Filed 7/30/14 P. v. Cabrera CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064340
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F07908150)
                   v.

PETER CABRERA,                                                                            OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Timothy E. Warriner, 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, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         In this appeal, defendant claims he is entitled to the personal identifying
information of the 12 jurors who convicted him of attempted second degree robbery. The
trial court concluded defendant was entitled only to the information of a juror who had
alleged that misconduct occurred during deliberations and the jury foreperson. The trial
court indicated that if those two jurors provided information regarding other specific
jurors, a further request could be filed. Defendant never filed a second request.
       Based on the information defendant did obtain from the juror alleging misconduct,
defendant moved for a new trial. The court denied the motion.
       Defendant challenges the court’s finding that he failed to establish “good cause” to
begin the process of obtaining identifying information from the other 10 jurors. (See
Code Civ. Proc., § 237.)1 He also appeals the denial of motion for a new trial based on
juror misconduct.
       We affirm.
                                         FACTS
       Defendant was charged with attempted second-degree robbery (Pen. Code, §§ 211,
664), personally discharging a firearm causing great bodily injury or death (Pen. Code,
§ 12022.53, subd. (d)) and personally inflicting great bodily injury (Pen. Code,
§ 12022.7, subd. (a).) (People v. Cabrera (May 10, 2011, F057254) [nonpub. opn.]
(Cabrera I).)
       At defendant’s jury trial, there was evidence indicating he and a confederate
attempted to rob a taco truck and that defendant shot the cashier in the process.
(Cabrera I, supra, F057254.)2 The jury ultimately convicted defendant of attempted
second degree robbery and found the special allegations true. The issues in this appeal



       1All further statutory references are to the Code of Civil Procedure, unless
otherwise noted.
       2 Our recitation of the underlying facts is brief because “[t]he facts surrounding
[defendant’s] crimes … are not relevant to the analysis of juror misconduct claims .…”
(In re Boyette (2013) 56 Cal.4th 866, 871.)



                                             2.
arise from a former juror’s postverdict allegations of juror misconduct during
deliberations.

       Jury Deliberations and Allegations of Misconduct3
       “On the afternoon of September 23, 2008, the jury began the deliberations. At
4:30 p.m., the jury requested to hear certain testimony. On the morning of September 24,
the court responded to the jury’s first inquiry. At 11:10 a.m., the jury asked to hear
additional testimony.
       “At 3:10 p.m. on September 24, the jury asked to directly address the court. The
foreperson stated the jury needed ‘some guidance.’ The court determined the jury was
unable to reach a unanimous verdict on count one and that four ballots had been taken.
The court asked the foreperson if there was ‘any movement,’ and the foreperson said
there was. The court asked if it could assist the jury with some further legal instruction or
testimony. The jurors privately conferred, and the foreperson asked the court to explain
the definition of reasonable doubt because ‘a couple of jurors are having a little difficulty
understanding that exactly.’ The court reinstructed the jury on reasonable doubt.
Thereafter, the jury resumed deliberations. Later that afternoon, the court adjourned the
deliberations for the day.
       “On the morning of September 25, 2008, the jury returned [its] verdicts .… The
court polled the jury and each signified the verdict of guilt and the [true] findings on the
special allegations constituted their ‘true, correct, personal, and unanimous verdicts.’
       “After the court polled the jury, the court asked counsel, ‘Is there any legal cause
why I should not discharge this jury at this time?’ Both counsel responded in the
negative. The court then instructed the jury:

              “ ‘You have now completed your jury service in this case. On
       behalf of all the judges of the Fresno County Superior Court, everybody

       3   These facts are taken from our opinion in Cabrera I.



                                              3.
       here in this courtroom, I want to thank you very much for your effort, your
       time, and your consideration of the case.

              “ ‘Now that the case is over, you may choose whether or not to
       discuss the case and your deliberations with anyone. Let me tell you some
       things about the rules the law puts in place for your convenience and your
       protection. The lawyers in this case or their representatives may now talk
       to you about the case, including your deliberations, your verdict, and
       findings. Those discussions must occur at a reasonable time and place, and
       only with your consent. Please immediately report to this court any
       unreasonable contact made without your consent. And any lawyer or
       representative who violates the rules of professional conduct and the
       standing orders of this court regarding such conduct will be in violation of
       this court’s order and subject to sanction.

               “ ‘I hereby order that the court’s record of personal juror
       identification information, including names, addresses, and telephone
       numbers shall be sealed until further order of the court. And if in the future
       this court is asked to decide whether this information will be released,
       notice will be given to any juror whose information is involved and such
       juror may oppose the release of this information and ask that any hearing
       on the release of information shall be closed to the public, and this court
       will decide whether and under what conditions any information may be
       disclosed.’
       “The court then excused and discharged the jury. At 4:15 p.m. that same day, a
trial juror e-mailed Judge John F. Vogt, who presided at the trial, and stated:

               “ ‘I voted incorrectly and against my own good judgment in the case
       trial People vs. Peter Cabrera in your courtroom today.

             “ ‘I am the juror who was holding up the verdict the last two days
       because it had not been proven to me with the evidence presented that Peter
       Cabrera was guilty “beyond all reasonable doubt.”

              “ ‘This morning, Thursday, September 25th we began jury
       deliberations once again at approximately 9 am. My fellow jurors became
       instantly enraged when it became apparent I still did not believe Peter
       Cabrera was guilty beyond all reasonable doubt. Due to the very angry and
       what I considered hostile pressure from the other jurors (among other
       things going on in the deliberation room aimed at me due to my “Not
       Guilty” voting) I “broke” and voted “guilty.”




                                             4.
               “ ‘In addition to the hostile/angry environment I was in among the
       jurors, I believe I was not thinking clearly and not able to stand the pressure
       to having received bad news regarding my mother[’]s health at 8:30 pm last
       night (though I tried to and thought I was keeping my mind on the trial).
       After leaving the courthouse and having some time to think without the
       other jurors attacking me (ie, hostility based slurs, comments and physical
       movements/gestures by other jurors) I realized I had made an absolute
       mistake in how I voted.

              “ ‘I apologize for the obvious problems I am about to cause by
       writing this—but I have to do “the right thing” and I apologize for letting
       hostile fellow jurors and outside sources interfere with my vote before the
       verdict was reached, given and read. With all the evidence presented to
       me—I clearly believe Peter Cabrera is not guilty of what he is charge [sic]
       with.’ (Italics in original.)
       “On January 8, 2009, appellant filed a petition for order disclosing personal juror
information. In a supporting declaration, appellant’s trial counsel stated:

              “ ‘[¶] ... [¶]

               “ ‘3. I am informed and believe, and on that basis, declare that the
       court is in possession of a letter written to the court by a juror in this case.
       In the letter, this juror described that she believed that the defendant was
       innocent, but that she was pressured by other juror(s) to the point that her
       will was overcome[.]

               “ ‘4. Based on this letter and its contents, I am further informed and
       believe, and thereon alleged, that there exists sufficient cause to believe that
       juror misconduct may have occurred to the prejudice of the defendant, and
       that further research and investigation is warranted to confirm that juror
       misconduct occurred sufficient to act as a reasonable basis to a motion for
       new trial.

              “ ‘5. In order to protect the privacy and sanctity of the jurors and
       given the above facts, I have made no other attempts to contact the jurors.

              “ ‘6. Except through this petition, I have no way of determining the
       names, addresses, and phone numbers to research and investigate the
       reason(s) this juror felt compelled to write the court to express that she
       believed the defendant was not guilty notwithstanding the guilty verdict.

             “ ‘7. Further investigation and research is necessary to verify and
       develop facts in order to present the court with adequate information upon


                                               5.
       which to rule on a motion for new trial.’ ” (Cabrera I, supra, F057254, fn.
       omitted.)
       The trial court summarily denied the motion to disclose juror information.
       Sentence
       Defendant was sentenced to “the middle term of two years on the substantive
count, a consecutive three-year term on the great bodily injury allegation (Pen. Code,
§ 12022.7, subd. (a)), and a term of 25 years to life on the personal discharge allegation
(Pen. Code, § 12022.53, subd. (d)), to run concurrent to the term imposed on the
substantive count.” (Cabrera I, supra, F057254.)
       Cabrera I
       Defendant appealed the judgment, which we conditionally reversed in Cabrera I.
(Cabrera I, supra, F057254.) We determined the trial court erred in summarily denying
the request for disclosure of juror information. (Ibid.) We remanded for the superior
court to “set the matter for a hearing under Code of Civil Procedure section 237.” (Ibid.)
We acknowledged the possibility defendant might thereafter file a motion for new trial,
but expressly declined to address the merits of any such motion. (Ibid.)
       Proceedings on Remand
              September 30, 2011, Hearing
       On remand, defendant again petitioned the superior court for juror information
under section 237. Defendant sought disclosure of all jurors’ identifying information, not
just that of the complaining juror. The basis for requesting disclosure was the
complaining juror’s e-mail which, “described hostility based slurs, comments and
physical movements /gestures made by other jurors as well as other aggressions.”
       The superior court held a hearing on the petition to disclose juror information. At
the hearing, the superior court said:

       “Clearly, we need to give her notice of the hearing that we will conduct on
       whether we will release her information. The question is, who else do we
       involve in this? And after giving it considerable thought, my feeling is that


                                             6.
       not only do we need to hear from this particular juror, but I think we need
       to call upon the foreperson as well and give him or her … notice of the fact
       that we would like to talk to him about this.

               “I don’t believe it’s appropriate nor necessary to involve any other
       jurors, since we don’t have anybody specifically identified. I think what we
       need to find out just from this particular juror what they claim happened
       and have the input of the foreperson to confirm, corroborate, dispute or
       whatever the issue would be. But my intention here is to take the first step,
       which I understand is the direction of the Court of Appeal and that is to
       send notice to these affected jurors that there is going to be a request to
       release their information and conduct further investigation about the
       deliberations.”
       Shortly thereafter, the court stated:

       “But my intention here is to get to the bottom of it directly, and that is to
       speak to this juror and to the foreperson. And if it involves further notices
       to be sent out, then that will have to be a separate step .…”
       In a similar vein, the court later said:

       “And … it seems to me to be an effective way to do it is to … also try to
       get information from the foreperson. And if there is further disclosures,
       then we can go into the further possible affected jurors.…”
              December 2, 2011, Hearing
       The court sent notice to the complaining juror and the foreperson pursuant to
section 237, subdivision (c). The notice informed the jurors that their information would
be released to counsel if they did not respond to the notice and did not attend the court
hearing.
       The complaining juror responded to the notice and consented to the release of her
name and phone number to defense counsel and the trial judge only. The foreperson did
not respond to the notice.
       The superior court ordered the juror’s personal identifying information be released
to defense counsel and the prosecution. The court also told defense counsel the
following:




                                                  7.
              “You have a specific time frame in which to file a motion for
       ultimate release. Now, procedurally, that does not bar you from filing a
       further petition under [section] 237 to seek release of other juror
       information. My prior ruling on your [section] 237 petition, and in light of
       the guidance provided by the Court of Appeal is to determine, first of all,
       you had made a prima facie case, but I made a determination at that time
       the affected jurors, for purposes of disclosure, would be the specific juror
       who registered the communication, and the foreperson, who would be
       responsible for monitoring and presiding over all the deliberations. There
       is no prima facie case based on the statement of the one particular juror that
       anybody else in particular was involved. Somebody was. The foreperson, I
       ruled, would be the person to contact about that information. So I can’t
       give you advice on what to do here, here. What I’m saying is it doesn’t bar
       you from intermediate steps. There is always another further [section] 237
       petition that could be filed, if that is necessary, and I would need to make a
       determination under [section] 237 whether you have made a prima facie
       case for … release of other juror information. If that is done, then
       obviously, it would have an effect on the timetables for other motions.”
       Motions for New Trial
       On December 20, 2011, defendant filed a motion for new trial based on juror
misconduct. On January 18, 2012, defendant filed a motion for new trial based on newly
discovered evidence.
              Complaining Juror’s Declaration
       In support of one of the motions for a new trial, defendant produced a declaration
from the complaining juror.
       The declaration described a male juror whose “demeanor” and “loud sighing
noises he made as he paced back and forth” led the complaining juror to believe he was
“upset with me.” The male juror “threw his backpack and it landed right behind my
chair, barely missing me.” The complaining juror “felt this was a direct physical threat.”
       Additionally, the declaration recounted that the “foreperson told me that I could
speak and then the rest of the jurors could tell me why I was wrong.” The foreperson
also allegedly said, “This [deliberations] [sic] needs to end now!” The declaration said,
“I thought the foreperson was responsible for the mediation [sic], I remember this as part



                                             8.
of what the judge instructed. Therefore, I assumed if there were any problems, such as
this sort of threatening behavior, the foreperson would inform the judge.”
       When the complaining juror suggested the jury consider and discuss an expert’s
testimony, she was called a “defense whore” in a “loud and angry voice.”
       Another juror allegedly said, “They’re all gang members and need to be put away
in prison!” One juror said, “This has got to end because I have reservations in Pismo and
would stand to lose a lot of money if I don’t make this trip.” Another juror said she had a
hair appointment and could not miss it.
       The complaining juror said, “I gave in and voted with the others, fearing what
would happen to me … emotionally and physically if I did not.”
               Foreperson’s Declaration
       The district attorney opposed the motion and produced a declaration from the jury
foreperson. The foreperson declared he or she never witnessed any “conduct that could
be perceived as a threat,” throwing of any objects, or any other inappropriate activity.
The foreperson also declared he or she never heard any verbal threats, derogatory
comments about any witnesses, discussion of race, attempts by jurors to “close
deliberations in order to leave due to other appointments or plans,” or any other
inappropriate statements.
       The foreperson did recall that one juror wanted to leave “due to frustration.” That
juror “did not disrupt the deliberations,” and the jury continued to deliberate thereafter.
       The court denied both of defendant’s motions for new trial. Defendant never filed
a second section 237 petition seeking disclosure of additional jurors’ identifying
information.
                                       DISCUSSION
       I.      THE TRIAL COURT DID NOT ERR IN ITS RULING ON
               DEFENDANT’S SECTION 237 PETITION
       Defendant claims the court abused its discretion in limiting the release of juror


                                              9.
information to only two jurors. We disagree.
       Section 237
       Generally, the personal identifying information of criminal trial jurors are sealed
upon the recording of the verdict. (§ 237, subd. (a)(2).) However, any person may
petition the court to release juror information. (§ 237, subd. (b).) The petition must be
supported by a declaration “that includes facts sufficient to establish good cause for the
release.…” (§ 237, subd. (b).) If the petition and supporting declaration “establish a
prima facie showing of good cause for the release” of juror information, then the court
“shall set the matter for hearing” unless “there is a showing on the record of facts that
establish a compelling interest against disclosure.” (§ 237, subd. (b).)
       If the matter is set for hearing, the court must give notice to “each affected juror.”
(§ 237, subd. (c).) Any affected juror may protest the granting of the petition. (Ibid.)
       After the hearing, the court “shall” release the juror’s information unless the court
sustains the former juror’s protest. (§ 237, subd. (d).) The court must sustain the juror’s
protest if (1) the petitioner fails to show good cause, (2) the record establishes a
compelling interest against disclosure as defined by statute, or (3) the juror is unwilling to
be contacted by petitioner. (Ibid.)
       Cabrera I Did Not Resolve the Issue Before Us
       As a threshold matter, defendant argues that in Cabrera I we held that “a prima
facie case had been shown” and therefore the superior court was required to notify all
trial jurors under section 237. However, in Cabrera I, we only held that defendant had
made a prima facie showing of good cause as to the complaining juror. Specifically, we
held that defendant “satisfied his burden to obtain disclosure of the contact information
for the juror who sent the e-mail to the trial judge.” (Cabrera I, supra, F057254, italics
added.) We then immediately noted that, on remand, the superior court “may consider
whether defendant has also satisfied his burden for disclosure of the contact information
for other jurors in this case.” (Ibid., italics added.) Thus, Cabrera I expressly left open


                                             10.
the question of whether defendant could satisfy his burden in triggering the release of
other jurors’ information.

       A Prima Facie Showing of Good Cause as to One Juror is Not Necessarily
       Sufficient to Trigger the Court’s Duty to Notify All Other Jurors
       We reject the contention that a trial must always notify all jurors when defendant
demonstrates “good cause” to release one juror’s information.
       In establishing the “good cause” requirement, section 237, subdivision (b)
provides: “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.”
(§ 237, subd. (b).) The use of the singular possessive “juror’s” demonstrates that a trial
court is not always required to notify all jurors merely because defendant satisfied his or
her “good cause” burden as to one juror.
       Additionally, section 237, subdivision (c)’s notice provision requires that “each
affected former juror” be notified. (§ 237, subd. (c), italics added.) If a “good cause”
showing as to one juror necessarily triggered a duty to notify all jurors, then the word
“affected” would be superfluous in the statute. We avoid construing statutes in ways that
render words superfluous. (Klein v. United States of America (2010) 50 Cal.4th 68, 80.)

       Defendant Never Showed Good Cause to Notify Jurors Under Section 237
       Next we address whether defendant made a showing of good cause as to the other
10 jurors.
       Defendant’s section 237 petition was based entirely on the complaining juror’s e-
mail. 4 The court ordered notice sent to the complaining juror and the jury foreperson.

       4 On appeal, defendant also relies on the complaining juror’s declaration, which
was filed after the court ruled on the section 237 petition. Defendant argues that even if
the court’s ruling on the petition were correct, it was an abuse of discretion to “fail to
expand notification” given the “conflict” between their two declarations. But defendant
never filed another section 237 petition requesting to “expand notification.” To the
extent defendant believed the complaining juror’s declaration provided additional



                                            11.
At the initial hearing, the court refused to order additional notices sent because no other
jurors had been “specifically identified.” The court described the notices as a “first step”
in “get[ting] to the bottom” of the issue and specifically acknowledged that additional
notices might need to be sent in the future. At the December 2, 2011, hearing, the court
reiterated that defendant was not barred “from filing a further petition under [section] 237
to seek release of other juror information.” In other words, the court was appropriately
indicating that it would entertain a further petition based on information obtained from
the complaining juror and/or the foreperson. The court said that if such a petition was
filed, it would “need to make a determination under [section] 237 whether you have made
a prima facie case for … release of other juror information.”
       The court’s approach was an eminently reasonable attempt to balance the jurors’
rights to postverdict privacy and defendant’s interest in obtaining information relevant to
potential misconduct. By beginning the disclosure process as to the complaining juror
and foreperson, the court was providing defendant the opportunity to explore allegations
of misconduct. But, as the court noted, the complaining juror only specifically identified
the foreperson as having acted improperly. There was no particularized showing as to
any other specific jurors. And, the court noted that if information was uncovered
implicating particular jurors in misconduct, it would entertain a further petition on the
issue. Far from an abuse of discretion, the court’s decision reflected a reasoned balance
between the competing interests of defendant and the former jurors. We find no abuse of
discretion.5




information supporting disclosure of other jurors’ information, he should have accepted
the court’s initial invitation to file another petition. He did not do so.
       5 Nor do we find any constitutional violations. Defendant’s claims the court’s
“error” also constituted a violation of his due process rights. We find no error and thus
no constitutional violation.



                                             12.
         II.    The Court Did not Err in Denying Defendant’s Motion for New Trial
                Based on Alleged Juror Misconduct
         The Decision of How to Resolve Conflicting Evidence Rested with Trial Court
         As noted above, defendant presented a declaration from the complaining juror in
support of the motion for new trial. That declaration set forth several instances of alleged
misconduct. The district attorney presented the declaration of the jury foreperson. In that
declaration, the jury foreperson denied witnessing any of the misconduct raised by the
complaining juror. The court concluded that the foreperson had addressed and refuted
“every single one” of the complaining juror’s allegations of misconduct.
         Defendant contends that “in trusting and relying upon the statement of the
foreperson as the basis for deciding whether to notify the other jurors, the court engaged
in a process that was arbitrary and capricious.”
         Making credibility determinations to resolve conflicts in the evidence is the trial
court’s job, not ours. “ ‘The power to judge the credibility of witnesses and to resolve
conflicts in the testimony is vested in the trial court ....’ [Citation.] ‘It is an established
principle that the credibility of witnesses and the weight to be given their testimony are
matters within the sole province of the trier of fact ....’ [Citation.] ‘A trier of fact may
accept such witnesses as he wishes and reject others.’ [Citation.] ‘Where there is
conflicting testimony, reviewing courts recognize that the trier of the facts has the better
opportunity to judge the credibility of witnesses. In such a case the trial court’s findings
of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as
conclusive on appeal.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1463.)
         “ ‘[T]he power to judge the credibility of witnesses to resolve conflicts in the
testimony is vested in the trial court’ [citation] even when the witnesses testify via
declarations [citation].” (People v. Johnson (2013) 222 Cal.App.4th 486, 499; see also
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn. 3.)



                                               13.
       Regardless of the level of our deference to the trial court, there were adequate
grounds for crediting the foreperson’s version over the complaining juror’s. First, there
is the general observation that “ ‘[a] single juror who reluctantly joined in a verdict is
likely to be sympathetic to the overtures of defeated parties, and to be persuadable to the
view that his [or her] own consent rested upon false or impermissible
considerations .…’ ” (People v. Rhodes (1989) 212 Cal.App.3d 541, 549 superseded by
statute on another point as stated in People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
Moreover, the complaining juror’s own version of events suggests her conclusions of
intimidation may have been mistaken. The initial e-mail to the trial judge referenced
“hostility based … physical movements… by other jurors.” But the specifics set forth in
the declaration paint an unclear picture at best. The declaration recounted that a male
juror “threw his backpack and it landed right behind my chair, barely missing me.”
While the complaining juror “felt this was a direct physical threat,” the factual
description suggests the event could have been entirely benign. In sum, this is not a
situation where the complaining juror’s declaration was undisputed and unimpeachably
convincing. It was not reversible error to credit the foreperson’s declaration over the
complaining juror’s.6

       The Trial Court’s Comments Regarding Jury Foreperson did not Demonstrate
       Impermissible Prejudging of Evidence
       Defendant contends that the trial court’s credibility determination was nonetheless
improper because it flowed from an incorrect view of the foreperson’s role in
deliberations. Specifically, defendant says the court was wrong to say the foreperson was
“in charge of the deliberations.”

       6Defendant argues the denial of his new trial motion was an “arbitrary
deprivation” of a state law entitlement, in violation of his constitutional rights. Because
the denial was not erroneous, it was also not an “arbitrary deprivation” of a state law
entitlement.



                                             14.
       This argument presents two issues: (1) whether the trial court’s comment about
the foreperson’s role was incorrect and (2) whether the trial court’s comment (accurate or
not) demonstrated a prejudgment that the foreperson’s version of events would certainly
be more credible than the complaining juror’s.
       Defendant argues that the court’s comment was wrong as a matter of law because
a foreperson’s “only statutory task” is to advise the court or clerk whether the jurors have
agreed upon their verdict. (See § 1149.) That may be the foreperson’s only statutory
task. (See People v. Perez (1989) 212 Cal.App.3d 395, 402). However, the foreperson’s
special role in facilitating deliberations, even if nonstatutory, has long been recognized.
(See People v. Ledesma (2006) 39 Cal.4th 641, 730; see also CALCRIM 3550 [“The
foreperson should see to it that your discussions are carried on in an organized way and
that everyone has a fair chance to be heard”].)
       In People v. Ledesma, supra, 39 Cal.4th 641, the trial court told the jury that the
foreperson had been allowed to take jury instructions home, “ ‘but that is because of her
status as foreperson ….’ ” (Id. at p. 730.) The trial court said the foreperson “ ‘has a
need to be perhaps better informed than anyone else as to where [certain] instructions are
located within [the jury instruction] packet.’ ” (Ibid.) The Supreme Court found no error
in the trial court’s statements, which “merely explained that the foreperson should be in a
position to assist deliberations .…” (Ibid.)
       Thus, it is clear that jury forepersons play a special role in facilitating
deliberations. But even if it were a slight overstatement to say that the foreperson is “in
charge” of deliberations, the court’s comments certainly do not convey the meaning
defendant ascribes. Defendant contends the court’s description of the foreperson’s role
shows that the court “assumed” that “the foreperson was a trusted and competent witness
to everything that transpired during deliberations, almost as if the foreperson was a proxy
for the court.” Quite simply, that is not what the court said. The court indicated that if
the foreperson corroborates the complaining juror’s account, then “we can take it from


                                               15.
there. And that may very well involve just sending out notices to everybody.…”
Notably, the court did not say that if the foreperson contradicted the complaining juror, it
would automatically credit the foreperson’s account because forepersons are always more
credible than other jurors.
       Absent compelling evidence, we will not lightly conclude a trial court
impermissibly prejudged the weight of evidence before it was presented. Defendant fails
to show that is what occurred here. Granted, when the competing declarations were
ultimately presented, the court did choose to rely on the foreperson’s declaration over the
complaining juror’s. But there is no evidence that reliance was improper. We assume
the court’s credibility determination was based on permissible factors rather than a
categorical preference for the testimony of forepersons over other jurors.
       Defendant also contends it was erroneous for the court to assume that “the
foreperson observed everything that went on during deliberations.” But here there was
evidence the foreperson was present during the relevant events. The complaining juror’s
declaration recounted the alleged misconduct and then said: “I thought the foreperson
was responsible for the [deliberations], I remember this as part of what the judge
instructed. Therefore, I assumed if there were any problems, such as this sort of
threatening behavior, the foreperson would inform the judge.” This statement suggests
that the complaining juror knew or had reason to believe the foreperson was aware of the
alleged misconduct. Otherwise, the complaining juror would not have assumed the
foreperson would inform the judge of such misconduct. Moreover, the trial court may
have reasonably inferred that the foreperson was likely to have been aware of
misconduct, had it occurred, because of his or her special role in assisting the
deliberations.
       Finally, defendant argues that the trial court, at a minimum, should have ordered
an evidentiary hearing to resolve the conflicts in the two declarations. Defendant relies
on People v. Hedgecock (1990) 51 Cal.3d 395 in making this contention. But Hedgecock


                                            16.
is clear that defendants are “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.” (Id. at
p. 415.) Here, the court considered an evidentiary hearing but ultimately determined it
could and would make a ruling based on the competing declarations. Thus, the court
necessarily determined, in its discretion, that an evidentiary hearing was not necessary to
resolve the material, disputed issues of fact. Under Hedgecock, it was free to exercise its
discretion in this manner. (See ibid.)
                                      CONCLUSION
       Of course, we do not know with certainty what happened during deliberations. In
these situations, the truth is “hard to ascertain.” (People v. Rhodes, supra, 212
Cal.App.3d at p. 549.) Our role as a reviewing court is not to detail the events that
occurred during deliberations with certitude. Rather, our task is to determine whether the
trial court’s rulings constitute an abuse of discretion. They do not.
                                      DISPOSITION
       The judgment is affirmed.

                                                         ____________________________
                                                         Poochigian, J.

WE CONCUR:


___________________________
Levy, Acting P.J.


___________________________
Cornell, J.




                                             17.
