Filed 10/13/17 P. v. Gibbs CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Johnson Kelley Gibbs fatally shot his brother, Allison. A jury convicted Gibbs of involuntary manslaughter (Pen. Code, § 192, subd. (b))[1] and found true an allegation he personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). The trial court sentenced Gibbs to five years in state prison.

Gibbs appeals. He contends the court coerced the deadlocked jury into continuing to deliberate, which denied him the right to due process. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

In June 2015, Gibbs lived with his mother. Gibbs’s older brother, Allison, lived on a boat, but he was “being evicted.” After Allison was “removed from the yacht harbor,” he moved in with Gibbs and their mother. Allison had a long history of drug abuse. Gibbs and his mother thought Allison was unstable and violent: he “hallucinate[ed] and threaten[ed] everyone.”

On a June 2015 evening, Gibbs went out, leaving his mother alone with Allison. Gibbs drank several beers and returned home at 9:00 p.m. At home, Gibbs drank two more beers and went to his bedroom. A short time later, Gibbs heard Allison growling like an animal downstairs, and “calling for strength to avenge his honor and go to war with people who had injured his pride.” In response, Gibbs grabbed his loaded firearm, chambered a round, and went downstairs. He was afraid for his and his mother’s safety, but he did not intend to kill Allison. As Gibbs approached the bottom of the stairs, Allison lunged at him from around a corner. As a result, Gibbs “fell backward and the gun discharged,” hitting Allison in the chest and killing him. Gibbs told his mother to call an ambulance.

In an interview with the police after the incident, Gibbs admitted killing his brother. Gibbs described Allison as “bullying,” “abusive,” and “delusional,” and said he had a very “complex reason” for shooting him. Gibbs claimed Allison tried to physically dominate him and that Gibbs was “sick and tired” of it. Gibbs told his brother, “don’t fuck with me,” and fatally shot Allison in the chest.

Jury Deliberations and the Jury’s First Note

The jury deliberated on March 28, 29, and 30, 2016. At 4:20 p.m. on March 31, the jury informed the court it had reached a partial verdict. In the packet with the verdict forms was a note from the jury stating: “The jury has reached unanimous verdict[s] on the matter of First degree murder and Second degree murder. We have not unanimously agreed on further lesser charges. And there are jurors whose position[s] are irreversble as they relate to the lesser charges of Voluntary and Involuntary manslaughter.”

[i]Proceedings on April 4, and the Jury’s Second Note

Before the jury was brought into the courtroom on Monday, April 4, 2016, the court again asked the attorneys for thoughts on how to proceed. The prosecutor asked the court to “inquire further of the jury to see if additional deliberations would be helpful.” Defense counsel agreed the “[c]ourt needs to make an inquiry” to determine whether the jury is “hopelessly deadlocked.” Defense counsel also stated: “If they do in fact say, yes, they are hopelessly deadlocked, then I would ask the Court to then declare a mistrial and take the partial verdicts.” The court suggested bringing “the jurors in, make further inquiry on whether . . . they think further deliberations might reasonably be expected to result in a verdict.”

Before being brought into the courtroom, the jury sent the judge another note, which read: “As we were preparing to be received in court this morning, one (1) member of the jury wanted me to submit the following question to you: [¶] Are the verdicts as submitted to the court on Friday April 1st now part of the official record? [¶] This particular juror developed doubts regarding a vote cast. [¶] Sorry for the position this may put the court in.” The court read the note to counsel and brought the jury into the courtroom. Then the following colloquy occurred:

“The Court: Okay. We are back on the record in People v. Johnson Gibbs. All the jurors are in court. Good morning, everyone. Counsel are present and the defendant,

Johnson Gibbs, is also present. Okay. There are two notes that the Court needs to address with the jury at this point. One is the note that came in the envelope with the verdict forms that you all returned to court on Friday. I am just going to read the note so you remember exactly what it says since I have it now and you don’t. It says this, ‘Your Honor, the jury has reached unanimous verdicts on the matter of first degree murder and second degree murder. We have not unanimously agreed on further lesser charges and there are jurors whose positions are irreversible as they relate to the lesser charges of voluntary and involuntary manslaughter.’ Signed foreperson. It was dated Friday. This came April 1st essentially at the end of the day. The note was . . . inside of the envelope with the . . . verdict forms, and the Court had not, nor had counsel had an opportunity to see that note before we brought you all into court. So we sent you home so we could consider the note and respond to it, which is the first thing I am going to do today. Your note that was submitted this morning I will get to in just a minute. You indicated, folks, in this note that you had reached two verdicts, but were deadlocked on the lesser charges of voluntary and involuntary manslaughter. The Court has an obligation with that kind of information coming to it to make some inquiry on whether further deliberations might reasonably be expected to result in a verdict. That’s what I am going to do now. To start that process, I am going to ask the foreperson a couple of questions. Okay. I certainly don’t mean to put you on the spot Juror No. 3, but this is the way the Court can get a little bit of information. Specifically, on the lesser offense of voluntary manslaughter, has the jury taken a ballot or vote on that specific charge?

“Juror No. 3: Yes, sir.

“The Court: How many ballots or votes do you believe the jury has taken on the allegation—the lesser allegation of voluntary manslaughter?

“Juror No. 3: I believe there were two, to the best of my knowledge.

“The Court: I know these are tough questions. Just answer the best you can. And over the course of time, can you give me just a general sense of when those ballots were taken? Friday? Thursday?

“Juror No. 3: Those ballots on the lesser charge of voluntary manslaughter were taken after the lunch period on Friday, April 1st.

“The Court: Both of them after lunch on Friday?

“Juror No. 3: Correct.

“The Court: Okay.

“Juror No. 3: The votes on the—

“The Court: Don’t tell me that what they were yet.

“Juror No. 3: No, no. I was just going to clarify my answer. The votes on the question of first or second degree murder were taken prior to the lunch hour on Friday.

“The Court: Okay. Changing the focus just a little bit. Specifically, to the lesser offense of involuntary manslaughter, has the jury taken votes specifically on that lesser offense?

“Juror No. 3: Yes, sir.

“The Court: How many votes do you think you have taken on that lesser offense?

“Juror No. 3: I believe there was only one vote on that charge, your Honor.

“The Court: Was that also after lunch on Friday?

“Juror No. 3: Yes, sir.

“The Court: Again, just speaking to the foreperson. Do you believe as to those two lesser offenses any further deliberation, instruction from the Court, reading of further testimony from the court reporter could assist the jury in reaching a verdict?

“Juror No. 3: No, I do not, your Honor.

“The Court: For a brief moment I am going to open up the questioning beyond just the foreperson and ask just for a show of hands. I am not going to ask anyone to talk at this point; but of the other 11 jurors, do any of you believe that further deliberations, instructions from the court, the readback of further testimony from the court reporter could put you in a position to reach unanimous verdicts on voluntary manslaughter or

involuntary manslaughter? Any of the others optimistic in that regard? I see no hands. Okay. Back to the foreperson. Sorry to jump around a little bit. Regarding the lesser offense of voluntary manslaughter—please do not tell me which way the vote is for or against that charge, but what is the split? Just give me two numbers that add up to 12 in the latest vote.

“Juror No. 3: Well, we had two votes on the issue of voluntary manslaughter.

“The Court: Okay.

“Juror No. 3: And so you are asking me the numbers without telling which is which?

“The Court: Yeah.

“Juror No. 3: Is that how I understand?

“The Court: Yes. So I just want to hear eight and four or eleven and one, two or 10, or whatever.

“Juror No. 3: Well, I can give you both the first and second vote.

“The Court: Let’s do that. First vote.

“Juror No. 3: To the best of my recollection, the first vote was six to six.

“The Court: And how about the second?

“Juror No. 3: And I believe the second vote was eight to four.

“The Court: Moving to the lesser offense of involuntary manslaughter where you had one vote, two numbers that add up to 12. What was the vote?

“Juror No. 3: Ten to two.

“The Court: A bit trickier of a question. If you can’t answer it, that’s fine. Is there some specific issue that you can tell me about that if you had clarification on it would help this jury potentially reach unanimous verdicts on voluntary manslaughter or involuntary manslaughter?

“Juror No. 3: To the best of my recollection, there is no specific issue that was brought forward by the jurors who submitted to me that their decision was irreversible in the vote of involuntary manslaughter.

“The Court: Okay. Thank you. I know that’s a tough one.

“Juror No. 3: That’s the reason I chose those words when I wrote that note.

“The Court: Okay. Thank you. Thank you all. The second note you all sent out—I am just going to read it again so everyone has it fresh in mind. . . . ‘Judge Sweet, as we were preparing to be received in court this morning, one member of the jury wanted me to submit the following question to you. Are the verdicts as submitted to the Court on Friday, April 1st, now part of the official record? This particular juror developed doubts regarding vote cast. Sorry for the position this may put the Court in.’ As an aside, no need to apologize at all, folks, for anything. So the way I am going to answer that is in context with what I am going to do on the first note. I am going to direct you all to return to the jury room to continue your deliberation. I am going to return to you all of the verdict forms signed and unsigned, and you can consider them in any fashion that you see fit. You can take the jury back to the jury room. I am passing the

forms of verdict to the foreperson. Everything you gave me is back in there.

“Juror No. 3: Okay.”

After the jury left the courtroom, the court asked counsel whether they “wish to be heard on any topic.” In response, defense counsel stated, “I just want to repeat my objection that the partial verdicts should have been taken. They [the jurors] declared that they were irreversibly deadlocked on the lesser charges.” The prosecutor disagreed, noting “there was some movement” when the votes were taken and, as a result, it was “fair to allow the jury to continue to deliberate.” The trial court concluded the hearing with the following comment: “I am going to have the jury continue their deliberations. I did hear their answers in here in open court; but looking at the notes I have been taking about their deliberations, it seems like they have been out for a long time but a lot of it has been engaged in readback, and I do think maybe over the weekend a fresh set of perspectives will benefit this jury. So we will give them some more time. I also think that [the second note] suggests to the Court that there may be some further discussions to be had.”

Later that day, the jury requested and received readback of Gibbs’s testimony regarding the night of the shooting. The jury reached a verdict the next afternoon, Tuesday, April 5, 2016, finding Gibbs guilty of involuntary manslaughter (§ 192, subd. (b)). The jury also found true the allegation Gibbs personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court sentenced Gibbs to five years in state prison.

DISCUSSION

Gibbs’s sole claim on appeal is the court’s direction to the jury to continue deliberations failed to assure the jury “would not feel coerced to reach a verdict.” Section 1140 provides that “the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict . . . 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.” In the event of a deadlock, “[t]he court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement.” (People v. Pride (1992) 3 Cal.4th 195, 265; People v. Howard (2008) 42 Cal.4th 1000, 1029–1030.) Even where the jury has deliberated for a substantial amount of time and indicates it is unable to reach a verdict, the trial court still retains discretion to require further deliberation. (People v. Sandoval (1992) 4 Cal.4th 155, 194–197.) “Directing further deliberations is proper where the trial court reasonably concludes that ‘such direction would be perceived “ ‘as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ ” ’ ” (People v. Whaley (2007) 152 Cal.App.4th 968, 980 (Whaley).)

“The court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’ ” (People v. Breaux (1991) 1 Cal.4th 281, 319.) “ ‘t is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming 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.’ ” ([i]People v. Santiago (2009) 178 Cal.App.4th 1471, 1475.) “Coercion occurs where ‘the trial court, by insisting on further deliberations, expresse[s] an opinion that a verdict should be reached.’ ” (People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples).) The question of coercion depends “on the facts and circumstances of each case.” (People v. Sandoval, supra, 4 Cal.4th at p. 196.) A defendant’s right to due process is violated if a trial court coerces jurors into reaching a verdict. (Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 979.)

Gibbs contends the court’s instruction to the jury to continue deliberating was coercive. The Attorney General argues Gibbs forfeited this claim. We reject the Attorney General’s argument for two reasons. First, Gibbs is not—as the Attorney General seems to contend—arguing the court abused its discretion by determining the jury should “continue [its] deliberations.” Instead, Gibbs claims the court’s supplemental instruction was coercive. Second, Gibbs did object to the court’s supplemental instruction. Before the court instructed the jury to continue deliberating, defense counsel told the court that where the jury is “hopelessly deadlocked,” the court should “declare a mistrial and take the partial verdicts.” After the court gave the supplemental instruction, defense counsel repeated his “objection that the partial verdicts should have been taken” because the jurors “declared that they were irreversibly deadlocked on the lesser charges.” Defense counsel did not fail to object, or consent to the content of the supplemental instruction. (Cf. Whaley, supra, 152 Cal.App.4th at p. 983 [no objection to supplemental instruction]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [claim of error waived where “appellant consent[ed] to the trial court’s response to jury questions during deliberations”].)

We reject Gibbs’s claim on the merits. In analyzing a claim of coercion, the relevant inquiry is whether the trial court’s comments “impose[d] such pressure on jurors to reach a verdict” that “the accuracy and integrity of the jury’s stated conclusion” cannot be assured. (People v. Gainer (1977) 19 Cal.3d 835, 850, disapproved on another point in People v. Valdez (2012) 55 Cal.4th 82, 163.) Here, the court’s comments were not coercive. The court imposed no pressure on the jury. The court did not “either express or imply to the jurors that they must reach a unanimous verdict, or a particular outcome.” (People v. Brooks (2017) 3 Cal.5th 1, 89 (Brooks); Peoples, supra, 62 Cal.4th at p. 783 [court’s comments to jury were not coercive].) The court did not “exert pressure on any juror, nor did it express any exasperation about the jury’s deliberations.” (People v. Johnson (2015) 61 Cal.4th 734, 770.) The court simply asked the jury to deliberate further. This request was reasonable, given that: (1) the jury had been deliberating for a relatively short time when it announced the deadlock before adjourning on Friday; (2) there was movement in the votes taken on Friday; and (3) one juror expressed “doubts regarding a vote cast” on Friday. “Directing further deliberations” was a proper “ ‘ “ ‘means of enabling the jurors to enhance their understanding of the case.’ ” ’ ” (Whaley, supra, 152 Cal.App.4th at p. 980.)

The court was not required to take to take the jury’s claim of deadlock at face value, nor was it required to remind “the jurors to exercise independent judgment and to avoid compromise.” The jurors knew they were to exercise their independent judgment and that they were not required to reach a verdict because the court had instructed them with CALCRIM No. 3550 before deliberations began. (See People v. Debose (2014) 59 Cal.4th 177, 210.) Under the totality of the circumstances, the court’s direction to continue deliberating was not coercive. (Peoples, supra, 62 Cal.4th at p. 783; Brooks, supra, 3 Cal.5th at p. 89.) Having reached this result, we reject Gibbs’s claim that his federal constitutional rights were violated and we need not address the parties’ arguments regarding prejudice.

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P. J.

We concur:

_________________________

Simons, J.

_________________________

Needham, J.