People v. Romero, Cr. 21839

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; BIRD
Citation646 P.2d 824,183 Cal.Rptr. 663,31 Cal.3d 685
Parties, 646 P.2d 824 The PEOPLE, Plaintiff and Respondent, v. Larry ROMERO, Defendant and Appellant.
Docket NumberCr. 21839
Decision Date21 June 1982

Page 663

183 Cal.Rptr. 663
31 Cal.3d 685, 646 P.2d 824
The PEOPLE, Plaintiff and Respondent,
v.
Larry ROMERO, Defendant and Appellant.
Cr. 21839.
Supreme Court of California,
In Bank.
June 21, 1982.
As Modified June 23, 1982.
Rehearing Denied July 22, 1982.

[31 Cal.3d 686] [646 P.2d 825] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ruth Young, Asst. State Public Defender, and Gayle Guynup, Acting Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Ramon M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent.

Neal P. McCaslin, Dist. Atty., Solano, Michael E. Nail, Senior Chief Deputy Dist. Atty., and John R. Vance, Jr., Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

Page 664

[31 Cal.3d 687] MOSK, Justice.

We are confronted here with a factual situation worthy of Abbott and Costello but which, regrettably, has untoward legal consequences. The jury found defendant guilty of burglary in the second degree on count one but not guilty on count two, an identical charge relating to a separate burglary, and judgment was entered accordingly. Nearly two months later, six of the jurors stated in affidavits that the jury unanimously intended to convict on count two and acquit on count one. The trial [646 P.2d 826] court denied defendant's motion for a new trial on count one, and he appealed. "After giving this matter much consideration, we have come to the conclusion that we should do nothing." (People v. Williams (1968) 264 Cal.App.2d 885, 889, 70 Cal.Rptr. 882.)

Facts

Defendant was charged with two counts of burglary. (Pen.Code, § 459.) The consolidated information charged defendant in count one with the daytime burglary of a residence in Escalon (the Brumley burglary). Lealon "Dusty" Brumley, who lived at the residence, testified at trial and identified defendant as the man he saw fleeing when he returned to his home on the morning of February 13, 1979. Defendant introduced the testimony of an alibi witness and presented evidence tending to show that the burglary was committed by someone else. 1 He also pointed out inconsistencies between Brumley's earlier reports and his trial testimony.

Count two of the information charged defendant with the February 25, 1979, burglary of a business located in Stockton (the Autohaus burglary). Stockton police units were dispatched to the location of the foreign car repair shop at 10:12 p. m. after a silent alarm was activated. They arrived at approximately 10:15 p. m. and discovered that the door to the shop had been pried open. Finding defendant inside the building, they arrested him. His story was that he was on his way to a nearby store when he noticed the pried-open door and was inside investigating when police arrived.

[31 Cal.3d 688] Jury trial began on May 22, 1979. The jury retired after lunch on May 31, and returned with its verdict in less than two hours. The first verdict form read: "We, the Jury in the above entitled cause, find the defendant, LARRY ROMERO guilty of a violation of Section 459 of the Penal Code of the State of California, to-wit: BURGLARY, a felony, as charged and set forth in Count One of the Amended Information on file herein; and further we fix the degree, thereof, as Burglary in the Second Degree." This verdict form was signed and dated by the foreman, who erroneously wrote "Acount # 2 [sic]" at the bottom of the form.

The second form read: "We, the Jury in the above entitled cause, find the defendant, LARRY ROMERO not guilty of a violation of Section 459 of the Penal Code, of the State of California, to-wit: BURGLARY, a felony, as charged and set forth in Count Two of the Amended Information on file herein." This form was also dated and signed by the foreman, but he erroneously wrote "Count 1" at the bottom. 2

The clerk read the count one verdict. The court noticed the erroneous "Acount 2" notation at the bottom of the count one form and questioned the foreman, who replied, "I had a Count 1 and a Count 2. I separated them." The court asked: "Just for your own memoranda?" The foreman answered "yes." The court did not pursue the matter further, but directed the clerk to record the guilty verdict on count one and

Page 665

read the verdict on count two. The jury was polled as to each count, and the verdicts were confirmed by each juror. The jury was then dismissed.

Nearly two months later defendant moved for a new trial, submitting affidavits from the foreman and five other jurors which stated that no juror raised a hand for a guilty verdict on the Brumley burglary and that all jurors raised their hands for a [646 P.2d 827] not guilty verdict on that charge. 3 The court denied the motion and sentenced defendant on the burglary charge to two years in state prison, the median term, plus a one-year enhancement for a prior felony conviction. This appeal followed.

31 Cal.3d 689

Discussion

We start with the obvious premise that under the double jeopardy clause of the United States Constitution (U.S.Const., 5th Amend.), defendant cannot be retried on the charge of which he was acquitted, count two. "The fundamental nature of this rule [barring retrial after acquittal] is manifested by its explicit extension to situations where an acquittal is 'based upon an egregiously erroneous foundation.' " (Sanabria v. United States (1978) 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43.) We are thus left with a number of alternatives, none of which, we candidly concede, is perfect.

Defendant urges that we admit the jurors' affidavits to prove that the verdict on count one was not the verdict the jury agreed upon, and then remedy the problem by granting a new trial on that count. This procedure, however, would result in retrial of a count on which the evidence was manifestly unconvincing, and thus give defendant, in all probability, an undeserved double acquittal. 4

Another suggested alternative is that we admit the jurors' affidavits and allow the trial court to correct a "clerical error" by transposing the two verdicts. Although this alternative has attractive aspects, we believe, for reasons to be discussed, that it poses an unacceptable risk of interference with duly rendered jury verdicts under the guise of correcting such "clerical errors."

We conclude, rather, that the soundest course is to exclude the affidavits, involving as they do essentially subjective reasoning on the part of the jurors. This solution has the virtues of both simplicity and finality: it promotes a "bright line" standard and, on the facts of this case, it results in conviction on one charge of burglary, a result the jury manifestly intended to reach.

I. The "Subjective-Objective" Dichotomy

At common law jurors could not impeach their verdicts. (People v. Hutchinson (1969) 71 Cal.2d 342, 346-347, 78 Cal.Rptr. 196, 455 P.2d [31 Cal.3d 690] 132.) " 'The problem involves the balancing of two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury.' " (Id. at p. 348, 78 Cal.Rptr. 196, 455 P.2d 132, quoting from Kollert v. Cundiff (1958) 50 Cal.2d 768, 773-774, 329 P.2d 897.) In Hutchinson, we found that the distinction drawn in the Evidence Code 5 "between proof of overt

Page 666

acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated[646 P.2d 828] nor disproved ... has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts." (71 Cal.2d at p. 349, 78 Cal.Rptr. 196, 455 P.2d 132.) This dichotomy and the limitation of impeachment evidence to "proof of overt conduct, conditions, events, and statements, as suggested by the commentators, vitiates the major policy arguments supporting the common law rule." (Id. at pp. 349-350, 78 Cal.Rptr. 196, 455 P.2d 132.) We concluded, "The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." (Id. at p. 350, 78 Cal.Rptr. 196, 455 P.2d 132.) We felt confident that admission of jurors' affidavits within the limits set by section 1150 "will not result in the widespread upsetting of verdicts." (Ibid.)

There is some difference, however, between Hutchinson and the situation we face here. Hutchinson dealt with "improper influences" on the jury or misconduct that might have affected deliberations, such as intervention by the bailiff in jury proceedings. In the case at bar, by contrast, an asserted clerical error in transcribing the verdict was involved.

II. "Clerical Error"

We first discuss cases in which it appeared that clerical errors of some sort occurred in the rendition of the verdict, mindful that the line of demarcation between such clerical errors and what are termed "deliberative" errors is sometimes unclear.

[31 Cal.3d 691] In People v. Grider (1966) 246 Cal.App.2d 149, 54 Cal.Rptr. 497, the jury was given three forms of verdict: guilty of robbery in the first degree, guilty of robbery in the second degree, and not guilty. After the jury had deliberated for a little over an hour, the foreman informed the court that a verdict had been reached. The clerk read the verdict, which found the defendant guilty of robbery in the second degree. It had been signed by the foreman. After the reading of the verdict the jurors were asked if it was their verdict and they replied "yes." There was no request for a poll, the judge ordered the clerk to enter the verdict in the minutes, and after thanking the jurors for their services he discharged the jury and adjourned the court. (Id. at p. 150, 54...

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41 practice notes
  • People v. Bonillas, No. S004525
    • United States
    • United States State Supreme Court (California)
    • May 1, 1989
    ...845 [202 Cal.Rptr. 448], the Court of Appeal discussed the leading cases on the proper reconvening of a jury. (People v. Romero (1982) 31 Cal.3d 685 [183 Cal.Rptr. 663, 646 P.2d 824]; People v. Lee Yune Chong (1892) 94 Cal. 379 [29 P. 776]; People v. Peavey (1981) 126 Cal.App.3d 44 [178 Cal......
  • Salton Bay Marina, Inc. v. Imperial IrrIGAtion Dist.
    • United States
    • California Court of Appeals
    • September 30, 1985
    ...pose 'an unacceptable risk of interference with duly rendered verdicts.' [172 Cal.App.3d 948] (Cf. People v. Romero [ (1982) ], supra, 31 Cal.3d 685, 689 [183 Cal.Rptr. 663, 646 P.2d The reasoning of Thornton applies equally to this case. Once Taylor was excused and had left the courtroom, ......
  • Salton Bay Marina, Inc. v. Imperial Irr. Dist.
    • United States
    • California Court of Appeals
    • March 20, 1985
    ...all. To conclude otherwise would pose 'an unacceptable risk of interference with duly rendered verdicts.' (Cf. People v. Romero, supra, 31 Cal.3d 685, 689 [183 Cal.Rptr. 663, 646 P.2d The reasoning of Thornton applies equally to this case. Once Taylor was excused and had left the courtroom,......
  • U.S. v. Boone, Nos. 89-30077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 1991
    ...court treads on dangerous ground when it reassembles the jurors to clarify a verdict after the trial has concluded. In People v. Romero, 31 Cal.3d 685, 183 Cal.Rptr. 663, 646 P.2d 824 (1982) the California Supreme Court summarized the problem with belated jury ... in [People v.] Grider [246......
  • Request a trial to view additional results
41 cases
  • People v. Bonillas, No. S004525
    • United States
    • United States State Supreme Court (California)
    • May 1, 1989
    ...845 [202 Cal.Rptr. 448], the Court of Appeal discussed the leading cases on the proper reconvening of a jury. (People v. Romero (1982) 31 Cal.3d 685 [183 Cal.Rptr. 663, 646 P.2d 824]; People v. Lee Yune Chong (1892) 94 Cal. 379 [29 P. 776]; People v. Peavey (1981) 126 Cal.App.3d 44 [178 Cal......
  • Salton Bay Marina, Inc. v. Imperial IrrIGAtion Dist.
    • United States
    • California Court of Appeals
    • September 30, 1985
    ...pose 'an unacceptable risk of interference with duly rendered verdicts.' [172 Cal.App.3d 948] (Cf. People v. Romero [ (1982) ], supra, 31 Cal.3d 685, 689 [183 Cal.Rptr. 663, 646 P.2d The reasoning of Thornton applies equally to this case. Once Taylor was excused and had left the courtroom, ......
  • Salton Bay Marina, Inc. v. Imperial Irr. Dist.
    • United States
    • California Court of Appeals
    • March 20, 1985
    ...all. To conclude otherwise would pose 'an unacceptable risk of interference with duly rendered verdicts.' (Cf. People v. Romero, supra, 31 Cal.3d 685, 689 [183 Cal.Rptr. 663, 646 P.2d The reasoning of Thornton applies equally to this case. Once Taylor was excused and had left the courtroom,......
  • U.S. v. Boone, Nos. 89-30077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 1991
    ...court treads on dangerous ground when it reassembles the jurors to clarify a verdict after the trial has concluded. In People v. Romero, 31 Cal.3d 685, 183 Cal.Rptr. 663, 646 P.2d 824 (1982) the California Supreme Court summarized the problem with belated jury ... in [People v.] Grider [246......
  • Request a trial to view additional results

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