NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
HILL, P.J.
Appellant Brian Joaquin Alvarado appeals from the judgment entered following a jury trial that resulted in his convictions for robbery, assault by means likely to produce great bodily injury, and battery with serious bodily injury and various sentence enhancements. Appellant contends the trial court erred by: (1) denying his motion for a new trial based on newly discovered evidence; and (2) denying his motion for release of juror identifying information. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
On June 22, 2009, Ruben Almendarez was walking behind Daniel Sanchez in an alley next to an apartment complex in Tulare, when a witness across the street observed two men jump out of some bushes and beat up Almendarez, causing Almendarez to suffer severe facial bone fractures. When Almendarez woke up in the hospital later that night, he discovered his wallet and cash (approximately $800) were missing. Appellant was involved in a traffic stop near the time and place of the attack. A search revealed that appellant had Almendarez's wallet and a large wad of cash (totaling $810) in his pockets. Blood found on appellant's shirt, jeans, and the cash was consistent with Almendarez's blood sample. Almendarez did not give appellant permission to have his wallet or money.
The Defense Case
Daniel Sanchez testified on appellant's behalf that appellant was not one of the two men that attacked Almendarez. Appellant, with whom Sanchez was acquainted through a girlfriend, appeared on the scene after the attackers left and helped Sanchez to lift Almendarez to his feet. In doing so, appellant held Almendarez against his body. Afterwards, appellant ran in pursuit of the men that attacked Almendarez. Shortly after the attack, when the police took Sanchez to view three people, including appellant, they only asked Sanchez if they were the ones involved in the attack and Sanchez answered no. Sanchez explained he did not tell the police that appellant had been there helping Almendarez because he knew appellant was on parole and was not supposed to be in Tulare. He also figured the police would let appellant go since he was not involved in the attack.
Procedure
On October 13, 2009, the jury found appellant guilty of the charged offenses, including second degree robbery (Pen. Code,1 § 211; count 1), assault by means likely to cause great bodily injury (§ 245, subd. (a)(1); count 2), and battery with serious bodily injury (§ 243, subd. (d); count 3). With respect to counts 1 and 2, the jury found that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)).
On October 14, 2009, the trial court found true allegations in each count that appellant had suffered one prior strike conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). On January 27, 2010, the court sentenced appellant to prison for a total of 20 years.
DISCUSSION
I. Denial of New Trial Motion
Appellant contends the trial court erred in denying his new trial motion based on newly discovered evidence (§ 1181, subd. (8)). The motion was based on a declaration by Almendarez, claiming that he had recovered memories of appellant coming to his assistance after the perpetrators left. We conclude the trial court did not abuse its discretion in denying the new trial motion after finding Almendarez's declaration lacked credibility.
A. Background
During his trial testimony, Almendarez was unable to provide any significant details about the circumstances of the attack. He testified, in relevant part, as follows:
"A [ALMENDAREZ] I got hit from behind.
"Q [THE PROSECUTOR] Okay. So somebody hit you?
"A Yes.
"Q Okay. Did you see these people ever?
"A No. I didn't see anything.
"Q Okay. Do you know how many people there were?
"A. No, I don't. As soon as I was hit, I blacked out.
"Q So was it Daniel Sanchez who hit you?
"A No. He was in front of me.
"Q Okay. So you never saw anybody?
"A No. I didn't see anything. [¶] ... [¶]
"Q All right. Now you said you get hit from behind and you black out?
"A Yes.
"Q Okay. Do you — when you come to? Like when is your next lucid moment?
"A The only thing I kind of really remember I was — that somebody really like asking if he — me if I was okay, and I don't even remember who that was. I couldn't see anything and I just kind of remember them taking off. It was all blurry. I had blood in my eyes.
"Q All right.
"A And after that I found out — I was awake, but still I mean I tried to remember the whole situation, but the only thing I really remember is waking up at the hospital after that. When I really come to myself is at the hospital.
"Q So now after this you don't know how long it lasted. You don't know how many strikes. You can't tell us anything about that?
"A No, I don't.
"Q Okay. After this assault has your memory — did it affect your memory at all or, you know, your ability to recall? Were things foggy?
"A Yeah. The whole situation was kind of — I just can't really remember anything from it.
"Q Okay. Now do you know when you came to were you on the ground at the apartment complex or —
"A When they were asking me if I was all right?
"Q Yeah.
"A Yeah. I was on the ground.
"Q Were you face down or face up?
"A I, I don't remember.
"Q All right. Do you know who was asking you if you were all right?
"A No, I don't."
On cross-examination, Almendarez repeated that he did not know who came to help him after the attack.
"Q [DEFENSE COUNSEL] Okay.... You testified earlier that you sort of remember somebody helping you get up?
"A [ALMENDAREZ] Just kind of like shaking me, asking me if I was okay.
"Q And, and was that Daniel or somebody else?
"A I can't tell you who it was. I couldn't even see anything.
"Q So do you remember if you were still on the ground?
"A Yeah. I was on the ground still.
"Q And somebody tried to help you up?
"A Yes.
"Q Do you remember if it was a man or a woman?
"A It was a guy. I still can't tell you who it was.
"Q Did you hear the voice?
"A I just heard a guy's voice. I can't tell you who it was. I mean I — it's kind of hard for me to remember anything.
"Q Well did you recognize the voice?
"A No.
"Q So you heard a voice asking you and trying to help you get up; is that right?
"A Yes.
"Q And you don't — you didn't recognize the voice.
"A No.
"Q And, you didn't see who it was?
"A No, I didn't see who it was. I don't know if it was because my eyes were swollen or there was blood in my eyes, but I couldn't see who it was.
"Q But you could still hear, right?
"A Yeah.
"Q You didn't recognize the voice?
"A No."
On January 11, 2010, appellant filed a motion for new trial. Almendarez's supporting declaration stated:
"On June 22, 2009 I was the victim of a robbery and assault. [¶] As a result of this crime I suffered a severe head injury. [¶] ... [¶] After I testified at the trial [in October 2009], I remembered more details about the events of June 22, 2009, details that I did not remember when I testified at the trial, including the following: [¶] I now remember seeing [appellant] at the location of the robbery/assault after the perpetrators had left the scene. [¶] I now remember that after after the robbery/assault [appellant] was present and assisting me. [¶] I now remember [appellant] identifying himself to me and asking me if I needed assistance. [¶] I now remember [appellant] helping me. [¶] I believe that [appellant] has been convicted of crimes he did not commit."
During the hearing on the new trial motion, the trial court repeatedly expressed the view that Almendarez's declaration lacked credibility and this appears to have been the basis for the court's denial of the motion. The court's view of Almendarez's declaration is reflected in the following excerpts from the reporter's transcript of the hearing:
"THE COURT: ...I see no impropriety with you or your office, but it appears to me that [appellant's] family or friends got to Mr. Almendarez and now we've got some new story which I don't believe a thing in this declaration.
"[DEFENSE COUNSEL]: All right, Your Honor. That's — I see your position. However, there's, there's no evidence that there was any pressure put on Mr. Almendarez. And in fact, we interviewed him before he signed or after he signed the declaration and, and talked to him about whether he had been threatened and we have an audio recording of that and I have a transcript of it and he said the reason he came forward was to get it off his chest because it's bothering him that a person got convicted that didn't do the crime. That's what he's saying.
"THE COURT: Well that may be, but in my view that wasn't the case. I did the trial. The evidence was overwhelming and I don't care what Mr. Almendarez says. You have his testimony at trial that he did not, could not identify who was involved in helping him. He did testify to that.
"But with, with the other witnesses who described what the assailant was wearing, the bandana, the hats were all consistent with what [appellant] had on [and] how do you get away from the fact that within moments after this alleged assault or this, this robbery goes down your client has the victim's blood, has the victim's wallet and has the victim's money with the victim's blood on it. [¶] ... [¶]
"[DEFENSE COUNSEL]: ...Also I would just like to point out that [the prosecutor] characterizes the victim's declaration as recanting and it's not a case of a person recanting. He's not —
"THE COURT: Well it's different than what he testified at trial.
"[DEFENSE COUNSEL]: It's additional. It's not different. It's additional.
"THE COURT: Well if you say—
"[DEFENSE COUNSEL]: It doesn't contradict it.
"THE COURT: I would say it would contradict it. He said, testified at trial he did not recognize the person who assisted him. He's now saying — he's now giving a different story in that now I do recall and it was the defendant. He helped me.
"[DEFENSE COUNSEL]: He didn't say I didn't recognize him. He said I didn't see him. That's different than saying I didn't recognize him. Now he's saying well, you know, he's remembering more.
"THE COURT: All right.
"[DEFENSE COUNSEL]: And considering his severe head injury and the fact that he remembered more between the prelim and the trial and between the trial and when he contacted me, this is a perfect definition of new evidence. This is the perfect definition of what constitutes new evidence. It is new evidence and it's material to a critical issue in the case and there's a reasonable probability that had the jury heard this, his testimony, the result would have been different.
"THE COURT: I disagree on that theory. I would like to hear from [the prosecutor.] [¶] ... [¶]
"[THE PROSECUTOR]: I would just like to say in addition to all the other things we've heard, he testified that my eyes were full of blood. I didn't see a thing. He said he did not recognize the voice that he heard and he still testified that the defendant, [appellant], did not have permission to have his wallet or his money, so if [appellant] supposedly is the assisting person, why would he come up and testify that he didn't have permission to have his wallet or money.
"THE COURT: Well based on everything I hear, there's nothing that suggests that [appellant] was a good samaritan in this case. [¶] ... [¶]
"[DEFENSE COUNSEL]: What really seems to be the issue here is whether the court accepts this declaration from Ruben Almendarez and, and perhaps the circumstances of him making a declaration are at issue as well and so, you know I, I know that Mr. Almendarez is willing to come to court and testify about what has happened here. [¶] ... [¶]
"THE COURT: I'm accepting the fact that if he came to court, he would testify to these facts. I don't accept it as credible. I don't believe it. [¶] ... [¶]
"[DEFENSE COUNSEL]: The issue is whether if the, if the jury heard the — this testimony of the victim of the crime who is usually accorded great deference and certainly there's no evidence that he's connected to [appellant] or cooking up evidence with him.
"I mean who is more credible than the victim of the crime. I don't understand why his credibility is impeached. Why would he be trying to assist somebody who assaulted him, robbed him, broke bones in his face, left him bleeding on the sidewalk. Why would he do that?
"THE COURT: Well I have my own theory on that.
"[DEFENSE COUNSEL]: Why would we lie?
"THE COURT: The motion is denied. Let's proceed to sentencing...."
B. Discussion
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."' [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado); see also People v. Sutton (1887) 73 Cal. 243, 247-248.)
Particularly pertinent to this case is the third of these five factors. "`[T]he trial court may consider the credibility as well as the materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.' (People v. Beyea (1974) 38 Cal.App.3d 176, 202.)" (Delgado, supra, 5 Cal.4th at p. 329.) "It was not improper for the trial court to deny defendant's motion if it believed [the affiant's] proffered affidavit lacked credibility and would not have changed the result on retrial." (People v. Cole (1979) 94 Cal.App.3d 854, 860, disapproved on another ground in In re Kelly (1983) 33 Cal.3d 267, 277.) "The weight and credibility to be attached to the affidavit and testimony in support of defendant's motion was for the trial judge ...." (People v. Hill (1969) 70 Cal.2d 678, 699.)
"`"[I]n determining whether there has been a proper exercise of discretion on such a motion, each case must be judged from its own factual background."'" (People v. Delgado, supra, 5 Cal.4th at p. 328; People v. Dyer (1988) 45 Cal.3d 26, 52.) "`The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" (People v. Williams (1988) 45 Cal.3d 1268, 1318; Delgado, supra, 5 Cal.3d at p. 328.)
As the above authorities make clear, the trial court could properly deny the motion for a new trial based on a determination that the supporting declaration lacked credibility; the court was not required, as appellant argues, to grant appellant a new trial to allow a jury to make that determination.
Moreover, contrary to appellant's assertions, the trial court's comments reflect that its credibility determination was not based simply on speculation that Almendarez was pressured to change his testimony. Rather, throughout the hearing on appellant's new trial motion, the trial court consistently expressed the view that Almendarez's declaration was not credible because it conflicted with his trial testimony and was contradicted by the evidence at trial.
The record supports the trial court's view of Almendarez's declaration and, therefore, contrary to appellant's assertion, the trial court's credibility determination is entitled to deference under the applicable standard of review. The trial court could reasonably view Almendarez's new claim that he remembered seeing appellant after the perpetrators left and appellant asking him if he needed assistance as inconsistent with his trial testimony that he remembered someone asking him if he was okay but he did not recognize the person's voice and he could not see the person because his eyes were swollen or filled with blood. It was also reasonable for the court to view with skepticism Almendarez's claim that appellant assisted or helped him after the attack. It is unclear how appellant can be said to have assisted Almendarez when he was found in possession of Almendarez's wallet and money, which Almendarez specifically testified he did not give appellant permission to possess. On this record, we find no basis to overturn the discretionary decision of the trial court.
People v. Love (1959) 51 Cal.2d 751, 753, 758 (Love), on which appellant relies, is inapposite. There, the defendant was convicted of the first degree murder of his wife. The trial court granted the defendant's motion for a new trial after the defendant's stepfather testified at the penalty trial that he could not remember whether the defendant had threatened to kill his wife as the stepfather had previously testified. (Love, supra, 51 Cal.2d at pp. 753-755.)
"In explanation of his change in testimony he stated that he had been drinking for about two months before the homicide, that he was quite drunk at the time the alleged threat was made, and that he had been drinking at the time he gave his former testimony. For the last two weeks, however, he had been receiving treatment for alcoholism at a state hospital, his memory was greatly improved, and he now knew that he could not state whether defendant had threatened to kill himself or his wife." (Id. at p. 755.)
In affirming the trial court's order granting the defendant a new trial, our Supreme Court observed:
"When the stepfather testified at the trial on the issue of punishment he was carefully examined by the prosecution, the defense, and the trial court itself. His testimony at that time fully supports the trial court's conclusion that his earlier testimony that defendant threatened to kill his wife was worthless.
"The record also supports the trial court's conclusion that the fact that that testimony was worthless could not have been discovered by the exercise of reasonable diligence before or at the time it was given. Thus direct evidence of that fact only became available after treatment for alcoholism had improved the witness' memory, and there does not appear to be anything that defendant's counsel could have done to establish that fact earlier that he did not do. He had interviewed the witness before the first trial and he cross-examined him at that trial, and it affirmatively appears that it was not readily apparent that the witness had been drinking at the time he testified.
"Finally the record supports the trial court's conclusion that the newly discovered evidence was neither merely cumulative nor merely impeaching but was `material to the defendant' [citation] in that it would render a different result probable on retrial of the cause. [Citations.] Thus, the testimony that defendant had threatened to kill his wife if she would not live with him was the only direct evidence of premeditation, and as the trial court pointed out in granting the motion for new trial, it strongly bolstered the circumstantial evidence on which the prosecution also relied.... It was for the trial court to weigh the evidence and consider the inferences that might be drawn therefrom to determine whether or not the elimination of the stepfather's testimony would probably lead to a different result. (Id. at pp. 756-757.)
The trial court in Love clearly found the stepfather's new testimony to be credible, and the Supreme Court found record support for the court's credibility determination. Here, in contrast, the trial court found Almendarez's new testimony lacking credibility and we find record support for the court's finding. Love provides no basis for rejecting the trial court's credibility determination in this case, and simply demonstrates the point that this determination was one that was well within the trial court's discretion to make.
II. Motion for Disclosure of Juror Identifying Information
Appellant contends the trial court erred by denying his motion for the disclosure of juror identifying information. The motion was supported by a declaration by defense counsel stating that she observed the jury foreperson shaking his head and making other expressions of disagreement during her oral argument. Assuming the motion was timely made, we conclude the court acted within its discretion in finding these facts were insufficient to establish good cause for ordering release of the jurors' personal identifying information.
A. Background
On October 13, 2009, the prosecutor and defense counsel presented their closing arguments. The same day, the jury deliberated and returned its guilty verdict.
On October 14, 2009, prior to the court trial on the prior conviction allegations, defense counsel raised an issue of possible juror misconduct, as reflected in the following exchange:
"[DEFENSE COUNSEL]: Juror number six who turned out to be the foreperson. And I want to put on the record that I noticed, and after the trial several people who were in the courtroom noticed that he was shaking his head and blowing raspberries during my argument and he turned out to be the foreperson, and in my opinion that showed a perhaps showed an unwillingness to deliberate in this matter and I just want to put on the record that I'm concerned about it. That I'll be researching it and perhaps filing affidavits and a motion for a new trial. That's my record.
"THE COURT: All right. I will state for the record I did not see it. That doesn't mean it did not happen, I just did not see that but certainly I would invite your research on the matter, your further work on the matter. If you find something fruitful there, I'll certainly consider it. You may want to get some declarations of people here and you may have to get [Juror number six] back in here if it raises to the level of an issue.
"[THE PROSECUTOR]: My response would be I did not observe that conduct, number one.
"Number two, I believe her remedy would have been at the time that this was occurring to bring it up rather than raise it after a verdict has already come out and allege that some sort of misconduct or anything like that occurred on the jury. If she observed these things and which she stated she did, she could have easily brought it up with you. You could have instructed [Juror number six] to cease whatever it is she claims he was doing and we could have moved on.
"The fact that she let it continue without addressing it and now is saying it's a basis for a motion for a new trial is I think in bad faith.
"THE COURT: No. I think she's just making an observation. She's not quite sure how it's going to play out. She indicates that she would like to pursue it further. I don't blame her for not bringing it up in the middle of her closing argument. That would have been difficult and awkward so maybe at the end of her closing argument I don't know that, that could have been an issue but certainly not while she was making her argument. In any event, you made your record. Let's move on."
On November 23, 2009, appellant filed a motion seeking an order "releasing the personal information of all jurors empanelled in the ... action ... so that he may explore the possibility of an unduly prejudiced verdict." Defense counsel's supporting declaration stated, in relevant part:
"Based upon my information and belief, the jury foreman shook his head, made noises and gestures, and seemed to signal an unwillingness to deliberate during my closing argument. [¶] Based upon my information and belief, that this juror may have exerted improper pressure upon other jurors to deliver verdicts contrary to their beliefs concerning the facts in this trial."
The trial court considered the motion on December 3, 2009. After listening to extensive argument by both sides, the court denied the motion, reasoning as follows:
"Well I can only assume that the jurors followed my instructions and jurors were instructed 3550 CALCRIM that it is their duty to deliberate with one another. Keep an open mind. Openly exchange your thoughts and ideas about the case. Stating your opinion too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. That was the law that was given to the jury. I will assume that they followed that law.
"[The prosecutor] makes a good point in that deliberations continued for three hours or so. I can't remember exactly. There was overwhelming evidence of your client's guilt in the court's mind. There's nothing substantial in your declaration to indicate any type of juror misconduct in the court's mind. It's not uncommon for jurors to disagree with counsel's arguments about your setting forth your position on how the case should be viewed by the jury. I've seen jurors before shake their heads. I've seen jurors nod their heads when somebody is making an argument.
"I mean you can follow the logistics, if [the prosecutor] was giving his argument and one of the jurors was nodding his head, would that be juror misconduct?
"The juror was shaking his head indicating he did not agree with your position. Whether or not that was misconduct, if you can show me that, that juror was then sharing that information with somebody else or pointing out the fallacies of your — what he perceived as the fallacy of your argument to other jurors then fine, but I agree with counsel the declaration is speculative as it may have caused.
"I find that there is insufficient showing of good cause to justify the release of juror information. That's my ruling."
B. Discussion
Following a verdict, a defendant 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." (Code Civ. Pro., § 206.) "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 requested information. (Code Civ. Proc., § 237, subd. (b).)
Good cause for disclosure of juror information to support a motion for new trial based on juror misconduct is "a sufficient showing to support a reasonable belief that jury misconduct occurred." (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) There is no good cause where allegations of jury misconduct are speculative, conclusory, or unsupported, or the alleged misconduct is not "of such a character as is likely to have influenced the verdict improperly." (Evid. Code, § 1150, subd. (a); see Rhodes, at p. 552.) We review the denial of a petition for disclosure for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
The trial court did not abuse its discretion in denying appellant's motion. The allegations that the foreperson's conduct during defense counsel's closing argument "seemed to signal an unwillingness to deliberate" and that he "may have exerted improper pressure" on other jurors were conclusory and speculative. (Italics added.) As the trial court observed, it is not uncommon for jurors to disagree with particular arguments being advanced by counsel nor is it uncommon for jurors to nod or shake their heads or otherwise visibly react during closing argument. Such conduct does not obviously give rise to an inference a juror will refuse to deliberate or try to influence other jurors to disregard the evidence presented at trial, in violation of the trial court's explicit instructions to the contrary. The trial court could reasonably find the limited facts offered in support of the motion in this case were insufficient to support a reasonable belief that juror misconduct occurred. Accordingly, appellant has not demonstrated the trial court abused its discretion in denying his motion for disclosure of juror identifying information.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
WISEMAN, J.
POOCHIGIAN, J.
