Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge, Super. Ct. No. SCD219244.
AARON, J.
I.
INTRODUCTION
A jury found Andre Deloine Smith guilty of carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). After the jury was discharged, Smith filed a petition to unseal juror identifying information (Code Civ. Proc., § 237, subd. (b)) to facilitate his attempt to obtain juror affidavits in support of a motion for new trial based on jury misconduct. The trial court denied the petition. At sentencing, the court suspended imposition of sentence for three years, placed Smith on summary probation, and ordered Smith to pay various monetary charges, including a fine in the amount of $800.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
On appeal, Smith claims that the trial court erred in denying his petition to unseal juror identifying information. Smith also claims that the court's imposition of the $800 fine constitutes an unauthorized sentence. We conclude that the court erred in denying Smith's petition to unseal juror identifying information. We further conclude that the $800 fine is not an unauthorized sentence, but we reduce the amount of the fine to $720, in accordance with a concession by the People on appeal.
II.
FACTUAL BACKGROUND
On February 28, 2009, at approximately 9:30 p.m., San Diego Police Officer Christopher Tews was on patrol in Linda Vista. While driving, Tews saw a male and a female sitting on the hood of a parked El Camino. The male was drinking a beer. Tews stopped his police car to investigate. Tews determined that both individuals were juveniles who were on probation for auto theft and burglary, and that the male was extremely intoxicated. Tews asked the juveniles if they knew the owner of the El Camino. The juveniles were nonresponsive. Because he was concerned that the juveniles might have stolen the El Camino and a nearby Chevy Lumina, and wanted to investigate further, Tews shined his flashlight to illuminate the interiors of the vehicles. As he was doing so, Tews saw Smith walking from the side yard of a nearby house.
Smith aggressively yelled at Officer Tews, " 'Hey, What are you doing? I want your badge number.' " Tews asked Smith if he was the owner of the vehicles that Tews was investigating. Smith responded angrily, " 'Nah. Give me your motherfucking badge number.' " Smith threw his hands up in the air, and slowly walked toward Tews. Tews could see that Smith had nothing in his hands at this point. Tews ordered Smith to stay back on at least two occasions, but Smith continued to walk toward the officer. After receiving a final warning to stay back, Smith mumbled, " 'Fuck you, ' " while placing his left hand at his side. Officer Tews could see that Smith was "fumbling his hand around" near his waistband. Almost immediately thereafter, Tews head a "loud clank" on the ground. Tews shined his flashlight on the ground at the location from which he had heard the sound. Tews saw a knife with a blade that was approximately three and a half inches long, on the ground. As Tews arrested Smith, Smith said, " 'Yeah. You're right, Officer. I dropped the knife. You got me.' "
Smith did not testify at trial.
III.
DISCUSSION
A. The trial court erred in denying Smith's petition to unseal juror identifying information
Smith claims that the trial court erred in denying his petition to unseal juror identifying information.
1. Standard of review
We apply the abuse of discretion standard of review to Smith's claim. (People v. Jones (1998) 17 Cal.4th 279, 317 (Jones).) Generally, proper discretion is " 'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citation.]' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion must be " 'grounded in reasoned judgment and guided by principles and legal policies appropriate to the particular matter at issue.' [Citation.]" (Ibid.)
2. Factual and procedural background
After the jury returned its verdict in this case, Smith filed a petition to unseal juror identifying information pursuant to section 237. In his petition, Smith requested that the court order the disclosure of the addresses and telephone numbers of the jurors in this case in order to enable Smith's counsel to prepare a motion for new trial based on juror misconduct. In support of the petition, Smith's counsel filed a declaration in which counsel stated in relevant part:
"[A]fter the completion of the trial the Prosecutor and I spoke with a member of the jury [Juror No. 10]. [Juror No. 10] stated that the entire jury panel found the Defendant guilty of the crime charged because he did not testify on his own behalf.... [¶]... [¶] [Juror No. 10] stated that [the] jury based their [sic] entire verdict upon the statement that the Defendant made to Officer Tews[, ] 'Yeah, you['re] right Officer. I dropped the knife, you got me.'... [¶]... [¶] [Juror No. 10] told counsel they convicted the Defendant based upon the statement, without determining if or where the knife was concealed, stating that they could not determine if the knife was concealed. [¶]... [¶] [Juror No. 10] was asked by the defense if he would be willing to speak to an investigator about the deliberations, and he initially agreed, until the prosecutor told him he had no obligation to speak to the investigator, then he withdrew the offer."
Smith's counsel also detailed the unsuccessful efforts that he and a defense investigator had made to make contact with Juror No. 10. In addition, Smith's counsel stated that a defense investigator had used records from the Department of Motor Vehicles in an attempt to contact all of the other jurors, but that the investigator had succeeded in contacting only three other jurors.
The People filed an opposition to the petition in which they argued that Smith had failed to establish a prima facie showing of good cause to obtain the juror identifying information. The People maintained that defense counsel's declaration "reflect[ed] the opinion of defense counsel and speculation regarding the reasoning processes of the jurors, and is all inadmissible."
The trial court ruled that Smith had failed to make a prima facie showing of good cause to unseal the juror identifying information. In reaching this conclusion, the court reasoned in part:
"[D]efense counsel's declarations that have been filed indicate that the juror said defendant was found guilty because he did not testify on his behalf. [¶] Now... evidence that purports to show the effect of statements, conduct and the like on a juror or evidence of a juror's mental process is inadmissible. There is no evidence as to whether there was any discussion of this by the jurors. [¶]... [¶] In the instant case, according to the petition and declaration filed by defendant, the juror said to counsel that had defendant testified, the jury would have found him not guilty. This shows the effect of defendant not testifying upon a juror. And it clearly concerns the mental processes by which the verdict was determined. This is inadmissible, not to mention it is speculative on the part of the juror who spoke to defense counsel. [¶]... [¶]... And at this point to grant defendant's petition would be tantamount to granting a license for a fishing expedition to search for possible misconduct. [¶] For... all these reasons, the motion is denied as to releasing or unsealing the information of the jurors."
3. Governing law
a. The law governing requests for juror identifying information
Section 237 provides in relevant part:
"[(a)](2) Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.
"[¶]... [¶]
"(b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.
"(c) If a hearing is set pursuant to subdivision (b), the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action. The court shall provide notice to each affected former juror by personal service or by first-class mail, addressed to the last known address of the former juror as shown in the records of the court.... Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. A former juror who wishes to appear at the hearing to oppose the unsealing of the personal juror identifying information may request the court to close the hearing in order to protect the former juror's anonymity.
"(d) After 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 petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose. The court may require the person to whom disclosure is made, or his or her agent or employee, to agree not to divulge jurors' identities or identifying information to others; the court may otherwise limit disclosure in any manner it deems appropriate."
Section 206 provides in relevant part:
"(g) Pursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237."
In order to establish a prima facie showing of good cause, a defendant must provide a " 'sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial....' " (People v. Carrasco (2008) 163 Cal.App.4th 978, 990, citation omitted.) In considering whether a trial court's error in denying a petition to unseal juror identifying information is prejudicial, a reviewing court considers whether "defendant was denied information which could have aided his motion for new trial." (People v. Granish (1996) 41 Cal.App.4th 1117, 1132.)
b. Evidence Code section 1150and inquiries into possible juror misconduct
Evidence Code section 1150 provides:
"(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.
"(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict."
In People v. Perez (1992) 4 Cal.App.4th 893, 905 (Perez), after the jury returned its verdict, defense counsel filed a motion seeking funding to investigate possible jury misconduct. In support of the motion, defense counsel stated, "One juror... related to defense counsel that the jury based its decision of guilt on the fact that the defendant did not testify during the course of the defendant's trial." (Ibid.) After denying the request for funding on the ground that " 'a juror may not impeach his or her own verdict on the theory that he or other jurors did not follow the law' " (ibid.), the trial court stated that it assumed that defense counsel was also making a motion for new trial, and that for purposes of such a motion, the court would assume that all of the jurors would state that a discussion concerning the defendant's failure to testify in fact took place. (Id. at p. 906.) Notwithstanding the trial court's assumption that such a discussion took place, the court denied the motion for new trial. (Ibid.)
On appeal, this court held that the trial court had erred in implicitly ruling that juror declarations stating that the jury had discussed Perez's failure to testify would be inadmissible pursuant to Evidence Code section 1150. (Perez, supra, 4 Cal.App.4th at p. 908.) The Perez court reasoned:
"Here, the court was asked to exercise its discretion in ruling on Perez's new trial motion. In so doing the court accepted a worst case scenario, explicitly assuming all jurors discussed Perez's failure to testify. In effect, the court envisioned the jury had explicitly or implicitly agreed to disregard the court's express instruction not to consider or discuss Perez's failure to take the witness stand. Such jury discussion is admissible to impeach the verdict under the express provisions of Evidence Code section 1150." (Ibid.)
The Perez court held that the trial court erred in denying the new trial motion, reasoning, "Given the court's scenario that 12 jurors effectively agreed to disregard the court's express instructions, the jury declarations would have been admissible and constituted clear evidence of misconduct." (Perez, supra, 4 Cal.App.4th at p. 908.)
In Jones, supra, 17 Cal.4th at page 316, after the jury returned a verdict of death, a newspaper article quoted a juror as having said, " ' "He didn't deserve any more than [the victim] did. He doesn't deserve to go to prison, take classes and have conjugal visits.... We need a deterrent. We need to make a statement." ' " Defense counsel filed a motion to compel disclosure of the jurors' telephone numbers and addresses to ascertain whether jury misconduct had occurred, based on the quotation that appeared in the newspaper. (Ibid.) The trial court denied the motion on the ground that the " 'inquiry would clearly and improperly go to the mental processes by which the verdict was reached and the contents of juror deliberations.' " (Ibid.)
In concluding that the trial court had erred in its determination that Evidence Code section 1150 would preclude an inquiry into the possible misconduct, the Supreme Court reasoned:
"The court misapprehended the scope of subdivision (a) of Evidence Code section 1150, which bars admitting evidence showing the effect of statements or events on the mental processes of a juror, but does permit admitting 'any otherwise admissible evidence' to show that statements were made or events occurred. Thus, even if the juror's posttrial statements were not themselves misconduct, arguably they provided a basis for permitting defendant to investigate whether the jury discussed the improper subject of deterrence during deliberations. (See [Perez, supra, 4 Cal.App.4th at p. 908] [jury misconduct to disregard trial court's express instruction not to consider defendant's failure to testify].)" (Jones, supra, 17 Cal.4th at p. 316.)
4. Application
Juror No. 10's statement that the "entire panel" had found Smith guilty based on his failure to testify clearly suggests the possibility that one or more jurors discussed Smith's failure to testify during deliberations. Juror No. 10's statement thus provides a basis for permitting Smith to investigate whether the jury in fact discussed the improper subject of Smith's failure to testify. (See Jones, supra, 17 Cal.4th at p. 316.) If the jury did in fact discuss Smith's failure to testify, evidence of such a discussion would be admissible to impeach the verdict, pursuant to Evidence Code section 1150 (Perez, supra, 4 Cal.App.4th at p. 908), and clearly would have aided a motion for new trial on the ground of jury misconduct. (See People v. Granish, supra, 41 Cal.App.4th at p. 1132.)
The trial court denied Smith's petition to unseal juror identifying information in part on the ground that there was "no evidence as to whether there was any discussion of [defendant's failure to testify] by the jurors." However, Juror No. 10's statement certainly suggests that such a discussion occurred. The juror identifying information was necessary to enable Smith to investigate whether there had in fact been such a discussion. Further, the trial court's comment that granting the petition would be "tantamount to granting a license for a fishing expedition to search for possible misconduct" is unpersuasive. Smith identified in his petition precisely what information Smith was seeking—i.e. evidence of a jury discussion about his failure to testify, and Juror No. 10's statement suggested that such evidence might in fact exist. (See Surpitski v. Hughes-Keenan Corp. (1st Cir. 1966) 362 F.2d 254, 256 ["When the fish is identified, and the question is whether it is in the pond, we know no reason to deny a [party] the customary license"].)
We reject all of the People's arguments to the contrary. First, the People contend that defense counsel's declaration constituted "evidence of the subjective reasoning process of the juror who talked to defense counsel, " which is inadmissible under Evidence Code section 1150. While the People suggest that the statement is evidence of subjective mental processes because the statement indicates why Juror No. 10 "believed the jury had convicted appellant, " insofar as the statement suggests that Juror No. 10 formulated this belief based on the jury's discussion of Smith's failure to testify, it was admissible pursuant to Evidence Code section 1150. (See Jones, supra, 17 Cal.4th at p. 316; Perez, supra, 4 Cal.App.4th at p. 908.)
Next, the People contend that, even if admissible, Juror No. 10's statement does not constitute a prima facie showing of good cause because the "juror did not state that there had been a discussion regarding appellant's failure to testify during the deliberations, and his statement should not be interpreted as such." As discussed above, according to counsel's declaration, Juror No. 10 stated that the "entire panel" had found Smith guilty based on Smith's failure to testify. Juror No. 10's statement is thus far more indicative that a prohibited discussion occurred than is the "[w]e need a deterrent" statement that was at issue in Jones. Yet, the Supreme Court suggested that this comment provided a " 'sufficient showing to support a reasonable belief that jury misconduct occurred' [citation]." (Jones, supra, 17 Cal.4th at p. 317.)
Finally, the People assert that "even if there was any discussion regarding [Smith's] failure to testify, it was at most transitory and a comment of wonderment, and although technically misconduct, innocuous." The People base this assertion on the fact that defense counsel was able to contact three other jurors prior to filing the petition to unseal juror identifying information, and had not presented any additional information that suggested that the jury had discussed Smith's failure to testify. We agree with Smith that "respondent has no way of knowing what actually happened during jury deliberations in this case." The fact that defense counsel has been able to conduct a partial investigation into potential jury misconduct does not obviate the need for a hearing on Smith's petition in light of Smith's presentation of evidence sufficient to support a "reasonable belief that jury misconduct occurred." (People v. Carrasco, supra, 163 Cal.App.4th at p. 990.)
Under the reasoning of Perez and Jones, Juror No. 10's statement that the "entire panel" found Smith guilty based on his failure to testify constitutes a prima facie showing of good cause sufficient to warrant further investigation as to "whether the jury discussed the improper subject of [Smith's failure to testify] during deliberations." (Jones, supra, 17 Cal.4th at p. 316.) Accordingly, we conclude that the trial court erred in failing to set the matter for a hearing to determine whether to disclose the juror identifying information pursuant to section 237, subdivision (b).
The trial court did not find that Smith had failed to demonstrate "diligent efforts... to contact the jurors through other means" (People v. Carrasco, supra, 163 Cal.App.4th at p. 990), or that there had been "a showing on the record of facts that establish a compelling interest against disclosure." (§ 237, subd. (b).) Further, the People do not urge that we affirm the trial court's order on these alternate grounds on appeal.
B. The trial court's imposition of an $800 fine was authorized pursuant to Penal Code section 672, but shall be reduced to $720 in accordance with the People's concession on appeal
Smith contends that the trial court's imposition of an $800 fine at sentencing constitutes an unauthorized sentence.
"A sentence is unauthorized 'where it could not lawfully be imposed under any circumstance in the particular case.' " (People v. Andrade (2002) 100 Cal.App.4th 351, 354, citation omitted.) Penal Code section 672 provides, "Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed." Thus, in light of Smith's conviction for a violation of Penal Code section 12020, subdivision (a)(4), the trial court's imposition of the $800 fine was authorized pursuant to Penal Code section 672.
It is undisputed that Penal Code section 12020 does not prescribe a fine.
We reject Smith's claim that Penal Code section 672 did not authorize a fine in this case because the statute authorizes a fine "in addition to the imprisonment prescribed, " and the trial court granted Smith probation. We are aware of no authority that supports such a contention, and Smith cites none. A Penal Code section 672 fine may be imposed for any crime "punishable by imprisonment" in addition to the imprisonment "prescribed" by statute, irrespective of whether a sentence of imprisonment is imposed in a particular case. (Cf. People v. Mauch (2008) 163 Cal.App.4th 669, 676-677 ["[Pen. Code, s]ection 672 authorizes the trial court to impose a fine as additional punishment on every misdemeanor or felony conviction" (italics omitted)]; People v. Breazell (2002) 104 Cal.App.4th 298, 302 ["a fine pursuant to [Pen. Code, ] section 672 can be imposed for any crime punishable by imprisonment"].)
Smith's has forfeited the argument in his reply brief that "it cannot be presumed" that the court imposed a fine pursuant to Penal Code section 672. Smith did not object in the trial court that the court had failed to specify the basis for the fine. Absent an objection, we may "presume the trial court exercised its discretion... to impose a fine pursuant to... [Penal Code] section 672." (People v. Martinez (1998) 65 Cal.App.4th 1511, 1518, fn. 2.) Thus, the sole claim that Smith may raise on appeal is that the court could not lawfully impose such a fine, which is the claim that we address in the text. (People v. Andrade, supra, 100 Cal.App.4th at p. 354 [claim that sentence "could not lawfully be imposed under any circumstance" may be raised at any time].)
With respect to the amount of the fine, the People state on appeal that the trial court likely intended to impose a base fine of $200 pursuant to Penal Code section 672, and various statutory penalty assessments enumerated in the probation report. The People contend that the total fine imposed should have been $720 rather than $800, and concede that the fine should be reduced to $720. In light of the People's concession, we reduce the $800 fine to $720.
C. Proceedings on remand
In People v. Simms (1994) 24 Cal.App.4th 462, disapproved on another ground by Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096, footnote 4, the Court of Appeal held that the proper remedy for a trial court's error in denying disclosure of a juror's identifying information is to vacate the judgment and order a limited remand as follows:
"The trial court's failure to grant Simms's request for Juror Wright's address and telephone number was error but it does not, at least at this point, require a new trial. Instead, we vacate the judgment and remand to the trial court with directions to disclose Juror Wright's telephone number and address to Simms's attorney and, depending upon the results of counsel's investigation and upon his subsequent motions (if any), to take such further action as may be necessary. (People v. Von Villas (1992) 11 Cal.App.4th 175, 258-261; People v. Perez[, supra, 4 Cal.App.4th at pp. 908-909]." (Simms, supra, 24 Cal.App.4th at p. 469.)
(See People v. Gaines (2009) 46 Cal.4th 172, 180 [" ' "[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand" ' " (citations omitted)]; accord Pen. Code, § 1260 [reviewing court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances"].)
In this case, the trial court erred in failing to set a hearing pursuant to section 237, subdivision (b) for the purpose of considering Smith's request for "release of the personal juror identifying information." We conclude that the proper remedy is to conditionally vacate the judgment to allow the court to hold further proceedings in connection with Smith's request, and to conduct any further necessary related proceedings concerning potential juror misconduct.
IV.
DISPOSITION
The trial court's judgment is modified by reducing the $800 fine to $720. As so modified, the judgment is conditionally vacated and the matter is remanded to the trial court. Upon request by Smith on remand, the trial court shall set a hearing pursuant to section 237, subdivision (b) and conduct further proceedings, as necessary. At the conclusion of such further proceedings, the trial court may take whatever further action as thereafter may be necessary, including reinstating the modified judgment, if appropriate.
WE CONCUR: McDONALD, Acting P. J. McINTYRE, J.