Substitute trial judge did not engage in improper conduct or violate defendant’s right to a fair trial by consulting with the prior judge about her ruling on remote jury deliberations during the COVID-19 pandemic. Hampton was convicted of felony offenses after robbing a restaurant. At his trial, the first judge made rulings on whether jurors would be permitted to deliberate remotely in light of the COVID-19 pandemic, and was then replaced due to a personal emergency. During deliberations, after all the alternate jurors had already been seated on the jury, a juror needed to quarantine. The substitute judge consulted with the prior judge about the rulings she had made, allowed the juror to deliberate remotely, and denied Hampton’s motion for a mistrial. On appeal, Hampton argued the substitute judge improperly relied on ex parte communications with the original judge in denying a mistrial. Held: Affirmed. Under Cal. Code Jud. Ethics, canon 3(B)(7)(a), a judge is not permitted to consult with another judge about issues of fact not contained in the record. But the judges here discussed only the initial rulings and not the facts of the case. There was no impropriety, and appellant did not show that the consultation deprived him of a fair trial or amounted to a total deprivation of counsel as to the issue of remote deliberations.
Any error in permitting remote deliberation by a juror was not structural. The court permitted one juror to deliberate from home one day while quarantining because of his wife’s COVID-19 diagnosis. The jury returned verdicts on that day. The foreperson told the court that all verdicts reached were completed the day prior, and on the final day, the jurors only concluded that they could not reach a verdict on lesser weapon enhancements. On appeal, Hampton argued that the remote deliberations were unauthorized under California law, violated his constitutional rights, and constituted structural error. The Court of Appeal disagreed. Even assuming remote deliberation was a violation of the rights to a fair and impartial jury and a verdict by a unanimous jury, any error in this case was not structural. The effect of the remote deliberations could be determined on this record because it revealed that the jurors had reached all guilty and not guilty verdicts while all were present in the courthouse. In addition, the absent juror was polled and confirmed his verdicts. Based on this record, any error in permitting the jury to deliberate remotely for one day was harmless.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A165957.PDF