Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA096162. John A. Torribio, Judge.
I. Mark Bledstein, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted Hugo Uriel Mora of possession of methamphetamine. On appeal, Mora argues the trial court’s instruction to the jury to continue deliberating violated Penal Code section 1138 and his constitutional right to counsel.
We conclude the trial court erred by responding to the jury’s inquiry regarding what it should do if it could not “get” a unanimous verdict without contacting counsel. However, that error was harmless, not prejudicial. We therefore affirm.
BACKGROUND AND PROCEDURAL HISTORY
Huntington Park Police Department Officer Miguel Navia stopped a car driven by appellant Mora for a traffic violation. Navia patted Mora down for weapons and found none. Navia did not cite Mora, but told him to fix the problem with his car. Mora stood up from the curb and started to walk toward his car. As he did, he reached into his pants pocket and pulled out some papers. Mora asked Navia if he had given his identification back to him. As Mora walked away, Navia saw a small, clear plastic bag containing a white crystal-like substance fall from Mora’s hand. Navia then arrested Mora for possession of methamphetamine. Navia was about one and a half arm’s lengths from Mora when he saw the baggie fall. He had no doubt about what he had seen.
Apparently Mora’s license plate was partly obscured. The officer also recognized him as a parolee. No evidence was presented to the jury on this point.
Huntington Park Police Department Senior Officer William Wallace arrived as back up several minutes after Navia stopped Mora. Wallace also saw Mora fumbling with some papers. He then saw Mora drop a bindle to his left side. Wallace was standing five to seven feet away from Mora. He and Navia “looked at each other in amazement.” Wallace had no doubt about what he had seen.
The parties stipulated that the bag contained about 0.15 grams of a substance containing methamphetamine. Navia testified this was a usable amount: enough for “one good dose or two fairly decent doses.”
The jury convicted Mora of possession of methamphetamine. Mora admitted allegations that he had a prior conviction for robbery and had served a prison term. The court sentenced Mora to a second strike term of four years in prison. It stayed and later dismissed the prior prison term enhancement.
DISCUSSION
Counsel gave closing arguments and the court instructed the jury in Mora’s trial on the morning of November 6, 2006. The jury began deliberating at 10:05 a.m. From 10:12 a.m. until 10:28 a.m., the jury took a break. At 11:12 a.m. the jury sent the court a written request for a rereading of the testimony of Officers Navia and Wallace. The court notified counsel and they waived their presence. At noon, the jury went to lunch. At 1:40 p.m. the jury resumed its deliberations; these were interrupted by the court reporter rereading the requested testimony from 2:02 p.m. until 2:15 p.m. At 2:30 p.m., the jury sent out the following written question: “If we can’t get a unaimous [sic] unanimous verdict what do we do?” Without contacting counsel, the court “through the bailiff” told the jurors to continue deliberating, as they had been deliberating only for a short time. At 3:05 p.m., the jury signaled that it had reached a verdict.
After the verdict was read, the jury was polled, then asked to step back into the jury room. The court then told counsel and Mora of the jury’s inquiry and the court’s response: “Randy approached me, the bailiff, and indicated that – was that about 2:45? I guess about 2:45. [¶] The jury had indicated they were hung, and I just said, due to the shortness of the deliberations, please keep deliberating. They returned a verdict, what, a half an hour later. I just wanted to put that on the record. Neither one of you were notified of that.” Defense counsel did not object. He did not ask the court to inquire if any juror had felt pressured to reach a verdict. Nor did he move for a mistrial or file a motion for a new trial.
Mora contends the trial court’s ex parte communication with the jury violated his federal and state constitutional rights to counsel and Penal Code section 1138. Penal Code section 1138 and numerous cases prohibit ex parte communications between a trial judge and a deliberating jury. “Although the primary concern of section 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial conducted ‘ “substantially [in] accord[ance with] law.” ’ ” (People v. Frye (1998) 18 Cal.4th 894, 1007.) “ ‘It has long been the rule that the trial court should not entertain communications from the jury except in open court, with prior notification to counsel.’ ” (People v. Jennings (1991) 53 Cal.3d 334, 384.) “ ‘This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. [Citations.]’ ” (People v. Wright (1990) 52 Cal.3d 367, 402.) Where defense counsel, if notified, could have sought to “amplify, clarify, or modify the supplemental instruction or procedure,” a trial court’s failure to notify counsel or afford an opportunity to respond constitutes both constitutional and statutory error. (People v. Hawthorne (1992) 4 Cal.4th 43, 68-69.)
Penal Code section 1138, enacted in 1872, provides, “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
“A conviction will not be reversed for a violation of section 1138 unless prejudice is shown.” (People v. Frye, supra, 18 Cal.4th at p. 1007.) The California Supreme Court has not spoken on what standard of review should apply in assessing the effect of an improper communication between the trial judge and a deliberating jury. Some courts have applied the standard of review for federal constitutional error involving denial of counsel at a critical stage (Chapman v. California (1967) 386 U.S. 18); others have used the lower standard for nonconstitutional error. (People v. Jenkins (2000) 22 Cal.4th 900, 1027.) Compare People v. Jennings, supra, 53 Cal.3d at pp. 384-385 [finding error based on violation of section 1138 harmless beyond a reasonable doubt] with People v. Ainsworth (1988) 45 Cal.3d 984, 1020 [applying state standard of review to find similar error harmless]. Under either standard, the error here was harmless.
The jury had been deliberating for just under two hours when it sent its note asking “what do we do” if “we can’t get a [unanimous] verdict.” The jury did not say that it was deadlocked. The trial court told the bailiff to tell the jurors to continue to deliberate. The jurors indicated no further difficulty, and they later returned a verdict. When polled, each juror confirmed his or her agreement with the verdict.
Mora argues that, had his attorney been told of the jury’s question, he could have moved for a mistrial or asked the court to reread to the jury CALJIC No. 17.40. That instruction tells the jury, “Each of you must consider the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.” Mora also argues that his attorney could have asked the court to instruct the jurors “not to surrender their honest conviction for the mere purpose of returning a verdict” and “that there is nothing improper, questionable, or contrary to good conscience if a juror causes a mistrial.”
The notion that the trial court would have declared a mistrial after only two hours of deliberation -- when the jury had not even said it was deadlocked -- is entirely speculative. Regarding further instructions, the court had read CALJIC No. 17.40 to the jurors less than six hours earlier. That jury instruction fully covers the subject of a juror’s duty to deliberate while also deciding the case for himself or herself. Mora cites no California authority for the proposition that he would have been entitled to a further instruction that jurors should not “surrender their honest conviction[s] for the mere purpose of returning a verdict.” He relies on a 38-year-old Illinois federal case, United States v. Brown (7th Cir. 1969) 411 F.2d 930. But CALJIC No. 17.40 (and its counterpart, CALCRIM No. 3550) thoroughly and correctly set forth the governing law in California about a juror’s duty to try to reach a verdict while also deciding the case individually.
This case bears some similarity to People v. Hawthorne, supra, 4 Cal.3d 43. There, nearly two weeks into deliberations, the jury sent out a note asking what to do, as “ ‘one member of the jury is not sure whether the defendant is guilty or not guilty.’ ” (Id. at p. 61.) The bailiff called the judge at home. What happened next was not on the record, but apparently the judge told the bailiff to tell the jurors to continue deliberating until they received an answer from the court. The judge also told the bailiff to have the clerk contact counsel. A short time later, the jury told the bailiff that they wished to continue to deliberate and did not need an answer to their question. On appeal, Hawthorne argued “that the manner and nature of the trial court’s response to the jury’s inquiry violated his right to counsel, his right to be present at all trial proceedings, his right to a reliable verdict, his due process right to a fair trial, and related statutory provisions.” The Supreme Court “strongly reiterate[d] the proscription against ‘private communications between court and jury,’ ” but found no prejudice. In telling the jurors to continue to deliberate, “the court did not direct the jury on any question ‘regarding the law or the evidence.’ ” (Id. at pp. 67-69.)
Here, the trial court did not tell the clerk to contact counsel, nor did the jury send further word that it was withdrawing its question. Nevertheless, the jury never said it was deadlocked nor did it reiterate a need for an answer. It appears the jury was complying with CALJIC No. 17.43, which instructed them to “[c]ontinue deliberating” while they waited for a response.
Other cases have found more extensive ex parte contacts to be harmless or not prejudicial. See, e.g., People v. Jenkins, supra, 22 Cal.4th at pp. 1026-1028 [trial court, without notifying counsel, authorized rereading of direct examination only, not cross-examination]; People v. Jennings, supra, 53 Cal.3d at pp. 382-385 [without notifying counsel, trial judge told jury to “continue [deliberating] at [their] own pace”; when asked whether an 11-1 split would result in a mistrial, judge said that would be a “deadlock”; judge instructed jurors to treat each count separately, adding “you are to try to reach a verdict on a count if it’s possible”]; People v. Neufer (1994) 30 Cal.App.4th 244, 249-253 [jurors asked whether discrepancies in evidence were enough for reasonable doubt; trial judge without contacting counsel referred jurors to instructions and told them issue was for them to decide; error was not prejudicial because judge’s response to jury question was “balanced, neutral, and correct”]; People v. Chagolla (1983) 144 Cal.App.3d 422, 430-433 [in response to jury note asking for “instructions” and “books,” trial judge “went up and asked them if that’s what they wanted”; court gave jurors copies of written instructions as well as an additional instruction not discussed with counsel; jurors asked about gun use enhancement; trial judge told them they could find gun use or not, and punishment was not up to them].
Mora relies heavily on United States v. Dellinger (7th Cir. 1972) 472 F.2d 340, 377-379 (Dellinger). Dellinger involved the lengthy trial of the Chicago Seven. Several months after the case ended, the defendants read in a magazine “that there had been communications between the district judge and jury during its deliberations without knowledge of counsel.” (Id. at p. 377.) The trial court had made no record of these goings-on. As reconstructed, it appeared that the jurors had sent the judge at least two notes saying they were deadlocked as well as a note asking for some transcripts. The court told the marshal to tell the jurors to continue deliberating. Several jurors also testified that the marshal had told them, “ ‘The judge can keep you here as long as he wants.’ ” The federal appellate court noted that, “Messages, conveyed through a marshal, that the jury should continue deliberations, have been held harmless error.” (Id. at p. 378, fn omitted.) However, on the particular facts of that case, the court found the error not harmless. The court noted that the trial judge could have given further instructions and that the transcripts may have been important. Here, the trial court already had instructed the jurors on the proper balance between their obligation to deliberate and their duty to their individual consciences. The jury had not asked for additional documents or evidence, nor did the bailiff threaten the jurors in any way. While the trial court should have told counsel of his exchange with the jury before the verdict was reached, he did so before he released the jurors. Defense counsel raised no objection and did not request any inquiry or other relief.
Considering the totality of the circumstances, we conclude Mora did not suffer an impairment of rights sufficient to affect the verdict. (People v. Hawthorne, supra, 4 Cal.4th at p. 69.) The evidence against him was straightforward and strong. We reiterate, however, that trial judges are not to communicate with juries without notifying counsel. Penal Code section 1138 has been the law in California for 135 years. Finally, because we find the trial court’s error was not prejudicial, we need not reach respondent’s contention that defense counsel’s failure to object when the court belatedly informed counsel of the ex parte communication constituted a waiver of Mora’s argument on appeal. (People v. Frye, supra, 18 Cal.4th at p. 1007.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.