded and partially crumpled. He did not believe it had been there long because it was not wet or damp. The note mentioned a case involving an attempted robbery of a Brink's truck. He knew about the case because his son works for Brink's and had told him about the shooting and attempted robbery. Wilson gave the note to his son on March 2, 2018.
The third report described a telephone call with Walker in which he stated that, on March 2, 2018, Wilson told him he was outside the courthouse smoking and noticed the note in the bushes. Walker emailed the note to Brink's management and kept the original note in a safe.
The jury convicted defendant on March 2, 2018. According to the statement of facts in the prosecutor's opposition to defendant's motion, the prosecutor learned of the note on March 4, 2018, during a telephone call with a Brink's security manager regarding the conclusion of the trial.
On March 23, 2018, the court heard defendant's motion and denied it. The court ruled: "In the present matter it was an unsigned letter that was located discarded on the ground outside the courthouse. The author claims to have witnessed unspecified jurors ultimately talking about the case, People versus Smith, during the course of the trial, and, as stated, it is an unsigned letter with nothing specific as to which jurors and what was being said. [¶] The Court's of the opinion without further foundation, authentication and more specific facts, the Court would not find, and does not find, good cause to unseal the jurors' records. To find otherwise would allow unsealing of jurors' personal identifying [information] based on rumor and hearsay with no meaningful opportunity to assess credibility [of] anyone claiming misconduct, and for that reason, the defense motion is denied."
B. Analysis
After the verdict in a criminal jury trial, the record of personal identifying information of trial jurors is sealed. (Code Civ. Proc., § 237, subd. (a); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087 (Townsel).) A defendant may petition the court for access to personal juror identifying information in the court's records to communicate with jurors to develop a motion for a new trial. (Code Civ. Proc., § 206, subd. (g).) 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." (Id., § 237, subd. (b); see also id., § 206, subd. (g.).) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
Good cause " 'requires "a sufficient showing to support a reasonable belief that jury misconduct occurred . . . ." [Citations.]' [Citation.]" (People v. Johnson (2015) 242 Cal.App.4th 1155, 1161-1162.) The defendant must show that a "juror's conduct was 'of such a character as is likely to have influenced the verdict improperly' (Evid. Code, § 1150, subd. (a)) . . . ." (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322 (Jefflo).) "Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (People v. Cook (2015) 236 Cal.App.4th 341, 346.)
We review an order on a motion for disclosure of jurors' identifying information for abuse of discretion. (Townsel, supra, 20 Cal.4th at pp. 1096-1097; People v. Johnson (2013) 222 Cal.App.4th 486, 492.)
The inadequacies of the anonymous, discarded letter in establishing good cause are manifest, as the trial court noted. The letter did not identify the writer or the juror in question. The letter refers to a conversation where the writer heard a juror talking about the case. The writer claims the juror discussed what their vote would be before all the evidence was presented. However, how the juror would vote is not disclosed. The circumstances of the conversation, when or where it occurred, are not related. In short, the letter is devoid of details of supposed juror misconduct.
Contrary to defendant's argument, the letter did not have the "ring of authenticity," but more of a "ring of advocacy." The writer characterized the juror's reported statements as "outrageous acts" and closed with "May justice prevail." The writer admitted he or she was a "friend of a friend" of defendant, ostensibly as a reason for remaining anonymous.
Lastly, the letter refers to the writer's desire to "notif[y] the courts," as well as counsel for the parties. Yet, the letter was left in the bushes by a bike rack outside the courthouse, when it could have submitted directly to the court and counsel without compromising the writer's anonymity. Whether the letter was planted, dropped, or abandoned is not discernable on the information available. But its deposit outside the courthouse adds to its questionable nature.
Defendant alleges that the letter was withheld until after the verdict by Brink's employees. There is no support for this allegation in the record, which indicates the letter was provided to the prosecutor by a Brink's employee, who was unaware of the timing of the jury verdict, and the prosecutor promptly provided the letter to defense counsel. Moreover, any delay in conveying the letter to defense counsel is attributable to the writer, who evidently decided not to submit it directly to the court and counsel but rather deposited it in a fashion in which it might never have been found. --------
Accordingly, the court properly viewed with skepticism a letter by an anonymous writer discovered in the bushes outside the courthouse reporting in a vague and conclusory manner the hearsay statement of an unidentified juror as support for a motion for disclosure of juror information. (Jefflo, supra, 63 Cal.App.4th at p. 1322.) The purpose of the claim for disclosure of personal juror information was to identify and contact the juror, which could only be accomplished by canvassing members of the jury. Contrary to defendant's argument, this was an impermissible " ' "fishing expedition" to search for possible misconduct.' " (People v. Avila (2006) 38 Cal.4th 491, 604.) We find that the trial court did not abuse its discretion in denying defendant's motion for disclosure of jurors' personal identifying information.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
RENNER, J.