Filed 5/12/15 P. v. Sandoval CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B254512

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA126752)
         v.

MANUEL FIGUEROA SANDOVAL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Laura R. Walton, Judge. Affirmed.


         Matthew Alger, under appointment by the Court of Appeal; Falangetti &
Weimortiz and Anthony J. Falangetti for Defendant and Appellant. [Retained.]


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James Williams Bilderback II
and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       The Los Angeles County District Attorney filed an information charging Manuel
Figueroa Sandoval (Sandoval) with second degree murder of Rodrigo Alvarez (Alvarez)
(Pen. Code, § 187, subd. (a);1 count 1), possession of a firearm by a felon with two prior
convictions (§ 29800, subd. (a)(1); count 2), and unlawful firearm activity (§ 29805;
count 3). It was alleged that in committing the murder, Sandoval personally used and
intentionally discharged a firearm that caused great bodily injury and death. (§ 12022.53,
subds. (b)-(d).) A jury found Sandoval guilty on all counts, and found the firearm
allegations to be true. The trial court sentenced Sandoval to 40 years to life, comprised of
the following terms: for count 1, 15 years to life plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d); for count 2, a consecutive eight
months, stayed pursuant to section 654; for count 3, a consecutive eight months, stayed
pursuant to section 654. Sandoval was credited for 475 days of presentence custody.
       Sandoval appeals on two grounds: (1) the trial court erred when it admitted
evidence that Sandoval’s girlfriend, Brianna Ray (Ray), was caught by police with
38.3 grams of heroin three days after Sandoval stole a large quantity of heroin from
Alvarez; and (2) the trial court erred when it refused to disclose personal juror identifying
information so he could investigate juror misconduct.
       We find no error and affirm.
                                          FACTS
Prosecution Evidence
       Background
       Sandoval lived in the City of Lake Elsinore. Sometimes his mother, Guadelia
Sandoval (Guadelia), would lend him her green Jeep Grand Cherokee (Cherokee). He
was friends with Alvarez and Juan Salmoran (Salmoran). In addition, Sandoval was
acquainted with Peter Grbic (Grbic), who also lived in Lake Elsinore. At the relevant
times, Sandoval was dating Ray.



1
       All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
       The Murder; the Aftermath
       On the night of January 20, 2013, Sandoval, Ray, Grbic and Grbic’s pregnant
girlfriend drove from Lake Elsinore to Alvarez’s house in the City of Lynwood in the
Cherokee. Ray was the driver. Salmoran went to the same location, where he saw
Sandoval sitting in the front passenger seat of the Cherokee. Salmoran thought he saw
two other people in the Cherokee with Sandoval. Sandoval greeted Salmoran, and they
conversed while waiting for Alvarez. Five or 10 minutes later, Alvarez arrived and
greeted Salmoran. The three of them then went into Alvarez’s garage.
       Alvarez and Salmoran weighed a large amount of heroin—worth approximately
$4,000 to $5,000—and placed it in baggies, which were on a table. Sandoval pulled out a
wad of money and started counting it. Salmoran bent down briefly to pick up something,
and heard a gunshot. When he looked up, Alvarez said, “Ay,” and put both hands on his
chest. Sandoval pointed a weapon at Salmoran, who fell to his knees and raised his
hands. Alvarez lifted his shirt and pulled a gun from his waistband. Sandoval and
Alvarez started shooting, hitting each other with bullets. Alvarez fell. Sandoval
stumbled backward. While Alvarez was on the ground, Sandoval said, “Fuck you,
motherfucker,” and shot Alvarez twice more. Sandoval grabbed the baggies of heroin
and left.
       Sandoval went back to the Cherokee and told his companions that he had been
shot. Ray drove them away from the house and eventually dropped Sandoval off in the
City of Paramount.
       After he was dropped off, Sandoval flagged down two deputy sheriffs in a patrol
vehicle. Sandoval had gunshot wounds to his chest and right torso. When asked where
he came from or what he was doing there, Sandoval did not provide any answers. He
claimed to have been shot in Lake Elsinore or Santa Ana by some Black or Hispanic
men. He was transported to the hospital and treated for three through and through
gunshot wounds.




                                            3
       Salmoran’s Statement at the Scene; Initial Investigation; Ballistics
       Deputy Gary Butts of the Los Angeles County Sheriff’s Department and his
partner responded to the scene of the shooting. They found Alvarez lying dead inside the
garage. He had multiple gunshot wounds, and a silver .38-caliber revolver was
underneath his left arm near a pool of blood. The investigation revealed that the weapon
belonged to Alvarez.
       Salmoran told the deputies about the shooting. However, to avoid incriminating
Alvarez in a drug sale, Salmoran said that Sandoval owed Alvarez money and had met
with him to pay the debt.
       When homicide detectives arrived, they found a small bindle of black tar heroin
next to a trailer in the driveway, and some blood outside the garage. In the garage, they
found spent shell casings and bullet fragments that had been fired from the same .40-
caliber Glock semiautomatic pistol. Alvarez’s revolver had six fired shell casings in the
chambers.
       Ballistics evidence showed that the two guns had been fired in opposite directions.
Also, the .38-caliber rounds had been fired at an upward angle, and the .40-caliber rounds
had been fired at a downward angle.
       Return of the Cherokee to Guadelia
       The day after the shooting, someone gave Guadelia the keys to the Cherokee and
said Sandoval had been shot. When she looked in the Cherokee, she saw blood in the
backseat. She found about $1,100 cash in a bag on the ground about four feet from the
Cherokee. About a week later, she washed the blood out of the Cherokee.
       Sandoval’s Phone Call
       Salmoran called the investigating detectives and told them that Sandoval had gone
to Alvarez’s house to purchase drugs.
       Ray’s Possession of Black Tar Heroin
       On January 23, 2013, a deputy from the Riverside County Sheriff’s Department
found Ray passed out in her Camaro in Lake Elsinore with heroin paraphernalia in her



                                             4
lap. She was in possession of 38.3 grams of black tar heroin, which had a street value of
$50 to $100 a gram depending on the grade and other factors.
                                        DISCUSSION
I. Evidence of Ray’s Possession of Black Tar Heroin.
         Sandoval claims that he is entitled to a reversal because the trial court committed
evidentiary error and denied him a fair trial when it admitted evidence of Ray’s
possession of 38.3 grams of black tar heroin. Upon review, we conclude that there was
no abuse of discretion (People v. Dixon (2007) 153 Cal.App.4th 985, 996), and that
Sandoval’s fair trial claim is moot.
         A. Relevant Proceedings Below.
         During an Evidence Code section 402 hearing, the prosecutor said that he wished
to call the deputy who found Ray in her Camaro. He argued that this testimony would
corroborate Salmoran’s testimony that Sandoval had fled the scene of the shooting with a
large amount of heroin. Defense counsel objected, arguing that there was no evidence
that the large quantity of heroin possessed by Ray was the same large quantity of heroin
that Sandoval had allegedly stolen from Alvarez three days earlier. Also, defense counsel
argued that the prejudicial nature of the evidence outweighed any possible probative
value.
         The trial court ruled in favor of the prosecution, finding that the evidence was
relevant to motive as well as Salmoran’s credibility.
         B. No Evidentiary Error.
         According to Sandoval, the challenged evidence should have been excluded
because it did not give rise to a reasonable inference that Ray possessed black tar heroin
that had been taken from Alvarez by Sandoval.
         To address this argument, we must utilize a two-step inquiry. First, was the
evidence relevant? Second, should it have been excluded under Evidence Code section
352 because the prejudice outweighed the probative value? (Evid. Code, § 210; People v.
Scheid (1997) 16 Cal.4th 1, 13 (Scheid).)



                                               5
       The evidence showed that Ray drove Sandoval to Alvarez’s house in the
Cherokee. Also, Salmoran testified that Sandoval shot Alvarez and took a large quantity
of heroin, Grbic testified that Ray dropped Sandoval off in the City of Paramount,
Guadelia testified that the Cherokee was returned to her in Lake Elsinore, and that she
found about $1,100 near the Cherokee. In the context of this evidence, the testimony of
the Riverside County deputy sheriff that he found Ray in Lake Elsinore in possession of
38.3 grams of black tar heroin tended “‘“logically, naturally, and by reasonable
inference”’” (Scheid, supra, 16 Cal.4th at p. 13) to prove the source of the black tar
heroin, i.e., that it was the heroin stolen by Sandoval from Alvarez. This evidence tended
to support the conclusion that Sandoval shot Alvarez in order to commit a theft. It also
corroborated Salmoran’s testimony.
       Sandoval contends that the evidence does not give rise to any reasonable
inferences because it is based solely on suspicion. (People v. Raley (1992) 2 Cal.4th 870,
891 [a reasonable inference may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work].) We disagree. The
inference that Ray possessed heroin stolen by Sandoval is based on credible evidence of
the surrounding circumstances.
       We now turn to Evidence Code section 352.
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice[.]” Prejudice for
purposes of this statute “‘means evidence that tends to evoke an emotional bias against
the defendant with very little effect on issues, not evidence that is probative of
defendant’s guilt.’ [Citations.]” (People v. Elliott (2012) 53 Cal.4th 535, 577–578.) It
also means “an intolerable risk to the fairness of the proceedings or reliability of the
outcome.” (People v. Booker (2011) 51 Cal.4th 141, 188.) We will not disturb a trial
court’s decision to admit evidence over an Evidence Code section 352 objection “except
on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently



                                              6
absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v.
Rodriguez (1999) 20 Cal.4th 1, 9–10.)
       We conclude that the evidence of Ray’s possession of heroin was not of the type
that would have tended to evoke an emotional bias. The jury heard evidence of
Sandoval’s callous murder of his friend, Alvarez, in connection with the theft of a large
quantity of heroin. That evidence was the most emotionally charged evidence presented.
The evidence regarding Ray was tepid in comparison because it did not pertain to the
crime, and it did not involve an act of brutal violence. Rather, it was evidence that did no
more than establish what happened to the heroin after the theft. Moreover, it cannot be
said that the evidence had very little affect on the issues. It corroborated Salmoran’s
testimony regarding the events, and it tended to establish that Sandoval shot Alvarez with
the intent to rob him of the heroin.
       For the same reasons, we conclude that the evidence regarding Ray did not pose
an intolerable risk of unfairness in the trial.2
II. Personal Juror Identifying Information.
       Sandoval contends that the trial court should have disclosed personal juror
identifying information because there was evidence of juror misconduct and he was
entitled to follow up on the matter with the jurors to determine if there were grounds to
seek a new trial. This contention lacks merit.
       A. Relevant Proceedings.
       Prior to the commencement of trial, the jurors were instructed not to discuss the
case until after all the evidence was presented, the attorneys completed their arguments,
and the trial court instructed on the law.
       After completion of the trial, the jury convicted Sandoval on November 21, 2013.
Subsequently, Sandoval filed a petition to obtain personal juror identifying information.


2
       Sandoval argued that Ray’s testimony should have been excluded because Ray’s
arrest was disclosed three days before trial. Appellate counsel conceded that this
argument was not raised below. We deem the argument waived. (People v. Jenkins
(2000) 22 Cal.4th 900, 949.)

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It was supported by defense counsel’s declaration stating, inter alia, that he interviewed
Guadelia in Spanish with the assistance of his Spanish speaking secretary, and
discovered: “On November 19, 2013, [Guadelia] waited outside of court room ‘Q’ for
the start of the jury trial. . . . [Guadelia] [said] [a] juror . . . approached her to speak about
the case. . . . Counsel believes [Guadelia’s description of the juror] match[es] Juror #5.
[¶] . . . Juror #5 asked [Guadelia], ‘Do you believe in God[?]’ She responded, ‘[Y]es I
do.’ [¶] . . . Juror #5 stated, ‘I believe in God also. Have a lot of faith in God. I am
Catholic and I spoke with 2 or 3 other jurors and they said they think your son is going to
win.’ [¶] . . . Juror #5 further stated, ‘Out of all the witnesses the only one we believed
was you, because everyone else was a bunch of liars.’ [¶] . . . Juror #5 stated, ‘I will
pray for [Sandoval]. Have a lot of faith in God. I’m going to move because I do not
want anyone to see me talking to you.’”
       At the hearing on the petition, the prosecutor argued that the statements by juror
No. 5 were inadmissible under Evidence Code section 1150 because they were statements
about the state of mind and mental processes of the jurors. Next, the prosecutor argued
that Guadelia was not credible because: (1) she tampered with evidence by washing the
blood out of the Cherokee; (2) the alleged statements of juror No. 5 did not make sense,
i.e., he indicated that Sandoval was going to win yet stated that Guadelia, a prosecution
witness, was the only witness the jury believed; and (3) without explanation, Guadelia
waited until after the jury returned a guilty verdict and was excused to report juror No. 5.
Regardless, the prosecutor argued that none of the alleged statements were prejudicial to
Sandoval.
       In response, defense counsel argued that the statements by juror No. 5 indicated
that jurors engaged in improper discussions about the case before it was submitted to
them for deliberation, and that Sandoval was entitled to investigate and determine the
nature and extent of their misconduct.
       The trial court addressed each of juror No. 5’s alleged statements. It concluded
that if the jurors spoke to each other about the case during trial, that was misconduct.
Also, the trial court concluded that juror No. 5 committed misconduct if he spoke to

                                                8
Guadelia. However, the trial court denied the motion on the grounds that the alleged
misconduct did not cause prejudice.
       B. No Abuse of Discretion.
       A criminal defendant may apply for access to personal juror identifying
information when the information is necessary for him or her “to communicate with
jurors for the purpose of developing a motion for new trial or any other lawful purpose.”
(Code Civ. Proc., § 206, subd. (g).) The petition must be supported by a showing of good
cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) “The court
shall set the matter for hearing if the petition and supporting declaration establish a prima
facie showing of good cause for the release of the personal juror identifying information,
but shall not set the matter for hearing if there is a showing on the record of facts that
establish a compelling interest against disclosure.” (Ibid.)
       To meet his or her burden, a defendant must make a sufficient showing of facts
that would support a reasonable belief that jury misconduct occurred, and that further
investigation is necessary to provide the court with adequate information to rule on a
motion for new trial. (People v. Carrasco (2008) 163 Cal.App.4th 978, 990; People v.
Johnson (2013) 222 Cal.App.4th 486, 497.) “Denial of a petition filed pursuant to [Code
of Civil Procedure] section 237 is reviewed under the deferential abuse of discretion
standard. [Citation.]” (People v. Santos (2007) 147 Cal.App.4th 965, 978.)
       The first issue is whether there was a prima facie showing of misconduct. We
note that the only evidence of misconduct were the apparent double hearsay statements of
Guadelia that came through defense counsel’s Spanish speaking secretary. However, the
prosecution did not raise a hearsay objection. Further, it appears that the trial court
accepted the truth of the matter asserted in defense counsel’s declaration. On appeal, the
parties do not dispute that there was a sufficient prima facie showing of misconduct.
Thus, we assume misconduct in two respects: certain jurors disregarded the jury
instructions and discussed the evidence prior to the case being submitted to the jury for
deliberation, and juror No. 5 talked to Guadelia about the case. (People v. Daniels (1991)
52 Cal.3d 815, 865 [misconduct for jurors not to follow jury instructions]; People v.

                                              9
Jones (1998) 17 Cal.4th 279, 310 [“it was misconduct for the jurors to communicate with
anyone associated with the case”].)
       The next issue is whether further investigation into juror misconduct was
necessary to gather information for a new trial motion. Consequently, Sandoval had to
establish a prima facie case that the alleged misconduct was “of such a character as is
likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a); People
v. Jefflo (1998) 63 Cal.App.4th 1314, 1322; People v. Engstrom (2011) 201 Cal.App.4th
174, 182 [a motion for new trial under Evid. Code, § 1150 requires a showing that
misconduct was prejudicial].)
       The trial court reasonably concluded that Sandoval failed to establish a prima facie
case. Juror No. 5’s religious colloquy with Guadelia was not likely to improperly
influence the verdict because it tended to show a perceived affinity with her as opposed
to antipathy toward Sandoval. If juror No. 5 prematurely talked about the case with other
jurors and stated that it was likely that they were going to vote for acquittal, it is apparent
they were not influenced because, ultimately, they voted to convict Sandoval rather than
acquit. It is also apparent that they were not influenced by the determination that
Guadelia was the only credible witness. Because the jury convicted, it must have found
that Salmoran, Grbic and law enforcement witnesses were credible, too. Thus, further
investigation was not necessary to support a new trial motion. We therefore conclude
that the record fails to disclose an abuse of discretion.
       According to Sandoval: “Although the misconduct may not appear to have been
prejudicial to appellant, it was indicative that other misconduct had occurred. If some of
the jurors had talked with one another about the case outside of the presence of the rest of
the jury, they may have reached fixed conclusions and made a decision before they heard
what the other members of the jury had to say. This could have been prejudicial to
appellant because the jurors who committed the misconduct may have developed an
intransigent position that appellant was guilty and therefore failed to take into account the
input of the rest of the jury.” He also suggests that “those jurors may have committed
other misconduct by speaking with other witnesses or considering information outside the

                                              10
courtroom,” or they “may have announced an intent to disregard the trial court’s
instructions on the law.”
       Sandoval’s arguments, in our view, are based on speculation as to how the jurors
might have reached their verdict. Accordingly, Sandoval has not established good cause
for disclosure of personal juror identifying information. (People v. Wilson (1996) 43
Cal.App.4th 839, 852.)
                                    DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                         __________________________, Acting P. J.
                                               ASHMANN-GERST


We concur:



_____________________________, J.
           CHAVEZ



____________________________, J.
           HOFFSTADT




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