People v. Sussman CA4/1 ( 2024 )

Filed 10/29/24 P. v. Sussman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081163
Plaintiff and Respondent,
v. (Super. Ct. No. SCD284910)
NANCY SUSSMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David L. Berry, Judge. Affirmed.
Heather E. Shallenberger and Cliff Dean Schneider, under
appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Melissa A. Mandel, Stephanie H. Chow, and Joseph C. Anagnos,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Nancy Sussman appeals from her criminal threat conviction, (Pen.
Code,1 § 422), contending insufficient evidence supported the charge, and the
trial court erred by not instructing the jury on an attempted criminal threat
as a lesser included offense. She additionally argues the trial court erred in
denying her posttrial motion to unseal juror identifying information so she
could investigate potential juror misconduct. We disagree with her
assertions and affirm the conviction.2
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2011 or 2012, Sussman, along with her son and daughter, moved to a
house on Lomond Drive in San Diego, across the street from Alfonso Martinez
and his wife. The homes are about 30 feet apart. Martinez’s house has an
eight-camera surveillance system.
Within two months of the move, friction developed between the new
neighbors, with Martinez complaining to Sussman about her son’s behavior.
Over time, the conflict between them escalated.
1 Further undesignated statutory references are to the Penal Code.
2 Sussman moved to augment the record with documents taken from San
Diego Superior Court case No. SCD283989. The court dismissed that matter
for failure by the People to file timely the information. The criminal case
underlying this appeal, San Diego Superior Court case No. SCD284910, is a
refile of case No. SCD283989. The requested documents are not relevant to
Sussman’s assertions of error. Therefore, we deny the motion to either
augment the record with the identified materials or take judicial notice of
them.
2
In 2013, Martinez believed Sussman’s son ordered his friend to slash
Martinez’s car’s tires, so he sought a civil restraining order against Sussman
and her son. The court granted Martinez’s request against Sussman’s son,
but not against Sussman.
During the next three years, Martinez called the police when he
perceived Sussman’s son violated the restraining order. As a result, Sussman
believed Martinez did everything he could to get her and her son in trouble,
and she contemplated moving.
In December 2016, during a physical fight between Martinez and
Sussman’s son Sussman asked the police to arrest Martinez, but they did not.
Due to this fight, Sussman tried to buy a gun but was only allowed to obtain
a gun permit. While at the gun shop, Sussman made statements which three
police officers in the shop overheard and interpreted as threatening to
Martinez. The police notified Martinez, who sought and obtained a
three-year civil restraining order against Sussman, which the court granted
in February 2017.
In December 2018, while Sussman and her children were in Borrego
Springs, Sussman found her son dead. The cause of death was accidental,3
but Sussman believed Martinez was indirectly involved. The loss of her son
caused Sussman to develop severe posttraumatic stress disorder. Martinez
knew Sussman was devastated about her son’s death.
In July 2019, Martinez’s surveillance video caught Sussman placing
caterpillars on Martinez’s truck. Within days of this incident, Sussman gave
3 At a sentencing hearing in October 2022, when Sussman was
represented by counsel, her attorney told the court that Sussman’s son died of
a drug overdose.
3
Martinez the middle finger. Martinez reported both violations of the 2017
restraining order to the police.
On October 28, 2019, at approximately 7:50 a.m., Martinez escorted his
wife to her car, as was typical due to Sussman’s behavior. That morning,
Sussman stood at the end of her driveway and said, “ ‘Good morning,
assholes.’ ” Martinez’s wife saw Sussman give her the middle finger as she
drove away.
After Martinez’s wife left, Martinez told Sussman: “ ‘You’re violating
the restraining order again. I’m going to call the police.’ ” Sussman
responded: “ ‘Fuck you. Fuck you. You are the reason that my son is dead.’ ”
Martinez replied with something to the effect of, “ ‘No.’ . . . ‘[Y]ou are the
reason that your son is dead. He was your son, and it was your
responsibility.’ ” Martinez further stated, “[Y]ou’re the one that . . . gave him
money to buy drugs.” Sussman then told Martinez, “ ‘That’s okay because all
of you are going to die.’ ” He responded, “ ‘I’m going to call the police and tell
them you are violating the restraining order and you are threatening us over
here.’ ” Sussman began walking across the street toward Martinez. She
appeared very angry and upset. She said: “ ‘I’m going to kill you, your wife,
and your kids.’ ”4 Sussman flung liquid from a cup in her hand at Martinez,
but it did not hit him. Martinez told Sussman: “ ‘I’m going to call the cops.
You’re going to go to jail.’ ” Martinez returned to his home and did not
further engage with Sussman.
When Martinez left his home around 8:15 a.m., he noticed feces on the
windshield of his truck. He checked his surveillance footage, which showed
4 At the preliminary hearing Martinez stated that Sussman told him,
“ ‘you’re going to die, your wife is going to die, and your kids are going to
die.’ ”
4
Sussman placing the feces on his windshield. He removed the feces with a
pooper-scooper. He left the pooper-scooper in front of his house because he
planned to call the police later and he wanted it as evidence. He drove to a
medical appointment.
When he returned home, Martinez watched surveillance footage
captured by his security cameras. Martinez saw that at approximately
9:55 a.m., Sussman approached the gate leading to Martinez’s backyard, but
it was locked. One minute later, Sussman checked to see if Martinez’s garage
door and front door would open. They were locked. Undeterred, Sussman
replaced small lights, inside pumpkin decorations on Martinez’s front porch,
with the feces she had earlier placed on the truck’s windshield.
The surveillance footage also revealed Sussman returned to Martinez’s
property at approximately 11:07 a.m. She walked towards Martinez’s front
door. Then, she walked behind Martinez’s shed, where there was a wire to
one of Martinez’s surveillance cameras. Around that time, that camera
stopped recording. Sussman emerged from behind the shed carrying a large
knife. Martinez later observed a cut wire on the camera. As Sussman left
Martinez’s property, she moved the knife from behind her back to under her
blouse. Instead of crossing the street as she normally did, she walked along
the sidewalk on Martinez’s side of the street before returning home.
Based on what he observed, Martinez called the police department’s
nonemergency number to file a report against Sussman for violating the
restraining order and threatening him and his family. When a police officer
arrived at Martinez’s home, Martinez informed the officer about Sussman’s
threats. The officer observed the feces, the cut wire behind the shed, and the
surveillance footage. The officer arrested Sussman.
5
About two months later, Martinez and his wife moved because the
incident scared them. They felt they had done everything they could to
protect themselves, but nothing was working. They returned two years later
because the property is their family home, and they felt sufficient time had
passed for the conflict with Sussman to diffuse.
A complaint filed in January 2020 charged Sussman with making a
criminal threat, (§ 422; count 1); stalking with court order in effect, (§ 646.9,
subd. (b); count 2); attempted burglary, (§§ 459, 664; count 3); vandalism,
(§ 594, subd. (a)(b)(2)(A); count 4); and disobeying a court order, (§ 166,
subd. (a)(4); count 5). The attempted burglary count was dismissed after the
preliminary hearing.
At trial, the court admitted into evidence the surveillance footage from
October 28, 2019. Martinez testified that Sussman’s threat “[a]bsolutely”
placed him in fear. He explained: “I know Ms. Sussman. I know she’s
capable of this. And more than myself, it was for my family: my wife and my
kids.” He also explained he did not call the police immediately after his
encounter with Sussman on October 28 because he had a doctor’s
appointment. In between the time Sussman threatened him and him going
to his physician, Sussman had only thrown liquid at him and placed feces on
his truck. He did not know about her other behavior. Further, the police had
advised him to call the nonemergency number unless there was an
emergency in the moment.
When Sussman took the stand, she denied she committed the crimes.
She claimed not to know the 2017 restraining order was still in effect on
October 28, 2019. She testified Martinez came to her house and said to her:
“ ‘Is [your son] dead, Nancy? Oh, he’s going to burn in hell. Did he get
boogered up the ass?’ ” Sussman stated Martinez then said things about her
6
“that were totally inappropriate.” She went inside her home and cried.
Martinez’s comments “really upset” her. It took a while for her to stop
shaking and to get on with her day. The next thing she remembered was the
police arresting her. She claimed not to remember anything else that
transpired that day. She admitted to having memory problems due to her
posttraumatic stress disorder. She denied committing the activity caught on
surveillance video but acknowledged the figure in the video clips looked like
her. She believed Martinez staged and doctored the video clips.
The jury found Sussman guilty on all four counts. Sussman timely
appealed.
III. DISCUSSION
A. Sufficient Evidence Supports the Criminal Threat Conviction
1. Standard of Review
When a defendant challenges the sufficiency of the evidence supporting
a conviction, “ ‘ “we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th
719, 780.) We presume “ ‘ “in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” ’ ” (Ibid.)
“Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)
7
2. Section 422: Criminal Threat
A section 422 charge has five elements: “(1) [ ] the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily
injury to another person,’ (2) [ ] the defendant made the threat ‘with the
specific intent that the statement . . . is to be taken as a threat, even if there
is no intent of actually carrying it out,’ (3) [ ] the threat . . . was ‘on its face
and under the circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened,
a gravity of purpose and an immediate prospect of execution of the threat,’
(4) [ ] the threat actually caused the person threatened ‘to be in sustained
fear for his or her own safety or for his or her immediate family’s safety,’ and
(5) [ ] the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227–228 (Toledo).)
Sussman contends insufficient evidence supports a conviction for criminal
threats because her alleged threat lacked the requisite immediacy (element
three, above), and did not actually place Martinez in sustained fear (element
four, above).5 We disagree.
5 Sussman also contends, for the first time in her reply brief, that the
criminal threat verdict violates her due process rights under the federal
Constitution because the conviction was based on insufficient evidence of
every element of the offense. This contention is belated and unaccompanied
by a showing of good cause for the delay. It is therefore forfeited. (People v.
Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3.) Even if it were not forfeited,
the contention lacks merit. As we explain, substantial evidence supports
Sussman’s criminal threat conviction.
8
3. Sussman’s Threat Was Unequivocal, Unconditional, Immediate,
and Specific
Section 422 targets “ ‘a specific and narrow class of communication,’
and ‘the expression of an intent to inflict serious evil upon another person.’ ”
(People v. Wilson (2010) 186 Cal.App.4th 789, 805 (Wilson).) The statute was
not enacted to punish emotional outbursts, angry utterances, or ranting
soliloquies, however violent. (Ibid.) “ ‘A threat is sufficiently specific [to
support a criminal threat conviction] where it threatens death or great bodily
injury. A threat is not insufficient simply because it does “not communicate a
time or precise manner of execution, section 422 does not require those
details to be expressed.” ’ ” (Id. at p. 806.)
“ ‘[U]nequivocality, unconditionality, immediacy and specificity are
not absolutely mandated, but must be sufficiently present in the threat
and surrounding circumstances to convey gravity of purpose and
immediate prospect of execution to the victim.’ ” (Bolin, supra, 18 Cal.4th
at p. 340.) “Thus, the third element’s four enumerated statutory
elements—unequivocality, unconditionality, immediacy and specificity—are
“ ‘simply the factors to be considered in determining whether a threat,
considered together with its surrounding circumstances, conveys those
impressions to the victim.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807.)
These circumstances include the parties’ history, the defendant’s
mannerisms, affect, and actions involved in making the threat, and the
defendant’s subsequent actions. (See People v. Solis (2001) 90 Cal.App.4th
1002, 1013–1014 (Solis).)
Sussman argues her purported threat was nothing more than an angry
utterance and emotional outburst, a response to Martinez’s insensitive
comments about her son. However, Sussman told Martinez, “ ‘[A]ll of you are
going to die.’ ” She also said, either “ ‘I’m going to kill you, your wife, and
9
your kids,’ ” or “ ‘you’re going to die, your wife is going to die, and your kids
are going to die.’ ” Her words were unequivocal and specific and clearly
expressed a threat to inflict death or great bodily injury to Martinez and his
family. (See Wilson, supra, 186 Cal.App.4th at pp. 805–806.)
Moreover, Martinez and Sussman had a long history of conflict.
Sussman made what appeared to be threats to Martinez’s life while trying to
purchase a gun. After hearing about them, Martinez obtained a restraining
order to protect himself. In addition, Sussman admitted she was very angry
and upset when she made the comments. Further, after Sussman threatened
Martinez, she threw liquid at him, put feces on his truck, and went to his
home twice—first trying to enter the property and later carrying a large knife
while walking around outside his house. Sussman’s conduct gives credibility
to the threats. She did not just say she was going to kill Martinez and his
family. She behaved in a way that demonstrated she was prepared to carry
out her threats. Here, the surrounding circumstances confirm Sussman’s
statements unequivocally conveyed an immediate threat to Martinez and his
family. (See Solis, supra, 90 Cal.App.4th at pp. 1013–1014.)
We conclude there is substantial evidence in the record to support a
finding that Sussman’s threat met the immediate and specific nature
required in the third element of section 422.
4. Martinez Was in Actual, Sustained Fear
Section 422 “requires proof of a mental element in the victim[,]” that is,
the victim must actually be in sustained fear. (People v. Allen (1995)
33 Cal.App.4th 1149, 1156; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140
10
(Ricky T.).)6 Courts have interpreted sustained fear to mean “a period of
time that extends beyond what is momentary, fleeting, or transitory.” (Allen,
at p. 1156; accord, Ricky T., at p. 1140 [fear must last “beyond the moments
of the encounter”].) Sustained fear relates to how long the victim actually
experienced fear after being threatened. (See Allen, at p. 1156; Ricky T., at
p. 1140.)
The parties agree Martinez did not initially display fear after Sussman
threatened him because he went to a doctor’s appointment, never called his
wife, and called the police hours later. The delay is understandable in the
context in which it occurred. Immediately after the threat, Sussman only
threw liquid at him and put feces on his truck. But after returning home
from his appointment, Martinez reviewed the surveillance footage and
realized Sussman went further and intruded on his property. He promptly
responded to that information by calling the police.
Sussman suggests the analysis stops there, but we must consider more
than just Martinez’s initial actions. Martinez testified Sussman’s threat
“[a]bsolutely” placed him in fear. He explained: “I know Ms. Sussman. I
know she’s capable of this.” He felt such sustained fear that two months
after the incident he and his wife moved out of their house. The reasonable
conclusion is that Martinez felt fear throughout the two months after the
incident.
Sussman argues Martinez’s move does not show that he suffered from
sustained fear because he rented his home and returned after two years. She
contends if Martinez experienced sustained fear, then he would have sold his
6 The threat must also “be such that would cause a reasonable person to
fear for the safety of himself or his family.” (People v. Thornton (1992)
3 Cal.App.4th 419, 424.) Sussman does not raise this issue on appeal. Even
if she had, we would find sufficient evidence supports that conclusion.
11
home and never returned. We find this argument unpersuasive. Martinez
explained he wanted to return to his family property and believed two years
was sufficient time for the issues with Sussman to calm down. The jury’s
verdict demonstrates they found Martinez’s explanations credible. We do not
reweigh the evidence or substitute our judgment for that of the trier of fact.
(People v. Palma (1995) 40 Cal.App.4th 1559, 1567.)
We find substantial evidence in the record to support a finding that
Sussman’s threat placed Martinez in sustained fear.
B. No Error from the Court Not Instructing on the Lesser Included Offense
of Attempted Criminal Threat
Sussman next contends the trial court erred by failing to sua sponte
instruct the jury on the lesser included offense of attempted criminal threat.
Sussman argues substantial evidence supported a finding that her statement
was not a real threat, and/or that Martinez did not suffer from sustained
fear.
1. Standard of Review
“We review de novo a trial court’s failure to instruct on a lesser
included offense . . . and in doing so we view the evidence in the light most
favorable to the defendant.” (People v. Millbrook (2014) 222 Cal.App.4th
1122, 1137, citation omitted.) A trial court, even without request, “must
instruct the jury on lesser included offenses of the charged crime if
substantial evidence supports the conclusion that the defendant committed
the lesser included offense and not the greater offense.” (People v. Gonzalez
(2018) 5 Cal.5th 186, 196.) However, the requirement for such an instruction
is only triggered when evidence of “ ‘the lesser offense is “substantial enough
to merit consideration” by the jury.’ ” (People v. Taylor (2010) 48 Cal.4th
12574, 623.) “In this context, substantial evidence is evidence from which
reasonable jurors could conclude ‘ “that the lesser offense, but not the greater,
was committed.” ’ ” (People v. Medina (2007) 41 Cal.4th 685, 700 (Medina).)
2. Analysis
Attempted criminal threat is a lesser included offense of criminal
threat. (See Toledo, supra, 26 Cal.4th at pp. 226, 230.) A person commits the
crime of attempted criminal threat by taking all the steps necessary to
perpetrate the completed crime, yet the crime is not completed. (Id. at
p. 231.) An attempted criminal threat may occur where a threat is not made
directly to the intended recipient and is intercepted or for any reason fails to
reach the intended victim. (Ibid.) It may also occur where a sufficient threat
is made with the requisite intent directly to the intended victim, who for
whatever reason is unafraid. (Ibid.) Here, the obligation to instruct on
attempted criminal threat would arise only if substantial enough evidence
existed from which a reasonable jury could conclude Sussman’s statement to
Martinez did not constitute a real threat or Sussman’s statement did not
cause Martinez to experience sustained fear. (See ibid.)
First, Sussman only makes passing reference in her opening brief
that the evidence did not show her statement was a real threat. The People
note Sussman failed to develop her argument, and we agree and find
Sussman failed to carry her burden. (See County of Sacramento v. Lackner
(1979) 97 Cal.App.3d 576, 591.) Further, she now claims her statements
merely reflected her emotions. However, both her specific words and
subsequent conduct undermine this contention. Even if we view her
statements in a light most favorable to her (People v. Millbrook, supra,222 Cal.App.4th at p. 1137), her words threatened death to Martinez and his
family. (See Wilson, supra, 186 Cal.App.4th at pp. 805–806.) And as
13
discussed, her subsequent actions give credibility to her threats; after she
threatened Martinez, Sussman threw liquid at him, placed feces on his
truck, and trespassed twice on his property, one time with a knife and cut
the electrical connection to a surveillance camera. (See Solis, supra,90 Cal.App.4th at pp. 1013–1014.) This record provides a reasonable jury
sufficient evidence to conclude Sussman’s statements were real, not hollow,
threats. (See Medina, supra, 41 Cal.4th at p. 700.)
Second, Sussman contends Martinez’s actions after she threatened him
show he was not in sustained fear. Perhaps a rational jury could conclude
Sussman’s statement did not initially put Martinez in fear because he went
to a doctor’s appointment, did not call his wife, and did not call the police
until hours later. However, the inquiry does not end there. Sustained fear
is the experience of fear beyond the moments of the encounter, which, as
we previously detailed, is supported by the record. (See Ricky T., supra,
87 Cal.App.4th at p. 1140.) The facts most favorable to Sussman indicate
only that there was no immediate fear because Martinez waited to complain.
But the facts still indicate Martinez became very concerned about the risk to
him and his family after viewing Sussman’s disturbing actions captured on
the surveillance video. And even after Sussman was arrested, Martinez still
moved away.
Therefore, there is not sufficient evidence “substantial enough to merit
consideration” from which reasonable jurors could conclude Sussman’s
actions and statements amounted to an attempted criminal threat instead of
a completed act.7 (People v. Taylor, supra, 48 Cal.4th at p. 623; see also
7 Because we find no error, we do not address whether there was
prejudice.
14
Medina, supra, 41 Cal.4th at p. 700.) Indeed, the evidence presented
overwhelmingly supported that Sussman committed a completed violation of
section 422.
C. Denial of Sussman’s Motion to Unseal Juror Identifying Information
Sussman’s final contention is that the trial court erred in denying her
posttrial motion to obtain personal identifying information about the jurors
so she could investigate possible juror misconduct.
1. Additional Background
During voir dire, juror number 48 disclosed she used to work for the
trial judge’s father. She stated that fact would not affect her ability to be
impartial. Neither the People nor Sussman sought to remove juror number 4
for cause and neither party used a peremptory challenge to excuse her. Juror
number 4 served as the foreperson of the jury.
On June 23, 2022, at the scheduled sentencing hearing in this case, the
court disclosed that after trial juror number 4 emailed the judge’s sister. The
court read into the record the relevant portions of juror number 4’s
communication:
I wanted to share something with you that I don’t know if I
was allowed to share with your brother David. I just
finished a case in his courtroom today, and when we were
in deliberations, this is what was said about Judge Berry
from different jurors.
. . . One, he was so patient and kind to everyone. Two, he
always made sure we understood what was happening.
8 Although this juror is identified as juror number 5 during voir dire, the
court and all further court proceedings identify this person as juror number
4. We do as well.
15
Three, I appreciated him letting us stand up and stretch,
smiling face emoji. And four, he had total control of
courtroom and quick to rein it in if things got too far. Five,
I was mad at the defendant because she didn’t respect him;
that really bothered me.
After reading the email aloud, the judge stated that he did not find
anything unusual or improper about the specific comments. Sussman placed
her disagreement on the record. She argued the juror’s negative comment
about her, coupled with the fact that she represented herself at trial, may
have improperly influenced the juror’s decision. The court explained the
comment was shared by juror number 4, but not made by juror number 4.
The court also reminded Sussman that the jurors were advised not to let the
conduct of the parties influence their decision. No further discussion about
the issue took place at that hearing.
In September 2022, Sussman filed a motion to unseal juror personal
identifying information.9 Since it was unclear which juror made the
comment, Sussman requested the identifying information for all jurors to
determine whether the jury considered Sussman’s behavior as counsel or her
demeanor as a witness in reaching its verdict. Sussman argued a jury cannot
base any part of its verdict on the behavior or statements of counsel, so if the
jury considered her behavior as counsel in reaching a verdict, that would be
unlawful. Sussman acknowledged that if the jury considered her behavior
only while she testified as a witness in reaching its verdict, that would be
lawful. The People opposed Sussman’s motion.
After reviewing the briefs and hearing argument, the court denied
Sussman’s motion. It found no facts supported a reasonable belief that a
9 In June 2022, the Office of the Public Defender took over representing
Sussman.
16
juror did not follow the law. It also found there was no showing this juror’s
view affected his or her verdict. It further found, as Sussman acknowledged,
a juror could lawfully express this view of Sussman’s attitude when she
testified as a witness. The trial court further found it unlikely juror bias
caused the verdict: “The evidence against [Sussman] was significant.
There’s videotape of her doing everything pretty much that she’s charged
with. . . . Her behavior is clear, and the evidence was essentially
overwhelming. It was significant evidence as to all of her conduct.”
The court went further, finding that it was more likely than not the
juror’s comment related to Sussman’s behavior as a witness, rather than as
an attorney. This is because Sussman represented herself very well
throughout the trial. The time when someone would have found disrespect
would have been when Sussman testified because the court had to remind
her several times to focus her testimony on relevant issues, and Sussman
expressed displeasure at the court in these instances. The court concluded
Sussman did not make a prima facie showing to support a reasonable belief
that juror misconduct occurred.
2. Rules Regarding Disclosure of Juror Identifying Information
Code of Civil Procedure sections 206 and 237 govern the disclosure of
juror personal identifying information in a criminal trial. After the court
records the jury’s verdict, it must seal the “record of personal juror
identifying information,” including “names, addresses, and telephone
numbers.” (Id., § 237, subd. (a)(2).) A criminal defendant may “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.”
(Id., § 206, subd. (g).) “The petition shall be supported by a declaration that
17
includes facts sufficient to establish good cause for the release of the juror’s
personal identifying information.” (Id., § 237, subd. (b).)
To demonstrate good cause, a defendant must state “ ‘a sufficient
showing to support a reasonable belief that jury misconduct occurred.’ ”
(People v. Cook (2015) 236 Cal.App.4th 341, 345 (Cook).) “Good cause does
not exist where the allegations of jury misconduct are speculative, conclusory,
vague, or unsupported.” (Id. at p. 346.) The defendant does not need to
introduce admissible evidence establishing that juror misconduct occurred,
but he or she must convince the court “that talking to the jurors is reasonably
likely to produce admissible evidence of juror misconduct.” (People v.
Johnson (2013) 222 Cal.App.4th 486, 493 (Johnson).) Accordingly, the
applicable standard of proof in these settings is whether the defendant
showed sufficient evidence to support a reasonable belief that juror
misconduct occurred. (See Cook, at pp. 345–346.)
Relevant here, subdivision (a) of Evidence Code section 1150 limits the
type of evidence that may be used to attack the validity of a jury’s verdict:
“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.”
Evidence Code section 1150 therefore “distinguishes ‘between proof of
overt acts, objectively ascertainable, and proof of the subjective reasoning
processes of the individual juror, which can be neither corroborated nor
disproved . . . .’ [Citation.] ‘This limitation prevents one juror from upsetting
18
a verdict of the whole jury by impugning his own or his fellow jurors’ mental
processes or reasons for assent or dissent. The only improper influences that
may be proved under [Evidence Code] section 1150 to impeach a verdict,
therefore, are those open to sight, hearing, and the other senses and thus
subject to corroboration.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
Thus, a statement made in the jury room may be admissible under Evidence
Code section 1150 if the statement itself constitutes misconduct, but not
where the statement merely reflects mental processes. (Johnson, supra,222 Cal.App.4th at pp. 494–495.) Statements of bias or prejudice fall into
the former category. (Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th
778, 787–788 (Grobeson).)
We review a denial of a petition for disclosure of juror personal
identifying information for an abuse of discretion. (People v. Jones (1998)
17 Cal.4th 279, 317.) Under this standard, the trial court’s decision may only
be reversed if it “was so erroneous that it ‘falls outside the bounds of reason.’
[Citation.] A merely debatable ruling cannot be deemed an abuse of
discretion. [Citations.] An abuse of discretion will be ‘established by “a
showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ”
(People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 390 (Bryant).)
3. Analysis
Sussman contends the following statement by a juror during
deliberations established the requisite prima facie showing of good cause: “I
was mad at the defendant because she didn’t respect [the judge]; that really
bothered me.” Sussman argues this statement shows that at least one juror
was biased against her as a defendant and/or a self-represented litigant, and
this bias affected the verdict.
19
Although a statement of bias may be admissible evidence of juror
misconduct under Evidence Code section 1150 (see Johnson, supra,222 Cal.App.4th at pp. 494–495; Grobeson, supra, 190 Cal.App.4th at
pp. 787–788), the statement here does not meet that standard. The juror said
he or she was mad at Sussman because Sussman did not respect the judge.
There is nothing in this statement that suggests the juror did not follow the
law. Nor does the statement suggest the juror’s view of Sussman’s attitude
affected his or her verdict. Therefore, Sussman’s argument that the
statement constitutes juror misconduct is speculative. There is no good cause
shown when the allegations of jury misconduct are based on speculation.
(See Cook, supra, 236 Cal.App.4th at p. 346.)
In addition, as Sussman acknowledges, a juror can evaluate a witness’s
behavior while testifying. (See CALCRIM No. 226.) Because Sussman
testified on her own behalf, her attitudes and behaviors in the courtroom
could properly influence a juror’s view of her credibility. (See ibid.) And the
juror’s statement could simply reflect that.
Moreover, as discussed, there was substantial evidence against
Sussman such that it was highly unlikely juror bias caused the verdict. The
trial court found the evidence against Sussman was significant and
overwhelming. We see no abuse of discretion. A reasonable person could
reach the same conclusion regarding guilt as the jurors, especially
considering the surveillance footage. (See Bryant, supra, 60 Cal.4th at
p. 390.)
Sussman also argues the court applied an improper standard of proof in
determining whether good cause existed because the court used a “more
likely than not” standard to deny her motion. However, the record reflects
the court applied the correct standard of proof. It determined whether
20
Sussman showed sufficient evidence to support a reasonable belief that juror
misconduct occurred. (See Cook, supra, 236 Cal.App.4th at pp. 345–346.)
After determining Sussman did not make the required showing, the
court went further. It stated it was more likely than not the juror’s
statement referred to Sussman’s behavior as a witness. As the trial court
observed, and as we noted previously, when Sussman testified as a witness,
she expressed displeasure when the court reminded her several times to limit
her testimony to relevant issues. A reasonable person could view Sussman’s
expressions of displeasure in these instances as being disrespectful to the
judge. (See Bryant, supra, 60 Cal.4th at p. 390.)
For these reasons, the trial court did not abuse its discretion by
concluding Sussman failed to make a sufficient showing to support a
reasonable belief that jury misconduct occurred.10
IV. DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
10 Because we find no error, we do not address whether there was
prejudice.
21