People v. Johnson CA2/3

Filed 3/30/22 P. v. Johnson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B309104

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA146860
v.

JEFFREY ARDONAL JOHNSON,

Defendant and Appellant.

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.
_________________________
 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.

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 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.

3
 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.

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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.

5
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

6
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

7
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

8
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

9
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.

10
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

11
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

12
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,

13
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.

14
 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.

15
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

16
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.

17
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.

18
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.

19
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.

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