Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F08335
BUTZ, J.Defendant Christopher Taylor was found guilty by a jury of receiving stolen property. (Pen. Code, § 496d, subd. (a).)
The jury also found that defendant had a prior conviction for vehicle theft. (Pen. Code, § 666.5, subd. (a).) The jury was unable to reach a verdict on another charge alleging vehicle theft (Veh. Code, § 10851, subd. (a)), and a mistrial was declared as to that count. In a bifurcated proceeding, the trial court found true that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)) and sentenced him to state prison for a term of five years.
On appeal, defendant contends the trial court improperly instructed the jury after it reported it was deadlocked. We agree with this contention and, accordingly, shall reverse.
FACTUAL BACKGROUND
Defendant was observed in October 2008 by a sheriff’s deputy driving a white 1996 Chevrolet Corsica that had been reported stolen. The vehicle’s steering column had wires coming out of an exposed portion, which were connected to the center console with pliers, and there was no key in the ignition or on defendant’s person. A window on the driver’s side of the vehicle was broken. Men’s and women’s clothing and a pair of men’s shoes were located in the vehicle upon its return to the owner.
At the time of defendant’s arrest, Emma Collier, who was the passenger in the vehicle, was arrested on outstanding warrants. En route to the jail, she stated she had taken the car when she found it running “on Northgate somewhere.”
A witness testified she had seen Collier driving a white, four-door car that she believed was a Corsica several times over a period of approximately two weeks around the time the subject vehicle was stolen. She identified a photograph of the subject vehicle with “99 percent” certainty as the car Collier had been driving. She did not remember ever seeing defendant in the car.
In 2000, defendant was identified as the driver of another stolen vehicle a 1986 Chevrolet Monte Carlo which had a “peeled” steering column that had been broken apart so that the linkage was exposed. In March 2004, defendant was detained for failing to stop at a stop sign while driving a 1987 Chevrolet Silverado that had been stolen and had a “peeled” steering column. On another occasion in 2004, after defendant was stopped while driving a stolen 1990 Toyota Corolla, he told the police officer who questioned him that he had borrowed the car from someone he did not know and had not stolen it. Defendant explained further that he had stolen approximately 500 cars in the past and that he always stole Chevrolets because the steering column is easy to break.
DISCUSSION
Defendant objects to a portion of an instruction given by the trial court after the jury announced it was deadlocked. The jury had been deliberating for five hours over a three-day period and had made several requests for clarification of the law when it reported it was unable to reach a unanimous verdict. The foreperson told the court that several ballots had been taken with varying results and that the current ballot was 11 to one on each count. The foreperson answered in the affirmative when asked whether further instruction might assist the jury.
The trial court instructed the jury as follows:
“It has been my experience that a jury initially reporting that it is unable to reach a verdict may nonetheless ultimately be able to arrive at a verdict. I don’t take lightly the report that you are deadlocked; but in this case, I think it’s appropriate that you continue to deliberate.
“I stress your goal as jurors should be to reach a fair and impartial verdict. The verdict must be based solely on the evidence without regard to emotional considerations or the consequences of a verdict, regardless of how long it takes.
“Your duty is to carefully consider all 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 further deliberations, you should not hesitate to reexamine your own views or ask your fellow jurors to reexamine theirs.
“It should be possible to inquire of jurors in the numerical minority as to the reasons upon which their opinions are based. This should be done in a respectful and dignified manner. Likewise, jurors in the minority should be required to share their own views.
“You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest that other jurors change their views if you are convinced they are wrong. Fair and effective deliberations require a frank and forthright exchange of views.
“As I previously instructed, both the People and the defendant are entitled to the individual judgment of each juror. Each of you must decide the case for yourself, but your decision should be made only after full consideration of all of the evidence with your fellow jurors.
“It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges if you can do so without violence to your individual judgment.”
The trial court then suggested different approaches the jury could take in its deliberations if it felt it would help the process. Later that day, the jury returned a verdict of guilty on the charge of receiving stolen property, but remained deadlocked (now nine to three) on the vehicle theft charge.
Defendant objects to the following portion of the instruction: “It should be possible to inquire of jurors in the numerical minority as to the reasons upon which their opinions are based. This should be done in a respectful and dignified manner. Likewise, jurors in the minority should be required to share their own views.” Defendant contends this instruction “was coercive and improperly focused on the minority juror.”
We agree that this portion of the instruction was improper.
Initially, we address the People’s contention that defendant “acquiesced in the giving of this instruction and has thus forfeited the claim on appeal.” The record does not reflect that the trial court informed the parties in advance as to the instruction it intended to give the jurors after they announced they were deadlocked. “‘In the absence of a clear tactical purpose, the courts and commentators eschew a finding of the “invited error” that excuses a trial judge from rendering full and correct instructions on material questions of law.... [O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.’” (People v. Barraza (1979) 23 Cal.3d 675, 683.) We do not interpret defense counsel’s failure to comment after the instruction was given as acquiescence.
Furthermore, an appellate court “may... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259.) If, as defendant claims, the instruction given by the trial court placed undue pressure on the minority juror to accede to the views of the majority, defendant’s substantial rights may have been affected. Accordingly, we turn to the merits of defendant’s claim.
The California Supreme Court in People v. Gainer (1977) 19 Cal.3d 835, 852 (Gainer) disapproved of an instruction given to a deadlocked jury, in part, because it was directed at minority jurors, rejecting a contrary holding in Allen v. United States (1896) 164 U.S. 492, 494 [41 L.Ed. 528, 531]. The instruction in Gainer stated, in part: “[I]n conferring together, you ought to pay proper respect to each other’s opinions and listen with a disposition to be convinced to each other’s arguments. [¶] And, on the other hand, if much the larger of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent with himself or herself, and [who] have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath. [¶] And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.” (Gainer, supra, 19 Cal.3d at p. 841.)
The court also disapproved of language in the instruction informing the deadlocked jury that “‘the case must at some time be decided’” (Gainer, supra, 19 Cal.3d at pp. 851-852), although it referred to the portion of the instruction directed at the minority jurors as the “most questionable feature” of the instruction. (Id. at p. 845.)
Courts sometimes have referred to an instruction such as this as an Allen instruction.
Our Supreme Court held it was error to give this instruction because it “direct[ed] the jurors to include an extraneous factor in their deliberations, i.e., the position of the majority of jurors at the moment.” (Gainer, supra, 19 Cal.3d at p. 848.) The court noted: “The instruction does not escape this condemnation because it may be interpreted as requiring dissenters to merely ‘reexamine’ their views rather than to directly include majoritarian factors in the primary calculus of guilt. At best this reading strains the language of the charge. More significantly, minority jurors have no greater duty to ‘reexamine’ their views than do majority jurors. Finally, we should not hesitate to condemn an instruction which carries a strong implication that jurors should consider the preponderance of votes in forming their views simply because the charge subtly avoids an explicit statement of that proposition.” (Ibid., fn. 10.)
In addition to directing minority jurors to consider an irrelevant factor, the court in Gainer concluded the instruction was impermissible because it exerted “excessive pressure on the dissenting jurors to acquiesce in a verdict.” (Gainer, supra, 19 Cal.3d at p. 850.) As explained by the court: “The dissenters, struggling to maintain their position in a protracted debate in the jury room, are led into the courtroom and, before their peers, specifically requested by the judge to reconsider their position. No similar request is made of the majority. It matters little that the judge does not know the identity of the particular dissenters; their fellow jurors know, and the danger immediately arises that ‘the Allen charge can compound the inevitable pressure to agree felt by minority jurors.’” (Ibid., fn. omitted.) In a footnote the court commented: “Since recognition of the existence of a majority or minority faction on the jury is irrelevant to the issue of guilt, such reference is erroneous, even if contained in an arguably noncoercive, ‘balanced’ Allen charge which explicitly admonishes the majority as well as the minority to reconsider their views.” (Id. at p. 850, fn. 12.)
As the “attack on dissenters” inherent in this type of instruction “distorts the very process by which all the evidence is weighed,” the error is reversible per se. (Gainer, supra, 19 Cal.3d at p. 854.)
In People v. Moore (2002) 96 Cal.App.4th 1105, this court considered another instruction given to a jury that had announced it was deadlocked on one of the counts charged. In directing the jury to deliberate further, the trial court stated, in part: “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 [sic] your own views or to request your fellow jurors to re-examine [sic] theirs. You should not hesitate to change a 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.” (Id. at p. 1118.) Concluding the instruction was proper, we noted: “Nothing in the trial court’s charge was designed to coerce the jury into returning a verdict” and there were no “constraints placed on any individual juror’s responsibility to weigh and consider all the evidence presented at trial.” (Id. at p. 1121.)
In the present matter, the instruction given by the trial court after the jury reported it was deadlocked at 11 to one on both counts was very similar to the one considered by this court in Moore with one important exception: The court here told the jury that “[i]t should be possible to inquire of jurors in the numerical minority as to the reasons upon which their opinions are based” and that “jurors in the minority should be required to share their own views.” This portion of the instruction focused on the minority juror, stating, in essence, that this juror should be required to defend his or her position to the other jurors. Gainer cautioned that any reference to a minority and majority on the jury invokes an irrelevant factor for jury deliberation and is error. Here, the trial court went much further. By singling out the minority juror, the instruction suggested that juror had a “greater duty to ‘reexamine’ [his or her] views than [did] majority jurors.” (Gainer, supra, 19 Cal.3d at p. 848, fn. 10.)
In addition, an instruction telling the jury that the minority jurors should be required to explain their views is coercive, in that it improperly places pressure on those jurors to acquiesce to a verdict. As the California Supreme Court noted when considering the propriety of instructing on reporting misconduct by a fellow juror: “It is not always easy for a juror to articulate the exact basis for disagreement after a complicated trial, nor is it necessary that a juror do so.” (People v. Engelman (2002) 28 Cal.4th 436, 446.)
The People maintain the instruction was not coercive because there was no suggestion that the minority juror should abandon his or her focus on the evidence but, instead, urged the juror to discuss his or her views of the evidence and listen to the views of the other jurors. It is true that, unlike the improper instructions given in Allen and Gainer, the trial court, here, did not state that the minority juror should consider whether his or her views are reasonable in light of the fact that a majority of jurors have rejected them. However, there can be little doubt that, by singling out this juror, the trial court exerted “excessive pressure on [him or her] to acquiesce in a verdict.” (Gainer, supra, 19 Cal.3d at p. 850.) This was error.
DISPOSITION
The judgment is reversed.
We concur: HULL, Acting P. J., ROBIE, J.