P. v. Lewis
Filed 1/7/13 P.
v. Lewis CA2/2
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY LEWIS,
Defendant and Appellant.
B234344
(Los Angeles County
Super. Ct. No.
TA115091)
APPEAL
from a judgment of the Superior Court of
County. John J. Lonergan, Jr., Judge. Affirmed.
Kimberly
Howland Meyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
___________________
After
defendant Timothy Lewis’s first trial ended in a deadlocked jury, a second jury
convicted him of carjacking in violation of Penal Code section 215, subdivision
(a).
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conviction pursuant to sections 1170, subdivisions (a) through (d); 667,
subdivisions (b) through (i); and section 667, subdivision (a)(1). He also admitted having served a prior prison
term pursuant to section 667.5, subdivision (b).
The trial court granted defendant’s
motion to dismiss the strike pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497. The trial court
sentenced defendant to a total of 10 years in
of five years for the carjacking and five years pursuant to section 667,
subdivision (a)(1).
Defendant appeals on the grounds
that: (1) the trial court abused its
discretion by prematurely giving the jury an unduly coercive supplemental
instruction to break its deadlock, which was a violation of defendant’s federal
due process right to an impartial jury, and (2) the trial court’s coercive
supplemental instruction resulted in a miscarriage of justice requiring
reversal of defendant’s conviction.
FACTS
On October 17, 2010,
Angel Guerrero stepped out of his truck after parking it. He left the engine running because he
intended to make a short stop. Guerrero
was aware that he had almost run into a white car while he was backing up to
park. The white car stopped, and a group
of five or six people including defendant got out and approached Guerrero while
armed with hammers and metal rods.
Guerrero believed they were going to attack him. Defendant, who Guerrero believed had a
hammer, got in the driver’s seat of Guerrero’s truck and drove away.
Guerrero, his brother, and a young
friend named Adriana Castro pursued the truck in the brother’s car. Castro called 9-1-1.
Castro’s testimony corroborated that of Guerrero.
Guerrero’s truck, with defendant at
the wheel, was spotted by sheriff’s deputies in a patrol car. When the officers made a U-turn in order to follow
defendant, he drove away at a high rate of speed. The deputies did not pull out their weapons,
although one deputy later testified he did not recall if he drew a gun. After a short chase, defendant crashed the
truck into a fire hydrant. Defendant got
out and ran but was eventually taken into custody.
Defendant testified that he alone
approached Guerrero while unarmed after Guerrero hit the white car defendant
was traveling in. Guerrero got a machete
from his truck and held it, causing defendant to fear for his safety. Defendant got in Guerrero’s truck and drove
off in order to save himself. Defendant
did not stop for the deputies because one of them pulled a gun on him when the
patrol car first passed him. Defendant’s
testimony was supported by a friend who was in the white car with him and said
that Guerrero pulled a machete on defendant.
In November 2010, defendant’s mother took photographs of the damage to
the white car, and the photographs were shown to the jury.
DISCUSSION
Defendant’s Argument
Defendant contends that, under the
circumstances of this case, the trial court’s reading of a deadlock-breaking
instruction was unduly coercive and an abuse of discretion. Prior to the reading of the instruction, the
jury had requested but not yet heard readback of the key prosecution witnesses’
testimony and another hearing of the 9-1-1 call; therefore, the giving of the
instruction was premature. These
circumstances, combined with the fact that several jurors expressed difficulty
with the length of the trial, lead to the conclusion that the instruction
exerted pressure on minority jurors and the jury as a whole to return any
verdict rather than none at all. The
jury’s independent judgment was compromised, and defendant’s due process right
to an impartial jury was violated, requiring reversal.
Proceedings Below
Shortly before the noon recess on June 21, 2011,
the jury was ordered to begin deliberations.
The jury returned at 1:30
p.m. and deliberated until court adjourned at 4:00 p.m. that
day. Before the jury left for the day,
the trial court answered the jury’s query on the term “force or fear†in a
manner agreed upon by all parties.
Deliberations resumed at 9:00 a.m. on June 22, 2011. At approximately 9:30 a.m., the jury asked to listen to the 9-1-1 recording
again as well as the testimony of Adriana Castro. The jury also asked, “Does his failure to
substantiate ‘necesity’ [sic] imply
guilt?†The parties agreed that the
court would play the recording and provide the readback as soon as the court
became available. With respect to
necessity, the court referred the jury to the instructions on carjacking and
necessity. Because defense counsel was
engaged in a hearing for a different case, the readback and playback were
delayed. Before the jury heard the
readback, they buzzed the court again and issued a note saying, “we are not
able to make a decision, nine to three.â€
The trial court announced that it
intended to read the jury an instruction from People v. Moore (2002) 96 Cal.App.4th 1105 (
and it provided copies to the prosecutor and defense counsel. The trial court stated its decision was
“based on the length of the evidence and the gaps and the fact that they
requested readback and the
9-1-1 tape being
played.†Later, the court stated for the
record that it did not believe the jury had been deliberating long enough.
Defense counsel objected to the
reading of the instruction. She
requested the trial court to poll the jurors as to how many votes had been
taken, remind them of the length of their deliberations and that they had
requested readback and the 9-1-1- call, and ask them whether they felt that
further deliberations would change anything.
Defense counsel commented that the language of the instruction was “a
little bit overbearing.†The prosecutor
had no objection. The trial court noted
the objection by the defense and stated it would read the instruction and
inform the jury that at 1:45 that afternoon they would have the readback they
requested.
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After reading the
1:45 p.m. When the jury reassembled, the
foreperson sent the trial court a written request for a readback of Guerrero’s
testimony as well.
At 2:00 p.m., the trial court played
the 9-1-1 recording and then recessed for a short break. At that time, Juror No. 7 approached the
bailiff to tell him he wanted to be excused for a “work hardship.†The afternoon session continued with the requested
readback. After court was adjourned for
the day, Juror No. 7 addressed the court.
A self-employed truck driver, he complained he was unable to service his
accounts. He asked at what point he
could claim a hardship. The court told
him he would not be discharged, but if deliberations continued through the
following afternoon, the court would address the issue again.
Juror No. 10 was also waiting to
speak with the court at that time. She
told the court that she had asked to speak to the court because of her concerns
with her student research. She had since
spoken with her professor who said it was “fine.†The court informed her that if by the end of
the following day she still had concerns, the court would address the issue
again.
Alternate Juror No. 2 then informed
the court that he or she had a prepaid airplane flight for Friday (the next day
being Thursday). The court asked the
juror to bring some kind of verification and stated that, if there was an issue
at the end of Thursday’s session, the court would take it up again. Neither the prosecutor nor defense counsel
had any comments on the court’s discussions with the jurors.
On the following morning, the court
announced that Juror No. 5 had telephoned to say he was unable to come to court
because he had paralysis on one side.
The court noted it had already made special accommodations for this
juror due to his physical ailments and age.
The trial court telephoned the juror by means of a speaker phone in the
presence of counsel. The juror reported
stiffness and difficulty in walking and said he needed to go to physical
therapy that day, since he had missed several therapy appointments due to jury
service. When asked if he had been able
to listen and deliberate despite his condition, the juror replied that he had. The court asked the juror to postpone his
therapy until the afternoon and to come to court. The juror agreed. Defense counsel was in agreement that the
juror should be made to come to court.
The record shows that the jurors
resumed their deliberations at 10:15 a.m.
At approximately 10:35, the jury reached its guilty verdict.
Relevant Authority
“[I]t 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. [Fn. omitted.]†(People
v. Gainer (1977) 19 Cal.3d 835, 852 (Gainer),
disapproved on another point in People v.
Valdez (2012) 55 Cal.4th 82, 163.)
States Supreme Court in Allen v. United
States (1896) 164 U.S. 492, 501-502—which was used as a means of
“‘blasting’ a verdict out of a deadlocked jury.†(Gainer,
at p. 844.)
“The court may ask jurors to
continue deliberating where, in the exercise of its discretion, it finds a
‘reasonable probability’ of agreement.
[Citations.]†(
265, quoting § 1140.) “‘Although the
court must take care to exercise its power without coercing the jury into
abdicating its independent judgment in favor of considerations of compromise
and expediency [citation], the court may direct further deliberations upon its
reasonable conclusion 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.’â€â€™â€ (People v. Bell (2007) 40 Cal.4th 582, 616.) “The question of coercion is necessarily
dependent on the facts and circumstances of each case. [Citation.]â€
(People v. Sandoval (1992) 4
Cal.4th 155, 196; People v. Pride,
319.)
No Abuse of Discretion
In Moore, the appellate court upheld the trial court’s giving of the
instruction at issue here when the jury stated it could not reach a verdict
after one day of deliberations. (
The court rejected the same arguments appellant makes here—that the
instructions were coercive and improper—and instead commended the trial court
“for fashioning such an excellent instruction.â€
(Id. at pp. 1120, 1122.) The court also concluded that the supplemental
instructions did not violate the rule set forth in Gainer. (
655, 661, and People v. Whaley (2007)
152 Cal.App.4th 968, 981-985.
We do not believe the trial court’s
reading of the Moore instruction in
this case was coercive under the circumstances.
As noted, the instruction has been generally approved. The trial court’s instruction here was nearly
identical to the Moore
instruction. (Moore, supra, 96
Cal.App.4th at pp. 1118-1119.) As in
the jury that 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 for the
consequences of your verdict [or] regardless of how long it takes to do
so.’†(Id. at p. 1118.) The trial
court “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.]â€
(Id. at p. 1119.) The trial court never directed the jury that
it must reach a verdict but stated that it was each juror’s responsibility to
weigh and consider all the evidence presented at trial. (Id.
at p. 1118.) And again as in
the jurors of their duty to attempt to reach an accommodation.†(Id.
at p. 1121.)
In the instant case, the instruction
was read immediately after the jury told the court it was “not able to make a
decision.†The jury had not deliberated
for very long at that point (a generous estimate is five hours), and had not
even heard the readback and playback it had requested that same morning. It would appear that these jury members were
in need of more guidance than had been provided in the standard jury
instructions the trial court gave them read prior to the start of
deliberations. The Moore instruction would have helped the jurors establish a rational
and sober basis for decision-making that they could employ during and after the
re-reading of the testimony and the re-playing of Castro’s 9-1-1 call. The fact that the jurors announced an inability
to reach a decision before hearing their requested readback is indicative of a
disorganized and impetuous approach.
One of the circumstances that
defendant cites as determinative in this case is the fact that several jurors
were “vulnerable†in that they expressed concerns over the potential length of
the deliberations. With respect to Juror
No. 10, her concerns were resolved before she even spoke to the trial
court. Alternate Juror No. 2 had a
prepaid plane ticket for Friday, but, without prompting, expressed an ability
to rejoin deliberations on the following Monday, should they continue. Juror No. 7 explained that he had been
concerned about his business since he first arrived at the jury selection room,
and he was reassured by the trial court that his concerns would be revisited at
the end of the following day. Juror No.
5 apparently did not appreciate the seriousness of his absence and readily
agreed to come to court that day after speaking with the trial court. We do not agree with defendant that the
concerns of these jurors, who were clearly reassured that their concerns would
be addressed and who never actually requested to be excused, made the jury as a
whole vulnerable to coercion.
Likewise, defendant cites the short
time the jury spent deliberating after Juror No. 5 joined the rest of the
jury as an indication that the minority jurors were improperly pressured. According to defendant, it is “apparent that
the admonition effectively coerced the jury as a whole to return a verdict on the
basis of matters it had already discussed and considered for the sake of
expediency.†Although it is true that
the jury had already discussed the evidence, it is also true that the jury
requested a playback of the 9-1-1 tape, and they requested readback both before
and after the Moore instruction was
read to them. Having listened to the
readback and the 9-1-1 call, the jury members refreshed their respective
memories as to the testimony. The jury’s
query as to defendant’s “failure†to establish the defense of necessity
suggests that the jury members had doubts as to defendant’s credibility. Given these circumstances, we do not believe
the short period of time of the final deliberation session proves that the jury
was coerced. In similar circumstances,
the Moore court stated that,
“presumably because of the relatively brief duration of deliberations conducted
by the jurors before they announced they could not reach a verdict on count 1,
the trial court concluded further deliberations might be beneficial without
questioning the jury regarding the impasse.
The fact the jury was able to reach a verdict relatively quickly after
being further instructed reflects the court properly exercised its
discretion.†(Moore, supra, 96
Cal.App.4th at p. 1122.) We believe the
same occurred in this case.
Finally, defendant points out the
separate concurring opinion of Justice McAdams in People v. Whaley and contends that the justice’s concerns are
especially relevant here. Although
Justice McAdams agreed that reversal was not required in that case (
commented, “I am troubled by the statement to the jurors that they should
consider using ‘reverse role playing’ as a method of deliberation, especially
in a case such as this one where the trial court was aware at the time of the
instruction that the numerical breakdown of the deadlocked jury was 11 to
one. Furthermore, I have concerns about
language found in the early and later portions of the instruction that creates
the impression that the court has the expectation that the jurors should come
to a verdict, the statement shortly thereafter that they have a ‘goal as
jurors’ to reach a verdict if they are able to do so ‘regardless of how long it
takes,’ and the concluding charge that the panel is ‘ordered to continue your
deliberations.’ These remarks are a far
cry from the restrained, neutral tone of CALCRIM No. 3550. [Citation.]
[¶] I disagree with the view that
such statements cannot be found to be unduly coercive because they are mere
‘suggestions’ made by the court. These
comments are more than friendly and helpful advice. The trial judge is seen by the jury as the
central courtroom authority figure, the unbiased source of the law and the same
person who previously instructed them . . . that ‘[y]ou
must follow the law as I explain it to you, even if you disagree with it.’ Thus the need for utmost caution.â€
At the outset, Justice McAdams’s
concurrence merely expresses a need for caution, especially since the jury was
deadlocked 11 to one. We do not believe
the trial court here displayed a lack of caution, and there was no single
minority juror. Secondly, the concurring
opinion is not citable authority.
Finally, even if Justice McAdams’s belief that a jury might regard the
court’s suggestions as something more forceful than advice could be
substantiated, any methods suggested by the instruction applied to both
minority and majority jurors and were intended to help both sides understand
the other’s view. Minority jurors were
not singled out. (Cf.
That a juror’s mind might be changed does not signify that he or she was
coerced. Persuasion is not synonymous
with coercion.
In sum, we see nothing coercive
about the court’s Moore instruction
to the jury. The challenged instruction
did not violate the Gainer rule. It did not put pressure on minority jurors to
agree with the majority opinion or suggest that failure to reach a verdict
would necessarily result in a retrial.
(See Gainer,
“decide the case for yourself†and to “deliberate with the goal of arriving at
a verdict on the charges†only if he or she could do so “without [doing]
violence to [his or her] individual judgment.â€
The instruction recognized the possibility that the jury may not reach a
verdict. This is nothing more than what
is always required of the jurors. The
trial court did not abuse its discretion, and no due process violation or
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
____________________, P. J.
BOREN
We
concur:
____________________, J.
ASHMANN-GERST
____________________, J.
CHAVEZ
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[1] All
further references to statutes are to the Penal Code unless stated otherwise.
Moore instruction was read as
follows: “Ladies and Gentlemen, what I
am going to do right now is I have further instructions and directions to give
you as to the count in this case. It has
been my experience on more than one occasion that a jury which initially
reported it was unable to reach a verdict was ultimately able to arrive at
verdicts on one or more counts before it.
To assist you in further deliberations, I’m going to further instruct
you as follows. 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 your 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. As I previously instructed you, you have the
absolute discretion to conduct your deliberations in any way you deem
appropriate. May I suggest that since you
have not been able to arrive at a verdict using the methods that you have
chosen, that you consider to change 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
role playing by having those on one side of an issue present and argue the
other side’s position an [sic] vice
versa. This might enable you to better
understand the other’s 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 find 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 consider and understand
the views of the other jurors. The
integrity of a trial requires that all jurors at all times during the deliberations
conduct themselves as required by these instructions. The decision the jury renders must be based
on the facts and the law. You must
determine what facts have been proved from the evidence received in the trial
and not from any other source. A fact is
something proved by the evidence or by stipulation. Second, you must apply the law I state to you
to the facts as you determine them and in this way arrive at your verdict. You must accept and follow the law as I state
it to you regardless of whether you agree with the law. If anything concerning the law said by the
attorneys in their arguments or at any other time during the trial conflicts
with my instructions on the law, you must follow my instructions. The decisions you make in this case must be
based on the evidence received in the trial and the instructions given by the
court. These are the matters this
instruction requires you to discuss for the purpose of reaching a verdict. You should keep in mind the recommendations
this instruction suggests when considering the additional instructions,
comments and suggestions I have made in the instructions now presented to
you. I hope my comments an [
assistance to you. You’re ordered to
continue your deliberations at this time.
If you have other questions, concerns, requests 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.â€
