*1 [Crim. No. Apr. 20498. 1979.] PEOPLE,
THE Plaintiff and Respondent, VALLES,
HUMBERTO N. Defendant and Appellant.
Counsel Defenders, Inc., under the Court of Appeal,
Appellate appointment by D. for Defendant K. Jeffrey Jayson Barry Utsinger Appellant. Denvir, Defender, State Public S. Chief Assistant Quin Gary Goodpaster, Defender, E. Public State Public and Richard State Shapiro, Deputy Defender, as Amici Curiae on behalf of Defendant and Appellant. General, Winkler, Jack R. Chief Assistant Evelle J. Younger, Attorney General, General, Kremer, J. Daniel Assistant Attorney Attorney Karl J. Phaler and Jesus Michael D. Rodriguez, Deputy Wellington, General, for Plaintiff and Respondent. Attorneys Opinion
CLARK, J .—Defendant of conviction for unlaw- appeals judgment *3 fui Code, of heroin. & Saf. (Health We affirm. 11350.) § possession trial, instructed,
At close of been jury having following colloquy status of the occurred alternate concerning juror: Now, could we—would be you willing gentlemen,
“[The Court:] the other with with stipulate sequestered admonition she in the discussions participate verbally, business, that she listen and sit and mind her own so in the event it quiet else, for her is to sit for will necessary somebody not have to start out from the very beginning. Thompson: I would
“[Deputy District Attorney] willing to that. stipulate
“[Deputy Public Johnson: So Defender] stipulated. then, Everett, All Mrs.
“The I want to advise Court: right, you still are an alternate You dare not intrude into you juror. your opinions deliberations. You shall listen to what is very carefully being said, hold In the event it is one your temper. you necessary replace of the other the course of then won’t have during you to—the other won’t have to start all over with their deliberations. In the event that a verdict is reached without services your being that means are to have to sit there and be required, you just going patient even if don’t with what is on. you agree going Okay?
“Mrs. Everett: Fine.” It did not become for Mrs. substitute for Everett to juror. court’s
No claim is made that the alternate instructions disobeyed Nevertheless, manner in the deliberations. by participating jury’s defendant contends the alternate’s mere room We deliberations constituted reversible error. conclude defendant this issue his raising estopped stipulation procedure. decision in California on the anof alternate’s leading propriety deliberations is Britton (1935)
This then set prepared court opinion adopted Britton, in which stated of in part: the Court pertinent Appeal by “ to the retired error because when claim reversible jury ‘Appellants to the should retire that the alternate the court directed deliberate juror court even the that this was error with the though juiy, juryroom listen to the while she that instructed such alternate might juror not of the she should express any opinion deliberations jury, to the in deliberations. or action those Subsequent word by [1Í] participate in and we was decided this identical herein question [Bruneman] appeal of stated, that the the therein the conclusions with presence agree its the was the while in deliberating upon alternate jury juryroom ” at 623.) reversible error.’ Cal.2d (4 verdict was p. Bruneman, counsel, court ordered the trial In to stipulation pursuant to the to the twelve two alternate regular jurors accompany jurors other discussion of the that should listen to room and instructed they to the to and were not address but that were not talk they were considered the on The by questions following subject. “ room, the the “alternate ‘Was Court presence Appeal: decision, an had not been submitted whom the case jurors”, (cid:127) of that and was it an invasion of trial right invasion of by jury; right consent of the cured could that the error such vital by way ” concluded, at The court 80.) defendant’s (4 Cal.App.2d attorney?’ room first, of the during presence constitutional of the defendant’s right was an invasion to the further, so destructive was an error far and, “that this trial by jury, be rendered mere consent could not error invaded right, harmless.” atp. {Id.
The second considered the Court of in Bruneman question Appeal was not before this court in Britton for there is no indication of a in that case. now as first a matter of stipulation Considering question court, in this we conclude the of alternates in the impression presence room is not detrimental juiy necessarily defendant’s of trial and that defense counsel by jury may stipulate such procedure.
In of its conclusion the Bruneman court relied support contrary cases from other that the mere an jurisdictions holding officer court deliberations vitiates the verdict. (4 80-81.) value out-of-state pp. persuasive was at the time. authority sharply questioned commentary scholarly the strict rule of these first, cases are two reasons: “Underlying mere of a restrict frank and honest comment might non-juror second, facial reactions of jurors; expressions verdict, influence the even make non-jurors might though non-jurors no verbal comment. But this reasoning, though may [Fn. omitted.] valid when the intruder is a total its force loses when the stranger, *5 intruder is an alternate chosen in the same as a juror way regular juror, the same test of all subjected the impartiality, required possess of a There is no reason to qualifications believe that the regular juror. of an alternate would in restrict presence honest comment the any way by or the defendant.” (Comment, Criminal prejudice Law: Alternate Jurors: Substitution Submission Case: Presence Delibera- During After tians 735, 24 (1936) Cal.L.Rev. Jury 738.)
Nor was Bruneman this court without dissent. by “No adopted possible was sustained the defendant injury reason of the by by presence of the alternate juryroom the deliberations of the juror It is jury. that she the court, instructions presumed so, and if obeyed the verdict was not in influenced her or her in way the by by the deliberations of juryroom the It have been error jury.... the alternate to be permit present during but as the defendant sustained no jury, injuiy thereby, judgment should not be reversed for Britton, such error.” v. 4 Cal.2d (People supra, J., 623-624 (Curtis, dis.).) pp. “the that of an alternate cannot be cured
Contending by counsel,” consent of the amicus brief filed the State Public Defender by asserts that the Bruneman rule in almost “prevails eveiy jurisdic- tian.” ofMost the cases which amicus relies must be upon distinguished
126
involved,
California, have
unlike
on the ground
jurisdictions
final
of alternate
rules
dismissal
statutes
jurors upon
requiring
States v. Lamb (9th
Cir. 1975)
the case to the
(United
submission of
jury.1
United
Crim.Proc.,
18
U.S.C.);
F.2d 1153
Rules
rule 24(c);
529
(Fed.
United States
States
v.
Cir.
Of the
upon
remaining
California,
states,
had
unlike
those
on the ground
distinguished
were not to be
that alternate
statutes
providing
expressly
v. State (1962)
In Potter v. Perini Cir. 545 F.2d (6th 1976) a federal habeas an Ohio the court held corpus proceeding involving prisoner, appeals trial the federal Constitution is not protected violated of an alternate in the room presence deliberations; the court noted that the Ohio courts had reached the same conclusion under the state Constitution.
A statement made the court of in Potter v. Perini appeals serves to sum this case. “There was no up any showing participation by or that her juror] [the had presence any effect on the other or that her was jurors, prejudicial to the of the F.2d at respect (545 For these rights appellee.” reasons we hold that a defendant on complain appeal of an alternate when *7 his counsel to the Toward of stipulates procedure. expediting disposition case, a the court and counsel well determine that the case particular calls for such innovation.
fact that section 1089 that an alternate is not to “take his provides place box” until after the of the discharge disqualified and the juror drawing name, does not necessarily indicate that alternate’s permitting properly instructed alternate into the deliberations is inconsistent with intent. legislative
128 course, not to should, that he is of instructed
The alternate
silent
in
manner
the
except by
jury’s
participate
the
of an
the court to take
he is
original
attention unless
place
required
the
rule
this
is
standard
If
instruction
concerning juror
disobeyed,
juror.
to
is
that
it
misconduct
namely,
presumed prejudicial
applies,
20
v.
(1977)
(See
unless
Honeycutt
defendant
appears.
People
contrary
150,
698,
If the alternate
1050].)
570 P.2d
Cal.3d
156
Cal.Rptr.
[141
should
for an
substituted
original
to
its
anew
the extent
instructed
begin
Collins
(See
former
People
permit
fully participate.
782,
The judgment J., Tobriner, Richardson, J., Manuel, J., Newman, J., concurred. MOSK, J. —I dissent. it
Four and a half decades was established in California firmly ago the case had room alternate whom submitted was an invasion of the defendant’s been decision 75 P.2d 4 of trial v. Bruneman (1935) by jury. (People [40 And, time, that this was the court at that “we further conclude said 891].) error could not an error so far destructive to invaded right, mere consent be rendered harmless” (id. 81). when, rule law
This has since unchallenged elementary gone decided, the same that Bruneman was we identical year approved As Britton P.2d (1935) Cal.2d principle [52 217]. as of this court unanimous recently again emphasized opinion “are that after final submission the cause the alternates sequestered 17 Cal.3d v. Collins (1976) apart deliberating jurors.” (People rule 782, 552 It would seem 742].) Cal.Rptr. and, known trial would be well to and routinely judges, respected indeed, vu been to this Thus it is with has case. a feeling prior deja we factual of Bruneman. face circumstances again precise now however, Without persuasive jettison explanation, majority section 1089 and misread Penal Code years nearly precedent *8 order to different rule an invasion adopt radically authorizing defendant’s of trial on the mere consent of counsel. by jury to
I turn first the statute the use of alternate in governing jurors criminal Penal Code section 1089. As enacted prosecutions, originally 213, ch. 279), section that if (Stats. p. provided regular jurors are ordered the course of the trial the “alternate sequestered during jurors This, course, shall also be confinement with the other is kept jurors.” still the alternates are taken out to meals the sheriff practice: together with and if the is are held all regular jurors, overnight quartered the same facilities. The section further that the alternate provided “shall the final submission the case to the discharged upon jury.” In 1933 a amendment was ch. (Stats. significant adopted 1342), the treatment of p. drastically alternates when delibera- changing tions “and final submission of the case such begin: shall be in the and shall not be kept custody of sheriff until are as hereinafter discharged original jurors discharged, except Thereafter (Italics added.) was a provided.” provided paragraph dealing with substitution of an alternate for an Similar juror. original provisions are contained in Code of Civil Procedure section 605 for civil cases. devised is thus clear and procedure Legislature uncompli- when
cated: the case is the 12 submitted to retire regular jurors they for their the alternate do retire with them private but remain with the sheriff and are retained his until the custody is court. This has been the of our original jury discharged by practice trial since 1933. judges after
Bruneman arose the 1933 amendment was shortly adopted. era, Defense counsel case was the eminent criminal of that lawyer Giesler. The trial at (4 77) Jerry judge recognized p.
new amendment the alternates to be required kept custody deliberations; nevertheless, sheriff “in order determine of the 1933 amendment” he counsel meaning requested stipulate the alternates could into the room. accompany regular jurors Giesler and the so prosecutor obligingly stipulated.
It essential note the of the Bruneman trial underlying purpose i.e., for the “if one or more judge asking stipulation: [the alternates] act, should have to would be desirable that hear the probably they (Id. of the other discussions to that 77.) That jurors up point.” *9 however, would be futile in view of our purpose today, explicit holding Collins, 17 Cal.3d at that “a construction People supra, page proper of section 1089 that deliberations anew when a substitution requires begin final made after submission to the To further insure this we jury.” step the trial in such event to the law instruct “that the required judge jury the to the the to and defendant to a reached verdict grants People right after full of the 12 who return a only participation ultimately verdict; this be assured if the that deliberations right may only jury begins from the set that each must again beginning; original juror remaining aside and the earlier as deliberations if had not been had.” disregard they an We declared identical rule civil (Ibid.) actions. (Griesel recently Industries, Dart Inc. Cal.3d 578 Cal.Rptr.
503].) admonition, trial a after Collins the this crystal-clear year
Despite counsel herein the Bruneman error of to stipulate judge repeated inviting it is of the room “so event to inclusion jury else, will not for her to sit in for the necessary somebody ” Collins, And to have out the to start directly very beginning. contrary from he to instruct that “In the event it is for you proceeded . . . the course of the one other replace jurors during the over with their deliberations.” won’t have start all reached Our had not added.) Collins (Italics obviously message plain this judge. fact that in Bruneman was the
The Court unimpressed Appeal the it found the error counsel had procedure adopted, stipulated Consent, it the of trial have been an invasion of defendant’s jury. held, In the the error harmless. (4 could render the likewise on consent of counsel —not case at bar rely that here conclude defendant erroneously majority personally —but cures defect. For this startling stipulation departure attorney’s own, from no reasoned of their offer merely analysis quote majority comment, in Britton concedes student dissent (which two and from error), of an alternate deliberations is on cases. would adhere to California out-of-state I precedent, hold the error the conduct of I would affecting following grounds consent. with or without counsel’s persists are, are at least three elements of There may be, who of a affected by nonparticipant, has not been submitted as to whom case be described any person for verdict.
First, a fair
trial can be
if
achieved
is
from
insulated
jury
only
juiy
outside communications or
v.
influences.
Gladden
385 U.S.
(Parker
(1966)
420,
363
L.Ed.2d
87 S.Ct.
Rakes v.
468];
(4th
1948)
United States
Cir.
[17
739,
communications,
169 F.2d
unintended,
Such
even if subtle or
nonetheless an
of
adulteration
character of the
are
pristine
jury
function. It would be
difficult for an alternate
remain
understandably
time,
locked
with
for
at
without
some
regular
up
jurors,
days,
perhaps
discussions,
heated
or
reflecting agreement
disagreement, support
derision,
or
or
or
or
encouragement
hope
opposition,
disapproval, praise
frustration, or
of countless other emotions. Even if
one
only
such a
on the
the alternate —not
observed
of
part
response
attitude,
from his
but from his
or facial
necessarily
speech,
gestures,
could well have a
effect on the
vote.
expressions
tilting
ensuing
—it
Second, the mere
of a
delibera-
nonparticipant during juiy
tions is
to have an
effect
the free flow of
likely
discussion.
inhibiting
upon
To
outsiders in the
room “not
faced with the awful
permit
jury
(State
decide”
v. Cuzick
Third, no law disclosure, it though is prohibits preferable inevitable deliberations remain confidential. In his meandering jury Lecture, 1956 Lord Patrick Devlin declared that Hamlyn “What on goes room is not to be to no interference but it is also only subject to be secret.” that there are no cases on the kept Though conceding Lord Devlin noted that “it a deal for subject, the sense says good that it never seems to been responsibility have average juror to decide the Trial (Devlin, (1956) 46.) The point.” by Jury reticence of the to reveal discussion confidences not be regular jurors felt the alternates. In v. Adame 36 equally (1973) 402, 407 the court cited 462], with Cal.Rptr. [111 approval indeed, — italicized from v. (1879) emphasis quotation People Knapp —this Mich. 267 N.W. “The of a [3 single person 929]: the room is an intrusion confidence, this arid tends to privacy defeat the for which are sent out.” purpose they
For the I reasons believe there foregoing were misconduct and error I here. therefore reach the issue of Bruneman prejudice. adopted se rule of reversal. Both before per time, howevér, and since that our misconduct,
courts have reviewed of other variety types each the error been the scales of instance has on weighed prejudice. in this state that a rule arises general prejudice presumption 20 Cal.3d misconduct. (1977) (People Honeycutt [141 698, 570 P.2d and cases The United States 1050], cited.) Cal.Rptr. has a rule Court also Supreme adopted presumptive prejudice. 654, 655-656, 347 U.S. States L.Ed. United (Remmer *11 no 74 S.Ct. rebutted 450].) presumption may proof Winchester Cal.2d resulted re (In actually prejudice must conducted 348 P.2d effort to do so 904]), Cal.Rptr. Code, within limitations. (Evid. § statutory here from
There no rational reason to the error involved distinguish Adame, case of misconduct. supra, (People I would of Brown P. (cone. (G. A.), J.).) opn. hold rule and that a therefore general presumption prejudice apply no rebut case at bar. And because the made effort to arose I reverse the under the authorities would presumption, judgment herein. discussed
Bird, J.,C. concurred. Bird, denied for a was 1979. May rehearing
Appellant’s petition J., Mosk, J., C. were of the should be granted. opinion petition