Metropolitan News-Enterprise


Monday, June 9, 2008


Page No 1


Court Upholds Conviction Despite Juror’s ‘Reasonable Doubt’


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal on Friday upheld a man’s convictions for attempted arson and resisting an officer, even though a juror told the trial court that the verdict did not reflect her vote and that she held “reasonable doubt” before later reaffirming her vote to convict on questioning by the judge.

Rejecting Ernest J. Carrasco’s argument that Los Angeles Superior Court Judge Dewey L. Falcone abused his discretion when he denied Carrasco access to the juror’s personal contact information in order to inquire what happened during jury deliberation, Div. Eight held 2-1 that Carrasco failed to show good cause for disclosure where Falcone, after questioning the juror, had found expressly that her conduct and statements were based on concern about the offenses’ felony nature and the finality of the decision, not lack of proof.

However, Justice Madeleine Flier dissented that she would reverse the convictions because the operative effect of the denial was to foreclose the defense from questioning the juror at all, saying that the “pressure” on the juror created by Falcone’s questioning raised “too great” of “a likelihood that [Carrasco] was convicted on a less than unanimous verdict.”

Officers of the Los Angeles County Sheriff’s Department arrested Carrasco and charged him with one count of attempted arson and two counts of resisting an executive officer after an incident in May of 2005 at the department’s Pico Rivera station.

Carrasco approached the station that morning asking the deputy at the front desk for change and swearing at him. He left after the deputy twice told him to do so, but returned 30 seconds later straddling a bicycle with a duffel bag secured to its handlebars.

Mouthing obscenities and asking if the deputy had “a…problem,” Carrasco put his right hand in the bag after the officer again ordered him to leave. When the deputy drew his service revolver, Carrasco repeatedly challenged the deputy to shoot him, but another officer came from the back of the station and forced Carrasco to the ground.

When other officers arrived and helped to restrain Carrasco, he began kicking, yelling and cursing despite commands to “stop resisting.” He became complaint after officers pepper-sprayed him, but continued cursing and said, “I should have done it.”

Officers found a lighter in his hand that had been removed from the bag, and inside the bag they found a one-gallon gasoline container approximately three-quarters full, and two wet strips of cloth smelling of gasoline. An arson investigator later testified the bag would have caught fire had Carrasco lit the lighter.

At trial, the jury returned a verdict of guilty on all three charges, and collectively affirmed that it reflected their votes when asked by the clerk. However, when the court asked each juror individually, one initially gave no response, and then paused before answering “yes.”

The remaining jurors left the room, and Falcone questioned the juror about her hesitation, asking whether the verdict reflected her decision. When she answered “no,” he asked whether she felt compelled to vote guilty because of the other jurors, to which she answered “yes.”

Falcone then asked directly what happened in the jury room that made the juror arrive at a guilty verdict when she now indicated a contrary intent, and the juror replied, “I had reasonable doubt.”

Upon further questioning, the juror told Falcone, “yes,” she was having second thoughts because she had gleaned that the charges were felonies, “no,” no one in the jury room had put any pressure on her, and “yes,” she believed Carrasco was guilty beyond a reasonable doubt based upon the evidence and the court’s instructions.

When defense counsel asked whether she would be allowed to ask any questions, Falcone said no, commenting that it was something to be explored later, and the court recorded the verdict.

Carrasco then petitioned for access to the juror’s personal information under Code of Civil Procedure Secs. 206(g) and 237 to ask about the deliberations and why the juror said she had reasonable doubt. However Falcone denied the request, concluding that Carrasco had not made a showing of good cause for disclosure.

On appeal, Justice Laurence D. Rubin affirmed both Falcone’s judgment as to the petition, and Carrasco’s convictions.

Noting that the decision by the Court of Appeal in People v. Rhodes (1989) 212 Cal.App.3d 541—that a petitioner needs to show a reasonable belief of jury misconduct, a diligent effort to reach the juror by other means, and the necessity of an investigation to provide the court with adequate information to rule on a motion for a new trial—survived the Legislature’s 1996 addition of a good cause requirement to the statute, Rubin concluded that Carrasco failed to show good cause because he failed to satisfy the first element under Rhodes.

“There was no showing of misconduct,” he wrote.

Criticizing defense counsel’s failure to act on any perceived misconduct prior to entry of the verdict, Rubin agreed with the government that Falcone’s questioning of the juror obviated any need for any further questions, and thus any need for the juror’s contact information.

As to the convictions, he ruled that Carrasco’s actions were more than mere preparation, supporting the attempted arson conviction, and that the trial court had not erred in failing to instruct the jury on a lesser included offense of resisting an officer without using force because there was no basis for a jury to believe Carrasco’s struggle with the officers did not involve force.

Rubin further opined that Falcone had not abused his discretion in denying Carrasco’s motion to dismiss an allegation that his prior conviction for assault with a deadly weapon on a peace officer constituted a “strike” offense where Falcone expressly considered Carrasco’s background and character before ruling.

However, he did remand the matter for resentencing, concluding that Falcone’s conclusion that he lacked discretion to impose concurrent—rather than consecutive—sentences was error.

Presiding Justice Candace Cooper joined Rubin in his opinion.

The case is People v. Carrasco, B193002.


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