People v. Duran

• Citation: 50 Cal.App.4th 103,57 Cal.Rptr.2d 635
• Decision Date: 21 October 1996
• Docket Number: No. F023557,F023557
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7739, 96 Daily Journal D.A.R. 12,785 The PEOPLE, Plaintiff and Respondent, v. Miguel Angel DURAN, Defendant and Appellant.

Page 635

57 Cal.Rptr.2d 635

50 Cal.App.4th 103, 96 Cal. Daily Op. Serv. 7739,

96 Daily Journal D.A.R. 12,785

The PEOPLE, Plaintiff and Respondent, v. Miguel Angel DURAN, Defendant and Appellant.

No. F023557.

Court of Appeal, Fifth District, California.

Oct. 21, 1996.

Review Denied Feb. 19, 1997.

Andrew Cappelli, under appointment by the Court of Appeal, for Defendant and Appellant

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Wanda Hill Rouzan and Stan Cross, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, Presiding Justice.

By information filed in Tulare County Superior Court on September 22, 1994, appellant, Miguel Angel Duran, was charged with the murder of Feliciano Sanchez in violation of Penal Code section 187 and with discharging a firearm at an occupied vehicle in violation of Penal Code section 246. Both counts were alleged to be serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(8). It was further alleged, as to the murder charge only, that appellant discharged a firearm at an occupied motor vehicle which caused the death of another within the meaning of Penal Code section 12022.5, subdivision (b), and that the offense was a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(8). On September 23, 1994, appellant entered pleas of not guilty to the charges and denied each of the special allegations.

Jury selection began on December 27, 1994. The pertinent portions of the jury selection process can be summarized as follows. At the very beginning of voir dire, the court asked all prospective jurors to listen carefully to the questions being asked so they would not have to be repeated later should the prospective juror find him or herself in the jury box. The court also informed the jury that appellant was being tried for murder and shooting at an occupied vehicle. Somewhat later during voir dire, the court stressed the importance of being fair to both sides and asked the prospective jurors whether there was any reason they thought they could not be fair to all parties. This same question was asked again a little later in the jury selection process. The court then went on to note that the present case was one involving violence and asked "whether any of you have any--have had anyone close to you who's been the victim of a violent crime or any serious crime. I'm not talking about thefts or anything like that at the present time. But a crime of violence. And believe me, I'm not going to pry into this, but the attorneys need to know whether anybody close to you has been the victim of a serious crime involving violence against the person. If so, would you please raise your hand and we'll discuss it."

When Ms. M. was finally called to the jury box, it was learned that she was single, lived in Tulare, worked as a bartender, was majoring in history at Fresno State, and had never served on a jury before. She responded in the negative when she was specifically asked whether she would have responded to any of the court's questions had she been in the jury box earlier. Ms. M. said she did not know anyone involved in the case. She also answered "no" when she was asked whether there was "[a]nything about [her]self that [she thought] the lawyers need to know in deciding whether [she] would be a good juror in their case?" Ms. M. assured the court that she could be fair to both sides. She was ultimately allowed to sit on the jury that was empaneled to try the case.

On January 3, 1995, the jury found appellant guilty of murder in the second degree and of having discharged a firearm at an occupied vehicle. The jury also found true the enhancement associated with the murder charge.

On February 1, 1995, the date originally set for sentencing, defense counsel informed the court that, approximately two weeks earlier, he had seen one of the jurors from this trial, Ms. M., watching the proceedings in an unrelated murder trial. During his brief discussion with her at that time, he learned that she was sitting with the cousin of the victim in that case. He asked the court to continue the sentencing hearing to allow him time to pursue this as a possible basis for a new trial in that she had failed to disclose this information during voir dire. The court granted his request and set the briefing schedule as follows: appellant's motion was to be served on the prosecution no later than February 21, 1995, with the prosecution having until March 3, 1995, the date scheduled for hearing on the motion, to file its opposition, if any, to the motion.

Appellant did not file his motion for new trial until February 22, 1995. Accompanying the motion was a declaration by a defense investigator who stated that he had contacted one of the jurors who decided appellant's case, Ms. M., on February 21, 1995. The investigator, Mr. Gonzalez made the following statement with respect to that contact:

"On this date I finally was able tomake [sic ] CONTACT WITH Jana M[.] and spoke to her on the phone. She stated that she dated Steve Adams who is apparently a cousin to Jason McAfee, a victim [sic ] in another 187 case. She stated that shebegan [sic ] dating Steve Adams about the same time or concurrently to her jury service in the Duran case. She stated that she only dated Steve for a few weeks, having a couple of dates with him. She did state that she did go to court with him a couple of times for moral support. She emphaized [sic ] that this relationship did not have anything to do with her decision in the Duran case, annd [sic ] did not affect her emtionally [sic] at all. She stated she is not seeing him right now."

In his written motion, appellant argued that Ms. M. had committed misconduct by failing to disclose her relationship with Steve Adams during voir dire. Citing section 1181, subdivision (2); In re Hitchings (1993) 6 Cal.4th 97, 110, 24 Cal.Rptr.2d 74, 860 P.2d 466; In re Stankewitz (1985) 40 Cal.3d 391, 396-402, 220 Cal.Rptr. 382, 708 P.2d 1260, and People v. Sutter (1982) 134 Cal.App.3d 806, 184 Cal.Rptr. 829, appellant argued that a new trial was warranted because the presumption of prejudice that flowed from this act of concealment could not be rebutted.

In their opposition papers, the People argued that the proper way to present such information was through the use of juror affidavits--not investigator declarations--and, since appellant had used the latter, the information contained in the declaration constituted hearsay. In support of their position, the People cited People v. Cox (1991) 53 Cal.3d 618, 697-698, 280 Cal.Rptr. 692, 809 P.2d 351; People v. Scott (1982) 129 Cal.App.3d 301, 309, 180 Cal.Rptr. 891, overruled in People v. Hedgecock (1990) 51 Cal.3d 395, 419, 272 Cal.Rptr. 803, 795 P.2d 1260; People v. Federico (1981) 127 Cal.App.3d 20, 38-39, 179 Cal.Rptr. 315; and People v. Villagren (1980) 106 Cal.App.3d 720, 729-730, 165 Cal.Rptr. 470. They asked the court to disregard the declaration entirely and deny the motion based on the complete lack of evidence to support it. In the event the court decided to consider the declaration, the People argued that the information contained therein did not demonstrate juror misconduct; accordingly, they asked that the motion be denied.

During the March 3rd hearing, the parties agreed to put the matter over as there was no interpreter available. Before doing so, the court and counsel engaged in some discussion as to whether appellant would be required to subpoena the juror in question. The court advised the parties that it intended to accept the declaration of the investigator at the next hearing as an offer of proof as to what the juror would testify to if called upon to do so. The court would then make a determination based on that offer as to whether it would be necessary to have the witness appear and testify in person.

When the motion was finally heard on March 8th, defense counsel initially presented the same arguments as he had in his pleadings but added that the other homicide case was one involving high emotions and a lot of publicity. Defense counsel argued that, had he known of Ms. M.'s involvement in the other case, he would have had the opportunity to "either question her further along those lines, or actually to peremptorily challenge her if not for cause." He then asked the court to provide him with the names and addresses of the remaining jurors so that he could contact them and ascertain whether Ms. M.'s involvement in the other homicide case was ever mentioned during deliberations in appellant's case.

The prosecutor argued against disclosure of the other jurors' information since there had been no showing that Ms. M. had raised the issue during deliberations. She also noted that the juror's relationship with the cousin of the murder victim in the other case was very limited and that the juror expressly and emphatically stated that her relationship with Mr. Adams had nothing to do with her decision in appellant's case. The prosecutor noted that appellant had based his motion on subdivision (2) of section 1181 of the Penal Code and pointed to the lack of any evidence showing the jury had received any evidence out of court. Accordingly, the prosecutor asked that the motion be denied.

In ruling on the motion, the court made the following comments:

"I'm going to deny the defendant's motion for new trial. The declaration accepted at its face value does not establish misconduct. The questions put to the prospective jurors along those lines I remember quite well, because these are almost word-for-word the same questions I put in every criminal case, is to the effect that whether a juror has anyone close to them or close personal friend, close relative who had been the victim of a serious crime.

"The individual referred to here I don't think fits into the category as a close...