Harmless Error in Permitting Remote Jury Deliberations

THE PEOPLE, Plaintiff and Respondent, v. VERNON LEE HAMPTON, Defendant and Appellant. (Cal. Ct. App., Oct. 25, 2023, No. A165957) 2023 WL 7009789, at *1

Summary: Before closing arguments, which took place in January 2022, the trial judge dismissed two jurors for reasons related to COVID-19 and seated the two remaining alternate jurors. After the jury began deliberating, the judge had a personal emergency, and another judge took her place. Then, one of the remaining jurors tested positive for COVID, and Hampton moved for a mistrial, contending that the original judge had made an off-the-record ruling prohibiting any remote deliberations. After consulting with the original judge, the substitute judge denied a mistrial. The substitute judge then permitted the juror who had COVID to deliberate remotely for one day, at the end of which the jury returned its verdicts. The foreperson stated that the jury reached agreement on the verdicts while all the jurors were present in person, and that during the remote deliberations the jury discussed only the lesser weapon enhancements on which it hung.

On appeal, Hampton contends that (1) the substitute judge improperly relied on ex parte communications with the original judge in denying a mistrial and (2) the jury deliberations in which one juror participated remotely were unauthorized and unconstitutional. He contends that these errors are structural, meaning they are reversible without a showing of prejudice. The Court of Appeal concluded that the judges’ communications were ethical and did not deny Hampton a fair trial. Any error in permitting the jury to deliberate remotely for one day was harmless because, as the record establishes, that day of deliberation did not result in a finding of guilt. The Court of Appeal affirmed the judgment.

A new trial is warranted if the trial court “has erred in the decision of any question of law arising during the course of the trial.” (§ 1181, subd. (5).) Generally, review of the denial of a new trial is for an abuse of discretion. (People v. Hoyt (2020) 8 Cal.5th 892, 957.) But where, as here, the issues primarily involve questions of law, our review is de novo. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 831.)

Communications between the two Judges Were Proper and Did Not Violate Hampton’s Constitutional Rights.

Hampton claims that Judge Hite and Judge Van Aken’s discussion of the issue of remote deliberations violated a judicial canon limiting ex parte communications between judges. According to Hampton, his federal and state “constitutional right to be present and represented by counsel at all critical proceedings” was violated when Judge Hite relied on these improper communications to deny a mistrial.

Under the California Code of Judicial Ethics, “[a] judge shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the judge outside the presence of the parties concerning a pending or impending proceeding,” with specified exceptions. (Cal. Code Jud. Ethics, canon 3(B)(7).) One such exception is that “a judge may consult with other judges,” except other judges who have or would be disqualified from hearing the case or might participate in appellate review of the case. (Id., canon (3)(B)(7)(a).) “In any discussion with [other] judges …, a judge shall make reasonable efforts to avoid receiving factual information that is not part of the record or an evaluation of that factual information. In such consultations, the judge shall not abrogate the responsibility personally to decide the matter.” (Ibid.) Judges are also authorized to “initiate, permit, or consider ex parte communications, where circumstances require, for scheduling, administrative purposes, or emergencies that do not deal with substantive matters,” so long as it is reasonable to believe no party will gain a resulting advantage and all parties are notified of the communications and given an opportunity to respond. (Id., canon (3)(B)(7)(b).)

Judge Hite and Judge Van Aken’s communications were proper. Canon 3(B) of the Code of Judicial Ethics broadly authorizes a judge to consult with another judge, with exceptions that are not relevant. (Cal. Code Jud. Ethics, canon 3(B)(7)(a).) Although the canon cautions that a judge should “avoid receiving factual information that is not part of the record” (ibid.), the communications at issue were not about such information. Judge Hite properly consulted with Judge Van Aken to determine the substance of her previous ruling, if any, about remote deliberations.

Any Error in Permitting Remote Deliberations Was Harmless.

Hampton also claims that remote deliberations were unauthorized by state law and unconstitutional. The Court did mot resolve this claim because even if there were any error, the error was harmless.

In April 2020, acting under the Governor’s authorization, the Judicial Council adopted emergency rules in response to the COVID-19 pandemic. (E.P. v. Superior Court (2020) 59 Cal.App.5th 52, 54–55.) California Rules of Court, Appendix I, Emergency rule 3 (Emergency rule 3), which has since “sunsetted” but was in effect during the trial here, addressed the use of technology for remote appearances. (E.P., at p. 55; Emergency rule 3(a), (b).) The rule authorized courts, “in order to protect the health and safety of the public,” to “require that criminal proceedings and court operations be conducted remotely.” (Emergency rule 3(a).) The rule provided that “[c]onducting criminal proceedings remotely includes, but is not limited to, the use of video, audio, and telephonic means for remote appearances; the electronic exchange and authentication of documentary evidence; e-filing and e-service; the use of remote interpreting; and the use of remote reporting and electronic recording to make the official record of an action or proceeding.” (Emergency rule 3(a)(3).)

Hampton contends that jury deliberations are not the type of “proceedings” encompassed by Emergency rule 3. He also claims that the remote deliberations violated his state and federal constitutional rights to a fair and impartial jury and, because Juror No. 6 did not deliver the verdict in person, to be convicted only upon a unanimous verdict of 12 jurors. But he does not argue that the remote deliberations were prejudicial.

 Hampton argued that permitting remote deliberations was structural error because it affected “ ‘the framework within which the trial proceed[ed], rather than simply [constituting] an error in the trial process itself.’ ” (Quoting Arizona v. Fulminante (1991) 499 U.S. 279, 310 (Fulminante).) He then argued that 12 jurors did not actually find him guilty, because the jury did not engage in “a deliberative process that comports with what our framers envisioned” and only “11 jurors … marched into court to pronounce” that they had reached unanimous verdicts. He specifically relied on People v. Traugott (2010) 184 Cal.App.4th 492 (Traugott), in which the Fourth District Court of Appeal reversed for structural error where only 11 jurors returned to the courtroom to render the verdict. (Id. at pp. 495, 505.)

The United States Supreme Court has explained that many structural errors, such as total deprivation of the right to counsel, deprivation of the right to self-representation, or deprivation of the right to a public trial, “defy analysis by ‘harmless-error’ standards” because they affect “[t]he entire conduct of the trial from beginning to end.” (Fulminante, supra, 499 U.S. at pp. 309–310.) Structural error also occurs when “there has been no jury verdict within the meaning of the Sixth Amendment,” such as where the jury was not properly instructed on reasonable doubt or, as in Traugott, where the unanimous verdict of 12 jurors was not delivered. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278, 280; Traugott, supra, 184 Cal.App.4th at p. 505.) Either way, it is impossible to determine “what effect the constitutional error … had upon the guilty verdict in the case at hand” (Sullivan, at p. 279), whether because the error’s effect cannot be separately discerned or because there is no valid guilty verdict at all.

Without deciding whether remote deliberations can ever constitute structural error, the ones here did not alter “[t]he entire conduct of the trial.” (Fulminante, supra, 499 U.S. at pp. 309–310.) Rather, because we know the jury reached its guilty and not guilty verdicts while all the jurors were still deliberating in person, the remote deliberations had no effect on the verdicts.

Absent any indication that the verdicts were not agreed upon by all 12 jurors after in-person deliberations, the Court of Appeal could not conclude that Juror No. 6’s virtual presence on the last day of deliberations and while the verdicts were returned amounted to structural error.

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