Filed 3/30/22 P. v. Johnson CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

Plaintiff and Respondent,

v.

JEFFREY ARDONAL JOHNSON,

Defendant and Appellant.

B309104

Los Angeles County

Super. Ct. No. VA146860

APPEAL from a judgement of the Superior Court of 

Los Angeles County. Olivia Rosales, Judge. Conditionally 

reversed.

Berangere Allen-Blaine, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, David E. Madeo and Nicholas J. 

Webster, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________
2

A jury convicted Jeffrey Ardonal Johnson of first degree 

murder. On appeal, he argues the trial court erred in denying 

his Batson/Wheeler motion.1 He also contends he was entitled 

to a new trial because the jury foreperson committed misconduct 

by providing the other jurors with an erroneous definition of

intent. Alternatively, he argues the court should have granted 

his motion to disclose juror information so he could obtain 

admissible evidence of misconduct by the foreperson. We agree 

with Johnson that the court abused its discretion by denying 

his motion to disclose juror information. Accordingly, we 

conditionally reverse the judgment pending further proceedings 

on the issue. We affirm the judgment in all other respects. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecution’s case

The People filed an information charging Johnson with 

the murder of Maurice Elston (Pen. Code, § 187, subd. (a)).2

The People further alleged that Johnson used a deadly and 

dangerous weapon during the commission of the offense (§ 12022, 

subd. (b)(1)).

At trial, the People presented evidence showing Johnson’s 

son, Jeffrey Johnson Jr., was in a relationship with Elston’s 

sister, Aubrianna Elston.3 Jeffrey Jr. and Aubrianna had two 

children together.

1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. 

Wheeler (1978) 22 Cal.3d 258 (Wheeler).

2 Undesignated statutory references are to the Penal Code.

3 We refer to some of the witnesses by their first names 

for the sake of clarity. We mean no disrespect.
3

Sometime in 2014, Aubrianna was living with Johnson 

and his family. Aubrianna had a fight with Jeffrey Jr. and 

decided to move out of Johnson’s home. Elston went to get 

Aubrianna’s belongings and had a verbal argument with 

Johnson and his family members.

On January 27, 2018, Aubrianna’s family members, 

including Elston, helped her move into the same apartment 

complex where Johnson lived with his family. Johnson knocked 

on Aubrianna’s door, and Elston answered. Johnson asked to 

speak with Aubrianna, but Elston claimed she was busy and 

Johnson could talk to him. Johnson appeared to be enraged 

and left.

Some time later, Aubrianna and her family members 

started walking to the apartment’s parking garage. Jeffrey Jr. 

appeared and grabbed his son from Aubrianna’s aunt. Aubrianna 

and her family members followed Jeffrey Jr. into the garage, 

where Johnson and his family members were waiting. 

Aubrianna and Jeffrey Jr. started hitting each other, and 

a fight broke out among the other family members.

Jeffrey Jr. started fighting Elston, and Johnson joined 

his son. At some point, Elston said, “You stabbed me,” and 

Jeffrey Jr. responded, “That’s what the fuck you get.” Johnson 

picked up a knife off the ground, got in his car, and drove away. 

Elston suffered a six-inch knife wound to his abdomen, which 

was fatal.

About an hour or two after the fight, Johnson returned 

to the apartment building and the police detained him. Johnson 

told one of the officers he acted in self-defense and the knife was 

in his apartment. The police found a knife in the kitchen sink, 

but there was no blood on it.
4

During an interview with detectives the next day, 

Johnson said he went to Aubrianna’s apartment to tell her to 

call Jeffrey Jr. Elston answered the door and said she was busy. 

Johnson thought Elston was trying to intimidate him. Johnson 

went back to his apartment to relax, but he was paranoid that 

Elston might come to his door. He grabbed a kitchen knife 

and put it into his back pocket.

Some time later, Johnson went to the parking garage

to help his daughters get their belongings and children out of 

a car. Jeffrey Jr. walked into the garage holding his baby, and 

Aubrianna and her family members followed him. Aubrianna 

and her family members tried to take the baby from Jeffrey Jr., 

and Johnson’s daughters moved in to “break it up.” Elston 

grabbed one of Johnson’s daughters and slammed her against 

a gate.

Johnson hugged Elston from behind and tried to pull 

him off his daughter. Elston, who was bigger and stronger 

than Johnson, grabbed him by his shirt collar and started to 

“chok[e]” him. Johnson was scared and stabbed Elston one time. 

He did not try to stab deep—only enough to get Elston off him. 

Elston then threw Johnson to the ground.

Johnson walked back to his apartment, and on the way 

he realized Elston was Aubrianna’s brother. Johnson washed 

the knife and threw it in the kitchen sink. He drove off in his car 

so he could think.

A detective who interviewed Johnson did not see any 

indication on his body that he had been choked. Nor did the 

detective see any injuries on Johnson’s hands.
5

2. The defense’s case

Johnson presented evidence that Elston acted aggressively 

and tried to force his way into Johnson’s home during their 

encounter in 2014. He also presented evidence that Elston 

attacked his daughter, Latrina Sibley, in the parking garage. 

Johnson pulled Elston off Sibley. Aubrianna’s mother then 

attacked Sibley and punched Johnson’s other daughter in 

the head.

3. Deliberations, verdict, and sentencing

While deliberating, the jury requested the court provide 

the legal definitions of intent, first degree murder, and second 

degree murder. The jury also requested copies of the PowerPoint

presentations the parties used during closing arguments. The 

court directed the jury to its prior instructions on murder and 

refused its request for the PowerPoint presentations.

The jury found Johnson guilty of first degree murder 

and found true the weapon allegation. The court sentenced him 

to 25 years to life for the murder plus one year for the weapon 

enhancement.

Johnson timely appealed.

DISCUSSION

1. Johnson’s Batson/Wheeler motion

a. Voir dire

In response to questioning by Judge John Torribio during 

voir dire, Juror No. 6571 revealed his brother and cousin had 

been prosecuted for killing the juror’s aunt. The juror did not 

believe his brother and cousin, who were juveniles at the time,

were treated fairly by the system. He explained that the police 

refused their request to have a lawyer and family member be 

present with them. His brother was sentenced to 25 years to life. 
6

The juror said that, despite his feelings about the system’s 

treatment of his family members, he could be fair in this trial.

At some point during voir dire, Judge Olivia Rosales 

took over for Judge Torribio because he felt ill. In front of Judge 

Rosales, Juror No. 6571 answered the court’s standard questions 

as follows: “I live in South Gate. I am a service associate at 

Walmart. I am single. And I have no experience on a jury.”

The prosecutor later used her second peremptory challenge 

to request the court excuse Juror No. 6571. Defense counsel then

made a Batson/Wheeler motion on the basis that the juror was 

“one of two black males that we’ve got in the entire venire.” The 

court said the juror appeared to be Latino, and the prosecutor 

agreed. Defense counsel responded that she and Johnson

believed he was African American and there were no “grounds 

for his excusal. He works at Walmart. He is in service, works 

in the service department at Walmart. From South Gate. That’s 

really all he has gone into.”

The court found Johnson had not made a prima facie case 

that the prosecutor used her peremptory challenge based on 

the juror’s race. The court then allowed the prosecutor to make 

a record. The prosecutor said she used her peremptory challenge 

because of the juror’s statements regarding his family members’ 

experiences with law enforcement. The court excused the juror 

without commenting on the prosecutor’s reasons.

After the jury reached its verdict, Johnson filed a motion 

for new trial on the basis that the court erred by finding he did 

not make a prima facie case under Batson/Wheeler. He again 

argued that he is a Black man and the excused juror was one of 

two Black men in the venire. He also pointed out that the only 

other facts known to the court when it decided the initial motion 
7

were that the juror worked at Walmart, was single, and lived 

in South Gate. He argued the prosecutor’s stated reasons 

for excusing the juror could not have factored into the court’s 

decision because they were elicited while Judge Torribio was 

presiding over the trial.

At the hearing on the motion, the court said it still believed 

the juror was Latino, but acknowledged it was possible he was 

“Afro-Latino” and “partially black.” The court noted, however, 

that it was the prosecutor’s perception that mattered. The court 

then said the prosecutor “stated her non-discriminatory basis 

for exercising that peremptory. And given the total . . . record 

and the relevant facts, I do not find . . . any evidence that the 

peremptory was exercised on a discriminatory basis. So the court 

does not find error in that . . . and did not find a prima facie 

case.”

b. Johnson did not make a prima facie case 

of discrimination

Johnson contends the trial court erroneously denied his 

Batson/Wheeler motion.

In Wheeler, supra, 22 Cal.3d 258, the California Supreme 

Court “ ‘held that the use of peremptory challenges by a 

prosecutor to strike prospective jurors on the basis of group 

membership violates the right of a criminal defendant to trial 

by a jury drawn from a representative cross-section of the 

community under article I, section 16, of the California 

Constitution.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 116.) 

Eight years later in Batson, supra, 476 U.S. 79, “ ‘the United 

States Supreme Court held that such a practice violates, 

inter alia, the defendant’s right to equal protection of the laws 
8

under the Fourteenth Amendment to the United States 

Constitution.’ ” (Catlin, at p. 116.)

When a party makes a Batson/Wheeler motion, the trial

court and counsel must follow a three-step process. “ ‘First, 

the defendant must make out a prima facie case “by showing 

that the totality of the relevant facts gives rise to an inference of 

discriminatory purpose.” [Citations.] Second, once the defendant 

has made out a prima facie case, the “burden shifts to the State 

to explain adequately the racial exclusion” by offering permissible 

race-neutral justifications for the strikes. [Citations.] Third, 

“[i]f a race-neutral explanation is tendered, the trial court must 

then decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.” [Citation.]’ ” (People v. Avila

(2006) 38 Cal.4th 491, 541, citing Johnson v. California (2005) 

545 U.S. 162, 168.) 

“ ‘ “[W]hen a trial court denies a Wheeler motion without 

finding a prima facie case of group bias the reviewing court 

considers the entire record of voir dire. [Citations.] As with 

other findings of fact, we examine the record for evidence to 

support the trial court’s ruling. Because Wheeler motions call 

upon trial judges’ personal observations, we view their rulings 

with ‘considerable deference’ on appeal. [Citations.] If the record 

‘suggests grounds upon which the prosecutor might reasonably 

have challenged’ the jurors in question, we affirm. [Citation.]” ’ ” 

(People v. Crittenden (1994) 9 Cal.4th 83, 116–117; see People v. 

Scott (2015) 61 Cal.4th 363, 384 (Scott).) 

Johnson contends the trial court erred in finding he failed 

to make a prima facie case of discrimination. The entire basis 

for his challenge is that he is a Black man, and the prosecutor 

used a peremptory challenge to excuse one of only two Black men 
9

in the venire. Such circumstances alone, however, do not 

give rise to an inference of discriminatory intent. In People v. 

Parker (2017) 2 Cal.5th 1184, for example, an African-American 

defendant made a Batson/Wheeler motion based on the fact that 

the prosecutor struck the only two African-Americans from the 

jury pool. (Id. at pp. 1206, 1212.) In affirming the trial court’s 

denial of the motion, the Supreme Court explained that, although 

the exclusion of a single prospective juror could be the product 

of an improper group bias, “ ‘ “[t]he small absolute size of this 

sample makes drawing an inference of discrimination from this 

fact alone impossible.” ’ ” (Id. at pp. 1212–1213.) Here, there 

is even less of a basis for an inference of discrimination given 

the prosecutor struck fewer than all the Black prospective jurors.

The record also reveals a compelling race-neutral reason 

to excuse Juror No. 6571. (See Scott, supra, 61 Cal.4th at p. 385 

[when deciding whether a prima facie case of discrimination 

exists, a reviewing court may consider race-neutral reasons 

for a peremptory challenge that are apparent from and clearly 

established in the record].) In response to Judge Torribio’s 

questions, the juror said he believed his brother and cousin were 

mistreated by law enforcement after being charged with killing 

his aunt. Our Supreme Court has “recognized a relative’s 

negative experiences with law enforcement as a race-neutral 

hypothetical reason for a strike that dispels any inference of 

discriminatory intent.” (People v. Reed (2018) 4 Cal.5th 989, 

1001; see People v. Booker (2011) 51 Cal.4th 141, 167, fn. 13 

[“A negative experience with the criminal justice system is 

a valid neutral reason for a peremptory challenge.”].) 

Johnson seems to suggest we may not consider the juror’s 

responses to Judge Torribio’s questions because they were not 
10

known to Judge Rosales when she denied his original motion. 

Johnson overlooks that Judge Rosales was aware of the responses 

when she considered and rejected his motion for new trial. 

In any event, on review, we must consider the entire record 

of voir dire at the point when Johnson made his challenge, which 

includes the juror’s responses to Judge Torribio’s questions. 

On this record, Johnson has not established a prima facie case 

of discrimination.4 

2. Johnson’s juror misconduct motions

a. Post-verdict proceedings

After trial, Johnson filed a motion to unseal identifying 

information of the empaneled jurors. Johnson argued the 

information was necessary so he could obtain evidence favorable 

to him in a motion for new trial.

Johnson attached to the motion a declaration from his 

counsel that recounted her conversation with the jury foreperson

after trial. According to counsel’s declaration, the foreperson said 

the jurors were split, nine to three, on whether Johnson intended 

to kill Elston. The foreperson “then explained that she had some 

training and experience in the law, and . . . she advised the three 

hold-outs that ‘intent’ had a different meaning under the law 

4 For the first time in his reply brief, Johnson argues the 

trial court improperly based its prima facie ruling on its belief, 

shared by the prosecutor, that the juror was Latino. According 

to Johnson, the court’s reasoning was faulty because being Latino 

and Black are not mutually exclusive. Johnson forfeited the 

issue by failing to raise it in his opening brief. (See People v. 

Rangel (2016) 62 Cal.4th 1192, 1218 [a defendant forfeited an 

argument initially raised for the first time in the reply brief].) 

Accordingly, we decline to consider it. 
11

than it does in ‘real life.’ She said she provided the hold-outs 

with the following analogy: if a person leaves their purse in 

the middle of the room but does not intend to cause someone 

to trip on it, they may not have intent to cause someone to trip 

in real life, but under the law they do because they should not 

have left their purse in the middle of the room. After providing 

this analogy, the three hold-outs changed their votes to guilty.”

Defense counsel said she asked the foreperson for her 

contact information so an investigator could talk to her. The 

prosecutor, who was present during the conversation, objected 

and said it was not appropriate for an investigator to interview 

the foreperson. The foreperson responded that she did not want 

to get “in the middle of things” and declined to speak further.

The prosecutor opposed Johnson’s motion on the basis 

that he failed to establish a prima facie case of good cause for 

the release of juror information. The prosecutor included in 

the opposition brief her recollection of the conversation with the 

foreperson. According to the prosecutor, the “foreperson stated 

that the issue of intent came up when [the jurors] were deciding 

between first and second-degree murder. . . . [T]he foreperson 

did not tell the defense and the prosecution that there were 

3 hold-outs for Not Guilty. . . . The foreperson did discuss an 

example being brought forth during deliberations to explain 

intent but it did not evince any issues of misconduct. In none 

of her statements to counsel did it appear that any of the jurors 

engaged in any misconduct. It appeared to the People from 

this brief discussion with the foreperson that all the jurors 

deliberated thoughtfully.”

The court denied Johnson’s motion after finding defense 

counsel’s declaration did not show “misconduct that would rise 
12

to the level of good cause for disclosing” the jurors’ information.

The court noted the foreperson’s comments were “something that 

jurors may do in [the jury room], but it doesn’t mean that the 

rest of [the jurors] followed . . . .” The court also noted the jurors 

requested the definitions of intent and murder, they returned 

their verdict shortly after receiving the court’s response, there is 

no evidence the jurors were confused by the court’s instructions, 

and there is a presumption that the jurors followed those

instructions.

After the court denied Johnson’s motion to unseal juror 

information, he moved for a new trial based on juror misconduct. 

Johnson argued the foreperson committed misconduct when 

she “drew on her prior legal training to provide the jurors with 

an inaccurate definition of intent that likened specific intent to 

negligence.” Johnson alternatively asked the court to reconsider 

his motion to unseal juror information so he could interview 

the jurors regarding the extent of the misconduct.

The prosecutor urged the court to reject Johnson’s motion 

because it was supported only by his counsel’s statements, which 

are hearsay. In passing, the prosecutor also argued there was 

no prejudice.

The court concluded Johnson failed to show juror 

misconduct and denied his motion on that basis. The court 

explained that, even if it accepted defense counsel’s recounting 

of the conversation with the foreperson, there is no evidence 

showing when the foreperson made her comments, whether 

the other jurors listened to her, whether they were swayed

by her comments, or whether they based their verdict on her 

statements. The court also noted the jurors reached their verdict 

shortly after it directed them to the relevant jury instructions on 
13

murder and intent. The court did not decide whether Johnson’s 

evidence was admissible; nor did it explicitly consider whether 

any misconduct was prejudicial. 

b. Johnson did not submit admissible evidence of 

juror misconduct in connection with his motion 

for new trial

Johnson suggests the trial court should have granted 

his motion for new trial because the jury foreperson engaged 

in prejudicial misconduct.

“ ‘When a party seeks a new trial based upon jury 

misconduct, a court must undertake a three-step inquiry. 

The court must first determine whether the affidavits supporting 

the motion are admissible. (See Evid. Code, § 1150, subd. (a).) 

If the evidence is admissible, the court must then consider 

whether the facts establish misconduct. [Citation.] Finally, 

assuming misconduct, the court must determine whether the 

misconduct was prejudicial. [Citations.] A trial court has broad 

discretion in ruling on each of these questions and its rulings 

will not be disturbed absent a clear abuse of discretion.’ ” (People 

v. Bryant (2011) 191 Cal.App.4th 1457, 1467 (Bryant).) 

The Attorney General does not defend the trial court’s 

stated reasons for denying Johnson’s motion, and for good reason. 

To the extent the factors the court cited were relevant, they 

went to the issue of prejudice. The court, however, never

explicitly reached that issue. Instead, it concluded defense 

counsel’s declaration did not describe juror misconduct. As 

we discuss in the next section, that finding was erroneous. 

Moreover, even if the trial court implicitly found there 

was no prejudice, its remarks at the hearing suggest it based 

that decision on improper factors. The court noted, for example, 
14

the lack of evidence showing the jurors were swayed by the 

foreperson’s comments or relied on them in reaching their 

verdict. Johnson, however, was not permitted to submit evidence 

of the jurors’ internal thought processes. (See Evid. Code, § 1150; 

In re Manriquez (2018) 5 Cal.5th 785, 799 [“ ‘Evidence of a juror’s 

mental process—how the juror reached a particular verdict, the 

effect of evidence or argument on the juror’s decisionmaking—

is inadmissible.’ ”].) The court, therefore, erred to the extent 

it denied Johnson’s motion based on the lack of such evidence.

Nevertheless, the Attorney General urges us to affirm 

because Johnson failed to support his motion with sworn 

affidavits from the jurors. Although the court did not deny 

Johnson’s motion for this reason, we may affirm on any correct 

basis presented by the record. (People v. Perkins (2016) 244 

Cal.App.4th 129, 139.) 

“It is settled . . . that ‘a jury verdict may not be impeached

by hearsay affidavits.’ ” (People v. Williams (1988) 45 Cal.3d 

1268, 1318, abrogated on other grounds as noted in People v. Diaz

(2015) 60 Cal.4th 1176, 1190.) As a result, “California courts 

have consistently held that properly executed juror affidavits 

are required to establish jury misconduct.” (Bryant, supra, 

191 Cal.App.4th at p. 1468.) Here, Johnson did not submit 

any juror affidavits in support of his motion for new trial. 

Instead, he relied entirely on his counsel’s declaration recounting 

her conversation with the foreperson, which is inadmissible 

hearsay to the extent it was used to show what occurred in 

the jury room. Johnson, therefore, failed to meet his burden 

of producing admissible evidence of misconduct, and the court 

properly denied his motion for new trial. 
15

c. Johnson showed good cause to unseal juror 

information

Johnson alternatively argues the trial court abused its 

discretion by denying his motion to unseal juror information.5

He insists the information was necessary so he could obtain 

admissible evidence to support his motion for new trial.

After the recording of a jury’s verdict in a criminal trial, 

the court must seal “personal juror identifying information” 

such as jurors’ names, addresses, and telephone numbers. 

(Code Civ. Proc., § 237, subd. (a)(2); People v. Munoz (2019) 

31 Cal.App.5th 143, 165.) A defendant may petition the court 

for access to the juror information by making a “ ‘prima facie 

showing of good cause for [its] release.’ ” (Munoz, at p. 165.) 

“If the trial court finds that the moving party has made a prima 

facie showing of good cause, and if it finds no compelling interest 

against disclosure, it must set the matter for hearing. (Code Civ. 

Proc., § 237, subd. (b).) The trial jurors are entitled to notice, an 

opportunity to object to disclosure, and an opportunity to appear

[at the hearing]. (Code Civ. Proc., § 237, subd. (c).) [¶] If none of 

the jurors object, the trial court must grant disclosure. However, 

if a juror is unwilling to be contacted, the trial court must deny 

5 The Attorney General contends Johnson forfeited this 

issue because he raised it in two, cursory paragraphs under 

a subheading related to juror misconduct. (See People v. 

Williams (1997) 16 Cal.4th 153, 206 [“Points ‘perfunctorily 

asserted without argument in support’ are not properly raised.”]; 

Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate briefs must 

state each point under a separate heading or subheading].) 

While we agree that Johnson’s briefing is far from ideal, we 

exercise our discretion to consider the issue on the merits.
16

disclosure. (Code Civ. Proc., § 237, subd. (d).)” (People v. 

Johnson (2013) 222 Cal.App.4th 486, 492 (Johnson).) We review 

a trial court’s denial of a motion to disclose juror information 

for an abuse of discretion. (Ibid.) 

A defendant establishes good cause for the disclosure 

of juror information by showing “that talking to the jurors 

is reasonably likely to produce admissible evidence of juror 

misconduct.” (Johnson, supra, 222 Cal.App.4th at p. 493.) 

A juror commits misconduct by introducing into the jury room 

extraneous law; that is, law not given to the jury by the court. 

(See In re Stankewitz (1985) 40 Cal.3d 391, 397 (Stankewitz); 

People v. Marshall (1990) 50 Cal.3d 907, 950 (Marshall).) 

In Stankewitz, for example, our Supreme Court held a juror 

committed overt misconduct by erroneously advising the other 

jurors he knew, based on his experience as a police officer, a 

robbery takes place as soon as a person forcibly takes personal 

property from another person, whether or not he intends 

to keep it. (Stankewitz, at pp. 396, 399–400.) Similarly, in 

Marshall, the high court held a juror committed misconduct 

by telling other jurors he knew, based on his background in 

law enforcement, juvenile records are automatically sealed 

at 18 years of age. (Marshall, at pp. 949–950.)

Here, Johnson supported his motion with a declaration 

from defense counsel that revealed similar misconduct by 

the jury foreperson. According to counsel’s declaration, 

the foreperson essentially advised the other jurors they only 

had to find Johnson acted negligently to conclude he had the 

intent to kill. The foreperson also vouched for her erroneous

advisement by disclosing that she had prior legal training and 

experience. Assuming defense counsel accurately recounted 
17

the conversation, and what the foreperson told her is true, 

the foreperson committed overt misconduct by introducing 

extraneous and erroneous law into the jury room. (See Marshall, 

supra, 50 Cal.3d at pp. 949–950; Stankewitz, supra, 40 Cal.3d 

at pp. 397, 399–400.) 

In light of defense counsel’s declaration, it is reasonably 

likely Johnson could obtain admissible evidence of misconduct 

if he were to interview the jurors. Johnson, therefore, made 

a prima facie showing of good cause for the release of juror 

information, and the court abused its discretion by failing to 

conduct a hearing under Code of Civil Procedure section 237, 

subdivision (c).6

The Attorney General suggests defense counsel’s 

declaration is insufficient to establish good cause because it 

is hearsay. A defendant, however, is not required to introduce 

admissible evidence of juror misconduct in order to establish 

good cause for the disclosure of juror information. (Johnson,

supra, 222 Cal.App.4th at p. 493.) In Johnson, for example, 

the court held a defendant established good cause by submitting 

a declaration from his stepfather recounting a conversation with 

jurors in which they revealed misconduct during deliberations. 

(Id. at pp. 490–491.) In rejecting the argument that the 

declaration was inadmissible hearsay, the court explained

6 The court held a hearing on Johnson’s motion, but there 

is nothing in the record indicating it provided notice to the jurors 

and an opportunity to object to the release of their information, 

as required under Code of Civil Procedure section 237, 

subdivision (c). Instead, the court only considered whether 

Johnson made a prima facie showing of good cause for the 

release of juror information.
18

that “[t]he whole point of moving for the disclosure of jurors’ 

identifying information is to talk to the jurors; and the whole 

point of talking to the jurors is to obtain evidence of juror 

misconduct that will support a motion for new trial. The only 

people who can testify of their own personal knowledge about 

what happened in the jury room are the jurors themselves. Thus, 

it would be absurd to require a defendant seeking disclosure 

to introduce, at that preliminary stage, admissible evidence that 

juror misconduct actually occurred.” (Id. at p. 493.) We agree. 

The Attorney General alternatively argues Johnson failed 

to show good cause because defense counsel and the prosecutor 

gave differing accounts of their conversation with the foreperson. 

According to the Attorney General, the trial court could have 

credited the prosecutor’s version of events and found there was 

no misconduct. Under Code of Civil Procedure section 237, 

however, the defendant is required only to make a prima facie 

showing of good cause before the court must set a hearing.

7

(Code Civ. Proc., § 237, subd. (b).) The court does not weigh 

evidence or make credibility determinations when deciding

that issue. (People v. Johnson (2015) 242 Cal.App.4th 1155, 

1164; see People v. Harris (2021) 60 Cal.App.5th 939, 958 [“in 

evaluating whether a petitioner has made a prima facie showing 

he or she is entitled to relief[ ]the superior court cannot engage 

in factfinding”].) The trial court, therefore, could not rely on 

7 The court need not set a hearing if it finds there is a 

compelling interest against disclosure. (Code Civ. Proc., § 237, 

subd. (b).) The Attorney General does not contend such a 

compelling interest exists here, nor have we found any indication 

of one in the record. 
19

the prosecutor’s version of events to find Johnson failed to show 

good cause. 

Regardless, the prosecutor’s version of events did not 

refute the factual assertions in defense counsel’s declaration. 

The prosecutor, in fact, acknowledged the foreperson said she 

discussed an “example . . . during deliberations to explain intent.” 

Rather than describe the example, the prosecutor simply claimed 

it “did not evince any issues of misconduct. In none of [the 

foreperson’s] statements to counsel did it appear that any of the 

jurors engaged in any misconduct.” Such conclusory statements 

are not sufficient to rebut Johnson’s showing. 

We also reject the Attorney General’s contention that 

the disclosure of juror information would be futile given the 

foreperson already indicated she did not want to speak with 

a defense investigator. According to defense counsel, the 

foreperson declined to speak with an investigator only after 

the prosecutor told her it would be inappropriate to do so. 

There is nothing inherently improper about a juror talking to 

a defense investigator, and the prosecutor should not have made 

that remark. There is a reasonable possibility the foreperson 

would change her mind if properly instructed by the court. 

In any event, the Attorney General overlooks that Johnson 

sought information for all the empaneled jurors, not just the 

foreperson. The other jurors have personal knowledge of what 

the foreperson said in the jury room. Therefore, even if the 

foreperson declines to be interviewed, it is reasonably likely 

Johnson could obtain admissible evidence of misconduct 

from those jurors. 
20

3. We reject Johnson’s cumulative error contention

Johnson argues the cumulative effect of the Batson/

Wheeler error and juror misconduct deprived him of a fair trial 

and requires reversal of his conviction. As discussed above, 

Johnson has not shown Batson/Wheeler error or juror 

misconduct. Accordingly, we reject his argument that 

cumulative error requires reversal. 

DISPOSITION

The judgment is conditionally reversed. On remand, 

the court shall set a hearing in accordance with Code of Civil 

Procedure section 237 to consider whether to disclose juror 

information. If, after the hearing, the court declines to do so, 

it shall reimpose the original sentence. If the court instead 

discloses juror information, it shall provide Johnson a reasonable 

amount of time to file a motion for new trial. If Johnson does 

not timely file a motion for new trial, or if the court denies 

his motion, the court shall reimpose the original sentence. 

The judgment is affirmed in all other respects. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. LAVIN, J.