People v. Porter
| Decision Date | 15 September 2021 |
| Docket Number | E074841 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DEVIN JUWAN PORTER, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1601045 L. Jackson Lucky IV, Judge. Affirmed.
Matthew A. Siroka, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and James H. Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.
On February 20, 2016, defendant and appellant Devin Juwan Porter shot Marcos N. (the victim) following a verbal argument. On November 28, 2018, a jury convicted defendant of attempted first degree murder. (Pen. Code, [1] §§ 664, 187, subd. (a).) The jury also found true allegations that he personally and intentionally discharged a firearm and caused great bodily injury (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)) and personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced defendant to state prison for a total term of 32 years to life. On appeal, he contends there is insufficient evidence to support the jury's finding of premeditation and deliberation. He further argues that the trial court abused its discretion by (1) refusing to disclose personal juror identifying information and (2) imposing a 25-year-to-life sentence for the firearm enhancement. We affirm.
Around 1:00 p.m., on February 20, 2016, the victim was standing outside a smoke/tobacco shop, when a car pulled up. Defendant got out of the car and walked up to another car (a Chevy Impala), which was parked near where the victim was standing. Defendant said, “‘What's up, blood?, '” to a male inside the vehicle and then looked toward the victim. The victim asked, “‘[W]hy you look over here at me?'” Defendant then walked over to the victim, and the two started arguing. Defendant said he was a “Crip” gang member and asked the victim where he was from.
A Black male, in a red shirt, later identified as codefendant Isaiah Howard, got out of the driver's seat of the Impala, approached the victim and defendant, and told the victim that he was a “Blood” gang member. Defendant backed away from the victim and asked Howard for a gun. Howard lifted his shirt, pulled the gun from his front pocket, and handed it to defendant, who continued to argue with the victim. Defendant stepped closer to the victim, “racked” the gun, and pointed it at the victim.[2] Two bullets jumped out of the firearm, indicating a misfire, and the victim was “hit in the head.”[3] Defendant started running away. The victim chased defendant but fell over a curb and landed on the ground. While on the ground, he was kicked by both defendant and Howard. As the victim stood up, he heard a gunshot, looked down at his body, and saw blood. The victim was also bleeding from his head.[4] Defendant and Howard left. The victim started walking home but was approached by the police.
When police arrived, they found two live.380-caliber rounds and a.380-caliber casing at the scene. One of the live rounds had a scratch on its side, consistent with a “double feed, ” i.e., two rounds going into the chamber at once, due to a malfunction with a semiautomatic handgun. Using surveillance video from the smoke shop, along with video and still photographs from a cell phone, the deputies were able to identify the individuals involved in the attack as defendant and Howard. Subsequently, they apprehended Howard, who was driving a Chevy Impala. A search of his vehicle produced the gun that fired the cartridges found at the scene of the attack. The victim was taken to the hospital for treatment of a gunshot wound to his left shoulder and a contusion to his scalp. He was shown photographic lineups and identified both Howard and defendant.
The owner of the smoke shop was working on February 20, 2016, around 1:00 p.m., when he heard a fight outside the store. He went to the door and saw three or four Black males fighting. Two of the males were customers, whom he knew as “Daniel” and “DJ.” The store owner saw Daniel hand a gun to DJ, who took a couple of steps toward the victim, racked the gun, pointed it at the victim, and fired. The owner also witnessed DJ and Daniel kick the victim, as he was “bleeding, and... on the ground.” The owner said he saw Daniel leave in his car, but he did not see what happened to DJ. He identified “Daniel” as Howard and “DJ” as defendant.
Defendant testified on his own behalf. He stated that he grew up in Moreno Valley, played football and basketball at Vista Del Lago High School, was a varsity team captain of the basketball team, has never been a member of a gang, [5] and does not hang out with gang members. He admitted that he knew Howard, who was on his basketball team, but claimed ignorance about Howard's gang membership or if Howard carried guns. Defendant testified that in 2016, he worked Monday through Friday. On Fridays, he worked the late shift-until midnight or 1:00 a.m.-and usually slept late or played basketball at the gym on Saturdays. He admitted to being inside the smoke shop “once, maybe twice, ” by himself, but he denied telling the store owner his name or that DJ was his nickname. Defendant denied being at the smoke shop on February 20, 2016; denied having anything to do with the victim; and denied fighting with and shooting the victim.
Defendant contends the trial court abused its discretion by denying his motion to disclose juror identifying information. We disagree.
The jury returned its verdict on November 28, 2018. On April 5, 2019, defendant petitioned the trial court to disclose the jurors' identities. He argued that, after the verdict was recorded and the juror information was sealed, several jurors spoke to the prosecutor and defense attorney. According to defense counsel's declaration, Opposing the petition, the prosecutor argued that the allegations of misconduct based on a single juror's expression of remorse at her decision, doubt as to defendant's guilt, and a feeling of being pressured by other jurors, are, at best, “speculative, conclusory and vague and fail to establish even a prima facie case of good cause for the release of information.” The prosecutor pointed out that
The trial court denied defendant's request on the ground defendant had not made a prima facie showing of good cause for disclosure. The court stated that a juror feeling “pressure from other jurors would not be... sufficient in terms of showing misconduct.” The court added that
After the jury's verdict is recorded in a criminal case, personal identifying information about the jurors is sealed. (Code Civ. Proc., § 237, subd. (a)(2).) However, “a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, 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.” (Code Civ. Proc., § 206, subd. (g); see § 237, subd. (a)(2).) A petition for access to personal juror identifying information must be “supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information.” (Code Civ. Proc., § 237, subd. (b); see § 206, subd. (g).)
“‘Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires “a sufficient showing to support a reasonable belief that jury misconduct occurred....”'” (People v. Johnson (2015) 242 Cal.App.4th 1155 1161-1162.) The alleged misconduct must be “‘of such a character as is likely to have influenced the verdict improperly.'” (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) “Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported.” (People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) Requests for the release of confidential juror records “‘should not be used as a “fishing expedition” to search for possible misconduct....'” (People v. Avila (2006) 38 Cal.4th 491, 604 [].) “‘Absent a satisfactory, preliminary showing of possible...
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