Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF1010 Richard W. Stanford, Jr., Judge.
Linda Acaldo, 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, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Jacquelyne Studesville asserts the trial court erred by coercing the jury into reaching a guilty verdict and that she was not given a fair trial. We find defendant’s contentions without merit and affirm.
I
FACTS
A jury found defendant guilty of attempted arson pursuant to Penal Code section 455. The court suspended imposition of sentence and placed defendant on two years’ formal probation, including terms and conditions of 45 days of community service and registration pursuant to section 457.1.
All further statutory references are to the Penal Code.
Frank Ponce worked as a security guard at the Motel 6 on Katella Avenue in the City of Stanton, County of Orange. On May 30, 2008, Ponce saw defendant’s daughter, Krystal, a resident of Room 155, throw a burning blanket into the parking lot. Krystal broke the room window, apparently trying to get the attention of her father, Marold. She lacerated her arm and hand. Ponce dialed 911.
For clarity, we refer to the Studesvilles by their first names. No disrespect is intended. (People v. Warwick (2010) 182 Cal.App.4th 788, 790, fn. 2.)
Deputy Sheriff Ryan Gilbert of the Orange County Sheriff’s Department was the first to arrive on the scene. He extinguished the fire with a fire extinguisher. Marold, defendant’s husband, told Gilbert that Krystal and defendant argued and defendant dropped Krystal’s “blanket next to Krystal’s items next to the doorway, poured isopropyl alcohol on the blanket, lit it on fire with a lighter, and closed the door” to their motel room.
The information charged defendant with one count of arson pursuant to section 451. The court instructed the jury about the crime of arson and the lesser included offense of attempted arson pursuant to section 455.
During deliberations, the jury sent a note to the court stating “[w]e are unable to reach an agreement on verdict and it doesn’t look like we have any give on either side. What do we do?” The judge questioned the foreperson about whether the jury considered both offenses found separately and if they had taken votes on both. The foreperson stated the jury voted nine to three on the arson offense and nine to three on the lesser offense of attempted arson, not specifying if the majority voted guilty or not guilty. The judge then asked each juror separately if there was anything the court could do to help the jury reach an agreement. Two jurors informed the judge that it might be more helpful if they could view the charged crime and lesser included crime separately.
The following morning the prosecutor moved to amend the information to add attempted arson as count two. The defense objected, stating that it would infringe on defendant’s due process rights of adequate notice and a fair trial. The judge permitted the amendment and instructed the jury on the additional offense: “[i]t would be the same charge, all the same instructions apply, but it would actually be a separate count that you could consider without having to reach a verdict on count one” and “the charge of attempt arson is a separate charge. The charge of arson is a separate charge. Arson is count one and attempted arson is count two. You can consider them each independently. You are not required to vote guilty or not guilty on either, dependent on the other.” After eight minutes of further deliberation, the jury returned with a verdict of guilty on count two, attempted arson.
II
DISCUSSION
Defendant contends the trial court erred when the court inquired into the jury’s deliberations and when it “inadvertently indicated to the jury what the verdict should be.” The Attorney General states defendant “forfeited her claim that the trial court coerced the jury’s verdict by failing to object to the court’s comments [to the jury].”
“‘A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights. [Citations.]’ [Citation.]” (People v. Bradford (2007) 154 Cal.App.4th 1390, 1411.) The fact that defendant failed to object to the trial court’s comments to the jury does not prohibit her from challenging the trial court’s judgment on appeal.
Alleged Trial Court Coercion
The United States Supreme Court has long grappled with how much discretion a trial judge has in giving jury instructions. In Allen v. United States (1896) 164 U.S. 492, the instructions given to the jury were that they should listen to the other jurors, but if a larger number were for conviction, “a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon, the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” (Id. at p. 501.) The Supreme Court stated that there was no error in the instructions: “It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself.” (Id. at pp. 501-502.)
Since Allen v. United States, federal law permits judges to give an “Allen charge, ” urging minority jurors to give weight to the majority’s view. (Early v. Packer (2002) 537 U.S. 3, 6.) However California still follows the standard from People v. Gainer (1977) 19 Cal.3d 835, which held “it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” (Id. at p. 852; see People v. Butler (2009) 46 Cal.4th 847, 883; People v. Whaley (2007)152 Cal.App.4th 968, 980-984; People v. Hinton (2004) 121 Cal.App.4th 655, 657; People v. Moore (2002) 96 Cal.App.4th 1105, 1120-1121.)
Here the court’s instructions did not encourage jurors to consider the numerical division of the jury in reexamining their views with the additional offense or imply if the jury fails to agree the case will be retried. (People v. Gainer, supra, 19 Cal.3d at p. 852.) The instructions did not amount to an Allen charge, the court did not emphasize that the minority jurors should listen to the majority jurors. (Allen v. United States, supra, 164 U.S. at p. 501.) The trial judge asked the jury to deliberate further with the addition of attempted arson as a separate offense and stated that the jury did not have to reach a verdict if it was not possible.
The defendant has a right to a fair trial. (U.S. Const., 6th Amend.) Regarding her contentions the court intruded into the jury’s deliberations, defendant cites People v. Bradford, supra, 154 Cal.App.4th 1390 where the trial judge entered the jury room without a court reporter to answer the jury’s questions without the objection of defendant’s counsel. While in the jury room, the judge instructed the jury on the difference between express and implied malice and the elements needed for first degree murder. (Id. at pp. 1401-1408.) The appellate court noted the defendant waived his right to be present when the court and counsel considered jury questions, but did not waive his “right to have the jury deliberate without intrusion.” (Id. at pp. 1400, 1410, fn. 3.) The court concluded the judge’s actions “was an unconstitutional intrusion into the jury’s deliberative process.” (Id. at 1417.)
The Bradford court stated that if the error is serious, the appellate court may review the issue notwithstanding counsel’s failure to object. (People v. Bradford, supra, 154 Cal.App.4th at p. 1411.) However, “we disagree... that every intrusion into the jury’s deliberative process requires automatic reversal.” (Id. at p. 1417.) The “question is whether the intrusion amounts to ‘such a substantial abridgment of the right to a jury trial’ that it constitutes ‘a miscarriage of justice without regard to the evidence.’” (Ibid., quoting People v. Oliver (1987) 196 Cal.App.3d 423, 432.)
Defendant also relies on People v. Crowley (1950) 101 Cal.App.2d 71(Crowley) to support her argument some jurors felt compelled to reach a verdict after the judge addressed the jury’s concern about not being able to come an agreement. However, in Crowley, when the jury sent notice that it was having trouble reaching a verdict, the trial judge discussed the evidence presented, stating the evidence was “plain and clear, ” and that “[a]s long as there is no conflict or misunderstanding as to what the evidence is, it appears to the Court that it should be analyzed to the extent of being able to reach a decision in the case.” (Id. at p. 74.) The judge also stressed that the inability to reach a verdict puts more burden on the court system, the prosecution, and the defendant because of the burden of trying the case a second time. (Ibid.)
But some inquiry is perfectly proper. The trial court 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.] The court may, and indeed it should, question individual jurors as to the probability of agreement. [Citations.] Then, if the court determines that a reasonable probability of agreement does exist, it may, generally speaking, undertake certain measures calculated to encourage agreement.” (People v. Carter (1968) 68 Cal.2d 810, 815, fn. omitted.) “[A]ny intervention must be conducted with care so as to minimize pressure on legitimate minority jurors.” (People v. Keenan (1988) 46 Cal.3d 478, 533.)
“The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] 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.]” (People v. Breaux (1991) 1 Cal.4th 281, 319 quoting People v. Carter, supra, 68 Cal.2d at 817.)
In the case at hand, the trial judge never discussed the evidence with the jurors as the judge did in Crowley. (People v. Crowley, supra, 101 Cal.App.2d 71.) The court polled the jurors and asked if there was anything the court could do to help. The court was clear that the jury had the option not to reach a verdict, even with the addition of count two when the court stated that “a verdict is not necessarily better than a hung jury. What we want is your true, honest opinion about it. [¶]... [¶] If you’re able to reach a verdict, reach a verdict. And if you’re unable to, just say so.” Under the circumstances, we conclude the judge did not coerce the jury into reaching a verdict.
Juror No. 11
Defendant further argues an incident involving Juror No. 11 demonstrates the jury was coerced in reaching its verdict. She argues defendant was not tried by an impartial jury because Juror No. 11 “must have merely acquiesced in the verdict so that the jury could leave and because the court improper[ly] pressured the panel to reach a verdict.” The Attorney General states nothing in the record indicates that Juror No. 11 was a minority juror and changed her vote because of coercion from the majority.
The record indicates Juror No. 11 was worried the deliberations would last longer than the morning. When the court polled the jurors about the possibility of coming to an agreement, Juror No. 11 indicated there was nothing the court could do. When the court stated that it would propose something the following morning to help the jury reach an agreement, Juror No. 11 asked “[d]o we have to be here tomorrow?
[¶]... [¶] What about if I can’t come?” The court asked why Juror No. 11 could not come and she explained “I’ve got to go out after 12:00.” The court asked if Juror No. 11 could be present in the morning and she responded “[t]hat’s what I mean, we have to make sure it’s until 12:00, and I have to go.” The court stated, “[W]e will be able to give you something first thing in the morning and that is either immediately going to help or not going to help, ” explaining that the jury would not be excused and had to return the following morning for possible further deliberations. The court also stated an alternate juror would be sworn if deliberations continued into the afternoon.
Defense asserts that Juror No. 11 was not impartial because she had to leave at noon on the last day of deliberations and therefore acquiesced to the majority jurors in rendering a guilty verdict on attempted arson. However, nothing in the record indicates the jury rushed through its deliberations, and the court had assured the jury an alternate would be seated if the jury was still deliberating at noon.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.