Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160008.
Lambden, J.
Defendant Jermaine Alexander appeals from his conviction for possession of a firearm by a felon, which resulted in a sentence of 25 years to life under the “Three Strikes” law. Defendant argues that his conviction must be reversed because the trial court violated his constitutional rights in two respects. We agree with him that the trial court committed an egregious abuse of discretion that prejudicially violated his constitutional due process rights when it adjourned proceedings for 10 days to take a planned vacation in the midst of a divided jury’s deliberations, without considering any alternatives. Therefore, the judgment is reversed.
BACKGROUND
In December 2008, the Alameda County District Attorney filed an information charging defendant with one count of second degree robbery with personal use of firearm enhancement, and one count of possession of a firearm by a felon. The district attorney also alleged that defendant had suffered four prior convictions, including three serious prior felony convictions, and should be sentenced pursuant to the Three Strikes law.
The Pre-Trial Schedule Discussion
On February 25, 2009, prior to trial, counsel and the court, Judge Rhonda Burgess presiding, discussed scheduling. Judge Burgess said she was planning a trip to the Gold Country during the first three days of the week of March 23rd, and to be out the day after, Thursday, March 26th. Therefore, she was thinking about the courtroom “being dark” that week. She said she would let the jury know the trial might go beyond March 23rd and possibly through to April 3rd, although she thought this was very unlikely. Later that same day, Judge Burgess said the courtroom would be dark on Fridays, “with the exception of Friday[, March] 20th, ” and she wanted everyone, including jurors, to be available on the 20th “if we’re at the point in the case where we’re at deliberations.” No one raised any objections to the schedule, nor suggested that another judge substitute for the presiding trial judge during any portion of Judge Burgess’s absence.
The Trial
The jurors and alternate jurors were sworn in on March 3rd and 4th, and the trial began on March 10th. The prosecution presented six witnesses, defendant presented three witnesses, and both sides rested on March 17th.
The Prosecution’s Case
The Robbery
Winston Edwards testified that he was robbed by two men at MacArthur Boulevard and 35th Avenue in Oakland, California, around 12:45 a.m. on December 2, 2007. The two men approached him and held him up. Edwards saw a gun sticking out of the jacket of one of the men that seemed to be a silver or chrome semi-automatic. The armed man was African-American, with chin-length dreadlocks, a little shorter than Edwards (who was 6’1”), of stocky build, and weighed 160 to 170 pounds. He wore dark jeans, a “hoodie” (described as a “light sweater jacket, zip-up” with a hood) and a black baseball cap with a stiff bill and a sports logo. Edwards saw the man’s face from a few feet away. The man had a reflective gleam coming from his mouth, as if he were wearing a custom dental fixture with precious metals or stones.
Edwards, afraid for his life, gave the man his wallet, which held some change and a couple of $100 bills, including an “old style” $100 bill. The man removed the money and returned Edwards’s wallet to him. The other man frisked Edwards, taking his cell phone, a pack of cigarettes, and a lighter. This man was a little shorter and wore dark jeans, a hoodie, and a cloth wrapped around the top of his head.
The men let Edwards go and walked down 35th Avenue, towards MacArthur Boulevard. Edwards went home and contacted police, who arrived about 15 minutes later.
At trial, Edwards could not identify defendant as one of the robbers, and testified that the jacket recovered from defendant that was shown to him at trial did not really resemble the jacket of the person who robbed him. He recalled the hoodie worn by the robber had a multi-colored repetitive pattern on it, but agreed that if he told the officers it was a black sweatshirt with a gray pattern, that was accurate.
Defendant’s Arrest
Oakland Police Officer Joel Aylworth testified that he contacted Edwards at Edwards’s home shortly after the incident occurred. Aylworth said Edwards described the robbers as two Black males, and the armed robber as approximately 5’8”, 160 pounds, with black hair, dreadlocks, and gold teeth, and wearing a black hat, a black jacket (also referred to as a sweatshirt during his examination), with some type of gray or white pattern on it, a white shirt, and dark jeans. Aylworth broadcast Edwards’s description, and received a call about 10 to 15 minutes later that a person matching one of the description had been spotted.
Oakland Police Officers Anthony Tedesco and Daniel Bruce testified that on the night in question they were driving south on 35th Avenue when they heard the broadcast description of the two robbers. Tedesco recalled that one was described as a Black male, wearing a black hat, black and grey jacket, and black jeans, with short braids or dreadlocks. Bruce recalled a similar description, but recalled a reference to a “black patterned sweatshirt or a black sweatshirt with a pattern on it, ” and that the suspect was described as armed with a handgun The other was described as a Black male, wearing a black shirt and black pants.
Tedesco and Bruce testified that as they drove on 35th Avenue a few blocks from MacArthur, they saw a man urinating on a fence. They turned onto School Street and stopped to issue him a citation. As Tedesco got out of the patrol car, he noticed two other men on either side of a parked car. One of them was defendant, who was wearing a black jacket with a gray design on the back, black jeans, had short braids, and appeared to match one of the recently broadcast descriptions. Defendant’s eyes got wide and he started walking, and then running, away from the officers towards 35th Avenue.
The officers further testified that they pursued defendant as he ran down 35th Avenue and then Penniman Street, and entered the back of a residence by breaking into a locked gate. Tedesco noticed defendant make a throwing motion with his right hand and saw two objects come out of his hand, but it was too dark to see what they were; he then heard the sound of a heavy metal object landing on concrete. Bruce testified that, from 10 feet behind Tedesco, he heard the sound of metal on concrete as well. On cross-examination, he testified that he had reviewed Tedesco’s report prior to testifying and was aware that it referred to the sound of metal on concrete, that he did not mention hearing the sound of metal on concrete in his own report, and that he had not mentioned the issue during the preliminary hearing.
The officers also testified that Tedesco caught up to defendant, who resisted arrest until Bruce struck him with his baton, after which defendant was handcuffed. Tedesco and Bruce each saw a black and gray semi-automatic handgun on the grass, a few feet away from defendant. Tedesco saw that a magazine had been inserted into the weapon and that it had an exposed hammer that was cocked back. Tedesco also saw a black and silver Samsung cell phone lying on the grass a few feet away from the gun, and a hat on the ground in the area. Both the gun and the phone were on the ground in the locations where he had seen defendant throw objects. Defendant asked Tedesco to recover his cell phone and hat.
Tedesco testified that defendant had a gold tooth and $1,000 in cash in his pants pocket, which (according to the testimony of an Oakland police department property specialist), included an “old style” $100 dollar bill. The clothing Tedesco recovered and booked into evidence included a black hat, a black jacket with a gray “1980” on the back, and some black jeans.
Edwards and Aylworth testified that they went to the arrest scene, where an in-field “showup” was held. Edwards remained in the patrol car as defendant stood about 25 feet away with lights illuminating him, wearing dark jeans and a white T-shirt. Initially, Edwards said, he was uncertain defendant was one of the robbers because his clothing was different. However, Edwards testified, when defendant subsequently stood with his hat and jacket on, he indicated defendant likely was one of the robbers, telling police that he was positive, and when asked if he were “a hundred percent certain, ” he responded “yes.” Nonetheless, he never told police a percentage, and meant to try to convey “that it wasn’t one hundred percent but it was damn close.”
Bruce also testified that during the showup, he realized that defendant was the same man who had thrown a beverage can containing liquid at him the night before. The can had passed by his head and landed a few feet away. The man gave Bruce the middle finger, laughed, and ran away. Bruce had radioed a report of the incident, saying the man was running southbound on 35th, but no one was apprehended that night.
Bruce further testified that after arresting defendant, he took him to the hospital consistent with department policy. At the hospital, defendant told him, “ ‘I could have kicked your asses.’ ” “ ‘I should have tried to shoot me so you could have killed me. You would have gotten away with it.’ ”
The Defense Case
Defendant’s cousin, Dejuan Heard, testified that in the hours before defendant’s arrest, beginning in the afternoon, he was with defendant and others drinking beer on the front porch of a friend’s house near School Street. Between 1:15 am. and 2:00 a.m., the group headed to a store to buy liquor. On the way, Heard urinated outside, just as a patrol car turned the corner. One of the officers got out of the car and, calling out defendant’s given name, said, “Jermaine, come here.” Defendant did not want to be arrested, so he ran. The officer who was driving told the group to get out of there if they did not want to go to jail. Heard also acknowledged he had previously been convicted of two misdemeanors for disobeying a court order.
The defense also presented two expert witnesses. Dr. Robert Schomer, a social psychologist, testified as a forensic expert in the area of perception, memory, and eyewitness identification, issues that related to the robbery charge. Jacobus Swaneboel, an expert in firearm examination and fingerprint analysis, testified that he did not find any prints on the gun recovered by police. He found a few partial prints on the currency he tested, and could not match them with exemplars of Edwards’s prints.
Jury Deliberations, the Verdict, and Sentencing
The jury began its deliberations at 1:55 p.m. on Wednesday, March 18th.. Around 3:00 p.m., the jury requested Edwards’s testimony about his statements to police before and after the in-field showup, Edwards’s and Aylworth’s testimony about the showup process, Aylworth’s crime broadcast, and the Oakland Police Department written reports. A readback of Edwards’s entire testimony started at 4:13 p.m. and, after the court adjourned at 5:00 p.m., continued the next morning. Also on the morning of March 19th, the jury requested readbacks of portions of Tedesco’s and Bruce’s testimony, focusing on their chase of defendant, his throwing of objects, the sounds they heard, and the placement of the objects they found in the backyard.
At 3:00 p.m. that same day, March 19th, the jury reported it had reached a verdict on one count and could not reach a verdict on the other. The court informed counsel of its plans to talk with the jury, including that it would give the jury the additional instruction on further deliberations described in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore). Defense counsel objected that the instruction would make it look like the jurors were being pressured to come to a verdict, and objected in particular to the suggestion in the instruction that the jury role-play.
The court then called in the jury, and asked if any additional readbacks would help. The foreperson reported, “I don’t think there’s-it sounds like there’s not anything more you guys can do. More information is not going to help.” The court told the jury it had not deliberated “that long, ” and proceeded to give the Moore instruction. Upon the court’s inquiry, the foreperson reported the jury was divided 11 to 1 on the remaining count after five or six polls, and asked for further guidance regarding reasonable doubt. The court referred the jury to the reasonable doubt instruction, and sent it out for further deliberation at 3:50 p.m., telling jurors the court would check back with them at 4:30 p.m.
At about 4:40 p.m., the jurors indicated they were making progress, and asked if the court would allow them to continue deliberating for about 15 minutes, which the court allowed. The court then told counsel it intended to have the jury continue their deliberations, but not until Monday, March 30th. The court stated:
“Our schedule is such that we are dark in this courtroom next week. I indicated to counsel that I wanted to make sure that any decision that I made in terms of how to proceed on whether or not the jury, I would have them continue their deliberations. I wanted to make sure that my decision was not based on our schedule. We are going to be dark all next week. We will be back, and we can be in session on the 30th of March. And I know that if we were available next Monday, I would without any hesitation tell the jurors that they need to come back next Monday in order to continue their deliberations.”
Defense counsel then stated: “Just for the record, I did express-respectfully, my request was that the court not bring them back to deliberate further. My only concern is that-my main point was that the evidence in this case I think probably took a total of about three days, maybe three and a half days, and they have spent a day and a half, approximately half the time that they spent listening to the case, they’ve taken a pole [sic] at least five or six times according to the last time they were in court. My concern is that by bringing them back here is again this insinuation that they must come to a verdict when that is not the state of the law. I know that’s not the court’s intention, but that is my concern. I understand the court’s ruling.”
The court responded: “Okay. I think also what happened recently, just within the last half hour, the indication that they felt they were making some progress, and, you know, so it sounds to me as if there is more discussion that can be had in the case. So I want to give them a full opportunity to have discussions without rushing to meet any kind of schedule.”
At 5:00 p.m. on Thursday, March 19th, the court admonished the jurors not to talk about the case with anyone, including other jurors, and not to make up their minds about any issue in the case until after further deliberations. The court then excused the jurors until Monday, March 30th. There was no mention of the jury returning to deliberate on Friday, March 20th, despite the court’s pre-trial direction that everyone be available on that date, or on the following Thursday, March 26th, or Friday, March 27th, nor was there any discussion about a judge substituting for Judge Burgess during her absence.
The jury resumed deliberations on Monday, March 30th, at 9:35 a.m. By 10:00 a.m., the jury was back in the courtroom with two verdicts, as indicated on two separate verdict forms. The jury found defendant not guilty of the second degree robbery count, and guilty of possession of a firearm by a felon. The forms for these verdicts were dated March 19th and March 30th respectively.
The court conducted a bench trial of the alleged priors and found them all to be true. Based on count two and the priors allegations, the court sentenced defendant to 25 years to life, and imposed a restitution fine of $1,600. Defendant subsequently filed a timely notice of appeal.
DISCUSSION
I. The Court’s Adjournment to Accommodate its Vacation Schedule
Defendant first argues that the trial court abused its discretion by adjourning the trial in the midst of jury deliberations without good cause, in violation of defendant’s constitutional rights to due process, a fair trial, and an impartial jury. Defendant argues the court’s error requires reversal pursuant to People v. Santamaria (1991) 229 Cal.App.3d 269 (Santamaria).
The People argue defendant has forfeited this appellate claim by failing to make an objection below on this specific ground. The People also argue that the court’s decision to adjourn, if in error, was not so prejudicial as to require reversal.
We conclude the court’s 10-day adjournment (from Friday, March 20th, to Monday, March 30th), in the midst of deliberations by a divided, and potentially deadlocked, jury regarding serious criminal charges, solely to accommodate the court’s vacation schedule, without the court making any effort to enable the jury to promptly continue its deliberations, was an abuse of discretion at least as egregious as that found in Santamaria, supra, 229 Cal.App.3d 629. The adjournment was a prejudicial abuse of discretion that violated defendant’s constitutional due process rights. An objection by defendant was unnecessary in light of the egregiousness of the court’s error.
A. Forfeiture
As a preliminary matter, we reject the People’s forfeiture argument, as did the court in Santamaria, supra, 229 Cal.App.3d 269. The Santamaria court denied what it characterized as the People’s “belated” forfeiture argument (id. at p. 279, fn. 7), explaining that the trial “court’s abuse of discretion here was of such magnitude that whether or not appellant objected is irrelevant.” (Ibid.) We reach the same conclusion here, as we discuss further below.
The People argue that “cases frequently recognized and relied upon by the California Supreme Court generally preclude appellate review of a complaint of improper continuance during jury deliberations where the defendant made no timely and contemporaneous objection to the continuance in the trial court.” This argument is unpersuasive.
Our Supreme Court has indicated that an objection below to an improper adjournment is not necessary to raise the matter on appeal if the trial court’s error is sufficiently egregious. As the People point out, in People v. Ochoa (2001) 26 Cal.4th 398 (Ochoa), disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226, 263, footnote 14, the court indicatedthat “Santamaria ... did not purport to abrogate the duty to object generally.” However, as the People acknowledge, the court also distinguished the circumstances before it from those in Santamaria by noting that “[o]n its facts, [Santamaria] found the court’s abuses was so great as to warrant appellate relief notwithstanding the absence of objection. The facts of Santamaria differ markedly from those here, and it therefore does not govern our analysis.” (Ochoa, supra, at pp. 440-441, italics added.) Therefore, the Ochoa court recognized that an appellate court, when faced with sufficiently egregious circumstances, can address a claim of improper adjournment, even in the absence of an objection below. We also note, independent of the parties’ briefing, that this is consistent with the general principle that appellate courts have the discretion to consider appellate claims of significant constitutional error, even in the absence of a specific, timely objection below. (See, e.g., People v. Vera (1997) 15 Cal.4th 269, 276-277 [“A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights”].)
Defendant cites a number of cases in which appellate claims that the trial court erred in allowing jury separation were forfeited for lack of objection. However, these cases involved far less egregious circumstances than those present here, such as where the defendant agreed to the adjournment, holidays were imminent, or different phases of a case were involved. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1161-1162 [13-day adjournment during deliberations on the penalty phase of a capital case previously agreed to by the parties, where defendant refused to allow a substitute judge to preside]; People v. Gray (2005) 37 Cal.4th 168, 226 [defendant instigated the 338-day delay between the guilt and penalty phases of a capital case by filing a writ application in appellate court, and his counsel at one point stated that a delay of several months was a “good idea”]; People v. Johnson (1993) 19 Cal.App.4th 778, 791-794 [parties agreed to a 17-day holiday recess]; People v. Harris (1977) 73 Cal.App.3d 76, 83 [absence of an objection to a five-day recess during jury deliberations, of which only one day was not a holiday or weekend, barred appellate claim]; People v. Heishman (1988) 45 Cal.3d 147, 175 [involving an appellate claim about insufficient admonitions rather than a challenge to adjournment].)
None of these mitigating circumstances were present in the current case. Defendant did not instigate the lengthy adjournment, which occurred in the midst of jury deliberations, not between any two phases of the case. Defendant did not agree to the adjournment; to the contrary, his counsel’s objection to further deliberations amounted to an objection to any adjournment, even if it was not based on the specific grounds defendant argues on appeal. Defendant did not reject any substitute judge, and there is no indication that any holidays occurred during the adjournment (although two weekends were included). Although the court told the parties and the jurors before trial to be available if jury deliberations were necessary on Friday, March 20th, it did not bring the jury back on that date. Similarly, even if the court were intent on taking its three-day Gold Country vacation at the beginning of the following week, it did not consider the jury continuing its deliberations on Thursday, March 26th, when the court indicated it would be back from its trip (although not back at court), on Friday, March 27th, or before a substitute judge.
Accordingly, we reject the People’s forfeiture argument based on the egregiousness of the court’s error, which we discuss further below.
B. Error
Regarding the merits, we find error based on our Supreme Court’s guidelines and Santamaria, supra, 229 Cal.App.3d 269.
Our Supreme Court has stated that “[s]crutiny of the case law suggests that the determination whether delays caused by judicial schedule conflicts were abuses of discretion must proceed case by case, applying principles of common sense to the totality of circumstances, including the reason for the conflict, the length of the delay, the extent to which it could have been avoided by proper planning and allocation of judicial resources, the frequency, duration, and cause of any prior interruptions, and any evidence, available to the presiding court at the time it ordered the postponement, that the delay would work against the defendant’s litigation interests.” (Stroud v. Superior Court (2000) 23 Cal.4th 952, 969-970.)
Santamaria, supra, 229 Cal.App.3d 629, relied upon heavily by defendant, is one of the cases cited favorably by the Supreme Court in Stroud. (Stroud v. Superior Court, supra, 23 Cal.4th at p. 969.) In Santamaria, Division Three of this district considered the scope of the trial court’s discretion pursuant to section 1121 to adjourn the jury in a capital case for 11 days. The Santamaria court determined that the trial court abused its discretion, violated the defendant’s constitutional due process rights, and committed prejudicial error.
The defendant in Santamaria was tried on charges of first degree murder and robbery. (Santamaria, supra, 229 Cal.App.3d at pp. 272.) Jury deliberations began on the 14th day of trial, late in the afternoon, and continued the next day. (Id. at pp. 274-275.) On the afternoon of that second day, the court admonished the jury not to discuss the case with anyone and adjourned the proceedings for 11 days. (Id. at p. 275.) When deliberations resumed on the morning of the 11th day, the jury requested its instructions and asked a question of the court, then reached a verdict at 2:30 p.m. (Ibid.) The jury found defendant guilty of first degree murder and robbery, and found a robbery-murder special circumstance allegation to be true. (Id. at p. 272.)
After the jury was excused, the court and the parties made statements for the record. The prosecutor said he suggested that another judge preside in the judge’s absence; the defense counsel said he mentioned the existence of section 1053, which allowed such a substitution, but did not otherwise object; and the court said that when the jury was selected, he indicated that they would be off the week of the adjournment. (Santamaria, supra, 229 Cal.App.3d at pp. 275-276.)
The Santamaria court first considered whether or not the trial court had erred. It found that, although Penal Code section 1121 grants the court discretion to allow jurors to separate even after the cause is submitted, this discretion is not unlimited. (Santamaria, supra, 229 Cal.App.3d at p. 276.) The parties, the witnesses, and the victim have a right under section 1050 to an “expeditious disposition” of a criminal case, and under section 1050 and “general principles” governing criminal trials, continuances “are to be granted only for ‘good cause.’ ” (Santamaria, at p. 277.) The court found no evidence of good cause because the record indicated only that the trial judge was going to be “away” for a period of time covering two holidays, and there was no indication that the trial continuance was due to any exceptional circumstances, such as administrative duties or a congested calendar. (Id. at p. 277, citing People v. Gopal (1985) 171 Cal.App.3d 524, 544-546 [judge’s conflicting responsibilities as presiding judge held to be “ ‘exceptional circumstances’ ” constituting good cause for a 10-day continuance] and People v. Katzman (1968) 258 Cal.App.2d 777, 789 [judge’s appointment to attend conference held not to be good cause for a 10-day continuance], disapproved of on other grounds in Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 777-780 & fn. 11.)
Penal Code section 1121 states in relevant part, “The jurors sworn to try an action may, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. Where the jurors are permitted to separate, the court shall properly admonish them.” (§ 1121.)
The court also found the timing and the duration of the continuance “particularly troublesome” because “[a] long adjournment of deliberations risks prejudice to the defendant both from the possibility that jurors might discuss the case with outsiders at this critical point in the proceedings, and from the possibility that their recollections of the evidence, the arguments, and the court’s instructions may become dulled or confused.” (Santamaria, supra, 229 Cal.App.3d at pp. 277-278.) Also, a long separation during deliberations “disrupts the very process and pattern of the jury’s orderly examination of the evidence.” (Id. at p. 278.)
The Santamaria court also noted the existence of an alternative to suspending deliberations, namely the trial judge’s ability to utilize the procedure outlined in section 1053 to secure the appointment of a substitute judge during the trial judge’s absence. (Santamaria, supra, 229 Cal.App.3d at p. 278.) It also considered that defendant “was faced with a serious charge, a special circumstances first degree murder.”
Penal Code section 1053 states in relevant part: “If after the commencement of the trial of a criminal action or proceeding in any court the judge... presiding at the trial shall die, become ill, or for any other reason be unable to proceed with the trial, any other judge or justice of the court in which the trial is proceeding may proceed with and finish the trial.... The judge... authorized by this section to proceed with and complete the trial shall have the same power, authority, and jurisdiction as if the trial had been commenced before that judge or justice.” (§ 1053.)
The Santamaria court concluded that “[t]he risk of prejudice inherent in suspending deliberations for 11 days was considerable, from the prolonged exposure of the jurors to outside influences, from the strong probability that their recollections of the evidence and the instructions would fade or become confused, and from the subversion of the pattern of orderly deliberation, ” and found no good cause for the delay nor any exploration of appointing a substitute judge. (Santamaria, supra, 229 Cal.App.3d at pp. 278-279.) It held that “[u]nder these circumstances, the only conclusion possible is that the trial court exceeded the bounds of reason and abused its discretion with this inordinate interruption in deliberations.” (Id. at p. 279.)
The error in the present case was at least as egregious as that found in Santamaria for several reasons. First, as Santamaria makes clear, a presiding judge’s planned vacation is not good cause to adjourn a criminal case in the middle of jury deliberations.
Second, it is apparent that the lengthy adjournment could have been avoided with proper planning and attention. The trial judge’s pretrial comments indicated that she could preside over deliberations on Friday, March 20th, and would be back from the Gold Country by Thursday, March 26th. Inexplicably, the court did not consider resuming deliberations on either of these dates, and did not seek the appointment of a substitute judge.
Third, the trial court’s action was arguably much more egregious than that in Santamaria because the jury in the present case was at a particularly delicate stage of deliberations. It had reported on the afternoon of March 19th that after several polls, it remained divided 11 to 1 on one of the counts, and that there was not additional information that could help it reach a decision. After the court’s Moore instruction, the jury reported that it was making some progress, but it remained divided at the end of the day. The court was aware, therefore, that a deadlocked jury was a real possibility. The timing and duration of its 10-day adjournment was more than “particularly troublesome” under the circumstances. (Santamaria, supra, 229 Cal.App.3d atp. 278.)
Fourth, although the evidence presented in this case was much less than that presented at trial in Santamaria, the court should have known that the jury’s consideration of this evidence was nonetheless likely to be negatively affected by a prolonged interruption. With regard to the second count, possession of a firearm by a convicted felon, the defense raised questions about the origin of the gun recovered by the police, suggesting that the arresting officers, Tedesco and Bruce, were at least mistaken in their belief that it belonged to defendant and may have had a “bit of a grudge” against defendant because he had thrown a beverage can at Bruce the night before, and that a juror could believe that the officers were lying. The jury obviously took the defense’s arguments seriously, because it asked to review the officers’ testimony and the police reports. Therefore, it is apparent that the officers’ testimony, and their credibility, were important to the jury’s deliberations. Common sense tells us that it is highly probable the jurors’ impressions of the officers and their testimony would fade as a result of the 10-day adjournment.
Finally, although this was not a capital case like Santamaria, the court was aware that defendant potentially faced a very long sentence due to the Three Strikes allegations. Indeed, the court sentenced defendant to 25 years to life for gun possession by a felon, despite defendant’s acquittal of the robbery charge. Any improper disruption of the jury’s deliberations had a great impact on defendant.
The trial court ignored all of these circumstances to accommodate its own vacation schedule, despite its previous indication that it would conduct deliberations on Friday, March 20th, if necessary, and the defense objection to further deliberations because of a purported deadlock. We conclude, as did the Santamaria court, that there was considerable, inherent risk in suspending deliberations for 10 days from the prolonged exposure of the jurors to outside influences and the strong probability that their recollections of the evidence and the instructions would fade, and that the adjournment, particularly in the face of difficult deliberations, subverted the pattern of orderly deliberation by the jury, in the absence of good cause or any exploration of the possible alternatives (i.e., continuing deliberations on March 20th or sometime the following week, or securing the appointment of a substitute judge). We hold that “[u]nder these circumstances, the only conclusion possible is that the trial court exceeded the bounds of reason and abused its discretion with this inordinate interruption in deliberations.” (Santamaria, supra, 229 Cal.App.3d at p. 279.)
The People do not seriously contest that the court erred. Instead, its substantive opposition is largely that defendant was not prejudiced by the trial court’s error. We turn now to this issue.
C. Prejudice
After discussing error, the Santamaria court considered “[t]he more difficult question” of “whether the court’s error was so egregious that it requires reversal.” (Santamaria, supra, 229 Cal.App.3d at p. 279.) The court observed that prior to 1969, prejudice was presumed from a jury separation after submission, no matter how brief, but that section 1121 was then amended to make sequestration discretionary both before and after submission of the cause. (Santamaria, at p. 279.) The court inferred from this amendment that the Legislature intended to eliminate the presumption of prejudice from every postsubmission separation as well. (Ibid.)
However, the court continued, the “the United States Supreme Court has consistently recognized that at times a procedure used by the state is so inherently suspect that a showing of actual prejudice is not a prerequisite to reversal. [Citations.] The California Supreme Court has also acknowledged this fundamental principle, stating that ‘the very character of certain procedures [makes] it impractical to establish the degrees of prejudice which [have] resulted therefrom. [Citation] In these circumstances the defendant need not show that he was actually prejudiced during his trial in order to establish a denial of due process of law; it is enough if he can show there was a reasonable probability of prejudice.’ ” (Santamaria, supra, 229 Cal.App.3d at p. 280.) The Santamaria court concluded that “[u]nder certain circumstances, then, presumptions and burdens of proof concerning prejudice are simply not helpful; instead, a reviewing court’s assessment of all the relevant factors, including constitutional due process standards, may lead to the conclusion that an improperly granted continuance compels reversal, even though the defendant cannot show actual prejudice.” (Id. at p. 281.)
The Santamaria court found that the “unexplained adjournment” in its case “mandates reversal.” (Santamaria, supra, 229 Cal.App.3d at p. 281.) The court stated:
“It cannot be overemphasized that this prolonged and unwarranted interruption came at the most critical period in the trial. The prosecutor and appellant had presented their evidence and argued its significance; the court instructed on the legal principles to be applied. The case was in the hands of the jury, which begun its vital task of considering the government’s charges against appellant in determining his guilt or innocence of a special circumstance first degree murder. ‘Due process requires that the accused receive a trial by an impartial jury free from outside influences.’ [Citation.] We believe that at no time is it more essential that the jury should be immunized from such influences than when it is deliberating on its verdict. Furthermore, the trial court has a major responsibility to see that a defendant receives a trial consistent with the requirements of due process. [Citation.] Here, however, instead of fulfilling its responsibility, the trial court acted to undermine due process requirements by releasing the jurors into the community for 11 days.” (Santamaria, supra, 229 Cal.App.3d at p. 281.)
The court further concluded that “[a] lengthy interruption of deliberations was particularly inappropriate in this case” because of the lengthy, 12-day trial, the 32 witnesses presented (including with the aid of interpreters, further complicating matters), and the 60 exhibits introduced, including several tapes and transcripts. (Santamaria, supra, 229 Cal.App.3d at pp. 281-282.) “Because the prolonged interruption at issue occurred after argument and during deliberations, common sense and experience tell us that the delay undoubtedly had some significant effect on jurors’ ability to remember complicated facts, as well as on their recall and understanding of instructions. It would be virtually impossible, however, for appellant or anyone else to prove that effect. Common sense and experience also tell us that the jurors undoubtedly came into contact with many people during the lengthy adjournment. Again, however, requiring appellant to prove whether any juror improperly engaged in any discussion of the merits of the case during that time would present an impossible task.” (Id. at p. 282.)
The court also found that, while harmless error analysis is often appropriate, “the error in this case does not consist of the admission or exclusion of bits of evidence; rather, it affects the dynamics of the legal process itself.” (Santamaria, supra, 229 Cal.App.3d at p. 282.) The court continued:
“Jury deliberations are a unique exercise in decisionmaking, in which a collective exchange among virtual strangers produces individual decisions which coalesce into a verdict. The dynamics of deliberation are complex and delicate. Jurors are expected to engage in a thoughtful, meticulous, and systematic examination of the evidence; they should not be asked to accomplish this serious task hindered by unnecessary interruption. The deleterious effects of an undue and prolonged gap in deliberations may be difficult to quantify, but their existence cannot be doubted. When issues of liberty are at stake, all sides are entitled as far as practicable to the undisturbed focused attention of the jury.” (Santamaria, supra, 229 Cal.App.3d at p. 282.) The court concluded that “[a]fter evaluating all the circumstances, we cannot say under any standard that the error was harmless. The judgment must be reversed.” (Id. at p. 283.)
As in Santamaria, the court’s adjournment occurred after the matter was submitted to the jury and deliberations had begun, “the most critical period in the trial.” (Santamaria, supra, 229 Cal.App.3d at p. 281.) We have already discussed the unnecessary nature of the lengthy adjournment, the high stakes involved for defendant, and the adjournment’s negative impact on the jury’s consideration of the evidence. The prejudice caused to defendant under these circumstances was at least as great as that found in Santamaria.
The People attempt to characterize Santamaria as a case involving extreme circumstances that are not involved here, including a more serious murder charge and a more extensive amount of evidence. These arguments ignore that, as we have already mentioned, the charges against defendant were serious and the jury’s consideration of the evidence likely negatively affected by the 10-day interruption.
Moreover, even more so than in Santamaria, the “deleterious effects of an undue and prolonged gap in deliberations... cannot be doubted” here. (Santamaria, supra, 229 Cal.App.3d at p. 282.) This jury remained divided on one of the counts, despite considerable deliberations and at least five or six polls. Given the real possibility of deadlock, it was especially important that the jurors “engage in a thoughtful, meticulous, and systematic examination of the evidence” unhindered by unnecessary interruption. (Ibid.)
Furthermore, the record indicates at least the “reasonable probability” (Santamaria, supra, 229 Cal.App.3d at p. 280) that the 10-day interruption was prejudicial to this divided jury’s deliberations. When the jury reconvened, it deliberated for less than 25 minutes before returning verdicts on both counts. This strongly indicates that any “hold-out” jurors capitulated immediately upon their return. It is very likely that such a capitulation was based not on further, careful deliberations, but on any hold-outs having improperly made up their minds during the adjournment period.
In short, under Santamaria’s guidelines, there was at least a reasonable probability of prejudice sufficient to overcome all of the People’s harmless error arguments. Accordingly, we conclude that the court’s error was prejudicial, and that reversal is required.
II. Other Issues
In light of our conclusion, we need not address defendant’s second argument for reversal, that being that the trial court purportedly coerced a verdict from the jury by pressuring it to reach a verdict, thereby violating his constitutional rights to due process, an impartial jury, and a fair trial.
The People suggest that we order a limited remand of this case if we “deem it appropriate to afford the trial court an opportunity to place on the record its grounds for determining that there was good cause for the continuance.” We decline this suggestion. The court did not actually find good cause for adjourning the proceedings, and the record is clear that it adjourned in order to take a planned vacation. Therefore, such a limited remand would be inappropriate.
The People also suggest a limited remand “if this court were to deem it appropriate to afford [defendant] an opportunity to demonstrate actual prejudice or a risk of prejudice based upon the delay.” Given our conclusion, this is unnecessary.
DISPOSITION
The judgment is reversed.
We concur: Kline, P.J., Haerle, J.
All statutory references herein are to the Penal Code unless otherwise stated.