Filed 4/18/13 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ANDRE DELOINE SMITH, Defendant and Appellant. D061801

(Super. Ct. No. SCD219244)

APPEAL from an order of the Superior Court of Sa n Diego County, Desiree A. Bruce-Lyle, Judge. Affirmed.

The issue in this case is whether the tr ial court abused its discretion, on remand from an earlier appeal, by deny ing defendant an ev identiary hearing on his motion for a new trial based on juror misconduct. We find no abuse of discretion and accordingly, affirm the order.2 BACKGROUND 1 A jury convicted Andre De loine Smith of carrying a co ncealed dirk or dagger. (Former Pen. Code, § 12020, subd. (a)(4).) Th e evidence showed th at on the evening of February 28, 2009, a police officer was inve stigating a matter and Smith aggressively demanded the officer's badge number. Smith threw his hands up in the air and he had nothing in his hands. The o fficer ordered Smith to stay ba ck at least twice, but Smith continued to walk toward the officer. After receiving a fina l warning to stay back, Smith responded with an obscenity, while placing hi s left hand at his side. The officer saw Smith "fumbling his hand around" near his wa istband and almost immediately thereafter, the officer heard a "loud clank" on the ground . The officer saw a knife with a blade that was approximately three and a half inches long and Smith offered, " 'Y eah. You're right, Officer. I dropped the knife. You got me .' " Smith did not testify at trial. After the jury was released, Smith file d a petition to unsea l juror identifying information in an attemp t to obtain juror affidavits to support a motion for new trial based on juror misconduct. (Code Civ. Proc., § 237, subd. (b).) Th e court denied the petition. The court suspended imposition of senten ce for three years and placed Smith on summary probation. Smith appealed, contending the trial cour t abused its discretion by denying his petition. This court agreed, finding good ca use for the release of the juror identifying information. In support of the motion, Smith 's counsel filed a declaration that stated

1 For convenience, we recite facts fr om the earlier appeal in this case. ( People v. Smith (May 11, 2011, D056 551) [nonpub. opn.].)3 counsel for both sides had met with Juror No. 10 after trial, and Juror No. 10 revealed that the "entire jury panel" based its convi ction on Smith's failure to testify. We concluded Juror No. 10's stat ement "clearly suggests the possibility that one or more jurors discussed Smith's failure to tes tify during deliberati ons," and thus the "statement . . . provides a basis for permitting Smith to investigate whether the jury in fact discussed the improper subject of Smith's failure to testify. . . . If the jury did in fact discuss Smith's failure to tes tify, evidence of such a disc ussion would be admissible to impeach the verdict, pursuant to Evidence Code section 1150 ." We conditionally vacated the judgment and ordered a limited remand. We directed the trial c ourt to disclose juror identifying information to Smith 's counsel and depending up on the results of counsel's investigation and upon hi s subsequent motions (if any), to take such further action as may be necessary. On remand, the trial court released id entifying information on jurors, including
Juror No. 12. 2 After counsel's investigation, Smith filed a motion for a new trial based on jury misconduct. The motion was not suppor ted by any sworn juror affidavit. Rather, Smith presented a statement by counsel's i nvestigator, to the effect that he had interviewed Juror No. 12, and Juror No. 12 stated he did not have full recall of the deliberations, but he did recall that the jury had concerns that Smith did not testify, did not defend himself, and did not talk about what happened. Juror No. 12, however, denied that the jury based its d ecision on Smith's silence.

2 The parties agree Juror No. 12 is at issue in this appeal, not Juror No. 10.4 The prosecution opposed the motion, ar guing the investigator's statement was inadmissible hearsay, and a sworn juror affida vit is a prerequisite to an evidentiary hearing on the issue of juror misconduct. In reply, Smith presented a declaration by the investigator, which reiterated the information in his statem ent. The prosecution also objected to the declaration as inadmissible hearsay. At a hearing, Smith's counsel represented she was unable to submit a sworn affidavit from Juror No. 12, because after talking with the inve stigator and being presented with a proposed affidavit, he refu sed to sign it. Counsel advised the court as follows: Juror No. 12 "a sked if I could e-mail him the declaration before he signed it. I said that's fine. And he was concerned. His wife is a lawyer. And I guess he was concerned that he might be facing charges. I did make it clear he is not facing any charges. That's not what is going on. [¶] And I sent him a declaration that I had written up, essentially what the court has in front of [it] . . . . And [Juror No. 12] e-mailed me
back. And he said

 a long list, basically backtracked on every statement that he made

. He said that he felt that his statements were taken out of context. He felt that modifications needed to be made. He asked me to delete certain portions and to send it to him again." (Italics added.) Counsel added, "I deleted those portions. I sent it to [Juror No. 12] again. [¶] He responded that he didn't want to sign anything and that he would rather just come into court and testify in his own words. [¶] I did subpoena him to be here today. He was outside the door at 1:30 when I was here earlie r. His wife was here. I believe that he is still out there, though I didn't check as I was tr ying to get back into this court as soon as5 possible. [¶] So that is why I submitted a de claration on behalf of my investigator." Counsel conceded that the modi fied declaration she sent to Juror No. 12 "really didn't say much at all, because . . . he had indicated he wasn't willing to sign much." The court disallowed the investigator's de claration as inadmissible hearsay. The court found that a sworn juror affidavit was required to make a prima facie case for an evidentiary hearing and thus it denied Smith a hearing. It also denied his motion for a new trial. The court reinst ated the original judgment.
DISCUSSION Smith does not dispute that the inves tigator's declaration was inadmissible hearsay. It is settled that " 'a jury verdict may not be impe ached by hearsay affidavits.' " ( People v. Williams (1988) 45 Cal.3d 1268, 1318-1319; People v. Avila (2006) 38 Cal.4th 491, 605.) Rather, Smith contends that when, as here, a juror is available to give live testimony in lieu of a sworn affidavit, an affida vit is not a prerequisite of an evidentiary hearing. " 'We review for abuse of discre tion the trial court's de nial of defendant's postverdict request for an evidentiary heari ng into allegations of jury misconduct.' " ( People v. Avila, supra, 38 Cal.4th at p. 604.)
In People v. Hedgecock (1990) 51 Cal.3d 395 ( Hedgecock ), the California Supreme Court held "it is with in the discretion of a trial c ourt to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to te stify at such a hearing. This does not mean, however, that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct.6 The hearing should not be used as a 'fis hing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejud icial misconduct has occurred. Even with such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material c onflict that can only be resolv ed at such a hearing." ( Id. at p. 419, fn. omitted.)
In Hedgecock, the defendant's motion for a ne w trial was supported by sworn affidavits indicating juror misconduct. The prosecution submitted counter-affidavits denying any juror misconduct. The high court held that under that circumstance, the trial court abused its discretion by fi nding it was unauthorized to hol d an evidentiary hearing. ( Hedgecock , supra , 51 Cal.3d at pp. 411-415.) Here, the trial court relied on People v. Cox (1991) 53 Cal.3d 618 ( Cox ). In Cox, a juror declined to sign under pe nalty of perjury a declarati on that ostensibly included statements she made to a defense investigato r. The high court "declin[ed] to extend the holding in Hedgecock to situations in which the defend ant merely seeks to place unsworn statements under oath by calling upon reluctan t jurors to reiterate those statements from the witness stand." ( Cox , at p. 698.) Cox explains: "First, we find no constitutional, statutory, or decisional imperative supporting such an extension. A criminal defendant has neither a guaranty of posttr ial access to jurors nor a right to question them about their guilt or penalty verdict. . . . [¶] Second, requiring testimon y under such circumstances is tantamount to the type of 'fis hing expedition' condemned in Hedgecock . Either a juror is willing to come forward and, at least on a pr eliminary basis, sign an affidavit or not.7 Unless the reticence resu lts from impermissible interferen ce by the court or prosecutor, the reasons therefor should not be subject to further inquiry." ( Cox , at pp. 698-699.)
Cox added, " 'To grant this kind of power to the losing attorn ey would open the door to harassment of jurors and . . . u ltimately damage the jury process and the administration of justice.' [Cita tion.] In the civil context, we have also recognized that 'permitting counsel for the losi ng party to interrogate unwilli ng trial jurors touches the integrity of our venerable jury process. . . . [O]nce aware that after sitting through a lengthy trial he himself may be placed on tr ial, only the most courageous prospective juror will not seek excuse from service.' [Citations.] Although in Hedgecock we permitted a limited right to ex amination under specified circ umstances, the justifiable concern for juror prerogatives cautions against an extension of that rule to the instant facts." ( Cox, supra, 53 Cal.3d at p. 699.) Additionally, the court noted, "jurors might well completely refuse to talk with defense counsel or inve stigators if they anticipated being called into court for subs equently declining to acknow ledge their statements under oath." ( Ibid. ) Likewise, we conclude under the facts he re that the court's ruling was proper. The presentation of competent evidence is a prerequisite of an evidentiary hearing on jury misconduct. ( Hedgecock , supra , 51 Cal.3d at p. 419.) Another ruling would subject jurors to being dragged into court for fish ing expeditions. Here, certainly, defense counsel's questioning of Juror No. 12 would have been a fishing expedition. When presented with a proposed declaration, Juror No. 12 "backtr acked" on his supposed statements to the investigator and claimed the investigator took his statements out of8 context. Defense counsel modified the decl aration, but Juror No . 12 was still unwilling to sign it. Counsel conceded the modified version had little in formation in it, which does not suggest a strong possibility of pr ejudicial jury misconduct. As Hedgecock cautions, live juror testimony is ordinarily warranted only to resolve a conflict in sworn affidavits, and no conflict exis ted here because there were no sworn affidavits. ( Ibid. ) Further, Smith submits that Juror No. 12 showed up to voluntarily testify at an evidentiary hearing, but defense counsel subpoenaed him. Counsel advised the court Juror No. 12 refused to sign an affidavit be cause he feared implicating himself. The court could reasonably find he was a reluctant juror. Requiring Juro r No. 12 to testify regarding an unsworn statement is the type of juror harassment Cox is designed to preclude. Under all the circumstances , we find no abuse of discretion.
DISPOSITION The order is affirmed.

M C CONNELL, P. J. WE CONCUR:

BENKE, J.

IRION, J.