People v. Carter

• Citation: 68 Cal.2d 810,442 P.2d 353,69 Cal.Rptr. 297
• Decision Date: 02 July 1968
• Docket Number: Cr. 12010
• Court: California Supreme Court
• Parties: , 442 P.2d 353 The PEOPLE, Plaintiff and Respondent, v. Gerald Allen CARTER, Defendant and Appellant.

Page 297

69 Cal.Rptr. 297

68 Cal.2d 810, 442 P.2d 353

The PEOPLE, Plaintiff and Respondent, v. Gerald Allen CARTER, Defendant and Appellant.

Cr. 12010.

Supreme Court of California,

In Bank.

July 2, 1968.

Matthew M. Kearney, San Bernardino, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Barry H. Lawrence, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant was charged by information with receiving stolen property (Pen.Code, § 496) and with two prior felony convictions. He pleaded not guilty and admitted the prior convictions. A jury found him guilty as charged. He appeals from the judgment of conviction.

On September 28, 1966, at 7:40 p.m. Officer Ronald Martin of the California Highway Patrol went to a street intersection in the San Bernardino area in response to an accident call. At the scene he observed defendant's car in a flood control ditch near the intersection. Defendant was sitting behind the wheel of the car, the engine was racing, and the rear wheels, which were lifted off the ground, appeared to be spinning.

Officer Martin requested defendant to get out of the car and asked him what had happened. Defendant replied that he had had too much to drink. He had a strong odor of alcohol about him, was unsteady on his feet, and had staggered when alighting from the vehicle. He was unable to walk up the slight incline of the ditch by himself and had to be assisted by Martin. Upon the arrival of a second highway patrol officer, Barton Brubaker, standard field sobriety tests were administered to defendant. When he failed these utterly, he was arrested for being drunk in a public place, advised of his constitutional rights to silence and counsel, frisked for weapons, and placed in the rear of the patrol car.

As defendant was seating himself in the patrol car, Officer Brubaker noticed a billfold lying on the doorsill and asked defendant if it was his. Defendant replied that it was. The officer then noticed two papers lying on the ground beneath the doorsill, and upon examining them found that they were Goodyear Rubber Company payroll checks protectorized in the sums of $219.10 and $119.20 respectively but bearing neither the name of a payee nor the signature of a maker. Defendant was asked whether the checks were his. He replied that he had never seen them before. Sheriff's officers were then summoned, and a search of defendant's person by such officers disclosed, among other things, another blank Goodyear Rubber Company check protectorized in the amount of $119.20. The three checks were numbered respectively 1059, 1088, and 1092.

There was evidence at the trial that in March 1966 defendant had been temporarily employed as a carpenter at the Goodyear factory in Cucamonga; that in April of 1966 that establishment had been burglarized and blank payroll checks numbered consecutively from 1034 to 1100 had been taken; and that the cover of the factory's check protector had been removed and a number of keys depressed.

Defendant testified in his own defense that on the afternoon of September 28, after visiting an employment office to see about a job as a carpenter, he began to drink wine and beer in various bars in the Mt. Vernon area; that he was drinking heavily and did not remember leaving the third bar that he visited; that the next thing he remembered was talking to the arresting officers; that his momory of that conversation was vague; that he had no payroll checks in his possession when he began to drink that afternoon; and that he did not recall anyone handing him such checks or engaging in conversations relative to checks.

After a trial that consumed a day and a half, the jury commenced its deliberations at 11:45 a.m. on January 11, 1967. At 1:45 p.m. the jury returned to the courtroom for the purpose of having certain testimony read, and thereafter retired to continue its deliberations. At 6 p.m. the jury again returned to the courtroom. At this time the judge inquired whether there was a possibility that further deliberation would produce a verdict, and upon receiving an affirmative answer he sent the jury to dinner with instructions to continue deliberation after dinner.

At 8:45 p.m. the jury again returned to the courtroom. The judge who had presided at trial was not present, but another judge, the Honorable John P. Knauf, was present in his stead. There then took place the proceedings set forth in the footnote. ¹

Thereupon, at 8:55 p.m., the jury again retired to continue its deliberations. Ten minutes later, at 9:05 p.m., it returned its verdict of guilty.

Defendant's principal contention is that the jury's verdict was the result of coercion by the court.

We begin with a general principle, given appropriate expression in Wissel v. United States (2d Cir. 1927) 22 F.2d 468, 471: 'The cases all recognize that the surrender of the independent judgment of a jury may not be had by command or coercion. It is not enough to cure the error to conventionally say that it is the function of the jury to decide questions of fact. Pressure of whatever character, whether acting on the fears or hopes of the jury, if so exerted as to overbear their volition without convincing their judgment, is a species of restraint under which no valid judgment can be made to support a conviction. No force should be used or threatened, and carried to such a degree that the juror's discretion and judgment is overborne, resulting in either undue influence or coercion. A judge may advise, and he may persuade, but he may not command, unduly influence, or coerce.'

In People v. Burton (1961) 55 Cal.2d 328, at page 356, 11 Cal.Rptr. 65, at page 79, 359 P.2d 433, at page 447, we observed: 'Whether statements of a trial judge amount to coercion of a verdict is peculiarly dependent upon the facts of each case.' It is not difficult to apprehend that the reason for this extreme sensitivity to particular factual contexts lies in the fact that the law of California, like the law of other jurisdictions, ² intimately involves the court in the matter of obtaining a verdict upon the evidence. Once a cause has been submitted to the jury, and absent a discharge by consent, the court bears the statutory responsibility of assuring that a verdict is rendered '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.' (Pen.Code, § 1140.)

The discharge of this responsibility necessarily requires that the court, in cases where the jury has been unable to reach agreement, make the indicated determination of 'reasonable probability' and, in cases where in accordance with sound legal discretion (see People v. Greene (1893) 100 Cal. 140, 142, 34 P. 630; cf. Paulson v. Superior Court (1962) 58 Cal.2d 1, 6, 22 Cal.Rptr. 649, 372 P.2d 641) it is determined that such a probability exists, that it take appropriate action to encourage agreement. Thus, the court in such cases may inquire of the jury as to its numerical division without seeking to discover how many jurors are for conviction and how many are for acquittal. ³ (People v. Lammers (1951) 108 Cal.App.2d 279, 280, 238 P.2d 667; People v. Curtis (1939) 36 Cal.App.2d 306, 325, 98 P.2d 228; see People v. Tarantino (1955) 45 Cal.2d 590, 599--600, 290 P.2d 505.) The court also may, and indeed it Should, question individual jurors as to the probability of agreement. (See Paulson v. Superior Court, supra, 58 Cal.2d 1, 7, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Disperati (1909) 11 Cal.App. 469, 473, 105 p. 617.) Then, if the court determines that a reasonable probability of agreement does exist, it may, generally speaking, undertake certain measures calculated to encourage agreement. These include impressing the jury with the solemnity and importance of its task and reminding it that in the event of a mistrial the case will have to be retried, with attendant expenditure of money and time, and decided upon similar if not identical evidence by a jury of persons having qualifications equal to those of the present jury. (See People v. Miles (1904) 143 Cal. 636, 637--640, 77 P. 666; People v. Swanson (1932) 120 Cal.App. 173, 178--179, 7 P.2d 380; People v. Lammers, supra, 108 Cal.App.2d 279, 282, 238 P.2d 667; cf. People v. Burton, supra, 55 Cal.2d 328, 356--357, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Baumgartner (1958) 166 Cal.App.2d 103, 106--107, 332 P.2d 366.) They also include advising the jury that its members should consider the case dispassionately and should lay aside views held through pride of opinion rather than through conscientious conviction. (See People v. Piscitella (1928) 90 Cal.App. 528, 533--544, 266 P. 349; People v. Rhodes (1912) 17 Cal.App. 789, 792--794, 121 P. 935.)

It is quite clear, however, that such adjurations of the trial court, which would be entirely proper under some circumstances, may under others operate to overbear the independence of the jury and produce a verdict tainted by compromise or concession to expediency. To advert again to our language in People v. Burton, supra, 55 Cal.2d 328, 356, 11 Cal.Rptr. 65, 79, 359 P.2d 433, 447, the question of coercion is of necessity 'peculiarly dependent upon the facts of each case.'

Most cases wherein adjuratory remarks of the court have been held coercive are those in which the court, either through its own questioning or through volunteered statements of jurors, has become informed not only as to the numerical division of the jury but also as to how many stand on each side of the ultimate issue of guilt. (See fn. 3, ante.) The urging of agreement in such circumstances of course creates in the jury the impression that the court, which has also heard the testimony in the case, agrees with the majority of jurors. Coercion of the jurors in the minority clearly results. (See, e.g., People v. Baumgartner, supra, 166...