Filed 1/18/22 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

RICK E Y VERNON SMITH,
Defendant and Appellant. D077614

(Super. Ct. No. SCS304942)

APPEAL from a judgment of the Superior Court of San Diego County, Garry Haehnle, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha A. Cortina and Christine Levingston Bergman , Deputy Attorneys General, for Plaintiff and Respondent.2

A jury found Rick e y Vernon Smith guilty of second

- degree murder (Pen. Code, § 187, subd. (a)) 1 and found true an allegation that he personally used a deadly and dangerous weapon ( a knife ) (§ 12022, subd. (b)(1)). The trial court sentenced Smith to a prison term of 16 years to life. Smith contends (1) the trial court abused its discretion by excluding evidence about the victim’s history of aggression or violence pursuant to Evidence Code section 352; and (2) the trial court erred in denying Smith’s post

- trial motion to obtain personal identifying information for the jurors to investigate possible instances of juror misconduct. We conclude that Smith’s arguments lack merit, and we accordingly affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND On the morning of November 27, 2018, around 9:00 a.m., Smith and the eventual victim, H orace Williams, were both traveling southbound on
Sweetwater Road in Chula Vista toward the Willow Street bridge. Smith was
drivi ng a pickup truck, and Williams was driving a minivan. Because the bridge was under construction, there was only one lane of traffic in each direction over the bridge.
As Williams and other motorists wait ed at a red traffic light before going over the bridge, Smith pulled into the opposing lane of traffic , speeding past the waiting vehicles. Smith drove through the intersection against a red light and crossed the bridge

. Smith then got into the left turn lane at the next intersection, which was the in tersection of Willow Street and Bonita
Road. While Smith wait ed in the left turn lane for the traffi c light to change , Williams pulled up to the right side of Smith ’s truck , preparing to make a

1 Unless otherwise indicated, all further statutory references are to the Penal Code.3

right turn onto Bonita Road

. Witnesses saw Williams throw a paper object at the passenger side door area of Smith’s truck as he passed by , such as a fast food wrapper or fast food napkins. Williams then made a right hand turn
onto Bonita Road. Smith pulled out of the left turn lane and pursued Williams ’s mini van by making a right turn on Bonita Road. While being followed by Smith ’s
truck , Williams made a U

- turn on Bonita Road

. Smith continued to pursue Williams by also ma king a U

- turn

. Both v ehicles then turned left from
Bonita Road back onto Willow Street toward the bridge. Witnesses saw Smith’s truck bump the back of Williams’s minivan multiple times as the two men drove across the bridge. Smith then pulled into the opposing traffic lane so that he was next to the driver’s side of Williams’s minivan. One w itness observed Smith making angry comments to
Williams while he drove next to Williams’s minivan

. As Smith pulled forward, Williams threw a McDonald’s soda cup at Smith’s truck, which hit
the rear of the truck and splattered soda on it

. Smith then cut in front of Williams’s minivan as they reached the red light at the intersection on the other side of the bridge. Witnesses saw Williams’s minivan collide with the back of Smith’s truc k. Smith exited his
truck and walked to the driver’s side window of Williams’s minivan. Witnesses described Smith as looking angry and argumentative

. Smith proceeded to punch Williams several times through the minivan’s open driver’s side window , with his body leaning into the minivan. At some point, Williams’s door may have opened slightly , but it is not clear whether it was Smith or Williams who was trying to open the door. Witnesses did not see Williams direct any punches toward Smith.4

Smi th then reached f

o r a pocketknife that he kept in a belt holster. Smith opened the knife and stabbed Williams seven times while Williams was still sitting in the minivan . Two of the stab wounds were to Williams’s
left chest. Witnesses described Smith as inflicting the stab wounds in a
forceful manner. One of th e stab wounds penetrated Williams’ s heart, leading to his death. The other five stab wounds were to Williams’ s extremities: one wound to his left forearm, one wound to the palm of his left
h and, and three wounds to his left leg. The leg wounds were consistent with
witness accounts that after the stabbing was already underway , Williams stuck his leg out of the window. Because of the tinted windows on Williams’s minivan, witnesses were not able t o see Williams ’s movements inside the minivan during the incident. After Smith stopped stabbing Williams and stepped aside , Williams
exited the minivan. Williams was bloody and stumbled around , trying to tell fellow motorists to call 911 while also atte mpting to make his own phone call for help. Williams eventually fell to the ground and could not get up. People
at the scene attempted to offer aid but soon determined that Williams was no longer breathing and did not have a pulse. Meanwhile, Smith also called 911 while standing near the front of his
truck

. Smith told the operator that he was the person who stabbed Williams, that Williams cut him off and threw a drink on his truck for no reason , and
that he stabbed Williams after Wi lliams punched him. Smith cooperated with police when they arrived and gave them the pocketknife used in the stabbing. Williams was taken to the hospital, where he was pronounced dead. No weapons were found in Williams’s minivan. Smith was charged wit h murder5

(§ 187, subd. (a)), with the further allegation that he used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)).
Smith testified at trial that the altercation with Williams started shortly after they exited the freeway when William s made an insulting gesture to him and repeatedly cut in front of his truck. According to Smith, he ran the red light at the Willow Street bridge because he was trying to get away from Williams

. However, after Williams threw something at his truck
at the intersection of Bonita Road, Smith decided to pursue Williams to get
information from Williams in case there was damage to his truck

. Smith testified that he never bump ed into the back of Williams’s minivan

. Further, according to Smith, when he got ou t of his truck and went to speak to Williams, he was not angry and was not expecting a fight

. As Smith testified, Williams was the initial aggressor as they interacted face to face at
the window of the minivan because Williams insulted him and then reached out of the window and twice punched Smith in the forehead. Smith also explained that he took out his knife only because he saw Williams reaching for something inside the mini van that he thought might be a gun. According
to S mith, he did not intentionally stab Williams, but rather he held his knife
near the window in self

- defense while Williams lunged forward several times
and repeatedly drove the knife into his own body. The jury found Smith not guilty of first degree murde r, but it convicted
him of second degree murder and ma de a true finding that he used a deadly and dangerous weapon (a knife). The trial court sentenced Smith to a prison term of 16 years to life.6 II. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion By Excluding Evidence of Workplace Conduct Suggesting That Williams Had an Aggressive or Violent Character We first consider Smith’s contention that the trial court abused its discretion by relying on Evidenc e Code section 352 to exclude testimony that
Williams ’s actions at work suggested he had an aggressive and violent
character

. 1. Applicable Legal Standards Before turning to the specific evidence that the trial court excluded, we review the provisions of the Evidence Code that govern the issue. Evidence Code section 1101, subdivision (a) generally provides that “evidence of a

person ’ s character

. . . is inadmissible when offered to prove his or her
conduct on a specified occasion.” However, Evidence C ode section 1103, subdivision (a) s ets forth an exception that is relevant here: “ In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not
made inadmissible by [Evidence Code] Section 1101 if the evidence is: [¶] (1 ) Offered by the defendant to prove conduct of the victim in conformity with
the character or trait of character. ” (Evid. Code, § 1103, subd. (a).) The parties do not dispute that the evidence Smith proposed to present regarding
William s ’s aggressive and violent character fall s within the scope of evidence made admissible by Evidence Code section 1103, su bdivision (a) (1)

. Under Evidence Code section 1103, subdivision (b), when a court
admits evidence of a victim’s character for violence, evidence regarding the defendant’s character for violence also becomes admissible. As stated in that7

provision, “ In a criminal action, evidence of the defendant ’ s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by [Evidence Code] Section 110 1 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the
character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show viol ence has been adduced by the defendant under paragraph (1) of subdivision (a). ”

“ In other words, if

. . . a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently dur ing the events in question, then the prosecution is permitted to introduce evidence demonstrating that

. . . the defendant was a violent person, from which the jury might infer it was the defendant who acted violently. ” (

People v. Fuiava (2012) 53 Cal.4th 622, 696 .)
T he admission of all such evidence is nevertheless subject to Evidence Code section 352, under which “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability
that its admission w ill (a) n ecessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” ( Id .; see also People v. Gutierrez (2009) 45 Cal.4th 789,
827

- 828 [evidence admissible under Evid. Code § 1103, subd. (a), may be
excluded based on Evid. Code § 352 in the trial court’s discretion].) I n applying section 352, the trial court enjoys “ ‘ broad discretion, ’ ” and “ ‘[a]
trial court ’ s discretionary ruling under

. . . section 352 will not be disturbed on appeal absent an abuse of discretion.’ ” ( People v. Clark (2016) 63 Cal.4th 522, 586.) “ ‘ “Under the abuse of discretion standard, ‘a trial court ’ s ruling will not be disturbed, and reversal

. . . is not required, unless the trial court8

exe rcised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” ( People v. Chhoun (2021) 11 Cal.5th 1, 26.)
2. The Trial Court’s Exclu sion of the Evidence Prof f ered by Smith During motions in limine, defense counsel sought a ruling pursuant to Evidence Code section 1103, subdivis i on (a)(1), allowing the testimony of witnesses who would describe past instances of aggressive or violent behavior by Williams at work. Specifically, Smith’s motion in limine identified t wo possible witnesses. First, the motion in limine stated, “[L.H.] previousl y employed [Williams] as a salesman at [H.] Auto Sales. [L.H.] was ‘ not surprised ’ to learn of [Williams’s] involvement in a road rage incident ending in a physical confrontation given his tendency to intimidate and threaten others. [L.H.]
described [Wil liams] as having a ‘ Jekyll and Hyde ’ personality where he could be normal and polite one moment, but become aggressive and threatening the

next. [L.H.] recalls [Williams] repeatedly attempting to intimidate his coworkers with his size and by saying he was proficient in martial arts in order to get sales commissions that he had not personally earned. [Williams] often bragged that his ‘ hands were registered, ’ a relatively common phrase for referring to one ’ s hands as lethal weapons. [L.H.] last saw [Willia ms] as recently as a few months before his death, when [Williams] returned to [L.H.] asking for employment again. However, because [L.H.] had so many problems with [Williams] becoming combative in the workplace previously,
he declined to rehire him. ” As stated in a subsequent brief filed in support of the motion, L.H. would testify that “[Williams] , on countless occasions,9

warned that no one should ‘ mess with him ’ and that he would ‘ hate to have to
hurt someone .’ ” 2 Second, the motion in limine set forth a vague and extremely brief description of prior fistfights engaged in by Williams. Specifically, the motion stated, “[M.C.G.] has been personally engaged in a fistfight with [Williams],
as has his cousin in an entir ely separate incident. ” D uring the multiple hearings on defense counsel’s request to admit the evidence of Williams’s character, defense counsel focused almost exclusively on obtaining leave to offer the proposed testimony of L.H. He only once mentioned the fistfight incident involving M.C.G. During that single instance, the following exchange occurred: “[DEFENSE COUNSEL]: Even above that [i.e., L.H.’s testimony], we have individuals who [ he ] actually fought with, and he physically attacked, and they fi st fought.
“THE COURT: Who?

2 In their motion in limine to exclude the character evidence relating to Williams, the People provided their own description of the interviews that the People and defense counsel conducted of L.H. “[L.H.] is the owner of [H.] Auto Sales and employed Mr. Williams tw o different times, once for six months in 2016 and the second time for about three months in 2017. [L.H.] said that Mr. Williams was a ‘ good family man, ’ but was ‘ different ’ at work. [L.H.] said that Mr. Williams was never physical with other employees b ut was verbally aggressive and confrontational with them at times. According to [L.H.] , Mr. Williams told coworkers that he was a ‘ martial artist ’ and that they should ‘ leave him alone. ’ [¶] The defense investigator interviewed [L.H.] as well. In that interview, [L.H.] said that although Mr. Williams had never been confrontational with him, he stated Mr. Williams was verbally aggressive with coworkers about the sales commission that he felt entitled to receive and there were some situations where he had to get between Mr. Williams and the other employee. [L.H.] , however, confirmed that the auto sales business was competitive and that Mr. Williams ’ [s] aggressiveness with fellow employees was regarding obtaining commission. ”10

“[DEFENSE COUNSEL]: [M.C.G

. ], who is on our witness list. “THE COURT: He fist fought

— there was an actual fistfight? “[DEFENSE COUNSEL]: Yes. Mr. Williams attacked him. They actually got into a physical fistfight.”

As th e proponent of the evidence, it was defense counsel’s burden to make an adequate offer of proof

. ( People v. Morrison (2004) 34 Cal.4th 698,
724

. ) The bare statement that Williams engaged in two fistfights at some point in his life, in an unspecified context , is not sufficient to show that
Williams had a character for violenc e and may have acted in conformity with
that character when he interacted with Smith

. 3 Because defense coun sel failed to make a more specific offer of proof as to the details of M.C.G.’s proposed testimony, he did not lay the necessary foundation to establish that the trial court abused its discretion in excluding M.C.G

. ’s testimony or that any such error was p rejudicial

. We therefore focus our analysis on the proposed testimony of L.H., which was described in adequate detail.
In their own in limine briefing, the People explained that if the trial

court granted Smith’s motion to admit testimony relating to Wil liams’s aggressive and violent character, the People would seek to present evidence to establish Smith’s own aggressive and violent character. The People proposed to present evidence of several in cidents at Smith’s workplace :

3 In search ing for clues as to the possible details of the fistfights described by M.C.G., w e note that throughout the multiple hearings at which the trial court considered defense counsel’s request to admit evidence of Williams’s character for aggression and violence, the trial cour t consistently assumed that only work

- related incidents involving Williams were at issue. Although given ample opportunity, defense counsel did not dispute the trial court’s statement that the incidents were solely work related, even when the trial court relied upon that fact as one of the grounds for its ruling denying the motion in limine.11

“ 1. December 23, 1999 and March 2, 2000: [Smith] was terminated from FedEx because on December 23, 1999, he shouted profanities at a coworker who was attempting to give him instructions, and on March 2, 2000 when he shout [ ed ] profanities and ‘ displayed blatant disrespect ’ to a cow orker who was trying to give him instructional information.

“ 2. July 28, 2018: [Smith] , while working at TransDev

. . . , confronted [J.M.] and accused him of driving his vehicle. [Smith] stated to [J.M.,] ‘ Don ’ t be taking my vehicle. This is my vehicle. ’ [J.M.] reported that [Smith] said this in a threatening manner before [Smith] punched him in the ribs twice. [J.M.] immediately told [Smith] to stop. [Smith] stopped, but again stated ‘ Don ’ t be taking my veh icle. ’ [J.M.] suggested that they speak with their supervisor, [R.A.]

. [Smith] said, ‘ I don ’ t give a fuck what [R.A.] says ’ and added, ‘ [L] et ’ s go outside to the parking lot. ’ At that moment, [J.M.] walked away and went to [R.A.’s] office to report what happened. Later that afternoon, [R.A.] met with [Smith]

. During their meeting, [R.A.] asked [Smith] if he had ‘ punched [J.M.] in the ribs ’ and [Smith] said ‘ Yes. ’ [R.A.] told [Smith] that he would be placed on administrative leave pending an investigation, but [Smith] immediately stood up and tried to leave. [R.A.] told him that he needed his written statement before he could leave. [Smith] said, ‘ No, I ’ m suspended ’ and walked away d espite [R.A.] telling him not to.

“ 3. March 16, 2016: [Smith] met with [ B .L.] and [ A .R.] , two of his supervisors, to discuss instructions given to [Smith] that he had failed to follow. During the meeting, he became argumentative and pointed his finger at [B.L.] and called [ A .R.] a liar. [Smith] came around the table and confronted [B.L.] in a threatening manner. Due to his behavior, [Smith] was escorted out of the building.

“ 4. August 9, 2018: [J.F.] , [Smith’s] coworker at FedEx, said that when they were sorting packages, [Smith] turned to their team leader and screamed ‘ Tell this motherfucker to get off the sort. ’ [J.F.] asked [Smith] , ‘ Who are you calling a motherfucker? ’ before [Smith] walked away. [J.F.] f elt disrespected and reported the incident to his manager and said that [Smith] had an anger management problem. [J.F.] asked to be separated from [Smith]

.12

[J.F.] said that his manager informed him they had received other complaints against [Smith] in th e past. When the People spoke with [J.F.] , he informed us that ‘ He [ [Smith] ] was kind of like a keg of dynamite, he can just set off like that right away. ’ ”
Defense counsel’s in limine briefing made clear that Smith did not intend to let the People’s proposed evidence go unchallenged. Defense counsel explained that if the People were permitted to introduce evidence of the workplace incidents involving Smith, the defense would seek to present evidence to challenge the accuracy of how the People’s witne sses described
those incidents. D efense counsel explained that as to the incident involving
Smith punching his coworker J.M. in the ribs and the incident involving threatening his supervisor B.L., the “ underlying facts of each allegation remain as hotly c ontested now as they were at the time.

. . . [¶] More o ver, their introduction at

. . . trial would result in an exorbitant consumption of extra time and judicial resources. These incidents cannot be viewed in a vacuum; in order to properly defend against each of these allegations of prior

‘ bad acts, ’ the defense in tu rn would need to call several additional witnesses to offer context and the bigger picture. The need to re

- litigate these accusations will undoubtedly result in a ‘ trial within a tria l, ’ while simultaneously confusing the jury and wasting the court ’ s time. ” 4 Defense
counsel also disputed whether Smith’s behavior toward his coworker at FedEx, J.F. , could reasonably be described as “aggressive,” and explained that “ admitting this evide nce would necessarily require the defense to
introduce its own witnesses that were present at the time

— witnesses that

4 For example, as to the incident in which Smith allegedly punched J.M. in the ribs, defense counsel explained that the evidence would show that Smith merely “poked” J.M. in the stomach in a joking manner. In addition, defense counsel stated that “for every witness that they have that says something happened, we have witnesses that say it didn ’ t happen.”13

were never concerned by Mr. Smith ’ s demeanor or behavior that day, let alone heard Mr. Smith make any aggressive remarks. ”
A fter extensi ve argument from counsel on the issue, the court ruled that it would exclude the evidence of Williams’s character pursuant to its
discretion under Evidence Code section 352. As the trial court explained, it would cause an undue consumption of time and “a trial within a trial” if the jury heard testimony about the aggressive and violent character of Williams
because the People would then be permitted to present the evidence they proposed regarding the aggressive and violent character of Smith , which
Smith d isputed. Further, the trial court explained that the evidence was minimally relevant because it related to conduct in the workplace, and the jury might be confused by being asked to determine the ancillary issue of how
Williams and Smith acted in the work place

. “[T] he only bad act evidence or bad character evidence that you [defense counsel] have supplied the Court is through [Williams’ s ] work. And if I look at the People ’ s evidence of what they want to bring in as bad act evidence [it] is also from [Smith’s] actions at his work. And we are not here to try a case to determine who was the worst person at work when they were with other employees. That is not what we are here for. That is not what the jury is here for. I think it would confuse the j ury, lead to

— lead to issues that the jury would not be able to figure out on their own. I don ’ t know that we can properly instruct them on how to consider that evidence. It would be a trial within a trial, and I think it would be a waste of the Court ’ s t ime and trouble which would lead to really nothing leading to assist either the People or the defense in this case because

— and the jury would have to make a decision, okay, who was the worst guy at work. And that is not what they have

— that is not what the y are here to judge today in this trial. They are here to judge what happened on that day and that time. ”

As the trial court later summarized, “ it would be an undue consumption of time and we end up having a trial within a trial on who the worst person at14

work is, whether Mr. Smith is an aggressor at work and whether Mr.
Williams is an aggressor at work. And that is not a decision that this jury
should make during the course of this trial. Neither are they called to make
that decision. And that would be a trial within a trial, thus an undue consumption of time within this case, and I think the limited probative value
that would show is far outweighed by any prejudice. ” 5

3. The Trial Court Did Not Abuse Its Discretion By Excluding the Eviden ce Proffered by Smith Smith contends that the trial court improperly excluded the evidence regarding Williams’ s character

. According to Smith , the excluded evidence

was highly relevant because it would have supported Smith’s contention that
Williams was the initial aggressor when Smith walked up to the driver’s side window of Williams’s minivan. As Smith explains, evidence that Williams was the initial aggressor was important to his defense because Smith testified that due to Williams’s aggressive behavi or, he formed the belie f th a t he had to defend himself, leading him to use his knife against Williams. In assessing whether the trial court abused its discretion in excluding the evidence, we note that the trial court’s ruling was based on two
fundamenta l premises: (1) the evidence that the defense proposed to present

5 Later in the trial, at the beginning of the defense case, the court returned to the issue . It stated, “ And I just want to make another record, too, as to the character evidence that was

. . . offered by [defense counsel] and then by the People as well under [Evidence Code section] 1103. I continued to think about the ruling on that case and what has been going on with this trial, and

. . . I have not seen anything to cause me to change my ruling on that request for the evidence based on either

. . . the victim or the defendant ’ s propensity for alleged bad character at work.

. . . I am still very comfortable with the ruling I made.” Finally, after Smith testified at trial, defense counsel asked once again that evidence of Williams’s character be admitted. The trial c ourt stated it saw no reason to change its ruling.15

was of minimal relevance because it involved Williams’s aggressive behavior at work rather than an instance similar to the road rage incident between Williams and Smith; and (2) in light of th e minimal relevance of the evidence, it would involve an undue consumption of time and confuse the jury to have a “trial within a trial” on the issue of whether Williams and Smith were aggressive and violent at work. As we will explain, the trial court ’s reason ing was sound and did not constitute an abuse of discretion. As to the first premise, the trial court had a reasonable basis for concluding that the proposed testimony of L.H. was only minimally relevant to prove that Williams had a character for committing the type of violence that Smith contends Williams displayed during the road rage incident at
issue in this case. T he incidents that L.H. described did not involve physical violence. Instead, they involved aggressive and intimidating verbal

st atements. Moreover, as the trial court pointed out, the incidents were limited to Williams’s workplace and his competitive relationships with
coworkers. As to the second premise, the trial court had a sound basis for concluding that it would consume a si gnificant amount of time and would lead to a trial within a trial if the parties were permitted to litigate the issue of whether Williams and Smith were aggressive and violent at work. Although the evidence involving Williams’s workplace behavior would be limited to L.H.’s testimony (and possibly the vaguely described testimony from M.C.G.), the People proposed to present evidence about several different incidents involving Smith. Although Smith claims on appeal that the trial
court could have limited the People’s evidence to reduce the consumption of time, defense counsel’s own statements demonstrate why that approach was not practical. As we have explain ed , defense counsel told the trial court that16

he would put on evidence to dispute the People ’s charac terization of Smith’s
behavior at work

. T he trial court therefore reasonabl y concluded that a time consuming trial within a trial would result if it admitted evidence about Williams’s and Smith’s character for aggressi on or violen ce in the workplace. In light of the minimal relevance of the evidence and the significant
amount of time that would be required to litigate Williams’ s and Smith’s workplace conduct, the trial court was well within its discretion to deny Smith’s motion in limine

. (Cf. People v. Hamilton (2009) 45 Cal.4th 863, 930 [trial court did not abuse its discretion under Ev id. Code, § 352 by excluding
evidence with limited probative value that “would have required ‘a mini

trial’ ”] .) Further, as the trial court reasonably concluded, admitting evidence of Smith ’s and Williams ’s workplace conduct would unnecessarily confuse t he issues by focusing the jury on the question of which man was the more aggressive person at work. (Evid. Code, § 352 [identifying the substantial danger of “confusing the issues” as one consideration in deciding to exclude evidence].) Smith relies primarily on two cases to support his contention that the
trial court abused its discretion. ( People v. Castain (1981) 122 Cal.App.3d
138 ; Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d
938 .) Both cases involve a trial cou rt’s improper exclusion of evidence under Evidence Code section 352 of a police officer’s past acts of excessive force
when that evidence would have served as circumstantial evidence that the
officer also used excessive force in the case at issue

. We find Castain and
Andrews to be inapposite . In both cases, the evidence of the past use of
excessive force by the officers was highly probative of the central disputed
issue

. ( Castain , at p. 143 ; Andrews , at p. 948. ) Here, in contrast, Williams’s
verb al aggression at work was not highly probative of whether he was the17

physical aggressor in the incident with Smith. Moreover, unlike the case in Smith’s trial, where numerous instances of workplace conduct were at issue with several witnesses, in Castain there was no risk of a significant consumption of time because only two brief witness es would have testified

. ( Castain , at p. 143

. ) In sum, we conclude that Smith has not established that the trial court prejudicially abused its discretion in excluding t he proposed evidence about Williams’s character for aggression or violence.
B. The Trial Court Properly Denied Smith’s Post

- Trial Motion t o Obtain Juror Identifying Information Next, we consider Smith’s contention that the trial court abused its
discretion by denying his motion to obtain the jurors’ personal identifying information to investigate whether juror misconduct had occurred , which he
would use to support a motion for a new trial

. (See § 1181 [a motion for a new trial may be granted when the jury has “ been guilty of any misconduct by which a fair and due consideration of the case has been prevented ”].)
1. The Trial Court Twice Denied Smith’s Request for Juror Ident ifying Information On November 8, 201 9 , l ess than a month after trial, Smith filed a motion to obtain personal identifying information for the jurors. In support of the motion, defense counsel submitted a declaration attaching an email he recently receiv ed from the prosecutor. The email stated, “ A fellow [deputy district attorney] shared that a friend heard that an African American juror said during deliberations in the Smith case something to the effect of ‘ I can ’ t do it. ’ On the day of the verdict how ever, the African American juror came into deliberations and said something like she imagined her son in the same position and thereafter the jury was able to reach a verdict. [¶] In addition, fellow [deputy district attorney] Patrick McGrath reached out to let me know18

that juror #11 reached out to him (they know one another from the Navy) after the verdict to comment on the professional prosecution presentation. ” The People’s opposition memorandum to the motion identified an additional fac t that was not included in defense counsel’s declaration in support of Smith’s motion. Specifically, “ the People also learned from an intern in the South Bay Office that his mother knew one of the jurors. This juror told the intern ’s mother that during d eliberations, an African

- American juror did not want to convict because she felt that African

- American men are overrepresented in the prison population. ” 6 At a hearing on November 21, 2019, the trial court denied the motion without prejudice. On Dece mber 9, 2019, Smith filed a renewed motion to obtain the jurors’ personal identifying information. The motion explained that the People had disclose d the names and contact information of the individuals
referenced in the prosecutor’s email, and the defens e had conducted two relevant interview s

. First, according to the defense investigator ’s decl a ration, he spoke to a

man , R.T., who stated that he spoke to a friend who may have been one of the jurors at Smith’s trial and who told him about the conduct of a fellow juror

. The investigator’s declaration stated:

“ 5. The friend/juror told [R.T.] that one of his fellow jurors (who he did not name) refused to participate in deliberations.

“ 6. The friend/juror told [R.T.] that she was refusing to ‘ listen to anything ’ going on during jury deliberations.

6 Smith is African American.19

“ 7. The friend/juror told [R.T.] that after several days, the other jurors were prepared to ask the judge to declare a mistrial due to her refusal to participate in delibera tions with them.

“ 8. The friend/juror told [R.T.] that one morning, the juror arrived prepared to render a verdict. ”
Second, according to a report provided by the defense investigator to defense counsel, the investigator spoke with two people who were together when they spoke to a friend who was one of Smith’s jurors. According to the investigator’s report, both people described the friend as saying that “during the trial deliberations another (unnamed female) juror had stated that she
didn ’ t think tha t Smith deserved the punishment for his actions because he was [B]lack and that there were already too many [B]lack men in jail.” (Capitalization omitted

. ) Defense counsel argued that based on this information, Smith had made a prima facie case to supp ort release of juror identifying information because “[r] efusing to deliberate with the rest of the jury constitutes jury
misconduct

. ” The trial court denied the renewed motion. In so doing, the trial court noted the timeline of the jury’s deliberations . Specifically, at the end of the second full day of deliberations , after the court had responded to the jury ’s questions about implied malice, jurors informed the bailiff that they were at an impasse. The jur ors w ere told to prepare a note and send it t o the court the next morning. The jur ors arrived the next morning and within 20 minutes reported that they had reached a verdict. In denying the motion , the trial court stated that based on this timeline, the juror who reportedly refused to deliberate ev entually did participate in deliberat ions because the jury was able to reach a verdict. Therefore, Smith had failed to make a prima
facie case of possible juror misconduct based on refusal to deliberate

.20

Further, the trial court stated that although it w as not the “overriding” ground for its decision, the defense had also failed to show that it could not contact the jurors using other resources, such as by following up with the people who were interviewed, or by using the internet.
2. The Trial Court Di d Not Prejudicially Abuse Its Discretion in Denying the Motion f

or Release of Juror Identifying Information On appeal, Smith contends that the trial court should have allowed him to obtain juror identifying information to investigate two possible instances of juror misconduct: (1) possible misconduct by Juror No. 11 in failing to
disclose hi s acquaintance with Deputy District Attorney Patrick McGrath , whom he contacted after the verdict to compliment the prosecution’s professionalism during the trial ; and (2) possible misconduct by the juror who reportedly failed to deliberate. The law governing juror identifying information is set forth in the Code of C ivil Procedure. As applicable here, the law provides that after the recordation of a jury ’ s verdict in a criminal jury proceeding, the court ’ s record is sealed, with all personal identifying information of trial jurors removed
from the court record. (Cod e Civ. Proc., § 237, subd. (a)(2)

- (3).) Under Code of Civil Procedure section 206, subdivision (g), “a defendant or defendant ’ s counsel may

. . . petition the court for access to personal juror identifying
information within the court ’ s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” ( Ibid .) Code of Civil Procedure section 237, subdivision (b) sets forth the standard by which a petition for release of juror information is evaluated. “The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror ’ s personal identifying
information. The court shall set the matter for hearing if the petition and21

supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling inter est against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm.” ( Ibid .)
To demonstrate good cause, a defendant must make a sufficient showing that “ talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct. ” ( People v. Johnson (2013) 222 Cal.App.4th 486, 493 ( Johnson ) ; see also People v. Cook (2015) 236 Cal.App.4th 341, 345 ( Cook ) [“ 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 .’ ” ] .)

“ Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. ” ( Cook , at p. 346.) If the trial court decides that the petitioning party has made a prima facie showing of good cause for the release of t he juror identifying information, and there is no other compelling interest against disclosure, jurors are given notice of the proposed release of information and an opportunity to protest, and a hearing is held to determine whether to release the information. (Code Civ. Proc., § 237, subd s

. (b), (c).) “ We review an order on a motion for disclosure of jurors ’ identifying information under the
deferential abuse of discretion standard. ” ( Johnson , supra , 222 Cal.App.4th at p. 492 .)
Smith first argues that the trial court abused its discretion in denying
the motion to release juror identifying information because its ruling was based, in part, on the fact that defense counsel had failed to show that it22

could not obtain the juror identifying information through other means. As Smith correctly points out, case authority holds that under Code of Civil
Procedure section 237, a party seeking juror identifying information is not required to have made an independent attempt to obtain that informat ion as a precondition of obtaining release of the information from the court. ( Johnson , supra , 222 Cal.App.4th at p. 497 [“ Because the Legislature provided that jurors ’ identifying information must be sealed, we conclude it did not intend to require a def endant to show diligent efforts to obtain the sealed information as a condition of unsealing it. ”].)
We nevertheless conclude that the trial court did not prejudicially err by commenting on whether defense counsel made diligent attempts to contact the jur ors through other means . Specifically, the trial court’s ruling did not depend on that consideration

. A t the hearing on the renewed motion, after
the trial court stated that it could deny the motion because defense counsel
had not shown he was un able to obtain the juror information on his own, defense counsel represented to the trial court that he did make an effort to
obtain the information but was unsuccessful. The trial court then clarified
that it s ruling was not based on whether or not counsel made an effort to obtain the information. The trial court explained , “ more overridingly,

. . . the
issue is that, to this Court ’ s mind, that [the jurors] were able to reach
verdicts

. ” This comment establishes that the trial court based its ruling on the fact that all of the jurors end ed up participating in deliberations, not on the fact that defense counsel could have been more diligent in trying to contact the jurors. Smith also challenges the trial court’s ruling by arguing he established

a prima facie case of good cause to obtain th e juror identifying information. As we will explain, because Smith did not identify any possible juror23

misconduct, the trial court did not abuse its discretion in concluding that Smith failed to make a prima faci e case of good cause for the release of the
inform a tion. First, Smith argue s that he established good cause to obtain juror identifying information to investigate whether Juror No. 11 committed misconduct by failing to disclose that he knew a deputy distr ict attorney from their service in the Navy . Smith based his argument on the principle that

“ [a] juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits
misconduct. ” (

In re Hitchings (1993) 6 Cal.4th 97, 111 .) 7 Smith’s argument fails because the jurors were not asked during voir dire whether they knew any attorneys

. Instead, jurors were asked a much more limited question: “ [D] o you yourself or anyone close to you ha [ve] any legal training, experience or employment that includes attorneys, judges, court reporters, court clerks, or paralegals? ” (Italics added.) Based on th at question , Juror No. 11 did not conceal anything or give a false answer by failing to di sclose that he was acquainted with a deputy district attorney with whom he served in the Navy. A past coworker from the Navy would not normally be described as someone “close to you.” (Cf. People v. Tuggles (2009) 179 Cal.App.4th 339, 373 [ when asked whe ther a “close friend” had been accused of any offense , a juror did not commit misconduct when she failed to identify a person she barely knew ] ; People v. Duran (1996) 50 Cal.App.4th 103, 107, 114

- 115 [ when asked whether a person “close” to her had been the victim of a violent crime, a juror did not commit misconduct by failing to

7 We note, however, that “ ‘ an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror ’ s wrong or incomplete answer hid the juror ’ s a ctual bias. ’ ” ( People v. Merriman (2014) 60 Cal.4th 1, 97 .)24

identify a casual acquaintance] .) In addition, although the subject of the District Attorney’s office came up during voir dire, the jurors were not asked whether they knew any att orneys who worked for the district attorney’s office. Instead, they were asked, “ Have you or to your knowledge any relative, close friend, or anybody you have a significant personal relationship with had any law enforcement training or experience, been a member of or been employed by any law enforcement agencies? And

. . . when I talk about
law enforcement agency, we talk about the police department, the sheriff ’ s office, the highway patrol, an investigator for either the district attorney ’ s office , the city attorney ’ s office, the attorney general ’ s office, the United States attorney ’ s office, or with the FBI, border patrol or any other law enforcement agency. ” (Italics added.) Juror No. 11 could not have committed misconduct by failing to disclose his acquaintance with the deputy district attorney in response to this question, as a deputy district attorney is not employed as “ an investigator for

. . . the district attorney ’ s office .” (Italics added.) In sum, b ecause Juror No. 11 did not fail to di sclose any information asked of him during voir dire, Smith cannot make a sufficient 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 .) Second, defens e counsel argued that he would be able to develop evidence of juror misconduct if he was able to contact the juror who reportedly failed to deliberate. Although he does not cite any case law in which a motion for a new trial was granted based on a juror’s refusal to deliberate, Smith nevertheless contends that refusal to deliberate constitutes juror misconduct because case law hold s that “ proper grounds for removing a deliberating juror include refusal to deliberate. ” ( People v. Cleveland (2001) 25 Cal.4th 466, 485 , italics added ; see also People v. Bowers (2001) 8725

Cal.App.4th 722, 732 ; People v. Feagin (1995) 34 Cal.App.4th 1427, 1437 .) Smith apparently views tha t case law as support for the proposition that even when the jury does end up reaching a verdict, a juror who has refused to participate at some point during deliberations has committed the type of misconduct that may be used to support a motion for a new trial

. We reject Smith’s interpretation of the case law. As our Supreme Court has explained, a trial court’s inquiry into possibly removing a juror for refusal to deliberate “ ‘ should cease once the court is satisfied that the juror at issue is partici pating in deliberations and has not expressed an intention to disregard the court ’ s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists. ’ ” (

People v. Barnwell (2007) 41 Cal.4th 1038, 1054 .) Here, exactly that situation occurred. E ven if one of Smith’s juror s may have originally refus ed to engage in deliberations, the juror did end up participating , and the jury was able to reach a verdict. B ecause all of Smith’s juror s plainly did engage in deliberations at some point in the process, Smith

w ould be unable to make“ ‘ a sufficient showing to support a reasonable belief that jury misconduct occurred , ’ ” even if he was granted access to juror identifying information. ( Cook , supra, 236 Cal.App.4th at p. 345 .)
We conclude that because Smith was not able to make a prima facie showing of good cause, the trial court did not abuse its discretion by denying Smith’s motion to obtain the release of juror identifying information.26 DISPOSITION The judgme nt is affirmed.

IRION, J.

WE CONCUR:

O ’ ROURKE, Acting P. J.

GUERRERO, J.