People v. Diaz

Filed 4/14/2015 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B256050 (Super. Ct. No. MA025998) Plaintiff and Respondent, (Los Angeles County) v. CARLOS DIAZ, Defendant and Appellant.

Carlos Diaz purports to appeal from an order denying his post-judgment petition to access confidential juror identifying information seven years after his murder conviction. (Code Civ. Proc., § 237, subd. (b).) His petition is based on a juror misconduct claim that we rejected on appellant's 2008 appeal. (B203878.) We dismiss the appeal because the petition was untimely and the denial order does not affect appellant's "substantial rights" within the meaning of Penal Code section 1237, 1 subdivision (b). Appellant has no constitutional or statutory right to "two bites of the appellate apple." Procedural History In 2003, appellant shot and killed rival gang member, Francisco Lopez- Reynaga. After the shooting, appellant ran to Rudy Vargas's home, a gang safe house, and disposed of the firearm. In 2007 appellant was convicted by jury of second degree murder (Pen. Code, §§ 187, subd. (a), 189) with findings that he committed the murder for the benefit

1 All statutory references are to the Penal Code unless otherwise stated.

of a criminal street gang (§ 186.22, subd. (b)(1)) and personally used and discharged a firearm causing death (§ 12022.53, subds. (b) - (d)). The trial court denied a motion for new trial, and sentenced appellant to 15 years to life state prison plus 25 years to life on the firearm enhancement. In the 2008 appeal, appellant cited three incidents of juror misconduct which were the subject of his motion for new trial. After a gang expert testified, Juror No. 1 asked whether "we, as jurors, need to be worried about our safety because of possible gang retaliation?" The juror was admonished that safety concerns could not affect her deliberations. She said that she could remain impartial. At another point in the trial, a Hispanic man approached Alternate Juror No. 2 and tried to discuss the case. Concerned about her safety, Alternate Juror No. 2 reported the matter to the trial court. There was no possibility of misconduct because the alternate juror did not deliberate. (See e.g., People v. Navarette (2003) 30 Cal.4th 458, 488.) The third incident occurred during deliberations. Juror No. 2 submitted a note that Juror No. 12 "made a comment yesterday about [how] he knew that the Vargas family was sitting in the courtroom." Some of appellant's trial witnesses were members of the Vargas family. Juror No. 12 was admonished and questioned outside the presence of the other jurors. He denied knowing anyone involved in the case and said that Juror No. 2 took his comment out of context. Appellant's trial attorney conceded that the people in the courtroom were "all family members" and the family resemblance was obvious.