PEOPLE v. SCOTT

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. George SCOTT, Defendant and Appellant.

No. B075451.

Decided: June 24, 1994

William L. Heyman, Thousand Oaks, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Susan D. Martynec, Supervising Deputy Atty. Gen., and Lisa J. Brault, Deputy Atty. Gen., for plaintiff and respondent.

Appellant George Scott was convicted by a jury of second degree robbery (Pen.Code, § 211) and vehicular grand theft (Pen.Code, § 487h, subd. (a)).  In a separate court trial, it was found that he had suffered a prior serious felony conviction (Pen.Code, § 667, subd. (a)).  He was sentenced to 10 years in state prison.

He contends that he cannot be convicted of both the grand theft and the robbery;  that the trial court erred in denying his trial counsel's request for the names and telephone numbers of the jurors in order to investigate possible juror misconduct;  and that the court erred in instructing the jury with CALJIC No. 2.90, on reasonable doubt.

We vacate the judgment and remand with directions to the trial court to disclose the jurors' addresses and telephone numbers to defense counsel and to take such action as may thereafter become necessary.

FACTS

On November 23, 1992, Sophronia Low and Audrey Vierra went to Chinatown to shop.   Low parked her white Oldsmobile on Yale Street.   At approximately 3 p.m., the two women returned to the car and placed their purchases and purses in the car.   As Low was getting into the car, appellant came up behind her and said, “I have a gun.   Give me your keys.”   Low raised her hand to keep appellant from getting her keys, but he grabbed them out of her hand.   She began to scream and noticed that his right hand was hidden underneath his shirt.   Vierra looked over the car and after observing appellant for one to two minutes, began running down the street.   Appellant shoved Low aside, got into the car and started it.   Low opened the door and tried to reach for her keys.   Appellant shoved Low again, and when she fell to the ground, drove off.

Low and Vierra then went to a nearby police station and reported the incident.

Several days later, Low's car was observed parked in Chinatown.   Appellant soon got into the car, and the police pursued it.   After a short chase, appellant abruptly stopped the car in an alley and got out.   Los Angeles Police Officer Thomas Burris pursued appellant on foot.   He lost sight of him, but two other officers discovered appellant a short distance away, hiding in some bushes.   He was dressed as Officer Burris had described to them.

The car was later recovered in a parking garage, but the two women's belongings were missing.   Vierra identified appellant at a photographic lineup and at trial.

Appellant presented no affirmative defense.

DISCUSSION

1. The court erred in denying defense counsel's posttrial request for the juror's telephone numbers and addresses.

Two days after the jury retired for deliberations, three jurors sent a note to the court, referring to an “unreasonable” juror named Barbara.   The note suggested that Barbara be replaced by an alternate.   After the court reinstructed the jurors about their duty to deliberate, a second note was received from the foreperson, to the effect that one of the jurors was not cooperating.

At the request of defense counsel, the court requested a response from Juror No. 11, Barbara L.   She returned a note indicating that she had been mistreated, threatened and shouted at, and claimed that the foreperson had lied to the court.

After extensive discussion, counsel for both parties indicated they would like to excuse Barbara L. and replace her with an alternate.   The court did so, and admonished the jury to begin deliberating anew and to set aside all past deliberations.   One-half hour after the jury retired to the jury room, they reached their verdicts.   The jury was excused and admonished that they were free to discuss the case with the attorneys if they wished.

Five days later, following appellant's court trial on the priors, defense counsel requested that her investigator be provided the names and telephone numbers of the jurors in order to investigate the possibility of juror misconduct.

The court denied that request, indicating, “in the appropriate case, the court could and would and [had] released [the juror's names and telephone numbers] in certain cases,” but there was no good cause to do so in this case.   It stated, “Balancing all the interests of the conflicting parties here, I'm going to find that there is no sufficient cause to invade the privacy rights of the jury and the sanctity of the deliberation process.”

Code of Civil Procedure section 237, enacted in 1992, provides that at the conclusion of a criminal trial, the court may, “upon a juror's request, motion of counsel, or on its own motion, order that all or part of the court's record of personal juror identifying information be conditionally sealed upon finding that a compelling governmental interest warrants this action.   For purposes of this section, ‘compelling governmental interest’ includes, but is not limited to, protecting jurors from physical harm or the threat of physical harm.   Any person may petition the court for access to these records and, in the absence of an express finding of continuing risk, the records shall be made available.  [¶] (c) The court may limit access to records sealed under subdivision (b) to the defendant, the defendant's counsel, or the defendant's investigator for the purpose of developing issues of appeal or for any other lawful purpose.   The court may require agreement that the defendant, defendant's counsel, or defendant's investigator not divulge jurors' identities or identifying information to others.”  (Emphasis added.)

Code of Civil Procedure section 206, subdivision (f), added in 1992, provides that:  “Notwithstanding Section 237, a defendant or defendant's counsel may, following final adjudication of a criminal proceeding, request that the court provide personal juror information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing issues on appeal or any other lawful purpose.   This information may include jurors' names, addresses, and telephone numbers.  [¶] Pursuant to this subdivision, the court shall provide the information requested to the defendant's counsel or any agent of the defendant's counsel, but may limit dissemination as provided under subdivision (c) of Section 237.”  (Emphasis added.)

In a case decided just prior to the enactment of section 206, subdivision (f), and section 237, the Third District Court of Appeal held that before a defendant was entitled to discovery of jurors' names and addresses, there must be a preliminary showing of possible juror misconduct.   (People v. Rhodes (1989) 212 Cal.App.3d 541, 551–554, 261 Cal.Rptr. 1.)   The Rhodes court traced the development of the law regarding juror privacy and weighed the competing policies of promoting free and open discussion among jurors free from the fear of harassment or invasion of privacy, against the strong public interest in ascertainment of the truth in judicial proceedings.   (Id. at pp. 548–549, 261 Cal.Rptr. 1.)   The court held:  “There is an appropriate middle ground which can harmonize and satisfy the competing societal interests discussed above.   We conclude that, upon timely motion, counsel for a convicted defendant is entitled to [personal information about the jurors] if the defendant sets forth 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.”  (Id. at pp. 551–552, 261 Cal.Rptr. 1.)

Appellant urges that the mandatory language of section 206, subdivision (f) abrogates the Rhodes requirement of a preliminary showing of possible juror misconduct, and that under the newly enacted statute, a court is required to give such information upon request, subject only to limits on dissemination.

We have reviewed the legislative history of section 206, subdivision (f) (Stats.1992, ch. 971, § 2, S.B. 1299), and find appellant's contention well-taken.

According to the analysis by the Assembly Committee on Public Safety, Senate Bill No. 1299 provided for the enactment of Code of Civil Procedure section 237 and the addition of subdivision (f) to section 206 “to protect the lives and safety of jurors in criminal proceedings.”   Concern had arisen from a case in which a defendant hired a public investigator to ascertain the addresses and telephone numbers of the jurors who convicted him.   The investigator had obtained unlisted phone numbers through public records.   The bill was written to provide the following safeguards:  (1) prohibiting a defendant not represented by counsel from contacting jurors without the court's permission;  (2) making it a criminal offense to threaten a juror;  (3) making it a criminal offense to provide a defendant with information with which the defendant can contact a juror without court authorization, and a private investigator's license may be suspended or revoked for this offense;  (4) allowing a court to seal the identifying records of jurors;  and (5) making it a criminal offense to access, disclose or solicit to access or disclose, sealed juror information.

The bill clearly was aimed at overzealous defendants and private investigators who seek out personal information about jurors without the court's knowledge or permission, thereby making jurors easy targets for harassment.   The language of the new subdivision (f) to Code of Civil Procedure section 206 specifically provides that the trial court may limit dissemination of juror information to the defendant, defendant's counsel, or the defendant's investigator, and may require an agreement not to divulge that information to others.   However, the language, “the court shall provide the information requested to the defendant's counsel or any agent of the defendant's counsel” clearly provides that the information must be given, and holds counsel accountable.

Here, defense counsel sought authority from the trial court, as required, and specifically indicated that she would not permit the dissemination of the information to anyone else besides the public defender investigator.   Notwithstanding the stipulation to excuse Barbara L., defense counsel's request was not an unwarranted one, given the import of the jurors' notes and the fact that only one half hour after the juror was replaced, the newly constituted jury reached a verdict.   Moreover, because of the content of the notes, we cannot conclude that the error of the trial court was harmless.   The right of a fair and impartial jury is of such constitutional magnitude that given the nature of the information contained in the notes, we cannot say that replacement of the juror may have cured any misconduct.   In fact, it may have brought the misconduct to fruition.

We note that although the bill's sponsors felt that Senate Bill No. 1299 would “provide stronger safeguards for the jury system and enhance protection of those citizens who serve as jurors,” the result here is less protection than that afforded previously.   The test enunciated in People v. Rhodes, supra, 212 Cal.App.3d at pages 551–552, 261 Cal.Rptr. 1, makes it much more difficult to obtain personal juror information, but that test is rendered obsolete by Senate Bill No. 1299.1

 Given the mandatory language of subdivision (f) of Code of Civil Procedure section 206, and because we have found the error to be harmful, the question is how to remedy the situation.

The obvious purpose counsel would have in interviewing the jury is to determine if a motion for new trial should be pursued.   In a criminal action, an application for new trial must be made and ruled upon before judgment is rendered.  (Pen.Code, § 1182.)   At this stage, judgment has already been rendered.   Therefore, in order to preserve the right of defendant to move for a new trial, it is necessary for us to vacate the judgment, allow counsel for defendant to have the information requested, and place the case in the same procedural posture that existed when the request was denied.

We are not reversing the judgment for purposes of a new trial at this time (Pen.Code, § 1262), but leave to the trial court the same options it had before it at the time it denied the original request for juror information.   If defendant obtains the information and convinces the trial court that a new trial should be ordered, the trial court has that option.   If defendant chooses not to move for a new trial, or the trial court decides that a new trial is not appropriate, the trial court may then resentence defendant.

2. Dismissal of grand theft conviction and CALJIC No. 2.90.**

DISPOSITION

The judgment is vacated.   The matter is remanded to the trial court with directions to disclose the juror information requested to defense counsel and to take such further action as thereafter may be necessary.

I concur in the judgment, but disagree with the majority's conclusion that the last sentence of Code of Civil Procedure section 206 mandates disclosure of jurors' names, addresses, and telephone numbers upon request.   (The same construction was advanced, in dictum, in Part C of the decision in People v. Simms (1994) 24 Cal.App.4th 462, 29 Cal.Rptr.2d 436.)

The last sentence of section 206 instead means:  “Although the preceding sentence says the request can be made by the defendant personally, if the court grants the request it must not give the jurors' names, addresses, or telephone numbers to the defendant;  that information shall be given only to defense counsel (or to counsel's investigator), with a possible restriction on further dissemination.”

The majority's construction is undeniably a more straightforward reading of the words of the statute.   The statutory phrasing, however, also can readily bear my interpretation, which comports better with the purpose of sections 206 and 237.

The word “shall” usually makes an act mandatory.   In other contexts, though, especially when followed by the word “only,” “shall” is instead a term of limitation.   In the last sentence of section 206, “shall” is used in the latter sense.

The penultimate sentence of section 206 refers to a request by defendant or his counsel.   The final sentence, in contrast, refers to defense counsel or defense counsel's agent.   The distinction was intentional.   Understood in this context, the last sentence tells us merely to whom—not whether—disclosure shall be made.

Similarly, a mandatory-disclosure construction would render superfluous the reference, earlier in subdivision (f), to disclosure “for the purpose of developing issues on appeal or any other lawful purpose.”   This phrase indicates a legislative intent to require that the defendant show good cause for disclosure.

Of the two constructions which section 206 is capable of bearing, the court should embrace the one which is consistent with the declared statutory purpose to protect the lives and safety of jurors who serve in criminal cases.   Disclosure upon demand is so completely inconsistent with the protective nature of subdivisions (a) through (d) that one would have expected the Legislature to use much clearer language to mandate disclosure.   The legislative counsel's digest, quoted in Simms, is just the usual paraphrase of the statutory wording.

Disclosure of juror addresses and telephone numbers is a sensitive issue, implicating important competing interests.  (People v. Rhodes (1989) 212 Cal.App.3d 541, 548, 261 Cal.Rptr. 1.)   It is hard to believe that by a single ambiguously placed “shall,” our Legislature announced its decision that the interest of defendants in exploring for evidence of juror misconduct outweighs the interest of jurors in their privacy and security.   It should be unnecessary to add that this would be an uncharacteristic legislative decision in the current political climate.

Under subdivision (a), the jurors are assured in every criminal case that the court's contempt power will be used to protect them from unconsented or overly intrusive post-verdict contacts.   If mandatory disclosure is the rule, every trial judge should add, “If the defendant asks, I will give your names, addresses, and telephone numbers to his attorney.”   The jurors will find this admonition, following on the heels of the subdivision (a) assurances, both puzzling and alarming.

Most jurors are greatly concerned about their privacy.   We must anticipate that the public will soon learn that a defendant is entitled to the names, addresses, and telephone numbers of the jurors if they vote to convict him.   (The public is likely to overlook the subtle consolation that this information is given only to his lawyer.)   This knowledge will impair both the willingness of citizens to serve on juries and the impartiality of those who do serve.   A mandatory-disclosure rule gives a new, personally threatening meaning to the standard instruction requiring jurors to reach a just verdict “regardless of the consequences.”

Finally, if disclosure is mandatory, any defense attorney who fails to obtain and use a jury list after every guilty verdict will be accused of incompetence.   This will have an enormous and disruptive impact on trial court proceedings, appeals, and collateral petitions.

In sum, it is impossible to believe the Legislature enacted subdivision (f) for the purpose of requiring disclosure upon request.   We should rule that subdivision (f) leaves undisturbed the Rhodes rule that the court should provide the defense with information needed to contact jurors only for good cause shown.   Such a construction is consistent with the statutory language and the legislative intent.

In the present case, good cause was shown, and so I join in the majority's decision that the trial court should have ordered disclosure.   The possible waiver in consenting to replacement of the recalcitrant juror does not preclude disclosure, because the waiver question can be resolved after the facts are developed.

FOOTNOTES

1.   In this regard, we share the concerns expressed by our colleague in the concurring opinion.   However, we hope the defense bar will be sufficiently circumspect not to seek such information unless it may be appropriate under the circumstances of a specific case.

FOOTNOTE.   See footnote *, ante.

HASTINGS, Associate Justice.

CHARLES S. VOGEL, Acting P.J., concurs.