P. v. Sanchez

Filed 10/17/06 P. v. Sanchez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Reversed.

William R. Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, and Alana Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Delbert Mario Sanchez, Jr., shot the victim in the back three times, killing him. According to the only eyewitness, who was a friend of both defendant and the victim, defendant had been in the witness’s bedroom, using her cell phone to make a phone call, when the victim ordered him to leave the bedroom. When defendant refused, the victim punched him in the face. Mutual combat ensued. When it was over, the victim was kneeling or lying on the floor, and defendant had left the room. Defendant, however, then came back and fired the fatal shots.

A jury found defendant guilty of second degree murder. (Pen. Code, § 187, subd. (a).) It found true an enhancement for personally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)), but it found a gang enhancement not true. (Pen. Code, § 186.22, subd. (b)(1).) The trial court sentenced defendant to 40 years to life in prison.

Defendant now contends:

1. There was insufficient evidence to support a conviction for murder, rather than voluntary manslaughter on “a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).)

2. When the jury indicated that it was deadlocked, the trial judge gave it erroneously coercive instructions.

3. The trial court erroneously calculated defendant’s pretrial custody credits.

We will hold that the trial court erred prejudicially by giving prohibited and coercive instructions to the deadlocked jury. Although we must reverse on this ground, we will also discuss the sufficiency of the evidence of murder, because, if defendant is correct, he could be retried for voluntary manslaughter but not for murder. (See People v. Hill (1998) 17 Cal.4th 800, 848; see generally Burks v. United States (1978) 437 U.S. 1, 16-18 [98 S.Ct. 2141, 57 L.Ed.2d 1].) We will hold, however, that there was sufficient evidence of murder. We need not discuss defendant’s contention regarding custody credits.

I

THE SUFFICIENCY OF THE EVIDENCE OF MURDER

RATHER THAN VOLUNTARY MANSLAUGHTER

Defendant contends there was insufficient evidence of malice to support his conviction for murder. He argues that the evidence showed that he acted in a “sudden quarrel or heat of passion“ and thus committed only voluntary manslaughter.

A. Factual Background.

1. Testimony of Christina Solorzano.

Victim Ricardo Ramirez had been staying with Christina Solorzano, off and on, for about two weeks. Solorzano’s boyfriend was a member of a gang called the Banning Sapos,^[1] and members of the Banning Sapos “h[u]ng out” at her house. Defendant was also a member of the Banning Sapos.

The victim was a member of the Lokitos, a clique of the Hawaiian Gardens gang. He had “tagged” the closet door in Solorzano’s bedroom with Lokitos graffiti, including the words, “Varrio Hawaiian Gardens LQS” and his moniker, “Li’l Triste.”

On March 8, 2002, around 11:00 or 11:30 at night, defendant entered Solorzano’s bedroom, woke her up, and asked if he could use her cell phone. One Ernesto Mendez was with him, but Mendez almost immediately left the room.

Defendant had only just dialed when the victim came in. He ordered defendant to go outside the bedroom to use the cell phone. Defendant replied, “[N]o, I’m going to use it right here.” The victim responded by punching defendant once in the face. They both began punching and wrestling with each other. At one point, the victim was inside the door, trying to push it closed, while defendant was out in the hallway, trying to push it open. Finally, defendant kicked the door; it came off its hinges. At that point, the fighting stopped. Defendant “jump[ed] out” into the hallway. Because defendant was gone and it was quiet, Solorzano believed the fight was over. She estimated that it had lasted about three minutes.

The victim was kneeling on the floor, looking out into the hallway. Solorzano noticed his facial expression, which she described as “stuck” or “frozen,” “like he was scared but like, just shoot me.” She testified that he was frozen for “like a few minutes probably.” However, she also testified that she looked at his expression for “a few seconds.” She followed his gaze out into the hallway and saw defendant pointing a gun at him.

The victim backed away from defendant. Solorzano said three times, “Don’t shoot him.” Defendant, however, fired three shots. The victim fell to the floor and crawled partway into the hallway, where he died.

According to a forensic pathologist, three bullets struck the victim, all in the back. They went very slightly downward (relative to the victim). One went diagonally, from the left back to the right front; the other two went more or less straight through. Solorzano could not explain why all of the entry wounds were in the victim’s back.

Later that night, when the police first interviewed Solorzano, she told them she did not know what happened. She then left Banning and went to stay in Los Angeles, because, she testified, she did not want to be involved.

On March 13, the police located Solorzano and interviewed her again. Her statement was largely consistent with her testimony at trial. In a photo lineup, she identified defendant as the shooter. However, she said that immediately after the victim punched defendant, defendant jumped into the hallway. Also, she said the victim was lying on the floor, on his stomach, when he was shot.

Solorzano’s testimony at the preliminary hearing was consistent with her statement to police and, to that extent, inconsistent with her testimony at trial. She had also testified that the victim punched defendant so hard that defendant almost fell, then punched him a second time. She tried to demonstrate how much time elapsed between the first punch and the shooting; as timed by the magistrate, with a stopwatch, this was 20 seconds.

2. Testimony of Sally Ortiz.

Sally Ortiz, Solorzano’s aunt, was also staying in the house. She was the one who called 911. When the police first interviewed her, she said the victim ran into the house, then ran into a wall and fell down.

On March 11, the police interviewed Ortiz again. This time, she said that defendant came to the house with another man. She and the other man were in the living room, and defendant and Solorzano were in Solorzano’s bedroom, when the victim came in the house and went to the bedroom. Ortiz heard the sounds of a fight. Solorzano yelled twice, “Oh, my God, he has a gun.” There were three shots; then Ortiz saw defendant run out of the house. She went to see what was happening and saw the victim lying face down in the hallway. In a photo lineup, she identified defendant as the shooter.

At trial, Ortiz testified that, at the time of the shooting, she was “pretty well loaded” on methamphetamine. She denied hearing any “commotion,” though she admitted hearing Solorzano yell, “Oh, my God, he has a gun.” She denied identifying defendant in the photo lineup as the shooter; she claimed she simply identified him as Delbert Sanchez.

3. Additional Evidence.

The victim’s blood alcohol level at the time of death was 0.04 percent. His blood methamphetamine level was 0.37 nanograms per liter.

According to a gang expert, defendant would have viewed the fact that the victim had tagged a Banning Sapo hangout as disrespect. He would likewise have viewed the victim’s demand that he leave the bedroom as disrespect.

On March 13, the police located both defendant and Mendez at defendant’s girlfriend’s house in Fontana and arrested them. That same day, while they were both in custody, the police tape recorded a conversation between them. Defendant was weeping and despondent; he kept saying he wanted “them” to “just take [him] out,” to “drop” him. Mendez responded:

“[MENDEZ]: Don’t do nothing stupid.

“[DEFENDANT]: That’s the only thing I can do. I should have just did her right there. . . .

“[MENDEZ]: You capped him when you walked up . . . my heart started pumping, I thought, he really shot him, I was like, whoa, that’s heavy shit, man.

“[DEFENDANT]: No, I should have just . . . I should just . . . walked away. . . .

“[MENDEZ]: [T]hat fool just fucked up!”

On March 29, defendant wrote to a friend, “Hey, try to get ahold of Christina and tell her like this: she already lost one life she cares about. Why lose two?” He added, “Tell her don’t throw away my life, my family and daughter and even [Solorzano’s son] needs me.”

Cindy Rudh was Solorzano’s supervisor as well as a friend of defendant’s family. She testified that Solorzano had given her various accounts of the shooting: that she was not home when it occurred; that she was home, but she did not see it because it occurred outside the house; and that she was in the bedroom, but she did not see it because it occurred in the hallway while the bedroom door was closed. However, Solorzano did say defendant was the shooter.

B. Analysis.

“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22, quoting People v. Catlin (2001) 26 Cal.4th 81, 139, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560], People v. Wader (1993) 5 Cal.4th 610, 640, and People v. Kraft (2000) 23 Cal.4th 978, 1053.)

“Voluntary manslaughter is a lesser included offense of murder. [Citation.] One form of the offense is defined as the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting Pen. Code, § 192, subd. (a).)

“‘[T]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.]’” (People v. Manriquez (2004) 37 Cal.4th 547, 584, quoting People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) “The subjective element requires that the actor be under the actual influence of a strong passion at the time of the homicide.” (People v. Wickersham (1982) 32 Cal.3d 307, 327.) “‘”To satisfy the objective or ‘reasonable person’ element . . . , the accused’s heat of passion must be due to ‘sufficient provocation.’” [Citation.]’ [Citation.]” (Manriquez, at p. 584, quoting People v. Gutierrez (2002) 28 Cal.4th 1083, 1144, quoting Wickersham, at p. 326.) “The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]” (Manriquez, at pp. 583-584.)

The killing must occur “‘suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.’” (People v. Daniels (1991) 52 Cal.3d 815, 868, quoting 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 517, pp. 584-585.)

We may assume, without deciding, that the victim’s act of punching defendant in the face constituted legally adequate provocation as a matter of law. (See People v. Elmore (1914) 167 Cal. 205, 211-212.) Even if so, the jury reasonably could have found that, once the victim was on the floor, on his knees or on his stomach, and defendant had left the room, the passions of an ordinarily reasonable person would have had time to cool. Separately and alternatively, even assuming a reasonable person might still have been acting under the heat of passion, the jury reasonably could have found that defendant subjectively was not; rather, he was seeking revenge or punishment, in cold blood.

Defendant argues that there was insufficient “cooling time,” citing Solorzano’s testimony at the preliminary hearing that the entire altercation, from first punch to last shot, took 20 seconds. Solorzano admitted, however, that she had “problems estimating time . . . .” At the preliminary hearing, she had been asked to estimate the total time elapsed while the magistrate timed her with a stopwatch. Under these circumstances -- as the seconds ticked by in a quiet courtroom -- she was likely to underestimate. By contrast, at trial, she estimated that the physical fight lasted three minutes. She testified that the victim looked “frozen” for “a few minutes,” yet also that she saw his “frozen” expression for only “a few seconds.” She estimated that it took her up to one or two minutes just to say “Don’t fucking shoot him, Delbert” three times.

We are entitled to presume that the jury accepted whichever time estimate was most favorable to the judgment. But even assuming the jury disregarded all of Solorzano’s time estimates as unreliable, it was left with the following facts: The victim had been rendered helpless and unresisting; defendant had left the room; defendant later admitted that he should have “just . . . walked away”; nevertheless, defendant determined to go back to the bedroom, with a gun, and finish the victim off. This was sufficient to support a finding that reason either should have had or actually did have “time ‘to resume its empire.’” (People v. Wells (1938) 10 Cal.2d 610, 618.)

Accordingly, there was sufficient evidence to support the jury’s verdict of second degree murder.

II

COERCIVE INSTRUCTIONS

Defendant contends that, when the jury reported that it was deadlocked, the trial court gave it erroneously coercive instructions.

A. Additional Factual and Procedural Background.

On Monday, March 1, 2004, the first day of deliberations, the jury deliberated from 3:40 to 4:30 p.m. On Tuesday, March 2, it resumed deliberations at 9:00 a.m. and recessed at 4:15 p.m.

On Wednesday, March 3, it began deliberating at 9:15 a.m. At 1:15 p.m., it sent out the following note: “Need your help. We are stuck as a group and don’t know what to do? The group is 10 to 2 -- on count 1.” The trial court discussed the question with both counsel. With their agreement, it gave the following response: “It is your duty . . . to continue deliberating until you have considered, in sequence, the crimes of First Degree Murder, Second Degree Murder and Voluntary Manslaughter. When you have done that, then report back to the court (WITHOUT NUMBERS) what, if any, resolution has been reached.” The jury recessed at 4:15 p.m.

On Thursday, March 4, after about an hour of deliberations, the jury sent out this note: “Sorry to report -- we have discussed the following:

“First Degree: No resolution

“Second Degree: No resolution

“Manslaughter: No resolution

“We are going backwards -- no progress made over the last day or so. What do we do next????”

The trial court discussed the question with both counsel. They agreed that it should ask the jurors whether further readbacks, instructions, or deliberations might help them.

Accordingly, the trial court called the jury back into the courtroom. It then stated: “Mr. Foreperson, the jury has sent . . . a note . . . indicating that . . . there was no resolution on the first degree, second degree, or manslaughter. That might be taken by the Court as an indication that you’re hopelessly deadlocked, although it is not stated in so many words that that is the case. But I’m going to assume that that may be what it means because no resolution has been reached.

“Before I go on, let me tell you why I’m going on as I’m about to. It takes a lot of money to run one courtroom for one day. Upwards of $6,000. And so the Court . . . tries to make certain that cases are not retried if there’s any possibility that it can be resolved on the first time around. And so I want you to understand that the questions I may be asking you are asked in the vein of and in the hope of [the] possibility of avoiding the tremendous expense of a retrial of a case to a new jury.” (Italics added.)

It then asked the foreman whether he believed there was a hopeless deadlock, or whether, on the other hand, he believed there was a reasonable possibility that the jury could reach a verdict if it was given more time to deliberate, and possibly also a readback and/or more instructions. In the course of doing so, it commented, “But you understand why we don’t just say, okay, ballgame is over, we start over with a new jury and all the trial testimony and witnesses, et cetera, that have already been appearing in this last trial.” (Italics added.)

The foreman responded: “It’s with a great sadness that I sit here right now and speak with the Court. . . . My goal was to bring this to some type of resolution. I think that where there’s a will, there’s a way. Where there’s an open mind, there is a solution. . . . . . .

“ . . . I do feel we were at a deadlock when I filled out that form and submitted it to the Court. That was the general consensus in the room. But we, in all candor, had a deadlock, had a general consensus, and then continued to move on over a couple [of] days. There were times we thought we hit the wall, and for whatever reason we were able to hit that wall and move along. . . . . . .

“[T]here is no bad will or anything like that. There’s just some different things we can’t agree upon.”

The trial court then asked each juror individually whether he or she thought that further deliberations, with or without more readbacks or more instructions, could be productive. They responded:

“JUROR NO. 2: Well, I have my decision. And . . . I’m not going to change it. I’m not. I’m just waiting for the people who is not believing this.”

“JUROR NO. 3: I feel further instructions dealing with what we are actually supposed to be looking at instead of coming with our own alternatives[,] may[]be exactly what we are supposed to be doing as jurors rather than what we think we are supposed to be doing. Maybe clear definitions on a few terms.”

“JUROR NO. 4: . . . I’ve achieved a level of comfort where I am at at this point. However, we have not taken advantage of a rereading of testimony, for example.”

“JUROR NO. 5: [T]he jury instructions are there, and we understand the law. But I think [t]he interpretation of what was given, the instructions, might be taken in a different way than we should be taking it. . . .

“ . . . I think we understand the main point. But I don’t know if it might take an example or something to click. But I’m comfortable with my verdict.”

“JUROR NO. 6: . . . I think with possible readbacks or possibly the Court actually defining what certain elements are or how they are to be used -- I think we are just limiting ourselves to what we have in the room and not going out of the box to see what else could potentially have those see the light . . . .”

“JUROR NO. 7: . . . I do think reading back some of the testimony would help and some of the instructions, more clarification. And I don’t think it’s totally clear what we are supposed to be basing our decision exactly on and what we are not allowed to base our decision upon. I think there’s been some arguments as to that.”

“JUROR NO. 8: I pretty much agree with Juror No. 7. . . . I think there’s some gray areas that we are not too sure. There seems to be too many questions on what if[s] or maybes. And that’s where it’s all based on where we differ. If we could maybe shed some light a little more on that particular area, we might have a better idea of what to do.”

At this point, the trial court interjected: “You should all realize that if the Court decides this is a hung jury and a mistrial is declared, the next jury is going to have the same information and no more information than you have. So it won’t be any easier for the next jury than it has been for you. . . . Somebody has to eventually come to a conclusion on the matter. It costs you as taxpayers [a] considerable amount of money if it has to be retried. That’s why we look like we are belaboring the situation now because we try to avoid 12 more people going through the same thing.” (Italics added.)

The jurors then continued responding:

“JUROR NO. 9: . . . As far as a readback of testimony, I don’t know that that would really help . . . . I think maybe what might help to reopen some minds is clarification on some of the definitions . . . .

“Also, maybe further instructions on how to interpret the evidence rather than come in there with a bunch of what if and maybe this and a bunch of different scenarios in our minds.”

“JUROR NO. 10: I agree. . . . Maybe clarification of definitions I think would help.”

“JUROR NO. 11: Exactly what [Juror No. 10] said basically.”

“JUROR NO. 12: . . . [I]t’s just a melding of the minds that we have come to a point that all of us can see the same logic behind the sequences. At this point there are individuals that have not come to that. I don’t know if they will. As far as sticking it out and trying to get a solution, I’m all for it if it’s possible. It just -- to me it looks like it might not happen.”

The trial court then stated: “ . . . I want you to understand that when I ask you to go back and see if you can formulate a question regarding readback or instructions . . . , . . . I’m not . . . attempting to punish you for not reaching a verdict. Sometimes verdicts cannot be reached. It’s just that we are doing our utmost to see if this can be brought to closure in one trial rather than multiple trials.

“[W]e can see by the questions that you all approached it in good faith and made a good faith effort. You just haven’t reached a resolution. Generally speaking, as one person said, where there’s a will, there’s a way.

“Generally, in situations such as this, where there are differences of opinion, sometimes those differences can be resolved with everybody being open-minded and willing to discuss with the other jurors their points of view and why they came to those points of view.

“So I’m going to ask that you go back, see if there is a question which you can formulate which requests . . . what readback, if any, is necessary and beneficial, what instruction needs to be reread. And bear in mind that the Court is unable to say, well, what this instruction means is as follows and put it in laymen’s terms. . . . . . .

“But you have to remember . . . that this set of instructions is like a big ball of twine. All of it has to be considered in relation to all the other parts of the instructions. It is one seamless garment . . . . And so if you see that one seems to be in contradiction with another, trust me, they are not in contradiction. They can be utilized together, and they are both applicable. All the ones that have been given are applicable.

“So I’m going to ask you to . . . go back, see what someone may want to hear more about, and maybe that’s the person or persons who feel differently about something. And that may solve the problem in the person’s mind. Maybe not. But I’d like you to give it one more shot . . . .

“[I]f somebody says I’m not listening any more, don’t confuse me with the facts, my mind is made up, then you know that nothing is going to help. But if each of you approaches this with an open mind, that somewhere here there is a resolution of this of some sort, and let’s see if we can find what that resolution is, maybe it might solve the dilemma in which you find yourself.

“I don’t plan to keep you deliberating for an endless period. . . . But I would like very much for you to return to the deliberation room and see if maybe the ones who feel strongest about certain points are willing to listen to . . . a readback of testimony, and see if that might alter their thinking . . . .”

Defense counsel did not object to any of these instructions.

At 11:30 a.m., the jury resumed deliberating. Five minutes later, it requested a readback of Solorzano’s testimony. At noon, it also requested a readback of Ortiz’s testimony. At 1:30 p.m., the court reporter began reading back Solorzano’s testimony. The jury recessed at 2:30 p.m.

On Friday, March 5, the jury resumed deliberations at 9:10 a.m. At 10:30 a.m., it sent out a note asking the court to “hold off” on the requested readback of Ortiz’s testimony. It then continued deliberating until noon.

On Monday, March 8, the jury resumed deliberating at 9:05 a.m. At 11:00 a.m., it announced that it had reached a verdict.

B. Analysis.

1. Waiver.

Preliminarily, the People argue that defense counsel waived defendant’s present contention by failing to object. As they concede, however, no objection is necessary to preserve a claim that a jury instruction violated the defendant’s substantial rights. (Pen. Code, §§ 1259, 1469; People v. Guerra (2006) 37 Cal.4th 1067, 1134.) And we can hardly say that the instructions did not violate defendant’s substantial rights unless and until we reach the merits of his contention.

The People assert that “any claim of judicial coercion is waived by trial counsel’s failure to object,” citing People v. Neufer (1994) 30 Cal.App.4th 244. In Neufer, however, the appellant was not arguing that the trial court gave coercive instructions; rather, the asserted judicial coercion consisted of requiring the jurors to resume deliberations, knowing that they were split 11-1 in favor of guilt. (Id. at p. 253.) We conclude that defendant has not waived this contention.

2. Merits.

In People v. Gainer (1977) 19 Cal.3d 835, the Supreme Court held that “it 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. We adopt the foregoing as a judicially declared rule of criminal procedure. [Citations.]” (Id. at p. 852, fns. omitted; see also id. at pp. 842-843.)

The court explained that instructing minority jurors to reconsider their position is erroneous for two reasons. First, it “directs the jurors to include an extraneous factor in their deliberations, i.e., the position of the majority of jurors at the moment.” (People v. Gainer, supra, 19 Cal.3d at p. 848.) Second, it places “excessive pressure on the dissenting jurors to acquiesce in a verdict,” and thereby threatens the right to jury unanimity. (Id. at p. 850.) Moreover, “[s]ince recognition of the existence of a majority or minority faction on the jury is irrelevant to the issue of guilt, such reference is erroneous, even if contained in an arguably noncoercive, ‘balanced’ . . . charge which explicitly admonishes the majority as well as the minority to reconsider their views.” (Id. at p. 850, fn. 12.)

Instructing the jury that, if it hangs, the case will have to be retried is erroneous because it misstates the law; actually, if the jury did hang, the prosecution could just dismiss the case. (People v. Gainer, supra, 19 Cal.3d at pp. 851-852.) In a footnote, the court added that it also is “common” to instruct a deadlocked jury on “the expense and inconvenience of a retrial. While such language was absent from the charge in this case, it is equally irrelevant to the issue of defendant’s guilt or innocence, and hence similarly impermissible.” (Id. at p. 852, fn. 16.)

The court went on to declare two distinct harmless error standards, one for each of the two objectionable elements of the instruction. A “discriminatory admonition to dissenters” is reversible per se; the appellant need not show prejudice. (People v. Gainer, supra, 19 Cal.3d at pp. 854-855.) The court explained that “the ability of courts to gauge the precise effect on a jury of [such] instructions is limited, both by the traditional secrecy of jury deliberations and by the inherent difficulties of estimating the impact of only one factor injected into the subjective processes of each juror.” (Id. at p. 854.) Thus, “it is difficult if not impossible to ascertain if in fact prejudice occurred; yet it is very likely that it did.” (Id. at p. 855.)

By contrast, “[a]n erroneous instruction to the effect that ‘the case must at some time be decided’ . . . does not threaten to distort the process of jury decision-making to the same degree . . . . Accordingly, a per se rule of reversal is not required . . . .” (People v. Gainer, supra, 19 Cal.3d at p. 855.) Rather, the test is “whether it was reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. [Citation.]” (Ibid.) However, “when the statement is the central feature of instructions given to a deadlocked jury, it is more likely to have tainted their subsequent verdict than when the panel has evinced no division and the statement merely accompanies a requested rereading of portions of the testimony or previous instructions. In the former case, the standard of reversible error presumably would be met, as there would be little to indicate that the heightened potential for prejudice had not been realized.” (Id. at p. 856, fn. 20, italics added.)

Two years later, in People v. Barraza (1979) 23 Cal.3d 675, the Supreme Court elaborated on these principles somewhat. There, the trial court had not instructed the minority jurors to reconsider; however, it had instructed that: “If you fail to agree upon a verdict, the case will have to be tried before another jury . . . .” (Id. at p. 681.) It had also instructed that: “[The] presentation [of the case] to you has involved expense to both sides.” (Ibid.)

The Supreme Court reaffirmed that an instruction that the case will have to be retried is not reversible per se. It continued, however: “The . . . instruction erroneously given herein was the central feature of instructions given to a deadlocked jury and thus involves the heightened potential for prejudice we recognized in Gainer. . . . We must therefore find the error prejudicial unless there are affirmative indications that persuade us this heightened potential was not realized.” (People v. Barraza, supra, 23 Cal.3d at p. 684.) It noted that the jurors had continued to deliberate “for two or three hours,” and had asked for a readback (id., at pp. 684-685); it held, however: “We cannot . . . conclude that these factors suffice to dispel the presumption of prejudice created when a deadlocked jury is given the erroneous instruction at issue.” (Id. at p 685.)

The court then added: “The pervasive influence of such misinformation is further compounded when, as here, the jury charge refers to the expense involved in trying a case. . . . Consideration of expense ‘may have an incalculably coercive effect on jurors reasonably concerned about the spiraling costs of government.’ [Citation.] The improper reference to expense herein thus augments the substantial, if subtle, pressure created by the improper instructions concerning the need for retrial. Although these erroneous instructions may not constitute a direct admonition to the minority, they have for all practical purposes much the same effect, particularly when given in tandem.” (People v. Barraza, supra, 23 Cal.3d at p. 685, quoting The Allen Charge: Recurring Problems and Recent Developments (1972) 47 N.Y.U. L.Rev. 296, 304.)

Here, the trial court did not explicitly encourage the jurors “to consider the numerical division or preponderance of opinion of the jury . . . .” (Cf. People v. Gainer, supra, 19 Cal.3d at p. 852.) Defendant nevertheless argues that it did so implicitly, by stating: “So I’m going to ask you to . . . go back, see what someone may want to hear more about, and maybe that’s the person or persons who feel differently about something. And that may solve the problem in the person’s mind. Maybe not.” (Italics added.) He also quotes its comment that, “ . . . I would like very much for you to return to the deliberation room and see if maybe the ones who feel strongest about certain points are willing to listen to . . . a readback of testimony, and see if that might alter their thinking . . . .” (Italics added.)

We need not decide whether the jury would have understood these comments as referring to the minority jurors. Here, as in Barraza, the trial court gave prohibited and inappropriate instructions to the effect that, if the jury remained deadlocked, the case would have to be retried before another jury. In addition, it gave prohibited and inappropriate instructions regarding the expense of the trial. These erroneous instructions were central features of instructions given to a deadlocked jury. Accordingly, under Barraza, there is a rebuttable presumption that the error was prejudicial.

The only affirmative indications that the jury was not actually coerced were twofold: (1) the jury continued to deliberate for about six hours, and (2) the jury requested and received a readback of testimony. Once again, however, in Barraza itself, the jurors had continued to deliberate for two or three hours and had asked for a readback; the Supreme Court held that these factors were insufficient to rebut the presumption of prejudice. (People v. Barraza, supra, 23 Cal.3d at pp. 684-685.) We cannot say that the difference between two to three hours and six hours of deliberations is so great that the latter disproves prejudice even though the former does not.

Moreover, in Barraza, the trial court gave some instructions that tended to lessen the coercive effect of its erroneous instructions. For example, it told the jury: “‘Of course, by pointing out to you the desirability of your reaching a verdict, the court is not suggesting to any of you that you surrender conscientious convictions of what the truth is and of the weight and effect of all the evidence. [W]hile each of you must decide the case for yourself and not merely acquiesce in the conclusion of your fellow jurors, you should examine the questions submitted to you with candor and frankness, and with proper deference to and regard for the opinions of each other. It is your duty, after full deliberation and consideration of all of the evidence, to agree upon a verdict, if you can do so without violating your individual judgment and your conscience.’” (People v. Barraza, supra, 23 Cal.3d at p. 682.) Here, the trial court gave no such mitigating instructions.

The People point out that the jury was not hopelessly deadlocked; most of the jurors had indicated that there was still a possibility of reaching a verdict, especially if they got readbacks and/or additional instructions. This, however, goes to the propriety of requiring the jury to deliberate further at all. Before doing so, the trial court had to find, in its discretion, that there was a “reasonable probability that the jury can agree.” (Pen. Code, § 1140; see People v. Harris (2005) 37 Cal.4th 310, 363-365.) Thus, virtually every time a trial court gives unduly coercive instructions to a deadlocked jury, there is still at least a possibility of agreement. This fact does not suffice to rebut the presumption of prejudice.

We can only second our colleagues in People v. Hinton (2004) 121 Cal.App.4th 655, who pointed out that “[t]he . . . error here is particularly troubling considering the law is so well settled.” (Id. at p. 660.) “ . . . Gainer . . . is now the established law of this state and has been so for more than 25 years.” (Id. at p. 661.) Various benchbooks and treatises discuss the right and wrong ways to instruct a deadlocked jury. (Id. at pp. 661-662.) People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120 even set forth a model instruction, to which the Moore court then gave the judicial version of the Good Housekeeping seal. (See Hinton, at p. 661.)

We therefore conclude that the trial court gave erroneously coercive instructions and that the resulting presumption of prejudice has not been rebutted. Hence, we must reverse.

III

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] “Sapo,” which means “toad” in Spanish, is also Mexican slang for “scoundrel” or “rascal.” , as of Oct. 5, 2006.)