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People v. Clavano9/8/2005
. How about you? Do you feel the same way:
"JUROR NO.12: Yes.
"JUROR NO. 11: Yes.
"JUROR NO. 10: I agree.
"JUROR NO. 9: Yes.
"JUROR NO. 8: Yes.
"JUROR NO. 7: Yes.
"THE COURT: People, inquiry?
"[THE PROSECUTION]: I would like to approach.
"THE COURT: All right.
"(A discussion was held at the bench which was not reported.)
"THE COURT: All right. Ladies and gentlemen, if I sent you back there for further deliberations, do you think that you could arrive at a verdict?
"JUROR NO. 4: Eight of us could.
"JUROR NO. 2: Possibly, but not likely.
"THE COURT: You know, the fact is, and this is what the attorneys and I were just talking about, this trial was kind of chopped up as a result of certain circumstances that were beyond our control, but your deliberations have been chopped up as well. And it seems to me that perhaps with further attempt at the present time, and I'm talking about an attempt by all of you, to discuss the issues that are in -- you know, that are in contest, if you would, and see if there can be some -- some resolution of those issues.
"What do you think?
"JUROR NO. 6: Well, that's what we've been trying to do for the last three days, actually.
"THE COURT: Well, that's not entirely accurate, because you have not been out for jury deliberations that long.
"JUROR NO. 6: Almost from the beginning -- this is our third day actually.
"THE COURT: I'm going to ask you to go back and try it again. I want you to look at those jury instructions. Look them over and look over the evidence that was presented, and we'll bring you back in in a little while and let you know; okay?"
Approximately one hour later, the jury returned guilty verdicts and true findings against both defendants. Amando's counsel was not present when the verdicts were read. Thereafter, the trial court, the prosecutor, and Amando's counsel spoke with 11 of the 12 jurors for approximately 45 minutes.
Defendants moved for the release of juror identifying information, for the purpose of investigating whether any juror misconduct occurred during the final hour of deliberations. In support of the motion, Oliver's counsel alleged that one of the jurors told him, "we felt like we were spanked by the judge saying, `Hey you need to get going.'" The trial judge denied the motion, and noted that the juror's comment was made "in a humorous vein."
Defendants later moved for a new trial on the ground of juror misconduct and on the further ground that the trial court improperly instructed the jury by coercing them to reach a verdict. At the hearing on the motion, Oliver's trial counsel noted that defendants had been able to contact some of the jurors, and found no evidence of any juror misconduct. Counsel then argued that the motion should be granted based on the trial court's comments and instructions to the jurors following their announcement that they were deadlocked. The trial court denied the motion.
DISCUSSION
A. The Trial Court Did Not Coerce the Jury to Reach a Verdict
Defendants contend that the trial court improperly coerced the jury to reach a verdict after the jury announced it was deadlocked. We disagree.
We first note that, by failing to object, either promptly or at all, concerning either the trial court's inquiry into how the jurors had voted or any of the trial court's other comments or further instructions, defendants have waived any error. (Evid. Code, § 353; People v. Neufer (1
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