People v. Browning

[322]

Opinion

CHRISTIAN, J.

—Stephen Douglas Browning has appealed from a judgment of imprisonment which was rendered after a jury found him guilty of second degree murder. (Pen. Code, § 187.) The cause has not been briefed. Appellant has moved for summary reversal of the judgment. The motion appeared to have merit. Because a judgment in a criminal case “can be reversed only after argument, . . .” (Pen. Code, § 1253), we have heard argument on the motion.

Browning and three codéfendants, Tucker, Weathersby and Wyatt, were charged by indictment with murder. The cause was tried before a jury, and was submitted. During the next three days, the jury requested the rereading of various instructions as well as the testimony of certain witnesses. At one point the jury asked the court if there was a verdict for a hung jury, and the court indicated that there was not.

On March 24, the juiy returned verdicts finding Tucker and Weathersby guilty of first degree murder. The judge inquired as to the division with respect to the remaining two defendants, Wyatt and appellant. The foreman replied “11 to 1” as to each. The court then directed the jurors to continue their deliberations.

Shortly thereafter, the jury returned to the courtroom and—at the specific request of the foreman—the court gave the

“Allen

instruction.” The jury then resumed deliberations. Twenty-five minutes after retiring, the jury returned -a verdict of “not guilty” as to Wyatt. The jury then retired for further deliberations, and an hour and a half later, returned a verdict finding Browning guilty of second degree murder.

In

People

v.

Gainer

(1977) 19 Cal.3d 835 [139 Cal.Rptr. 861, 566 P.2d 997], the Supreme Court held that

the Allen

admonition to minority jurors that they should reconsider their position in light of the majority’s views is per se prejudicial error. In addition, the court held that the