IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELIJAH MAURICE DARDEN, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 08F01365 & 08F02133)
The opinion of the court was delivered by: Duarte , J.
P. v. Darden CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Elijah Maurice Darden was convicted of second degree robbery (Pen. Code,*fn1 § 211) with an enhancement for personally using a handgun (§ 12022.53, subd. (b)). The trial court sentenced defendant to a 12-year prison term.
On appeal, defendant contends the trial court coerced the jury to render a verdict.
We disagree and shall affirm.
FACTUAL AND PROCEDURAL HISTORY
I The Offense
Sometime between 11:15 p.m. and 11:30 p.m. on February 19, 2008, Amanda Justus parked her Saturn Ion at her apartment complex in Natomas. As Justus walked from her car, a person, later identified as defendant, approached and said, "Don't say anything," as he showed her a gun. Defendant wore a black pea coat, jeans, a hooded sweatshirt, and a beanie; he showed the gun through the side of his left pocket. He was about three feet from Justus.
Defendant asked Justus for her purse. Justus did not have a purse, but gave defendant her card wallet. He then asked Justus for her keys and cell phone. Justus complied, and defendant told her to go home.
Justus returned to her apartment, where she told her roommate Kenneth Stonebraker what had happened. Justus called 911 as Stonebraker left the apartment to go look for Justus's car.
While outside within a few hundred yards from the apartment complex, Stonebraker met a man he knew as "EJ." He asked EJ if he had seen someone drive by in a car. EJ, whom Stonebraker later identified as defendant, said, "Yeah, was it a blue Saturn?" Stonebraker said it was, and defendant replied, "Yeah. Someone just came racing by here just a second ago." Defendant then told Stonebraker he was going home and offered help finding the car.
Stonebraker later returned to the apartment complex, where he noticed Justus's Saturn was parked in its normal spot. Stonebraker tried to call defendant later that night, but defendant's phone was off. Stonebraker called defendant several times the following day, getting a message indicating the phone was disconnected.
Sacramento Police officers arrived at Justus's apartment about 15 to 20 minutes after she called 911. She gave a brief description of the robber to the police, who then took her to a showup. She was shown someone other than defendant and said he was not the person who robbed her.
Stonebraker told officers about seeing EJ on the road after the robbery, and gave them EJ's phone number. The police checked phone records and determined the phone number belonged to defendant.
Justus later identified defendant at a photographic lineup and at a subsequent live lineup.
II The Jury
The case proceeded to trial. The jury began deliberations at 3:40 p.m. and continued to 4:30 p.m. on April 6, 2009. It resumed on April 7 at 9:30 a.m. It requested a readback of Stonebraker's testimony, which was provided, and was released at 1:00 p.m. The following day, the jury asked for portions of the closing arguments, which the trial court declined to provide as they were not evidence. The jury indicated it was deadlocked at 3:25 p.m. on April 8, 2009.
After ascertaining from the foreperson that the jury was deadlocked, the trial court said, "Now I'm going to have a few questions for you, and I need you to only answer those questions." The trial court then asked the foreperson how many ballots had the jury taken. The foreperson said, "one actual ballot," and the trial court replied: "Okay. Without telling me -- well, see, the problem with one ballot, ordinarily, we have a few more than just that when I get to this point. [¶] So at this point counsel I'm prepared to read the instruction."
The prosecutor and defense counsel agreed, and the trial court then read a supplemental instruction to the jury concerning how to proceed given its deadlock.*fn2 The jury left for the day shortly thereafter, returned the next day, April 9, for approximately two more hours of deliberation, and then announced it had reached verdicts, finding defendant guilty as charged.
Defendant contends the trial court coerced a verdict from the jury by declaring a deadlock without adequate inquiry, and by characterizing the jury's failure to take multiple ballots as somehow problematic. We disagree.
"Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, 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.)
"The determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.] 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. Rodriguez (1986) 42 Cal.3d 730, 775.)
Defendant argues the trial court's comment mid-sentence that "see, the problem with one ballot, ordinarily, we have a few more than just that when I get to this point" was impermissible criticism of the jury's deliberative process. We are not persuaded. The trial court was not expressing displeasure with the jury's deliberations or the jurors' failure to reach a verdict. It is clear to us that the trial court simply found itself unable to continue its standard inquiry.*fn3
Defendant also claims the trial court failed to make an adequate inquiry into whether the jury was hopelessly deadlocked. As noted ante, it is clear to us that the trial court initially planned to inquire further, but found the answer to its first question (that there had been only one ballot) sufficient to conclude that the deadlock was far from hopeless. This is by no means an unreasonable conclusion. Nor do the cases cited by defendant persuade us otherwise.
People v. Gill (1997) 60 Cal.App.4th 743, 748-749 (Gill), does not hold that a trial court must ask the foreperson whether the jury is able to reach a verdict, despite defendant's argument that it does. Gill simply holds that inquiring of the foreperson as to whether it believed the jury could reach a verdict was not coercive. It does not mandate such an inquiry.
People v. Carter (1968) 68 Cal.2d 810 (Carter), is similarly unhelpful to defendant given the facts of this case. In Carter, our Supreme Court stated: "The court also may, and indeed it should, question individual jurors as to the probability of agreement" before taking measures "calculated to encourage agreement." (Carter, supra, 68 Cal.2d at p. 815, original italics.) We do not agree that it is appropriate to extrapolate from this holding that after determining a jury has taken only one ballot, a trial court need make further inquiry of individual jurors before it properly exercises its discretion to provide further instruction--such as that given in this case--to a jury that has orally announced a "deadlock" after one round of voting.
In Moore, we held that the trial court properly exercised its discretion under section 1140 to instruct further, despite its failure to specifically inquire whether there was a reasonable probability the jurors could agree on a verdict, given the brief duration of deliberations that had occurred until that point. (Moore, supra, 96 Cal.App.4th at pp. 1121-1122.) Here, we hold that the trial court properly exercised its discretion to instruct further without specific inquiry given the announcement of a "deadlock" after only one ballot.
The judgment is affirmed.
We concur: RAYE , P. J. HULL , J.