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People v. Clavano9/8/2005
994) 30 Cal.App.4th 244, 254; see People v. Saunders (1993) 5 Cal.4th 580, 589-591.) Nevertheless, defendants' claim fails on its merits.
"The applicable legal principles are well established. Under section 1140, the trial court is precluded from discharging the jury without reaching a verdict unless both parties consent or `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.' . . . ` he determination whether there is a reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." [Citation.]' [Citaitons.]" (People v. Sheldon (1989) 48 Cal.3d 935, 959.)
"` he practice of inquiring into the jury's numerical division, without finding out how many are for conviction and how many for acquittal, was expressly approved in [People v.] Carter [(1968) 68 Cal.2d 810, 815].' [Citation.] Such inquiry is justified in the discharge of the court's `statutory responsibility of assuring that a verdict is rendered "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." [Citation.]' [Citation.]" (People v. Proctor (1992) 4 Cal.4th 499, 538.)
However, inquiring how many jurors favor conviction and acquittal is strongly disfavored. Such inquiry "has no bearing upon the question of reasonable probability of agreement and therefore is of no concern to the court." (People v. Carter, supra, 68 Cal.2d at p. 815, fn. 3.) Moreover, a trial court's remarks urging an agreement are likely to be held coercive where the trial court has learned how many jurors favor conviction and how many favor acquittal, either through its own questioning or through voluntary statements of jurors. (Id. at p. 816, and cases cited.) In these circumstances, jurors may construe the trial court's adjuratory remarks as meaning that the trial court, having heard the evidence, agreed with the majority jurors. (Ibid.) But this is not necessarily so.
The state Supreme Court has said: "There is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror favoring acquittal." (People v. Sheldon, supra, 48 Cal.3d at p. 959.) Whenever the trial court has learned how the jurors have voted, it has a "duty to be more than careful" in its remarks so the jury will "clearly understand" that it is "not urging, or even suggesting a verdict one way or the other." (People v. Walker (1949) 93 Cal.App.2d 818, 825.)
Still, " he basic question . . . is whether the remarks of the court, viewed in the totality of applicable circumstances, operate to displace the independent judgment of the jury in favor of considerations of compromise and expediency." (People v. Carter, supra, 68 Cal.2d at p. 817.) In other words, " he question of coercion is necessarily dependent on the facts and circumstances of each case." (People v. Sandoval (1992) 4 Cal.4th 155, 196; accord, People v. Carter, supra, at p. 816; People v. Burton (1961) 55 Cal.2d 328, 356.)
Here, the trial court did not abuse its discretion in directing the jury to conduct further deliberations in an attempt to reach an agreement. As the trial court noted, both the trial and the deliberations were "chopped up" over a period of several days. Further, juror Nos. 1 and 2 were equivocal in answering the trial court's question whether they thought furthe
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