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People v. Mendoza12/9/2002
he jurors that copies of the instructions that were being read had erroneously and inadvertently been placed on the juror's seats when the jury had come into the court for instructions on the read-back at 1:40 p.m. The court informed the jurors that it was improper, under the facts of this case, for the jury to have been informed of, or to have given consideration to, evidence or allegations of prior convictions. The court then addressed the jurors as follows:
"THE COURT: I'm going to poll the jurors and ask whether any of you read this instructions before we had a chance to collect it or understood it or in any way were influenced by it in your deliberations and your participation on the guilt determination for count I.
"Juror No. 1 did the instruction play any role whatsoever?
"JUROR NO. 1: No.
"THE COURT: Juror No. 2, were you in any way influenced by this?
"JUROR NO 2: No.
"THE COURT: Juror No. 3, were you in any way influenced by this?
"JUROR NO. 3: No."
The court called upon each of the remaining jurors by number without repeating the question. All of the jurors responded, "No." The court then asked each counsel whether there were any other questions they wished the court to address to the jurors. Both counsels replied they had no further questions.
Following presentation of evidence, the jury found all the allegations of prior convictions true.
DISCUSSION
Mendoza alleges on appeal that the inadvertent placement of the draft jury instructions on the jurors' seats constituted prejudicial juror misconduct. He also contends the polling of the jury was both improper and prejudicial. The People contend the issue should be deemed waived for purposes of appeal, and, in the alternative, the errors complained of were not prejudicial by any applicable standard.
I. Inadvertent Disclosure of Jury Instruction
The parties urge various characterizations of the erroneous placement of the jury instructions on the jurors' chairs. The People contend the error was ordinary evidentiary error. Mendoza contends variously that the error should be characterized either as juror misconduct or as instructional error. We conclude the error most closely approximates the situation where one or more jurors inadvertently receive information from an out-of-court source.
The error was not an ordinary evidentiary error because the instructions were not offered or accepted as evidence. Nor was the error instructional because, at the time the error was committed, the material the jury received had nothing to do with instruction; it had to do with the untimely revelation of facts. Finally, the instructions did not come into the jurors' hands by way of the court. We surmise the instructions came to the jury as a result of the actions of a well-intended clerical support person who misunderstood their charge. Thus, we conclude the untimely receipt of the jury instructions by the jurors is best characterized as an inappropriate revelation of facts to the jury from a source outside the court.
The receipt of information from outside the court by a juror is a species of misconduct and "constitutes grounds for a new trial if the defendant has been prejudiced thereby." (§ 1181, subd. 2; People v. Von Villas (1992) 10 Cal.App.4th 201, 253.) We must presume, on the basis of the record, that both parties only became aware of the fact the jury had erroneously received the draft jury instructions after the verdict of guilty to all substantive counts had been returned. At that point in the proceedings, objection to the improper revelation or a request for
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