People v. Diaz

Filed 4/14/2015
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B256050
(Super. Ct. No. MA025998)
Plaintiff and Respondent, (Los Angeles County)
v.
CARLOS DIAZ,
Defendant and Appellant.
Carlos Diaz purports to appeal from an order denying his post-judgment
petition to access confidential juror identifying information seven years after his murder
conviction. (Code Civ. Proc., § 237, subd. (b).) His petition is based on a juror
misconduct claim that we rejected on appellant's 2008 appeal. (B203878.) We dismiss
the appeal because the petition was untimely and the denial order does not affect
appellant's "substantial rights" within the meaning of Penal Code section 1237,
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subdivision (b). Appellant has no constitutional or statutory right to "two bites of the
appellate apple."
Procedural History
In 2003, appellant shot and killed rival gang member, Francisco Lopez-
Reynaga. After the shooting, appellant ran to Rudy Vargas's home, a gang safe house,
and disposed of the firearm.
In 2007 appellant was convicted by jury of second degree murder (Pen.
Code, §§ 187, subd. (a), 189) with findings that he committed the murder for the benefit
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All statutory references are to the Penal Code unless otherwise stated.
of a criminal street gang (§ 186.22, subd. (b)(1)) and personally used and discharged a
firearm causing death (§ 12022.53, subds. (b) - (d)). The trial court denied a motion for
new trial, and sentenced appellant to 15 years to life state prison plus 25 years to life on
the firearm enhancement.
In the 2008 appeal, appellant cited three incidents of juror misconduct which were
the subject of his motion for new trial. After a gang expert testified, Juror No. 1 asked
whether "we, as jurors, need to be worried about our safety because of possible gang
retaliation?" The juror was admonished that safety concerns could not affect her
deliberations. She said that she could remain impartial. At another point in the trial, a
Hispanic man approached Alternate Juror No. 2 and tried to discuss the case. Concerned
about her safety, Alternate Juror No. 2 reported the matter to the trial court. There was
no possibility of misconduct because the alternate juror did not deliberate. (See e.g.,
People v. Navarette (2003) 30 Cal.4th 458, 488.) The third incident occurred during
deliberations. Juror No. 2 submitted a note that Juror No. 12 "made a comment yesterday
about [how] he knew that the Vargas family was sitting in the courtroom." Some of
appellant's trial witnesses were members of the Vargas family. Juror No. 12 was
admonished and questioned outside the presence of the other jurors. He denied knowing
anyone involved in the case and said that Juror No. 2 took his comment out of context.
Appellant's trial attorney conceded that the people in the courtroom were "all family
members" and the family resemblance was obvious.
Affirming the judgment of conviction, we concluded there was no juror
bias or misconduct and that the jurors were properly questioned and admonished. We
further concluded that the alleged juror misconduct, if any, was trifling and did not deny
appellant a fair trial. (People v. Diaz (Dec. 23, 2008, B203878) [nonpub. Op.].) After
the California Supreme Court denied review on March 18, 2009 (S169989), appellant
filed a petition for writ of habeas corpus in federal court that was denied.
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Late Petition for Juror Identifying Information
In 2014, six years after the conviction, appellant filed a petition to access
confidential juror identifying information. (Code Civ. Proc., § 237, subd. (b).) The
petition stated that appellant wanted to contact the jurors to investigate juror bias and
misconduct as a possible basis for habeas corpus relief. The trial court questioned
whether the petition was timely but elected to address the petition on the merits. Denying
the petition, it found that it was "a fishing expedition" and that appellant had not made a
good cause showing for the release of confidential juror identifying information. (See
e.g., People v. Wilson (1996) 43 Cal.App.4th 839, 852 [speculation on how jury arrived
at its verdict does not establish good cause for release of juror contact information].)
Timeliness
Code of Civil Procedure section 237 requires, in a criminal case, that
personal juror identifying information of trial jurors be sealed after the verdict is
recorded. (Code Civ. Proc., § 237, subd. (a)(2).) Any person may petition the court for
access to the records but the petition must be supported by a declaration that includes
facts sufficient to establish good cause for the release of the juror personal identifying
information. (Code Civ. Proc., § 237, subd. (b).)
Code of Civil Procedure section 206, subdivision (g) provides in pertinent
part: "Pursuant to Section 237, a defendant or defendant's counsel may, following the
recording of a jury's verdict in a criminal proceeding, petition the court for access to
personal juror identifying information within the court's records necessary for the
defendant to communicate with jurors for the purpose of developing a motion for new
trial or any other lawful purpose. . . The court shall consider all requests for personal
juror identifying information pursuant to Section 237." (Italics added.)
Code of Civil Procedure section 237 does not contain an express time
requirement but there is "an implied timeliness requirement, albeit only a limited one."
(People v. Johnson (2013) 222 Cal.App.4th 486, 497-498.)
In People v. Duran (1996) 50 Cal.App.4th 103, defendant filed a new trial
motion based on jury misconduct. At the hearing on the motion, defendant orally
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requested the names and addresses of the jurors. The trial court denied the request as
untimely. (Id., at p. 110.) The Court of Appeal affirmed because Code of Civil
Procedure section 206 requires that juror information be sought for a "lawful purpose"
and defendant show due diligence in making the request. (Id., at p. 122-123.) The court
ruled that defendant could have requested the juror personal identifying information
when he first learned of possible misconduct, approximately six weeks before the motion
for new trial. (Id., at p. 122.) "Since [defendant] failed to show he exercised due
diligence in pursuing this claim, there was no basis for continuing the hearing on the
motion for new trial [and] there was no longer a lawful purpose to be served by releasing
this information." (Id., at p. 123.)
Like People v. Duran, supra, the instant petition is untimely, fails to show
due diligence, and fails to make a prima facie showing that release of the juror identifying
information is for a lawful purpose. (Code Civ. Proc., § 206, subd. (g).) The same
purported juror misconduct was investigated at trial, was the subject of a motion for new
trial, and was reviewed in the 2008 appeal. At the hearing on the instant petition,
appellant's new attorney stated that if the court released the juror information "I [will] be
able to determine whether [juror misconduct] could even be a valid issue to bring on a
habeas petition." The trial court found that it was a "fishing expedition" and noted that
the juror misconduct claim was rejected both at trial and on appeal. It would have been
an abuse of discretion for the court to grant the petition six years after the conviction and
appeal. (See e.g., People v. Avila (2006) 38 Cal.4th 491, 604; In re Waltreus (1965) 62
Cal.2d 218, 225 [habeas corpus petition barred where same issue raised and rejected on
appeal].)
Our Supreme Court has warned that petitions to access confidential juror
records " 'should not be used as a "fishing expedition" to search for possible
misconduct. . .' " (People v. Avila, supra, 38 Cal.4th at p. 604.) Absent a showing of
good cause for the release of confidential juror identifying information, the pubic interest
in the integrity of the jury system and the jurors' right to privacy outweighs the
defendant's interest in disclosure. (Ibid.; Townsel v. Superior Court (1999) 20 Cal.4th
41084, 1096.) Although appellant had a right to an impartial jury, there is no fundamental
right under Code of Civil Procedure section 237 to access personal juror identifying
information six years after the conviction. (Id., at p. 1092 [criminal defendant has no
guaranty of posttrial access to jurors].) "No one disputes the fundamental nature of the
right to an impartial jury. . . . [Appellant, however,] is seeking to extend that concept
beyond the time of the verdict to a point at which all agree jurors are free to go about
their business without being required to discuss deliberations with anyone." (People v.
Santos (2007) 147 Cal.App.4th 965, 979.)
Appealability
It is settled that the right of appeal is statutory and that an order is not
appealable unless expressly made so by statute. (People v. Mazurette (2001) 24 Cal.4th
789, 792.) Here the appeal is purportedly founded on section 1237 which provides that
"[a]n appeal may be taken by a defendant: [¶] . . . (b) From any order after judgment,
affecting the substantial rights of the party." But there is no authority that the post-
judgment order denying a petition for the release of confidential juror identifying
information is appealable.
In his opening brief, appellant states that he is "not arguing that the
requested information [concerns] a substantive right. . . ." There is no constitutional right
to an appeal. (Abney v. United States (1977) 431 U.S. 651, 656 [52 L.Ed.2d 651, 657-
658] [right to appeal "is purely a creature of statute"].) "Although section 1237,
subdivision (b), literally permits an appeal from any postjudgment order that affects
the 'substantial rights' of the defendant, the right to appeal is limited by the qualification
that . . . 'an order ordinarily is not appealable when the appeal would merely bypass or
duplicate [an] appeal from the judgment itself.' [ Citation.]" (People v. Totari (2002) 28
Cal.4th 876, 882.) If the rule were otherwise, a convicted defendant could bring serial
appeals based on the bald assertion that former counsel did not thoroughly explore a juror
misconduct issue at trial or in the first appeal.
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Conclusion
Where, as here, a Code of Civil Procedure section 237 motion to release
personal juror identifying information is made after conviction, sentence, and affirmance
on appeal, the petition is untimely. The superior court should not rule on the merits of
such a petition. Where the superior court elects to rule on the merits of the petition, and
denies relief, the order is not an appealable order affecting appellant's substantial rights.
(§ 1237, subd. (b); People v. Howerton (1953) 40 Cal.2d 217, 220; compare People v.
Loper (2015) 60Cal.4th 1155, 1161, fn 3.)
Appellant's judgment of conviction was affirmed in 2008 and has long
since become final. "[T]here is something to be said for the sanctity of final judgments."
(In re Kinnamon (2005) 133 Cal.App.4th 316, 325; see also In re Harris (1993) 5 Cal.4th
813, 831.)
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Lisa Chung , Judge
Superior Court County of Los Angeles
______________________________
Orly Ahrony, Chris Blaylock, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Roberta L.
Davis, Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
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