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The People v. Baz Mohammad Niazi

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


April 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BAZ MOHAMMAD NIAZI, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F00398)

The opinion of the court was delivered by: Butz , J.

P. v. Niazi

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

A jury convicted defendant Baz Mohammad Niazi of two counts of oral copulation of an intoxicated person. (Pen. Code, § 288a, subd. (i).) He was sentenced to an aggregate term of five years in state prison. On appeal, defendant contends the trial court erred when it denied his motion to disclose juror identification information, thereby depriving him of the opportunity to further investigate juror misconduct and make a motion for new trial. We find no reversible error and shall therefore affirm the judgment.

FACTUAL BACKGROUND

In the late afternoon of July 4, 2008, S.D. and her boyfriend Andrew attended a party at the residence of S.D.'s cousin. In addition to members of her extended family, S.D.'s aunt attended with defendant, who was her boyfriend. The party progressed into the night with activities that included barbecuing, dancing, drinking alcohol, playing cards, and fireworks. At one point, S.D. and Andrew sat opposite defendant and S.D.'s aunt during a card game.

Throughout the evening, S.D. was drinking vodka and Hawaiian punch without eating, and as a result she became very intoxicated. Consequently, Andrew escorted her to the house's only bedroom to rest. By 10:30 p.m., S.D. was lying across the bed, throwing up into a bag. Andrew and S.D.'s brother returned several times over the next two hours to check on her. Because the bathroom was only accessible from the living room by crossing through the bedroom, several people, including defendant, walked past S.D. while she was lying on the bed.

S.D. testified that she passed out alone in the bedroom after vomiting, and did not remove her clothing. She awoke to a figure coming into the room. The man lay on top of her, kissed her, and then inserted his penis into her mouth two or three times. During this assault, S.D. was aware that "something was happening," but did not know how to react to it because of her state of intoxication. However, she remembered defendant's "buzz" haircut brushing against her face, and defendant telling her to "swallow it." Next, defendant removed S.D.'s shorts and inserted his penis into her vagina. S.D. was too "passed out" to fight back or say anything, and she slipped in and out of consciousness. The entire incident lasted between five and 10 minutes.

Around midnight, S.D. emerged from the bedroom, crying and accusing defendant of raping her. She confronted defendant in the front yard, but he denied her accusations. At 1:16 a.m. on July 5, S.D. arrived at the University of California, Davis Medical Center for a rape examination. Although she was not bruised or bleeding, S.D. complained of a sore jaw, tender thighs, and pain in her genital area.

A nurse who examined S.D. testified that the outside of her vaginal opening was torn in an area most likely to be injured from traumatic intercourse. However, this injury could also be attributed to consensual sex. S.D. told the nurse that she and her boyfriend had sex between 10:00 a.m. and 11:00 a.m. the morning of July 4.

Defense

Defendant testified that S.D. flirted with him throughout the evening. During the card game, she rubbed his leg under the table several times. After the game, S.D. approached defendant, told him she "really liked [him]." She asked him several times to meet her in the bedroom. She did not appear to be intoxicated. Defendant testified that he walked through the bedroom to use the bathroom. When he emerged, S.D. had closed the bedroom door to the living room and the light was off. S.D. approached defendant and started touching his chest, kissing, and hugging him. She then unzipped his pants and gave him oral sex for three or four minutes. S.D. then took off her pants, laid down on the bed, and said: "Come here. Let's have sex." He initially told her "no," but after several encouragements from S.D., defendant penetrated her vagina for about eight seconds before he stopped, telling her, "We can't do this." During their encounter, S.D. never objected or protested in any way.

PROCEDURAL HISTORY

Defendant was charged with two counts of oral copulation of an intoxicated person (Pen. Code, § 288a, subd. (i)) and one count of rape of an intoxicated person (id., § 261, subd. (a)(3)). The jury found defendant guilty on the two oral copulation counts, but found him not guilty of the rape charge.

Defense Counsel's Declaration

After the verdict and discharge of the jury, the defense filed a motion to unseal the jurors' personal identifying information pursuant to Code of Civil Procedure section 237.*fn1 The motion was based on defense counsel's declaration, which disclosed two conversations he had with members of the jury immediately following the verdict on January 8, 2010. Defense counsel reported that he spoke with three male jurors, who indicated they voted guilty on the oral copulation counts only because an unnamed juror had stated that punishment for those charges would be "credit for time served." This conversation removed an impasse between male and female jurors who were deadlocked on guilt, and resulted in a compromise verdict. When defense counsel explained that the maximum sentence for oral copulation with an intoxicated person was eight years, one of the three male jurors said: "'I would never have agreed to vote Guilty had I known that.'"

Defense counsel also spoke with two female jurors, who reported that a third female, Juror C., had stated at the beginning of deliberations: "'He is guilty. He is a man.'" Thereafter, Juror C. refused to engage in deliberations, repeatedly saying that "'she had to go, she was losing too much money from not working and wanted this over.'"

The trial court determined that defendant provided an adequate prima facie showing of good cause and scheduled an evidentiary hearing on the matter. (§ 237, subd. (b).) At the same time, the court mailed a copy of defense counsel's motion and declaration and a reply declaration (a form to be signed under penalty of perjury) providing the opportunity for each juror to respond in writing or appear at the evidentiary hearing.*fn2

Evidentiary Hearing

After receipt of the juror responses, the trial court held an evidentiary hearing to consider the merits of defendant's motion for access to juror personal identifying information. It was revealed that six of the 12 jurors responded to the court's inquiry. All six objected to disclosure of their personal identifying information.*fn3 Three female jurors elected to "[n]ot appear, but to be heard through this declaration . . . ." Two of these jurors submitted statements saying, "[I] stand by my decision that the defendant was guilty as charged on just two counts of oral copulation . . . " and "[w]e did what we thought was fair and just according to the letter of the law." The third juror, C.S., was identified as the female who had spoken with defense counsel immediately after the verdicts regarding Juror C.'s alleged refusal to deliberate. Juror C.S. chose not to appear, indicated her willingness to discuss the matter in private, and objected to disclosure of her contact information. (See fn. 3, ante.)

Of the remaining responding jurors, two were "not willing to discuss the jury deliberations and verdicts with defense counsel and investigator(s)," and objected "to the release of [their] address and telephone number."

The last juror to respond, K.D., said she would "[a]ppear by telephone," but objected to the release of her telephone number and was unwilling to discuss the deliberations and verdicts with the defense.*fn4 Juror K.D.'s response went on to declare: "It was never all male jurors against female jurors. From the beginning one male juror was voting guilty. We never said he'd probably get off with time served because none of us knew for sure what the penalties were." The declaration added that, while Juror C. was anxious to conclude the deliberations, she never said that defendant was "guilty" because he was "a man." Juror C. "participated in deliberations at times more than others" and, although she wanted to leave, "this never biased her opinion."

Determining there was not a "sufficient showing" to support the allegations of juror misconduct, the trial court denied defendant's motion to disclose the jurors' personal identifying information.

DISCUSSION

Defendant contends the trial court abused its discretion by denying his petition for the release of the jurors' names, addresses, and phone numbers. We disagree.

I. The Law and Standard of Review

Personal identifying juror information is sealed upon recording of a criminal verdict. (§ 237, subd. (a)(2).) In order to gain access to these records, a party must show "good cause" for their release, in two stages. (§ 237, subds. (b), (d).) At the first stage, a defendant may submit a declaration to the court that includes "facts sufficient to establish good cause" as necessary for "the purpose of developing a motion for new trial." (§§ 206, subd. (g), 237, subd. (b).) If the declaration, taken as true, establishes a prima facie showing and there is no compelling interest against disclosure, the court shall schedule an evidentiary hearing and offer jurors an opportunity to object to release of their personal identifying information. (§ 237, subd. (b).) At this stage, the court shall rule on whether "good cause" actually exists for the release of identifying information. The applicable standard for "good cause" is set forth in People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes), which states that the trial court may disclose juror identifying information only if a defendant "sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (Rhodes, at p. 552; see also People v. Carrasco (2008) 163 Cal.App.4th 978, 990 [Rhodes test survived later amendments to § 237]; §§ 237, subd. (a)(2), 206, subd. (g).)

Juror information should not be released if a former juror's protest to granting the motion is sustained. (§ 237, subd. (d).) "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." (Ibid.)

The trial court is vested with broad discretion in determining whether to release juror identifying information. (People v. Tuggles (2009) 179 Cal.App.4th 339, 385 (Tuggles).) A trial court's denial of a petition for disclosure of juror identifying information is reviewed for abuse of that discretion. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096 (Townsel).)

II. Responding Jurors

All of the six responding jurors objected to release of their personal identifying information. When a juror objects, the court no longer has discretion to release identifying information. (§ 237, subd. (d).) "Regardless of how a juror might object to the release of his or her information, an objection precludes disclosure to the person requesting the information." (Tuggles, supra, 179 Cal.App.4th at p. 382.) In the words of the California Supreme Court, "If any juror refuses to consent, that is the end of the matter." (Townsel, supra, 20 Cal.4th at p. 1097.) Therefore, by the terms of the statute, the trial court could not have abused its discretion in denying defendant's motion with regard to the six objecting jurors.

III. Nonresponding Jurors

We therefore turn to the trial court's refusal to release personal identifying information for the six jurors who did not respond to the court's mailing. Defendant claims the court abused its discretion in denying his motion because counsel's declaration provided sufficient support for a new trial based on three instances of alleged juror misconduct, to wit: (1) the jurors improperly considered punishment during deliberations; (2) they reached a compromise verdict; and (3) one juror refused to deliberate. We discuss each of these individually.

A. Consideration of Punishment

Defendant argues there was good cause to believe the jurors committed misconduct by considering the punishment for oral copulation in reaching a verdict. (See People v. Engelman (2002) 28 Cal.4th 436, 449; CALCRIM No. 200.) He cites the asserted statement to defense counsel by a male juror that a compromise verdict was reached based on one juror's remark that defendant would get "credit for time served" if convicted of oral copulation, and another's post-verdict statement that if he had known the maximum punishment was eight years, he would never have voted guilty. The latter statement adds nothing to defendant's showing because evidence of a juror's mental processes is inadmissible to impeach a verdict.*fn5 (Evid. Code, § 1150, subd. (a).) As for the allegation that a gender "impasse" was broken by consideration of punishment, the juror who purportedly made it refused to come forward by responding to the court's questionnaire and another juror who did respond refuted the charge. She denied there was a gender impasse, and also stated that none of the jurors considered punishment during deliberations. The trial court was therefore entitled to dismiss the allegation as unfounded.

B. Compromise Verdict

Defendant also argues the jurors improperly arrived at an inconsistent verdict through compromise. Even if the charge is true, this is not a valid reason for granting a new trial. Penal Code section 954 provides in part, "An acquittal of one or more counts shall not be deemed an acquittal of any other count." A guilty verdict supported by substantial evidence is permissible even if it is inconsistent with an acquittal on another count. (People v. Lewis (2001) 25 Cal.4th 610, 656.) "It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] [¶] . . . [¶] . . . An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (Ibid.; United States v. Powell (1984) 469 U.S. 57, 64-65 [83 L.Ed.2d 461, 468-469].)*fn6

C. Refusal to Deliberate

Finally, we come to defendant's assertion that Juror C. refused to deliberate. While it is well established that a refusal to deliberate constitutes juror misconduct (People v. Bowers (2001) 87 Cal.App.4th 722, 731-732), counsel's declaration was rebutted by three compelling facts. First, Juror C.S. did not support her asserted allegations in response to the questionnaire. Second, her hearsay statements were squarely contradicted by Juror K.D., who not only denied that Juror C. failed to deliberate, but declared that Juror C. "participated in deliberations at times more than others." Third, as the trial court noted, even if Juror C. may have offered an early opinion that defendant was guilty, she obviously showed flexibility in her position by concurring in the unanimous acquittal on the more serious rape charge. For all the foregoing reasons, the trial court could reasonably conclude the "failure to deliberate" charge was without foundation.

D. Conclusion

Under the terms of section 237, subdivision (d), the trial court was compelled to deny counsel's request to personally contact the six jurors who objected to release of their personal identifying information. Moreover, there was no sound basis for believing that the release of the nonresponding jurors' personal information would have assisted defendant's investigation. Although these individuals did not formally object to disclosure, it was unlikely that they would have been more receptive to inquiries initiated by defense counsel than by the court itself.

Moreover, there are "several policy-based reasons to deny the defendant's request for disclosure of juror identifying information. These reasons included protecting a juror's . . . constitutional right to privacy; the possible deterrence of prospective jurors from fulfilling their obligation to serve if they knew they would be subject to post-verdict intrusions into their lives; reducing incentives for jury tampering; promoting free and open discussion among jurors in deliberations; and protecting the finality of verdicts." (Townsel, supra,20 Cal.4th at p. 1093, citing Rhodes, supra,212 Cal.App.3d at pp. 548-549.)

In light of the fact that those jurors who did respond to the court's questionnaire denied there was misconduct and that the jurors who allegedly made the original accusations chose to remain silent or did not support the accusations, allowing counsel to contact jurors directly posed a strong danger that their privacy would be invaded to no useful purpose. Hence, the trial court did not abuse its discretion in refusing to release the jurors' personal identifying information.

IV. Prejudice

Defendant contends the trial court's denial of his motion was prejudicial because it denied him his state and federal right to effective assistance of counsel. Since we find the trial court did not abuse its discretion in denying the motion, there can be no prejudice.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. MAURO , J.


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