Packer v. the Superior Court of Ventura County, No. B229369.

CourtCalifornia Court of Appeals
Writing for the CourtPERREN, J.
Docket NumberNo. B229369.
PartiesJoshua Graham PACKER, Petitioner,v.The SUPERIOR COURT of Ventura County, Respondent;The People, Real Party in Interest.
Decision Date28 November 2011

201 Cal.App.4th 152
133 Cal.Rptr.3d 649
11 Cal.
Daily Op. Serv. 14,282
2011 Daily Journal D.A.R. 17,035

Joshua Graham PACKER, Petitioner,
The SUPERIOR COURT of Ventura County, Respondent;The People, Real Party in Interest.

No. B229369.

Court of Appeal, Second District, Division 6, California.

Nov. 28, 2011.

[133 Cal.Rptr.3d 650]

Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, for Petitioner.Law Offices of J.T. Philipsborn, San Francisco, John T. Philipsborn for California Attorneys for Criminal Justice, as Amicus Curiae on behalf of Petitioner.No appearance for Respondent.Gregory D. Totten, District Attorney, Michelle J. Contois, Deputy District Attorney, for Real Party in Interest.Kamala D. Harris, Attorney General, Dane R. Gillette, Senior Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, A. Scott Hayward, Deputy Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, as Amicus Curiae on behalf of Real Party in Interest.PERREN, J.

[201 Cal.App.4th 156] Joshua Graham Packer seeks extraordinary writ relief from the trial court's order denying his Penal Code section 995 1 motion to dismiss the indictment charging him with three counts of first degree murder (§ 187) and other offenses. The prosecution is seeking the death penalty. (§ 190.2, subd. (a)(3).) Packer contends the indictment must be set aside on the

[133 Cal.Rptr.3d 651]

ground of grand juror bias. He asserts that our Supreme Court's pronouncement that such claims are not cognizable ( People v. Kempley (1928) 205 Cal. 441, 446–448, 271 P. 478 ( Kempley )) is no longer controlling because intervening authority suggests he has a due process right to an unbiased grand jury. We need not decide whether we are bound to follow Kempley because we agree with the trial court's conclusion that Packer fails to demonstrate the bias of which he complains. Accordingly, we shall deny the petition.
[201 Cal.App.4th 157] BACKGROUND

On May 20, 2009, Brock and Davina Husted were stabbed to death during a home invasion robbery by a man wearing a motorcycle helmet with a visor that covered his face. The Husteds' unborn child was also killed. Their nine-year-old son witnessed the robbery and found his parents' bodies after the killer fled.

DNA samples were recovered from Brock Husted's fingernail scrapings and a motorcycle helmet visor, which was found under Brock's body. DNA profiles extracted from this evidence were uploaded into the Combined DNA Index System (CODIS). The police also took possession of several items from the Husteds' residence and business, including two desktop computers, one notebook computer, three cellular phones, two external storage drives, and two SD multimedia cards. Detective Billy Hester from the Ventura County Sheriff's Department submitted these items to the Ventura County High Tech Task Force (the Task Force) 2 for analysis. A cellular phone seized from another individual's residence, a surveillance system from a store that sells motorcycle helmets, and the sign-on and password information for Davina Husted's Facebook account were also submitted to the Task Force for analysis. The Task Force analyzed each of the items and submitted a report to the sheriff's department. None of the information proved relevant to the crimes or otherwise assisted the sheriff's department in identifying the perpetrator of the murders.

On January 14, 2010, Packer was arrested on unrelated felony charges. His DNA profile was subsequently obtained from a buccal swab (§ 296, subd. (a)(2)(C)). When the profile was uploaded into CODIS, it was found to match the profile obtained from the motorcycle helmet visor by a statistical probability of 1 in 260 billion. The profile also matched the one obtained from Brock Husted's fingernail scrapings by a probability of 1 in 1.1 billion.

A grand jury subsequently returned an indictment charging Packer with three counts of first degree murder, two counts of first degree robbery (§ 211), and one count of first degree burglary (§§ 459/460, subd. (a)). The murder counts include allegations that Packer personally used a deadly weapon (§ 12022, subd. (b)(1)), and committed the crimes while engaged in the commission of robbery or attempted robbery (§ 190.2, subd. (a)(17)(A)), and burglary or attempted burglary (§ 190.2, subd. (a)(17)(G)). The indictment [201 Cal.App.4th 158] also includes a multiple murder special circumstance allegation, which makes Packer eligible for the death penalty. (§ 190.2, subd. (a)(3).)

Packer moved to dismiss the indictment under section 995, claiming among other things that one of the grand jurors was biased because she works for the Task

[133 Cal.Rptr.3d 652]

Force and had handled potential evidence in the case. The trial court denied the motion. Packer filed the instant writ petition, which we summarily denied. Our Supreme Court granted review and directed us to issue an order to show cause why Packer is not entitled to relief on the claim of grand juror bias.3

Packer contends the indictment must be set aside because a grand juror, identified as Juror No. 2, is employed by the Task Force and in the course of that employment received at least one of the items Detective Hester submitted to the Task Force for analysis. He argues that this juror was inherently biased against him because she is a “member of the prosecution team.” According to Packer, Juror No. 2's employment also created a “disabling conflict of interest” that amounts to bias because she is supervised by an investigator from the Ventura County District Attorney's Office. Although Packer acknowledges our Supreme Court's holding that an indictment cannot be set aside on the ground of grand juror bias ( Kempley, supra, 205 Cal. at pp. 446–448, 271 P. 478), he urges us to reject that authority and find that Juror No. 2's bias amounts to a violation of his due process rights under the state and federal Constitutions.

As we shall explain, we need not resolve the unsettled issue whether Packer had a due process right to an unbiased grand jury because he fails to demonstrate that he suffered any actual bias. His motion to dismiss the indictment on that ground was thus properly denied.


The indictment against Packer was returned by a special grand jury impaneled to hear criminal matters pursuant to section 904.6.4 Prior to being [201 Cal.App.4th 159] impaneled, Juror No. 2 informed the court that she was employed by the sheriff's department and worked at the Task Force in a “[s]ecretarial job” doing “[p]ayroll, reports.” Juror No. 2 brought this to the court's attention because she was “worried about who's going to be doing my job at work because it's going to be a long month for me to be, you know, coming back and forth here.” The court posited: “You know I don't know that working for the sheriff's office in that capacity, even though you work for the task force, would disqualify you from being on the grand jury. Your concern is who will do your job while you're gone?” Juror No. 2 replied in the affirmative, and added that she was “the one who's doing the time cards for the narcotics side” while a secretary who worked for another agency was on vacation. Juror No. 2 also referred to the fact that she had a brief vacation scheduled for the following week, which would require her to miss one day of grand jury service. The court concluded: “I don't think that would disqualify you from serving.... I understand it would be inconvenient for your employer to have you gone but I think you can serve.”

When the grand jury was subsequently called to hear the instant matter, the prosecutor began by stating the general allegations as set forth in the complaint and proceeded to give the names of the witnesses he intended to call. One of the

[133 Cal.Rptr.3d 653]

potential witnesses he named was Billy Hester, the detective who submitted the electronic items to the Task Force that were collected from the Husteds' residence and business. The jury foreperson then stated: “The nature of the matter to be heard and the names of the persons the district attorney anticipates calling to testify in the matter have been outlined above. Any members of the Grand Jury who have a state of mind in reference to the indictment proceeding as to any of the witnesses or persons mentioned above which will prevent him or her from acting impartially and without prejudice to the substantial rights of the parties shall now retire from this hearing.” The foreperson asked, “Do any of you know socially or have any of you heard anything about any of the persons named which would cause you not to render an unbiased decision?”

Juror No. 2 responded that she knew Detective Hester because “[h]e comes in my office sometimes.” The prosecutor asked Juror No. 2 whether “anything about your having known him would make it difficult for you to ren[d]er an unbiased decision in this matter,” and she responded, “No.”

Juror No. 2 subsequently added, “I have a question ... [b]ecause I work at the High Tech Task Force. I just received the case—the evidence, but I didn't do the forensic.... Is that going to be okay? I just want to let you know.” The following colloquy ensued:

“[Prosecutor]: Okay. So you didn't review any of the evidence?

[201 Cal.App.4th 160] [Juror No. 2]: No. I don't do that. I'm not a forensic guy. I just receive incoming evidence.

[Prosecutor]: Okay. And when you say ‘receive it,’ what does that mean?

[Juror No. 2]: And put it in our evidence room, insert it in the system. That's all I do.

[Prosecutor]: Okay.

[Juror No. 2]: To receive cases in our office.

[Prosecutor]: Okay. So like storing a hard drive from a computer? Something like that maybe?

[Juror No. 2]: I don't do that.

[Prosecutor]: I'm trying to get—I want to have a clear record of what you're storing.

[Juror No. 2]: Like, for example, if there's like computer evidence or cell phone evidence. What I do, I enter it in the system...

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