People v. Barraza

• Decision Date: 15 March 1979
• Docket Number: Cr. 19837
• Citation: 591 P.2d 947,153 Cal.Rptr. 459,23 Cal.3d 675
• Court: California Supreme Court
• Parties: , 591 P.2d 947 The PEOPLE, Plaintiff and Respondent, v. Julian Zapata BARRAZA, Defendant and Appellant.

Page 459

153 Cal.Rptr. 459

23 Cal.3d 675, 591 P.2d 947

The PEOPLE, Plaintiff and Respondent, v. Julian Zapata BARRAZA, Defendant and Appellant.

Cr. 19837.

Supreme Court of California, In Bank.

March 15, 1979.

Rehearing Denied April 19, 1979.

Paul Arthur Turner, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, Frederick R. Millar, Jr., William R. Pounders, Theodora Berger and Randy S. Morrison-Bruck, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

We confront in this criminal appeal two separate issues: (1) the effect of what may be denominated a mini-Allen charge, i. e., a jury instruction declaring "If you fail to agree upon a verdict, the case will be tried before another jury . . . ."; and (2) the proper test to be applied to the defense of entrapment.

Defendant appeals from his conviction on two counts of selling heroin (Health & Saf.Code, § 11352). The first count charged defendant with selling heroin to an undercover narcotics agent of the Los Angeles County Sheriff's Department on August 25, 1975. At trial, the agent testified that defendant sold her a yellow balloon containing heroin for $25 of county-advanced funds. Defendant, testifying in his own behalf, gave a different account of his interaction with the narcotics agent on that date, contradicting her testimony that a sale of heroin had occurred.

Count II charged a second sale of heroin on September 11, 1975; both the female agent and the defendant testified that the agent tried to contact defendant by telephoning the Golden State Mental Health Detoxification Center, where he worked as a patient care technician, several times during the three weeks between the dates of the two alleged heroin sale transactions. On September 11, the agent finally succeeded in speaking to defendant and asked him if he had "anything"; defendant asked her to come to the detoxification center. The two then met at the center and talked for some time a few minutes according to the agent, more than an hour by the defendant's account.

The agent's version of this encounter described defendant as hesitant to deal because "he had done a lot of time in jail and he couldn't afford to go back to jail and . . . he had to be careful about what he was doing." She further testified that after she convinced defendant she "wasn't a cop," he gave her a note, to present to a woman named Stella, which read: "Saw Cheryl (the agent). Give her a pair of pants (argot for heroin). (signed) Cal." The agent concluded her testimony by stating that she then left defendant, used the note to introduce herself to the dealer Stella, and purchased an orange balloon containing heroin.

Defendant described a somewhat different pattern of interaction with the agent at their September 11th meeting. He related that he had asked her to come and see him because he was "fed up with her" and wanted her to quit calling him at the hospital where he worked because he was afraid she would cause him to lose his job. He insisted he told her during their conversation that he did not have anything; that he had spent more than 23 years in prison but now he had held a job at the detoxification center for four years, was on methadone and was clean, and wanted the agent to stop "bugging" him. He testified that the agent persisted in her efforts to enlist his aid in purchasing heroin, and that finally after more than an hour of conversation when the agent asked for a note to introduce her to a source of heroin he agreed to give her a note to "get her off . . . (his) back." According to the defendant, he told the agent that he did not know if Stella had anything, and gave her a note which read: "Saw Cheryl. If you have a pair of pants, let her have them."

After final argument, the case was submitted to the jury late on Thursday afternoon, May 6, 1976. The jury began deliberating the next morning, continued its deliberations throughout that day, and resumed the following Monday at 9 a. m. At 10:45 a. m., the jury reported that it had reached a verdict on the second count but was hopelessly deadlocked on the first count. Responding to questions posed by the trial judge, the foreman of the jury advised the court that three ballots had been taken, the numerical split was nine to three, no progress was being made on resolving that division, and there was no reasonable possibility the jury would arrive at a verdict on the first count. The judge then delivered the following charge:

"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."

The jurors then resumed their deliberations. After one hour they returned to the courtroom requesting that the defendant's testimony be reread in its entirety. The record was reread and the jury continued to deliberate until it returned at 2:20 p. m. with verdicts of guilty on both counts. The record does not disclose if any of that period included time for lunch.

I

The issue posed by defendant's conviction on count I is the effect of the mini-Allen charge given to the jury when it reported after more than one full day of deliberations that it was hopelessly deadlocked as to the first count.

Our recent opinion in People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, ruled impermissible the Allen or "dynamite" charge, a jury instruction designed to "blast" a verdict out of a deadlocked jury. Although we were confronted in Gainer with a full Allen charge including the more highly prejudicial portion consisting of a direct admonition to minority jurors we expressly held that it was error for the jury to be instructed that " 'the case must at some time be decided.' " As we said in Gainer, "It is simply not true that a criminal case 'must at some time be decided.' The possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement. Confronted with a mistrial, the People retain the authority to request dismissal of the action. (Pen.Code, § 1385.) Moreover, this option is frequently exercised, as the criminal bar knows, when the prosecution concludes that its inability to obtain a conviction stemmed from deficiencies in its case. Thus the inconclusive judgment of a hung jury may well stand as the final word on the issue of a defendant's guilt." We concluded that "an instruction which implies that a hung jury will assuredly result in a retrial misstates the law . . . ." (Fn. omitted.) (Id. at p. 852, 139 Cal.Rptr. at p. 870, 566 P.2d at p. 1006.)

We expressly made our holding in Gainer retroactive to all cases not final as of the date of that opinion; it is therefore clear that the trial judge herein erred in instructing the jury that "If you fail to agree upon a verdict, the case will be tried before another jury . . . ." We must now determine whether such error requires reversal of defendant's conviction on count I.

The Attorney General contends that defendant acquiesced in the giving of the erroneous instruction because the court informed the prosecution and the defense, "I am going to give the Allen blockbuster-type instruction and see if I can get them off the dime." The court then asked if there was any objection to that and defense counsel replied: "No. Whatever Your Honor feels. It is immaterial to me." It is claimed the erroneous instruction was thus invited by the defense and may not be asserted to reverse the conviction.

In People v. Graham (1969) 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 227, 455 P.2d 153, 163, we considered the effect of an express acquiescence in an erroneous instruction and concluded: "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. . . . Accordingly, if defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake we do not find 'invited error'; only 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." (Italics added.) We noted in particular the legislative command set forth in section 1259 and repeated in section 1469 of the Penal...