People v. Gainer

CLARK, J., Dissenting.

“Once a cause has been submitted to the jury, and absent a discharge by consent, the court bears the 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.’ (Pen. Code, § 1140.) [11] The discharge of this responsibility necessarily requires that the court, in cases where the jury has been unable to reach agreement, make the indicated determination of ‘reasonable probability’ and, in cases where in accordance with sound legal discretion [citations omitted] it is determined that such a probability exists, that it take appropriate action to encourage agreement.” (People v. Carter (1968) 68 Cal.2d 810, 815 [ 69 Cal.Rptr. 297 , 442 P.2d 353 ].)

The “Allen instruction” is an “appropriate action to encourage agreement.” But the majority opinion attacks two aspects of the instruction.

First, the majority find fault with the clause “the case must at some time be decided.” However, this court understandably approved that statement in People v. Carter, supra, 68 Cal.2d 810 . “[I]f the court determines that a reasonable probability of agreement does exist, it may, generally speaking, undertake certain measures calculated to encourage agreement. These include impressing the jury with the solemnity and importance of its task and reminding it that in the event of a mistrial the case will have to be retried, with attendant expenditure of money and time, and decided upon similar if not identical evidence by a jury of *860 persons having qualifications equal to those of the present jury.” {Id. at pp. 815-816.)

Next, the majority attack the Allen instruction as introducing an “extraneous factor” into the jury’s deliberations, “deflect[ing them] from their proper role as triers of fact,” insofar as it states that “a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression on the minds of so many men or women equally honest, equally intelligent with himself or herself.” But the attack fails. To suggest that someone reexamine his view because the majority of those called upon to decide a question have reached another conclusion hardly introduces an “irrational” or “irrelevant” consideration. And it is certainly not akin to instructing him to decide the question from his “prejudices or desire to go home.” For example, it is common for one judge of this court to invite another to reexamine his position upon a showing that a majority of jurisdictions considering an issue have taken the opposite position. Indeed, in this very case the majority opinion, manifesting uneasiness in adopting the view held by only a minority of jurisdictions on the Allen question, cites the decisions of three federal circuits and “at least 22 states” as evidence that its position represents the “modern trend.” The appeal to be “modern” is, of course, a separate consideration, one more appropriate to the fashion industry than to the law. On the other hand, the fact that a significant number of jurisdictions disapprove of a practice is a valid reason for reconsidering it.’ But, as the Allen instruction emphasizes, one’s decision must ultimately be one’s own.

Having reconsidered the Allen instruction because a majority of my colleagues appear to disapprove of it, I still agree with Chief Justice (then Circuit Judge) Burger that “th& Allen charge is a carefully balanced method of reminding jurors of their elementary obligations, which they can lose sight of during protracted deliberations. It is perfectly valid to remind them that they should give some thought to the views of others and should reconsider their position in light of those views. The charge as given here did not require the jury to reach a verdict but only reminded them of their duty to attempt an accommodation. While it suggests to the minority that they reconsider their position in light of a majority having a different view, it reminds them that they should not acquiesce in a verdict which does not represent their own convictions.” *861 (Fulwood v. United States (D.C.Cir. 1966) 369 F.2d 960, 962 [ 125 App.D.C. 183 ], cert. den., 387 U.S. 934 [ 18 L.Ed.2d 996 , 87 S.Ct. 2058 ].)

The judgment should be affirmed.

Respondent’s petition for a rehearing was denied October 13, 1977. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.