PEOPLE v. DAILEY (1981)

Vernon Dailey appeals from a judgment upon a jury verdict finding him guilty of rape (Pen.Code, § 261) and use of a deadly weapon (Pen.Code, § 12022, subd. (b)).¹  We affirm.

FACTS

The central dispute at trial was whether the prosecutrix, Ms. D., consented to the act of sexual intercourse which appellant acknowledged occurred.

Ms. D. testified she first met appellant in July of 1978.   He approached her on the street where she was walking, engaged her in brief conversation and walked her back to her apartment in East Oakland.   When she denied him permission to enter her apartment he left.

Appellant visited Ms. D. again in August 1978, saying he stopped by to say “hello.”   He entered her apartment, talked with her for about five minutes and left.   She had not spoken with him since their first encounter, although she testified she had seen him drive by in a car and had returned his wave.   A few weeks after his August visit appellant visited Ms. D. again but she did not answer the door because she was taking a bath.

Upon cross-examination, Ms. D. testified she did not like appellant upon their first meeting, but “he seemed a little different” the second time they talked.   She had no knowledge of appellant's marital status and denied any “romantic” interest in him.   Appellant married another woman in September 1978.

Ms. D. testified that appellant visited her again on Sunday, November 12, 1978, at about 9:00 p.m.   She and her one-year-old son were at home.   She invited him in, and they had a general conversation, during which he went into the kitchen alone for a drink of water, which he drank from an old-fashioned Coca-Cola glass.   At about 9:30 p. m., a friend of Ms. D.'s, Kenneth Grimes, stopped by the apartment to see her.   Appellant asked her not to open the door and to tell Grimes she was sleeping;  she refused and let him in.   The three adults talked and watched television until 10 p. m., when Ms. D. asked the two men to leave.

Grimes testified that after they left Ms. D.'s apartment, appellant asked him for a ride to the BART Fruitvale station, but after they had driven for about a block, appellant “changed his mind”, and got out of the car.   Appellant told Grimes he was “going to his cousin's house, or his friend's house․”

Ms. D. stated that about five minutes after the men left, she heard a knock on her window and saw appellant there.   He told her he had lost his keys, so she allowed him to come into the apartment and to look for them.   After searching for the keys without success, Dailey asked her if her young son slept with her.   She told him that the child slept in his own bed.   He said he would stay and “trip” with her;  she told him she did not have the time.

Appellant then asked for another glass of water and went into the kitchen alone.   Ms. D. testified he called her into the kitchen to show her something, brandished a knife in her face, and grabbed her by the arm.   He directed her to quit talking loudly and to put her son in the crib.   He then pushed her into the bedroom and onto the bed and instructed her to disrobe.   She complied because she was scared.   He then forced her to have intercourse.   The knife was on the bed, a few inches from her head, next to his hand.

While on top of her, appellant said:  “he didn't know why he did it, and he felt like calling the police and telling [sic] that he was sick.”   Appellant then got up, dressed, picked up the knife, and left the apartment.   Ms. D. did not have a telephone and said she did not call the police that night because she was too frightened to go outside to a telephone.   The next morning she called the police from her sister's house to report the incident.

A physician with Oakland Planned Parenthood who examined Ms. D. the next evening found no evidence of bruising or trauma in the pelvic area but did find “motile” sperm, which was “consistent with intercourse within the last 72 hours, and specifically within the last 24 to 48 hours ․”

Approximately three weeks later Ms. D. saw appellant board a bus she was riding in Oakland.   She got off when he did, immediately went to a phone and called the police.   Officer Steven H. Paulson of the Oakland Police Department responded to her call.   She and her child were driven in the patrol car to 47th and Foothill, where a man fitting her description of the person she claimed had raped her had been stopped by other police officers.   Officer Paulson testified that when they arrived, Ms. D. pointed, saying “That's him, that's the one,” and started to cry.

Appellant claimed Ms. D. voluntarily had intercourse with him on November 12, 1978, and that they had been sexually involved since the previous July.   He stated that after their first meeting, when he walked her to the cleaners and to her house, he saw her again twice in July and several times in August.   They had sexual relations a “whole lot of times” in August.   He continued to see her after his marriage on September 2, 1978, and they had sexual relations in October.   Appellant testified he saw Ms. D. “three or four times” in October and “maybe one time” in November, on the twelfth.

Appellant stated that on November 12, he went to her house at about 9:00 p. m.   At about 9:30 p. m., Kenneth Grimes arrived, and she told appellant to “Try to get rid of” Grimes.   The two men left at her request and drove away together.   Appellant testified he then left Grimes about a block from Ms. D.'s apartment, on the pretext of wanting to phone his cousin.   He returned to Ms. D.'s apartment where they immediately had sexual intercourse.   Appellant claimed Ms. D. then said she knew about his marriage, became upset, pulled out a knife and tried to stab him three or four times before he took the knife away from her.   He claimed he left the apartment and threw the knife into the bushes.

Tony Brown, self-described as appellant's “close friend”, testified that during July and August 1978, he drove appellant to Ms. D.'s apartment on ten or eleven occasions.   He claimed to have met Ms. D. twice, although he never entered her apartment.   Brown testified Ms. D. wore her hair in a “natural” style.   Ms. D. countered she never wore her hair in that style.

JURY DELIBERATIONS

Appellant challenges the jury deliberations in two respects.   First, he contends that the court abused its discretion under Penal Code section 1140 by ordering the jury to continue deliberations after the jury forewoman informed the court she was convinced beyond a reasonable doubt the jury could not come to an agreement.   Second, he urges the court's comments during this order were coercive and compel reversal.   Both contentions are without merit.

Four versions of the in court proceedings subsequent to the commencement of jury deliberations have been presented to this court.   The factual discrepancies between the clerk's minutes, the reporter's transcript, appellant's version, and respondent's version, need not be resolved however, for taking the facts given by appellant as true, there was no coercion.

The facts outlined by appellant are as follows:

March 28:  (1) The jury began deliberations at 3:55 p. m.;  (2) between 4:05 and 4:12 the instructions were reread and the jury dismissed for the day;

March 29:  (1) between 9:30 a. m. and 10:15 a. m., testimony was reread to the jury;  (2) between 11:25 a. m. and 2:45 p. m. (excluding lunch break) testimony was reread to the jury;  (3) at 4:00 p. m. the jury returned to the court, stated it was deadlocked, and was directed to resume deliberations;  and (4) at 4:30 p. m. the jury returned and said it was deadlocked.   At this point the following colloquy occurred:

“THE COURT:  The record will reflect that the jury has returned from the jury room having buzzed.

“THE JURY FOREPERSON:  We can't come to a decision.

“THE COURT:  How many ballots have you taken?

“THE JURY FOREPERSON:  Six, I believe.

“THE COURT:  On the first ballot, do you know the result of the vote?

“THE JURY FOREPERSON:  Yes.

“THE COURT:  What was that?

“THE JURY FOREPERSON:  The first was four for guilty, three not guilty—

“THE COURT:  Well, without telling me how they voted, at this point just give me the numbers on the various ballots.

“THE JURY FOREPERSON:  The second, seven-four-one;  seven-five;  nine-two-one;  nine-two-one;  ten-two.

“THE COURT:  And then was another ballot taken after that?

“THE JURY FOREPERSON:  That was the sixth.

“THE COURT:  That was the one that was taken prior to the time that you came back downstairs the last time?

“THE JURY FOREPERSON:  It was just taken.

“THE COURT:  In other words, in the last hour, there's been no change?

“THE JURY FOREPERSON:  It went from nine-two-one to ten-two.

“THE COURT:  All right.   Now do you see any possibility of any of those persons on either side changing their vote?

“THE JURY FOREPERSON:  There might be one who would, but one would definitely not.

“THE COURT:  One will not.   And have you discussed with each of the jurors their opinion?

“THE JURY FOREPERSON:  Yes.

“THE COURT:  And you are convinced beyond a reasonable doubt?

“THE JURY FOREPERSON:  I am absolutely convinced․

“THE COURT:  Ladies and gentlemen, I have discussed the matter with the attorneys and I am not trying to put any pressure on one or two jurors, believe me.   I feel, however, that we do have the remainder of the day.   You have really not been out that long.   There's been some movement each time you've taken a ballot and therefore I am going to ask you to retire again to the jury room to further discuss the case, and we'll be in contact with you or you will be in contact with us.   I would suggest taking—discussing the evidence once again and taking another ballot.   Sorry to push you so, but I think it's only fair to both sides.”  (5) At 5:45 p. m. the jury returned to the courtroom and announced that it had reached an unanimous verdict.

 Appellant first challenges the order to continue deliberations at 4:30 p. m.   He argues Penal Code section 1140² required the court to find that there was no “reasonable probability” the jury could agree and to discharge the jury.   We disagree.   The determination of whether there is “reasonable probability” that the jury can agree “rests in the sound discretion of the trial judge, exercisable on reference to and consideration of all the factors before him.”  (People v. Rojas (1975) 15 Cal.3d 540, 546, 125 Cal.Rptr. 357, 542 P.2d 229.)   The trial court's determination “will not be disturbed on appeal unless there is a strong showing of a manifest miscarriage of justice and no possibility for different opinions on the facts.”  (People v. Ham (1970) 7 Cal.App.3d 768, 775, 86 Cal.Rptr. 906.)   Appellant has failed to make such a showing here.

Appellant argues the trial judge had no basis upon which to find a “reasonable probability” of jury agreement because the jury returned twice to say it was unable to agree, and the forewoman was convinced “beyond a reasonable doubt” that one juror would not change his or her mind.   He contends the judge should have taken the forewoman's opinion that the jury was deadlocked as the most reliable source of information, and should have individually voir dired the jurors.

In People v. Goldberg (1952) 110 Cal.App.2d 17, 242 P.2d 116, the court found no coercion where the trial court directed the jury to deliberate further after the forewoman informed him, “․ I don't think there is any possibility at all of reaching an agreement.”   This court recently reaffirmed the rule that the trial judge is not bound by the jury foreperson's opinion as to whether reasonable probability exists.  (People v. George (1980) 109 Cal.App.3d 814, 167 Cal.Rptr. 603, Caldecott, P.J.)   There, the trial court directed further deliberations, although the foreman told the court, “․ I doubt that it would come to anything.”  (Id., at p. 820, fn. 2, 167 Cal.Rptr. 603.)

 Further, a poll of individual jurors to determine whether “reasonable probability” exists is not required.   In People v. Rojas (1975) 15 Cal.3d 540, 125 Cal.Rptr. 357, 542 P.2d 229, the trial judge dismissed the jury as deadlocked without polling the jurors.   The Supreme Court found no reversible error, holding that “[t]here is no merit ․ to the contention that the court in the instant case was required to poll each juror individually ․”  (Id., at p. 546, 125 Cal.Rptr. 357, 542 P.2d 229;  see also People v. Byers (1979) 90 Cal.App.3d 140, 152, 153 Cal.Rptr. 249.)   Moreover, because appellant did not object to the failure to poll the balance of the jury he thereby waived any irregularity.  (In re Chapman (1976) 64 Cal.App.3d 806, 815, 134 Cal.Rptr. 760.)

Although the record is unclear on the amount of actual time the jury deliberated, the parties do agree that the jury deliberated only three hours on March 29 before the challenge colloquy.   To send the jury back to deliberate after a mere three hours of deliberation on four criminal charges—rape, burglary, and two allegations of use of a deadly weapon—was not an abuse of discretion in light of the movement on the jury verdicts and the length of trial testimony.

 Next, appellant characterizes the court's comments in conjunction with the order to continue deliberations as coercive.   He argues the court's comments focused on the minority jurors and pressured them into an agreement with the majority.   He further contends the judge's comments were indicative of his belief that appellant was guilty, and hence constituted implied coercion.   We find no evidence of coercion here.

Appellant's first premise is based on People v. Carter (1968) 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353, the predecessor to People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997.   In Carter, the court found coercion where the court told an 11–1 jury “Certainly it wasn't a long and complicated case, that's for certain․   I'm going to send you out again and I'm going to stay here a half hour.   I'd hate to lock you up tonight․”  (Id., 68 Cal.2d at p. 814, fn. 1, 69 Cal.Rptr. 297, 442 P.2d 353, emphasis in original.)   In Gainer, the Supreme Court condemned the so-called “dynamite” or “Allen” instruction given to a deadlocked jury which either (1) encourages jurors to consider the numerical division or preponderance of opinion informing or reexamining their views on the issues before them, or (2) states or implies that if the jury fails to agree, the case will necessarily be retried.  (People v. Gainer, supra, 19 Cal.3d at p. 852, 139 Cal.Rptr. 861, 566 P.2d 997.)

The court did not advise the minority to rethink its position, or suggest it should yield to the majority position in order to arrive at a unanimous verdict.   Further, the court did not suggest or imply that a failure to reach a unanimous verdict would necessitate a retrial.   There was no Gainer-Carter error.

Appellant's second premise is based upon People v. Tarintino (1955) 45 Cal.2d 590, 596, 290 P.2d 505 and its progeny.  (See, People v. Nails (1963) 214 Cal.App.2d 689, 29 Cal.Rptr. 671;  People v. Diaz (1962) 208 Cal.App.2d 41, 24 Cal.Rptr. 887.)   These cases found implied coercion where the court's remarks or actions intimate an opinion as to guilt or innocence or give the impression that the jury ought to convict the accused.   Appellant's contention that such implied coercion was involved here is similarly unpersuasive.

Appellant asserts implied coercion arose because the court ordered further deliberation “knowing” that the majority favored conviction.   We first note that when the judge asked the forewoman for the numerical division of the first ballot, she blurted out “The first was four for guilty, three not guilty ․”   The trial court promptly interjected that she was not to inform him how the votes stood, but rather, to state only the numerical division.   The forewoman then continued:  “The second, seven-four-one;  seven-five;  nine-two-one;  nine-two-one;  ten-two.”   Appellant's position is the judge knew that the majority was moving toward conviction because of the first blurt out, and that because he sent the jury back to deliberate, he created the impression to the jurors that they ought to convict.

 Preliminarily, it was proper for the court to ascertain the numerical division of the jury.  (See People v. Carter, supra, 68 Cal.2d 810, 815, 69 Cal.Rptr. 297, 442 P.2d 353;  People v. Burton (1961) 55 Cal.2d 328, 355–356, 11 Cal.Rptr. 65, 359 P.2d 433;  People v. Borousk (1972) 24 Cal.App.3d 147, 159, fn. 19, 100 Cal.Rptr. 867.) ³

 Second, the court's inadvertent knowledge of the vote does not mandate mistrial.   When the trial court learned which way the votes had gone, “it was his duty to be more than careful in his remarks thereafter, so that the jury would clearly understand that he was not urging, or even suggesting a verdict one way or the other.”  (People v. Walker (1949) 93 Cal.App.2d 818, 825, 209 P.2d 834.)   Aware of this potential problem the court properly advised the jury when he ordered them to continue deliberations:

“Ladies and gentlemen, I have discussed the matter with the attorneys and I am not trying to put any pressure on one or two jurors, believe me․   I would suggest taking—discussing the evidence once again and taking another ballot.   Sorry to push you so, but I think it's only fair to both sides.”  (Emphasis added.)

After the jury returned with their verdict, the trial court repeated the precaution when polling the jury:

“Ladies and gentlemen, you have had a long four days.   Are all of you satisfied that your verdict was correctly expressed?   Were all of you?   Now, without talking to the person—or any individual, is there anybody who feels that what was expressed here in court was not their true verdict beyond a reasonable doubt?   If so, raise your hand.   You are all satisfied.   You have all talked the evidence over and that is your verdict.   I want to make sure because we did have—we did talk to you about an hour-and-a-half ago and there was a verdict and the foreperson expressed in court which way the majority were going, and I want to make sure that the minority feel that they weren't coerced—whatever the number—I think it was two—weren't coerced and that what has been said in court is your true and correct verdict.   You viewed all the evidence and you are satisfied.”

As a final note, the jury forewoman never informed the judge on which of the four matters before them they were deadlocked:  was it the rape, or the allegation of use of deadly weapon on that count, or was it burglary, or the use of a deadly weapon on that count, or all four?   On these facts the order of further deliberation did not intimate the trial court's opinion as to the guilt or innocence of appellant.

JURY INSTRUCTIONS

Ms. D. testified that during the act of penetration appellant stated that “he didn't know why he did it, and he felt like calling the police and telling [sic] that he was sick.”   The Attorney General concedes this statement was an admission (Evid.Code, § 1220), and that the trial court had a duty to sua sponte instruct the jury that oral admissions are to be viewed with caution.  (See CALJIC No. 2.71;⁴  People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Anderson (1974) 43 Cal.App.3d 94, 101–102, 117 Cal.Rptr. 507.)

 The circumstances of each case must be examined to determine whether a failure to give a cautionary instruction constitutes reversible error.  (People v. Blankenship (1970) 7 Cal.App.3d 305, 312, 86 Cal.Rptr. 651.)   Reversal is warranted only if it appears reasonably probable that a result more favorable to appellant would have been reached in the absence of the error.  (People v. Beagle, supra, 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1.)

In People v. Lopez (1975) 47 Cal.App.3d 8, 14, 120 Cal.Rptr. 562, the court set forth several factors to be employed in making such determinations:  (1) whether the evidence concerning the alleged statement is conflicting;  (2) whether the oral admissions are reported by witnesses who are friendly to the accused, or by witnesses who may be biased against him;  and (3) whether the oral admission has a “vital bearing” upon a substantive issue the jury is required to resolve in reaching its ultimate decision.

The first two answers are easy:  (1) the evidence about the statement is conflicting:  the alleged victim is the only witness who says appellant admitted the crime and appellant denied doing so;  (2) the oral admission is reported only by the alleged victim, a witness hardly friendly to the accused.

The third determination is more involved:  i. e., whether the admission has a vital bearing on a substantive issue the jury is required to resolve in reaching its ultimate decision.   The substantive issue involved was whether the sexual intercourse was forced or consensual.   To answer that in this case the jury faced a bold relief problem of credibility.   If they believed the alleged victim, appellant was guilty of rape;  if they believed the appellant, no crime took place.   In weighing the credibility of Ms. D. we doubt the admission she described helped the jury in any measurable way.   If she was viewed by the triers of fact as not telling the truth about the episode she described in detail as an attack, it is difficult to believe they would suddenly conclude she was telling the truth merely because she testified appellant said:  “he didn't know why he did it and he felt like calling the police and telling [sic] that he was sick.”

 The admission itself as displayed in the reporter's transcript consists of two lines of her entire testimony which is reproduced over 51 pages.   It was emphasized neither in her testimony nor in questions by either counsel or the trial judge, and only passing reference was made to it in closing argument.   The short answer is:  the testimony concerning the oral admission did not have a “vital bearing” on any substantive issue the jury in this case was required to resolve in reaching its ultimate decision.   If the admission had been made to, or in the presence of, a third person other than the complaining witness a substantially different case would be presented.   But here, it is not reasonably probable a result more favorable to appellant would have been reached had the cautionary instruction been given.

The judgment is affirmed.

FOOTNOTES

1.   Appellant was also charged with burglary (Pen.Code, § 459) with use of a deadly weapon (Pen.Code, § 12022, subd. (b)).  The jury found appellant guilty of burglary in the first degree, but that finding was set aside by the trial court.   The jury found the use of a deadly weapon allegation not true on the burglary count.

2.   Penal Code section 1140 provides:“Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”

3.   Appellant raises for the first time in his reply brief, that an inquiry into the numerical division of the jury is reversible error per se, citing Brasfield v. United States (1926) 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345.   Failure to raise this issue in his opening brief has precluded the People from responding, and this court may disregard the issue.  (See, 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 442, pp. 4405–4406.)Turning to the merits of the issue, Brasfield, a 1926 case, did state that inquiry into the numerical division of the jury is grounds for reversal.  (Id., 272 U.S. at p. 450, 47 S.Ct. at p. 135.)  Brasfield was a review on certiorari of the conviction of defendants of federal charges in the district court.   In a two-page opinion, the court reversed the conviction.   The court's opinion speaks in terms of “the fair and impartial conduct of the trial” and, although not expressly grounded in the federal Constitution or based upon any statute, it must be founded upon the due process clause of the Fifth Amendment.The decision came before the right to a jury trial was recognized as required by the due process clause of the Fourteenth Amendment.  (Duncan v. Louisiana (1968) 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.)   Thus, the Brasfield court had no occasion to decide whether its rule was required to be followed by the states through the Fourteenth Amendment.   The most that can be said is that the question of whether the Brasfield rule is constitutionally compelled is an open question.Finally, the California Supreme Court has stated, at least by way of dictum, that the trial judge may inquire of the jury as to its numerical division.  (People v. Carter, supra, 68 Cal.2d at 815–816, 69 Cal.Rptr. 297, 442 P.2d 353.)   It was, however, very clear dictum, and although not controlling, it is highly persuasive and not to be lightly disregarded.  (See 6 Witkin, Cal. Procedure (2d ed. 1971 & Supp. 1979) Appeal, §§ 676, 678, pp. 4589–4593.)   Thus, although Carter is technically not stare decisis in the sense of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, we will follow it until the Supreme Court pronounces otherwise.

4.   CALJIC No. 2.71 reads as follows:“A statement made by a defendant other than at his trial may be an admission.“An admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence.“You are the exclusive judges as to whether an admission was made by the defendant and if the statement is true in whole or in part.   If you should find that such statement is entirely untrue, you must reject it.   If you find it is true in part, you may consider that part which you find to be true.“Evidence of an oral admission of the defendant ought to be viewed with caution.”  (Emphasis added.)

POCHÉ, Associate Justice.

CALDECOTT, P.J., and CHRISTIAN, J., concur.