THE PEOPLE, Plaintiff and Respondent, v. LIONEL FREDRICK JOHNSON, JR., Defendant and Appellant, 242 Cal. App. 4th 1155

Opinion RAMIREZ, P. J. Defendant Lionel Fredrick Johnson, Jr., while plainly drunk, admitted to the police that he had been driving an SUV that had just plowed into another SUV, injuring five people. In a previous appeal (People v. Johnson (2013) 222 Cal.App.4th 486 [166 Cal.Rptr.3d 316]), we held, among other things, that the trial court erred by finding insufficient evidence to require a hearing on defendant’s posttrial motion for disclosure of jurors’ identifying information, because one of the supporting declarations did contain evidence of one instance of juror misconduct.

Noting, however, that the declarations were in conflict, we directed the trial court to grant a hearing unless it found that that declaration was not credible. On remand, the trial court found that the declaration was not credible. Accordingly, once again, it denied the motion without a hearing. In this second appeal, defendant’s sole contention is that, in the previous appeal, we erred by directing the trial court to consider the credibility of the declarations on remand.

In the unpublished portion of this opinion, we will hold that, under the peculiar circumstances of this case, the doctrines of forfeiture, stare decisis, and the law of the case do not prevent us from reaching defendant’s contention. In the published portion of this opinion, we will hold that, in deciding whether to hold a hearing on a motion for disclosure of jurors’ identifying information, the trial court must assume that the declarations supporting the motion are credible; we will overrule our previous opinion to the extent that it held otherwise.

Accordingly, we will direct the trial court to hold an evidentiary hearing on defendant’s motion. I FACTUAL AND PROCEDURAL BACKGROUND A. Conviction and Sentencing. Defendant was found guilty of driving under the influence and causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level of 0.08 percent or more and causing injury (Veh. Code, § 23153, subd. (b)). On each count, one enhancement for personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)) and three enhancements for causing injury to an additional victim (Veh. Code, § 23558) were found true.

Two “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), two prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)), and one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) were found true. As a result, defendant was sentenced to a total of 41 years to life in prison, along with the usual fines, fees, and directives. B. Defendant’s Motion for Disclosure of Jurors’ Identifying Information. The sentencing hearing was held more than 13 months after the jury returned its verdicts.

One month before the sentencing hearing, defendant filed a motion for release of jurors’ identifying information. (Code Civ. Proc., § 237.) The motion was supported by declarations from defendant’s mother and stepfather, Joy and Delvin Livingston. According to defendant’s mother, on the day after the jury returned its verdicts, “as we were leaving the courtroom, three female jurors were standing outside the courtroom.” One was crying. When the crying juror learned who defendant’s mother and stepfather were, she said, “I’m so sorry. ...

I want to talk to the judge.” She then asked, “[W]hy didn’t [defendant] take the witness stand and defend himself[?] Why didn’t he say something, we need to hear it from him.” Defendant’s mother and stepfather introduced her to defense counsel and told him what she had said. He gave her his card “and told her to give him a call.” According to defendant’s stepfather, at a hearing on the day after the jury returned its verdicts, he and defendant’s mother were sitting inside the courtroom; three female jurors were sitting behind them.

When they learned who defendant’s mother and stepfather were, one of them said she was sorry and started to cry.

The other two jurors said “ ‘it was hard for us to vote guilty. [Defendant] may . . . not [have] been the driver and it was possible that he was covering for someone else.’ ” One of the two jurors “further stated that most of them were thinking that if [defendant] was not the driver, why didn’t he take the stand to defend himself during the deliberations.” The crying juror “started to cry more and said she needed to talk to the judge to do something about what happened.” “The juror” also said something that the jurors “wrestled with” was “why isn’t [defendant] taking the stand.” Finally, “[t]he three jurors indicated that they were at least half of the jurors who raised the question if he is innocent why didn’t he take the stand to defend himself.” When the hearing was over, all three jurors spoke to defense counsel.

On the date set for sentencing, the trial court first heard argument on defendant’s motion. The prosecutor conceded, “[Ajssuming the facts as stated in the motion are correct, I believe there is good cause to disclose the juror information.” However, he argued that the declarations were not credible because, if the facts stated in them were true, defense counsel would not have waited over a year to file the motion. The trial court denied the motion because, in its view, the declarations fell short of showing any jury misconduct. C. The First Appeal.

Defendant appealed, arguing (among other things) that the trial court had erred by denying his motion for disclosure of jurors’ identifying information. As threshold matters, we held that (1) the declarations were not inadmissible hearsay (People v. Johnson, supra, 222 Cal.App.4th 486, 493-494); (2) defendant did not have to show that he had made diligent efforts to contact the jurors by other means (id. at pp. 495-497); and (3) the motion was timely (id. at pp. 497-498). We then held that, under Evidence Code

section 1150, all of the evidence of purported juror misconduct in defendant’s mother’s declaration was inadmissible. (People v.

Johnson, supra, 222 Cal.App.4th at p. 495.) Similarly, all of the evidence of purported juror misconduct in defendant’s stepfather’s declaration was inadmissible, with one exception — the statement that “ ‘at least half of the jurors . . . raised the question if he is innocent why he didn’t take the stand to defend himself.’ ” (Ibid.) We explained: “ ‘[B]y violating the trial court’s instruction not to discuss defendant’s failure to testify, the jury committed misconduct. [Citations.]’ [Citation.] Moreover, the mere making of such a statement in the jury room was an overt act of misconduct and admissible as such under Evidence Code

section 1150. [Citations.]” (Ibid.) We then stated: “Finally, we also consider whether the trial court should have denied defendant’s motion because, as the prosecutor argued below, the declarations were not credible. Certainly there was room for skepticism. The mother and stepfather contradicted each other on several points. If one chooses to credit the mother’s account over the stepfather’s, then there is no admissible evidence of juror misconduct at all. Moreover, it is hard to believe that the jurors told defendant’s parents that they wanted to talk to the judge but did not say this to defense counsel.

Indeed, according to the mother, she told defense counsel what the juror had said. Even assuming this information was not volunteered, it is hard to believe that defense counsel did not take the opportunity to debrief the jurors. “Nevertheless, ‘ “[t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court” ’ [citation], even when the witnesses testify via declarations [citation]. Here, the trial court denied the motion, but not because the declarations were incredible. We cannot say that the declarations were incredible as a matter of law.

Thus, we cannot affirm the denial on this ground. However, it will be open to the trial court to make such a determination on remand.” (People v. Johnson, supra, 222 Cal.App.4th at pp. 498-499.) In our disposition, we ordered: “The judgment with respect to the conviction is affirmed, and the judgment with respect to the sentence is reversed, subject to the following conditions. On remand, the trial court must reconsider defendant’s motion for disclosure of jurors’ identifying information, and it must grant that motion, unless it finds that the evidence that otherwise supports the motion is not credible.

If. . . the trial court denies the motion for disclosure of jurors’ identifying information, . . . the trial court must resentence defendant.” (People v. Johnson, supra, 222 Cal.App.4th at pp. 499-500.) The People filed a petition for rehearing, which we denied. Defendant did not file a petition for rehearing. D. Proceedings on Remand. On remand, the trial court duly held another hearing on the motion. The prosecution introduced defendant’s stepfather’s rap sheet. Defendant introduced a letter from an assistant United States attorney.

Apparently, these exhibits showed that defendant’s stepfather had been convicted in state court of domestic violence. He had also been convicted in federal court of drug distribution.

He had been sentenced to life in prison; however, by providing information on other cases, he had gotten his life sentence “reduced to something that was less than life.” In the opinion of the assistant United States attorney, he had shown himself to be “absolutely committed to telling the truth about others and most importantly about himself.” If he were to be found guilty of perjury, he would be “jeopardizing himself in a very big way.” After hearing argument, the trial court once again denied the motion.

It specifically found that defendant’s stepfather’s declaration was not credible: “I think the late filing certainly goes to the credibility of [defendant’s stepfather]. And the prior convictions are admissible as impeachment, and the relationship with the defendant and ... the defendant’s mother.” Accordingly, it resentenced defendant. II-IV V CONSIDERING CREDIBILITY IN DETERMINING WHETHER A PARTY HAS MADE “A PRIMA FACIE SHOWING” UNDER CODE OF CIVIL PROCEDURE

SECTION 237 Under Code of Civil Procedure

section 237, any person may petition the trial court for access to personal juror identifying information. (Code Civ.

Proc., § 237, subd. (b).) The petition must be accompanied by a declaration (or declarations). {Ibid.) Subject to exceptions not applicable here, “[t]he 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 personal juror identifying information . . . .” {Ibid.) “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 . . . .’ [Citations.]” (People v.

Cook (2015) 236 Cal.App.4th 341, 345-346 [186 Cal.Rptr.3d 459].) If the trial court does set a hearing, it must provide notice to each of the jurors, either by personal service or by mail to his or her last known address. (Code Civ. Proc., § 237, subd. (c).) “Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition.” {Ibid.) “After the hearing, the records shall be made available as requested in the petition, unless a former juror’s protest to the granting of the petition is sustained.

The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure . . . , or the juror is unwilling to be contacted by the petitioner.” {Id., subd. (d).) The issue before us is fundamentally one of statutory

interpretation. “ ‘In construing a statute, our task is to determine the Legislature’s intent and purpose for the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls .... [Citation.] “However, if the statutory language permits more than one reasonable

interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.” ’ ” (People v. Yartz (2005) 37 Cal.4th 529, 537-538 [36 Cal.Rptr.3d 328, 123 P.3d 604].) Under Code of Civil Procedure

section 237, subdivision (b), the trial court’s job is to determine whether the petitioner has “established] a prima facie showing of good cause.” The statute does not tell us, in so many words, whether it can consider credibility in the process. We have considered the legislative history of the “prima facie showing” requirement, to the extent that it is available through the Legislative Counsel’s Web site, but we have not found it particularly helpful.

The Legislature was concerned about “incidents where a defendant has received information about the jurors and has harassed or threatened them, by mail, from prison.” (Sen. Com. on Criminal Procedure, Analysis of Sen. Bill No. 508 (1995-1996 Reg. Sess.) Mar. 21, 1995, p. 4.) It therefore determined_to require “some showing of good cause before the records are to be released.” {Id. at p. 5.) After the bill was introduced, it was amended to require a prima facie showing of good cause before the trial court must hold an evidentiary hearing. (Sen. Bill No. 508 (1995-1996 Reg.

Sess.) as amended July 5, 1995, §3.) We have found no readily available legislative history materials relating to the intent behind this amendment. (See, e.g., Assem. Com. on Public Safety, Analysis of Sen. Bill No. 508 (1995-1996 Reg. Sess.) as amended July 6, 1995.) Normally, however, a “prima facie showing” connotes an evidentiary showing that is made without regard to credibility.

For example, in the context of an anti-SLAPP motion, to demonstrate a probability of prevailing on the merits, “ ‘the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [124 Cal.Rptr.2d 530, 52 P.3d 703], italics added.) This is particularly true when the prima facie showing merely triggers an evidentiary hearing, at which any necessary credibility determinations can still be made. Spaccia v.

Superior Court (2012) 209 Cal.App.4th 93 [146 Cal.Rptr.3d 742] discussed some of these situations. There, the petitioner claimed the trial court had erred by denying — without an evidentiary hearing — her motion to recuse the district attorney. (Id. at pp. 102, 108.) Under Penal Code

section 1424, a motion to recuse a district attorney must be supported by affidavits; the district attorney may file affidavits in opposition. (Pen. Code, § 1424, subd. (a)(1).) “The judge shall review the affidavits and determine whether or not an evidentiary hearing is necessary.” (Ibid.) The appellate court noted that the legal standard that applied in determining whether to hold an evidentiary hearing was an issue of first impression. (Spaccia v.

Superior Court, supra, 209 Cal.App.4th at p. 109.) Based on the legislative history (id. at pp. 110-111), it determined that the Legislature did not intend to require an evidentiary hearing only when there was a disputed issue of material fact (ibid.). It then stated: “One situation in which a trial court is called upon to determine whether to grant an evidentiary hearing on an issue is a petition for a modification of a dependency order, under Welfare and Institutions Code

section 388. Welfare and Institutions Code

section 388 permits a parent or other interested party to seek to modify an existing dependency order.

If it appears to the court that the best interests of the child may be promoted by the proposed change of order, the court shall order that a hearing be held on the issue. [Citation.] The courts have concluded that a ‘parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.’ [Citation.] ‘A “prima facie” showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ [Citation.] Similarly, an inmate seeking habeas corpus relief must state a prima facie case in order to obtain an order to show cause. [Citations.] In our view, a similar test should apply when a party seeks a hearing on a recusal motion under Penal Code

section 1424: the party seeking an evidentiary hearing must make a prima facie showing by affidavit; a prima facie showing refers to those facts demonstrated by admissible evidence, which would sustain a favorable decision if the evidence submitted by the movant is credited.” (Spaccia v. Superior Court, supra, 209 Cal.App.4th 93, 111-112, italics omitted & added, fn. omitted.) In our previous opinion, we relied on the general principle that the trial court, when deciding an issue of fact, can make credibility determinations even when the witnesses testify through declarations. (E.g., People v.

Hamlin (2009) 170 Cal.App.4th 1412, 1463 [89 Cal.Rptr.3d 402].) However, we overlooked the question of just what issue, exactly, the trial court was supposed to be deciding. Actually, because it was supposed to be deciding whether defendant had “establish[ed] a prima facie showing of good cause,” credibility was irrelevant. Thus, we sent the trial court off on a wild goose chase, in which it obediently considered such matters as the belated filing of the petition, the stepfather’s prior convictions, and the stepfather’s likely bias. These matters were irrelevant.

As we held in the previous appeal, the stepfather’s declaration contained admissible evidence that juror misconduct occurred. Arguably, if the mother’s declaration contradicted his declaration on this critical point, that would mean that the declarations as a whole still failed to make a prima facie case. (See D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1222-1223 [106 Cal.Rptr.3d 399].) The declarations did contradict each other on a variety of details — with respect to where the conversation with the jurors took place, how many jurors spoke, and whether the jurors spoke to defense counsel.

However, the mother did not specifically contradict the stepfather’s statement that the jurors admitted having wondered out loud why, if defendant was innocent, he did not take the stand. She simply did not say (perhaps because she did not recall) whether this statement was made. We therefore conclude that in the first appeal, we erred by remanding the case at all. Rather, we should have directed the trial court to hold an evidentiary hearing on defendant’s motion for disclosure of jurors’ identifying information. On the principle of “Better late than never,” we will do so in this appeal.

VI DISPOSITION The judgment with respect to conviction is affirmed, subject to any motion for new trial that defendant may bring on remand. The judgment with respect to sentence is reversed, subject to the following conditions. On remand, the trial court must set an evidentiary hearing on defendant’s motion for disclosure of jurors’ identifying information. If it denies the motion, it shall reimpose the original sentence.

If it grants the motion, it shall set a date for sentencing that will allow defendant a reasonable time to use the jurors’ identifying information in determining whether to file and in filing a motion for new trial. If defendant fails to file a timely motion for new trial, or if defendant’s new trial motion is denied, the trial court shall reimpose the original sentence. If defendant’s new trial motion is granted, the trial court shall proceed accordingly. Miller, J., and Codrington, J., concurred. The parties have not included these exhibits in the clerk’s transcript (see Cal.

Rules of Court, rule 8.122(a)(3)) nor transmitted them to us (see id., rule 8.224). See footnote, ante, page 1155. The Supreme Court later endorsed the Spaccia standard in Packer v. Superior Court (2014) 60 Cal.4th 695, 710, 712 [181 Cal.Rptr.3d 41, 339 P.3d 329].