Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203476
McGuiness, P.J.
Bryan Clayton Walker (appellant) appeals from a judgment entered after a jury found him guilty of second degree robbery (Pen. Code, § 211 ). He contends his conviction must be reversed because the trial court (1) erred in denying his Wheeler/Batson motion; and (2) violated his constitutional rights to due process and a fair trial by coercing the jury to continue deliberating after the jury informed the court it was deadlocked. We reject the contentions and affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Factual and Procedural Background
On November 28, 2007, an information was filed charging appellant with one count of second degree robbery (§ 211). The information alleged the offense was a serious felony within the meaning of section 1192.7, subdivision (c), and a violent felony within the meaning of section 667.5, subdivision (c).
At a jury trial at which testimony began on January 29, 2008, Annabella Phillips testified that on October 13, 2007, a little after 1:00 p.m., she and her husband had crossed the street on Van Ness and Post Streets in San Francisco and were standing on the street corner, waiting for the stoplight to change. She was carrying a large black purse on her right shoulder, “clutching it up at the top of [her] shoulder,” gripping it in a fist-like manner. Inside her purse were her wallet with all of her identification and about $80 in cash, two glass cases, a cell phone, lipstick, brush, papers and pens. The purse was worth about $150.
She testified that “all of a sudden,” a man came close to her and “bump[ed]” her on the side. The man was “white[,]... had a scraggly, salt-and-pepper beard... [and] was wearing a baseball cap.” She thought, “oh my God. I am being attacked by a street person.” The man’s face was about eight inches away from her when she noticed “a hand come out.” She felt “excruciating pain” in her arm and shoulder as the man pulled her purse and she instinctively held on. Her body was pulled and “was swung around partway.” The purse was “ripped from [her] fingers,” and she felt “a lot of pain” in her fingers and noticed “a little stream of blood” coming down her middle finger. She was “shaken” that she “had just been attacked.” She testified the man was approximately 5 feet 10 inches tall, and she is 4 feet 11 inches tall. In court, she identified appellant as the man who took her purse. She thought appellant looked different in court because “[h]e doesn’t have a scraggly, unkempt beard that he had that day,” “[h]is hair is pulled back,” and “[h]e is shaven today.”
She further testified that after appellant took her purse, she yelled to some well dressed young men who were standing on the opposite corner of the street, pointed at appellant, and yelled, “That man just stole my purse.” One of the men yelled back, “That man just took that woman’s purse.” Appellant, who was in the middle of the crosswalk, “flung” the purse towards the young men. Phillips went over to the young men and recovered her purse. She asked people to stop appellant and warned some women who were coming up the block because she thought appellant, who did not get her purse, was going to attack someone else. She was surprised to see that appellant did not initially run; he placed his hands in his pockets and started to “stroll” down the street. Appellant started “going faster” as the three young men, who were on their cell phones, started following him. She could not see appellant after a while because she could not run. Her husband, who is 77 years old, was “somewhere behind” because he could not walk very fast. Her husband eventually caught up with her and they continued to walk until they got to a point where they could see the three young men beckoning to them. There were three or four police cars and police officers standing around in the area. One of the police officers took her to appellant. She recognized him immediately as the man who had taken her purse and positively identified him, even though appellant was not wearing the baseball cap he was wearing when she had seen him earlier. She testified she saw the baseball cap “on the trunk of” one of the police cars. She also noticed that appellant “looked really disturbed” and “[h]is eyes were huge” in a way that was “a little scary” to her. She also had “probably” described him as looking “kind of deranged.” The next day, she told an officer that her level of certainty as to her identification was 85 percent because she “kept on thinking about the whole incident” and went “over and over and over it in [her] mind all that night” and thought she should have asked the officer to have appellant put the hat on, and “even turn him around so [she] could see exactly what [she] had seen” earlier. At trial, she testified she was 100 percent certain appellant was the man who took her purse because his face and eyes are the same. After the incident, she was shaken, could not sleep, her hand was “throbbing” and her knuckles were swollen. She took medication and iced her hand to get the swelling down and ease some of the pain. The pain in her shoulder and arm got worse after the day of the incident. At the time of trial, her fingers were still “a little bit” swollen, especially her ring finger. She went to see her doctor because she thought she had an infection in her ring finger, which was swollen and red and very sensitive to the touch.
Irwin Phillips testified he and his wife were on the corner of Van Ness and Post Streets in San Francisco at about 1:10 p.m. on October 13, 2007, when a man, whom he identified in court as appellant, came up to his wife and grabbed her purse with great force, spun her around slightly until she let go of the purse, and “took off” with the purse. Appellant was white, “looked like a homeless person” and had a baseball cap, a jacket and “some type of blue jeans” on. As appellant ran off, three young men in their twenties “spread out their arms as to stop” appellant. Appellant threw the purse at the young men and turned and started to walk down the street. His wife retrieved her purse from one of the young men and told them appellant had just stolen her purse. The three young men got on their cell phones and followed appellant, and he and his wife followed the young men. Appellant was initially walking but looked back and started running. His wife shouted to some group of young women to “beware” because appellant had just stolen her purse. He and his wife began “losing ground rapidly” because he is “77 and [his] wife doesn’t run very well,” but the young men were about 10 to 15 yards away from appellant. He and his wife went up the hill as quickly as they could and saw the young men waving at them. He also saw three or four police cars. The police brought appellant out of the police car and he was “[a]bsolutely” certain the man in the police car was the man who had taken the purse. Appellant did not have his baseball cap on, but the cap was on the back of the police car. He noticed that one of his wife’s fingers was “[s]lightly bleeding.” The next day, the bleeding had stopped but her fingers were swollen. The swelling gradually went down in a week or ten days but the pain continued.
Decio Martins testified that on October 13, 2007, a little after 1:00 p.m., he and two of his friends, Rosalvo Xavier and Richard Price, were in San Francisco, “on Van Ness [Street], trying to cross the street” at Post Street. They were waiting for the light to turn green when he saw a man “trying to get a purse off this lady. There was some struggle. She screamed, and then... we realized what was happening, and we just kind of formed a wall. We kind of opened our arms.” The man, whom he identified in court as appellant, ran across the street, tossed the purse on the ground towards Martins and his friends, and started walking down the street. As Martins followed appellant and called 911, appellant began walking quickly and eventually got on a bus. Martins signaled to the bus driver to stop the bus. Martins was 100 percent sure the man he saw take the purse was the man inside the bus. Later, when the police arrived, he saw the woman whose purse was taken and noticed her finger was bleeding.
Rosalvo Xavier testified that at 1:10 p.m. on October 13, 2007, he was at Post and Van Ness Streets in San Francisco with his friends and classmates Decio Martins and Richard Price. As he waited for the light to change, he noticed someone grabbing a woman’s purse. The woman held on to the purse and there was a “tug of war kind of thing,” at the end of which the man pulled the purse away from the woman and ran across the street. When the man, whom Xavier identified in court as appellant, ran towards him and his friends with the purse, they opened their arms and tried to make a wall so appellant could not get by. Appellant threw the purse on the street corner and started walking down the street. Appellant was initially “walking fast,” then started running as he turned the corner. He and Martins followed, saw appellant get on a bus, and followed the bus to the next bus stop. Martins told the bus driver to stop the bus and the police arrived.
Richard Price testified he saw appellant come up behind “an older couple” and grab the woman’s bag off her shoulder. He testified that appellant “came up quickly” behind the woman, grabbed her purse and “pulled it forcefully” off her arm. He thought he heard, “Somebody, help me,” and the woman appeared “shocked.” Appellant began running towards Price and his friends with the purse and they yelled at him to stop. Appellant hesitated as if he was going to “take a right and run down the cross street,” but instead threw the bag on the ground. Later, he saw appellant being taken off a bus by the police.
Joel Hornstein, a police officer with the City and County of San Francisco, testified that on October 13, 2007, just after 1:00 p.m., he and his partner responded to Geary and Van Ness Streets in San Francisco. They pulled over a bus and a witness pointed out a suspect inside the bus and said, “That’s him.” Hornstein testified there was no need to give the witness an admonition because the witness was at the scene and had already identified the suspect to him. He detained the suspect, whom he identified in court as appellant, handcuffed him, and placed him in the police car.
The jury returned a guilty verdict and the court sentenced appellant to the lower term of two years in state prison with credit for 164 days served. The court also imposed various fines, fees and restitution.
Discussion
1. Wheeler/Batson Error
Appellant contends the trial court erred in denying his Wheeler/Batson motion because the prosecutor improperly used a peremptory challenge to excuse two African American prospective jurors. We reject the contention.
a. Background
During voir dire, the court asked all prospective jurors to provide information about themselves, including the neighborhood in which they lived. Juror number 2 (Mr. E.) stated, “All right. I am single. I am – no children. Occupation, merchant seaman.” “And no experience in the jury.” Upon questioning by the prosecutor, Mr. E. said he “work[ed] in the engine room as an engineer helper” for five years. He said he lived in the “Tenderloin” and was gone for six months at a time when he worked on a ship. After an afternoon break in the proceedings, the court stated, “[Mr. E.], sir, you had a question that you were trying to ask one of the attorneys. You can’t talk to them. So was there something you needed to ask?” Mr. E. responded, “No.”
Juror number 4 (Mr. G.) stated, “Western Addition District, retail, no – no kids, single, and this is my first time.” The lunch recess was taken at 12:30 p.m. and the court stated, “I am going to have you come back at 1:45 because if there are some jurors that we need to take care of because of their scheduling, I want to deal with it and then give my staff a break. So please be back here sharply at 1:45. Wait outside. Do not come into the courtroom.” The court said, “My recommendation... [is] you should get in line no later than 15 minutes before you are due in court because... this morning... [the line] looked pretty bad, and so it’s best that you take whatever time into consideration so you can get in here.” When proceedings resumed at 1:52 p.m., the court asked, “We are missing a juror?” and the clerk responded, “Yes, Your Honor. We are missing number 4 [Mr. G.]... If I could go outside... and check.” There was a pause in the proceedings, and the court stated, “[Mr. G.] was ordered to return. He is not back. It is now 1:56, if I am not mistaken, or 1:55.” The bailiff stated it was 1:58. As the court started to say, “Order to show cause why –,” Mr. G., who apparently had walked in, said, “Sorry.” The court told Mr. G., “Take off the do-rag. Thank you,” and went on to explain to the jury the importance of being on time and the consequences – “sanctions of fine and/or incarceration” – of willfully being late. Later, upon questioning from the prosecutor, Mr. G. said he worked in fashion retail. The prosecutor stated, “And I know it was a little bit earlier, it seemed like... you were kind of falling asleep a bit.” Mr. G. responded, “No. My eyes have been burning, my contacts.” The prosecutor asked, “Were you able to pay attention?” and Mr. G. responded, “Yes.”
Defense counsel made a Wheeler/Batson motion outside the presence of the venire after the prosecutor exercised two of her first five peremptory challenges against Mr. E. and Mr. G., who defense counsel identified as African American. Defense counsel explained the basis for his motion, stating, “Because they happen to be African-American, and I just believe at this point this switches the burden to the People if there is a permissible race neutral reason, I didn’t hear much from either one of them.” The court stated, “I am shifting it to you [the prosecutor] right now. [¶]... [¶] Yes, I am making a finding,” and the prosecutor stated, “there are race neutral reasons. [Mr. G.]... was the gentleman that showed up 15 minutes late and made the jury wait. During the beginning of the whole process as well during the first session in the morning, his eyes were closed. He said his eyes were burning. But it... seemed to me... like he was not paying attention.” The court stated, “I will note that I was a little concerned and then [the prosecutor] inquired. [¶] I don’t know if you noticed it, Mr. Lilien [defense counsel], he did have his eyes closed, and I was wondering, and I was doing my typical coughing, trying to see if he was awake, but he claimed that his eyes were burning.” Defense counsel responded, “He just seemed a little dramatic.” The court stated, “Okay. I thought he was asleep,” and defense counsel stated, “He brightened up when I stood up.”
The prosecutor stated with respect to Mr. E., “just generally on his job, he is a merchant seaman. He is out of town six months at a time. When asked about quality of life, this man lives in the Tenderloin and had no response. And I don’t like saying this about somebody, but... the gentleman had... approached me at one point when he left, and you could smell his – there was a lack of hygiene, and he seemed disheveled. There will be testimony from witnesses that the defendant appeared that way, and perhaps he may identify with the defendant.”
Defense counsel asked the prospective jurors whether there was anything about the “quality of life” in their neighborhoods that they found “annoying,” such as “broken glass on the street,” panhandling, “theft related [issues], garbage, or... disheveled folks on the street.” Several prospective jurors spoke of their exposure to crime, drug dealers, drug users, shoplifters, and “street folks.” Counsel also asked how prospective jurors felt about “disheveled folks on the street,” including whether they were “sort of less likely to give an erratic, scruffy looking guy the benefit of the doubt” in a case “dealing with the allegation of sort of street-level crime.”
The court ruled, “I do not find that the peremptory challenge is based upon bias, particularly with [Mr. G.] the Court was concerned with, one, he showed up late. Two, I noticed that his eyes were closed, and... the Court in its subtle way tried to awaken him, and the Court had to admonish him of removing a head garment from his head. [¶] As to [Mr. E.], I was concerned about his lack of understanding when I was very clear not to approach the attorneys and he did. So I don’t find that the challenges on [them] to be race based.” The prosecutor exercised a total of six peremptory challenges before the jury was selected and sworn in.
b. Discussion
Under California law, both the prosecution and defense are entitled to 20 peremptory challenges of prospective jurors in the trial of an offense that is punishable by death or life imprisonment, and 10 peremptory challenges in all other felony trials. (Code Civ. Proc., § 231.) Although peremptory challenges are intended to allow parties to reject a certain number of jurors for any reason at all, both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race or ethnicity. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 97.)
A Wheeler/Batson motion initiates a three-step process. First, the party raising the motion must make a prima facie case by establishing that the excluded person is a member of a cognizable group and that there is a “strong likelihood,” “from all the circumstances of the case,” that the person is “being challenged because of [his or her] group association....” (Wheeler, supra, 22 Cal.3d at p. 280.) Second, once a prima facie case has been found, “the ‘burden shifts to the [striking party] to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” (Johnson v. California (2005) 545 U.S. 162, 168.) In this step, we “rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (Wheeler, supra, 22 Cal.3d at p. 282.) Third, once a race-neutral justification is tendered, the defendant “ultimately carries the ‘burden of persuasion’ to ‘ “prove the existence of purposeful discrimination.” ’ ” (Johnson v. California, supra, 545 U.S. at pp. 170-171.) We review a trial court’s rulings on a Wheeler/Batson motion “deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
The trial court apparently found appellant had established a prima facie case, as it stated, “Yes, I am making a finding,” before shifting the burden to the prosecutor. On this record, however, it is doubtful appellant made a prima facie case. It is settled that the mere fact that a prospective juror is a member of a cognizable group does not establish a prima facie case. (See, e.g., People v. Trevino (1997) 55 Cal.App.4th 396, 406 [“No court has held that merely alluding to the fact a party has used its peremptory challenges to exclude members of a particular group, is sufficient to make a prima facie showing of group bias”]; People v. Howard (1992) 1 Cal.4th 1132, 1154 [a defendant’s attempt to show a prima facie case is “completely inadequate” where he relies solely on the fact that the prosecutor challenged the only two African American prospective jurors].) Here, defense counsel stated the burden should shift to the prosecutor because the prospective jurors “happen to be African-American.” He added a comment, “I didn’t hear much from either one of them,” but did not otherwise “make any effort to set out the other relevant circumstances, such as the prospective juror[’s] individual characteristics, the nature of the prosecutor’s voir dire, or the prospective juror[’s] answers to questions.” (Ibid.) Counsel also did not establish that Mr. E. and Mr. G. were the only African American prospective jurors in the venire or explain how their statements compared to those of other, non-African American prospective jurors. “A showing as limited as [appellant’s] offers little practical assistance to the trial court, which must determine from ‘all the circumstances of the case’ whether there is ‘a strong likelihood’ that prospective jurors have been challenged because of their group association rather than because of any specific bias.” (See ibid., quoting Wheeler, supra, 22 Cal.3d at p. 280.)
Because the court asked the prosecutor to state reasons for her challenge and ruled on the ultimate question of intentional discrimination, however, the first-stage issue of whether appellant established a prima facie case is moot. (See People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8.) Even assuming appellant had established a prima facie case, we conclude substantial evidence supports the court’s ultimate decision to deny the Wheeler/Batson motion. Although Mr. G. explained that his contact lenses were bothering him, the prosecutor and the court observed he had his eyes closed during voir dire and appeared to be either not paying attention or sleeping. Defense counsel responded that Mr. G. “just seemed a little dramatic” but also stated, “[h]e brightened up when I stood up,” suggesting Mr. G. was not as alert before defense counsel stood up to speak. Further, the record establishes that Mr. G. was late in returning to the courtroom after a lunch break, despite the court’s clear instruction to all prospective jurors to return “sharply at 1:45” and its recommendation to “take whatever time into consideration” including getting in line early, in order to return on time. The possibility that Mr. G. was not going to be attentive or was not going to be able to follow the court’s instructions was a race-neutral basis for challenging him. (See People v. Reynoso (2003) 31 Cal.4th 903, 925-926 [a prospective juror was properly excused for inattention to the proceedings]; People v. Davis (2008) 164 Cal.App.4th 305, 313 [challenge of a prospective juror was proper where she “was not punctual and did not otherwise do well in following the court’s directions”].)
There is also substantial evidence to support the court’s finding that the prosecutor’s use of a peremptory challenge against Mr. E. was not based on race. The record supports the court’s concern that Mr. E. did not understand its instruction “not to approach the attorneys.” The court admonished all prospective jurors, “Do not approach my clerk or, more importantly, the attorneys,” but had to remind Mr. E. of this admonishment when it stated, “[Mr. E.], sir, you had a question that you were trying to ask one of the attorneys. You can’t talk to them.” Further, neither the court nor defense counsel disagreed with the prosecutor’s observation that Mr. E. “seemed disheveled.” The prosecutor explained that Mr. E. “may identify with the defendant” because “[t]here will be testimony from witnesses that the defendant appeared that way,” i.e., “disheveled.” The concern was legitimate as evidenced by the fact that the prospective jurors’ feelings towards “disheveled folks” or “street folks” were at issue in the case. The prosecutor’s belief that Mr. E. “seemed disheveled” and may therefore identify with appellant, who was described by witnesses as a “street person” or “look[ing] like a homeless person,” was a race neutral basis for challenging him. (See People v. Hamilton (2009) 45 Cal.4th 863, 904-905 [prospective juror’s “unkempt and slovenly” appearance, combined with her answers to certain questions, provided a proper basis for prosecutor’s concern that the juror might identify with the defendant]; People v. Stanley (2006) 39 Cal.4th 913, 944-945 [“sympathetic or prodefense bias[]” is a non-racial reason]; Purkett v. Elem (1995) 514 U.S. 765, 769 [peremptory challenge based on prospective juror’s “long, unkempt hair, a mustache, and a beard [was] race neutral and satisfies the prosecution’s... burden of articulating a nondiscriminatory reason for the strike”]; People v. Turner (1994) 8 Cal.4th 137, 165 [jurors may be excused based on hunches or arbitrary reasons so long as the reasons are not based on impermissible group bias], overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
As noted, defense counsel asked how prospective jurors felt about “disheveled folks on the street,” including whether they were “sort of less likely to give an erratic, scruffy looking guy the benefit of the doubt” in a case “dealing with the allegation of sort of street-level crime.” Defense counsel also emphasized the robber’s physical appearance during his opening statement by referring to him as “a scruffy homeless looking man,” “deranged-looking,” and “the scruffy-looking guy.”
Appellant complains the court “failed to adequately inquire before it found that the prosecutor’s race-neutral explanations were credible.” He asserts, for example, that there is nothing in the record “to support the prosecutor’s claim that she thought [Mr. E.] smelled bad and was disheveled.” He cites to People v. Silva (2001) 25 Cal.4th 345, 386, for the proposition that “ ‘when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.’ ” This argument fails because, although a trial court is required to make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known,” (People v. Hall (1983) 35 Cal.3d 161, 167), it is “not required to make specific or detailed comments for the record” to support its finding that a prosecutor’s explanation is genuine (People v. Reynoso, supra, 31 Cal.4th at p. 919). “This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (Ibid.; see also People v. Stevens (2007) 41 Cal.4th 182, 198 [“The best evidence of whether a race-neutral reason should be believed is often ‘the demeanor of the attorney who exercises the challenge,’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province” ’ ”].)
Mr. E.’s disheveled appearance would have been apparent to the court. “Since the trial court was in the best position to observe the prospective jurors’ demeanor,... the implied finding[] that the prosecutor’s reasons for excusing [Mr. E.], including the demeanor-based reason, were sincere and genuine, is entitled to ‘great deference’ on appeal.” (People v. Reynoso, supra, 31 Cal.4th at p. 926; see also People v. Hamilton, supra, 45 Cal.4th at p. 904 [appellate court assumed a description of a prospective juror was accurate, “as neither the court nor defense counsel challenged it”]; Batson, supra, 476 U.S. at p. 98, fn. 21 [we give the trial court’s findings great deference because they “largely will turn on evaluation of credibility”]; Wheeler, supra, 22 Cal.3d at p. 282 [we will “rely on the good judgment of the trial courts to distinguish bona fide reasons... from sham excuses”].) There was no Wheeler/Batson error.
2. Jury Deliberations
Appellant contends the trial court violated his constitutional rights to due process and a fair trial when it coerced the jury to continue deliberating after the jury informed the court it was deadlocked. We conclude there was no error.
a. Background
During jury deliberations, the court received some questions from the jury, one of which was received at about 12:00 p.m. on February 1, 2008, and stated, “We are unable to reach a unanimous verdict.” In the presence of the jury, the court noted the jury had deliberated from 10:00 a.m. until noon that morning and 1:50 p.m. until 4:30 p.m. on January 31, 2008. The court stated, “In the scheme of things, that’s really not a long time to deliberate. And there is no deadline on deliberations. You know, deliberations can be 15 minutes or it can be two hours, and I don’t want people to feel rushed and, like, there is no chance, there is no way. [¶] And so what I want to say since it is 12:15 and it is the lunch hour, would it be best to just kind of air your heads out and come back in, say, 45 minutes and see what happens after that so you can have some time to think about what was going on and what was said and the evidence. [¶] You just don’t think that 45 more minutes? Because many times what will happen in that break, you will think about the – and I am not trying not to tell you where people are and where people stand. You think about the other side’s argument, and many times that helps when you think about the other side’s argument, and you start to see – and then, you know, whatever position you are on, then you take that opposite position, and you start to deal with it on your own, and then you go back, and more importantly, you go back and start thinking about it and talking among yourselves. And that’s why I’m thinking giving you about a 45-minute break and see what happens after that 45-minute break and then have you come back about—yes. I am going to do that, have you come back at about 1:00 o’clock. And then if you can’t reach a resolution in talking, then at 2:00 o’clock—by 2:00 o’clock, let’s see what happens. Okay?” The court asked whether the jurors needed clarification on any instructions or anything else. It then stated, “Why don’t I do this? I am going to recess you and have you come back at 1:00 o’clock; okay? And then we will have you deliberate a little bit more when you are in the room. Clear your heads. Don’t think about this case. [¶] Remember the Court’s admonition. But when you go back, think about it in the context of, okay, let’s take the other side’s position, and those who are on one side and those who are on the other side, just switch sides so you can see the other person’s arguments. Okay? Thank you... And we will all be here [at]... 1:15.”
After the jurors left the courtroom, defense counsel stated, “I understand that the Court gave the jurors some time to clear their heads during lunch. There is just no indication when the Court was asking if additional time would be helpful, all the jurors kind of shook their heads and looked at each other.” The court stated, “I didn’t see all. I saw some were nodding. That’s why... I wanted them to come back at 1:15, and we’ll see what happens at 2:00.” Defense counsel responded, “I understand. When the Court asked that question, what I saw was jurors kind of turning towards the center and shaking their heads no and no, indicating the jurors didn’t need additional instructions or anything. They seemed quite deadlocked.” The court stated, “I don’t know yet until I poll them correctly. [¶] And one thing I am allowed to do... is to ask them to come back, especially in view of the fact that it’s five hours and it has been a two-day trial, to go back and deliberate and take the opposite view of whatever their positions are, whatever it is, and to see that other person’s position. [¶] And I did see one particular juror... I think she is juror number 9, seemed to be – not shaking her head negatively, that she wanted to see what other jurors were thinking about. So that’s why the Court said, ‘I want to have you come back after lunch.’ ” Defense counsel asked whether they should return at 2:00, and the court responded, “Why don’t you come back at 2:00 because they are just going to come in at 1:15 and then go straight in there, and then at 2:00 o’clock if they send a note out.” The prosecutor stated, “And I would agree with the Court’s characterization. There were some negative nods, but not all of the jurors indicated that way, and I think that what the Court is doing is absolutely appropriate.” According to the reporter’s transcript, “proceedings resumed at 3:10 p.m.” and the jury returned a guilty verdict at that time. The clerk’s minutes show the jury notified the Bailiff that they had reached a verdict at 4:15 p.m.
b. Discussion
“A jury that has deliberated may be discharged without reaching a verdict when, ‘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.’ (§ 1140.) Whether the jury has had sufficient time to deliberate, and whether there is no reasonable probability of a verdict, are determinations committed to the sound discretion of the trial court. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 467.)
The leading California case dealing with instructions to a deadlocked jury is People v. Gainer (1977) 19 Cal.3d 835, 842 (Gainer), which condemned the “Allen charge,” an improper instruction intended to dislodge a deadlocked jury. In Gainer, the trial court told the “dissenting juror” to “consider whether a doubt in his or her mind is a reasonable one” (id. at p. 848) and stated 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 twelve 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.” (Id. at p. 841.) Gainer concluded the statements were improper and held it is error to give an instruction to a deadlocked jury that “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.” (Fn. omitted.)
The case from which the instruction takes its name is Allen v. United States (1893) 150 U.S. 551.
Gainer also indicated in dictum that an instruction referring to the expense and inconvenience of a retrial was erroneous. (Id. at p. 852, 852, fn. 16.)
We conclude the problems identified in the instruction given in Gainer are not present in the instant case and that the court’s instruction was not of a character that would expressly or impliedly coerce a verdict. Unlike in Gainer, the court here did not tell minority jurors to reconsider their votes in light of the opinion held by the majority. Appellant states the court’s statement that jurors should “switch sides” was improper because “the comment could only put pressure on the minority jurors to switch to the majority view.” However, the court did not instruct dissenting jurors to conform to the majority position. It did not try to influence the jury’s decision and did not pressure the jury to reach an agreement. Instead, its statements, as a whole, encouraged all jurors, without mention of the existence of a majority or minority faction on the jury, to keep an open mind in “thinking about [the case] and talking among [themselves].”
Moreover, the court did not give jurors the impression that the case would be retried if they could not reach a verdict. This situation is not like the one in People v. Hinton (2004) 121 Cal.App.4th 655, 657, where the trial court admonished the jury that “a great deal of effort [was made] by both the parties, a great deal of time and preparation, no small amount of time of your own, and everybody else’s, heat, light, in the building, and the rental, and dedication of resources to this matter. An inability to come to a conclusion one way or another,... means we would not complete the task that we all set out to do. [¶]... If not us, and if not now, when. The short answer to... those questions are another 12 or 15 people.” The judge in People v. Hinton also told the jurors to “respect the majority opinion” and “question their own judgment if a majority of the jurors take a different view of the case.” (Ibid.)
Appellant contends the court “improperly extended the jury’s deliberation past the set time that it indicated would be sufficient for deliberation.” However, there is nothing in the record indicating the court had a “set time” that it believed was sufficient for deliberation. The court simply stated, “And then if you can’t reach a resolution in talking, then... by 2:00 o’clock, let’s see what happens.” The record shows the jury did not resume deliberations until 1:27 p.m. We do not believe the court’s comments indicated to the jurors that they needed to reach a verdict in 33 minutes, i.e., “by 2:00 o’clock,” or that they were required to continue deliberating indefinitely because the court did not require them to stop deliberating at 2 p.m. The record does not support appellant’s contention that the jury was pressured into deliberating until it reached a verdict.
Appellant also contends the court should not have required the jury to continue deliberating because “there was no basis for determining that there was a reasonable probability of agreement.” He relies on defense counsel’s observation that the jurors appeared to be deadlocked and states the court improperly “overruled the consensus of the jury that further deliberation was not going to be helpful.” A court may, however, in the exercise of its discretion, request a jury to continue to deliberate despite the jurors’ opinions that further deliberations would not be useful. (People v. Sandoval (1992) 4 Cal.4th 155, 196 [“jurors’... statements against the usefulness of further deliberations” did not “remove[] the court’s discretion to require further deliberations”].) Appellant suggests the court erred in “not mak[ing] any individual inquiry of the jury” but cites no authority to support the position that a court is required to do so. In any event, as the court observed, “some [jurors] were nodding” when it asked whether additional time to deliberate would be helpful. The prosecutor agreed with the court that although “[t]here were some negative nods,” “not all of the jurors indicated that way.” The record supports the court’s implied finding that the jury had not deliberated to the point where “there [was] no reasonable probability” that it could reach a verdict. (See § 1140.)
Disposition
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.