The PEOPLE of the State of California, Plaintiff and Respondent, v. Humberto N. VALLES, Defendant and Appellant.
The jury found defendant Humberto Valles (Valles) guilty of possession of narcotics heroin. (Health & Saf.Code s 11350(a).) Valles was then examined pursuant to Welfare and Institutions Code section 3051 and found to be a narcotic drug addict. Upon his waiver of a full-scale hearing on this issue, he was committed to the California Rehabilitation Center, Norco.
Valles appeals contending jury irregularity: The presence of the alternate juror in the jury room during deliberations constituted reversible error. He further contends trial court error in failure to instruct sua sponte defining an admission and admonishing the jury to view evidence of an admission with caution. (CALJIC 2.71.)
Brawley police officers knew of an outstanding arrest warrant for Valles. They approached, sought to confront him, ordering “Come here, Humberto.” “No way,” said Humberto and fled. The police, in hot, foot pursuit, followed Valles into an unoccupied apartment where he was captured, hiding in the bathroom. No contraband was found on Valles. However, a witness, Mrs. Gash, observed the police chase and saw Valles throw an object on the roof of an office building. So informed, the officers climbed the roof and found a balloon containing bindles of heroin.
At the end of the trial, and after the jury instructions had been given, the following colloquy occurred between the trial court and counsel concerning the disposition of the alternate juror:
“Now, gentlemen, could we—would you be willing to stipulate that the alternate juror be sequestered with the other jurors with the admonition that she not participate in the discussions verbally, but that she listen and sit quiet and mind her own business, so in the event it is necessary for her to sit in for somebody else, the jury deliberations will not have to start out from the very beginning.
“MR. THOMSON: I would be willing to stipulate to that.
“MR. JOHNSON: So stipulated.
“THE COURT: All right, then, Mrs. Everett, I want to advise you that you are still an alternate juror. You dare not intrude your opinions into the jury deliberations. You shall listen very carefully to what is being said, hold your temper. In the event it is necessary for you to replace one of the other jurors during the course of the deliberations, then you won't have to the other jurors won't have to start all over with their deliberations. In the event that a verdict is reached without your services being required, that means you are just going to have to sit there and be patient even if you don't agree with what is going on. Okay?
“MRS. EVERETT: Fine.
“THE COURT: Swear the bailiff.”
We build on this foundation:
“Trial by jury is an inviolate right and shall be secured to all . . . .” (Calif.Const., art. I, s 16.)
Among the essential elements of the inviolate right are the requirements a jury in a felony prosecution consist of twelve persons and its verdict be unanimous. (Calif.Const., art. I, s 16; People v. Collins, 17 Cal.3d 687, 693, 131 Cal.Rptr. 782, 552 P.2d 742.) Twelve persons, not more, not fewer, shall pass upon and determine the issues of fact. (People v. Bruneman, 4 Cal.App.2d 75, 79, 40 P.2d 891.)
The mere presence of an alternate juror in the jury room during deliberation albeit silent has repeatedly been held to constitute prejudicial jury misconduct. (People v. Britton, 4 Cal.2d 622, 52 P.2d 217; People v. Bruneman, supra, 4 Cal.App.2d 75, 40 P.2d 891; People v. Adame, 36 Cal.App.3d 402, 111 Cal.Rptr. 462; see People v. Honeycutt, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050.) The presence of a single other person in the room is an intrusion upon the privacy and confidence of the jury and tends to defeat the purpose for which they are sent out. (People v. Bruneman, supra, 4 Cal.App.2d 75, 80-81, 40 P.2d 891.)
The principle is the jury is entitled to and is bound to deliberate in private, that they may have confidential discussions. Whether or not the extra person converses or not, his presence to some extent must operate as a restraint upon the jurors' proper freedom of action and expression.
The fact defendant's attorney in this case stipulated and agreed to the presence of the alternate juror in the deliberations does not mitigate against the error. The invasion of that right to a jury trial in such a vital way is of such magnitude that the error cannot be cured by consent of defendant's attorney. (People v. Bruneman, supra, 4 Cal.App.2d 75, 80, 40 P.2d 891.)
In People v. O'Neil, 48 Cal. 257, 258, the defendant consented to a trial by jury of eleven men. The Supreme Court held this error:
“. . . a jury in a criminal action must, within the meaning of the constitution, consist of twelve men.” (Ibid.)
In People v. Adame, supra, 36 Cal.App.3d 402, 111 Cal.Rptr. 462, defense counsel, after being informed of the presence of the alternate juror during deliberations “said he would wait and see how the verdict came out.” (Id. at p. 404, 111 Cal.Rptr. at p. 463.) The appeal court affirmed the granting of a new trial terming this a substantial irregularity invading the very sanctity of the deliberating process. See People v. Britton, supra, 4 Cal.2d 622, 52 P.2d 217, approving People v. Bruneman, supra, 4 Cal.App.2d 75, 40 P.2d 891, deciding the “identical question.”
It has been frequently held a presumption of prejudice arises from any juror misconduct:
“. . . it is presumed to be injurious to defendant, unless the contrary appears.” (People v. Conkling, 111 Cal. 616, 628, 44 P. 314; People v. Honeycutt, supra, 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 700, 570 P.2d 1050, 1051.)
And this presumption may be rebutted by proof no prejudice actually resulted. (In re Winchester, 53 Cal.2d 528, 538, 2 Cal.Rptr. 296, 348 P.2d 904; People v. Honeycutt, supra, 20 Cal.3d 150, 156, 41 Cal.Rptr. 698, 570 P.2d 1050.) It is the burden of the People to rebut this presumption of prejudice by evidence, facts, proof. (People v. Honeycutt, supra, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050; People v. Adame, supra, 36 Cal.App.3d 402, 405, 111 Cal.Rptr. 462.)
The question remains, however, of the applicability of the rebuttable presumption standard where the conceded jury misconduct, as here, constitutes an invasion of the very sanctity of the jury room, the deliberative process. Any attempt to weigh the prejudice would require an improper speculation into the subjective effect on the jurors' deliberations of the presence of the alternate juror and would violate Evidence Code section 1150. People v. Adame, supra, 36 Cal.App.3d 402, 111 Cal.Rptr. 462, stated:
“Even if we should hold that the presence of the alternate in the jury room during deliberations raised only a presumption of prejudice, under the rules of evidence it would be difficult to rebut the presumption. Evidence Code section 1150 provides that upon inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring within the jury room of such character as is likely to have improperly influenced the verdict; however, no evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror in influencing him to assent or dissent from the verdict or concerning the mental processes by which it was determined (Evid.Code, s 1150).” (Id. at p. 408, fn. 5, 111 Cal.Rptr. p. 465, fn. 5.)
(See also People v. Hutchinson, 71 Cal.2d 342, 349, 78 Cal.Rptr. 196, 455 P.2d 132.) Whether the presumption in this misconduct setting be rebuttable, or by the Adame rationale, conclusive, here the People have not carried their burden to rebut.
We therefore conclude the presence in the jury deliberation room of the alternate juror was an invasion of Valles' right to a trial by jury; that error is so destructive of an inviolable right, the error cannot be rendered harmless by consent of defense counsel. It is reversible error.
For guidance of the trial court upon any retrial we examine Valles' contention of trial court error in failure to give sua sponte instruction on the definition of an admission (CALJIC 2.71) in conjunction with the given flight instruction (CALJIC 2.52).
While flight may constitute an implied admission (People v. Mulqueen, 9 Cal.App.3d 532, 543, 88 Cal.Rptr. 235), CALJIC 2.71, by its express language, defines an admission as “a statement made by a defendant.” (Emphasis added.) The cautionary language of 2.71 is “(e)vidence of an oral admission of the defendant ought to be viewed with caution.” (Emphasis added.) Flight is not a statement, written or oral; it is an act to be considered in light of the detailed CALJIC 2.52 instruction. The trial court's duty is to instruct sua sponte on general principles of law applicable to a case. The admission instruction does not appear factually applicable. (People v. Sedeno, 10 Cal.3d 703, 718, 112 Cal.Rptr. 1, 518 P.2d 913.) We, therefore, find no error in failure to instruct on the definition of an admission.
STANIFORTH, Associate Justice.
GERALD BROWN, P. J., and COLOGNE, J., concur.