California Court of Appeals, Second District, Fifth Division
March 12, 2014
THE PEOPLE, Plaintiff and Respondent,
JAIME GARCIA, Defendant and Appellant.
[DEPUBLISHED BY ORDER]
[CERTIFIED FOR PARTIAL PUBLICATION][*]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA065680 Shari Silver, Judge.
Edward Mahler, 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, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant was convicted of attempted murder, various firearm offenses, and participating in a gang. In the published portion of this opinion, we hold that even if the trial court directed alternate jurors to be in the jury room during juror deliberations, which is not at all clear, the judgment does not need to be reversed because there was no showing that the alternate jurors participated in the deliberations or that there was any other prejudice, presumed or otherwise.
I. Presence of the Alternate Jurors During Jury Deliberations
Defendant, who was convicted, inter alia, of attempted murder, contends that the trial court committed reversible error when it directed the two alternate jurors to accompany the seated jurors to the jury deliberation room.
After instructing the seated and alternate jurors, the trial court stated, “In terms of the two alternates, as soon as we finish right here, the bailiff... will explain to the alternates and the other jurors how this works.” The bailiff then swore to take charge of and keep together the jury, to not speak to the jury or allow anyone else to speak to it on any subject connected to the case except by order of the trial court, and to return the jury to the court when it reached a verdict. The bailiff further swore to “take charge of the alternate jurors and keep them apart from the jury while they are deliberating on the cause, until otherwise instructed by the court....”
After the bailiff was sworn, the trial court asked him, “Do you want all of the jurors to go in the deliberation-” The bailiff responded, “Yeah. All 14.”
The trial court said, “Okay. [¶] All 14 jurors, please go into the jury deliberation room. [¶] The alternates, since you won’t be deliberating, just leave your documents on the seat. [¶] Everybody, take your documents. You will be given the exhibits, the verdict forms, and questions forms.” After the seated and alternate jurors left the courtroom, the trial court stated, “The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room.” After the jury returned its verdicts, the trial court sent all the jurors, including the alternate jurors, back to the jury deliberation room.
B. Relevant Legal Principles
Penal Code section 1089 provides, in part, “upon final submission of the case to the jury the alternate jurors shall be kept in the custody of the sheriff or marshal and shall not be discharged until the original jurors are discharged, except as hereinafter provided. [¶] If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.” There is no express statutory prohibition against alternate jurors being in the jury room during deliberations. There has been, however, “[a] long-established policy, designed to protect the independence of the jury, [to require] that they deliberate in secret, without outside communication or observation....” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 320, p. 373; see People v. Bruneman (1935) 4 Cal.App.2d 75, 78-80 [40 P.2d 891].)
In People v. Britton (1935) 4 Cal.2d 622 [52 P.2d 217] (Britton), the California Supreme Court addressed the propriety of an alternate juror’s presence in the jury room during deliberations. The court in Britton approved the opinion in People v. Bruneman, supra, 4 Cal.App.2d 75, a then recent Court of Appeal opinion, and, over the dissent of two justices, adopted as its own the Court of Appeal’s opinion in Britton in pertinent part as follows: “Appellants claim reversible error because when the jury retired to deliberate the court directed that the alternate juror should retire to the juryroom with the jury, and that this was error even though the court instructed such alternate juror that while she might listen to the deliberations of the jury, she should not express any opinion or participate by word or action in those deliberations. [¶] Subsequent to the appeal herein this identical question was decided in People v. Bruneman [, supra, ] 4Cal.App. (2d) 75 [40 P. (2d) 891], and we agree with the conclusions therein stated, that the presence of
the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error.” (Britton, supra, 4 Cal.2d at p. 623.) Britton has been read to establish a rule of per se reversal when an alternate juror was present with the regular jury during deliberations even when the trial court instructed the alternate juror to not express any opinion or participate in the deliberations in any way. (People v. Adame (1973) 36 Cal.App.3d 402, 406 [111 Cal.Rptr. 462].)
In People v. Valles (1979) 24 Cal.3d 121 [154 Cal.Rptr. 543, 593 P.2d 240] (Valles), a case decided by the California Supreme Court, the defendant and the prosecutor stipulated that an alternate juror be present during jury deliberations, but that the alternate was not to participate in the deliberations in any way. (Id. at p. 123.) On appeal, the defendant did not argue that the alternate disobeyed the trial court’s instruction by participating in the deliberations. (Ibid.) Instead, the defendant argued that the “alternate’s mere presence in the jury room during deliberations constituted reversible error.” (Ibid.) The court concluded that “the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant’s right of trial by jury and that defense counsel may stipulate to such procedure.” (Id. at p. 125.) The court held that the stipulation estopped defendant from obtaining a reversal based on the presence of the alternate in the jury room during jury deliberations. (Id. at p. 123.) The court stated, “The alternate should, of course, be instructed that he is not to participate in the jury’s deliberations in any manner except by silent attention unless he is required by the court to take the place of an original juror. If this instruction is disobeyed, the standard rule concerning juror misconduct applies, namely, that it is presumed prejudicial to the defendant unless the contrary appears. [Citation.]” (Id. at p. 128, italics added.)
As stated in Brassfield v. Moreland School Dist. (2006) 141 Cal.App.4th 67, 72 [45 Cal.Rptr.3d 662], (Brassfield) “[t]he dissent in Valles conceded that the error was not reversible per se, but it argued that the issue was viable notwithstanding counsel’s stipulation, the presumption of prejudice had not been rebutted, and reversal was therefore required. (People v. Valles, supra, 24 Cal.3d at pp. 131-132 (dis. opn. of Mosk, J.).)” The court referred to People v. Oliver (1987) 196 Cal.App.3d 423 [241 Cal.Rptr. 804] in which a court reporter was improperly in the jury room during deliberations and in which the court “noted that Valles had implicitly accepted the premise that such error was not reversible per se . . ., and... applied a harmless error standard of review.” (Brassfield, supra, 141 Cal.App.4th at p. 72, citation omitted.) The court in Brassfield then said that it “reject[ed] Brassfield’s contention that the simple presence of an alternate in the jury room during deliberations is reversible per se.” (Ibid.) The court concluded that such an error is “properly analyzed as a species of jury misconduct to which a presumption of prejudice applies and which does not merit reversal if
the error is shown to have caused no prejudice.” (Ibid.) The court stated, “as there was no claim that the alternate had disobeyed the court’s instruction, there was no basis for a claim of juror misconduct.” (Brassfield, supra, 141 Cal.App.4th at p. 72, citing Valles, supra, 24 Cal.3d at p. 123.)
The court’s conclusion in Valles, supra, 24 Cal.3d 121 that the “presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant’s right to trial by jury . . ." is consistent with the United States Supreme Court’s later opinion in United States v. Olano (1993) 507 U.S. 725 [123 L.Ed.2d 508, 113 S.Ct. 1770] (Olano) in which the Supreme Court reversed a finding that the presence of alternate jurors during jury deliberations violated Federal Rule of Criminal Procedure, rule 24(c) (18 U.S.C.) (rule 24(c)) and was reversible per se under the “plain error” standard of Federal Rule of Criminal Procedure, rule 52(b) (18 U.S.C). In Olano, the Supreme Court held that the presence of alternate jurors during jury deliberations violated rule 24(c), but that such an error was not the kind that affects a defendant’s substantial rights independent of its prejudicial impact, the respondents had not made a showing of prejudice, and there was no reason to presume prejudice. (Olano, supra, 507 U.S. at p. 737.) The Supreme Court stated, “Although the presence of alternate jurors does contravene ‘“the cardinal principle that the deliberations of the jury shall remain private and secret, ”’ [citation], the primary if not exclusive purpose of jury privacy and secrecy is to protect the jury’s deliberations from improper influence. ‘If no harm resulted from this intrusion [of an alternate juror into the jury room, ] reversal would be pointless.’ [Citation.] We generally have analyzed outside intrusions upon the jury for prejudicial impact. [Citations.]” (Id. at pp. 737-738.)
Respondent argues that the record does not demonstrate that the two alternate jurors were present in the jury room during jury deliberations. That the alternate jurors were sent back with the seated jurors does not mean that they entered the jury room itself and stayed there. Moreover, that there was no objection by defense counsel suggests that the alternates were not present.
Even if the alternate jurors were present in the jury room during deliberations, defendant has failed to demonstrate prejudice because the record does not show misconduct by either alternate juror from which prejudice may be presumed. If the alternate jurors were present in the jury room during deliberations, it was because they obeyed the trial court’s directive, as they
were required to do. (Pen. Code, § 1089 [“they shall obey the orders of and be bound by the admonitions of the court, upon each adjournment of the court...”].) Thus, there was no juror misconduct that would result in a rebuttable presumption of prejudice from the alternates being with the seated jurors during deliberations.
Because, as established by the authorities, an alternate juror’s presence during jury deliberations is not necessarily detrimental to a defendant’s right of trial by jury, there would be juror misconduct and presumed prejudice if the trial court instructed the alternate juror not to participate in deliberations and the alternate juror disobeyed the instruction. (Valles, supra, 24 Cal.3d at pp. 125, 128.) The trial court instructed the alternate jurors not to participate in deliberations. In addition, after instructing the seated jurors, the trial court instructed the alternate jurors, “[Y]ou are still bound by the admonition that you are not to converse among yourselves or with anyone else on any subject connected with this trial, or to form or express any opinion until the case is submitted to you, which means until such time as you are substituted in for one of the twelve jurors who will begin deliberating on the case tomorrow morning. This also means that you are not to decide how you would vote if you were deliberating with the other jurors.”
To the extent the trial court sent the deliberating and alternate jurors to the jury room, the trial court told the alternate jurors, “[S]ince you won’t be deliberating, just leave your documents on the seat.” There is no indication in the record that either of the alternate jurors disobeyed the trial court’s instructions and participated in jury deliberations in any manner. Defendant has failed to demonstrate that the alternates engaged in any misconduct or that their presence during jury deliberations, if that occurred, caused him prejudice-presumed or actual. Thus, any presence of the alternates jurors during jury deliberations is not a basis for reversal.
Defendant’s convictions for assault with a firearm and gang participation are reversed. The abstract of judgment is ordered modified to delete defendant’s one year four month sentence for his gang participation conviction and
to reflect a $40 court security fee and a $30 court building assessment on defendant’s assault with a semiautomatic firearm conviction. The judgment is otherwise affirmed.
Turner, P. J., and Mink, J., [*] concurred.