Opinion
H044243
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK CHRISTIAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1359100 )
A jury convicted defendant Fredrick Christian of felony indecent exposure with a prior conviction. Defendant admitted two prior strike convictions and the trial court sentenced him to a third-strike prison sentence of 25 years to life. On appeal, defendant challenges the sufficiency of the evidence supporting his conviction and the admission of prior conviction evidence. He also raises claims of ineffective assistance of counsel and cumulative error. In a separate petition for writ of habeas corpus (case No. H047052), which we ordered considered with the appeal, defendant raises six ineffective assistance of counsel claims. We reverse the judgment on the ground that the trial court abused its discretion by requiring further deliberations after a second reported jury deadlock, defendant's trial counsel was ineffective in failing to object, and defendant suffered prejudice. By separate order filed this day, we deny the petition for writ of habeas corpus as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
1. The Events of June 9, 2013
George L. and his partner, Michael H., live in the 400 block of 6th Street in San Jose, just north of William Street. The O'Donnell Park playground is located at the Southwest corner of 6th and William, approximately 200 feet to the south of George and Michael's home.
On the evening of June 9, 2013, George was in his front yard doing yard work. He saw a number of people walk past while he was working. He testified that there is regular foot traffic in his neighborhood because "[t]here is a University right down the street, there is a corner store, there is a restaurant, and there is the park." He could hear kids playing in the park.
At approximately 6:30 p.m., while the sun was still up, George saw a large white van park in front of his home. The van had front side windows but no rear side windows. George noticed that a few minutes passed without anyone getting out of the van. Standing at the edge of his property, he took a closer look at the van and saw a man sitting in the driver's seat masturbating. George testified that he watched for about 90 seconds, in shock as to what he was seeing. Michael, who had been in the backyard, approached George while this was happening. George said something along the lines of, "Look at this guy in the van. Do you think he's doing what I think he's doing?" Michael responded, "I don't believe it. That guy is masturbating." Both George and Michael saw the driver's penis and observed that he was looking toward the park, where children were playing, while masturbating.
Michael took down the van's license plate number. George approached the van, made eye contact with the driver, and made an exaggerated shrugging gesture, meant to communicate "what are you doing?" George also put his hand to his ear in a "phone gesture," to communicate that he was going to call the police. The driver, whom George and Michael both identified as defendant, started the van and drove away.
Odette B. testified for the defense that she and defendant lived in a white van in June 2013. At around 7:00 o'clock in the morning of June 9, 2013, they drove to "the store around the corner from the park" to buy ice. Odette was lying down in the back of the van where they had a bed set up. Defendant sat in the driver's seat where he undid his pants and scratched his "upper thigh area and towards the groin area, because he has tumors there." In the side mirror, Odette saw the reflection of a man looking in the window at defendant. She told defendant and he drove away. Odette testified that defendant dropped her off at a bus stop later that morning and that she did not see him again for several months. She was not with him on the evening of June 9, 2013.
The parties stipulated that defendant was on parole on June 9, 2013, which required him to wear a GPS tracking device. They further stipulated that defendant's GPS tracking device showed that he was in the 400 block of 6th Street in San Jose between 6:34 p.m. and 6:40 p.m. on June 9, 2013.
2. Prior Conviction Evidence
The parties stipulated that on July 4, 2002, defendant was convicted of committing lewd and lascivious acts on Erica D., a child under the age of 14, in violation of Penal Code section 288, subdivision (a). The parties also stipulated that on July 7, 2005, defendant was convicted of annoying or molesting Sarah D., a child under the age of 18, in violation of section 647.6. Sarah testified about the conduct underlying that conviction. She testified that in 2004, when she was 10 years old, she walked past the open door of defendant's apartment while on her way to a neighbor's apartment. Defendant, whom she had never met, started a conversation with her and then led her by the hand into his apartment. Inside, he sat her on his lap, where he showed her a picture of a scooter he said he was going to buy for her. She felt uncomfortable and left.
All further statutory references are to the Penal Code unless otherwise noted.
B. Procedural History
The Santa Clara County District Attorney charged defendant with felony indecent exposure with a prior conviction (§ 314, subd. (1)). The information further alleged that defendant had suffered two prior convictions for violating section 288, subdivision (a), which qualified as strikes.
Given the allegations that defendant had two section 288, subdivision (a) priors, his exposure was 25 years to life under the Three Strikes Law. However, defendant's trial counsel, the prosecutor, the trial court, and defendant himself all were under the mistaken impression that, if convicted, defendant would be sentenced as a second-strike offender under the Three Strikes Reform Act of 2012, such that his maximum exposure was six years in prison. In fact, the section 288, subdivision (a) priors, if found true, would make him ineligible for sentencing as a second-strike offender. (§ 1170.12, subd. (c)(2)(C)(iv)(III).) The parties did not realize that defendant's exposure was 25 years to life until sometime during jury deliberations.
The case went to a jury trial. After hearing two days of testimony and deliberating for more than two days, the jury found defendant guilty of indecent exposure. Defendant admitted the prior conviction allegations on December 23, 2014.
The trial court denied defendant's Romero motion and imposed sentence on November 18, 2016. The court imposed a third-strike sentence of 25 years to life. Defendant timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
II. DISCUSSION
A. Sufficiency of the Evidence of Indecent Exposure
Defendant contends his conviction for indecent exposure is not supported by sufficient evidence. Specifically, he says the evidence failed to show that he intended to direct public attention to his genitals.
1. Governing Legal Principles and Standard of Review
A "person who willfully and lewdly . . . [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby" is guilty of indecent exposure in violation of section 314, subdivision (1). "[A] person does not expose his private parts 'lewdly' within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." (In re Smith (1972) 7 Cal.3d 362, 366.)
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
2. Analysis
Defendant points to evidence that he was inside his van, which also was his home, at the time of the incident and that he drove away after making eye contact with George. In his view, that evidence establishes that he did not intend to direct public attention to his genitals. We are not persuaded.
" 'Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.' " (People v. Johnson (2019) 32 Cal.App.5th 26, 58.) Here, defendant decided to expose himself while sitting in the front seat of his van, which was parked directly in front of a residence in an area with high foot traffic, on a June evening. The van had a makeshift bed in the back, where there were no side windows. But rather than masturbate in the relative privacy of the back of the van, defendant opted to do so in the front seat, where he was visible to passersby through the front side windows and the windshield. From the foregoing evidence, jurors could reasonably have inferred that defendant intended to direct public attention to his genitals. That he drove away when George approached making disapproving gestures does not preclude an inference that defendant intended for members of the public to see his exposed genitals. It suggests only that defendant did not want to get caught and be punished for that exposure.
Defendant argues that ignoring the risk of being seen by others is insufficient to satisfy the intent requirement for indecent exposure, citing People v. Honan (2010) 186 Cal.App.4th 175. But that does not impact the analysis. Assuming jurors reasonably could have concluded that defendant merely ignored the risk of being seen and had no intention of directing public attention to himself, that does not compel reversal. (See People v. Lindberg (2008) 45 Cal.4th 1, 27 ["If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding"].)
B. Ineffective Assistance of Counsel
Defendant contends trial counsel was ineffective in failing to object to the trial court's handling of reported jury deadlocks, which he claims violated section 1140 and coerced a jury verdict.
1. Factual Background
The jury started deliberating at 3:52 p.m. on December 8, 2014. Shortly before 5:00 p.m., they submitted two notes. The court responded to those notes the following morning after conferring with counsel.
Jury note No.1 asked: "Can we get clarification on the following: For a 'guilty' verdict, does [CALCRIM No.] 1160 . . . require that the defendant have an intent to direct public attention to himself? Or is it sufficient that public attention was directed regardless of intent?" The trial court responded: "Please refer to Instruction 1160."
The jury was instructed with CALCRIM No. 1160 as follows: "The defendant is charged with indecent exposure in violation of Penal Code section 314. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant's actions; [¶] AND [¶] 2. When the defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] It is not required that another person actually see the exposed genitals."
Jury note No. 2 asked: "Can the absence of conce[a]lment be constructed to imply intent?" The trial court responded: "You may consider conduct in determining intent. However, you alone must decide what the facts are and the significance of the facts."
At 3:05 p.m. on the second day of deliberations, the jury submitted jury note No. 3, which asked: "Must the absence of conce[a]lment be construed to imply intent? The jury is at an impasse regarding the phrase 'intending to direct public attention' in [CALCRIM No.] 1160." After conferring with counsel, the trial court responded: "Please see paragraph 2 of Instruction 200. Please continue to deliberate."
As provided to the jury in this case, the second paragraph of CALCRIM No. 200 states: "You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial."
At 4:07 p.m., the jury submitted jury note No. 4, which stated: "We are at 11:1 and the 1 does not feel he will change his answer. We are at a stalemate. Please advise by end of day." Before calling the jury into the courtroom, the trial court judge "asked the attorneys if they were agreeable to [her] asking[,] if it was 11 to 1, who was the juror, to confirm that person's deliberating and see if that might give some help with some direction. [¶] And neither attorney objected . . . ." The trial court then addressed the jury in open court with counsel present at 4:46 p.m. The trial court judge told the jury she did not want to know "in which direction" the jury was split 11 to 1. The court then asked who the standalone juror was, and the foreperson said it was Juror No. 11. The foreperson confirmed that Juror No. 11 was deliberating and sharing his ideas, but that the jury was unsure how to "keep the conversation going." The trial court judge said she would provide suggestions the following day, after talking to the attorneys.
The jury took the next morning off and returned for deliberations at 1:30 p.m. on December 10. That afternoon, the jury submitted four additional notes. The first, erroneously identified as jury note No. 4, stated: "If a jury member can agree to all the language in clause #1 from [CALCRIM No.] 1160, but has some question of 'intending to direct public attention' in clause 2, can s/he still provide a guilty vote?" The trial court responded: "To find a defendant guilty of Count 1, both elements in Instruction 1160 must be proved beyond a reasonable doubt."
Jury note No. 5 stated: "The language in the count is different than the language for [CALCRIM No.] 1160. The juror is taking the statement '. . . intent of directing public attention to his genitals' very literally and as a primary statement. May 'acceptance of 'risk' be seen as 'intent?' " The trial court responded: "The language in Instruction 1160 is controlling, rather than the language in the Information. In deciding the defendant's intent, you may consider circumstantial evidence. Please refer to Instruction 224."
As provided to the jury in this case, CALCRIM No. 224 states: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Jury note No.6 stated: "May the jury members consider possible other explanations for his actions if they were not brought up by the defense or provided during the case?" The trial court responded: "Please see paragraph 2 of Instruction 200. Could you please be more specific about what you are referring to in this question?"
The court had previously directed the jury to the second paragraph of CALCRIM No. 200, which explains that it is for the jury to decide the facts. --------
"Jury note No. 7 stated: "We are not able to come to [consensus] with our verdict. We are at a stalemate and cannot continue to deliberate." The trial court addressed the jury in open court with counsel present at 4:49 p.m. (Defendant's trial counsel was not available; another attorney appeared in her place.) After confirming that the vote was still at 11 to 1 with the same holdout juror, the trial court asked, "Is there anything that you can think of that I can do or that we can provide you that might be helpful to assist you in reaching a verdict?" A juror responded: "I think if Juror No. 11 might be able to ask a question, maybe in a different way to you, it might take some dialogue." After confirming that no other jurors had any suggestions, the trial court singled out Juror No. 11, asking him directly, "is there something that you can think that I can do that might assist you in reaching a verdict in this case?"
Juror No. 11 responded by essentially reiterating jury note No. 6 regarding the permissible inferences to be drawn from circumstantial evidence. Specifically, he explained that he believed there was "possible scenario[] that explain[ed] the evidence" and that "leads to a not guilty verdict," but that the defense attorney had not offered that explanation at trial. He then asked whether the jury should "discount" that explanation or not. The trial court responded by paraphrasing CALCRIM No. 224 and stating that "jurors may . . . find facts different from the attorneys' perspective on them."
Juror No. 3 then essentially restated jury notes Nos. 2 and 5, asking whether "the acceptance of risk of publicly masturbating, doing that somewhere in public; is that in and of itself intending to direct public attention?" The court noted that the same question had been raised in prior jury notes and said it could not "answer the question any other way than what I have told you in answers, because the conclusions that the jury draws from the evidence in the case is for you to decide. [¶] And I may not inject myself in the deliberation process or tell you what I think about the case or the evidence or anything like that. So a juror may say this evidence proves to me this, or here's the evidence, I draw that inference from the evidence. A juror may conclude that. [¶] Another juror may have a different conclusion and then at that point based on that conclusion there would be—you would refer to the instructions that I've called to your attention and maybe some others, try to apply that law to the facts." The court recommended that jurors "[u]se different words [while deliberating] because sometimes when people are talking about something, it's just a question of how you're expressing yourself. [¶] Maybe Juror 11, you're expressing yourself in a way they're not completely understanding what your perspective is or vice versa."
Juror No. 11 then asked whether CALCRIM No. 1160 "require[s] that the defendant derive sexual gratification from the public display or is it sufficient that the public display happen in an ancillary way to the defendant achieving gratification?" The court said it would provide an answer to that question the following day after conferring with counsel.
Before excusing the jury for the night, the court read CALCRIM No. 3551 as follows: "Sometimes jurors that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict. [¶] Please consider the following suggestions. Do not hesitate to re-examine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. [¶] It's your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. [¶] Both the People and the Defendant are entitled to the individual judgment of each juror. It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you. [¶] Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing."
The following morning, jurors resumed deliberations and the court and counsel conferred to discuss Juror No. 11's oral question. According to a settled statement of that chambers conference, "[r]ather than simply re-refer the jurors to Instruction 1160 as had been done in response to previous questions, the parties requested an opportunity to research and consider possible responses to the question. . . . The court excused the attorneys for one hour for this purpose, instructing them to return at 10:30 a.m. . . . [¶] Shortly after the parties returned at 10:30, the court received Note #8." Jury note No. 8 asked: "May the jury substitute ' . . . willingly directing public attention . . .' instead of ' . . . intending to direct public attention . . .' in paragraph 2 of [CALCRIM No.] 1160 without misrepresenting the law? We chose 'willingly' based on the 2nd to last paragraph of [CALCRIM No.] 1160." "The court and the attorneys discussed Note #8 . . . Before the court and attorneys had completed their discussion of Note #8, an additional note, Note #9 [requesting read-back of George's testimony about the van being parked], was received by the court at 11:18 a.m. [¶] The court went on the record at 11:29 a.m. and heard argument concerning the proposed response to Note #8."
The court responded to jury note No. 8 as follows: " 'Willingly' is not used in Instruction 1160. 'Willfully' is a word that is specifically defined in Instruction 1160 and you must follow that definition. 'Intending' is not specifically defined in these instructions, and so is to be applied using its ordinary everyday meaning. Webster's defines 'intends' as 'to have in mind as a purpose or goal.' "
"When the court deputy delivered the response to Note #8 to the jury, the jurors handed the deputy Note # 10 [requesting read-back of George's testimony about where he was located while the van was being parked] at 11:37 a.m. The court answered this question at 11:45 a.m., indicating that read-back would occur after lunch. The attorneys agree that at this time, they had not yet completed their analysis of the oral question from the day before, and that question was still pending. The court then excused the attorneys for the midday recess, instructing them to return at 1:30 p.m. [¶] At 1:30 p.m., the court conferred with the attorneys concerning the read-back requested in Note #9 and Note #10. The jury returned from lunch at 1:35 p.m. Shortly thereafter, the court reporter went into the jury deliberation room and read back the requested testimony. The read[-]back was concluded at 1:52 p.m. . . . The attorneys and the court had not completed a discussion of the oral question or the issue of whether or not the attorneys would request permission to re-open argument when the jurors informed the deputy at 1:56 p.m. that they had reached a verdict."
The jury rendered a verdict of guilty at 1:56 p.m. Juror No. 11's oral question was never answered.
2. Legal Principles
a. Ineffective Assistance of Counsel
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel generally, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
b. Section 1140 and Jury Coercion
Section 1140 states: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or 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."
" 'The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion.' [Citation.] 'However, a court must exercise its power under section 1140 without coercing the jury, and "avoid displacing the jury's independent judgment 'in favor of considerations of compromise and expediency.' " [Citation.]" (People v. Lopez (2018) 5 Cal.5th 339, 364.)
" '[C]oercive' actions are those involving 'a judicial attempt to inject illegitimate considerations into the jury debates [and] . . . appeal to dissenting jurors to abandon their own independent judgment of the case against the accused,' by placing 'excessive pressure on the dissenting jurors to acquiesce in a verdict.' [Citation.] In assessing the effect of the trial court's actions, the question is 'whether the instructions tend[ed] 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 of whether the instructions "operate[d] to displace the independent judgment of the jury in favor of considerations of compromise and expediency" [citation] 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.' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 461 (Bryant).)
" '[A]ny claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case.' [Citations.]" (People v. Brooks (2017) 3 Cal.5th 1, 88-89.) Accordingly, we must consider the trial court's actions in " 'context and under all the circumstances.' " (Lowenfield v. Phelps (1988) 484 U.S. 231, 237.)
3. Analysis
a. The Trial Court Abused its Discretion in Ordering Further Deliberations After the Second Reported Deadlock
The jury first reported being at a stalemate after one day of deliberating. The trial court was not obligated to cease deliberations at that point simply because the jury stated that it was deadlocked. (See Bryant, supra, 60 Cal.4th at p. 459 [trial court did not improperly coerce verdicts where jury reported a deadlock and the court declined to declare a mistrial and instead questioned the jury "about the nature of the problem and whether there was anything the court could do to help the deliberations"].) And merely requiring jurors to continue deliberating at that point was not an abuse of discretion.
However, the court did abuse its discretion the following evening when it again ordered further deliberations after a second reported deadlock. As noted, context is crucial. Therefore, we begin by setting forth the circumstances surrounding the second reported deadlock.
After the first reported deadlock, the court had taken the unusual step of asking the identity of the single holdout juror. Following the second reported deadlock, the court began its discussion with the jury by asking, "is the vote still 11-1?" and "is it still the same juror?" The foreperson answered each question "correct." Therefore, the court knew who the holdout juror was, and the jury knew that.
Between the two reported deadlocks, the jury submitted three questions, one of which was a two-part question. Those questions reiterated previous jury questions that the court had already answered. Specifically, between the deadlocks the jury asked two questions that effectively sought permission to convict without finding the intent element beyond a reasonable doubt. Specifically, jurors asked in second jury note No. 4 whether a juror could cast a guilty vote despite harboring doubt as to the intent element. And the first part of jury note No. 5 remarked that the language in the information differs from CALCRIM No. 1160 and implied that "the statement '. . . intent of directing public attention to his genitals' " should not be taken "literally." These questions echoed jury note No. 1, which had asked whether intent to direct public attention to oneself was a required element of the offense. Between the reported deadlocks, the jury also asked two questions concerning what inferences they properly could draw from the evidence. The second part of jury note No. 5 asked whether intent (to be seen) could be inferred from acceptance of risk (of being seen). That question was very similar to questions the jury had asked earlier, in jury notes Nos. 2 and 3, regarding whether intent could (or must) be inferred from defendant's failure to conceal himself. Jury note No. 6 asked about drawing inferences not argued by the attorneys. Thus, at the time of the second reported deadlock, the trial court should have been aware that the jury was struggling with the intent element and that the court's prior responses had not cleared up the jury's confusion regarding that element.
If the court had any doubt as to whether its prior guidance had been sufficient, that doubt should have been dispelled by its discussion with jurors in open court. At that time, Juror No. 11 reiterated jury note No. 6 regarding the permissible inferences to be drawn from circumstantial evidence, and Juror No. 3 reiterated jury notes Nos. 2, 3, and 5, asking whether "the acceptance of risk of publicly masturbating, doing that somewhere in public; is that in and of itself intending to direct public attention?" Yet, the court provided no further guidance as to those questions before again ordering the jury to resume deliberations. Indeed, as to the second question, the court figuratively threw up its hands, saying "I can't answer the question any way other than what I have told you in the answers, because the conclusions that the jury draws from the evidence in the case is for you to decide."
During the same discussion, the court singled out the holdout juror, Juror No. 11, and asked him directly whether there was anything the court could "do that might assist you in reaching a verdict in this case."
The trial was brief, the issues were simple, and it was clear to all that a single holdout juror disagreed with the majority as to a single element. The court singled out that holdout juror to ask whether the court could help him reach a verdict. Given these circumstances, jurors likely perceived the direction to keep deliberating as "pressure to reach a verdict . . . ." (People v. Rodriguez (1986) 42 Cal.3d 730, 775 [citing cases finding the insistence on further deliberations to be coercive, and noting that in those cases "the trials had been relatively short and the issues relatively simple, so that further deliberations seemed unnecessary for purposes of enabling the jury to understand the evidence and could only be deemed intended to coerce the minority into joining the majority jurors' views of the case"].) The lone holdout juror likely felt that pressure acutely.
We are certain that the trial court did not intend to coerce a verdict. Indeed, the judge sought to minimize the potential for coercion by instructing with CALCRIM No. 3551. However, considering the totality of the circumstances from the viewpoint of a "jury of laymen," we conclude that requiring the jury to continue deliberating after the second reported deadlock constituted an abuse of discretion under section 1140. (People v. Crossland (1960) 182 Cal.App.2d 117, 119.)
b. Trial Counsel Was Deficient in Failing to Object
Next, we consider whether trial counsel was deficient in failing to object to the court's decision to require further deliberations. Where, as here, "counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) This case presents one of "those rare instances where there is no conceivable tactical purpose for counsel's actions. . . ." (People v. Lopez (2008) 42 Cal.4th 960, 972.) At the time the trial court directed further deliberations for a second time, it was clear that the jury was leaning 11 to 1 toward conviction and that jurors remained hung up on the intent element, about which they had questions the court had not answered to their satisfaction. Further deliberations were not reasonably likely to produce an acquittal, but to wear down the holdout juror's resolve.
c. Defendant Suffered Prejudice
Defendant has demonstrated that there is a reasonable probability that but for counsel's failure to object, the result of his trial would have been different. Had counsel objected, it is reasonably likely that the trial court would have recognized the potentially coercive effect of requiring further deliberations and would have declared a mistrial. That, of course, would have been a better outcome for defendant than conviction. (People v. Hem (2019) 31 Cal.App.5th 218, 230.)
For the foregoing reasons, we conclude that defendant received constitutionally ineffective assistance of counsel requiring reversal of his conviction. Accordingly, we need not reach his other ineffective assistance of counsel claims, his challenge to the admission of prior conviction evidence, or his claim of cumulative error.
III. DISPOSITION
The judgment of conviction is reversed and the matter is remanded to the superior court for possible retrial. If the People do not elect to retry defendant within 60 days of this decision's becoming final, the Department of Corrections is directed to release defendant.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.