People v. Smith

Decision Date04 April 1974
Docket NumberCr. 23547
Citation38 Cal.App.3d 401,113 Cal.Rptr. 409
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Larry SMITH, Defendant and Appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant Larry Smith was charged with armed robbery. (Pen.Code, § 211.) A jury found him guilty of first-degree robbery and also found that he was armed when the offense was committed. The court found a prior felony allegation to be true. Defendant was sentenced to prison; he was also sentenced to additional punishment under Penal Code section 12022.5, or 'alternatively,' to the minimum punishment provided under section 3024.


Since defendant's contentions are directed to procedural matters, our statement of the facts of the crime will be short.

Defendant and a codefendant, Larry Holloway, who was tried separately, were charged with robbing one Joseph Dana in August 1972. Defendant pointed a single-barrelled shotgun at Dana, demanded money, and also took Dana's wallet and wristwatch. At the trial, Dana and an eyewitness, Lannie Julias, identified defendant as one of the robbers. Julias had noted the license number on the robbers' automobile. Defendant and Holloway were later arrested riding in a vehicle with the plates noted by the witness. Defendant was a passenger. Besides money, a loaded shotgun and extra shells were found in the car. Defendant was observed wearing a watch like the victim's; this watch was next seen under the back seat of the police car in which defendant was transported, and was identified by the victim as his.

The defense was an alibi. Four witnesses and defendant testified, in substance, that he was somewhere else when the robbery occurred.

Before trial, defendant personally made motions to represent himself, to have private counsel instead of the public defender appointed, and to be granted propria persona status to assist his attorney. All these motions were denied.

Defendant admitted having been convicted of a felony, murder, in August 1968. The trial proceeded. On the second day of jury deliberations the court reread certain instructions and gave the jury an elaborated version of the Allen charge, which we discuss in detail below. Later that day, the jury returned with a verdict of guilty.

Additional facts will be added in the discussion.


Defendant contends: 1) The trial court coerced the jury to reach a verdict. 2) The

trial court erred in refusing to appoint another attorney. 3) There was no evidence that the weapon used in the robbery was operable. 4) He was improperly sentenced under Penal Code section 3024.

1. Jury Coercion

The jury started deliberations on January 31, 1973, at 10:15 a.m. and was excused at 4:15 p.m. The next day the jury deliberated from 9 a.m. until 11 a.m. The court then asked the jury for the numerical division on the last ballot. It was told 'six to six.'

The court then reread several instructions, and read the Allen instruction, set forth in the margin. 1 The court also pointed out that if the jury did not reach 'a decision in this case, in all likelihood the case will be retried.' The court reminded the jury 'that it costs the taxpayers . . . $3,000 per day to operate a superior court . . ., not that the factor of money should have any effect upon your individual decisions, but just the seriousness of the case and the importance of following the Court's instructions as to the law and deliberating in good faith . . ..'

The court told the jury that if 'you have not reached a decision by tomorrow at 12 o'clock, then, of course, I will have to declare this matter a hung jury and we will then have to reset the matter for trial. With the hope that you will be able to reach a verdict, but without any directions from me that you reach a verdict because I do not want you individually to compromise your own personal opinions--I can only comment in this case that, certainly, I do not think this is a complicated case. The testimony is not terribly complicated, and, frankly, I do not see any reason why, after careful and due deliberation, you could not reach a decision in this case one way or the other, either guilty or innocent.'

Defendant finds issue with nearly every statement made by the court. Defendant The Allen instruction, although rejected in many state and federal corts (see, e.g., discussion in United States v. Bailey (5th Cir. 1972), 468 F.2d 652, 661--669; Annot., 100 A.L.R.2d 177), was recently approved in this state. (People v. Ozene, 27 Cal.App.3d 905, 912--913, 104 Cal.Rptr. 170 and cases cited; People v. Gibson, 23 Cal.App.3d 917, 921--922, 101 Cal.Rptr. 620; People v. Ortega, Supra, 2 Cal.App.3d 884, 896, 83 Cal.Rptr. 260. See also People v. Carter, 68 Cal.2d 810, 815--816, 69 Cal.Rptr. 297, 442 P.2d 353.) The chief danger in the Allen charge is the admonition that the minority rethink its position; doubtless, particularly where the vote is lopsided, the Allen charge can compound the inevitable pressure to agree felt by minority jurors. (See United States v. Bailey, Supra, 468 F.2d 652, 662--663.)

also asserts that the Allen instruction 'should never again be read in a California courtroom.' Assuming we are unwilling to perform such radical surgery, he contends: 1) the instruction was confusing, because the jury was equally divided, and the essence of the Allen instruction is that the minority reconsider its views in light of the majority's views. (Ante, fn. 2.) 2) The court coerced the jury into reaching a verdict by setting a deadline for reaching a verdict or declaring a mistrial, by stating that the case was 'not complicated' and that the jury should be able to reach a verdict, by commenting on the costs of running a courtroom and by declaring that the case would probably be retried.

But, whatever the merits or demerits of this so-called 'dynamite charge' where the jurors are unevenly divided, this is not the case in which to complain: the jury stood six to six. No 'dissenting juror' was asked to consider whether his or her doubt was a reasonable one; there were no minority jurors who 'ought seriously to ask themselves' whether the majority view was not correct. A recanvassing of the Allen charge must wait for a case to which its dangers apply. If, as defendant contends, the charge was inappropriate precisely because the jury was equally divided, any error was not prejudicial. 2

Defendant complains of most of the court's comments after giving the Allen instruction. The basic test of coerciveness is 'whether the instruction and the remarks of the court, viewed in the totality of the circumstances, operated to displace the independent judgment of the jury in favor of compromise and expediency.' (People v. Ozene, Supra, 27 Cal.App.3d 905, 913, 104 Cal.Rptr. 170, 175; see also People v. Carter, Supra, 68 Cal.2d 810, 814, 69 Cal.Rptr. 297, 442 P.2d 353.)

Although even an equally divided jury can surrender its 'independent judgment' and thus be coerced into reaching a verdict, the serious coercive potential where a court strongly encourages a jury to reach a verdict is, first, the jury's impression that the court agrees with the majority of jurors, and, second, the pressure felt by minority jurors to accede to the majority view. (People v. Crowley, 101 Cal.App.2d 71, 75, 79, 224 P.2d 748.)

Defendant first contends that the court coerced a verdict by setting a deadline to reach a verdict or be discharged. We disagree. Defendant, nothing that the issue has not been decided in California, relies, by analogy, on the impermissible threat to lock up the jury for the night. (People v. Carter, Supra, 68 Cal.2d 810, 813--814, fn. 1, 69 Cal.Rptr. 297, 442 P.2d 353; People v. Savage, 128 Cal.App.2d 123, 126, 274 P.2d 905; People v. Crowley, Supra, 101 Cal.App.3d 71, 79, 224 P.2d 748.) The analogy fails to obvious reasons: as defendant points out, being locked up for the night is reasonably perceived as punishment. We fail to see how the court's statement that the jury would be discharged--set free--could be viewed as punishment, and therefore as coercive.

Moreover, even though the threat to lock up a jury if it does not reach a verdict within a specified time is coercive in itself, regardless of the jury's numerical division, the fact remains that the effectiveness of the coercion springs chiefly from the pressure imposed upon the dissenting jurors: '. . . we think it would require unusual stamina in one or more dissenting jurors to hold to their minority views against the remainder, who would naturally be somewhat rebellious at the thought of being locked up for the night. . . .' (People v. Crowley, Supra, at p. 79, 224 P.2d at p. 753.)

Defendant relies on Goff v. United States (10th Cir. 1971), 446 F.2d 623, in which the trial court coupled an Allen charge with a statement that if the jury did not reach a verdict within the 'next hour or so' it would have to call a mistrial. The court ehld that it was 'impermissibly suggestive and coercive for the Court to place a time fuse on the period of jury deliberation.' (Id. at p. 626.)

There is an obvious distinction between giving the jury 'an hour or so,' and, as in this case, informing the jury at 11 a.m. on one day that they had until noon of the following day. 3 Moreover, Goff does not tell us how the jury was divided. To the extent that Goff states a rule that applies to cases in which the jury is unevenly divided, we agree that a short 'time fuse' is coercive. If Goff is intended to state a general rule that the imposition of any time limit,...

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    ...arises that 'the Allen charge can compound the inevitable pressure to agree felt by minority jurors.' (People v. Smith (1974) 38 Cal.App.3d 401, 406, 113 Cal.Rptr. 409, 413.) The charge "places the sanction of the court behind the views of the majority, whatever they may be, and tempts the ......
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    ...words the defendant's conduct was evidence that a pellet gun was sufficiently charged to be "operable." (Id. at p. 541.) People v. Smith (1974) 38 Cal.App.3d 401 noted, "A jury could easily infer that defendant would not have carried a loaded shotgun with additional shells, if the weapon we......
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