People v. Browning

• Decision Date: 03 April 1978
• Docket Number: Cr. 17113
• Citation: 145 Cal.Rptr. 45,79 Cal.App.3d 320
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephen Douglas BROWNING, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 45

145 Cal.Rptr. 45

79 Cal.App.3d 320

The PEOPLE, Plaintiff and Respondent, v. Stephen Douglas BROWNING, Defendant and Appellant.

Cr. 17113.

Court of Appeal, First District, Division 4, California.

April 3, 1978.

Rehearing Denied April 24, 1978.

Hearing Denied June 1, 1978.

William H. Du Bois, Sullivan, Nakahara & Du Bois, Oakland, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Steven Douglas Browning has appealed from a judgment of imprisonment which was rendered after a jury found him guilty of second degree murder. (Pen.Code, § 187.) The cause has not been briefed. Appellant has moved for summary reversal of the judgment. The motion appeared to have merit. Because a judgment in a criminal case "can be reversed only after argument, . . ." (Pen.Code, § 1253), we have heard argument on the motion.

Browning and three codefendants, Tucker, Weathersby and Wyatt, were charged by indictment with murder. The cause was tried before a jury, and was submitted. During the next three days, the jury requested the rereading of various instructions as well as the testimony of certain witnesses. At one point the jury asked the court if there was a verdict for a hung jury, and the court indicated that there was not.

On March 24, the jury returned verdicts finding Tucker and Weathersby guilty of first degree murder. The judge inquired as to the division with respect to the remaining two defendants, Wyatt and appellant. The foreman replied "11 to 1" as to each. The court then directed the jurors to continue their deliberations.

Shortly thereafter, the jury returned to the courtroom and at the specific request of the foreman the court gave the "Allen instruction." The jury then resumed deliberations. Twenty-five minutes after retiring, the jury returned a verdict of "not guilty" as to Wyatt. The jury then retired for further deliberations, and an hour and a half later, returned a verdict finding Browning guilty of second degree murder.

In People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, the Supreme Court held that the Allen admonition to minority jurors that they should reconsider their position in light of the majority's views is per se prejudicial error. In addition, the court held that the Allen instruction, " 'the case must at some time be decided,' " is erroneous, though not necessarily prejudicial. (Id. at pp. 852, 854-856, 139 Cal.Rptr. at p. 872, 566 P.2d at p. 1008.) Finally, the court specifically held that this rule applies "to all cases not yet final as of the date of this decision." (Id. at p. 853, 139 Cal.Rptr. at p. 871, 566 P.2d at p. 1007.) In light of Gainer, reversal is mandatory in the instant case.

The People argue that Gainer is distinguishable from the instant case in that (1) the Allen instruction was given at the request of the jury; and (2) the verdict which immediately followed the giving of that instruction was the acquittal of codefendant Wyatt, the verdict finding appellant guilty being returned only after a period of further deliberation. It is contended that these circumstances support an inference that appellant was not harmed by the giving of the Allen instruction. However, in view of the Supreme Court's holding that such an instruction is per se prejudicial, we cannot accept this contention.

The People further contend that under article VI, section 13, of the California Constitution, an appellate court lacks the power to declare a violation of a nonconstitutionally compelled rule of criminal procedure to be reversible per se. We are not at liberty to accept that contention in the face of a contrary holding by the California Supreme Court. (Auto Equity Sales, Inc. v....