Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 150660
Marchiano, P.J.
A jury convicted defendant Vasega F. Tili of first degree murder with personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).) The trial court sentenced defendant to 50 years to life. Defendant contends the trial court had an impermissible ex parte communication with a juror during deliberations. We agree and order a limited remand, as we explain below.
I. FACTS
We need not discuss in detail the facts of the substantive offense because the appeal involves one jury issue. After the 2004 “Big Game” between Stanford and Berkeley, there was an alcohol-fueled altercation which ended in Robert Stanford being shot dead. Shortly before the shooting, the victim had been fighting with Alex Tili, defendant’s brother, and had knocked Alex to the ground, causing him to lose consciousness. The victim was shot several times in the head and neck with a .40 handgun. Although several people were present, defendant was implicated in the shooting.
Defendant presented a vigorous defense, suggesting it was another of his brothers, Junior, who had done the shooting. Junior was dead at the time of the trial. Defendant also called a Vallejo police officer, a longtime family friend, as a character witness.
The trial lasted 10 days. On the 11th day, June 22, 2006, the jury began to deliberate. The jury deliberated all day on June 26 and June 27. Sometime during the day of June 27, probably the afternoon, the jury submitted a written note to the court asking for the legal definitions of “premeditated” and “rash” “for determining 1st or 2nd degree.” At 3:55 p.m. on June 27, the court convened with the parties and the jury present, and further instructed the jury on the definitions of first and second degree murder. The jury deliberated until 4:15 p.m. and the court recessed until the next day.
The jury began deliberations at 9:30 a.m. on June 28. At 9:55 a.m., the court received a communication from the bailiff and proceeded to confer with Juror No. 4 in chambers, without counsel present, but on the record. The only people in chambers were the court, Juror No. 4, and the court reporter.
Juror No. 4 told the court that as she was entering the courthouse that morning, defendant’s “whole family” was standing near the entrance, and Alex Tili said, “There’s that bitch that’s sitting on the jury.” Juror No. 4 was the only person entering the courthouse at the time, and assumed the comment “must be directed at me.” She “just walked in as fast as I could.”
The court asked Juror No. 4 if she had told any other members of the jury about the comment. She replied, “Well, they saw I was upset when I walked in, so I did say that the family was out there and I did tell them what happened. And they just said well, it’s understandable because they know most likely what the verdict is after yesterday, so they are going to be upset.” (Presumably, defendant and his family expected a guilty verdict because of the jury’s note of the previous day asking for further definition of the degrees of murder.)
The court reminded the juror that she was “still in the process of deliberation” and asked her if she “could remain fair and impartial.” Juror No. 4 replied: “Oh, yeah, definitely. And I told them I have no problem continuing. I ask that I please be escorted to my car when it’s over, and that’s it, and that’s if we decide today.” The court agreed, and thanked the juror for bringing the comment to its attention. The juror then said that the comment “just shook me up a little, but I’ll be fine.” The court asked Juror No. 4 “not to mention it any more of the jurors so that they would understand,” and asked her to return to the jury room and continue her deliberations.
The proceedings in chambers then concluded.
The jury resumed deliberations at 10:00 a.m. At 1:15 p.m., the jury foreperson informed the bailiff that the jury had reached a verdict. While counsel gathered in the courtroom in preparation of hearing the verdict, the court informed them for the first time of its ex parte conversation with Juror No. 4.
At 1:55 p.m., the jury delivered its verdict in open court. The jury convicted defendant of first degree murder and found that he personally and intentionally discharged a firearm.
At some point, the court provided counsel with a reporter’s transcript of the ex parte proceeding with Juror No. 4.
Alex Tili was charged with intimidating a juror. (Pen. Code, § 95, subd. (c).) The bailiff investigated the charge by interviewing Alex Tili and Juror No. 4, who both gave written statements. The bailiff prepared a police report including those statements.
In his report, the bailiff stated that Juror No. 4 told him the comment made her “very nervous and afraid” and that upon entering the jury room she “became teary eyed and upset.” In her written statement, written at 2:15 p.m.—after the verdict—Juror No. 4 added that “I have been feeling nervous and afraid all day long.” In his written statement, Alex Tili denied saying anything to any juror.
The trial court made a redacted copy of the police report part of the record, and we have augmented the record on appeal to include the police report.
On August 18, 2006, and after receiving the transcript and the police report, defendant made a motion for a new trial based on the ex parte communication with Juror No. 4, which defense counsel aptly described as a voir dire. Defendant argued that the record did not show that Juror No. 4 could have remained fair and impartial. Defendant also objected that counsel did not have any input into the ex parte voir dire of Juror No. 4 regarding the comment, and no opportunity to voir dire the jurors present when Juror No. 4 told her fellow panel members about the comment—“to protect the integrity of this verdict which had not yet been arrived at.”
The trial court found that Juror No. 4 did not have to be removed from the jury because of the emotional impact of the comment, and also found there was “no evidence that in reaching the verdict that the jurors reached that they were guided by anything other than the evidence.”
The court denied the new trial motion and sentenced defendant to 50 years to life.
II. DISCUSSION
Defendant contends that the trial court’s ex parte communication with Juror No. 4 deprived him of his right to have the assistance of counsel at a critical stage of the proceedings. We agree.
Jury deliberations are a critical stage of the proceedings and a defendant has the constitutional right to the presence of counsel during a trial court’s communication with a juror. (People v. Wright (1990) 52 Cal.3d 367, 402-403 (Wright); see People v. Horton (1995) 11 Cal.4th 1068, 1136-1137 (Horton).) “It is well settled that the trial court should not entertain, let alone initiate, communications with individual jurors except in open court, with prior notification to counsel. [Citation.]” (Wright, supra, at p. 402.) The Attorney General essentially concedes as much.
The error here is governed by the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (Wright, supra, 52 Cal.3d at p. 403; see Horton, supra, 11 Cal.4th at p. 1137.) The Attorney General agrees, but contends that the error is harmless. We cannot agree.
Defendant was deprived of the presence and the assistance of counsel when the trial court met with Juror No. 4 and questioned her about a threatening comment made to her by defendant’s brother on the cusp of the murder verdict. The juror was visibly upset and shared her emotions with at least some of her fellow jurors. Defense counsel never had a chance to participate in either the questioning of Juror No. 4, or the determination of whether she was so intimidated by the comment that she could not be impartial. Neither did counsel have the chance to speak to the jurors who saw that Juror No. 4 was upset by the comment, soon before the jury reached its verdict. It is impossible for us to conclude that the trial judge’s erroneous ex parte communication with the juror is harmless beyond a reasonable doubt.
The Attorney General concedes that if we find the error prejudicial, we can invoke the procedure of a limited remand. We agree.
Penal Code section 1260 permits a reviewing court to “if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” “A limited remand is appropriate under section 1260 to allow the trial court to resolve one or more factual issues affecting the validity of the judgment but distinct from the issues submitted to the jury, or for the exercise of any discretion that is vested by law in the trial court. [Citations.]” (People v. Braxton (2004) 34 Cal.4th 798, 818-819.) “Generally, however, if there is any reasonable possibility that the parties can fairly litigate and the trial court can fairly resolve the unresolved issue on remand, reviewing courts have ordered the remand with directions that the defendant must receive a new trial if, for one reason or another, a fair hearing is no longer possible.” (Id. at p. 819.)
We therefore order a limited remand so the court can conduct a hearing, in the presence of the parties and their counsel, into the issues surrounding the comment made to Juror No. 4, her ability to remain impartial, and whether the witnessing of her emotional state by other jurors might have had any adverse impact on deliberations to the prejudice of defendant.
We do not attempt to precisely frame the issues, and we are mindful of the application of Evidence Code section 1150. (See People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) The hearing should also encompass defendant’s separate claim of jury tampering, which will have similar issues. We express no opinion on the jury tampering claim.
III. DISPOSITION
The matter is therefore remanded with directions to conduct a hearing as described immediately above. If, at the conclusion of that hearing, the trial court rules for the People, the court shall re-arraign defendant for judgment and pronounce sentence on the verdict. If the trial court rules for defendant, the court shall order a new trial.
This procedure was used in People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 407.
We concur: Swager, J. Margulies, J.