Brief Bank # B-549
II. THE TRIAL COURT PREJUDICIALLY ERRED AND DENIED APPELLANT DUE PROCESS OF LAW IN FAILING TO TELL THE JURY WHAT TO DO IF IT AGREED THAT THE DEFENDANT WAS NOT GUILTY OF ATTEMPTED MURDER BUT BECAME DEADLOCKED ON A LESSER INCLUDED OFFENSE
In this argument, appellant discusses the instructional omission which is most directly tied to the juror misconduct just discussed: the failure to inform the jury that it could return a verdict of acquittal on a charged offense despite deadlock on the lesser included. Only a portion of the law relevant to this claim is settled.
As previously noted, a 1982 decision of the California Supreme Court establishes a trial court’s obligation to accept a verdict of acquittal on a charged offense despite deadlock on a lesser included offense. (Stone v. Superior Court, supra, 31 Cal.3d 503.) Specifically, the court held that a trial court was “constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.” (Id., at p. 519.)
The Stone court created this obligation to prevent the prosecution from retrying a defendant on a charge which the jury believed the prosecution had failed to prove in the first trial. (Stone, supra, 31 Cal.3d at pp. 509‑519.) In other words, the concern was with the constitutional preclusion of double jeopardy. (People v. Soto (1984) 157 Cal.App.3d 694, 713.)
But the impact of the Stone decision is now recognized to be much broader than the area of law with which Stone was concerned. This is so because the various methods of implementing Stone have the potential to influence the jury’s decision on whether to convict or acquit the defendant of a particular charge or lesser included offense. In the case which the Supreme Court called the “inevitable successor” to Stone, the court addressed the manner in which a jury instruction using language from Stone affected the defendant’s right to a jury determination on lesser included offenses ‑‑ an issue wholly unrelated to double jeopardy. (People v. Kurtzman (1988) 46 Cal.3d 322, 328.) Here, the record forces recognition of Stone‘s potential impact on a juror’s willingness to follow other instructions, and to withhold a verdict when burdened with doubt about the defendant’s guilt.
In this case, the trial court instructed the jury with a modified version of CALJIC No. 17.10. That instruction directed the jury to “determine whether the defendant is guilty or not guilty of the crime of attempted murder as charged in Count 1 or the lesser crime of attempted voluntary manslaughter. You may find it productive to consider and reach tentative conclusion on all charges and lesser crimes before reaching any final verdicts. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the charged crime.” (C.T. 111.)
This instruction says nothing about what a jury should do in the event it agrees that the defendant is not guilty of the charged crime but disagrees on the lesser included offense. It does not tell the jury that if it finds the defendant not guilty of the charged crime it should “sign and date the not guilty verdict form as to the charged crime and report [the] disagreement as to the lesser crime to the court.” (See CALJIC Nos. 8.75, 17.12, para. 4,.) Thus, appellant’s jury was never given “an opportunity to return a partial verdict of acquittal” on the attempted murder charge at any time in its deliberations. (Stone, supra, 31 Cal.3d at p. 319.)
Nonetheless, a claim that this omission violates Stone‘s explicit mandate would have to be rejected by this intermediate reviewing court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.) As construed by subsequent Supreme Court decisions, Stone authorized, but did not require, instruction on the partial verdict rule at the outset of deliberations. (People v. Jackson (1989) 49 Cal.3d 1170, 1197; People v. Kurtzman (1988) 46 Cal.3d 322, 332, fn. 9.) Indeed, Stone has been said to require trial judges to disclose the existence of the partial acquittal rule only if and when “a deadlock has been announced.” (Jackson, supra, 49 Cal.3d at p. 1197.)
Consequently, appellant bases his claim on multiple lines of authority.
A. The Trial Court’s Failure To Inform The Jury Of Its Right To Render A Partial Verdict Of Acquittal Denied Appellant Due Process Of Law
Under California law, a trial court bears an obligation to correctly instruct, sua sponte, on those general principles of law which are “‘closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Wickersham (1982) 32 Cal.3d 307, 323.)
Moreover, a court’s sua sponte obligation extends to instructing jurors on certain principles of law which control how they approach their task. (See e.g., People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883‑884 [weighing conflicting testimony]; People v. Madden (1981) 116 Cal.App.3d 212, 215 [need for unanimity as to act constituting crime]; People v. Williams (1957) 153 Cal.App.2d 5, 10 [respective duties of judge and jury].)
In holding that Stone does not compel instruction on the partial acquittal option unless deadlock is announced, Jackson said nothing about the possibility of an obligation arising from other principles of law. Furthermore, the court did not have to consider facts at all similar to those in the record here. In Jackson, the defendant was convicted of the charged offense, “[t]here was never any indication” of jury deadlock and “the jury returned its guilty verdict in a little over four hours”. (49 Cal.3d at p. 1197.)
Here, the defendant was acquitted of the charged offense and convicted of a lesser included. The record contains uncontroverted evidence that the jury was deadlocked, indeed, that it was deadlocked on the lesser included offense. Appellant’s jury was in that posture for which the partial acquittal rule was created.
At that juncture, incorrect legal advice filled the instructional void. This happened to appellant’s jury not for any reason having to do with appellant’s guilt or innocence. It happened because the jury was never told the “magic words” that Jackson says a jury must say in order to get the information it needed from the judge.
The scenario would be less disturbing had the court directed the jury to report to the court any deadlock on a lesser offense. But appellant’s jury was never told to report deadlock of any sort to the court. Indeed, the jury was specifically instructed not to disclose to the court its numerical divisions on any issue until directed to do so by the court. (C.T. 129.) And not once during the second two days of deliberations did the court ask the jurors whether they perceived a possibility for achieving real unanimity, nor otherwise invite the jury to communicate with the court.
Furthermore, the events known to the trial court were such as to give notice that deadlock on lesser offenses was very possible. Jury deliberations spanned four days. On the second day the jury requested reading of testimony and explanation of its options for returning verdicts. (R.T. 582‑585.) The jury subsequently asked no questions and made no requests of the court. Counsel could hear screaming from the exterior of the jury room. (R.T. 597.)
In any case, rendition of an instruction on the partial acquittal rule at the outset of deliberations should be part of the trial court’s sua sponte instruction obligation. If Stone does not mandate it, general principles of California law, or constitutional notions of fundamental fairness and due process, must fill the gap.
This conclusion is supported not only by the evidence of what happened with appellant’s jury, but also by a well‑known and accepted fact about the way juries work: there is an elevated risk that a jury will convict a defendant despite reasonable doubt as to his guilt if the jury is given an all or nothing choice. (People v. Geiger (1984) 35 Cal.3d 510, 526.)
In Geiger, the court established a new rule requiring a trial court to grant a defendant’s request for an instruction on a lesser related offense under certain well‑delineated circumstances. (People v. Geiger, supra, 35 Cal.3d at p. 531.) The purpose of this requirement was to “enable the jury to fairly determine the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.” (Ibid.)
The type of “all or nothing” choice addressed in Geiger is similar to that faced by appellant’s jury. In Geiger, the court recognized that jurors will want to return some sort of conviction if they feel a defendant is guilty of some sort of crime; here, appellant infers (and can note some rather solid proof) that jurors will want to return a verdict. Naturally, that urge is particularly strong when all jurors agree that the defendant is not guilty of the charged offense and disagree only on a lesser included. When jurors are kept ignorant of the option to return a partial acquittal verdict, that desire to return a verdict is left in a state of unnecessary conflict with the juror’s duty to adhere to the instruction demanding proof beyond a reasonable doubt. This conflict threatens the “right to a reliable factfinding process.” (Geiger, supra, 35 Cal.3d at p. 531.)
No good reason to conceal the partial acquittal option is apparent. Obviously, neither the Supreme Court nor the editors of CALJIC believe that a jury’s deliberative process is compromised by full information. Both the court and CALJIC have invited trial courts to render an instruction on the partial acquittal option at the outset of deliberations. (See People v. Kurtzman, supra, 46 Cal.3d 322, 332, fn. 9, CALJIC Nos. 8.75, 17.12.)
The only conceivable reason to conceal the partial verdict option is that disclosure lessens the incentive for juries to struggle to reach a unanimous position on all the lesser offenses. This is not a good reason to withhold information. The State has no legitimate interest in obtaining compromise-induced guilty verdicts. It therefore has no interest in playing with incentives to compromise. Put another way, the State has no right or legitimate interest in obtaining a verdict in addition to the partial acquittal if the only thing that twelve jurors agree upon is that the defendant is not guilty of the charge.
Contrariwise, there is much to be said for being honest and forthright in dealing with jurors. A judge who tells the jury about the partial acquittal option only when deadlock is announced can end up looking like the merchant who offers the product at half the asking price only to the buyer who showed the temerity to offer a tenth of that sum. This is not the way government officials, in a democracy, should interact with the populace they are supposed to serve. Such behavior towards jurors is particularly unjust. Jurors pay for the system with their tax dollars, and must perform jury service without compensation and often at a painful cost. They have a right to expect full disclosure of their options with respect to returning verdicts. They should not have to endure manipulative withholding of information on the law.
Finally, it is clear that concealing the partial acquittal option leaves the jury vulnerable to the sort of juror misconduct seen in the instant case. Concealment thus implicates not only the right to proof beyond a reasonable doubt, but also the precious right to an unbiased jury. (U.S. Const., amends. 6, 14.) Appellant was denied due process of law.
B. The Error Was Not Harmless
Juror statements of mental state notwithstanding, the objective facts disclosed by the declarations leave no question of the error’s substantial contribution to the verdict. (Chapman v. California (1968) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710‑711, 87 S.Ct. 824].) The change in the three holdout votes followed the misinformation about the law, misinformation that no reasonable juror would have believed if the right information had come from the court. Consequently, the reviewing court cannot declare the error harmless beyond a reasonable doubt. A new trial is required.
 The juror declarations establish the occurrence of such a deadlock in the course of establishing juror misconduct. Insofar as the juror declarations are admissible to establish misconduct under Evidence Code section 1150, no rule requires that the reviewing court ignore the facts in resolving other appellate issues. (Compare People v. Kurtzman (1988) 46 Cal.3d 322, 336, fn. 14.)
 The circumstances, if any, under which a court must comply with a defense request for instruction on the partial acquittal option have yet to be defined. Under present law, a defense request for such an instruction has no legal effect whatsoever.
 Kurtzman uses the term “acquittal first” in referring to an instruction (CALJIC No. 8.75) which disclosed both the partial acquittal option and the acquittal first rule, i.e., the rule precluding a jury from returning a verdict on a lesser offense in the absence of unanimous agreement to acquit the defendant of the charged offense. However, there are now “acquittal first” instructions which do not disclose the partial acquittal option. (See CALJIC Nos. 8.74, 17.03 (1990 rev.), 17.10 (1989 re‑rev.).) In fact, improper use of such an instruction is one of the issues addressed further on in this brief. Consequently, appellant uses the phrase “partial acquittal option” rather than “acquittal first” to refer to the instructional language the jury did not receive in his case.