Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA023850, Teresa S. Bennett and Raymond L. Haight III, Judges.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Christine Levingston Bergman and Deborah LaTouche, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
The passenger in a green Honda robbed two sisters at gunpoint. Later, defendant was found in possession of some of the loot from the robbery (along with other stolen property and some methamphetamine) and was arrested. The owner of the Honda was with him at the time, but he was not arrested. One of the sisters had given a description of the robber that sounded more like the Honda owner than defendant. Nevertheless, in a photo lineup, she identified defendant, not the Honda owner, as the robber. In an informal lineup before the preliminary hearing, she identified defendant again. Finally, at trial, both sisters identified defendant as the robber yet again.
After the jurors reported that they were deadlocked on the robbery charges, the trial court asked them how many were voting guilty and how many were voting not guilty. They responded that they were split 10 to two in favor of guilt. The trial court instructed them to continue to deliberate.
The jury then found defendant guilty on two counts of second degree robbery (Pen. Code, § 211), two counts of receiving stolen property (Pen. Code, § 496, subd. (a)), and one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On each of the two robbery counts, a personal firearm use enhancement was found true. (Pen. Code, § 12022.53, subd. (b).) Defendant admitted one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and one five-year prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)). He was sentenced to a total of 23 years 8 months in prison.
We will hold that the photo lineup and the informal lineup were not unduly suggestive. We will also hold that the identifications by the victims constituted substantial evidence sufficient to support defendant’s convictions for robbery. Next, we will hold that the trial court did not erroneously coerce a verdict. The California Supreme Court has held that, when the jurors have spontaneously revealed how many of them are voting for conviction and how many for acquittal, a trial court does not necessarily err by requiring them to deliberate further. Admittedly, it has also strongly indicated that a trial court should never intentionally ask for this information. Nevertheless, under the circumstances of this case, we cannot see how the fact that the trial court asked for it, instead of the jury volunteering it, gave rise to coercion of the verdict. Finally, we will hold that defendant was improperly convicted of both robbery (count 1) and receiving stolen property (count 3) based on the same property.
I
FACTUAL BACKGROUND
A. February 11, 2005: Robberies.
On February 11, 2005, Sharon Zinnerman went to a Food 4 Less in Colton. With her were her six-year-old son and her sister, Ambriel (usually called Amber) Zinnerman, who was six months pregnant.
Around 11:30 p.m., they finished shopping and headed out to their car. As they were about to put their groceries in the trunk, a dark green Honda pulled up behind them. In it, there were three young Hispanic men.
The man in the front passenger seat said, “Give me your f[uck]ing purses.” When Amber laughed, the man pulled out a gun. The sisters then handed him their purses. He said, “[T]urn around, turn around before I f[uck]ing shoot you.” They complied. The Honda “took off.”
At trial, both Sharon and Amber identified defendant as the gunman. Amber testified that she only looked at the gunman “for a second, but I won’t forget his face.” Sharon testified that she looked at the gunman “[b]riefly” — “as he was pulling [the gun] out, we looked at him long enough to see [it].” However, while she was handing over her purse, she “kind of zoned in on [his] face.” She was not able to see the other men in the car very clearly.
When Officer Rico Carrillo first interviewed Sharon, she described the gunman as a light-skinned Hispanic male, in his 30’s, with light-colored eyes, light-colored hair, a mustache, and a light beard. According to his police report, Sharon said that the gunman was missing an upper front tooth and that he had a tattoo on the right side of his neck. Defendant had no missing teeth and no tattoos on his neck. Moreover, he had black hair.
At trial, Sharon testified that she told Officer Carrillo that “there was something about [the gunman’s] mouth, like a missing tooth or a broken tooth . . . .” She also testified that she told Officer Carrillo that he had a dark mark on his neck that looked like a tattoo, but it could have been a bruise.
B. February 17, 2005: Receiving Stolen Property and Possession of Methamphetamine.
On February 17, 2005, around 11:30 a.m., Detective Robert Pleasant drove by the El Rey Motel in Rialto, looking for “narcotics activity . . . .” He noticed a man walking back and forth between room 23 and a dark green Honda. This man was later identified as Joseph Barraza. Barraza owned the green Honda.
Detective Pleasant went to room 23, where he found four people: defendant, Barraza, a man named Joel Bobadilla, and a woman named Tara Loftus. Detective Pleasant asked whose room it was. Defendant said it belonged to him.
Detective Pleasant then searched the motel room. On a desk, he found a black toiletry bag. Defendant said the bag belonged to him. Inside the bag, Detective Pleasant found:
(1) A key to room 23.
(2) 0.22 grams of methamphetamine.
(3) Items that had been in Sharon’s purse when it was taken, including her driver’s license, her social security card, her Capital One and Millennium credit cards, and her Washington Mutual checkbook.
(4) A California identification card and a Mervyn’s credit card in the name of Tina Moreno.
At trial, Tina Moreno testified that her California identification card and her Mervyn’s credit card had been in her wallet when it disappeared after she left it in an unlocked car in front of her house.
Defendant was arrested. Barraza, Bobadilla, and Loftus were allowed to leave. Later, Detective Pleasant tried to find Barraza at his house, but he was not there.
Detective Pleasant admitted that Barraza had a missing tooth. He gave contradictory testimony about whether Barraza had a tattoo on his neck. At one point, he claimed Barraza did not have a tattoo. However, he also testified that either defendant or Barraza had a tattoo on his neck, but he could not remember which one. Finally, he testified that whichever one had a missing tooth also had a tattoo.
According to Detective Pleasant, defendant had a red mark on his neck that could have been a tattoo or a hickey. However, it was not visible in his booking photograph.
C. Subsequent Identifications.
On February 18, 2005, Detective Jack Morenberg showed both Sharon and Amber two “six-pack” photo lineups, one including defendant and one including Bobadilla. At the time, he was unable to find a photograph of Barraza. He instructed Sharon “to not pay attention to changes in hair color or hair length or those types of things, just to pay attention to facial features.”
Sharon identified defendant as the gunman. She added that “if he had a tattoo or his mouth was open, [she] would be 100 percent sure . . . .” At trial, she testified that she was “very sure” of her identification.
Amber told Detective Morenberg that two of the photographs (not defendant’s) looked “similar” to the gunman, “but she really wasn’t very sure.” At trial, however, she testified that she “was sure about one of them” (apparently meaning defendant’s).
On March 30, 2005, Detective Morenberg showed Sharon and Amber a third six-pack, this time including a photograph of Barraza taken about four years earlier. They did not make an identification.
On April 13, 2005, the date set for the preliminary hearing, defense counsel asked the prosecutor to “bring [Sharon] in early and see if she could pick defendant out of the box.” The prosecutor did so. First, he told Sharon “that the defendant may or may not be in the courtroom [and] he may or may not be in custody . . . .” He then asked her to “look around the courtroom and tell me if you see the person who robbed you.” Within three or four seconds, Sharon identified defendant. He was in a group of 10 to 12 “in-custodies,” including four or five Hispanic males. The other Hispanic males may or may not have had facial hair. Defense counsel was not in the courtroom at the time. Once again, Sharon was “very sure” of her identification. The prosecutor himself did not then know what defendant looked like.
During the preliminary hearing, Sharon identified defendant yet again, even though he was not sitting at counsel table; he was sitting with other in-custodies and in a different place than he had been sitting earlier.
D. Defense Evidence.
According to motel records, it was Barraza who had rented room 23.
Dr. Robert Shomer, a psychologist, testified as an expert on eyewitness identification. According to Dr. Shomer, mistaken eyewitness identification is the “prime cause” of erroneous convictions. “The level of reliability of identification of strangers is very low,” especially when the stranger is “seen briefly in a life-threatening, stressful situation . . . .” If a weapon is used, people “focus in on that weapon [and] pay less attention to the things around [them].” Unusual details, such as a missing tooth, are more likely to be accurately remembered. He testified that a witness’s “confidence and conviction” regarding an identification do not reliably indicate its accuracy. He also testified that a photo lineup “has a very high error rate as compared to a live lineup.” In Dr. Shomer’s opinion, the photo lineup in this case was unduly suggestive because defendant’s head appeared larger than the others.
II
MOTION TO SUPPRESS SHARON’S IN-COURT IDENTIFICATION
Defendant contends the trial court erred by denying his motion to suppress Sharon’s in-court identification of him.
A. Additional Factual and Procedural Background.
Defendant filed a written pretrial motion to suppress Sharon’s identification of him, arguing that it was the product of an unduly suggestive pretrial photo lineup. The prosecution filed a written opposition. The trial court then held an evidentiary hearing on the motion.
A color copy of the photo lineup has not been transmitted to us. A black and white copy, however, is in the record; it is attached to this opinion as Appendix A, post, at page 35. It consists of photographs of six men, each evidently Hispanic; each either bald or with dark, close-cropped, stubbly hair; and each with a dark-colored mustache and a goatee. Defendant is in position number 2. His head appears a little larger (i.e., closer to the camera) than the heads of the other men, though not much more so than the man in position number 6.
Defendant’s written motion addressed only the photo lineup; it did not mention the identification that Sharon had made before the preliminary hearing. At the hearing on the motion, however, defendant presented evidence regarding this identification, too.
After hearing further argument, the trial court denied the motion. At one point, it stated: “ . . . Mr. Acosta is very prominent in position number two. There is a person in position number six who is almost similar in size . . . . But when I first looked at this, I noticed that number two stood out to me. And I did not know if that was Mr. Acosta or not . . ., but I noticed number two stood out.” It added: “ . . . I find that it’s a bit suggestive in the photo lineup with Mr. Acosta in the number two spot. I mean, why not switch number six and number two and [put] Mr. Acosta in number six?” Afterward, however, it stated: “ . . . I think it is really going to be a jury issue, a question of fact for the jury to determine how well [Sharon] was able to view her assailant. And so I am not going to suppress it at this time. . . . But she is certainly going to be cross-examined vigorously . . . .”
B. Analysis.
1. General legal principles.
“An in-court identification will be suppressed only if it appears that a prior identification procedure employed to secure it ‘was so impermissi[b]ly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citations.]” (In re Gary G. (1981) 115 Cal.App.3d 629, 637-638, quoting Simmons v. United States (1968) 390 U.S. 377, 384 [88 S.Ct. 967, 19 L.Ed.2d 1247].) “[A]n identification procedure is considered suggestive if it ‘caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th 1334, 1355, quoting People v. Carpenter (1997) 15 Cal.4th 312, 367.) “[D]efendant has the burden of showing that the identification procedure was unduly suggestive and unfair ‘as a demonstrable reality, not just speculation.’ [Citation.]” (Cook, at p. 1355, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
“We review deferentially the trial court’s findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive. [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 943; accord, People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
2. The pretrial photo lineup.
Defendant argues that the photo lineup was unduly suggestive.
Based on our independent review of the photo lineup, we do not find it suggestive in the least. Each of the photographs is arguably distinctive in some trifling respect. For example, the man in position number one is bald, while all the other men have at least stubbly hair; the man in position number four is wearing plaid, while all the other men are in solid color clothing; the photograph in position number five is darker than the others; and so on. Yes, defendant’s head appears to be the largest, but it is only barely larger (if at all) than the head of the man in position number six. On the other hand, the men appear to be similar ethnically; they are in similar poses; their head hair and facial hair are similar; and their facial expressions are similar. Overall, the similarities among the photographs are much more striking than their differences.
The photo lineup in this case seems analogous to the one in People v. Carter (2005) 36 Cal.4th 1114. There, the defendant argued that a photo lineup was suggestive because he was the only person shown wearing orange jail clothing. (Id. at p. 1162.) The Supreme Court responded: “Our review of the photographs contained in the lineup indicates that defendant overstates the significance of the distinguishing characteristics seen in the photographs, and overlooks their more compelling general similarities. Each one of the six color photographs is approximately the same size, and depicts a middle-aged or somewhat younger adult male with a mustache and dark hair. Two of the individuals are shown wearing white T-shirts, two are seen wearing light-colored ‘dress’ or ‘polo’ shirts, one wears a plaid shirt, and one individual — defendant — is wearing an orange shirt. Nothing about defendant’s shirt identifies it as a ‘jail jumpsuit’ or any other type of jail-issued clothing, and even if it had, a conclusion that the lineup was unduly suggestive would not necessarily follow. [Citation.] The expressions exhibited by the individuals are roughly comparable: each has his eyes open and his mouth closed, except for one individual whose mouth is slightly parted. Such distinctions are immaterial. [Citation.] Although the size of the white border around defendant’s photograph is slightly larger than the border seen on the Polaroid images, and the Polaroid images are glossy while the image of defendant is semigloss, such trivial distinctions also are immaterial. [Citation.]” (Id. at p. 1163.)
The trial court seems to have felt that position number two was inherently suggestive. We have not found any evidentiary foundation for this. Later, during trial, defendant’s expert, Dr. Shomer, testified: “[O]ver the last 30 years, in 85 percent of the six packs I’ve looked at, the suspect was placed in the number two position.” “Law enforcement individuals . . . call that ‘the front and center position’; they believe that people pay more attention to it.” He also testified, however, that this is “a common fallacy” — i.e., position number two is not inherently suggestive.
Defendant argues that the trial court actually found that the lineup was unduly suggestive but then erroneously ruled that this was an issue of fact to be determined by the jury. We need not consider this argument. Assuming, without deciding, that the trial court used an incorrect legal standard, we review the trial court’s ruling independently. As already discussed, in our view, the lineup was not unduly suggestive. Accordingly, the trial court properly denied defendant’s motion, even if it did so for the wrong reason.
3. The identification before the preliminary hearing.
Defendant also argues that the informal “lineup” immediately before the preliminary hearing was unduly suggestive. Somewhat unhelpfully, the People do not really respond to this argument.
Preliminarily, we questioned whether defendant raised this issue at trial. His written motion to suppress did not mention this lineup. However, at the hearing on the motion, he did introduce considerable evidence concerning it. Moreover, defense counsel referred to it in argument on the motion. While defense counsel could have been much clearer — was he seeking suppression of the pre-preliminary hearing identification, the in-court identification, or both? — we believe the trial court understood that it was being asked to find that the pre-preliminary hearing was unduly suggestive.
We conclude, however, that defense counsel invited the asserted error. It was undisputed that the attorney who represented defendant at the preliminary hearing affirmatively asked the prosecutor to have Sharon brought into the courtroom to see whether she could make an identification. Thus, he essentially dictated all of the conditions of the identification that defendant is now challenging. He appears to have believed that this procedure was likely to clear defendant; instead, it backfired. Nevertheless, he forfeited any contention that the procedure was unduly suggestive.
Separately and alternatively, the trial court properly denied the motion. Defendant had the burden of proof. The evidence showed that defendant was in a group of 10 to 13 other men, four or five of whom were Hispanic. The other Hispanic men may or may not have had facial hair. Other than that, there is no evidence that defendant stood out from the pack in any way. In any event, “‘there is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance [citations] . . . .’ [Citation.] Thus, courts have upheld lineup identifications despite the existence of similar or greater disparities among the lineup participants. [Citation.]” (People v. Wimberly (1992) 5 Cal.App.4th 773, 790, quoting People v. Sequeira (1981) 126 Cal.App.3d 1, 16.)
Some older cases — including one decided by this court — stated that the People have the burden of proving that a challenged identification procedure is not unduly suggestive. (People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 190, fn. 8 [Fourth Dist., Div. Two]; People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 401-402; People v. George (1972) 23 Cal.App.3d 767, 774.) While these cases have never been expressly overruled, it is impossible to square them with the California Supreme Court’s later pronouncements that “‘[t]he defendant bears the burden of demonstrating the existence of an unreliable identification procedure.’ [Citation.]” (People v. Gonzalez, supra, 38 Cal.4th at p. 942, quoting People v. Cunningham (2001) 25 Cal.4th 926, 989.)
We therefore conclude that the trial court did not err by refusing to suppress Sharon’s in-court identification.
III
THE SUFFICIENCY OF THE EVIDENCE OF DEFENDANT’S IDENTITY AS THE ROBBER
Defendant contends that Sharon and Amber’s identifications of him were so unreliable as to be insufficient to support his convictions for robbery.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22, quoting People v. Catlin (2001) 26 Cal.4th 81, 139, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560], People v. Wader (1993) 5 Cal.4th 610, 640, and People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
Defendant argues that Sharon’s initial description of the gunman matched Barraza rather than him. This merely raised an evidentiary conflict that was up to the jury to resolve. There were three Hispanic men in the car; the jury could properly reason that Barraza was also at the scene, and that Sharon initially confused defendant with him, but that she had managed to sort them out in her mind by the time of trial.
Defendant also argues that Amber’s identification was unreliable because she had failed to identify him in a pretrial photo lineup. “The mere fact that a witness is unable to identify a defendant from photographs shown him does not render a subsequent in-court identification inadmissible. [Citations.]” (People v. Contreras (1993) 17 Cal.App.4th 813, 822.) Once again, the jury could properly reason that Amber was able to recognize defendant better in person than from a photograph.
Finally, when defendant was arrested, he was in possession of some of Sharon’s property. “‘“[W]hen a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.”’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 357, quoting People v. Mulqueen (1970) 9 Cal.App.3d 532, 542.)
We therefore conclude that there was sufficient evidence to support defendant’s robbery convictions.
IV
THE TRIAL COURT’S QUESTIONING OF THE DEADLOCKED JURY
When the jury indicated that it was deadlocked on the robbery charges, the trial court asked “which way the jury is split,” learned it was split 10 to two in favor of guilt, and then required it to continue deliberating. Defendant contends that this effectively coerced a verdict.
A. Additional Factual and Procedural Background.
Judge Teresa S. Bennett presided over the trial. However, because she was scheduled to attend judicial college, the parties stipulated that Supervising Judge Raymond L. Haight III could preside over the deliberations and receive any verdict.
Counts 1 and 2 charged robbery. Counts 3 and 4 charged receiving stolen property; count 5 charged possession of methamphetamine.
On the third day of deliberations, the jury sent out a note saying, “We are not unanimous on counts 1 & 2. Further deliberation will not break the enpass [sic] on counts 1 & 2. [¶] We have unanimous decisions on counts 3, 4, & 5. [¶] How should we proceed on counts 1 & 2?”
In the presence of both counsel, Judge Haight called the jurors into court. He asked Juror No. 6 (the foreperson):
“First of all, is the count the same as to both; the split with the jury, is it the same as to both Counts 1 and 2? . . .
“JUROR NUMBER 6: Same on both counts.
“THE COURT: I figured as much.
“Don’t tell me which way you are split.
What is the count of the last vote?
“JUROR NUMBER 6: Ten-two.
“THE COURT: Ten-two.
“How many ballots has the jury taken; how many votes?
“JUROR NUMBER 6: Two. [¶] . . . [¶]
“THE COURT: . . . [¶] Was the count the same on both ballots?
“JUROR NUMBER 6: Yes, sir. [¶] . . . [¶]
“THE COURT: You haven’t really deliberated all that long. What causes you to believe that no further deliberations would be forthcoming?
“JUROR NUMBER 6: Just in our conversation.
“THE COURT: You feel that the positions are just so hardened that no further discussion would be availing?
“JUROR NUMBER 6: That’s the impression that I’m getting.
“THE COURT: Okay. Let me just ask every single juror that, because that’s really part of what I have to decide.
“Let me just go through you by the number.
“(Name redacted — Juror #1), do you think any further deliberations will produce a verdict on those charges?
“JUROR NUMBER 1: No.
“THE COURT: What about you, (name redacted — Juror #2)?
“JUROR NUMBER 2: It’s hard to say yes or no.
“THE COURT: Okay, I know, but I am just trying to get a feel for where you all are.
“(Name redacted — Juror #3)?
“JUROR NUMBER 3: It’s really hard to say also.
“THE COURT: Okay, (name redacted — Juror #4), what is your feeling about further deliberations?
“JUROR NUMBER 4: I am not 100 percent right there for further deliberations.
“THE COURT: [Name redacted – Juror #5]? [¶] . . . [¶]
“JUROR NUMBER 5: Could you restate the question?
“THE COURT: Really, basically I’m asking if you think any further deliberations would be of value in producing a verdict or are you at a complete impasse at this point?
“JUROR NUMBER 5: I don’t think any further deliberations are going to change the verdict.
“THE COURT: What about you, (name redacted — Juror #7)?
“JUROR NUMBER 7: I don’t think so.
“THE COURT: [Name redacted – Juror #5]? [¶] . . . [¶]
“JUROR NUMBER 8: I don’t think so; but not positive.
“THE COURT: What do you think, (Name redacted — Juror #9)?
“JUROR NUMBER 9: I don’t think so.
“THE COURT: What do you think, (name redacted — Juror #10)?
“JUROR NUMBER 10: I don’t think so, sir.
“THE COURT: (Name redacted — Juror #11)?
“JUROR NUMBER 11: I don’t think so, but I am not positive, either.
“THE COURT: [Name redacted – Juror #12]? [¶] . . . [¶]
“JUROR NUMBER 12: I am not positive either.”
Judge Haight then asked:
“THE COURT: . . . Any additional instructions as to the law that you think would be helpful?
“JUROR NUMBER 6: That might help.
“THE COURT: Can you think of anything yourself while you are sitting there or
“JUROR NUMBER 6: Probably to cover again the reasonable doubt; how to handle inconsistent testimony.
“THE COURT: Okay. Well, basically nobody really touches reasonable doubt as it’s written. It is up to the jurors to work with that; you are on dangerous ground if you do.”
Judge Haight sent the jurors back out and discussed the matter with counsel. He remarked, “[I]f I knew that [sic] were hung 10 to 2 for not guilty, it would certainly put a different spin than if they are hung 10 to 2 for guilty.”
He then indicated that he wanted to look at the verdict forms for counts 3, 4, and 5. He asked, “Do both counsel agree to look at those?” The prosecutor said, “Yes, your Honor.” The record does not reflect any response by defense counsel. After inspecting the other verdict forms, Judge Haight remarked:
“THE COURT: Well, they are not making it easy; they are all guilties.
“Do you want to — I suppose that indicates it might be kind of two for guilty.
“Is that the way you read it, [prosecutor]?
“[PROSECUTOR]: Yes.
“THE COURT: I will bring them out and ask them that, if both counsel agree.
“As far as I am concerned, if it is 10 to 2 for not guilty, there’s no point in sending them back in, unless you want a verdict for not guilty. If it’s 10 to 2 for guilty, I don’t see that I can declare a mistrial quite yet, because there’s at least five jurors that said there should be further deliberations to be forthcoming.
“Do you want me to ask them how they are split — or ask them how they’re hung?
“[DEFENSE COUNSEL]: I can’t imagine how to answer that.”
Judge Haight called the jury into court again and asked:
“THE COURT: . . . [¶] You have said your jurors are split ten to two right now. Could you tell me which way the jury is split?
“JUROR NUMBER 6: Ten guilty, two not guilty.
“THE COURT: Right now, based upon the responses of at least four or five of the jurors, I don’t think I am in a position to declare that the jury is unalterably deadlocked at this point.
“What I am going to do is encourage you to go back and deliberate and listen to both side’s arguments, one way or another.
“On the reasonable doubt instruction — you have the instructions in there, right?
“JUROR NUMBER 6: Yes.
“THE COURT: Did you go through and find those specific instructions? You might go through and look at them. I know they are not easy to work with, but go in there and look at them and make what you can of them and maybe try to look at the case from a different way.
“But I am going to direct that you go in and deliberate. If you try it for — I don’t know, when do you guys have to go home tonight, did you set something up?
“JUROR NUMBER 6: 4:30.
“THE COURT: Well, if by 4:15, all of you agree that no further deliberations would produce a verdict, then you tell the bailiff and I will come out here and we will deal with that.
“But, you know, you really all have to be pretty consistent, that I just think that you are at a complete impasse and no further discussions and no further evidence or reading of the law would produce a verdict. You haven’t really deliberated that long considering how long the case was; really sounds like it’s less than two days really. So keep that in mind, too.
“You do have a duty to listen to each other and consider each other’s arguments. And I mean this both ways, you know, people can go back and forth.
“So I am going to instruct you to go back in and deliberate further.
“As I said, I am not going to keep you here forever. If you guys decide it is just not going to do any good to come back tomorrow, then tell me. But if you think sleeping on it would help and you want to come back tomorrow, you can decide to do that too, okay?”
About an hour later, defense counsel moved for a mistrial. He represented that he had tried to make the motion sooner: “I had asked the court staff to notify the Court, it couldn’t have been a minute after the jury had left the courtroom. But your Honor was in your own jury trial, so we were waiting until now to do it.”
He argued that, under the circumstances, requiring the jurors to deliberate further would be coercive: “By sending them back with about an hour left to deliberate . . . sends a message to the jury that there’s only two of you that are holding up a complete verdict and change your vote so that we can get this thing put away.” He also argued that there was insufficient evidence that the jurors could still reach a verdict: “ . . . I didn’t hear anybody adamantly say that they weren’t hung.” Judge Haight denied the motion.
The jurors deliberated only a few minutes more that day. The next morning, however, after about 45 minutes, they reached a verdict.
Defendant filed a motion for new trial on the ground that “ordering the jury to go back and deliberate when [the court] knew specifically that the verdicts on three of the counts were for guilty and that the split was 10 to 2 guilty on the remaining counts” constituted improper coercion.
The motion was heard by Judge Bennett. She noted: “ . . . I have never seen the procedures Judge Haight used in this case employed in any other case to my knowledge. All authority agrees that how the jury is split is irrelevant to any proceedings before the Court.” Nevertheless, she concluded: “ . . . I do not condone the procedure that Judge Haight instituted in this case, but I do not find it rose to the level of coercion per se, necessitating a new trial.” She therefore denied the motion.
B. Analysis.
“The court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement. [Citations.]” (People v. Pride (1992) 3 Cal.4th 195, 265, fn. omitted, quoting Pen. Code, § 1140.) “‘The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 195-196, quoting People v. Breaux (1991) 1 Cal.4th 281, 319, quoting People v. Carter (1968) 68 Cal.2d 810, 817.)
“Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case. [Citations.]” (People v. Pride, supra, 3 Cal.4th at p. 265.) We ask “whether the instructions tend to impose such pressure on jurors to reach a verdict that we are uncertain of the accuracy and integrity of the jury’s stated conclusion. This determination . . . is perhaps best characterized as requiring a generalized assessment of the potential effect of a given instruction on the fact finding process, rather than as an attempted inquiry into the actual volitional quality of a particular jury verdict.” (People v. Gainer (1977) 19 Cal.3d 835, 849-850.)
Defendant contends, as he did in his motion for new trial, that Judge Haight erred by requiring the jury to deliberate further after he asked — and he learned — how the jury was split.
Preliminarily, however, the People contend that defense counsel forfeited this contention by failing to raise a timely and specific objection at trial. They quote People v. Garcia (1984) 160 Cal.App.3d 82, to the effect that: “[A] defendant should [not] be permitted to sit back, await a jury verdict, and then assert error based on the court’s improper communication with the jury. [Citations.]” (Id. at p. 89.) That, however, is not what defense counsel did. Rather, almost immediately after Judge Haight sent the jury out to deliberate further, defense counsel objected and moved for a mistrial. Judge Haight was not available to hear the motion until about an hour later, and even then, the jury had not yet returned a verdict. If Judge Haight had agreed with defense counsel, he could still have granted a mistrial. Thus, this was not a case in which defendant was trying to have it both ways.
We therefore turn to the merits.
In the federal courts, it is error for the trial court to ask how the jury is numerically divided, even if it does not ask whether the majority is in favor of conviction or acquittal. In Brasfield v. United States (1926) 272 U.S. 448 [47 S.Ct. 135, 71 L.Ed. 345], the United States Supreme Court stated: “We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded.” (Id. at p. 450.)
The court later clarified, however, that “the decision in Brasfield was an exercise of this Court’s supervisory powers,” and hence not binding on state courts. (Lowenfield v. Phelps (1988) 484 U.S. 231, 239-240 [108 S.Ct. 546, 98 L.Ed.2d 568], fn. omitted.)
Accordingly, in People v. Carter, supra, 68 Cal.2d 810, our state Supreme Court declared that asking how the jury is numerically divided is not error: “[T]he court bears the statutory responsibility of assuring that a verdict is rendered ‘unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’ [Citation.] [¶] The discharge of this responsibility necessarily requires that the court, in cases where the jury has been unable to reach agreement, make the indicated determination of ‘reasonable probability’ and, in cases where in accordance with sound legal discretion [citations] it is determined that such a probability exists, that it take appropriate action to encourage agreement. Thus, the court in such cases may inquire of the jury as to its numerical division without seeking to discover how many jurors are for conviction and how many are for acquittal. [Citations.]” (Id. at p. 815, italics added, fn. omitted, quoting Pen. Code, § 1140; accord, People v. Howard (2008) ___ Cal.4th ___, ___ [2008 Cal. LEXIS 1194 at pp. 56-57]; People v. Dennis (1998) 17 Cal.4th 468, 539-540; People v. Proctor (1992) 4 Cal.4th 499, 538-539; People v. Price (1991) 1 Cal.4th 324, 467; People v. Breaux, supra, 1 Cal.4th at p. 319; People v. Morris (1991) 53 Cal.3d 152, 227, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Rodriguez (1986) 42 Cal.3d 730, 776 & fn. 14.)
We have not found any California case in which the trial court actually went beyond asking how the jury was numerically divided and, as here, asked whether the majority was in favor of conviction or acquittal. There are cases, however, in which the jury revealed this information without being asked.
For example, in People v. Sheldon (1989) 48 Cal.3d 935, the jury sent out a note stating that it was deadlocked, with 11 jurors favoring death and one favoring life imprisonment. (Id. at p. 958.) The trial court reread the penalty phase instructions and required the jury to continue deliberating. (Id. at pp. 958-959.) The Supreme Court held: “No improper coercion occurred here. The trial court made no coercive remarks and exerted no undue pressure on the minority juror to change his vote. [Citation.] . . .
“Defendant argues, however, that it is inherently coercive to refuse to discharge a jury after learning of an 11 to one vote favoring the death penalty. We disagree. There is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror favoring acquittal. In such a case, the judge’s remarks to the deadlocked jury regarding the clarity of the evidence, the simplicity of the case, the necessity of reaching a unanimous verdict, or even the threat of being ‘locked up for the night’ might well produce a coerced verdict. [Citation.] But the potential for coercion was not realized by anything said or done by the court in this case.
“Here, the deadlock proceeding was heard by an assigned judge whose remarks or actions could not have been interpreted by the holdout juror as an agreement with the position taken by the 11 jurors voting for conviction. [Citation.] Moreover, the court made no remarks either urging that a verdict be reached or indicating possible reprisals for failure to reach agreement. We conclude that the trial court did not abuse its discretion in determining that it was reasonably probable the jury could reach a verdict after a rereading of the penalty instructions. [Citation.]” (People v. Sheldon, supra, 48 Cal.3d at pp. 959-960.)
Similarly, in People v. Bell (2007) 40 Cal.4th 582, the foreperson sent out a note stating that the jury could not arrive at a verdict on the charged robbery because one juror could not find that the taking had been by force or fear. The trial court required the jury to continue to deliberate. (Id. at p. 613.) The Supreme Court stated: “Defendant . . . argues the order for further deliberations was coercive because the trial court knew (from the foreman’s unprompted revelation . . .) that the jury was split 11 to one for conviction and that the split involved an issue (whether the taking of property was accomplished by force or fear) that had troubled the jury since early in its deliberations. But while we have recognized the increased ‘potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror’ [citation], we have rejected the view that denial of a mistrial in that circumstance is ‘inherently coercive’ [citation].” (Id. at p. 617, quoting People v. Sheldon, supra, 48 Cal.3d at p. 959; accord, People v. Pride, supra, 3 Cal.4th at pp. 265-266; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254; see also People v. Johnson (1992) 3 Cal.4th 1183, 1252-1255.)
In sum, because of the potential for coercion, any trial judge who asks a jury, as Judge Haight did here, how it is split with respect to conviction or acquittal is taking a huge risk — and an unnecessary one. Nevertheless, in terms of whether the potential for coercion was realized, we find no meaningful distinction between this case and Sheldon. A potential for coercion arises whenever the jurors know that the trial court knows that there are only one or two holdouts. As a result, the jurors may understand the trial court’s directive to continue deliberating as implicitly ordering the holdouts to cave in. This is true, however, even if all the trial court knows is that the jury is split 10 to two or 11 to one, without knowing whether the majority favors conviction or acquittal. It could still be argued that the trial court is coercing a verdict — it simply does not know which verdict it is coercing. Moreover, when the trial court does know which way the majority is leaning, requiring the jury to continue to deliberate has the same potential for coercion, regardless of whether the trial court asks for this information or the jurors blurt it out.
Here, as in Sheldon, Judge Haight did not give any particularly coercive instructions; he did not say that the evidence was clear, the case was simple, or the case would have to be retried if the jurors could not agree. Moreover, Judge Haight was not the judge who had presided over the trial; hence, the jurors could not have viewed his remarks or actions as implying that the evidence favored conviction. Of course, in this case, Judge Haight did ask which way the jurors were leaning, whereas in Sheldon the jurors volunteered this information. The main problem with the trial court asking this question is that it may give the “impression that the court, upon its own consideration of the evidence, favor[s] a guilty verdict.” (People v. Carter, supra, 68 Cal.2d at p. 817.) This cannot be the case, however, when the judge who asks the question has not heard the evidence. (Id. at pp. 816-817.) Finally, Judge Haight’s other comments dispelled any arguably coercive effect. He admonished the jurors to “listen to each other and consider each other’s arguments,” adding that this admonition went “both ways.” He further stated, “If you guys decide it is just not going to do any good to come back tomorrow, then tell me” — in other words, if they were genuinely hung, he would declare a mistrial. Accordingly, in light of the totality of circumstances in this case, we cannot say that requiring the jurors to continue to deliberate imposed such pressure on them to reach a verdict that we are uncertain of the accuracy and integrity of the jury’s stated conclusion.
Defendant also points to Judge Haight’s remark, “[I]f I knew th[ey] were hung 10 to 2 for not guilty, it would certainly put a different spin than if they are hung 10 to 2 for guilty.” We do agree that this reflects a mistaken view of his role. Once a jury reports that it is deadlocked, the trial court should simply determine whether there is a “reasonable probability that the jury can agree.” (Pen. Code, § 1140.) If so, it should require the jury to continue to deliberate; if not, it should declare a mistrial. Whether the jury is leaning toward conviction or acquittal is irrelevant.
Judge Haight evidently felt that, if the jury was split 10 to two in favor of acquittal, it would save time and effort just to declare a mistrial. A mistrial, however, is not the same thing as a unanimous verdict of acquittal. A mistrial leaves the defendant subject to further prosecution; moreover, it leaves the court, the People, and the witnesses subject to the time, effort, and expense of a new trial. Hence, a trial court should do just as much to secure a unanimous not guilty verdict as a unanimous guilty verdict — no more and no less.
Nevertheless, Judge Haight’s erroneous remark does not alter our view that he did not coerce the jury’s verdict. He made this remark to counsel, outside the presence of the jurors; it could not have had any effect on their deliberations. As we have already discussed, requiring the jurors to continue deliberating was not coercive; thus, it was not the wrong thing to do, even if Judge Haight did it for the wrong reasons.
Finally, defendant complains that Judge Haight erred in finding that at least five jurors felt that further deliberations might be helpful, and hence in finding that there was a reasonable probability that the jury could agree. Admittedly, there were not five jurors who affirmatively agreed that further deliberations would be helpful. However, there were five jurors who refused to rule this out — three (Jurors No. 8, 11, and 12) who did not think so, but were “not positive,” and two (Jurors No. 2 and 3) who found it “hard to say.” Judge Haight had discretion to view this as evidence that there was at least a reasonable possibility that the jury could still agree.
We therefore conclude that Judge Haight did not err by requiring the jury to deliberate further.
V
DUAL CONVICTION OF BOTH ROBBERY AND RECEIVING STOLEN PROPERTY
Defendant contends that he could not be convicted of both robbery and receiving stolen property based on the same property.
The People concede that this was error. We agree. Subject to exceptions not applicable here, a person cannot be convicted of both robbery and receiving stolen property based on the same property. (Pen. Code, § 496, subd. (a); People v. Smith (2007) 40 Cal.4th 483, 522.) Count 1 alleged a robbery from Sharon. Count 3 and count 4 both alleged receiving stolen property (a credit card in count 3, and credit cards and identification in count 4). They did not name any particular victim. In closing argument, however, the prosecutor told the jury that count 3 was based on receiving property stolen from Sharon, and count 4 was based on receiving property stolen from Tina Moreno. Thus, the convictions on count 1 and count 3 were both based on the property taken from Sharon.
We will vacate defendant’s conviction of receiving stolen property on count 3 and strike the four-year term that the trial court imposed on count 3. Because the trial court also stayed this term, purportedly pursuant to Penal Code section 654, there is no change in defendant’s total sentence.
VI
DISPOSITION
Defendant’s conviction of receiving stolen property on count 3 is vacated. The four-year term that the trial court imposed (but stayed) on count 3 is stricken. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., KING, J.
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Omitted