Filed 11/16/15 P. v. Lara CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B259361

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. PA077482)
         v.

CARLO RENATO LARA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila
Corral Lyons, Judge. Affirmed as modified.
         Kevin D. Sheehy, 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, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Tannaz Koupainezhad, Deputy Attorney
General, for Plaintiff and Respondent.
                                             ____________________
       A jury convicted defendant and appellant Carlo Renata Lara of second degree
robbery in violation of Penal Code section 211. Including sentencing enhancements for
prior convictions and special allegations, the trial court sentenced defendant to 16 years
in state prison, imposed all mandatory fines and fees, and granted presentence custody
credits.
       Defendant contends the trial court abused its discretion by rejecting defense
requests for juror identification information and a full evidentiary hearing into possible
juror misconduct. Defendant also contends the court erred in calculating sentencing
credits. The Attorney General contends there was no abuse of discretion, but agrees the
court erroneously calculated defendant’s presentence custody credits. We affirm the
judgment as modified.


                  FACTUAL AND PROCEDURAL BACKGROUND


Jury trial and verdict


       After receiving pretrial instructions and hearing evidence relating to a robbery, a
jury of 12 men and women rendered a guilty verdict on June 3, 2014. Our discussion
focuses on the facts and events that are at the heart of defendant’s appeal.
       The jury began deliberations on June 2, 2014. On June 3, 2014, the jury sent a
note to the court stating that “a jury member wants to vote a certain way based off of
evidence that is not present/entered as exhibits[,] i.e.: plates, fingerprints, knife, DNA.”
The court instructed the jury that their verdict must be based only on the evidence
presented at trial, and reminded them of the definition of “evidence” in jury instruction
222.
       When the jury returned its verdict, it included two notes. After taking the jury’s
verdict and polling each juror individually, the court shared both notes with counsel. The
first note was from Juror No. 9, who said she ran into the defendant’s wife. The second


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note stated Juror Nos. 7, 1, 2, 4, and 5 were concerned for their safety. It also said Juror
No. 9 wanted to take a picture of the judge’s order.
          The court questioned Juror No. 9 about a conversation that took place between her
and defendant’s wife. The court clarified that the interaction between Juror No. 9 and
defendant’s wife took place after the jury had already reached its verdict. Juror No. 9
explained she ran into defendant’s wife in the bathroom. Defendant’s wife told her she
did not have to agree with the jury and something about 22 years. Juror No. 9 told
defendant’s wife, “I know. I don’t like this as much as you do.” Juror No. 9 felt bad and
was upset, but left the bathroom without saying anything else. She informed the other
jurors.
          Defense counsel asked Juror No. 9 what she meant when she said she did not like
this, attempting to clarify whether she was referring to the conversation with defendant’s
wife or the verdict, and Juror No. 9 replied, “No. The whole situation is disturbing.”
When defense counsel tried to ask Juror No. 9 if she had second thoughts about her vote,
the court stopped the questioning and reminded counsel that the juror could discuss the
verdict and deliberations with any of the attorneys at a reasonable time and with her
consent, but the court would not permit questions about deliberations as part of its inquiry
on the record.
          The court also asked Juror No. 9 whether there was an issue with anyone taking
photos of any of the jury instructions or evidence. Juror No. 9 said she wanted to take a
photo of the court’s response to the jury’s note about evidence so she could show it to her
job, but the other jurors told her not to take the photograph, and she complied with the
request. When defense counsel tried to ask Juror No. 9 whether she was considering such
evidence or was concerned the prosecution did not present certain evidence, the court
again refused to permit questions about deliberations. The court asked Juror No. 9 why
she wanted to show a photo of the note to her job. She replied “to show them for the
record that I have been here.” When the court suggested she could just show them the
letter from the court acknowledging jury service, she responded, “Fine. I don’t see what



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the big deal is.” Defense counsel requested a full evidentiary hearing with Juror No. 9
and the other jurors “about that question about the note.”
       Juror Nos. 7, 1, 2, 4, and 5 expressed discomfort and concern over Juror No. 9
talking about taking photos with her cell phone. None of the jurors stated they saw Juror
No. 9 take any photos. Juror No. 7 was concerned because he had “a gut feeling” Juror
No. 9 had some connection to defendant. Juror No. 1 said Juror No. 9 approached her in
the hallway and asked if it would be an invasion of privacy if she were to take a picture
or if someone were to take a picture of her. Juror Nos. 2 and 4 only expressed concern
about Juror No. 9’s desire to take a picture of the court’s order, and Juror No. 5 expressed
a safety concern because he lives in the area near the courthouse.
       Counsel did not ask any questions of these five jurors, but after the questioning
was finished, defense counsel again requested an evidentiary hearing, this time about
possible communication outside the deliberation room in the hallway about photographs
and issues. The prosecutor responded that there was no evidence Juror No. 9 took any
photos, and any discussion about photos did not have any impact on the jury’s
deliberative process. He also emphasized that Juror No. 9’s contact with defendant’s
wife was after the jury had reached a verdict, and she disclosed the contact to the jury and
the court. The court recalled Juror No. 9 to clarify whether she took any photos, or
mentioned anything about taking photos. The court permitted defense counsel to ask
questions as well. Juror No. 9 denied taking any photos or engaging in any conversation
with any other jurors about taking any photos. She also denied speaking to defendant’s
wife during the course of the trial.


Motion for new trial and request for release of information


       Defendant filed a motion for new trial, which the prosecution opposed. The
motion included an attached email from a defense paralegal who interviewed Juror No. 9
about the deliberations. The defense sought a continuance to locate a juror (presumably
Juror No. 9) and requested a release of personal juror information. The defense

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submitted one additional filing, described on the cover page as a “‘supplemental’
declaration in support of motion for a new trial; and request for release of juror
information.” The attached document bore the title “Investigative Report” and appears to
be a summary of a telephone interview of Juror No. 9 prepared by a defense investigator,
with Juror No. 9’s signature at the end. Although Juror No. 9’s signature appears below
the declaration, “I have read the above statement and agree that the contents of the
statement are truthful and accurate,” there is no indication it was signed under penalty of
perjury, nor does it specify whether the document was executed within the State of
California. According to statements in the document, Juror No. 9 believed she and two
other jurors initially voted to find defendant not guilty. She stated jurors based their
guilty vote on an incorrect understanding of the evidence, that one juror said defendant
must be guilty because police had a picture of him in a photo six-pack, and another juror
believed him. Juror No. 9 said that she changed her vote from not guilty to guilty after
other jurors told her she could not give a not guilty vote and bullied her to change her
vote. The prosecutor filed a supplemental opposition, arguing the supplemental
declaration failed to present admissible evidence of misconduct.


Hearing and denial of motion


       The trial court denied both motions on October 3, 2014. The court noted first that
the defense had not presented any sworn juror affidavits establishing misconduct. The
court rejected the “supplemental declaration” on several grounds. First, the document did
not meet the requirements of Code of Civil Procedure 2015.5,1 because it neither
specified a place of execution nor certified it was true under penalty of perjury. Second,
the report contained inadmissible hearsay. Third, the juror’s statement was not
admissible evidence that the court could consider because it pertained to the juror’s



       1 Allfurther code section references are to the Code of Civil Procedure, unless
specified otherwise.

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mental processes. Last, the asserted facts did not establish misconduct in light of the
court’s independent observations of Juror No. 9’s demeanor. The court noted Juror No. 9
was “a strong-willed woman” who was “feisty and stated very strong opinions.” The
court further elaborated, “Based on the statements the other jurors were afraid for their
safety because of Juror Number 9, it appears to me that she would be difficult to bully.”
The court denied the motion to release juror information because defendant had failed to
show good cause.


                                       DISCUSSION


A.     Motion for new trial


       Defendant contends the trial court erred by denying defense requests for an
evidentiary hearing into possible jury misconduct. “In ruling on a request for a new trial
based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.]
First, it must determine whether the affidavits supporting the motion are admissible.
[Citation.] If the evidence is admissible, the trial court must determine whether the facts
establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must
determine whether the misconduct was prejudicial. [Citations.] A trial court has broad
discretion in ruling on each of these issues, and its rulings will not be disturbed absent a
clear abuse of discretion. [Citations.]” (People v. Dorsey (1995) 34 Cal.App.4th 694,
703-704.)
       Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to statements
made, or conduct, conditions, or events occurring, either within or without the jury room,
of such a character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.” The inadmissibility of evidence of a juror’s

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subjective reasoning “prevents one juror from upsetting a verdict of the whole jury by
impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent.
The only improper influences that may be proved under [Evidence Code] section 1150 to
impeach a verdict, therefore, are those open to sight, hearing, and the other senses and
thus subject to corroboration. [Citations.]” (People v. Hutchinson (1969) 71 Cal.2d 342,
350.) “‘[A] verdict may not be impeached by inquiry into the juror’s mental or subjective
reasoning processes, and evidence of what the juror “felt” or how he understood the trial
court’s instructions is not competent.’ [Citations.]” (People v. Morris (1991) 53 Cal.3d
152, 231, disapproved of on another ground in People v. Stansbury (1995) 9 Cal.4th 824,
830, fn. 1.)

         1.     Admissibility of investigative report signed by Juror No. 9


         Unsworn hearsay is insufficient to establish juror misconduct, and it is not an
abuse of discretion for a trial court to deny a motion for new trial or decline to conduct an
evidentiary hearing when there is no admissible evidence of juror misconduct. (People v.
Dykes (2009) 46 Cal.4th 731, 810-811; People v. Cox (1991) 53 Cal.3d 618, 697,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 422; People v.
Bryant (2011) 191 Cal.App.4th 1457, 1467-1472.) “‘Under section 2015.5, a declaration
has the same “force and effect” as an affidavit.’ [Citation.] ‘Critical here is section
2015.5, which defines a “declaration” as a writing that is signed, dated, and certified as
true under penalty of perjury. In addition, section 2015.5 specifies that a declaration
must either reveal a “place of execution” within California, or recite that it is made
“under the laws of the State of California.”’ [Citation.]” (People v. Bryant, supra, at p.
1470.)
         The court did not abuse its discretion by not holding an evidentiary hearing,
because there was no admissible evidence of juror misconduct, particularly with respect
to assertions that any juror found defendant guilty based on improper considerations. The
only information defendant offered in support of the alleged misconduct was a purported


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supplemental declaration that was inadmissible because it was neither a sworn affidavit
nor a declaration meeting the requirements of section 2015.5. (People v. Bryant, supra,
191 Cal.App.4th at p. 1470.) It also contained inadmissible hearsay, setting forth
statements purportedly made by the juror who signed the document. (See People v.
Dykes, supra, 46 Cal.4th at p. 810 [“a trial court does not abuse its discretion in declining
to conduct an evidentiary hearing on the issue of juror misconduct when the evidence
proffered in support constitutes hearsay”].)
       Defendant does not dispute that the “supplemental declaration” submitted in
support of the motion for new trial was not an affidavit meeting the requirements set forth
in section 2015.5. Relying upon People v. Hedgecock (1990) 51 Cal.3d 395, 415-521
(Hedgecock), defendant instead argues the court erred in not conducting an evidentiary
hearing where Juror No. 9 was present in court under subpoena, and defense counsel had
filed a request for release of juror information. Defendant also argues that the court’s
refusal to hold an evidentiary hearing must have been based on the erroneous belief that it
lacked discretion to hold such a hearing in the absence of a sworn affidavit establishing
juror misconduct.
       In reaching the conclusion that it was within a court’s discretion to hold an
evidentiary hearing to resolve material issues of fact regarding alleged juror misconduct,
however, the Supreme Court stressed “that the defendant is not entitled to such a hearing
as a matter of right. Rather, such a hearing should be held only when the trial court, in its
discretion, concludes that an evidentiary hearing is necessary to resolve material,
disputed issues of fact.” (People v. Hedgecock, supra, 51 Cal.3d at p. 415.) As the
Supreme Court later explained in People v. Cox, supra, 53 Cal.3d at pages 698-701, the
court has no duty to conduct an evidentiary hearing based on an unsworn affidavit, and
there are many sound reasons why a court might exercise its discretion against holding
such a hearing. Here, the trial court stated that even if Juror No. 9’s substantive
allegations were before the court as admissible evidence, it still found no jury
misconduct, in part because the substantive allegations went more to the deliberative
process than to any overt acts that might constitute misconduct. (In re Stankewitz (1985)

                                               8
40 Cal.3d 391, 398.) The facts set forth in Juror No. 9’s statement do not amount to the
kind of overt act that demonstrates misconduct. To conduct an evidentiary hearing in this
scenario would be tantamount to a “fishing expedition,” an endeavor against which the
Hedgecock court explicitly cautioned. “The hearing should not be used as a ‘fishing
expedition’ to search for possible misconduct, but should be held only when the defense
has come forward with evidence demonstrating a strong possibility that prejudicial
misconduct has occurred. Even upon such a showing, an evidentiary hearing will
generally be unnecessary unless the parties’ evidence presents a material conflict that can
only be resolved at such a hearing.” (Hedgecock, supra, 51 Cal.3d at p. 419; see also
People v. Hayes (1999) 21 Cal.4th 1211, 1255.)
       It was not error for the trial court to conclude that an evidentiary hearing was not
necessary based on defendant’s motion for new trial.

       2.     Court inquiries into potential misconduct


       To the extent defendant contends the trial court erred when it did not conduct a
formal evidentiary hearing after an initial inquiry into possible misconduct based on the
two notes from the jurors, we again find no error. When a court receives notice of
possible juror misconduct, it has a duty to conduct a reasonable inquiry to determine if
the juror should be discharged and whether the impartiality of the other jurors has been
affected. (People v. Fuiava (2012) 53 Cal.4th 622, 702.) However, the nature and extent
of the inquiry is within the court’s discretion, and “‘“‘The court does not abuse its
discretion simply because it fails to investigate any and all new information obtained
about a juror during trial.’” [Citation.]’ [Citation.]” (Ibid.)
       “‘We have held that when a court is put “on notice that improper or external
influences were being brought to bear on a juror . . . ‘it is the court’s duty to make
whatever inquiry is reasonably necessary to determine if the juror should be discharged
and whether the impartiality of the other jurors has been affected.’” [Citation.] Such an
inquiry is central to maintaining the integrity of the jury system, and therefore is central


                                              9
to the criminal defendant’s right to a fair trial. [Citation.]’ [Citation.] On the other hand,
‘not every incident involving a juror’s conduct requires or warrants further investigation.
“The decision whether to investigate the possibility of juror bias, incompetence, or
misconduct—like the ultimate decision to retain or discharge a juror—rests within the
sound discretion of the trial court. [Citation.] . . . [¶] As our cases make clear, a hearing
is required only where the court possesses information which, if proven to be true, would
constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify
his removal from the case. [Citation.]” [Citation.]’ [Citations.] ‘“‘The court does not
abuse its discretion simply because it fails to investigate any and all new information
obtained about a juror during trial.’” [Citation.]’ [Citation.]” (People v. Fuiava, supra,
53 Cal.4th at p. 702.)
       Here, the court questioned Juror No. 9 on three separate topics, and in each
instance it reasonably concluded that there was no misconduct requiring further
investigation or action. During the trial, Juror No. 7 expressed concern about Juror No. 9
doing her makeup during testimony and making statements about coming to court late.
Juror No. 9 denied missing any testimony. After the verdict, the court conducted an
inquiry into Juror No. 9’s report about having interacted with defendant’s wife. The most
important factor is that the conversation took place after the jury had reached a verdict.
Defense counsel attempted to delve further into why the juror seemed upset, but to the
extent his questions would have focused on Juror No. 9’s thoughts and feelings about the
verdict, such questioning would not give rise to evidence admissible under Evidence
Code section 1150. (In re Stankewitz, supra, 40 Cal.3d at p. 398 [jurors may not testify
about their subjective reasoning processes].)

B.     Request for release of juror identification information


       We also reject defendant’s contention that the trial court erred by denying the
request for juror identifying information. We review the court’s decision under the abuse
of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.) Section


                                             10
237, subdivision (a)(2) provides that after the court records the jury’s verdict in a
criminal case, “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.” Before the court discharges a jury, it must inform the jurors of their
absolute right to discuss or not discuss the deliberation or verdict with anyone, and both
the prosecution and the defense “may discuss the jury deliberation or verdict with a
member of the jury, provided that the juror consents to the discussion and that the
discussion takes place at a reasonable time and place.” (§ 206, subds. (a) & (b).) If
defense counsel needs access to juror identifying information in order to communicate
with jurors, he or she may petition the court for access to the sealed information.
(§§ 206, subd. (g) & 237, subd. (b).)
       Defendant’s request for release of juror information relied upon the same
information that was already before the court when it denied the motion for new trial. In
addition, defense counsel had represented to the court at an earlier hearing that he sought
a continuance on the motion for new trial because his investigator was very close to
locating Juror No. 9, and “in an abundance of caution because the witness recently spoke
with my investigator.” We agree with the trial court’s reasoning that a hearing on the
request for jury information was not necessary because the defense had not shown good
cause, as there was no reasonable evidence of jury misconduct that would warrant
disclosing juror identifying information.


C.     Custody credits


       We agree with defendant’s contention that the trial court incorrectly calculated his
presentence custody credits. An incorrect calculation of custody credits results in an
unauthorized sentence, which may be corrected at any time. (People v. Duran (1998) 67
Cal.App.4th 267, 270.)
       At the resentencing on October 8, 2014, the trial court gave defendant 398 days of
actual custody and 61 days of good time/work time credit, for a total of 459 days of

                                             11
presentence custody credits. Because defendant had been in custody since his arrest on
August 7, 2013, he had actually served 428 days in custody, rather than 398. Based on
the corrected actual custody time, he was entitled to 64 days of good time/work time
credit (15 percent of 428) for total presentence custody credits of 492 days. (Pen. Code,
§ 2933.1; People v. Caceres (1997) 52 Cal.App.4th 106, 110-111.) Accordingly,
defendant’s custody credits should be corrected to be 428 actual days, 64 good time/work
time credit, for a total of 492 days of presentence custody credits.


                                      DISPOSITION


       The trial court is directed modify the judgment to reflect that defendant is entitled
to 492 days of presentence credits, consisting of 428 actual days and 64 good time/work
time credits. The abstract of judgment is ordered modified to reflect the correct custody
credits. As modified, the judgment is affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              BAKER, J.




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