Filed 3/4/16 P. v. Perez CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR


THE PEOPLE,                                                          B255893

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA408836)
         v.

EVER MAURICO PEREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa B. Lench, Judge. Affirmed.
         Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E.
Maxwell and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and
Respondent.
      A jury convicted appellant Ever Maurico Perez of the charged offense of
shooting at an inhabited dwelling (count 2; Pen. Code, § 246),1 and found true the
allegation that he personally used a firearm (§ 2022.5, subd. (a)). It also convicted
him of lesser included offenses in three other counts: attempted criminal threats
(count 1; §§ 664/422), a lesser included of criminal threats (§ 422); assault with a
firearm (count 3; § 245, subd. (a)(2)), a lesser included of assault with a
semiautomatic firearm (§ 245, subd. (b)), finding true the allegation that appellant
personally used a firearm (§ 12022.5, subd. (a)); and attempted corporal injury to a
spouse (count 4; §§ 664/273.5), a lesser included of corporal injury to a spouse
(§ 273.5, subd. (a)), finding true the allegation that defendant personally inflicted
great bodily injury on the victim (§ 12022.7, subd. (e)). The trial court sentenced
appellant to a total term of 13 years and 2 months.
      In this appeal from the judgment of conviction, appellant contends that:
(1) the trial court erred in denying his petition for juror information, and (2) in
denying his new trial motion, the court applied the wrong standard of review, thus
requiring that we remand the case for the trial court to apply the proper standard.
We find no error and therefore affirm.


              FACTUAL AND PROCEDURAL BACKGROUND
      Appellant and Esperanza Perez2 were husband and wife. Appellant’s
convictions arose from two violent incidents against her, the first occurring on
March 23-24, 2012, and the second nearly a year later on March 8, 2013.


1
      All unspecified statutory references are to the Penal Code.
2
      Because two prosecution witnesses, Esperanza Perez and Jennifer Perez, share the
same last name, we will refer to them by their first names.

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March 23-24, 2012 Incident (Count 4)
      On March 23, 2012, around 11:30 p.m., appellant called Esperanza and told
her he had been using drugs and wanted to come home. Esperanza picked him up.
Because she was angry, she decided to go to her mother’s house. She waited for
appellant to get in the shower, and then ran out of her apartment to the back patio,
where her car was parked.
      At trial, she testified that she injured herself when she tripped and fell while
running. She was impeached with her preliminary hearing testimony, in which she
stated that she ran from the apartment because appellant was being aggressive. As
she ran, appellant caught up to her and punched her in the back of her head,
causing her to fall and injure her mouth. She gave the same version of events in
her 911 call, and later in speaking with a detective.
      Esperanza’s neighbor, Jennifer, heard screaming and crying in the parking
lot. Her boyfriend went outside and brought Esperanza to Jennifer’s apartment,
where Esperanza spent the night. Esperanza was crying, bleeding from “a busted
lip,” and had “a bump on her head.”
      The next morning, Esperanza left Jennifer’s apartment. Shortly afterward,
Jennifer heard Esperanza running and screaming down the hall. Jennifer looked
through the peephole of her door and saw appellant “knocking and kicking and
yelling.” Esperanza was on the floor, and appellant formed a fist and lunged
toward her as if he were going to punch her. Jennifer called 911, and later
observed that Esperanza was bleeding again from her lip, and that a front tooth was
pushed in.




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        A few days after the incident, Esperanza allowed appellant to move back
into her apartment. A week after the incident, Esperanza told a detective that she
had lied and that appellant had never hit her.
        Photographs taken several days after the incident showed bruising on
Esperanza’s upper lip. Approximately a month and a half after the incident,
Esperanza began experiencing tooth pain and subsequently had three root canal
procedures.


March 8, 2013 Incident (Counts 1-3)
        On March 8, 2013, Esperanza was driving home from work in her car when
she saw her truck, which appellant had taken the night before to use drugs, parked
on the side of the road a few blocks from her workplace. Esperanza parked her car
and told appellant to return the truck or she would report it stolen. Appellant
replied, “Do you want me to beat you?” Esperanza returned to her car and drove
home.
        When she arrived at her apartment, she locked the door, closed the blinds,
and put a chair behind the door to give her time to call the police in case appellant
tried to kick the door down. About 20 minutes later, appellant rang the doorbell,
and began knocking on the door and yelling at Esperanza to open it. Esperanza
called 911.
        At trial, she denied that she heard a gunshot, and stated instead that she
heard something hit the heater near the entrance of her apartment. She was
impeached with her preliminary hearing testimony, in which she stated that she
heard a gunshot and fell to the floor for protection.
        She also was impeached with her statements to responding officers, whom
she told that appellant pounded on her door and threatened to beat her if she

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refused to open it. She looked through the peephole, saw a gun, heard a gunshot,
and dropped to the floor. Officers found a shell casing in the hallway outside the
apartment, a bullet fragment inside the apartment, and a bullet hole in the door near
the handle.


                                   DISCUSSION
I.    Disclosure of Juror Information
      Appellant contends the trial court abused its discretion in denying his request
to disclose juror information. We disagree.


Background
      After the verdict, the trial court sent each juror a form letter expressing its
appreciation and inviting comments about the experience. In response, one juror
wrote a letter stating, in pertinent part: “You might be interested to know that it
was the jury’s interpretation of your final instructions that won the day as far as the
verdict. We the jury were in complete agreement that the prosecution never
proved its case. We also agreed that in all probability [appellant] was guilty based
on the evidence that something had indeed happened: [Esperanza] had been
roughed up and a gun shot was fired into the door of her apartment. It was our
opinion that it was highly likely that [appellant] was the culprit. Many of the
jurors felt that [Esperanza] was just as guilty as her husband. We were all of the
opinion that if [appellant] was given jail time that [Esperanza] would come to visit
him with displays of great love and cookies. We were all of the opinion that
neither this trial nor any ‘punishments’ would have any effect on the continued
domestic bliss of the Perez union. [¶] So thank you for the opportunity to be
greatful [sic] that I am not [appellant] nor married to [Esperanza].”

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       After the court shared the letter with the parties, appellant’s trial counsel
filed a petition for disclosure of juror information to develop a motion for new
trial. She contended that the letter “demonstrates a lack of an abiding conviction of
the truth of the charges and shows that the verdict rendered is inconsistent with
[the jurors’] belief.” The trial court denied the petition. The court noted that the
relevant part of the letter “starts with the fact that it was the jury’s interpretation of
the final instructions that won the day. [T]he instructions made it very clear as to
what the standard of proof was. [¶] . . . [T]hey had some questions and then they
read the instructions and they followed the instructions. Or they had some
concerns, they read the instructions, they followed the instructions. [¶] I will also
add that the jury was polled at the end of the case, and each juror affirmatively
stated that it was his or her individual verdict. The instructions clearly delineate
what the standard of proof is for a conviction to be returned. The lawyers made it
very clear what the standard of proof was for the conviction to be returned. And I
believe that the letter . . . contains a lot of statements, but I think that ultimately it
recognizes that the instructions were followed.”


Applicable Law
       “After a jury’s verdict is recorded in a criminal jury proceeding, the court’s
record is ‘sealed,’ meaning all ‘personal juror identifying information of trial jurors
. . . consisting of names, addresses, and telephone numbers’ is extracted or
otherwise removed from the court record. (Code Civ. Proc., § 237, subds. (a)(2)–
(3).) Pursuant to Code of Civil Procedure section 206, subdivision (g), ‘a
defendant or defendant’s counsel 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

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any other lawful purpose.’” (People v. Carrasco (2008) 163 Cal.App.4th 978,
989.) “Code of Civil Procedure section 237, subdivision (b) provides that ‘[t]he
petition shall be supported by a declaration that includes facts sufficient to
establish good cause for the release of the juror’s personal identifying
information.’ Absent a showing of good cause for the release of the information,
the public interest in the integrity of the jury system and the jurors’ right to privacy
outweighs the defendant’s interest in disclosure. [Citations.]” (People v. McNally
(2015) 236 Cal.App.4th 1419, 1430.) “The statutory provisions clearly indicate an
intent to restrict the defendant from receiving juror personal information unless
necessary.” (People v. Granish (1996) 41 Cal.App.4th 1117, 1128.)
      “Good cause, in the context of a petition for disclosure to support a motion
for a new trial based on juror misconduct, requires ‘a sufficient showing to support
a reasonable belief that jury misconduct occurred . . . .’ [Citations.] Good cause
does not exist where the allegations of jury misconduct are speculative, conclusory,
vague, or unsupported. [Citation.] We review the denial of a petition for
disclosure for an abuse of discretion. [Citations.]” (People v. Cook (2015) 236
Cal.App.4th 341, 345-346.)
      As in the trial court, appellant contends on appeal that the juror’s letter
established that at least one juror believed the prosecution did not prove his guilt
beyond a reasonable doubt. We are not persuaded. Reasonably construed, the
juror’s letter informed the court that “the jury’s interpretation of [the] final
instructions . . . won the day as far as the verdict” was concerned. The jury was “in
complete agreement that the prosecution never proved its case,” and also had
various thoughts about the evidence (i.e., that “in all probability [appellant] was
guilty,” “[Esperanza] had been roughed up and a gun shot was fired into the door
of her apartment,” and “[m]any of the jurors felt that [Esperanza] was just as guilty

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as her husband.” But the jury’s interpretation of the court’s instructions ultimately
led to the verdict. The letter did not purport to state that the any juror voted to
convict based on proof less than proof beyond a reasonable doubt. Moreover, as
the trial court reasoned, the instructions and argument of counsel made clear that
the standard of proof was proof beyond a reasonable doubt, and when polled, each
juror indicated that the verdicts were his or her own personal verdicts.
      Appellant relies on Bell v. Bayerische Motoren Werke Aktiengesellschaft
(2010) 181 Cal.App.4th 1108, 1127, which found that “[a]n express agreement not
to follow the instructions ‘or extensive discussion evidencing an implied
agreement to that effect’ would constitute juror misconduct. [Citation.]” But here,
there was no evidence of either an express or implied agreement not to follow the
court’s instructions. To the contrary, the letter states that the court’s instructions
“won the day as far as the verdict” was concerned.
      In short, the trial court did not abuse its discretion in denying appellant’s
petition.


II.   Denial of New Trial Motion
      Appellant filed a motion for new trial based on the purportedly inconsistent
verdict on count 4, relating to the March 23-24, 2012 incident, and the
insufficiency of the evidence to support it. Appellant contends that in denying the
motion, the trial court applied the wrong standard in reviewing the evidence, thus
requiring that the case be remanded for application of the proper standard. We
disagree.




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Background
      In count 4, defendant was charged with corporal injury on a spouse (§ 273.5,
subd. (a)). The jury was instructed, in part, that to convict on that charge, it had to
find that appellant “willfully inflicted a physical injury on his spouse” and that
“[t]he injury . . . resulted in a traumatic condition,” that is, “a wound or other
bodily injury, whether minor or serious, caused by the direct application of
physical force.” The jury was also instructed on attempted corporal injury on a
spouse as a lesser included offense (§§ 664/273.5, subd. (a)). As to that offense,
the jury was informed that to find appellant guilty of an attempt, it must conclude
that he “took a direct but ineffective step toward committing . . . Corporal Injury
on a Spouse,” and that he “intended to commit . . . Corporal Injury on a Spouse.”
      It was further alleged in count 4, that appellant personally inflicted great
bodily injury on the victim (§ 12022.7, subd. (e)). The jury was instructed that if it
convicted appellant of corporal injury to a spouse or an attempt to commit that
crime, it would also have to decide whether the prosecution had proved “that the
defendant personally inflicted great bodily injury on Esperanza Perez,” meaning
“significant or substantial physical injury . . . greater than minor or moderate
harm.”
      At trial, the evidence was inconsistent as to how Esperanza received the
injuries in the March 23-24, 2012 incident to her head, lips, and teeth, the latter
requiring three root canal procedures. At trial, she testified that she suffered the
injuries when on March 23, she ran from the house, tripped, and fell. She stated
that appellant did not chase her and did not strike her. On the other hand, she had
given a different version to the police and at the preliminary hearing, namely, that
appellant chased her and struck her in the head, causing her to fall and injure
herself. At trial, she also denied that appellant assaulted her when she left

                                           9
Jennifer’s apartment on March 24. However, Jennifer testified that through the
peep hole she saw appellant appear to punch Esperanza, and that afterward
Esperanza was bleeding from her lip and a front tooth was pushed in.
      In his new trial motion, appellant argued that the verdict was inconsistent
and contrary to the evidence, because only two possible scenarios existed. In one
scenario, based on Esperanza’s preliminary hearing testimony, certain pretrial
statements to the police, and Jennifer’s testimony, appellant punched Esperanza in
the back of the head, causing her to fall and injure her mouth, and later inflicted
further injury after she left Jennifer’s apartment. In that scenario, defendant
committed the crime of corporal injury to a spouse and personally inflicted great
bodily injury on her.
      The other scenario, based on Esperanza’s recanting testimony and certain
other pretrial statements, was that Esperanza injured her mouth when she tripped
and fell, and that no further assault occurred later. In that scenario, appellant did
not commit the crime of corporal injury to a spouse, or attempt to commit that
crime, and did not personally inflict great bodily injury on Esperanza. Therefore,
appellant argued, the verdict on count 4 – guilty of attempted corporal injury on a
spouse, with a true finding on the bodily injury allegation – was fatally inconsistent
and not supported by the evidence.
      The trial court denied the new trial motion. It noted that the evidence as to
what occurred “varied,” and the court had considered whether “there is a scenario
. . . which justified an attempt on count 4 and still a finding of great bodily injury,
with an understanding that the jury’s verdict is to be respected even if it is
seemingly inconsistent.” The court concluded that “based upon some of the
evidence that was presented, that they could find that he attempted to inflict injury
. . . and that ultimately great bodily injury was the result. So while I say there was

                                           10
some inconsistency, I don’t think it’s sufficient to find that it was a legally
inconsistent verdict.”


Analysis
      The trial court’s reasoning was sound. “Inconsistent verdicts alone do not
establish insufficient evidence. ‘An acquittal of one or more counts shall not be
deemed an acquittal of any other count.’ [Citations.] [¶] ‘The law generally
accepts inconsistent verdicts as an occasionally inevitable, if not entirely
satisfying, consequence of a criminal justice system that gives defendants the
benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever
the evidence.’ [Citation.] ‘[I]f an acquittal of one count is factually irreconcilable
with a conviction on another, or if a not true finding of an enhancement allegation
is inconsistent with a conviction of the substantive offense, effect is given to both.
[Citations.]’ [Citation.] ‘The jury may have been convinced of guilt but arrived at
an inconsistent acquittal or not true finding “through mistake, compromise, or
lenity . . . .” [Citation.]’ [Citation.]” (People v. Hussain (2014) 231 Cal.App.4th
261, 273.)
      Under these principles, regardless of the inconsistency in the verdict on
count 4, the trial court was correct in concluding that the inconsistency itself was
not sufficient to set the verdict aside. To the extent the court considered whether
the verdict was contrary to the evidence, nothing suggests that the court applied an
incorrect standard.
      “‘In reviewing a motion for a new trial, the trial court must weigh the
evidence independently. [Citation.] It is, however, guided by a presumption in
favor of the correctness of the verdict and proceedings supporting it. [Citation.]
The trial court “should [not] disregard the verdict . . . but instead . . . should

                                            11
consider the proper weight to be accorded to the evidence and then decide whether
or not, in its opinion, there is sufficient credible evidence to support the verdict.”
[Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new
trial, and there is a strong presumption that it properly exercised that discretion.”
(People v. Fuiava (2012) 53 Cal.4th 622, 729-730.)
      Here, the record fails to show that the trial court applied the wrong standard
in reviewing the evidence. (See People v. Sullivan(2007) 151 Cal.App.4th 524,
549 [trial court is presumed to apply proper standard of review; error must be
affirmatively shown].) As the court concluded, the evidence “varied” as to what
occurred in the March 23-24 incident. In light of that varied evidence, the jury
reached a facially inconsistent verdict on count 4. But whether by mistake,
compromise, or lenity, there was, as the court observed, no legal inconsistency
justifying setting the verdict aside. We find no basis on which to conclude that the
court applied the wrong standard of review or abused its discretion in denying the
new trial motion.




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                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, J.




We concur:




EPSTEIN, P. J.




COLLINS, J.




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