After receiving information of potential jury misconduct during deliberations, the trial court was required to inquire of the jurors to determine the scope of the misconduct. Hem was charged with first degree murder after shooting his brother. It was undisputed at trial that both Hem and his brother were armed, there was an argument, and Hem shot and killed his brother. While the jury was deliberating, defense counsel moved for a mistrial based on jury misconduct because a colleague overheard four jurors in the hallway discussing the case and potentially coming to a compromise with other jurors to avoid letting the defendant go unpunished. The trial court denied the motion, refused defense counsel’s request for an inquiry into the scope of the misconduct, and determined that the misconduct could be cured by admonition. After sending several questions about the distinctions between second degree murder and voluntary manslaughter, the jury convicted Hem of voluntary manslaughter and negligent discharge of a firearm and found he personally used a firearm. Hem appealed. Held: Reversed. The secrecy of deliberations may give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct. An inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist. (People v. Burgener (1986) 41 Cal.3d 505, 519.) Here, care could and should have been exercised by the trial court when it conducted an inquiry into why four jurors were not following their oaths regarding how to deliberate, and to insure no improper consideration of punishment was being given. But the court instead conducted no inquiry at all, which was not adequate. Defense counsel in this case pressed the trial court to ascertain exactly how far the misconduct extended, but the court refused to inquire. The court did not satisfy its duty to ensure the deliberations were proceeding properly to preserve defendant’s fundamental right to a fair jury determination of the question of his guilt or innocence.

Because no inquiry was made, the People cannot dispel the presumption of prejudice that arose when jurors violated their oaths, and reversal is required. Once a court determines a juror has engaged in misconduct, a defendant is presumed to have suffered prejudice. It is for the prosecutor to rebut the presumption. (People v. Weatherton (2014) 59 Cal.4th 589, 600.) The Attorney General argued that the court must presume jurors followed instructions and obeyed admonitions. While that is indeed the normal presumption applied on appeal, that presumption was dispelled by the fact that four jurors were violating their instruction not to discuss the case without all jurors present. In the context of prejudice, “a mistrial is a better outcome than a conviction.” If the jurors were indeed deadlocked and a group of jurors acted outside the appropriate confines of the deliberation process to try to broker a resolution resulting in any conviction, that would tend to confirm, not dispel, prejudice. On this record, the Attorney General has not carried their burden to dispel the presumption of prejudice from jury misconduct. The judgment must be reversed.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C086016.PDF