P. v. Smith 3/28/02 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B133309

Case Date: 06/20/2002

Preview:Filed 3/28/02

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE SHAWN SMITH, Defendant and Appellant.

B133309 (Super. Ct. No. NA034744)

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert La Font, Judge. Reversed and ordered dismissed. Carlton E. Lacy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Clarence Shawn Smith was convicted, following a jury trial, of one count of anal and genital penetration of an unconscious person by a foreign object in violation of Penal Code section 289, subdivision (d).1 The trial court sentenced appellant to the low term of three years in state prison. Appellant appealed from the judgment of conviction, contending, inter alia, that the trial court erred in conducting an inquiry after the jury stated that it had reached an apparent deadlock and in discharging a juror for failure to deliberate. We held that the trial court did not err in conducting the inquiry or dismissing the juror and affirmed the judgment of conviction. Appellant petitioned our Supreme Court for review. The Supreme Court transferred review to this Court, with directions to vacate our earlier decision and to reconsider this cause in light of People v. Cleveland (2001) 25 Cal.4th 466. We now do so.

Facts In June 1997, 17-year-old Lizett N. went with appellant and Andre Stewart to Chris Taylor's garage residence. Lizett drank a bottle of Coca-Cola to which some drug had apparently been added and passed out. Appellant carried Lizett into the garage. Appellant was alone with Lizett in the garage for about 15 to 30 minutes. When appellant came out, Taylor entered the garage, saw that Lizett was unconscious and her clothes were in disarray and told appellant to get her out of the garage. Appellant and Stewart carried Lizett to appellant's car, drove Lizett home, walked her to her front porch and left her there.

1

All further statutory references are to the Penal Code unless otherwise specified. 2

The next morning, Lizett could remember nothing, but was in pain. Lizett was examined by a registered nurse, Patricia Potts. Potts observed injuries to Lizett's vagina and anus which were consistent with nonconsensual intercourse.

Discussion In letter briefs filed after this matter was transferred to us from the Supreme Court, appellant contends that People v. Cleveland, supra, 25 Cal.4th 466, demonstrated that the trial court erred in dismissing Juror No. 11, a hold-out juror. We agree.

1. Facts. The court's inquiry of selected jury members that ultimately resulted in the dismissal of Juror No. 11 began during the afternoon of June 30, 1998. The jury sent a note to the court requesting "further instructions" on two issues: (1) "What to do with an apparent deadlock?" and (2) Scheduling problems involving three jurors and one alternate juror. The jury also requested a readback of a portion of appellant's testimony. The court told the jurors that the readback would be available the following morning and resolved the scheduling issues. The court then inquired into the request for guidance concerning an apparent deadlock. The court first asked the foreperson the following questions: The Court: "How many ballots have you taken?" Juror No. 1: "Officially, verbally three." The Court: "[Y]ou've indicated you feel you're hopelessly deadlocked. Is that correct?" Juror No. 1: "Yes, sir." The Court: "Is there anything the court can do to help you arrive at a verdict such as a rereading of the testimony? Now, you say that you wanted to hear the testimony of the defendant? 3

Juror No. 1: "Explaining that no matter, since I was the foreperson, if any of my fellow jurors request, made a request that we could not provide, I made the request regardless." The Court: "But I'm asking only you. Do you feel that the rereading of this testimony will be helpful?" Juror No. 1: "No, I do not feel that it would be helpful." The Court: "In your personal opinion is there anything that the court could do such as a rereading of instructions, anything of that nature?" Juror No. 1: "My personal belief is that if there is additional clarification of juror instructions as far as or pertaining to what can be used and what can't be used to influence or to make the decision of the verdict, that may help." The Court: "That's why I'm asking you this question. If there is anything I can do to help you, I'm going to ask you to resume your deliberations and write it out for me. That's why I asked the question if there is anything I can do to help you. If you need clarification or anything such as rereading of the instructions, I'd be glad to do that." Juror No. 1: "That was just my personal feeling, and I feel that the probability of that being helpful to come to a verdict is very low." The Court: "All right. But as long as there is that possibility, then I'm going to ask you to write it out for me." The jury then went to the jury room, from which the foreman sent a note to the court stating: "The consensus of jurors overwhelmingly feels that any further effort would be fruitless. That opinion that I gave you was in my head, a last ditch." The court called the jury into the courtroom, and again conducted an inquiry of the foreperson. The Court: "Just give me two numbers. I don't want to know if it's for or against, 8 to 4, 9 to 3."

4

Juror No. 1: "On the first charge, 11 to 1, and on the second charge, if I can remember correctly, it's approximately 6 to 6." The court then asked each juror individually "if they share the opinion of the foreperson, that is, that you are hopelessly deadlocked, there is nothing the court can do to help you arrive at a verdict . . . and it's your personal opinion that further deliberations would not produce a verdict." All jurors agreed that that was their opinion. The trial court then held a bench conference with counsel. He advised counsel that: "Because of the widespread 6, 6 as to Count 2 and 11 to 1 in Count 1, I intend to declare a mistrial." The prosecutor responded: "I would ask the court to ask just the foreperson alone whether or not a person is not deliberating." Appellant's counsel responded: "I'd object to the court inquiring. I expect that the inquiry if the person was not deliberating, the foreperson would inform the court." The trial court then conducted the following inquiry of the foreperson, outside the presence of the other jurors: The Court: "It's important that all jurors deliberate, that they all discuss the case and their opinion and listen to opinions. Is it your opinion that all the jurors are deliberating?" Juror No. 1: "No, sir." The Court: "No one refused to deliberate, go off in a corner and not discuss it?" Juror No. 1: "To my knowledge the action needs to -- he didn't do what you just described. But there were at least an individual that refused to even listen to or participate." The Court: "All right. I can't hear you." Juror No. 1: "There was one individual that did not even -- he refused to listen to anything, and he brought in outside prejudices into the process." The Court: "But did that person discuss the evidence?" 5

Juror No. 1: "He refused to. Only when he wanted to defend something of his own, instead of doing it structurally, systematically like we had set up there to do it. Sometime we hit a nerve or something like that and he would say something. But it was not constructively toward the goal of bringing out the evidence and the facts in the case." The Court: "But did he at any time, that juror at any time say I won't listen to what you have to say, I refuse to discuss the case?" Juror No. 1: "Several times." The trial court then asked which juror the foreperson was describing, and the foreperson identified Juror No. 11. The trial court then randomly selected Juror No. 8 to question on this issue. The Court: "I'm going to ask you some questions. At any time during the course of deliberations did you form the opinion that any particular juror absolutely totally refused to deliberate and was so closed that --" Juror No. 8: "Yes." The Court: "All right. And can you tell me -- I don't want to know what went on during deliberations --" Juror No. 8: "Okay." The Court: "-- I don't want to know what was said --" Juror No. 8: "Okay." The Court: " -- But tell me what led you to that opinion." Juror No. 8: "This person seems totally closed off from listening to anybody else who has any kind of opinion that's different." The Court: "Did he join in any of the deliberations?" Juror No. 8: "Not really, no." The Court: "And did he ever make a statement that he would not deliberate?" Juror No. 8: "He's never said it in that way in terms of him, 'I'm not going to deliberate.' But he's given the impression that he doesn't, you know, want to be 6

a part of it. And I just think he is very closed off in terms of what he thinks and that's it. And there is no -- he doesn't seem open at all to me." The Court: "All right. The test is, did he deliberate? Did he just close off from the very beginning and not discuss the case?" Juror No. 8: "He hasn't really deliberated because my impression is that he had already formed an opinion before we even started deliberating and he -- and that was it. So it became a matter of no matter what was going on, no matter what was said, you know, he was going to separate himself from that." The trial court then questioned Juror No. 11. The Court: "It's important that all jurors deliberate, that they have a discussion of the evidence and give their opinion. But it's just not to close out the opinions of all the other jurors without discussing it with them. [

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