(Super. Ct. No. 11F05717)
The opinion of the court was delivered by: Butz , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Joshua Charles Ackerman guilty of felony vandalism and the misdemeanor of firing a BB gun in a grossly negligent manner. (Pen. Code, §§ 594, subd. (a) [count one], 246.3, subd. (b) [count two].) The trial court granted formal probation on the felony count and imposed a one-year jail term for the misdemeanor.
On appeal, defendant argues the trial court abused its discretion in denying his motion for disclosure of juror identification information (or alternately for a mistrial for juror misconduct). He also contends he cannot be punished both for firing the BB gun and for the act of vandalism that resulted. We shall affirm the verdicts, but must remand for resentencing and stay execution of sentence on count two.
Although both parties provide a thorough summary of the evidence at trial, the arguments on appeal implicate only a sliver of the facts underlying the convictions, and we do not need to assess prejudice. We thus note only that two passengers riding on a commuter bus heard a loud bang. The window next to one of them shattered. The other saw the driver of a blue "Super Shuttle" van next to the bus with a pistol in his right hand pointed out the window. As the driver slowed down for traffic in front of him, he pulled the pistol back into the van. At trial, the second bus passenger identified defendant as the driver of the van. Based on Super Shuttle's satellite tracking data, the only van in the vicinity of the bus at that time was one that defendant normally drove. We will include any other pertinent facts in the Discussion.
I. Motion to Disclose Juror Identification Information
A defendant may obtain access to personal juror identifying information on a showing based on declarations that prima facie establishes good cause in support of a motion for new trial or other reason, if the trial court does not find a compelling interest against disclosure. We review the trial court's ruling for an abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 989, 991 (Carrasco); Code Civ. Proc., § 237, subd. (b).)
Defendant's fiancee provided a declaration in support of his motion. She stated that after a lunch break in the midst of closing arguments, she was seated about 10 feet from a male juror (whom she described with some particularity, and whom defense counsel identified as Juror No. 8) who was talking to one or two "middle-aged" female jurors (not otherwise identified). The fiancee heard a snippet of the male juror's conversation lasting about 30 to 60 seconds. "What I heard was something said about Super Shuttle, and there being some sort of irony." The jurors noticed the fiancee looking at them and stopped talking. The fiancee informed defense counsel about her observations after the jury returned its verdicts.
Defense counsel argued it was thus necessary to obtain the juror identification information in order to investigate the exact nature of the discussion. Counsel also contended that based on the fiancee's declaration, defendant was entitled to a mistrial because the jurors "were discussing specific facts of the case prior to deliberations."
The trial court found this showing insufficient either to warrant disclosure or grant a mistrial. There was simply speculation about misconduct without any facts providing a foundation for a finding of actual misconduct. The court ...