People v. Lopez

Filed 6/14/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305783
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089473)
v.
JOE LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill
and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________
Joe Lopez appeals from a judgment entered after a jury
convicted him of murder (Pen. Code, § 187, subd. (a)) and gross
vehicular manslaughter while intoxicated (Id., § 191.5, subd. (a)).
Lopez’s principal contention on appeal is that the trial court
violated his constitutional rights by refusing to provide to counsel
during voir dire the names of prospective jurors, instead referring
to them only by their badge numbers. Lopez also contends the
trial court abused its discretion in denying his request to exclude
his admission in a jail call with his sister that he had killed
someone.
It is a generally accepted practice for trial courts to refer
to jurors by their juror badge numbers during voir dire to protect
the jurors’ privacy. Courts must be careful in utilizing this
practice to make clear to jurors there is a reason for the
procedure other than possible safety concerns relating to the
defendant. The trial court in this case adopted a general practice
of not only identifying prospective jurors by their badge numbers,
but also withholding from the attorneys the jurors’ names out of a
concern the attorneys (or a member of the public or press) would
obtain additional information about the jurors on the Internet or
contact the jurors. In the absence of a compelling need specific to
the case to conceal from the attorneys the names of prospective
jurors, this was an abuse of discretion. The trial court also erred
in advising prospective jurors that the court was referring to
them by numbers in part for security reasons, because jurors
could speculate that Lopez posed a security risk. Although the
trial court abused its discretion in concealing the names of
prospective jurors, on the record here the error was harmless. In
addition, the trial court did not abuse its discretion in denying
defendant’s motion to exclude his admission. We affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
1. The prosecution case
Late at night on August 12, 2017 Sam Edinburgh drove his
Toyota Corolla from a performance he attended toward his home
in Palmdale. At about 12:45 the following morning he called his
daughter to tell her he was pulling over to the side of the freeway
to take a nap.
Sometime between 5:10 and 5:20 a.m., Norma Hernandez
was driving northbound on Route 14 near the Soledad Canyon
exit when she saw a car crash into the back of a car that was
parked on the right-hand lane or edge of the shoulder. The
moving car appeared to be travelling at about 60 to 65 miles per
hour, the same speed Hernandez was driving. Hernandez saw
car parts from the collision going “everywhere,” so she stopped on
the freeway and called 911.
Around the same time, Michael Esplana was driving
northbound on Route 14 when he saw a car in the middle of the
northbound lanes that was “slowly catching on fire.” Esplana
pulled over to the left side of the freeway adjacent to the concrete
divider and called 911. Esplana exited his vehicle and
approached the burning car. Flames emanated from the rear
bumper, then enveloped the entire car. Esplana observed a white
car on the right side of the road against the guard rail.
California Highway Patrol Officer Manuel Ramos and his
partner responded to the scene. By the time they arrived, a
firetruck was there. Officer Ramos observed a car fully engulfed
in flames in the middle of the freeway, and a white Toyota Matrix
on the right side of the road. Lopez was standing next to the
Toyota Matrix. Officer Ramos spoke with Lopez, who smelled of
3
alcohol. Lopez stated he was the driver of the white car, which
his uncle had loaned him, and he confirmed he was in a collision.
Lopez told Officer Ramos that the other vehicle had
“literally stopped in the middle [of the freeway] from nowhere,”
and Lopez “hit it.” Lopez stated he was going more than 60 or 65
miles per hour, but no more than 70. Officer Ramos suggested to
Lopez he must have been going at least 90 miles per hour
because otherwise he would have had time to see the other car, to
which Lopez responded, “No, sir. I was not going 90 miles an
hour.”
California Highway Patrol Officer Omar Sanchez also
responded to the scene and spoke with Lopez.1 Lopez had “red
and watery eyes” and a strong odor of an alcoholic beverage.
Officer Sanchez asked Lopez whether he was driving the Toyota
Matrix, and Lopez responded, “Yes, absolutely.” Lopez said he
was driving about 70 miles per hour in the far right lane when he
saw a “blunt object” appear on the road. Lopez had last
consumed one 12-ounce beer the prior day at noon. Officer
Sanchez administered several field sobriety tests to Lopez, which
Lopez did not perform satisfactorily. Officer Sanchez also had
Lopez blow two times into a preliminary alcohol screening (PAS)
device, at 6:56 and 6:59 a.m. Each time Lopez’s blood alcohol
concentration was recorded at approximately .15 percent. Officer
Sanchez opined based on Lopez’s objective symptoms and the
results of the field sobriety and PAS tests that Lopez had driven
his car under the influence of alcohol and he could not operate his
1 Officers Ramos’s and Sanchez’s interviews of Lopez were
recorded by the “dash cam” mounted on the officers’ patrol cars.
The video and audio recordings from the dash cams were played
for the jury.
4
vehicle with the caution that a sober person would
characteristically exercise. Further, Lopez had made an unsafe
turn in violation of Vehicle Code section 221072 by driving onto
the shoulder, which caused the collision.
Following Lopez’s arrest, his blood was taken by a nurse at
the hospital at 8:00 a.m. Two separate tests of the blood sample
showed Lopez had blood alcohol concentrations of .15 and
.17 percent. Los Angeles County Sheriff’s Department senior
criminalist Isaac Cheney opined that a male weighing 150
pounds with a blood alcohol concentration of .15 to .17 percent
would have had 4.8 to 5.5 standard drinks in his system at the
time of the test. Cheney opined that at blood alcohol levels of .08
and above, “all people are impaired and unsafe to operate a motor
vehicle safely.”
California Highway Patrol Officer Chad Smithson, who
observed and documented the accident scene following the
collision, opined the Toyota Corolla was parked on the right
shoulder, and Lopez’s car “while traveling on the right shoulder
hit it at a high rate of speed, at a direct impact to the rear.”
Upon impact, the Toyota Corolla collided with the guardrail and
spun out, travelling backwards into the middle two lanes of the
roadway. Lopez’s car travelled along the right shoulder and came
to rest against the guardrail.
2 Vehicle Code section 22107 provides, “No person shall turn
a vehicle from a direct course or move right or left upon a
roadway until such movement can be made with reasonable
safety and then only after the giving of an appropriate signal in
the manner provided in this chapter in the event any other
vehicle may be affected by the movement.”
5
On the day of his arrest, Lopez called his sister
Sarah Lopez (Sarah) from jail. The recording of the call was
played for the jury. Lopez stated he had been charged with a
felony and asked Sarah to post bail for his release. He stated he
could pay the bail if he was able to return to work. Lopez added,
“If not, they’re going to throw me in jail . . . . I killed somebody.”
Sarah asked, “Did they die?” Lopez responded, “Yes.”3
2. The defense case
Kurt Weiss, a collision reconstruction specialist, viewed the
accident site and reviewed the evidence gathered by the
California Highway Patrol officers. Weiss explained there was a
“gentle” curve in the freeway before the accident site, and as
drivers approach the area, a hillside on the left blocks the view
until the driver rounds the corner, interfering with the driver’s
ability to see objects in the distance. Weiss estimated a driver
approaching the accident site could see approximately three-
quarters of a mile ahead. Weiss acknowledged on cross-
examination the turn “doesn’t seem overly dangerous to
3 The People also presented testimony from a police officer
describing an April 14, 2015 incident in which Lopez was pulled
over for speeding, did not perform satisfactorily on the field
sobriety tests, and blew into the PAS device two times, recording
blood alcohol levels at approximately .18 percent. Lopez later
pleaded no contest to misdemeanor driving under the influence.
As part of the sentence, Lopez completed a six-month alcohol
education program for people convicted of driving under the
influence of alcohol. According to the director of the program, all
students were advised at least three times that driving under the
influence of alcohol is dangerous, and if they drove under the
influence and killed someone, they could be charged with murder.
6
negotiate,” and the collision was caused by driver error by the
operator of the Toyota Matrix.
B. The Verdict and Sentence
The jury found Lopez guilty on count 1 of murder and on
count 2 of gross vehicular manslaughter while intoxicated. The
trial court sentenced Lopez to 15 years to life in state prison on
count 1 and imposed and stayed the middle term of six years on
count 2 pursuant to Penal Code section 654.
Lopez timely appealed.
DISCUSSION
A. The Trial Court Abused Its Discretion in Concealing the
Names of Prospective Jurors from Counsel, but the Error
Was Harmless
1. Proceedings below
On the first day of trial, before the prospective jurors were
brought into the courtroom, the trial court provided counsel with
a random list of 63 jurors. In response to defense counsel’s
comment that there were no names on the list, the court stated,
“You are not going to get the names . . . . [¶] . . . [¶] . . . You just
get [a] random list without names.” Defense counsel commented,
“This is the first time I have had a list without any names on it.”
The court replied, “I don’t give out names because I have had
attorneys googling, making improper contact with jurors . . . . [¶]
. . . [¶] . . . [M]ost of my colleagues in the building do not give out
the names.”4 Defense counsel stated, “Usually we have names.
We give back the list every day. We are not supposed to take the
4 The trial took place in the San Fernando courthouse.
7
list home. We usually have a list of the names so we have an
idea of the ethnicity of the jurors, have an idea where they come
from.” The court stated, “You are going to get information from
the process, you will get their information, area of residence,
everything else, like I said. And I’m not alone. Most of my
colleagues do not give out the names. If you do felonies, the
names are not given out.” The court explained its practice of
concealing the names of jurors started in 2008 or 2009 when
defense counsel in a case was sitting at counsel table researching
jurors on the Internet. The court later added, “The reason I do
not give out names, this is a murder case. Defendant is facing
life charges. Again, I have had problems in the past. Also, we
have family members here, and I have had people that have been
contacted on [social media] and through other means.”
The next day Lopez’s attorney requested to address the
trial court about its decision to have an anonymous jury. The
court responded that it had made a decision, but it allowed
Lopez’s attorney to make a record. Lopez’s attorney discussed
the factors set forth in United States v. Shryock (9th Cir. 2003)
342 F.3d 948, 971 (Shryock) for having an anonymous jury and
argued the only applicable factor was that defendant faced a life
sentence. Lopez’s attorney asked the court to specify the reasons
why an anonymous jury was necessary. The court explained it
had spoken with two colleagues in the courthouse who did not
give out the names of jurors in murder cases. Further, “in light of
the social media, it is very easy to find jurors, to contact jurors, to
discuss with jurors or find out their background and history,
which is not appropriate because that’s an ex-parte
communication . . . . [¶] . . . And it is my policy not to release the
names because, again, being able to identify them by ethnicity or
background is not an appropriate challenge for cause nor is it
8
appropriate for any reason to excuse a juror based on their
surname or their names.”
The court continued, “I also ask any of the jurors: Do you
recognize any of us before you? Have you ever talked to any of
us, or do you have any information? They will then say, when
they are brought to the jury box, oh I know [defense
counsel]. . . . [¶] . . . The names will not be revealed. The court
finds good cause. The defendant is looking at a life crime. We
have people in the audience that are attending. There was
somebody [from] the newspaper here just the other day . . . taking
notes in the courtroom.”
After the first group of prospective jurors was brought into
the courtroom, the court read the charges and introduced Lopez,
the attorneys, and court staff. The court also read a list of
potential witnesses and asked the jurors whether they knew any
of them. The court advised the jurors that they would be referred
to by the last four digits of their badge numbers, explaining,
“[W]e don’t mean any disrespect, this is to protect your privacy
and your security. And that’s also why we have you wear the
badges . . . throughout the building.” The court explained the
importance of jury duty and that it would be too expensive to
employ professional jurors. The court added that with
professional jurors there would be a “greater chance of graft or
corruption because everybody will know who these jurors are.”
The court made similar introductory remarks when the second
group of prospective jurors was bought into the courtroom.
The court asked the prospective jurors to complete a
questionnaire stating whether the juror (1) drives a motor
vehicle; (2) consumes alcoholic beverages; (3) has been arrested or
convicted of driving under the influence; (4) has been the victim
of a suspected drunk driver; (5) has ever witnessed a person the
9
juror suspected to be driving under the influence; (6) has ever
witnessed a vehicle crash that the juror suspected was caused by
a person driving under the influence; and (7) belonged to a group
or organization that advocates a change in the laws concerning
the consumption of alcoholic beverages or driving under the
influence.5 Once in the courtroom, the prospective jurors stated
their area of residence; marital status; occupation; occupation of
spouse or significant other; number of adult children (and the
children’s residence area and occupation); prior jury experience;
and whether the juror or someone close to the juror was an
attorney, in law enforcement, convicted of a crime, or a victim of
a crime.
2. Governing law
Code of Civil Procedure section 237, subdivision (a)(2),6
provides, “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, . . . consisting of names, addresses,
and telephone numbers, shall be sealed until further order of the
court as provided by this section.” Section 237, subdivision (b),
provides that any person may petition for access to juror records
by filing a petition “supported by a declaration that includes facts
sufficient to establish good cause for the release of the juror’s
5 The court asked the jurors also to respond to the drunk
driving questions with respect to people close to the jurors.
6 Further undesignated statutory references are to the Code
of Civil Procedure.
10
personal identifying information.”7 Subdivision (b) provides
further that the court shall set the matter for a hearing upon the
filing of a petition and supporting declaration establishing “a
prima facie showing of good cause for the release of the personal
juror identifying information,” unless “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.”
(§ 237, subd. (b).)
The requirement that juror identifying information be
sealed upon recording the verdict was part of a 1995 amendment
to section 237 intended “to protect jurors from dangerous,
threatening, or harassing investigations.” (Assem. Com. on
Public Safety, 3d reading analysis of Sen. Bill No. 508 (1995-1996
Reg. Sess.) June 6, 1995, p. 3; see Erickson v. Superior
Court (1997) 55 Cal.App.4th 755, 758, fn. 2 (Erickson).) As the
Erickson court observed, the Attorney General in sponsoring the
bill stated the amendment was “‘necessary because there have
been incidents when a defendant has received information about
the jurors and has harassed or threatened them, by mail, from
prison.’” (Erickson, at p. 758, fn. 2, quoting Assem. Com. on
Public Safety analysis of Sen. Bill No. 508, p. 3.)
Section 237 “does not authorize sealing of juror identifying
information at any stage of a civil action or at any stage of a
7 Section 206, subdivision (g), similarly provides that
following the recording of the jury verdict in a criminal trial, a
defendant or defendant’s counsel may petition the court for access
to personal juror identifying information, including the jurors’
names, addresses, and telephone numbers “for the purpose of
developing a motion for new trial or any other lawful purpose.”
11
criminal action prior to return of [the] jury verdict.” (Erickson,
supra, 55 Cal.App.4th at p. 758; see id. at p. 759 [court policy
mandating sealing of juror identifying information prior to return
of jury verdict, thereby preventing parties, counsel, and others
from having access to the information absent the filing of a
petition, conflicted with section 237 and was “invalid and
unenforceable”]; People v. Phillips (1997) 56 Cal.App.4th 1307,
1309-1310 [section 237’s “postverdict provision cannot be used to
justify the court’s action during voir dire”].) However, the Court
of Appeal in Phillips applied the standard for sealing juror
information postverdict in reviewing the trial court’s decision to
keep the information confidential during voir dire. (Phillips, at
pp. 1309-1310.) As the court explained, “The [trial] court in this
case made no determination that there was a compelling interest
which required identifying information of qualified jurors be kept
confidential. In the absence of that determination, it was
improper for the court to keep this information from the public, or
the parties.” (Ibid.)
The Court of Appeal in People v. Goodwin (1997)
59 Cal.App.4th 1084, 1087 addressed the general practice of
identifying prospective jurors by assigned numbers instead of
their names. The court concluded the practice did not violate the
defendant’s right to a public trial under the Sixth and Fourteenth
Amendments to the United States Constitution because the trial
was open to the public, with the jurors’ faces visible to those in
the courtroom. (Goodwin, at pp. 1092-1093.) In reaching this
conclusion, the court emphasized that the jury was not
anonymous in that the court and counsel had a document with
juror identifying information. (Id. at p. 1092.)
The Supreme Court in People v. Thomas (2012) 53 Cal.4th
771, 787-788 (Thomas) revisited the question raised in Goodwin
12
whether trial courts could properly identify jurors by numbers
instead of names. In Thomas, as in Goodwin, the trial court
provided counsel with the jurors’ names.8 (Thomas, at p. 787.)
The Supreme Court concluded the trial court did not abuse its
discretion in utilizing the procedure of identifying jurors by
numbers because the prosecutor had informed the court that two
witnesses had been threatened and one had been offered a bribe,
and the trial court explained to prospective jurors that numbers
were being used to protect their privacy in light of media interest
in the case, thus minimizing any prejudice to the defendant.9 (Id.
at p. 788.) In reaching this conclusion, the court applied federal
law on the factors relevant to whether a court abuses its
8 The Supreme Court in Thomas, supra, 53 Cal.4th at
page 788 emphasized that because counsel had the names of the
jurors, “the jurors were not completely anonymous.” Most courts
have used the term “anonymous jury,” as do we, to describe a jury
where the members are identified by numbers instead of names
and neither the public nor the attorneys are provided the names
of the jurors. (See, e.g., Erickson, supra, 55 Cal.App.4th at
pp. 757, 758, fn. 2 ; United States v. Harris (7th Cir. 2014)
763 F.3d 881, 886 [distinguishing between an anonymous jury
where the jurors’ names are withheld from the attorneys and a
“confidential jury” where the attorneys are given the jurors’
names but the public is not].)
9 The Thomas court declined to decide whether the Court of
Appeal in People v. Goodwin, supra, 59 Cal.App.4th at page 1089,
had correctly found the procedure of identifying jurors by
numbers for administrative convenience was proper, even absent
a showing of a particular need to protect jurors’ identities.
(Thomas, supra, 53 Cal.4th at p. 787.)
13
discretion in employing an anonymous jury. (Id. at pp. 787-
788.)10
The Thomas court explained that federal courts “recognize
two potential problems with an anonymous jury: (1) jurors may
infer that the defendant is dangerous, thereby implicating the
defendant’s right to a presumption of innocence, and (2) the use
of an anonymous jury may interfere with the defendant’s ability
to conduct voir dire and exercise peremptory challenges.”
(Thomas, supra, 53 Cal.4th at p. 787-788, citing Shryock, supra,342 F.3d at p. 971.) Thus, federal cases have allowed the
empanelment of an anonymous jury only “‘where (1) there are
strong grounds for concluding that it is necessary to enable the
jury to perform its factfinding function, or to ensure juror
protection; and (2) reasonable safeguards are adopted by the trial
court to minimize any risk of infringement upon the fundamental
rights of the accused.’” (Thomas, at p. 788, quoting United States
10 “While we are not bound by decisions of the lower federal
courts, even on federal questions, they are persuasive and
entitled to great weight. [Citation.] Where lower federal
precedents are divided or lacking, state courts must necessarily
make an independent determination of federal law [citation], but
where the decisions of the lower federal courts on a federal
question are ‘both numerous and consistent,’ we should hesitate
to reject their authority.” (Etcheverry v. Tri-Ag Service,
Inc. (2000) 22 Cal.4th 316, 320, disapproved on another ground in
Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 436, fn. 5,
442; accord, Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58; see
People v. Brooks (2017) 3 Cal.5th 1, 90 [“We are not bound by the
decisions of the federal appellate courts, although they may be
considered for their persuasive weight.”].) As we will discuss,
federal decisions on the use of anonymous juries are both
numerous and consistent.
14
v. DeLuca (1st Cir. 1998) 137 F.3d 24, 31 (DeLuca); see United
States v. Portillo (5th Cir. 2020) 969 F.3d 144, 162 (Portillo)
[“Empaneling an anonymous jury ‘is a drastic measure[] which
should be undertaken only in limited and carefully delineated
circumstances.’”]; United States v. Mikhel (9th Cir. 2018)
889 F.3d 1003, 1031 [applying Shryock factors for empanelment
of anonymous jury]; U.S. v. Ramirez-Rivera (1st Cir. 2015)
800 F.3d 1, 35 [“‘empanelment of an anonymous jury should be
recognized as an extraordinary protective device, especially if it
tends to suggest that the jurors may have something to fear from
the accused, thereby conceivably encroaching upon the
presumption of innocence’”]; United States v. Dinkins (4th Cir.
2012) 691 F.3d 358, 372 (Dinkins) [“An anonymous jury is
warranted only when there is strong reason to conclude that the
jury needs protection from interference or harm, or that the
integrity of the jury’s function will be compromised if the jury
does not remain anonymous.”].)
As the Ninth Circuit explained in Shryock, supra, 342 F.3d
at page 971, “[A]nonymous juries may infer that the
dangerousness of those on trial required their anonymity, thereby
implicating defendants’ Fifth Amendment right to a presumption
of innocence. Also, . . . the use of an anonymous jury may
interfere with defendants’ ability to conduct voir dire and to
exercise meaningful peremptory challenges, thereby implicating
defendants’ Sixth Amendment right to an impartial jury. We
nevertheless agree with our sister circuits that the use of
anonymous juries is permissible in limited circumstances.”
The federal courts have identified five factors for courts to
consider in determining whether to empanel an anonymous jury:
“(1) [T]he defendants’ involvement in organized crime, (2) the
defendants’ participation in a group with the capacity to harm
15
jurors, (3) the defendants’ past attempts to interfere with the
judicial process, (4) the potential that, the defendants will suffer
a lengthy incarceration if convicted; and (5) extensive publicity
that could enhance the possibility that jurors’ names would
become public and expose them to intimidation or harassment.”
(Shryock, supra, 342 F.3d at p. 971; accord, Portillo, supra,
969 F.3d at p. 162; Dinkins, supra, 691 F.3d at p. 373.)
“However, this list of factors is not exhaustive, nor does the
presence of any one factor or set of factors automatically compel a
court to empanel an anonymous jury.” (Dinkins, at p. 373; see
Shryock, at p. 971 [“These factors are neither exclusive nor
dispositive, and the district court should make its decision based
on the totality of the circumstances.”].) Federal courts of appeal
review the district court’s decision to empanel an anonymous jury
for an abuse of discretion, as do we. (Portillo, at p. 162; Dinkins,
at p. 371; Shryock, at p. 970-971; see Thomas, supra, 53 Cal.4th
at p. 787 [applying abuse of discretion standard].)
Because the use of an anonymous jury implicates a
defendant’s constitutional rights, we review the erroneous use of
an anonymous jury under the standard established in Chapman
v. California (1967) 386 U.S. 18, 24 of whether the error was
harmless beyond a reasonable doubt. (Phillips, supra,
56 Cal.App.4th at p. 1310 [trial court’s error in using an
anonymous juror was harmless under Chapman because defense
counsel had substantial information about prospective jurors on
which he could evaluate the prospective jurors before exercising
his peremptory challenges]; see People v. Aledamat (2019)
8 Cal.5th 1, 3 [Chapman beyond a reasonable doubt standard
16
applies to federal constitutional error].)11 Under this standard it
is the People’s burden “to show that any federal errors are
harmless beyond a reasonable doubt.” (People v. Jackson (2014)
58 Cal.4th 724, 748; see Chapman, supra, 386 U.S. at p. 24
[“constitutional error, in illegally admitting highly prejudicial
evidence or comments, casts on someone other than the person
prejudiced by it a burden to show that it was harmless”].)
3. The trial court abused its discretion in withholding
the jurors’ names from counsel
Lopez contends the trial court erred in withholding
prospective jurors’ names because there was no good cause for
concealment and the court infringed on Lopez’s rights by advising
the jurors their names were being concealed in part out of a
11 Lopez contends the use of an anonymous jury was
structural error requiring per se reversal because it denied him a
public trial. But as the Goodwin court noted in rejecting this
argument, the voir dire was held in open court, and “[t]he jurors’
faces were visible to anyone who cared to visit the courtroom.
The trial was public in every practical and constitutional sense.”
(People v. Goodwin, supra, 59 Cal.App.4th at p. 1093.) Further,
although use of an anonymous jury implicates a defendant’s right
to a fair trial and due process, the error is capable of being
quantitatively assessed, and thus is not structural error, which
the Supreme Court has described as an error “‘that go[es] to the
very construction of the trial mechanism—a biased judge, total
absence of counsel, [or] the failure of a jury to reach any verdict
on an essential element.’” (People v. Anzalone (2013) 56 Cal.4th
545, 554; see Arizona v. Fulminante (1991) 499 U.S. 279, 309-310
[structural errors, such as absence of an impartial judge or
deprivation of the right to counsel or self-representation at trial,
are those that “affect[] the framework within which the trial
proceeds, rather than simply an error in the trial process itself”].)
17
concern for their security. The People argue the trial court did
not abuse its discretion because it properly considered its own
experience and that of other judges in the building with attorneys
researching juror backgrounds on the Internet, as well as that
Lopez faced a life sentence and a reporter was in the courtroom
the prior day. Lopez has the better argument.
As discussed, section 237, subdivision (a)(2), only
authorizes the sealing of juror identifying information upon the
recording of the jury’s verdict. Even if we apply the standard in
section 237, subdivision (b), for a “compelling interest” against
disclosure at the voir dire stage, the trial court did not make a
finding under this subdivision of a need to “protect[] jurors from
threats or danger of physical harm.” (Ibid.) The facts in this case
are in stark contrast to those in Thomas, supra, 53 Cal.4th at
page 788, in which two witnesses had been threatened and one
had been offered a bribe. Here, there was no evidence of any
danger of physical harm or likely interference with the
prospective jurors if their names were disclosed. Thus, there was
no basis under section 237 to keep the prospective jurors’ names
concealed from counsel. (See Phillips, supra, 56 Cal.App.4th at
pp. 1309-1310 [trial court erred in concealing juror identifying
information during voir dire without making a finding of a
compelling interest requiring the information remain
confidential].)
Further, only one of the five factors applied by Shryock and
other federal courts in reviewing the use of an anonymous jury
was present here—that Lopez faced a lengthy period of
imprisonment (a life sentence). This factor alone does not show
that Lopez posed a risk to jurors, especially given that his
potential life sentence was based on his driving under the
influence, not an act involving physical violence or a gang or
18
other criminal enterprise. Thus, the reasoning underlying this
factor is diminished here—that a mandatory life sentence
“provide[s] a strong inducement to resort to extreme measures in
any effort to influence the outcome of the[] trial.” (DeLuca, supra,
137 F.3d at p. 32.) By contrast, federal courts have upheld the
use of anonymous juries where the defendant faced a life
sentence and the defendant’s background and case-specific
circumstances presented a risk to prospective jurors. (See, e.g.,
Portillo, supra, 969 F.3d at p. 162 [defendants were “‘deeply’”
involved in organized crime; the culture of their criminal group
was to instill fear of reprisal for cooperating witnesses; the
criminal group had a history of encouraging violence against
outsiders; and six of the charges carried life sentences]; Shryock,
supra, 342 F.3d at p. 972 [defendant was involved in “an
extraordinarily violent organized criminal enterprise”; he took
part in several murders, attempted murders, and conspiracies to
commit murder; and he had previously threatened, assaulted,
killed, or attempted to kill potential witnesses in other cases];
DeLuca, at pp. 31-32 [defendants were linked to organized crime,
were involved in prior violent crimes, and attempted to tamper
with witnesses and suborn perjury].)
According to the probation report, Lopez was employed and
had no criminal record other than his prior misdemeanor
conviction for driving under the influence. Nor was there any
evidence he had a gang affiliation or otherwise posed a danger to
the jury. Depriving a defendant of the names of prospective
jurors based simply on the length of the potential sentence in the
absence of other risk factors, as the trial court did here, would
mean all defendants charged with murder would be tried by an
anonymous jury because they would always face a mandatory life
sentence. (See Pen. Code, § 190.)
19
The trial court also improperly relied on its general policy
to use anonymous juries (after consulting with other judges in the
building) based on the ease with which attorneys could use social
media to learn additional information about jurors and
potentially contact them, and the fact 10 years earlier a defense
attorney had researched prospective jurors on the Internet.
These concerns are not based on the actual risk to prospective
jurors in a specific case. (See Dinkins, supra, 691 F.3d at pp. 358,
372 [“The decision to empanel an anonymous jury and to
withhold from the parties biographical information about the
venire members is, in any case, ‘an unusual measure’ [citation],
which must be plainly warranted by the particular situation
presented.”]; United States v. Sanchez (5th Cir. 1996) 74 F.3d
562, 564-565 [trial court abused its discretion in using
anonymous jury in criminal case against police officer based on
generalized concern there could be jury tampering during 10-day
trial recess absent evidence defendant had attempted to interfere
with judicial process or witnesses or posed other risk to jurors].)
Further, as Lopez points out, the court could have
addressed its concern about attorneys using social media to
obtain additional information about jurors and contact them by
admonishing the attorneys, who are officers of the court, to avoid
any contact with the jurors (and avoid invasive research) and, as
defense counsel noted was the practice in other courts, by
requiring the attorneys to leave the juror lists in the courtroom.
The only other finding the court made specific to this case
was that a reporter for a newspaper was in the courtroom the
prior day taking notes. The presence of a lone reporter in the
courtroom does not constitute the type of “extensive publicity” the
federal courts have found supports juror anonymity. (See United
States v. Edwards (5th Cir. 2002) 303 F.3d 606, 614 [“the most
20
important factor in the district court’s analysis . . . was the
intense media interest and highly charged emotional and political
fervor that surrounded the trial” as a result of extortion, fraud,
and money laundering charges against former governor, his son,
and his associates]; Shryock, supra, 342 F.3d at p. 972 [trial
involving Mexican Mafia “could expect to receive extensive
publicity, enhancing the possibility that jurors’ names would
become public and expose them to intimidation and
harassment”]; DeLuca, supra, 137 F.3d at p. 32 [“trial was
prominently and extensively covered by local print and electronic
media . . . to the degree that any public disclosure of the jurors’
identities would have enhanced the practicability, hence the
likelihood, of efforts to harass, intimidate, or harm the jurors”].)12
Finally, the trial court took no precautions to minimize the
risk the jury would perceive Lopez was dangerous. “As to the
presumption of innocence, federal cases have recognized that ‘the
danger that the jury might infer that the need for anonymity was
attributable to the defendant’s character is minimized when the
trial court gives the jurors a plausible and nonprejudicial reason
for hiding their identities.’” (Thomas, supra, 53 Cal.4th at p. 788
[prejudice to defendant was minimized by trial court’s
explanation numbers were used to protect jurors’ privacy in light
of media interest], quoting United States v. Ross (11th Cir. 1994)
33 F.3d 1507, 1520 [district court properly minimized prejudicial
effect on defendant by explaining it used numbers to insulate
jurors from improper communications from either side and was
12 In addition, to the extent the trial court believed there
would be extensive media coverage of the trial, the court could
have ordered disclosure of the jurors’ names to the attorneys but
not the public, to minimize any prejudice to Lopez.
21
not a reflection on the defense]; see Shryock, supra, 342 F.3d at
p. 972 [court minimized prejudice to defendant by instructing the
jury that the reason for their anonymity was to protect their
privacy from “curiosity-seekers”].) Here, the court advised the
prospective jurors they would be identified by the last four digits
of their badge numbers “to protect [their] privacy and [their]
security.” Thus, far from minimizing any risk Lopez posed to the
jury, the court highlighted possible security concerns, although it
did not specifically connect those concerns to Lopez.
4. The erroneous withholding of prospective jurors’
names was harmless
Lopez contends the withholding of the names of prospective
jurors prevented him and his attorney from researching the
background of the jurors to evaluate their qualifications and
determine whether they had concealed any information from the
court that would show bias.13 We recognize there is some
13 Lopez also argues he was denied the ability to discover
possible juror bias from the jurors’ names, pointing to “cultural
associations” between jurors’ names and Lopez’s name, the
“symbolic and social meanings that give [the names] significance
in ways that transcend ethnic identification,” and the ability of
Lopez to use his “intuition” based on a juror’s name to discern the
juror’s bias. But Lopez fails to provide any specifics as to how the
etymology of the jurors’ names would have assisted Lopez in
ferreting out juror bias. Although the jurors’ surnames may have
revealed their ethnicities, as Lopez acknowledges, a juror’s
ethnicity is not a valid basis for a peremptory challenge. (People
v. Armstrong (2019) 6 Cal.5th 735, 765; Batson v. Kentucky (1986)
476 U.S. 79, 97; People v. Wheeler (1978) 22 Cal.3d 258, 276.)
The list of jurors’ names may be important to buttress a
22
potential benefit to a defendant from the ability of his or her
attorney to research the jurors’ backgrounds using their names.
But as the People point out, the trial court elicited a significant
amount of information about each prospective juror, including his
or her area of residence, marital status, employment, family
background, and prior jury experience. The jurors were also
asked to respond to multiple questions eliciting their views and
practices relating to the consumption of alcoholic beverages and
driving under the influence, including whether they belonged to
any organizations that advocated for changes in the law on those
subjects. The court also requested the jurors disclose whether
they knew any of the witnesses in the case. Further, Lopez’s
attorney had an extensive opportunity to inquire into any bias a
juror may have had and to elicit additional information that
could have revealed the juror’s withholding of relevant facts.14
defendant’s challenge to the improper excusal of a juror based on
race or ethnicity, but Lopez does not argue the information was
needed for that purpose here. Nor does Lopez argue that
knowing the jurors’ ethnicities (to the extent it was not
ascertainable from talking to the jurors) would have affected how
he presented his case.
14 Lopez argues the trial court’s explanation to the jury that
the use of professional jurors would create a “greater chance of
graft or corruption” suggested that if jurors’ names were
disclosed, Lopez would attempt to corrupt the jury. Whether or
not a reasonable juror would interpret these comments as
suggesting Lopez would attempt to corrupt the jury (as opposed
to an attempt by the prosecutor, the victim’s family, the media, or
others), the comments were ill advised. Lopez argues these
comments prejudiced him, but any such prejudice did not flow
from the trial court’s use of an anonymous jury. Had the court
23
Thus, the People have met their burden on this record to
show that the trial court’s error in concealing the jurors’ names
from the attorneys did not prejudice Lopez’s ability to obtain
adequate information about the jurors necessary to conduct an
effective voir dire. Further, Lopez has not pointed to any
examples of a juror’s response that suggested the juror was not
forthcoming with his or her answers or any areas of inquiry
Lopez’s attorney was not allowed to explore.15
Although the trial court improperly referred to the need to
protect the jury’s security, the court did not tell the jurors in
what manner their security was at risk (for example, from Lopez
or the public). If anything, by telling the jurors they needed to
wear their badges throughout the courthouse, this suggested the
security risk was from a source other than Lopez. Given the
provided the attorneys the names of the jurors, but identified the
jurors by numbers in the courtroom, the court’s comments would
have had the same effect. Thus, this is not a basis for concluding
the error in using an anonymous jury was prejudicial. And Lopez
does not argue on appeal that his conviction should be reversed
based on the court’s comments about professional juries.
15 If Lopez believed that a juror was concealing information or
providing false answers, he could have moved posttrial under
section 237, subdivision (b), to obtain the names of the jurors and
used that information to show a juror harbored bias, failed to
disclose relevant information, or presented false information to
the court. (See Phillips, supra, 56 Cal.App.4th at p. 1310 [noting
as part of harmless error analysis that defendant failed to seek
disclosure of names of jurors after trial to support his argument
of prejudice].) As in Phillips, Lopez did not seek posttrial
disclosure of the juror names to support his argument of
prejudice.
24
nature of the charges and the absence of any indicia Lopez had a
violent background, there was no other reason for the jury to
suspect Lopez was dangerous. Although Lopez argues the court’s
statement that it was protecting the jurors’ privacy, when
combined with a reference to their security, would cause jurors to
fear Lopez, he does not provide any reason why a statement
about the jurors’ privacy would cause them to think Lopez was
dangerous, as opposed to the more likely explanation that
revealing their names could cause them to be contacted by either
side, the media, or a spectator.
Under these circumstances, the trial court’s error in
withholding prospective jurors’ names was harmless beyond a
reasonable doubt. (See Phillips, supra, 56 Cal.App.4th at p. 1310
[use of anonymous jury was harmless beyond a reasonable doubt
where counsel had substantial information about the prospective
jurors including where they lived; their occupations, families, and
prior jury experience; their knowledge of the witnesses, parties,
or counsel; and whether they had been victims of a crime or
charged with a crime, and defense counsel could have requested
the trial court inquire further of jurors]; People v. Goodwin,
supra, 59 Cal.App.4th at p. 1092 [“any prejudice in the ability to
select a jury [as a result of use of an anonymous jury] is not
assumed but must be established, principally by analysis of the
voir dire”]; United States v. Mansoori (7th Cir. 2002) 304 F.3d
635, 651-652 [use of anonymous jury was harmless error where
there was some basis for concealment of jurors’ names, the trial
judge conducted a ‘searching and thorough’ voir dire, and
defendants did not identify any areas where court’s voir dire was
inadequate].)
25
B. The Admission of Lopez’s Jail Call with His Sister Was Not
an Abuse of Discretion
1. Proceedings below
Lopez filed a motion prior to trial to exclude his jail call
with his sister. In a pretrial hearing, Lopez’s attorney argued the
statement should be excluded because the jury would understand
the statement to mean he was admitting he murdered someone.
Further, the statement was more prejudicial than probative
because Lopez likely learned that Edinburgh died from the police
officer, not from personal knowledge. The prosecutor responded
that the statement was admissible as a statement against penal
interest16 and it showed Lopez was the driver of the vehicle that
caused the collision. The trial court denied Lopez’s motion, ruling
the statement was relevant to prove the identity of the driver and
therefore “clearly goes to something that is relevant to the
charges . . . .”
2. The trial court did not abuse its discretion
Lopez contends the trial court abused its discretion in
admitting the jail call because Lopez’s admission that he was the
driver was cumulative to other evidence and the call was more
16 Evidence Code section 1230 provides, “Evidence of a
statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and the statement, when
made, was so far contrary to the declarant’s pecuniary or
proprietary interest, or so far subjected him to the risk of civil or
criminal liability, . . . that a reasonable man in his position would
not have made the statement unless he believed it to be true.”
26
prejudicial than probative. The trial court did not abuse its
discretion.
“‘Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.”’” (People v.
Hardy (2018) 5 Cal.5th 56, 87 (Hardy); accord, People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 822.) “‘The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ (Evid. Code, § 352.)” (Hardy, at p. 87;
accord, People v. Bell (2019) 7 Cal.5th 70, 105 (Bell).) Evidence
“may have a lower probative value if it is merely cumulative of
other evidence [citations] and there is a substantial danger of
confusing or misleading the jury or a substantial danger of
necessitating an undue consumption of time.” (People v. Holford
(2012) 203 Cal.App.4th 155, 178, fn. 14; see People v. Pride (1992)
3 Cal.4th 195, 235 [under section 352 “a trial court has broad
discretion to exclude evidence it deems irrelevant, cumulative, or
unduly prejudicial or time-consuming”]; People v. Hendrix (2013)
214 Cal.App.4th 216, 244 [in determining probative value of
evidence, “courts also look to whether the evidence . . . is
cumulative”].)
“‘[T]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. “[A]ll evidence which tends
to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is ‘prejudicial.’ The
‘prejudice’ referred to in Evidence Code section 352 applies to
27
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.”’ (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
Bell, supra, 7 Cal.5th at p. 105 [“‘“Evidence is not prejudicial, as
that term is used in [the Evidence Code] section 352 context,
merely because it undermines the opponent’s position or shores
up that of the proponent.”’”].) “‘[T]he trial court is vested with
wide discretion in determining relevance and in weighing the
prejudicial effect of proffered evidence against its probative value.
Its rulings will not be overturned on appeal absent an abuse of
that discretion.’” (Hardy, supra, 5 Cal.5th at p. 87; accord, Bell,
at p. 105.)
Lopez argues there was significant evidence other than the
jail call showing he was driving the Toyota Matrix. Lopez’s uncle
testified he loaned the Toyota Matrix to Lopez shortly before the
accident, and Lopez admitted to Officer Ramos the car belonged
to his uncle and was a “loaner.” Lopez told Officer Ramos the
other car was stopped in the middle of the freeway and he “hit it.”
When Deputy Sanchez asked Lopez if he was driving the Toyota
Matrix, Lopez responded, “Yes, absolutely.” Thus, we agree with
Lopez that the probative value of his admission to show he was
the driver of the Toyota Matrix was minimal. However, the
prejudicial effect of the statement was also minimal. As the
People point out, Lopez did not admit he had committed murder,
only that he had caused the death of Edinburgh by colliding with
Edinburgh’s car. The central issue at trial was not whether
Lopez caused the collision, but whether he acted with implied
malice in that the natural and probable consequences of his
driving under the influence of alcohol were dangerous to human
life, Lopez knew at the time of the collision his act of driving
under the influence was dangerous to human life, and he
28
deliberately acted with conscious disregard for human life. (See
CALCRIM No. 520.) Lopez argues his statement that he had
killed someone was made in the context of a conversation with
Sarah about posting bail, which made him seem callous as to the
death of Edinburgh. But it is not reasonable to believe Lopez’s
statement to Sarah explaining he was in custody because he
killed someone would confuse or mislead the jury to think he was
indifferent at the time of the collision to whether his driving
would cause the death of Edinburgh. On these facts, the trial
court did not abuse its discretion in admitting the jail call. (Bell,
supra, 7 Cal.5th at p. 105; Hardy, supra, 5 Cal.5th at p. 87.)
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
29