Filed 3/17/15 P. v. Johnson CA5




                   NOT TO BE PUBLISHED IN THE OFFICAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067359
         Plaintiff and Respondent,
                                                                               (Super. Ct. No. BF134515)
                   v.

JAMES WILLIS JOHNSON,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice
Su, Deputy Attorneys General for Plaintiff and Respondent.
                                                        -ooOoo-
         James Willis Johnson was convicted of the second degree murder of his infant son.
He was also found guilty of assault on a child resulting in death, child endangerment, and
resisting arrest. He now argues that the trial court abused its discretion when it denied his
motion for a new trial and his petition pursuant to Code of Civil Procedure section 237
for disclosure of juror identifying information to be used to develop support for a motion
for a new trial. He also contends that the trial court gave an erroneous answer to a
question the jury asked about the elements of aiding and abetting.
       We agree with the contention that the court abused its discretion when it denied
the petition for juror identifying information. The court was informed that a juror
claimed jurors had discussed Johnson’s failure to testify, contrary to the court’s
instructions. We will conditionally affirm the judgment and remand with directions to
proceed in accordance with Code of Civil Procedure section 237.
                        FACTS AND PROCEDURAL HISTORY
       Denise Belmonte was Johnson’s partner and the mother of his three children. The
third child, a boy named Jordan, was the victim in this case. He was born on October 6,
2010, and was just over a month old when he died.
       Belmonte called 911 around 9:20 a.m. on November 10, 2010. A paramedic who
responded found Belmonte on the floor administering CPR to Jordan. No one else was in
the room. Jordan was not breathing and had no pulse. The paramedic observed rigor
mortis in Jordan’s jaw when he attempted to place a breathing tube. He concluded that
Jordan was dead.
       Jordan was taken to an emergency room, where he was declared dead at 9:45 a.m.
An emergency room doctor believed Jordan died earlier than 8:30 p.m. the previous
night. An autopsy found the cause of death to be multiple blunt force injuries. Both
arms, both legs, and two ribs were fractured. The liver was lacerated and bled internally;
this was probably the predominant injury. The brain was swollen and there was bleeding
inside the skull. These injuries were consistent with Jordan having been punched or
having collided with a solid object after being thrown. There were at least two blows,
one to the front of the abdomen on the right side and one on the back left.



                                             2.
       There also were burns, which appeared to predate the other injuries, as they had
become infected and had started to turn green. These were third-degree burns covering
Jordan’s buttocks and genitalia and his lower abdomen. They were caused by contact
with a liquid at a temperature of 140 degrees or more for no more than 45 seconds.
       Hypovolemic shock, which is a kind of circulatory collapse, was caused by the
bleeding from the internal injuries, as well as by the burns, and led to death. The
pathologist who conducted the autopsy concluded that the manner of death was homicide.
Jordan’s blood tested positive for THC and acetaminophen.
       The district attorney filed an information against Johnson and Belmonte. It
charged both defendants with three counts: (1) premeditated murder (Pen. Code, § 187,
subd. (a));1 (2) assault on a child under age eight with force likely to produce great bodily
injury and resulting in death (§ 273ab); and (3) willfully causing or permitting a child to
suffer unjustifiable physical pain or mental suffering, under circumstances likely to
produce great bodily injury or death (§ 273a, subd. (a)). In connection with count 3, the
information alleged for sentence-enhancement purposes that Johnson and Belmonte each
personally inflicted great bodily injury on Jordan. (§ 12022.7, subd. (d).) The
information charged Johnson alone with resisting arrest, a misdemeanor. (§ 148,
subd. (a)(1).)
       Belmonte entered into a plea agreement. In exchange for her testimony against
Johnson and her plea of guilty to child endangerment and voluntary manslaughter,
Belmonte received a determinate prison term of 15 years.
       Belmonte was the prosecution’s primary witness at trial. She testified that she met
Johnson in 2005, when she was 16 and Johnson was 26. Johnson already had a son.
Their first child together, Ja., was born in 2008 and their second, J., in 2009.



       1Subsequent   statutory references are to the Penal Code unless noted otherwise.


                                              3.
       Belmonte testified that Johnson was physically abusive to her throughout their
relationship. She also testified that she had no bond with J. because he was a boy; she
said her mother favored boys and she wanted to do the opposite. County authorities
removed both children from the parents’ custody.
       Belmonte regained custody of Ja. in September 2010, after falsely assuring the
social worker that she was separated from Johnson and living on her own in a motel.
Before giving birth to Jordan in October 2010, Belmonte admitted she was not really
living at the motel, and she gave Ja. to the social worker to be placed with J. Belmonte
and Johnson convinced the social worker that Belmonte would be living with Johnson’s
mother after Jordan was born, however, so Ja. was returned to Belmonte when she left the
hospital with Jordan. Immediately after this, Belmonte and Johnson resumed living
together.
       Belmonte testified about Johnson’s behavior toward Jordan during the month
Jordan lived. She found recordings Johnson had made with his phone of speeches
Johnson made to Jordan. In these recordings, Johnson spoke to Jordan in an adult
manner about adult subjects, such as growing marijuana. Johnson also took Jordan to a
room in the apartment where marijuana was grown and tried to show Jordan how to grow
it. He tried to show Jordan how to box. He pushed Jordan’s legs up so his feet touched
his head, trying to make Jordan more flexible. Johnson held Jordan upside down by the
legs and swung his body. He swaddled Jordan improperly. Sometimes Johnson
swaddled Jordan in such a way as to hold Jordan’s pacifier in mouth, because Johnson
did not like it when Jordan spit the pacifier out. Other times, Johnson swaddled Jordan so
that Jordan’s arms were behind his back. Belmonte told Johnson not to do these things,
and Johnson said he would do whatever he wanted if he really was Jordan’s father.
During Jordan’s life and Belmonte’s pregnancy with Jordan, Johnson often expressed
doubt about whether he was Jordan’s father, sometimes leading to physical abuse of
Belmonte.

                                            4.
      According to Belmonte’s testimony, Jordan sustained the burns on his lower body
on November 3, 2010, a week before his death. That night, Belmonte, Johnson, and Ja.
were in their living room playing a video game when Jordan’s diaper needed to be
changed. Johnson took Jordan to the bathroom to rinse him off. Belmonte and Johnson
sometimes used baby wipes when changing Jordan, but other times they washed him off
in the sink. While Johnson and Jordan were in the bathroom, Belmonte heard Jordan cry,
but this was not unusual, since Jordan did not like water. When Johnson came back with
Jordan, however, he was “frantic” and said he had burned Jordan. Belmonte could see
that Jordan’s buttocks and genitals had been burned; they were bright red.
      Belmonte wanted to take Jordan to the doctor, but Johnson said they would lose
the kids, he would go to jail, and he would kill her. They argued, and Johnson hit
Belmonte.
      They decided to go to a store to get something to treat the burns. They went to a
Walgreens and got some ointment, which they applied over the next few days. Jordan
cried when anything touched the burns, and after a day or two they turned brown and
then green. Belmonte gave Jordan Tylenol or Motrin for pain, and she saw Johnson rub
Vicodin on Jordan’s gums. She also saw Johnson blowing marijuana smoke into
Jordan’s mouth. Belmonte never sought medical treatment for Jordan because Johnson
would not allow her to do so, though she asked many times.
      Belmonte testified that on November 9, 2010, the night before the morning on
which Jordan was found dead, Jordan was quieter than usual and was moaning even
when no one was touching him. They had argued over the cost of diapers that day, and
Johnson had hit Belmonte several times and deliberately broken her cell phone. After
they had run several errands and eaten dinner, Belmonte was going to go out to another
store. Johnson became angry and said Belmonte could not leave. He grabbed her hair,
punched her, and pushed her into the bedroom. In the bedroom, Johnson choked
Belmonte until she was unconscious.

                                            5.
       When Belmonte regained consciousness, Ja. was on top of her. Belmonte heard
Jordan crying. She went into the living room and saw Johnson with Jordan. Johnson was
holding Jordan upside down by one leg. Belmonte tried to take Jordan from Johnson.
Johnson “swung Jordan backward and threw him on the bed.” Jordan hit a couch and
landed on a bed beside it. Belmonte went toward Jordan, but Johnson picked him up
first. Johnson and Belmonte had a tug-of-war over a blanket. Johnson got the blanket
and wrapped Jordan in it. Belmonte tried to grab Jordan. Johnson said Jordan would not
shut up and punched him in the chest. Johnson also attacked Belmonte and tried to choke
her again. Jordan cried after being punched, but then became quiet. Johnson put Jordan
in a car seat. Belmonte touched Jordan and saw that he was breathing. Belmonte and
Johnson continued arguing for a while and then fell asleep some time after midnight.
Belmonte woke up and checked on Jordan once during the night. She offered him a
bottle, but he did not wake up. She took Jordan’s temperature and found it to be 93.1,
which she thought was normal.
       Belmonte and Johnson woke up in the morning, and after a while, Johnson
checked on Jordan and found he was nonresponsive. Belmonte washed Jordan and put
clean clothes on him. Johnson and Belmonte argued about whether Jordan was
breathing. Jordan continued to be nonresponsive and Belmonte called 911. She
administered CPR until the ambulance came. Johnson took Ja. into the bedroom and did
not come out while the emergency personnel were present. Belmonte went to the
hospital with Jordan in the ambulance.
       At the hospital, medical staff told Belmonte Jordan was dead. Belmonte sent
Johnson a text message and spoke to him by phone, telling him to come to the hospital.
He did not come until after Belmonte had left. Belmonte was arrested the same day.
       Belmonte testified that she exchanged letters with Johnson while they both were
incarcerated after Jordan’s death. She said, “[In one] of the first letters I got he asked me
to take the case for him or he would take it all the way to the box.” She admitted that, in

                                             6.
one of her letters to Johnson, she graphically described their sex life. She testified that
she was going to see him soon when she wrote the letter and did it to discourage him
from threatening her as he had done at a previous court appearance.
       Belmonte denied that she hurt Jordan or did anything to assault him physically.
       On cross-examination, Belmonte was impeached with a juvenile adjudication for
petty theft, a conviction of using stolen credit cards, a conviction of writing checks with
insufficient funds, and several lies she told to county child welfare officials. She also
admitted that, after she was arrested, she made false statements to police about the
apparent severity of Jordan’s burns, the steps she took in response to the burns, and her
living arrangements. Further, she admitted she was “involved in a tax scam” while in
custody.
       David Nelson, a paramedic who responded to Belmonte’s 911 call, testified that
when he arrived, Belmonte was “distraught” and did not give a “straight answer” when
he asked what happened to Jordan. Fire Captain Basil Rios testified that when he came
to the scene, Belmonte was screaming and did not give complete answers to his questions
about what happened to Jordan.
       Terri Haynes, a police officer, testified that she was at the hospital with Belmonte
after Jordan was declared dead. Belmonte asked Haynes whether Haynes thought Jordan
died of sudden infant death syndrome. Contrary to Nelson’s testimony, Haynes testified
that the paramedics told her Belmonte did not seem upset when they contacted her at the
apartment. Haynes also said she did not recall Belmonte showing emotion at the hospital.
But Haynes’s partner, Molly Hessler, testified that she also was present at the hospital
and that Belmonte appeared traumatized when Jordan was declared dead.
       Detective Martin Heredia testified that he arrested Belmonte and interviewed her a
number of times. He spent about four hours with her. During the interview, Belmonte
initially said she did not live in the apartment. She never told Heredia that Johnson threw
or punched Jordan. She did not even admit that Johnson was present when Jordan was

                                              7.
injured until one of the later interviews. At some point during Heredia’s questioning,
however, Belmonte did blame Johnson for the injuries and burns that caused Jordan’s
death.
         In September and October 2012, almost two years after Jordan’s death, Belmonte
was interviewed four times by Patricia Poeschel, an investigator with the district
attorney’s office. Poeschel testified that at first, Belmonte did not say Johnson threw or
punched Jordan and did not mention any argument or fight she had had with Johnson.
Poeschel repeatedly told Belmonte she did not believe Belmonte was telling the whole
truth. Belmonte told Poeschel she did not know about Jordan’s broken bones. Poeschel
showed Belmonte x-ray pictures revealing the broken bones. It was after this that
Belmonte first said Johnson threw and punched Jordan. Two of the interviews were
recorded. A portion of the recording was played for the jury and a transcript was
provided. Poeschel also testified that neither she nor the prosecutor ever threatened to
take Belmonte’s plea deal away because they did not believe she was telling the whole
truth.
         In the partial transcript of the interviews that is included in the appellate record,
Poeschel tells Belmonte she thinks Belmonte might be hiding some of the facts to deny
her own responsibility. She also says Belmonte is protecting Johnson. Poeschel further
suggests that Belmonte knew Jordan had been hurt on the night he died, but then she left
the apartment, smoked marijuana and got drunk. Poeschel claims to have spoken to
inmate witnesses who supported this account. Belmonte says she has been threatened
and believes that if she provides information that will result in a life sentence for
Johnson, Johnson will cause her to be attacked or killed while in prison. Then she cries
and begins giving an account similar to the account in her testimony, starting with the
time when she re-enters the living room after being assaulted by Johnson in the bedroom
and sees Johnson holding Jordan upside down by one foot.



                                                8.
       Lonnie Richardson, a neighbor of Belmonte and Johnson, testified that, in October
2010, she heard an argument between them through the wall. She heard Johnson say,
“Be the mother and get your [ass] in here and take care of him before I beat the hell out
of him.”
       Nada Yorke, a social worker, testified for the prosecution as an expert on battered
women’s syndrome (or intimate partner battering syndrome, as it also is called). Among
other things, Yorke said that abused people often lie to conceal their situations from child
welfare authorities in an effort to keep their children out of foster care, especially if they
were placed in foster care as children themselves, as Belmonte was. Yorke also said that
the cycle of abuse can continue even when one or both parties to an abusive relationship
are in prison.
       A police officer testified that the temperature of the running water in the apartment
was checked. The hot water in the kitchen and the bathroom reached 148 degrees within
two minutes of being turned on. The hot water heater was set on high.
       The defense called a witness who was sworn in as Allen Ladsky. He said he was
in jail in January 2011 in a cell next to Johnson’s cell, when he overheard a conversation
between Johnson and Belmonte. He heard Belmonte tell Johnson “something like even
if—no matter what, even though I did [it], we’re both going to go down for it, or
something of that sort.” Ladsky testified that he was present in court against his will and
believed Belmonte would use gang associates to retaliate against him. The court had to
order Ladsky to testify, telling him that if it ruled him in contempt, it could keep him in
custody until the end of the trial, which was scheduled to last nearly three more weeks.
       An investigator named Daniel Stevenson with the district attorney’s office testified
that Ladsky told him he fabricated the story about overhearing a conversation between
Johnson and Belmonte. Ladsky said he did this at Johnson’s request. Stevenson said
Ladsky made this statement after Stevenson told Ladsky that Stevenson could “go to bat”
for Ladsky. Ladsky testified that he did indeed tell Stevenson he fabricated the story; this

                                              9.
was a lie; and he told Stevenson the lie hoping it would cause Johnson’s counsel not to
call Ladsky as a witness at trial so he could avoid testifying and facing retaliation.
       Ladsky was impeached with prior convictions of falsely identifying himself to
police, possessing drugs for sale, resisting arrest, and possessing stolen property. He also
said he was a former member of a white supremacist gang, he had a swastika tattooed on
his arm, and Allen Ladsky was not his real name. Ladsky testified that he saw
Belmonte’s face and could pick her out of a lineup, but Stevenson testified that he
showed Ladsky a photo lineup including Belmonte, and Ladsky could not identify her.
       The defense called Juan Garza, an investigator with the public defender’s office,
who testified that he spoke with Nelson, the paramedic, in 2012. At that time, Nelson
recalled that, when he responded to Belmonte’s 911 call, Belmonte acted suspicious. She
seemed nervous, her account of events did not make sense, and she was not upset or
crying.
       Detective Heredia, called back as a defense witness, testified that when he
interviewed Belmonte shortly after Jordan’s death, Belmonte did not mention that
Johnson assaulted her the night before. Heredia did not see any signs of injury on
Belmonte.
       Finally, Jeff Cameron, a deputy coroner, testified for the defense that he saw and
touched Jordan the morning Jordan was brought to the hospital. Jordan was warm and
not stiff. Cameron was not a medical doctor.
       In her closing argument, the prosecutor presented several alternative theories of
murder to the jury. She said it could find first degree murder by finding that Johnson
picked Jordan up by one foot and then threw and punched him, as Belmonte testified.
When Johnson picked Jordan up, he intended to kill Jordan and he had time to deliberate
and reflect on what he was doing. “I would argue to you that why else do you throw and
punch a 33-day-old baby,” the prosecutor said.



                                             10.
       Next, the prosecutor explained that the jury could find second degree murder in a
number of different ways. It could find that Johnson intended to kill Jordan but did not
premeditate and deliberate. It also could find that Johnson did not intend to kill Jordan—
only to abuse or hurt him—but inflicted the blows with conscious disregard for his life.
Or it could disbelieve Belmonte and find that she inflicted the beating, but could also find
that Johnson, being Jordan’s father and having a duty to protect him, failed in this duty
and did so with conscious disregard for Jordan’s life.
       On the second count, assault on a child under eight resulting in death, the
prosecutor told the jury it could find Johnson guilty if it found that Johnson inflicted the
beating; that a reasonable person would think the beating was likely to produce great
bodily injury; that Jordan died from it; and that Jordan was in Johnson’s care and
custody.
       For the third count, child abuse, neglect or endangerment, the prosecutor focused
on the burns and the failure to get them treated. If Jordan was in Johnson’s care and
custody and the circumstances were likely to cause great bodily injury, the jury could
find Johnson guilty if it believed Johnson willfully or with criminal negligence caused the
burns and failed to get treatment, or if it believed Belmonte inflicted the burns, and
Johnson willfully or with criminal negligence failed to get treatment. The jury could find
true the enhancement allegation for this count only if it found that Johnson personally
inflicted the burns on Jordan.
       The prosecutor also explained that the jury could find Johnson guilty of any of the
first three counts under a theory that he aided and abetted Belmonte.
       Defense counsel, in his closing argument, urged the jury to find Johnson not guilty
of counts 1 and 2 and guilty of count 3, and to find the enhancement allegation on count 3
not true. His theory was that Belmonte inflicted both the beating and the burns as
revenge against Johnson for Johnson’s abuse of her and because of her animosity toward
boys. When Belmonte was beating Jordan to death, Johnson was asleep. Johnson was

                                             11.
guilty only of failing to get treatment for the burns. Defense counsel denied that the
burns were proved to be a substantial factor in causing Jordan’s death.
       During its deliberations, the jury asked the court several questions in writing. One
of these was: “Is ‘knowledge of unlawful purpose’ required prior to commission of an
illegal act so far as aiding and abetting is concerned?” The court answered: “No. Aiding
and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as
the criminal act itself.”
       The jury returned a verdict as follows: on count 1, guilty of the lesser-included
offense of second degree murder; on count 2, guilty; on count 3, guilty; on the
enhancement on count 3 for personal infliction of great bodily injury, not true; on
count 4, guilty.
       After the verdict was announced, defense counsel spoke with a juror who had
remained in the courthouse. Subsequently, counsel filed a petition for disclosure of juror
identifying information, which he intended to use to develop or consider developing a
motion for a new trial based on jury misconduct. The petition argued that the jury
apparently violated the court’s instructions and Johnson’s rights by discussing the fact
that Johnson did not testify. It was supported by counsel’s declaration, which included
the following paragraphs:

       “e.    I asked the juror what he and his colleagues found significant during
       deliberations.

       “f.     The juror told me the following:

             “i)      Most of us thought he burned the baby, but thought it was an
       accident;

               “ii)   You did not really argue the burn too much;

              “iii) There was some doubt regarding responsibility for the
       (assaultive injuries), but we figured he knew what was going on; and




                                            12.
             “iv) We didn’t get to hear from him and we think that really might
       have helped.”
       The court denied the petition. Johnson later filed a new trial motion based on the
conversation described in counsel’s declaration, and this also was denied.
       The court imposed a sentence of 25 years to life on count 2, assault on a child
resulting in death. It imposed a consecutive sentence of six years on count 3, willful
harm or injury to a child. On count 1, second degree murder, the court imposed a
sentence of 15 years to life and stayed it pursuant to section 654. On count 4, resisting
arrest, the court imposed a concurrent term of 30 days.
                                       DISCUSSION
I.     Motions for juror identifying information and new trial
       Johnson contends the trial court erred when it denied his petition for juror
identifying information. We review the court’s denial of the petition for abuse of
discretion. (People v. Jones (1998) 17 Cal.4th 279, 317 (Jones).)
       A trial court’s records of jurors’ identities are sealed following the recording of a
verdict in a criminal case. (Code Civ. Proc., § 237, subd. (a).) “Any person” can obtain a
hearing on the issue of securing access to the sealed records by submitting a petition and
supporting declarations that “establish a prima facie showing of good cause for the
release of” the information. (Id., subd. (b).) A criminal defendant may file a petition
pursuant to Code of Civil Procedure section 237 to enable the defendant 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 court must also consider whether there is a “compelling interest against
disclosure.” (Code Civ. Proc., § 237, subd. (b).) If there is not, and if a prima facie case
of good cause has been shown, the court must set the matter for a hearing. (Ibid.) When
a hearing is set, the court must notify the jurors, who have a right to protest disclosure
and to appear at the hearing. (Id., subd. (c).) After the hearing, the court must unseal the



                                             13.
records unless it then finds a lack of good cause, finds a compelling interest against
disclosure, or sustains a juror’s protest. It must sustain a juror’s protest if the juror says
he or she is unwilling to be contacted. (Id., subd. (d).)
       Jurors commit misconduct if they violate a trial court’s instructions not to discuss
a defendant’s failure to testify. (People v. Loker (2008) 44 Cal.4th 691, 749; People v.
Lavender (2014) 60 Cal.4th 679, 686-687.) In this case, the court gave the jury standard
instructions that if a defendant does not testify, “you must neither discuss this matter nor
permit it to enter your deliberations in any way.” If, during deliberations, one or more
jurors does mention a defendant’s failure to testify, a rebuttable presumption of prejudice
arises. (Lavender, supra, at p. 687.)
       Before the trial court ruled on Johnson’s petition, it stated that, when the juror’s
remarks about Johnson not testifying were read “in context” with the juror’s other
remarks, it seemed the juror “was saying things might have been different if we had
different information, but what we had was sufficient for guilt. He was not saying
they … considered or gave any weight to [Johnson’s] lack of testimony .…” Next, the
court pointed out that, to the extent the juror’s remark related to his or other jurors’
subjective thought processes, as opposed to their actual discussion, it was inadmissible
under Evidence Code section 1150.2 Finally, the court concluded that “counsel’s
declaration is too vague and conclusory to constitute the necessary prima facie showing
of good cause” under Code of Civil Procedure section 237. It denied the petition.




       2“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.” (Evid. Code, § 1150, subd. (a).)


                                              14.
       Johnson’s contention is that his counsel’s declaration clearly indicated that the
jurors must have discussed his failure to testify and thus violated the court’s instructions,
since the juror who discussed the issue with counsel said “we” thought it would have
helped had Johnson testified. We agree. The only question before the court at the time
when it ruled on Johnson’s petition was whether Johnson had made a prima facie case of
good cause to release the jurors’ information. (The issue of a compelling interest against
disclosure was not raised.) He did so if he “prove[d] that talking to the jurors is
reasonably likely to produce admissible evidence of juror misconduct.” (People v.
Johnson (2013) 222 Cal.App.4th 486, 493 (Johnson).) The petition and accompanying
declaration sufficiently showed this. The only reasonable inference from the juror’s
remark, assuming counsel’s declaration reproduced it faithfully, is that at least two jurors
discussed the fact that Johnson did not testify. This would constitute misconduct.
       The People argue that the court did not exceed the limits of its discretion when it
found that counsel’s declaration was vague and conclusory and did not indicate that the
jury gave weight to Johnson’s lack of testimony. This argument overlooks the key point:
The declaration necessarily implies that the juror who spoke to counsel discussed
Johnson’s failure to testify with at least one other juror. There is nothing vague about
this. Further, as we will discuss in more detail below, Johnson was required at this
preliminary stage to show only a prima facie case of misconduct; he was not yet required
to show that the jury gave any particular weight to the improper matter or otherwise to
show prejudice.
       The People also contend that the juror’s statement “suggested only that the jury
felt no evidence meaningfully rebutted the People’s case,” and the jurors experienced
“curiosity about evidence that existed that was not presented at trial”; thus, the
declaration does “not suggest the jury expressly discussed [Johnson’s] failure to testify.”
As we have already indicated, the declaration does not support this construction. That
jurors discussed this matter is precisely what the declaration suggests.

                                             15.
       The People argue that the court could properly deny the petition because Johnson
did not show that he made a diligent effort to contact jurors without the court’s
assistance. This argument is based on People v. Rhodes (1989) 212 Cal.App.3d 541
(Rhodes) and Jones, supra, 17 Cal.4th 279. Rhodes stated that a defendant seeking juror
identifying information must establish that “diligent efforts were made to contact the
jurors through other means” (Rhodes, supra, at p. 552); and in Jones our Supreme Court
applied this requirement (Jones, supra, at p. 317).
       We agree with the recent holding in Johnson, supra, 222 Cal.App.4th 486, that
this requirement is no longer applicable. Rhodes was decided before Code of Civil
Procedure section 237 was enacted. (Johnson, supra, at p. 496.) Similarly, Jones applied
the nonstatutory rule of Rhodes only after noting that Code of Civil Procedure
section 237 was not yet in effect at the relevant time. (Jones, supra, 17 Cal.4th at p. 317
[“Because the verdict was returned before Code of Civil Procedure 237 was enacted, we
agree with the People that the substantive rule set forth in [Rhodes] applies.”].)
       In Johnson, the Court of Appeal explained that Code of Civil Procedure
section 237, enacted in 1992, codifies the procedure for obtaining juror identifying
information from a court and does not include a diligence requirement. Further, a 1995
amendment made mandatory the sealing of juror identifying information. (Johnson,
supra, 222 Cal.App.4th at pp. 496-497.) To require defendants to make efforts to obtain
the information from other sources before petitioning the court would be “forcing counsel
to try to find ways around the seal” and to “try to track down the unwilling jurors.” (Id.
at p. 497.) “Because the Legislature provided that jurors’ identifying information must
be sealed, we conclude it did not intend to require a defendant to show diligent efforts to
obtain the sealed information as a condition of unsealing it.” (Ibid.)
       The People next argue that the court had discretion to deny the petition because it
was supported only by hearsay, i.e., by counsel’s declaration describing the juror’s
statements. They rely on case law holding that, in the related context of a request for an

                                             16.
evidentiary hearing on the issue of alleged juror misconduct, a court does not abuse its
discretion by denying the request on the ground that the allegation is based exclusively on
hearsay. (People v. Dykes (2009) 46 Cal.4th 731, 810; People v. Hayes (1999) 21 Cal.4th
1211, 1256 (Hayes).)
       The Johnson decision again effectively rebuts the People’s position. The People
there made the same argument they make here: A Code of Civil Procedure section 237
request for juror identifying information was properly denied because the declarations
submitted in support of it contained only hearsay statements about what someone heard
jurors say. Rejecting this, the Court of Appeal explained:

       “The whole point of moving for the disclosure of jurors’ identifying
       information is to talk to the jurors; and the whole point of talking to the
       jurors is to obtain evidence of juror misconduct that will support a motion
       for new trial. The only people who can testify of their own personal
       knowledge about what happened in the jury room are the jurors themselves.
       Thus, it would be absurd to require a defendant seeking disclosure to
       introduce, at that preliminary stage, admissible evidence that juror
       misconduct actually occurred. Rather, the defendant simply has to prove
       that talking to the jurors is reasonably likely to produce admissible
       evidence of juror misconduct.” (Johnson, supra, 222 Cal.App.4th at
       p. 493.)
       The Johnson court went on to compare a petition for juror information under Code
of Civil Procedure section 237 to a motion to disclose a police officer’s personnel records
under Pitchess v. Superior Court (1974) 11 Cal.3d 531. A Pitchess motion can be based
on a declaration made on information and belief (including a hearsay statement) because
admissible evidence of the officer’s misconduct would not normally be available to
defense counsel at the point in the proceedings when the motion is made. (City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-89; Warrick v. Superior Court (2005)
35 Cal.4th 1011, 1026.) A defendant is in a similar situation when seeking information




                                            17.
with which to contact jurors in order to investigate apparent juror misconduct. (Johnson,
supra, 222 Cal.App.4th at p. 493.)3
       Dykes and Hayes are distinguishable. When a court is deciding whether to
conduct a hearing on claimed juror misconduct, there either is no preliminary issue of
gaining access to the jurors in the first place, or the proceedings have already progressed
beyond that issue.
       The People next argue that counsel’s declaration in this case was not sufficient to
support the petition because it concerned the juror’s mental processes and therefore was
inadmissible under Evidence Code section 1150. We disagree. The relevance of the
juror’s alleged remark was not that it said what the jurors thought, but that it implied
what the jurors discussed. If the juror indeed said, “We didn’t get to hear from him and
we think that really might have helped [italics omitted],” he necessarily implied that he
discussed Johnson’s nontestimony with at least one other juror. This act would in itself
be misconduct, regardless of what went on in the jurors’ minds. Evidence Code
section 1150 expressly permits otherwise-admissible evidence of “statements” made in
the jury room if they are likely to have influenced the verdict improperly.
       Finally, the People argue that the ruling should be affirmed because Johnson has
not demonstrated prejudice. They say, “[A] trial court may deny a request for the
disclosure of juror identifying information when prejudice cannot be established.” The
only authority the People offer for this proposition, however, is People v. Loker, supra,
44 Cal.4th at page 749. The citation is inapt. Loker concluded, on the cited page, that the
trial court did not abuse its discretion when it denied a new trial motion because the


       3The  Johnson court went on to hold that, in any event, declarations made by others
about jurors’ out-of-court statements are not hearsay because they are not offered for the
truth of the matter they assert. Instead, they are “simply used to show good cause to
contact the juror.” (Johnson, supra, 222 Cal.App.4th at p. 493.) We need not address
this additional holding.


                                             18.
misconduct illustrated by the jurors’ declarations was not shown to be prejudicial. There
is no discussion in the opinion of a petition for disclosure of juror identifying
information.
       The distinction between these two stages—a petition for juror identifying
information and a new trial motion—is crucial. A court naturally has discretion to deny a
new trial motion if the error alleged by the defendant did not prejudice the outcome.
When making a petition for release of juror identifying information, by contrast, a
defendant’s burden is only to establish a prima facie case of good cause for disclosure,
and this means a showing “that talking to the jurors is reasonably likely to produce
admissible evidence of juror misconduct.” (Johnson, supra, 222 Cal.App.4th at p. 493.)
It would be unreasonable to require a defendant to show prejudice at the stage when he is
still seeking access to the witnesses on the basis of whose testimony prejudice might be
established. We do not believe the Legislature had this unreasonable intention when it
enacted Code of Civil Procedure section 237.4
       We turn, finally, to Johnson’s separate argument that the trial court erred when it
denied his new trial motion. We review the trial court’s decision on this motion for abuse
of discretion as well. (Hayes, supra, 21 Cal.4th at pp. 1260-1261 [“A trial court’s ruling
on a motion for new trial is so completely within that court’s discretion that a reviewing
court will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.”].) Given the state of the evidence, the ruling was not an abuse of discretion.
(Ibid. [new trial motion properly denied where evidence of juror misconduct was




       4Johnson   points out that the trial court did not issue a minute order describing the
reasons for its denial of the Code of Civil Procedure section 237 petition. Such an order
is required by statute. (Code Civ. Proc., § 237, subd. (b).) This procedural error is
harmless because the court stated its reasons orally on the record; but in any event, the
issue is moot in light of our holding that the court’s ruling was substantively erroneous.


                                             19.
inadmissible hearsay].) Of course, the state of the evidence may be different if Johnson
decides to file another new trial motion on remand.
        We will remand the case to the trial court with directions to proceed in accordance
with Code of Civil Procedure section 237. Counsel’s declaration about his conversation
with the juror establishes a prima facie case of good cause for the release of juror
information, as we have said; and the court must determine whether there is a compelling
interest against disclosure. The latter issue was not raised previously, but time has passed
and the facts might have changed. If no compelling interest against disclosure is
established, the court will be required to set a hearing, provide notice to the jurors, and
follow all other statutory requirements. If the information is released and Johnson
obtains additional evidence that would support a new trial motion, the trial court must
permit Johnson to file such a motion.
II.     Jury’s question about knowledge element of aiding and abetting
        Johnson argues that the court’s answer to the jury’s question about the knowledge
element of aiding and abetting was erroneous as a matter of law. We disagree.
        Aiding and abetting requires a defendant to know a direct perpetrator’s purpose
and to intend to encourage or assist. (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
The jury was so instructed. It asked the court when the defendant’s knowledge of the
direct perpetrator’s purpose must arise: must it be “prior to commission of an illegal
act”?
        Johnson argued to the trial court that the answer was yes. The prosecutor said the
answer was no, since an aider and abettor’s knowledge of the direct perpetrator’s purpose
can be acquired during the commission of the act. The prosecutor relied on People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733 (Swanson-Birabent) and People v.
Montoya (1994) 7 Cal.4th 1027. The trial court agreed with the prosecutor. The answer
it gave the jury, quoted above, was based on language from Swanson-Birabent, supra, at
page 742.

                                             20.
       Johnson now argues that the language taken from Swanson-Birabent was either
erroneous or misleading. In effect, Johnson is arguing that the concept of knowledge of
another’s purpose, in the context of aiding and abetting, must necessarily mean advance
knowledge—it makes no sense to speak of intentionally aiding a crime without knowing,
until after the fact, that the perpetrator intended to commit it.5 This is incorrect for the
reason the prosecutor stated. An aider and abettor’s knowledge of a direct perpetrator’s
purpose can arise at the same time as the criminal act, while the act is in progress, just as
the court instructed.
       Swanson-Birabent is directly on point and the reasoning and authority provided in
the court’s opinion in that case correctly dispose of the issue:

              “Contrary to defendant’s assertion, advance knowledge is not a
       prerequisite for liability as an aider and abettor. ‘Aiding and abetting may
       be committed “on the spur of the moment,” that is, as instantaneously as the
       criminal act itself. [Citation.]’ (People v. Nguyen (1993) 21 Cal.App.4th
       518, 532 .…) In People v. Cooper (1991) 53 Cal.3d 1158 … (Cooper), the
       court held that ‘a getaway driver who has no prior knowledge of a robbery,
       but who forms the intent to aid in carrying away the loot during such
       asportation, may properly be found liable as an aider and abettor of the
       robbery.’ (Id. at p. 1161.) The court reasoned that ‘the commission of
       robbery continues so long as the loot is being carried away to a place of
       temporary safety.’ (Id. at p. 1170; see also People v. Montoya[, supra,] 7
       Cal.4th 1027, 1039 … [upholding burglary conviction for aider and abettor
       who did not have knowledge of criminal purpose until after entry].) [¶] In
       Cooper, the court commented: ‘The logic of viewing “committed” as a
       fixed point in time for purposes of guilt-establishment and “commission” as
       a temporal continuum for purposes of determining accomplice liability can
       be seen from the perspective of both the victim and the accomplice. The
       rape victim, for example, would not agree that the crime was completed
       once the crime was initially committed (i.e., at the point of initial

       5At  one point in his opening brief, Johnson makes a different argument:
“[K]nowledge must precede facilitation of the crime in order for liability as an aider and
abettor to attach .…” (Italics added.) This may be correct, but it is not the issue the jury
raised. The jury’s question can reasonably be understood to ask only whether a
defendant’s knowledge of a direct perpetrator’s intent must arise before a direct
perpetrator acts, not whether it must do so before a defendant facilitates.


                                              21.
       penetration). Rather, the offense does not end until all of the acts that
       constitute the rape have ceased. Furthermore, the unknowing defendant
       who happens on the scene of a rape after the rape has been initially
       committed and aids the perpetrator in the continuing criminal acts is an
       accomplice under this concept of “commission,” because he formed his
       intent to facilitate the commission of the rape during its commission.’
       ([People v. Cooper (1991) 53 Cal.3d 1159, 1165, fn. 7].)” (Swanson-
       Birabent, supra, 114 Cal.App.4th at p. 742.)
       In the contexts discussed in this passage—robbery, burglary, and rape—the
offenses unfolded over time and the aiders and abettors gained knowledge of the direct
perpetrators’ intentions while the commission of the crimes was already in progress. In
this case, the offenses at issue—murder, assault on a child resulting in death, and willful
infliction of harm on a child—also unfolded over time. The prosecution was not required
to prove that, if Johnson was guilty as an aider and abettor of Belmonte, he learned of
Belmonte’s intentions before she began to inflict harm. The court’s answer to the jury’s
question was neither incorrect nor misleading.
       Johnson argues that Swanson-Birabent misstates the law and misinterprets the
cases on which it relies. We have reviewed those cases and do not agree with Johnson.
Like Swanson-Birabent, the cases support the proposition that the knowledge element of
aiding and abetting can be satisfied when an aider and abettor gains knowledge of a direct
perpetrator’s criminal intent during the commission of the crime, rather than prior to its
commission. That proposition is supported by reason as well as by authority. As the
Swanson-Birabent court explained, an accomplice’s culpability is not erased by the fact
that he or she encourages or assists in a crime after discovering it (along with its direct
perpetrator’s intent) already in progress, as opposed to knowing it would happen in
advance.
                                      DISPOSITION
       The judgment is affirmed subject to the following conditions: On remand, the trial
court must permit the People to present any evidence of a compelling interest against
disclosure of juror identifying information. If the People do not establish such an

                                             22.
interest, the court must set aside its ruling denying Johnson’s petition for disclosure of
juror identifying information and must set a hearing in accordance with Code of Civil
Procedure section 237. If, after the hearing, the court orders juror information released,
Johnson must be permitted to file a new trial motion if he obtains evidence that would
support such a motion.

                                                                  _____________________
                                                                                Smith, J.

WE CONCUR:


 _____________________
 Levy, Acting P.J.


 _____________________
 Peña, J.




                                             23.
