PEOPLE v. DENCH (1979)

Phillip Ray Dench appeals from a judgment of the Superior Court of San Diego County after a jury found him guilty of second degree murder.

The jury had been instructed orally, but written instructions had not been sent into the jury room. During deliberations the jury asked for written instructions defining murder and manslaughter. Without notifying defendant or counsel the court sent part of the instructions into the jury room omitting, among others, the requirements of concurrence of act and mental state or criminal intent. Also during deliberations the court excused a juror at her request without notifying defendant or counsel and without conducting a hearing to determine if good cause existed. Counsel were told of these incidents after they occurred. We find prejudicial error exists, reverse the judgment and remand the case for a new trial.

The death in this case resulted from a fight without weapons between two friends, both trained in karate. The final blows occurred when Dench kicked the victim. The case was evidently a close one, particularly as between second degree murder and manslaughter. The court acquitted defendant of first degree murder at the close of People's case; the jury requested written instructions for the elements of murder and manslaughter; the jury deliberated for one and one-half days, with a weekend recess, before reaching the verdict.

I

Instructing Jury Without Counsel

Dench contends it was prejudicial error to give partial instructions to the jury without notifying and conferring with both counsel.

At 9:30 on the first morning of deliberations, the jury sent a note to the court requesting written definitions of the degrees of homicide. The court sent limited instructions defining murder and manslaughter to the jury. Among those instructions omitted was CALJIC 3.31.5 which explains that a union or joint operation of act or conduct and a certain mental state is required for murder or voluntary manslaughter,¹ and CALJIC 3.30 which explains a union or joint operation of act or conduct and general criminal intent is a requirement for involuntary manslaughter.² Had Dench's counsel been present he could reasonably have argued for inclusion of these instructions as well as others.

One and one-half hours after the fact, counsel were notified instructions had been given to the jury and at 2:00 that afternoon Dench's counsel moved for mistrial but his motion was denied. The court then admonished the jurors to consider all the instructions, cautioned them not to give greater weight to those sent in earlier and at 3:00 p.m. sent the remaining instructions into the jury room.

Written instructions ought not to be sent to the jury without notice to counsel with an opportunity to object (Shields v. United States (1927) 273 U.S. 583, 588, 47 S.Ct. 478, 71 L.Ed. 787). Penal Code section 1138 states:

“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” [Italics added.]

A trial court's instructions to a jury in a criminal case are given at a critical stage of the proceedings and to give such instructions without the presence of counsel and absent a stipulation comprises both constitutional and statutory error (People v. Dagnino (1978) 80 Cal.App.3d 981, 988, 146 Cal.Rptr. 129; see also Rogers v. United States (1975) 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1).

The People do not contest the error but maintain it is harmless. While denial of counsel at the critical stage of a criminal proceeding is not prejudicial as a matter of law, prejudice will be presumed if the denial may have affected the substantial rights of the accused. Only the most compelling showing to the contrary will overcome the presumption (People v. Dagnino, supra, 80 Cal.App.3d 981, 989, 146 Cal.Rptr. 129). The court must be able to declare a belief the denial of counsel was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705).

We cannot say beyond a reasonable doubt the giving of selected instructions to the jury without knowledge of counsel was harmless. Despite the court's admonishment, undue emphasis may have been placed on those instructions and giving all the instructions to the jury later may not have overcome such influence.

A deliberating jury must be kept as free as possible from extraneous court influences. When communication with the jury becomes necessary, it should be done so as to give the greatest protection to the defendant's constitutional and statutory rights.

Dench had a constitutional and statutory right to have his counsel present when the instructions were given to the jury. Denial of this right was prejudicial error.

II

Removal of Juror Without Counsel

Dench claims the dismissal of the juror without a hearing and without presence of counsel was prejudicial error. The jury received the case on December 2, 1977, and deliberated 45 minutes before retiring. The next morning before deliberations were renewed, the jury forewoman approached the court off the record. Neither the defendant no?? counsel were present. She said it was absolutely necessary she be excused for the day because some old and dear friends had arrived and would be in town for one day. She explained her husband was exceedingly distraught by her absence and she was afraid her jury service would result in domestic disharmony. She felt it would be difficult for her to properly perform her duties considering the circumstances. Without notifying counsel the court found she could no longer be objective, dismissed her for good cause, but retained her as the alternate, and replaced her with the only alternate. She was permitted to return home and instructed to return Monday morning as an alternate. The jury was then instructed, again without counsel present, to begin deliberations anew as required by People v. Collins (1976) 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742.

Penal Code sections 1089³ and 1123⁴ authorize the court to dismiss a juror for good cause. The court must, however, conduct a hearing to determine if good cause exists whenever it is practicable to do so. Such a hearing can be summary in nature but must be complete enough to establish good cause (People v. Manriquez (1976) 59 Cal.App.3d 426, 432, 130 Cal.Rptr. 585). The inability to perform the functions of a juror must appear in the record as a demonstrable reality (People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537). While it is clear there must be a hearing before a juror may be excused for good cause, there is little authority as to whether counsel is required to be present at the hearing. However, in those cases establishing the requirement of a good cause hearing, counsel has been present. (People v. Abbott (1965) 47 Cal.2d 362, 371, 303 P.2d 730; People v. Hamilton (1963) 60 Cal.2d 105, 128, 32 Cal.Rptr. 4, 383 P.2d 412; People v. Howard (1930) 211 Cal. 322, 295 P. 333; People v. Compton, supra, 6 Cal.3d 55, 59-60, 98 Cal.Rptr. 217, 490 P.2d 537; People v. Franklin (1976) 56 Cal.App.3d 18, 25, 128 Cal.Rptr. 94; People v. Collins, supra, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742.) We hold the requirement of a hearing contemplates the presence of counsel. In this case there was no hearing, summary or otherwise. In addition, counsel was neither notified nor given an opportunity to question the juror or object to the dismissal. We hold that under the facts of this case the trial court's dismissal of a deliberating juror without counsel being notified or present was prejudicial error compounding the error of sending partial instructions to the jury.

III

Dismissal of Juror Not Double Jeopardy

Dench also contends the improper dismissal of the juror was a discharge of the jury which subjected him to double jeopardy. We do not agree. An alternate juror immediately replaced the dismissed juror. The substitution did not destroy the unity of the jury since the alternate was at all times a potential member of the jury. As the dismissal of the juror and her replacement by an alternate did not constitute a discharge of the jury, there was no double jeopardy (People v. Hess (1951) 104 Cal.App.2d 642, 680-681, 234 P.2d 65). Any error in the manner in which the trial court dismissed the juror is cured by reversal of the judgment (People v. Hohensee (1967) 251 Cal.App.2d 193, 204, 59 Cal.Rptr. 234. Dench is entitled to a new trial but not a dismissal of his case.

IV

Collins Instruction Not Prejudicial Error

Dench further contends the instruction required by People v. Collins, supra, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, was inadequate and confusing. The People concede Dench's contention is theoretically correct but maintain the error is harmless. We agree. Collins requires the jury be instructed to set aside and disregard all past deliberations and begin deliberating anew. The court in the case before us instructed the jury to begin new deliberations but did not instruct the jury to set aside all past deliberations. The court then told the jury to acquaint the new jury member “of what you discussed yesterday to bring him up to speed, so to speak, and then continue your deliberations.”

Under different circumstances, such an instruction might be prejudicial error, particularly where counsel is not present. However, in this case the jury had deliberated only 45 minutes before the alternate juror was seated. The juror dismissed was the forewoman. At least a portion of the 45 minute deliberation had to be spent on selecting the forewoman, which by necessity, had to be done again. After being instructed, the jury commented they had done little the day before. Under these circumstances there appears no reasonable probability a more favorable verdict would have been returned had the jury been properly instructed (People v. Collins, supra, 17 Cal.3d 687, 697 footnote 5, 131 Cal.Rptr. 782, 552 P.2d 742; People v. Watson (1956) 46 Cal.2d 818, 835, 299 P.2d 243).

Because of the reversal we need not reach the other issues raised by the defendant.

The judgment is reversed and remanded for a new trial.

I concur with the majority that replacing a deliberating juror with an alternate without notice to counsel and without a hearing on the record requires a reversal of the judgment. I do not agree, however, that the failure to comply with Penal Code section 1138 is sufficient as independent grounds to warrant reversal.

In my opinion, the existence of prejudice turns on the content of the limited jury instructions improperly delivered to the jury and not on the presence or absence of counsel. The inquiry must focus on the issue of whether undue emphasis may have been placed by the jury on those instructions. (See People v. Wingo (1973) 34 Cal.App.3d 974, 983-984, 110 Cal.Rptr. 448.) The majority concludes that since error was caused by denying counsel at a critical state of the proceedings, the test defined in Chapman v. California (1967) 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 is appropriate. (People v. Dagnino (1978) 80 Cal.App.3d 981, 989-990, 146 Cal.Rptr. 129.) The dissent in Dagnino applies the harmless error rule (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243) where there is an unauthorized communication between judge and jury. (Id., at diss. opn., pp. 990-994, 299 P.2d 243.) I believe that when the question is examined under the rubric of jury misconduct which includes any improper communication with the jury (see gen. People v. Honeycutt (1977) 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050) the proper test is whether prejudice exists and not the effect of the prejudice measured by either People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243 or Chapman v. California, supra, 386 U.S. 18, 23, 87 S.Ct. 834, 827, 17 L.Ed.2d 705.

I conclude there was no prejudice. The jury was completely instructed when they started their deliberations, properly admonished after they had received the limited instructions when the matter was brought to the trial judge's attention and, with the consent of the lawyers, given all written instructions pertaining to the case before reaching their verdict. The brief period of time the jury had less than all the written instructions was insignificant under the facts of this case.

FOOTNOTES

FOOTNOTE.  

1.  Concurrence of Act and Mental State“In [each of] the crime[s] charged in count[s] 1 of the information [ [ [ [namely, murder and voluntary manslaughter], there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator and unless such mental state exists the crime to which it relates is not committed.“In the crime of murder, the necessary mental state is malice aforethought and intent to kill.“In the crime of voluntary manslaughter, the necessary mental state is intent to kill.” CALJIC 3.31.5 (as read to the jury originally and as sent in later after counsel's motion for mistrial).

2.  Concurrence of Act and General Criminal Intent“In the crimes charged in count 1 of the information, namely, involuntary manslaughter, there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” CALJIC 3.30 (as read to the jury originally and as sent in later to the jury after counsel's motion for mistrial).

3.  “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, …”

4.  “If before the jury has returned its verdict into court, a juror becomes sick or upon other good cause shown to the court is found to be unable to perform his duty, the court may order him to be discharged․”

EHRENFREUND, Associate Justice.* FN* San Diego Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council.

STANIFORTH, Acting P. J., concurs. WIENER, Associate Justice, concurring and dissenting.