People v. McIntyre

California Court of Appeal Jul 19, 1990 No. E006824Published

Before: Dabney

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Holding. The trial court erred by coercing a verdict after learning the jury was deadlocked on the entrapment defense, as the court should have either provided further instructions or declared a mistrial rather than forcing the jury to sign a guilty verdict.

Issues

Whether the trial court erred in its response to a jury inquiry regarding a lack of unanimity on an entrapment defense.
Whether the trial court improperly coerced a verdict by polling the jury on a collateral issue and directing them to sign verdict forms.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The court erred in telling the jury to “sign the appropriate forms and come on back.””

“The court’s reaction to the jury inquiry converted entrapment into a special finding or verdict.”

“If the jury did not agree on entrapment, there was a hung jury.”

Opinion

DABNEY, J.

An information charged defendant, Joseph Aloysius McIntyre, with sale or transportation of marijuana in count I (Health & Saf. Code, § 11360, subd. (a)) and with possession of marijuana for sale in count II (Health & Saf. Code, § 11359). The jury returned verdicts of guilty of sale of marijuana for count I and guilty of the lesser included offense of possession of marijuana, a misdemeanor, (Health & Saf. Code, § 11357, subd. (b)) for count II. The court placed defendant on probation for 36 months for count I. One condition of probation was jail time of 120 days. This court stayed execution of judgment pending this appeal. On appeal defendant argues that the court erred in its reaction to a jury inquiry resulting in defendant’s conviction without a unanimous verdict.

Facts

Defendant sold marijuana to an undercover police officer. His defense at trial was entrapment.

Discussion

Defendant does not contest his conviction of count II on appeal. He argues that there was not a unanimous verdict on count I, sale of marijuana.

During deliberations the jury sent the following note to the trial court: “We believe that we have reached an impasse regarding the issue of entrapment.

“We overwhelmingly reject entrapment as a defense. However, it is not unanimous.

“We agree unanimously that the defendant is guilty to count 1 and not guilty to count 2.

[232]

“We unanimously agree to defendant’s guilt to the lesser charged [sic] maintained in count 2 of possession of marijuana.”

The court polled the jury regarding their verdicts for count I and count II and then polled the jury on how they voted on the entrapment issue.

Jurors Sarraco and Lott responded “entrapment” to the court’s inquiry, “Was there or was there not entrapment?” The court next asked the jurors if there was a reasonable probability that they could agree on the entrapment issue if they deliberated further. Juror Lott and Juror Freeland indicated there was a “possibility” the jury might reach an agreement. The court had instructed the jury that they had to find defendant guilty before considering the entrapment defense. The court then sent the jury back out and instructed them to “sign the appropriate forms and come on back.” Shortly thereafter the jury returned with a verdict of guilty to count I against defendant.

People v. McIntyre

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DABNEY, J.

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