Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA347148, Monica Bachner, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Noel Ambrosio was convicted, following a jury trial, of one count of resisting, obstructing or delaying a peace officer in violation of Penal Code section 148, subdivision (a), a lesser included offense of the charged offense of battery on a peace officer. The trial court ordered appellant to serve 365 days in county jail and to pay restitution. Appellant was granted 365 days of presentence custody credit.
Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury to continue deliberating. Appellant also requests that we review the sealed transcript of the Pitchess motion. We affirm the judgment of conviction.
Facts
On September 18, 2008, about 11:45 a.m., appellant was in the classification section of the inmate reception center of the Los Angeles County Jail. Los Angeles County Sheriff's Department Deputies Andreas Chamorro and Christopher Barrios were on duty. Appellant became agitated. Deputy Chamorro told appellant to quiet down, go into a cell and sit down. Appellant quieted down and entered the cell but did not sit down.
Deputy Chamorro called his supervisor, Deputy Robert Turner. When Deputy Turner arrived, Deputies Chamorro and Barrios told him that they wanted to place appellant in an isolation cell. Deputy Chamorro handcuffed appellant. When the deputy attempted to escort appellant to the isolation cell, appellant resisted by pushing back with his body. Appellant began yelling and using profanity.
The deputies took appellant to the isolation cell. Deputy Chamorro told appellant to face the wall and kneel. Appellant faced the wall, then turned back to face Deputy Chamorro. Deputy Chamorro again told appellant to face the wall and kneel. Appellant did not comply. Deputy Chamorro pushed appellant's shoulder to turn him to the wall and tried to push down on appellant's arms so that he would be on his knees. Appellant resisted.
Deputy Barrios came to assist Deputy Chamorro. Appellant struggled with both deputies. Appellant twisted his body and kicked Deputy Chamorro three times. According to the deputies, appellant bit Deputy Barrios on his right knee as the deputies attempted to handcuff appellant to a bench. Deputy Barrios denied kneeing appellant in the mouth. Deputy Chamorro elbowed appellant in the back twice. The deputies finally brought appellant to the floor, handcuffed him to the bench and locked the cell door.
Deputy Barrios went to the clinic, where he was treated for two puncture wounds to his right knee. He also received shots and a HIV test. Deputy Barrios also suffered a broken tooth.
At trial, appellant offered the testimony of dental forensic expert Charles Bowers. Dr. Bowers opined that the injury Deputy Barrios suffered was not consistent with an intentional bite.
Appellant also testified on his own behalf that he sustained a toe injury when he was in the first cell. When the deputies came to move him to the isolation cell, he tried to tell them that he was injured and had difficulty walking, but they ignored him. Deputies Barrios and Chamorro dragged him to the isolation cell.
In the isolation cell, the deputies ordered him to kneel down. He immediately complied. While he was kneeling, he smelled an odor that made his eyes water. He also felt pressure on his legs and felt his handcuffs being tightened. He then felt a knee on the back of his neck which pinned his neck to the metal bench. His eyes were on fire and he was gasping for air. At that point, he did not have any awareness of what was going on. He cried out for help. He then felt a blow to his mouth and saw his tooth on the ground. At this point he was handcuffed to the metal bench. He cried out for help, but the deputies left the cell.
Appellant denied kicking the deputies or resisting them in any way. He denied biting Deputy Barrios. He also denied cursing, but he did complain about his injured toe.
Procedural facts
At 11:51 a.m. on July 28, the jury began deliberating in this matter. At 3:05 p.m. the same day, the jury requested the readback of several areas of testimony. The readback could not be completed that same day. It was completed at 10:47 a.m. On July 29. The jury resumed deliberating at 11:01 a.m. About 1:35 p.m., the jury sent a note stating that they had reached a verdict.
The court reviewed the jury's verdict forms. The jury found appellant not guilty of the charged offense of battery with injury on a peace officer and the lesser included offense of simple battery on a peace officer. The jury had left blank the form for the "second" lesser included offense of resisting, obstructing or delaying a peace officer. The court noted that it could not tell why the verdict form had been left blank, suggesting that "[m]aybe it was inadvertent." At 1:57 p.m., the court sent the jury back to the jury room, instructing them: "The forms are not completed. I need the jury to consider - - fill out or somehow tell the court that you're not able to fill out the form on the last portion, the last lesser."
At 2:09 p.m., the jury sent the court a note asking "Instructions from the court how to proceed in the instance that we are unable to reach a unanimous decision on the third count. We understand from the written instructions that if we are undecided on a specific count that the forms for that specific count are to remain blank." The court remarked: "Upon second reading of the note, they are asking what should we do if we can't reach a unanimous verdict on the, quote/unquote, third count. The answer is they need to inform me in writing. [¶] And if they do, then we'll go from there. They're not actually telling me that in this note. They're saying what should we do. So the court is going to write back to the jury: If you are unable to reach a unanimous verdict on a lesser crime – I think that's what they're asking in count 3 – on the lesser crime, inform me in writing." The court sent its written response to the jury about 3:09 p.m.
At 3:24 p.m., the jury "buzzed" the court that it had a verdict. However, when the court took the forms from the jury, they contained a note saying that the jurors were unable to reach a verdict, a unanimous verdict as to the crime of resisting, obstructing or delaying a police officer.
The court indicated to counsel that it intended to send the jury back to keep deliberating. Appellant's counsel requested the court to ask the jury if more deliberations would allow them to reach a verdict. The court replied, "I normally don't do that the first time they sent a note." After further discussion with counsel, the court told the jury, "Ladies and gentlemen, I understand you have not yet reached a verdict on the lesser of guilty or not guilty. That's how it sits right now. You haven't reached that verdict. I'm going to send it back, send you back to deliberate some more. Okay. And I'm going to send the other forms back with you."
Ten minutes after being sent back to deliberate, the jury returned a verdict of guilty on the lesser included offense of resisting.
Discussion
1. Instruction to continue deliberating
Appellant claims that the jury conveyed to the trial court three times that it was deadlocked. He contends that the trial court's direction to the jury to continue deliberating combined with the court's failure to conduct any inquiry of the jury had a coercive impact on the jury because it left them with no alternative but to reach a verdict. Appellant further contends that the trial court's error deprived him of his federal constitutional rights to trial by jury, a fair trial and due process. We see no error and no violation of appellant's constitutional rights.
The question of whether to order further deliberations or declare a hung jury rests within the sound discretion of the trial court. (People v. Bell (2007) 40 Cal.4th 582, 616.) A trial court may instruct the jury to continue deliberating if the court reasonably concludes that such instruction "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.'"" (Ibid.) "Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case. [Citations.]" (People v. Pride (1992) 3 Cal.4th 195, 265.)
We see nothing coercive about the court's instruction to the jury to continue deliberating. As we explain in more detail below, this instruction was given after the jury first expressly informed the court that it could not reach a verdict. The court did not state or imply that the jury was required to reach a verdict or that any juror should compromise his or her beliefs. The court simply told them to continue deliberating.
The jury's total deliberation time was not extensive at that point. Although deliberations spanned two days, the total time spent actually deliberating was about three and a half hours. Only about half that time occurred after the jury requested an extensive readback. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1118, 1122 [jury deliberated for parts of two days; relatively brief duration of deliberations before deadlock announcement supported court's decision to order further deliberations].)
The jury began deliberating at 11:51 a.m. on July 28. At 3:05 p.m. they asked for a readback of testimony. Readback not completed that day. Thus, with lunch, the jury deliberated about two hours on July 28. Readback continued on July 29. The jury resumed deliberating at 11:01 a.m. They reached a verdict on the charged offense and the lesser offense of simple battery about 1:35 p.m. With lunch, they deliberated about 90 minutes. The jurors were sent back to the jury room at 1:57 p.m., and the remainder of their time until 3:24 p.m. seems to have been spent determining how to inform the court that they could not agree on a verdict.
The jury reached a verdict on the resisting count about 10 minutes after being sent back to deliberate. "The fact that the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion." (People v. Moore, supra, 96 Cal.App.4th at p. 1122.)
We do not agree with appellant the jury conveyed that they were deadlocked on three separate occasions and that the court responded by telling the jury to continue deliberating. We see one express statement by the jury that they could not agree on a verdict and one occasion when the court told the jury to continue deliberating.
The first instance identified by appellant was about 1:35 p.m. on July 29, when the jury told the court that it had reached a verdict. The court reviewed the verdict forms, discovered that the verdict form for the resisting charge had not been filled out, and told the jury to return to the jury room to either complete the form or tell the court that it could not complete the form. The court denied the jury foreman's request to address the court verbally. The blank verdict form was not a clear indication that the jury was deadlocked. As the trial court remarked at the time, the jury's failure to fill out the form could have been inadvertent. Even assuming that the blank form was an indication that the jury was deadlocked, nothing about the court's instruction told them to keep deliberating. If anything, the court's instruction assumed that the jury had concluded deliberations, and needed only to communicate the result of the deliberations properly.
The second instance identified by appellant came at 2:09 p.m., about 10 minutes after the jury returned to the jury room, when the jury sent a note asking what to do if they were unable to agree on a verdict. This is certainly an indication that the jury was deadlocked. About an hour later, at 3:09 p.m., after conferring with counsel, the court sent a note back to the jury telling them to inform the court in writing of such an event. Nothing about the court's instruction told the jury to continue deliberating.
The third instance identified by appellant came at 3:24 p.m., when the jury told the court that it had reached a verdict. In fact, jurors resubmitted their verdicts on the two battery offenses and the blank form for the resisting offense and had added a note that they could not reach a verdict on the resisting charge. At 3:30 p.m., the court instructed the jury to continue deliberating. This is the only instance of the court instructing the jury to continue deliberating.
Appellant also contends that the trial court had a duty to ask the jury if further deliberations would be useful before instructing them to continue deliberating. He relies on People v. Rojas (1975) 15 Cal.3d 540, People v. Rodriguez (1986) 42 Cal.3d 730 and People v. Proctor (1992) 4 Cal.4th 499 to support his contention. We see no such requirement in the cases cited.
In Rojas, the defendant complained that the court improperly discharged the jury without individually polling each juror to establish that there was no reasonable probability that a verdict could be reached. The Supreme Court agreed that an inquiry was needed, but found the group inquiry made by the trial court to be adequate. (People v. Rojas, supra, 15 Cal.3d at p. 546.) We see nothing in this ruling which requires a trial court to make an inquiry when it decides not to discharge the jury but to order further deliberations. As the Supreme Court later made clear in Rodriguez, "[t]hough some such questioning may be required to establish legal necessity for discharging the jury (Rojas, supra, 15 Cal.3d at p. 546; Paulson v. Superior Court (1962) 58 Cal.2d 1, 7-8 [22 Cal.Rptr. 649, 372 P.2d 641]), it is not a prerequisite to denial of a motion for mistrial" on the ground that the jury is deadlocked. (People v. Rodriguez, supra, 42 Cal.3d at pp. 776-777.)
In Proctor, as in Rodriguez, the defendant claimed that the trial court should not have inquired into the numerical division of the jury in response to a jury report of deadlock. In Proctor, as in Rodriguez, the trial court ordered further deliberations after its inquiries. The Supreme Court in Proctor held that such an inquiry was permissible. (People v. Proctor, supra, 4 Cal.4th at p. 539; see People v. Rodriguez, supra, 42 Cal.3d at pp. 776-777.) We see nothing in this holding which mandates any inquiry, or calls into question the Court's earlier statement in Rodriguez that inquiries are not required before a court can order further deliberations.
Thus, nothing in the cases cited by appellant changes the general rule that an instruction to continue deliberating need only be based on the court's "reasonable conclusion that such direction would be perceived "'as a means of enabling the jurors to enhance their understanding of the case....'"" (People v. Bell, supra, 40 Cal.4th at p. 616.) Section 1140 does not require the court to question the jury about an impasse before instructing the jury to continue deliberations. (People v. Moore, supra, 96 Cal.App.4th at p. 1122.)
Here, the jury had deliberated for a relatively brief time after the readback of testimony, and that would support a reasonable conclusion that further deliberations would be useful. (See People v. Moore, supra, 96 Cal.App.4th at p. 1122 [relatively short deliberations spanning parts of two days supported court's conclusion that further deliberations could be beneficial].) Further, the court stated that it "normally let [the jury] deliberate some more" after receiving a note that the jury could not reach agreement. Thus, the court's overall experience may reasonably have caused it to conclude that further deliberations would be useful.
2. Pitchess motion
Appellant requests that this Court conduct an independent review of the in camera proceedings done by the trial court in response to appellant's Pitchess motion for discovery of peace officer personnel records of Deputy Chamorro and Deputy Barrios. The court found that there were no discoverable complaints.
When requested to do so by an appellant, an appellate court can and should independently review the transcript of the trial court's in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
We have reviewed the transcript of the in camera proceedings and see no error in the trial court's rulings concerning disclosure.
Disposition
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.