Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County Super. Ct. No. NA079765, Joseph E. DiLoreto, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant Joann Ochart was charged by information with one count of vandalism (Pen. Code, § 594, subd. (a)) for damaging her neighbor’s car. The matter was tried by a jury, and on the second day of deliberations, the jury reported that it was deadlocked. The trial judge recommended that each side play “devil’s advocate” and try to view things from the opposite perspective to reach a verdict. The judge also advised the jury that if it failed to reach a verdict, the matter would be retried with a new panel. Later, the jury reached a guilty verdict. This timely appeal followed. On appeal, defendant contends that the jury’s verdict was coerced by the judge’s comments and that the error is reversible per se. We disagree, and therefore affirm the judgment.
FACTS
Defendant lived in San Pedro, California, on a cul-de-sac with limited parking. On September 14, 2008, a dispute arose between defendant and her neighbor, Linda Garcia, when Garcia parked in front of defendant’s home. Garcia testified that when she parked her car on the street in front of defendant’s house, defendant yelled at her from her balcony, and told her she could not park there because it was her daughter’s parking space. The two quarreled, and defendant said she was going to call the police. Garcia replied, “Okay, let’s do that.”
Garcia took grocery bags from the trunk of her car and closed the trunk. Defendant said, “You mean you’re not going to move?” “I can’t believe you’re not going to move.” Garcia did not answer because defendant was agitated and yelling, and Garcia did not want to argue with defendant. Defendant followed Garcia back to Garcia’s apartment complex, banged on the landlord’s door, and then confronted Garcia and her son at Garcia’s apartment. Garcia testified that defendant told her, “You people don’t know what you’re dealing with”; “I’m a longshoreman, and my family is and we take care of our own”; and “We will take care of you.” Garcia told defendant that she was feeling harassed, and defendant responded, “I’ll show you harassment.”
While defendant was at her landlord’s apartment, Garcia called the police to make a complaint and to confirm that she was legally parked. The police told her that she was parked properly and said they would send someone out to talk to defendant. After defendant left Garcia’s apartment, Garcia became fearful that defendant might do something to her car, so she grabbed her car keys and went back out to the street. Garcia saw defendant “in a tirade, ” yelling “that [f]---ing b----, she’s not going to park here, ” and other angry, incoherent words as she walked from the passenger side all the way around Garcia’s car with a pen in her left hand scratching the sides of the car. Garcia did not call the police again at that time, believing that they would arrive shortly. The police never showed up, and Garcia went to the station and made a report the next day.
Neighbor Gabriel Rosello testified that on the day of the incident, he heard defendant “yelling in an aggressive manner” at Garcia that she “can’t park there, ” and “That’s my daughter’s spot.” He heard defendant screaming and using profanity. Although he could not see Garcia’s car from his window, after the altercation, he saw defendant walk back towards her home, heard noises, and heard defendant’s husband exclaim, “What are you doing? You’re crazy. Come inside the house.” Rosello did not know Garcia prior to the incident. However, there was “bad blood” between Rosello and defendant’s family. In approximately 2006, someone had slashed Rosello’s tires while his car was parked in front of defendant’s home. He believed that defendant’s son was the culprit, because the day after the incident, defendant said, “I’m sorry about what happened to your car, ” in a sarcastic tone.
Defendant testified to a different set of events. Defendant testified that Garcia was the aggressor, yelling profanities after defendant nicely asked her to pull her car forward so that another vehicle would have room to park on the street. Defendant admitted that because of the scarcity of parking, she was very protective of the parking in front of her house. Defendant saw Garcia walk toward an apartment building across the street. Defendant knew the landlord there, Mr. Clark, and went to inquire about Garcia. She took her seven-year-old grandson, Ryan, with her. While speaking with a woman who answered Mr. Clark’s door, defendant heard profanities about longshoremen coming from an apartment above. She knocked on the door of that apartment, and Garcia answered. Defendant said to Garcia: “[F]irst, I want to apologize for the way you feel about longshoremen. And second [of] all, I wanted to know is why can’t you pull your car up a little bit so it would make room for a second car.” Garcia started yelling profanities and threatened to call the police because defendant was harassing her. A man sitting on Garcia’s couch called defendant a “senile old bitch.” With that, defendant left. Defendant testified she did not touch or damage Garcia’s car.
Defendant also testified that she was out of town when Rosello’s tires were slashed. Defendant’s husband, Ramon, similarly testified that they were not in town when Rosello’s tires were slashed.
Ramon testified that, on the day Garcia’s car was scratched, he heard defendant on the balcony of their home, “telling someone not to park and to leave some room for my daughter.” He did not hear defendant use any “swear or cuss words.”
Defendant’s young grandson, Ryan, testified that he was present during the altercation between defendant and Garcia. He testified that defendant would become “very upset” when someone parked in her spot. When Garcia parked in front of defendant’s home, defendant “asked the lady if she could please pull her car up.” Garcia started saying “f--- you, b----, ” and defendant responded that “[m]y daughter has to park there.” Ryan’s grandfather, Ramon, told defendant, “Don’t start any trouble.” Defendant and Ryan went to Garcia’s apartment building to speak to Clark, the manager. They did not follow Garcia, and defendant did not yell anything. When they were at Clark’s, Ryan heard a woman say “[f]------ longshoremen[].” Ryan stayed downstairs while defendant went upstairs to speak with Garcia. He heard Garcia speaking rudely and “cussing my grandma out.” His grandmother did not yell or cuss. Ryan and defendant then went back home. Defendant did not touch Garcia’s car.
The trial took four days, with testimony from the above witnesses, as well as Garcia’s insurance adjuster and various police officers. Jury deliberations commenced on September 17, 2009, at 2:50 p.m.; and at 10:15 a.m. on September 18, 2009, the jury announced that it was deadlocked nine to three. The judge then instructed the jury as follows: “Okay, nine to three. So here’s what I’m going to ask you to do, I’m going to ask you to go back in the jury room. And those people who are on the three side, I’m going to ask you to take the position that you are on the other side. And those who are on the nine side, I want you to take the position and argue everything on the other side. So maybe as a result of that, a light may go off in your head and you may think differently about the evidence, etc. [¶] Do you understand what I’m trying to ask you to do? Basically play a devil’s advocate, one for the other side. And I think you can do that. [¶] The problem with, you know, a hung jury is that, you know, we got to start over, so we bring a new jury in, new panel and we start all over again. But in any event, I’m not trying to dissuade you from your honest belief. But to the extent you may be able to discuss this case with a different perspective, I’m going to ask you to do that.”
Defense counsel objected and moved for a mistrial. Defense counsel stated he did not object to the court telling the jury to play devil’s advocate in their continued deliberations, but that the references to “new jurors, new panel, all over again, ” were erroneous. The trial court denied the motion. The prosecutor requested that the jury be admonished “not to consider the fact that there would be a new trial if there’s a hung jury.” The court denied the request. At about 12:10 p.m. on September 18, 2009, the jury announced that it had reached a verdict. Before the verdict forms were handed to the bailiff, the court asked if the jury had felt coerced by the court’s instruction. The jury collectively responded “no, ” and individually responded “no” when they were polled. They returned a guilty verdict. Defendant was sentenced to three years’ probation.
On appeal, defendant does not take issue with the first portion of the instruction, encouraging the jurors on each side of the verdict to consider the other side. That portion of the instruction did not encourage or coerce the minority to rethink their position in light of the majority’s views; rather, the court asked all jurors to reexamine their views from the perspective of the other jurors. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1120; People v. Whaley (2007) 152 Cal.App.4th 968, 982-983.) Defendant contends that the court’s statement that the problem with a hung jury was the parties would have to start all over again with a new jury was reversible per se under People v. Gainer (1977) 19 Cal.3d 835 (Gainer). We disagree.
DISCUSSION
In Allen v. United States (1896) 164 U.S. 492 (Allen), the United States Supreme Court sanctioned the use of an instruction which later became known as an “Allen charge.” An Allen charge is an instruction given to a deadlocked jury, which urges the minority to consider the views of the majority and to ask themselves whether their own views are reasonable under the circumstances. (Id. at pp. 501-502.) The Allen court found that “[w]hile... the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” (Id. at p. 501.) Therefore, the court concluded that such an instruction was permissible.
The Allen charge has been squarely rejected by the California Supreme Court. (Gainer, supra, 19 Cal.3d at p. 851 [rejecting federal view, and finding to the contrary that Allen charge, by encouraging minority jurors to consider majority’s views, tends to coerce subjugation of minority to majority opinion]; see also People v. Rodriguez (1986) 42 Cal.3d 730, 767.) In Gainer, our Supreme Court concluded: “[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.” (Gainer, at p. 852.) An error of the first type is reversible per se, whereas “a per se rule of reversal is not required when only this [second] erroneous statement is included in otherwise correct instructions, even if given to a deadlocked jury.” (Id. at p. 855.)
An erroneous instruction to the effect that “the case must at some time be decided” is reviewed on appeal under the Watson test for prejudice, to determine whether, under all the circumstances, “it was reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.” (Gainer, supra, 19 Cal.3dat p. 855 [citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) There is a strong presumption of prejudice if the mention of a retrial is a central feature of a trial court’s instruction to a deadlocked jury. (Gainer, at p. 856, fn. 20.) However, if the mention of a retrial is not the central feature of the instruction, the normal Watson test for prejudice applies. (Gainer, at p. 855.)
In this case, the error complained of is of the type the Supreme Court in People v. Barraza (1979) 23 Cal.3d 675, 680 described as a “mini-Allen” instruction. Defendant concedes that the erroneous instruction was not a “full Allen charge -- including the more highly prejudicial portion consisting of a direct admonition to minority jurors.” (Barraza, at p. 682.) The trial court’s instruction did not state or imply that the minority jurors should rethink their position in light of the majority’s views, but rather asked the jurors on both sides to reconsider their positions. (See People v. Moore, supra, 96 Cal.App.4th at p. 1119 [No Allen error where court instructed: “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 and vice versa. This might enable you to better understand the other’s positions”]; People v. Whaley, supra, 152 Cal.App.4th at pp. 982-983 [No Allen error with an 11 to one split, where court instructed, “You may wish to experiment with reverse role-playing by having those on one side of the issue present and argue the other side’s positions and vice versa. This might enable you to better understand the other’s positions”].)
At trial, defense counsel addressed the instruction as follows: “Your Honor, up until the time -- everything the court said until the time the court said [that] we’re probably going to have to start all over again, get a new jury, all of that, I don’t think either counsel had any disagreement with the court’s suggestion going back in, playing devil’s advocate.” And, appellant states in her opening brief that a mini-Allen error occurred.
Despite acknowledging the trial court did not give a “full Allen charge, ” defendant argues the instructional error is reversible per se. However, a mini-Allen error is not per se reversible, and is subject to a harmless error analysis. (Gainer, supra, 19 Cal.3d at p. 855.) In Barraza, our Supreme Court examined the legal consequence of a mini-Allen charge to a deadlocked jury. The Court found the instruction given in Barraza was both clearly erroneous and prejudicial. Recognizing that mini-Allen error is not reversible per se, the Barraza Court examined all the circumstances under which the instruction was given, including that it was “the central feature of instructions given to a deadlocked jury and thus involves the heightened potential for prejudice we recognized in Gainer. Indeed, the judge himself voiced the expectation that the ‘blockbuster-type instruction’ would ‘get them off the dime.’ ” (Barraza, supra, 23 Cal.3d at p. 684.)
In Barraza, the trial court instructed as follows: “All right, ladies and gentlemen of the jury, I am going to give you an additional instruction. This is not to be taken by you as any more or less important than any other instruction. Just regard it along with the rest. [¶] It is eminently desirable that if you reasonably can, you agree upon a verdict. For the parties involved, the case is an important one, and its presentation to you has involved expense to both sides. If you fail to agree upon a verdict, the case will have to be tried before another jury selected in the same manner and from the same source as you were chosen. There is no reason to believe that the case will ever be submitted to a jury more competent to decide it. [¶] Of course, by pointing out to you the desirability of your reaching a verdict, the court is not suggesting to any of you that you surrender conscientious convictions of what the truth is and of the weight and effect of all the evidence. It does, however, wish to call to your attention that in most cases absolute certainty cannot be expected and that, while each of you must decide the case for yourself and not merely acquiesce in the conclusion of your fellow jurors, you should examine the questions submitted to you with candor and frankness, and with proper deference to and regard for the opinions of each other. It is your duty, after full deliberation and consideration of all of the evidence, to agree upon a verdict, if you can do so without violating your individual judgment and your conscience. [¶] You may be as leisurely as good conscience dictates in further deliberation. [¶] I now ask that you go back and retire for further deliberation at this time.” (Barraza, supra, 23 Cal.3d at pp. 681-682.)
The Barraza Court reasoned it must find the instruction prejudicial unless there were “affirmative indications that persuade us this heightened potential was not realized.” (Barraza, supra, 23 Cal.3d at p. 684 .) The instruction at issue in Barraza emphasized that the case was important, that if the jury did not reach a verdict, the case would have to be retried to another jury, and there would be resulting expense and inconvenience. The court concluded the instruction was the central feature of the court’s deadlock instructions, and the improper reference to the expense of a retrial “augment[ed] the substantial, if subtle, pressure created by the improper instructions concerning the need for retrial.” The Barraza Court found “the erroneous instructions given herein were prejudicial under the standards set forth in Gainer.” (Barraza, at pp. 684-685.)
Here, the trial court’s mini-Allen instruction that “the problem” with a hung jury is that “we [have] to start over, so we bring a new jury in, new panel and we start all over again, ” was clearly erroneous under Gainer. Accordingly, Gainer instructs that we must review the instruction for Watson error and “make[] a further examination of all the circumstances under which the charge was given to determine whether it was reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.” (Gainer, supra, 19 Cal.3d at p. 855.)
Defendant has made no argument on appeal that the trial court’s improper reference to a retrial, when considered in the context of all the circumstances of the trial, supports the conclusion that it is reasonably probable a result more favorable to defendant would have been reached had the trial court made no such reference. Defendant relies entirely on the wrong legal standard, that the trial court’s reference to a retrial is per se reversible error. Appellant does not contend that the trial court’s instructional error was prejudicial under the standards set forth in Watson and Gainer.
“An appellant bears the burden of perfecting the appeal and showing error and resulting prejudice.” (People v. Coley (1997) 52 Cal.App.4th 964, 972.) “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citation.]” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) “It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Defendant has not met her burden of demonstrating prejudicial error, and in the absence of any argument supported by reasoned analysis, we find no reason to conclude that defendant was prejudiced by the instructional error.
We have reviewed the record on our own for prejudice, and we find none. The trial court said nothing about the cost or inconvenience of a retrial. The trial court’s impermissible reference to a retrial was not the central feature of the court’s supplemental instructions to the jury, but rather more like a parenthetical comment, which must be viewed in the context of a much larger message highlighting the jurors’ obligation to deliberate and use their independent judgment.
The jury had only deliberated a matter of two to three hours before reaching an initial “deadlock, ” and they continued to deliberate an almost equal length of time after the erroneous instruction was given. The Barraza Court found the fact that the jury continued to deliberate for two or three hours after it heard the mini-Allen instruction was an “affirmative indication[]” that the risk of prejudice was not realized. (Barraza, supra, 23 Cal.3d at pp. 684-685.) Although we are not inclined to give much weight to the jury’s disclaimer, after reaching a verdict, that they did not feel coerced by the court’s instruction, nonetheless, we find no reason to conclude the instruction “exerted a significant influence on the outcome of the deliberative process.” (Cf. id. atp. 685.)
When it appears that the erroneous instruction significantly influenced the jury, the court’s perception of the weight of the evidence before the impasse becomes less relevant in assessing prejudice. (Gainer, supra, 19 Cal.3d at pp. 855-856.) But defendant offers no argument based on which we might conclude the court’s erroneous but brief reference to a retrial significantly influenced the jury, and we do not assume that it did. Further, there was ample evidence in support of the verdict. Although the trial consisted of dueling characterizations of what happened, defendant’s version of the events was not supported by the weight of the reliable evidence.
Garcia’s testimony was corroborated by the neighbor Rosello, who heard defendant yell at Garcia, “You can’t park there. That’s my daughter’s parking spot. She’s coming home and she’s going to park there.” Rosello testified he heard Garcia reply there was plenty of space on the street for defendant’s daughter to park, and he heard defendant say, after Garcia walked away from her car with her arms full of stuff, “Oh, no, she didn’t. That b---- is not parking in front of my house.” Rosello heard the door of defendant’s home slam and watched her pass in front of his building after Garcia. Rosello also corroborated Garcia’s testimony that defendant called Garcia a “f------ b----.” After he saw defendant walk back past his place, he heard defendant’s husband come out and tell defendant, “What are you doing? You’re crazy. Come inside the house.” Rosello’s testimony provided strong circumstantial evidence that it was defendant who scratched Garcia’s car. Rosello admitted there was “bad blood” between his family and defendant’s family after his tires were slashed a year or two before Garcia’s car was vandalized. But, he also testified defendant was out of town with her husband when his tires were slashed, and it was her son, not defendant, whom he suspected of having slashed the tires.
Defendant’s husband, Ramon, testified that he heard his wife tell someone they could not park in front of the house, thus further impeaching defendant’s testimony that she simply asked Garcia to pull her car forward. Also, defendant’s grandson Ryan’s testimony revealed that Ramon was concerned about defendant “start[ing]... trouble, ” and corroborated Garcia’s testimony that defendant would become “very upset” when someone parked in front of her house. In our view of the record, it was not reasonably probable defendant would have received a more favorable result in absence of the instructional error.
DISPOSITION
The judgment is affirmed.
I CONCUR: BIGELOW, P. J.
DISSENTING OPINION
RUBIN, J.
I respectfully dissent.
People v. Hinton (2004) 121 Cal.App.4th 655 (Hinton) is one of the few recent court of appeal cases to address Allen errors, whether the mini-Allen type or the so called “dynamite” version. Hinton itself explains why this is so: “The judge’s error here is particularly troubling considering the law is so well settled.” (Hinton, at p. 660.) The two leading Supreme Court cases on which both parties rely, People v. Gainer (1977) 19 Cal.3d 835 (Gainer), and People v. Barraza (1979) 23 Cal.3d 675 (Barraza), are 34 and 32 years old respectively. Each reversed a criminal conviction following a trial in which the court gave an Allen instruction. In summarizing its analysis, the Gainer court stated bluntly: “To borrow the words uttered for a defendant who has long since lost his appeal, in criminal trials an Allen-type instruction ‘should never again be read in a California courtroom.’ [Citation.]” (Gainer, at pp. 856-857.)
Allen v. United States (1896) 164 U.S. 492 (Allen).
Nevertheless the trial court gave the following instruction after the jury announced it was deadlocked:
“The problem with, you know, a hung jury is that, you know, we got to start over, so we bring a new jury in, a new panel, and we start all over again.”
Even the prosecutor later asked the court to admonish the jury in an effort to avoid a reversal of what she hoped would be a well-earned conviction:
“Yes, Your Honor, thank you. I just want to put on the record our discussion that we had earlier this morning that the People recommended to the court that the court reconsider its position in not having the jury come back out and admonishing them not to consider the fact there would be a new trial if there is a hung jury, etc. and I just want to put that – I did make that recommendation.”
Our majority opinion acknowledges the error and correctly observes that this type of mini-Allen charge does not require reversal per se. (Gainer, supra, 19 Cal.3d at p. 852.) We also point out that defendant appears to have cast her lot squarely on structural error and does not elaborate in any detail how the error was prejudicial. Nevertheless, both parties on appeal discuss the standard of prejudice, and I would reach the issue.
Respondent’s Brief at page 12 states: “Thus, the record here affirmatively shows that the trial court’s statement regarding possible retrial did not actually result in prejudice.”
Typically, our analysis of harmless instructional error in a criminal case involves a consideration of either the other instructions given (People v. Holt (1997) 15 Cal.4th 619, 677 [“instructions are not considered in isolation, ” but rather in light of the entire charge to the jury]); or the weight of the evidence of guilt (People v. Delgado (2010) 181 Cal.App.4th 839, 854). Our task is not so easy in the context of the present appeal. First, there are no other instructions that bear directly on the issue of a retrial caused by a hung jury. Secondly, we are asked to speculate about the impact the instruction had not on the understanding the jury may have had about the law or the facts but on the very process in which it was engaged. How does one measure the effect on a jury of a disapproving admonition that it would be wasteful for the jury not to reach a verdict? Does it not naturally tend to force especially the minority jurors to reassess their position in light of both the majority views and the court’s suggestion that their steadfastness is squandering precious public resources? In that context is prejudice measured by the strength of the case against defendant? In Gainer, the Supreme Court commenced its analysis of harmless error by expressing the elusive nature of measuring Allen-error prejudice: “As observed above, the ability of courts to gauge the precise effect on a jury of Allen-type instructions is limited, both by the traditional secrecy of jury deliberations and by the inherent difficulties of estimating the impact of only one factor injected into the subjective processes of each juror.” (Gainer, supra, 19 Cal.3d at p. 854.) The Hinton court said flatly that a consideration of the strength of the prosecution case alone is insufficient. “Our own view of the weight of the evidence is not dispositive in these circumstances, because the jury actually reached an initial deadlock or impasse.” (Hinton, supra, 121 Cal.App.4th at p. 640.)
The danger of even the mini-Allen instruction – the version at issue here – has led the Supreme Court in both Gainer and Barraza to create what might be called a quasi-structural test for error at least when the mini-Allen charge is the central feature of the additional instructions given: prejudice must be shown, but prejudice is presumed. (See Gainer, supra, 19 Cal.3d at p. 856, fn. 20; Barraza, supra, 23 Cal.3d at p. 685.) In Barraza, respondent had argued that the prejudice had been overcome because the jury deliberated another two to three hours after the instruction before reaching its verdict and asked additional questions about the evidence. The Supreme Court found neither factor sufficient “to dispel the presumption of prejudice created when a deadlocked jury is given the erroneous instruction at issue.” (Barraza, at p. 685.) In the present case, the jury also deliberated another two to three hours but, unlike Barraza, the record does not suggest the jury asked for additional read back.
In Barraza the Allen instruction was as follows: “ ‘It is eminently desirable that if you reasonably can, you agree upon a verdict. For the parties involved, the case is an important one, and its presentation to you has involved expense to both sides. If you fail to agree upon a verdict, the case will have to be tried before another jury selected in the same manner and from the same source as you were chosen. There is no reason to believe that the case will ever be submitted to a jury more competent to decide it.’ ” (Id. at pp. 681-682.)
Even if the Allen error was not the central feature of the additional instructions and even if we were to assess error under traditional People v. Watson (1956) 46 Cal.2d 818, 836 standards, and even if we were to consider primarily the evidence adduced by the opposing parties, I conclude the error was not harmless. The evidence was fairly balanced. We are not confronted with a case founded on confession or DNA evidence that eliminates any speculation on how harmless an error might have been. We have essentially a “she said, she said” case. While there was circumstantial evidence that tended to corroborate victim Garcia’s testimony that defendant had keyed Garcia’s car, defendant and her grandson denied the accusation. Certainly, disrespectful words were said by many. Under these circumstances, I cannot say that the trial court’s warning about wasting judicial resources coming on the heels of its statement to the minority (and majority) jurors to rethink their positions, dispelled the prejudice created when a deadlocked jury is given the erroneous Allen instruction at issue.
I would reverse the judgment and allow for retrial.
The majority appears to conclude that defendant has waived the prejudice argument but then goes on to discuss the point.