Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF111846, Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Randall D. Einhorn and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Aaron Alburto Lozada appeals from his conviction for second degree murder. He contends the trial court erred by giving a supplemental jury instruction when the jury reported a deadlock and he is entitled to presentence custody credits. We find no error in the court’s supplemental instruction but agree Lozada is entitled to presentence custody credits and modify the judgment accordingly. In all other respects, we affirm the judgment.
FACTS & PROCEDURE
In August 2003, Lozada was living in Upland, working at a dairy farm, and sharing a house with Sergio Arias and another man. On the night of August 14, 2003, Lozada, Arias, and Lozada’s friend, Jesus Penuelas, who lived in Ontario, were all at the house. As the three men were getting ready to sleep in the living room, Penuelas and Arias were discussing plans for the next day. They asked Lozada to drop them off in Ontario the next morning on his way to work.
The next morning, Lozada dropped off Penuelas and Arias in Ontario. When they got out of Lozada’s car, Penuelas opened the trunk and removed plastic gloves Lozada kept there for work. Penuelas and Arias went to the home of 18 year old Jessica De La Torre. Penuelas knew De La Torre—they had previously worked together—and he believed she had several thousand dollars in her bank account that she was saving to buy a car. Once inside De La Torre’s house, Penuelas and Arias tortured, raped, and sodomized her. Penuelas and Arias took De La Torre’s ATM card and several stereos. They bound De La Torre, put her in the trunk of the black Toyota sedan belonging to her father, and before driving away, set fires in an attempt to burn down the house.
Penuelas and Arias drove the Toyota back to Lozada’s house. Lozada was home from his first shift at work. He helped Penuelas and Arias unload the stolen stereos and bring them in the house. Penuelas told Lozada he had to drop off the Toyota and asked Lozada to follow in his own car.
Lozada, in his car, followed Penuelas, in the Toyota, to a desolate area in Jurupa. They drove to the end of a paved road where Penuelas stopped the Toyota, got out, and had a conversation with Lozada. Penuelas got back in the Toyota and drove down a dirt road. Lozada followed for a bit and then stopped his car and turned around facing back toward the paved road. Penuelas drove the Toyota another 50 to 70 yards down the dirt road, stopped, and removed De La Torre, bound and still alive, from the trunk. He then repeatedly drove the car over her, killing her.
Penuelas drove the Toyota back down the dirt road to where Lozada was waiting, and Lozada followed him to a shopping center in Fontana. Lozada waited while Penuelas wiped down the Toyota. Penuelas got in Lozada’s car and as they drove back to Lozada’s house, Penuelas told him he “‘just finished killing a girl.’” Lozada testified he did not believe Penuelas at first.
The men drove back to Lozada’s house, where Arias was waiting. Lozada drove Penuelas and Arias to different locations where they unsuccessfully attempted to use De La Torre’s ATM card to withdraw money. Arias told Lozada what he and Penuelas did to De La Torre at her house. The men returned to Lozada’s house, and Lozada went back to work.
Lozada was interviewed by police several times beginning a couple days after De La Torre’s murder. Lozada eventually admitted to police that when he drove away from his house following Penuelas in the Toyota, he knew the car was stolen and he knew De La Torre was in the trunk of the car and she was still alive. He knew something bad was going to happen to De La Torre when Penuelas drove her farther down the dirt road, and he learned from Penuelas afterwards that he had repeatedly run her over with the car. He knew Penuelas and Arias were attempting to use De La Torre’s ATM card afterwards.
An information charged Lozada, Penuelas, and Arias with one count of premeditated murder. (Penal Code, § 187, subd. (a).) The information alleged special circumstances as to Penuelas and Arias including that the murder was committed during the commission of a robbery, kidnapping, and torture. (§ 190.2, subds. (a)(17)(A) & (B), (a)(18).) At the first trial, the jury was unable to reach a verdict as to Lozada. Separate juries convicted Penuelas and Arias and found true the special circumstances allegations, resulting in a death sentence for Penuelas and a sentence of life without possibility of parole for Arias. A second trial for Lozada also ended in a hung jury. In this, Lozada’s third trial, the jury found him guilty of second degree murder. The trial court sentenced him to a term of 15 years to life and awarded him no custody credits on his sentence.
All further statutory references are to the Penal Code.
DISCUSSION
A. Supplemental Jury Instruction
Lozada contends the trial court erred by giving the jury a supplemental instruction after learning the jury was deadlocked 11 to 1 or 10 to 2 in favor of conviction. He contends giving the instruction coerced a verdict and denied him his due process rights. We find no error.
We begin with the relevant procedural background. The jury retired to deliberate at 2:45 p.m. on Friday August 28, 2009. Over the course of the next four days of deliberations, the jury sent five notes to the trial court. The trial judge, Richard J. Hanscom, was away during deliberations. The jury inquiries were handled by Judge Edward D. Webster, who had presided over Lozada’s second trial. Most of the jury requests were for a readback of testimony, one was a request to identify the instructions on aiding and abetting, and one asked for clarification about whether second degree murder was “an option.”
On day five of deliberations, the jury sent the court the following note: “We have reached a point where 10 jurors vote guilty under the felony murder theory (linked thru aiding and abetting with the stolen vehicle). However, one juror won’t take a position and one votes not guilty and states he will not change his position no matter what.”
Judge Webster, lamenting he wished the jury would not have given so much information, conferred with counsel regarding how to respond to the note. The prosecutor suggested the trial court give a supplemental instruction similar to the one approved of in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore). Defense counsel objected to further instructions and asked the trial court to question the minority jurors if any further deliberation would help.
The trial court first brought the jury in to address the problem of one juror refusing to take a position. It reminded the jury all jurors had to deliberate and take a position and sent the jury back to deliberate. The jury shortly returned. The foreperson advised the court there had been a misunderstanding and the juror who would not take a position had now taken one but that juror’s vote was not revealed.
The court then told the jury it was going to read a supplemental instruction and allow the jury to continue deliberations, explaining to the jury “no one should feel coerced to change their position, but it’s fair to... make this last instruction....” The court then read the following instruction to the jury—a nearly verbatim recitation of the instruction given, and approved, in Moore, supra, 96 Cal.App.4th at pages 1118 1119:
“Members of the jury, I have further instructions and directions to give you as a consequence of your note indicating your belief that you are unable to arrive at a unanimous decision.
“It has been my experience on more than one occasion that a jury that initially reported it was unable to reach a verdict was ultimately able to arrive at a unanimous verdict.
“Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to re examine your own views or to request your fellow jurors to re examine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
“Fair and effective jury deliberations require a frank and forthright exchange of views.
“As I previously instructed you, each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so, without violence to your individual judgment.
“Both the People and the defendant are entitled to the individual judgment of each juror.
“You have the absolute discretion to conduct your deliberations in any way you deem appropriate. I suggest, however, that since you have not been able to arrive at a verdict using the methods that you have chosen so far, that you consider... chang[ing] the methods you have been following, at least temporarily, and try new methods.
“For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse roleplaying by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the others’ positions.
“By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely suggest you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and that each juror consider and understand the views of the other jurors.
“The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. I direct your attention to the instructions already given that relate to the basic duties of jurors and to how jurors should conduct themselves during deliberations.
“You should keep in mind these earlier instructions when considering the additional instructions, comments and suggestions I have just made. I hope my comments and suggestions may have some assistance to you.
“You’re ordered to continue your deliberations at this time. If you have other questions, concerns, request or any communications you desire to report to me, please put those in writing on the form my bailiff has provided you with. Have them signed and dated by your foreperson and then please notify the bailiff.”
The court finished by telling the jury: “I might indicate, this would be the last instruction. And if you honestly can’t reach a verdict after you’ve gone through these further steps, that’s perfectly okay. So please don’t look at this as being pressure put on anybody. It’s just a thought that this might possibly be helpful.”
The jury was sent back to continue deliberations at 11:25 a.m. About two and one half hours later, it returned a verdict of guilty of second degree murder.
Lozada contends the trial court should not have given the supplemental because it coerced the jury into returning a verdict. Moore, supra, 96 Cal.App.4th at pages 1120 1121 explains the relevant law: “In Allen v. United States (1896) 164 U.S. 492, 501 502 [Allen]..., the Supreme Court of the United States approved a charge (the Allen charge) which encouraged the minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided. In People v. Gainer (1977) 19 Cal.3d 835, [843] [Gainer]..., however, our state high court disapproved of Allen in two respects. The Gainer court found ‘the discriminatory admonition directed to minority jurors to rethink their position in light of the majority’s views’ was improper, inasmuch as, by counseling minority jurors to consider the majority view, whatever it might be, the instruction encouraged jurors to abandon a focus on the evidence as the basis of their verdict. [Citation.] The second issue with which the Gainer court took issue was the direction the jury ‘“should consider that the case must at some time be decided,”’ noting such a statement was inaccurate because of the possibility the case might not be retried. [Citation.] In other words, it is improper to instruct the jury in language that suggests that if the jury fails to reach a verdict the case necessarily will be retried. [Citation.]” Gainer, supra, 19 Cal.3d at pages 842 843, reasoned that “[b]ecause it instructs the jury to consider extraneous and improper factors, inaccurately states the law, carries a potentially coercive impact, and burdens rather than facilitates the administration of justice, we conclude that further use of the [Allen]charge should be prohibited in California.”
In Gainer, the trial court stated: “‘You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose the case will ever be submitted to [12] men or women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this view, it is your duty to decide the case, if you can conscientiously do so.’” (Gainer,supra, 19 Cal.3d at p. 841.)
Subsequent cases had further explained, “The trial court’s authority to give supplemental jury instructions to a deadlocked jury in a criminal case derives from... section 1140[].... [¶] The trial court is therefore required to determine in its ‘sound discretion’ whether there is a reasonable probability of agreement by the jury. [Citation.] However, ‘[t]he court must exercise its power... without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citations.] [¶] Directing further deliberations is proper where the trial court reasonably concludes that ‘such direction would be perceived “‘as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ [Citation.]” [Citation.]’ [Citation.] The supplemental instructions that may be given for the purpose of directing further deliberations are governed by the ‘judicially declared rule of criminal procedure’ established by the California Supreme Court in its landmark decision Gainer, supra, 19 Cal.3d at page 852....” (People v. Whaley (2007) 152 Cal.App.4th 968, 979 980.)
Section 1140 provides, “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.”
As mentioned above, the trial court’s instruction closely tracked the instruction given, and approved, in Moore, supra, 96 Cal.App.4th at pages 1118 1119. In rejecting defendant’s contention the instruction to a deadlocked jury was coercive, the court explained the instruction was not an improper Allen charge. (Id. at p. 1121.) The court, in commending the trial judge for drafting “such an excellent instruction” (id. at p. 1122), explained the trial judge instructed the jury its goal was “‘to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.’” (Id. at p. 1121.) The court also stated the trial judge “instructed that it was their duty as jurors to deliberate with the goal of arriving at a verdict on the charge ‘if you can do so without violence to your individual judgment.’ [Citation.]” (Ibid.) The court noted the trial judge never directed the jury it was required to reach a verdict or constrained “any individual juror’s responsibility to weigh and consider all the evidence presented at trial.” (Ibid.) In concluding the trial judge’s instruction was not coercive, the court opined the trial judge “simply reminded the jurors of their duty to attempt to reach an accommodation.” (Ibid.) The court concluded, “The fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion.” (Id. at p. 1122.)
In Whaley,supra, 152 Cal.App.4th at pages 974 977, 981, the appellate court approved the trial court’s instructing the deadlocked jury with the instruction used in Moore, supra, 96 Cal.App.4th 1105. In rejecting defendant’s claim the suggestion jurors “reverse roles” placed undue pressure on the holdout juror, the court explained the trial judge’s suggestion applied to all jurors, not just the holdout juror. (Whaley,supra, 152 Cal.App.4th at p. 983.) The court added the instruction was not unduly coercive because it “emphasized the jurors’ duty to use their independent judgment” by deciding the case for themselves. The court also noted the trial judge suggested, not ordered, the jurors to consider role reversal as a method of deliberation. (Ibid.)
Lozada attempts to distinguish Moore and Whaley. He notes in Moore, the trial judge had no information about the numerical division or direction in which the jury was headed. (Moore, supra, 96 Cal.App.4th at p. 1118.) In Whaley the trial court knew the numerical division (11 to 1), but not the direction. (Whaley, supra, 152 Cal.App.4th at p. 984.) Here Lozada points out, the trial court knew the numerical split and the direction—10 to 2 or 11 to 1 in favor of conviction—knowledge that might have increased the coercive effect of the instruction. Lozada’s argument echoes concerns raised in a concurring opinion in Whaley, supra, 152 Cal.App.4th at p. 985, albeit ones the concurring justice did not believe warranted reversal of the judgment. (Whaley, supra, 152 Cal.App.4th at p. 984 [conc. opn. of McAdams, J.].)
“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.]” (People v. Sheldon (1989) 48 Cal.3d 935, 959 960 (Sheldon).) But whether coercion took place is always a question of the circumstances. (People v. Proctor (1992) 4 Cal.4th 499, 539.)
Here, the supplemental instruction given “could not have been interpreted by the holdout juror as an [expression of the trial court’s] agreement with the position taken by the 11 jurors voting for conviction.” (Sheldon, supra, 48 Cal.3d. at p. 960.) The instruction did not focus on the minority juror or suggest he or she should conform to the majority view. It addressed the jurors as a group, advising all to reexamine their views and not to hesitate “to suggest other jurors change their views if you are convinced they are wrong.” The court repeated the charge of CALCRIM No. 3550 that “each of you must decide the case for yourself,” and jurors’ duty was to deliberate towards the goal of a verdict “if you can do so, without violence to your individual judgment. [¶] Both the People and the defendant are entitled to the individual judgment of each juror.” The trial court repeatedly reminded no juror should feel coerced or pressured to change their position as a result of the instruction and if the jury “honestly can’t reach a verdict” after further deliberating that was “perfectly okay.” We presume it understood and followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
Lozada’s contention the trial court abused its discretion in giving the supplemental instruction without first specifically asking the jury, or jury foreperson, if there was a reasonable probability of reaching a verdict, is without merit. Section 1140 prohibits the trial court from discharging a jury before it has reached a verdict unless “it satisfactorily appears that there is no reasonable probability that the jury can agree.” Whether there is a reasonable probability of agreement, is left to the “‘sound discretion’” of the trial court. (Whaley, supra, 152 Cal.App.4th at pp. 979 980.) While the court must “avoid coercing the jury to reach a verdict,” there is no duty to specifically ask the jury if further deliberations would help. (See People v. Bell (2007) 40 Cal.4th 582, 616 617 [“inquiry as to the possibility of agreement is ‘not a prerequisite to denial of a motion for mistrial’”].)
B. Presentence Custody Credits
Lozada contends the trial court erred in not awarding him custody credits for the 2,279 days he was in custody prior to sentencing. The Attorney General concedes the error and we agree.
A defendant convicted of murder is entitled to credits for time spent in actual custody prior to sentencing but is not entitled to any conduct credits. (People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) “[I]t is the duty of the sentencing court to calculate actual days spent in custody pursuant to section 2900.5, subdivision (d).” (People v. Thornburg (1998) 65 Cal.App.4th 1173, 1175 1176, disapproved on other grounds in People v. Buckhalter (2001) 26 Cal.4th 20, 39 40; see also § 2933.2.) The trial court’s failure to award the proper amount of custody credits is an unauthorized sentence which may be corrected at any time. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Lozada was arrested on August 19, 2003, and sentenced on November 13, 2009, a total of 2,279 days presentence custody. Accordingly, we will order the abstract of judgment be modified to reflect an award of 2,279 days of actual presentence custody credits.
DISPOSITION
The judgment is modified to award Lozada 2,279 days of presentence custody credits. We direct the clerk of the Superior Court to prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P.J., BEDSWORTH, J.