Filed 4/14/15 P. v. Hernandez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D065846

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCN319924)

ANDRES C. HERNANDEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.



         Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by

the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Andres C. Hernandez guilty of assault with a deadly weapon (Pen.

Code, § 245, subd. (a)(1)),1 with the further finding that Hernandez personally used a

dangerous and deadly weapon (§ 1192.7, subd. (c)(23)); resisting an executive officer

(§ 69); battery (§ 242); being under the influence of a controlled substance (Health & Saf.

Code, § 11550, subd. (a)); and attempting to dissuade a witness from reporting a crime

(§ 136.1, subd. (b)(1)). The trial court made a true finding that Hernandez incurred a

prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony (§ 667.5,

subd. (b)), and sentenced Hernandez to prison for 14 years four months.

       Hernandez contends that the trial court abused its discretion by denying his

posttrial motion to obtain juror identifying information. We concluded that Hernandez's

contention lacks merit, and we accordingly affirm the judgment.

                                              I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       While under the influence of methamphetamine, Hernandez got into a violent

altercation with two of his brothers, with whom he shared a residence. Hernandez first

punched and shoved his brother Elias2 shortly after Elias returned home from work in the

afternoon. Elias retreated to his car, locked the door and called 911 while Hernandez was

violently punching the car. Hernandez's brother Steven then intervened by trying to pull



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

2     Because the brothers share the same last name, for the sake of clarity we will refer
to Hernandez's brothers by their first names, and we intend no disrespect by doing so.

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Hernandez away from the car. Hernandez started punching Steven, who was walking

with a crutch because of a broken ankle. Hernandez grabbed Steven's crutch, hitting

Steven with the crutch four times while Steven was on the ground, and then continued to

punch Steven. Neighbors intervened by pulling Hernandez off Steven and tackling

Hernandez.

       Sheriff deputies arrived in response to the 911 call. Hernandez was agitated and

yelling profanities after the deputies handcuffed him. While a deputy was in the process

of moving Hernandez to the patrol car, Hernandez jumped up into the air, placed his legs

straddling the officer's legs, violently twisted his body, and attempted to roll. The deputy

identified the maneuver as a technique used by prisoners to injure an officer's legs.

       Hernandez was charged with assault with a deadly weapon (§ 245, subd. (a)(1)),

with the further allegation that he personally used a dangerous and deadly weapon

(§ 1192.7, subd. (c)(23)); resisting an executive officer (§ 69); battery (§ 242); being

under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a));

and attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)). The

jury found Hernandez guilty on all counts, and the trial court made a true finding that

Hernandez incurred a prior rape conviction (§ 261, subd. (a)(2)) that was a prior "strike"

under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony

(§ 667.5, subd. (b)).

       After trial, but before sentencing, Hernandez filed an application for an order

disclosing the jurors' addresses and telephone numbers. The motion was based on the



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fact that the court clerk had received two phone calls from a juror after the verdict

inquiring about Hernandez's sentencing status.

       The first telephone call from the juror was brought to counsel's attention by the

trial court in an informal and unreported discussion on November 13, 2013. Although no

reporter's transcript was prepared for the informal discussion, at a hearing on

November 20, 2013, the trial court described for the record the content of the first

telephone call from the juror. Specifically, in a telephone call to the clerk, the juror

indicated that "he had conversations with another juror. The other juror had done

research and had indicated to the caller that Mr. Hernandez had a serious criminal history

and therefore that was why they were interested in the sentencing."

       At a hearing the next day, November 21, the trial court reported to counsel that the

same juror called a second time to find out the date of the sentencing hearing, and during

that conversation the juror gave further information about the research that his fellow

juror had conducted on Hernandez's criminal history. As the trial court explained, the

juror stated to the clerk that his fellow juror conducted the research on Hernandez after

the trial was over and did no research during trial.

       Hernandez's motion, filed January 8, 2014, sought the release of juror identifying

information so that defense counsel could interview jurors to determine whether

Hernandez's prior criminal history was discussed during trial. The trial court denied the

motion, ruling that Hernandez had not made a prima facie case for the release of the juror

identifying information as there was no indication that any juror considered improperly

obtained information prior to the verdict.

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                                             II.

                                       DISCUSSION

       Hernandez's sole contention on appeal is that the trial court improperly denied his

motion for the release of juror identifying information.

       As applicable here, the law provides that after the recordation of a jury's verdict in

a criminal jury proceeding, the court's record is sealed, with all personal identifying

information of trial jurors removed from the court record. (Code Civ. Proc., § 237,

subd. (a)(2)-(3).) Under 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 any

other lawful purpose." (Ibid.)

       Code of Civil Procedure section 237, subdivision (b) sets forth the standard by

which a petition for release of juror information is evaluated. "The 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. The court shall set the matter for

hearing if the petition and supporting declaration establish a prima facie showing of good

cause for the release of the personal juror identifying information, but shall not set the

matter for hearing if there is a showing on the record of facts that establish a compelling

interest against disclosure. A compelling interest includes, but is not limited to,

protecting jurors from threats or danger of physical harm." (Ibid.)



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       A prima facie case of good cause is shown "if the defendant sets forth a sufficient

showing to support a reasonable belief that jury misconduct occurred." (People v.

Rhodes (1989) 212 Cal.App.3d 541, 552 (Rhodes); see also People v. Carrasco (2008)

163 Cal.App.4th 978, 990 (Carrasco) ["Even though Rhodes was decided before the

statute's present enactment requiring a showing of good cause, the Rhodes test survived

the amendments."].) To establish good cause "the defendant . . . has to prove 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.) "This rule safeguards both juror

privacy and the integrity of our jury process against unwarranted 'fishing expeditions' by

parties hoping to uncover information to invalidate the jury's verdict." (Rhodes, at

p. 552.)

       If the trial court decides that the petitioning party has made a prima facie showing

of good cause for the release of the juror identifying information, and there is no other

compelling interest against disclosure, jurors are given notice of the proposed release of

information and an opportunity to protest, and a hearing is held to determine whether to

release the information. (Code Civ. Proc., § 237, subd. (c).)

       A trial court's decision that a defendant has not made a prima facie showing of

good cause for the release of juror identifying information is reviewed for abuse of

discretion. (Carrasco, supra, 163 Cal.App.4th at p. 991.)

       Here, the trial court denied Hernandez's petition for the release of juror identifying

information on the ground that he did not make a prima facie showing of good cause

because there was no indication of any juror misconduct warranting a factual

                                              6
investigation. As we will explain, the trial court did not abuse its discretion in reaching

that conclusion.

       It is well settled that a juror commits misconduct by conducting independent

research during a trial. (See, e.g., § 1122, subd. (a)(1); People v. Ledesma (2006) 39

Cal.4th 641, 743.) "It is absolutely forbidden for jurors to do their own investigation

outside the courtroom." (People v. Vigil (2011) 191 Cal.App.4th 1474, 1483.) However,

these restrictions apply only during trial, and as the trial court expressly instructed the

jurors in this case, they were free to discuss the case after being dismissed from jury

service.

       Here, there was no indication of any juror research done during trial. The juror

who called the clerk expressly stated during the second telephone call that his fellow

juror had looked into Hernandez's criminal background only after the verdict. Based on

those facts, Hernandez did not "set[] forth a sufficient showing to support a reasonable

belief that jury misconduct occurred" (Rhodes, supra, 212 Cal.App.3d at p. 552, italics

added), as it was purely speculative to believe that the jurors might have conducted

outside research prior to the verdict. (People v. Wilson (1996) 43 Cal.App.4th 839, 852

[defense counsel's "speculative account" of how the jurors may have reasoned about the

case did not establish a prima facie showing of good cause for the release of juror

identifying information].) Hernandez argues that he should have been permitted to

contact the jurors to verify that no outside research was done during trial, but this

argument fails. Because the juror did not say anything to the court clerk even remotely

suggesting improper research during trial, there was no good cause to contact the juror to

                                               7
verify that no such research occurred. Accordingly, the trial court was within its

discretion to conclude that Hernandez did not establish a prima facie showing of good

cause for release of juror information.

       Hernandez contends that the trial court abused its discretion because it did not

apply the correct legal standard when ruling on the motion for release of juror contact

information.3 Specifically, based on the trial court's wording of its ruling at the motion

hearing in which the trial court stated "I don't find there's any misconduct," Hernandez

contends that the trial court improperly examined whether Hernandez established juror

misconduct rather than whether Hernandez made a prima facie case of good cause for the

release of juror information so that he could investigate juror misconduct. We disagree.

       Looking at the trial court's entire statement in context, it is clear that the trial court

understood the correct legal standard and applied it. As the trial court summarized its

ruling, "Given that there was no information that anything occurred prior to the verdict in

this case, I don't find there's any misconduct, therefore, I don't find a prima facie case has

been made." This statement shows that the trial court was properly focused on whether

Hernandez had made a prima facie showing of good cause, and that in referring to

whether misconduct occurred, the trial court was simply examining whether the scenario

described by the juror to the clerk indicated that a juror had potentially done anything



3      Hernandez also contends that the trial court's purported error in applying an
incorrect legal standard violated his rights to due process and compulsory process under
the Sixth and Fourteenth Amendments to the United States Constitution. Because we
conclude that the trial court applied the proper standard in ruling on the motion for
release of juror identifying information, we also reject the constitutional argument.
                                               8
improper warranting further investigation. Finding that the scenario did not constitute

improper juror activity, the trial court concluded that Hernandez had not made a prima

facie showing to warrant release of juror identifying information. Indeed, a prima facie

showing of good cause is defined as "a sufficient showing to support a reasonable belief

that jury misconduct occurred." (Rhodes, supra, 212 Cal.App.3d at p. 552.) Applying

this standard, the trial court properly conducted its analysis of whether Hernandez had

made a prima facie showing of good cause by focusing on whether there was any

suggestion of misconduct in what the juror reported during his telephone calls to the

clerk.

                                     DISPOSITION

         The judgment is affirmed.



                                                                                 IRION, J.

WE CONCUR:



MCCONNELL, P. J.



HUFFMAN, J.




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