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Thursday, May 5, 2016


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Confusion Over Verdict Form Requires New Trial, C.A. Rules

Panel Says Judge Should Have Told Counsel of Jurors’ Purported Withdrawal of Original Verdict




A judge’s failure to notify defense counsel that the jury had submitted conflicting verdict forms nullifies its ultimate guilty verdict and requires a new trial, the Fourth District Court of Appeal ruled yesterday.

Div. Three said the trial court’s handling of the gang-related murder case was “confounding” and prejudicial. The panel, however, rejected defense arguments that the case against Travis Jordan Brown, who was sentenced to life imprisonment without possibility of parole, should be dismissed.

Brown stood trial in Orange Superior Court for the 2008 murder of Ivan Sarmiento. The victim was walking on Euclid Avenue in Anaheim with his brother and a female friend, when a vehicle stopped and a man in the car, after brief conversation, shot Sarmiento, then the vehicle took off.

Investigators learned that Sarmieno was a member of the Varrio Norwalk member, and a witness said a passenger in the car screamed “Brown Demons.” About a week after the shooting, Kevin Martinez, then 15 and involved with the South Side Brown Demons for four years prior, was questioned by police and implicated Brown.

Trial Testimony

At Brown’s trial six years later, he testified that he, the defendant, and two Brown Demons were in the car and that Brown shot Sarmiento from two to three feet away. Brown, however, told police that he was unaware of any problems between the Brown Demons and the Varrio Norwalk gang and had nothing to do with the shooting.

He testified at trial, however, that he was in the vehicle when the confrontation with Sarmiento occurred, that Martinez was the shooter, and that he was surprised when the shooting occurred.

The case went to the jury on three theories of first degree murder—that Brown was the shooter, that he was guilty as an aider and abettor, and that he was guilty under the natural-and-probable-consequences doctrine.

On Jan. 2, 2014, the jury informed the court it reached a verdict, but that it preferred the court take the verdict the next afternoon. The bailiff collected the verdict forms and gave them to Judge Lance Jensen.

The “not guilty” verdict form had been dated and signed, but the signature and date had been crossed out and “withdrawl” and “void” had been written in large letters diagonally across the form. When jurors returned the next day, Jensen sent jurors a note, saying he had replaced that form “with a clean copy.”

The note also reminded jurors that they needed to reach a verdict on a second charge, active participation in a criminal street gang, in addition to the murder count.

Within minutes, the jury informed the judge that it was ready with the verdicts. Brown was found guilty on both counts and found, as a special circumstance to have been an active gang member and to have participated in the murder for the benefit of a criminal street gang.

It was not until after the jury was discharged that the judge explained to counsel what had transpired with the verdict forms the previous day.

Jensen noted that the jury had been instructed that it needed to inform the court if it made a mistake on a verdict form, but failed to follow that instruction.

Defense Argument

On appeal, the defense argued that the trial judge had effectively required the jury to reconsider a verdict of not guilty, in violation of Penal Code §1161. But Justice Eileen Moore, in her opinion for the Court of Appeal, said the statute did not apply because there was no verdict of acquittal.

“Giving the court a signed and dated not guilty verdict form with the words ‘withdrawl [sic]’ and ‘void’ scrawled across the form in large letters, while concurrently submitting a signed and dated guilty verdict form on the same count does not demonstrate an intent to acquit on that count,” she wrote. “The jury’s act of crossing out the date and signature and writing ‘withdrawl [sic]’ and ‘void’ in large letters across the face of the form negates the possibility of any such inference.  Defendant has not attempted to explain why a jury that intended to acquit would defile the verdict form in that manner.”

But there was another problem, Moore said, which was that Jensen “dropped a bombshell” by informing counsel that there was yet another verdict form, a signed and dated “not guilty” verdict that the trial judge concluded was “another mistake” and that was never recorded, nor discussed with the jury present.

The justice explained:

“While it is acceptable for a jury to render inconsistent verdicts involving counts or a count and a special allegation connected to that count, there is no recordable verdict when the jury purports to find the defendant guilty and not guilty on the same count, and the court does not get to pick the verdict to be entered based on its conclusion that that verdict is the correct one and the other was erroneously made.  Moreover, it is evident in the present case whose ox was gored when the court unilaterally decided which verdict it was going to enter (the guilty verdict) on count one, while not even informing counsel of the existence of guilty and not guilty verdicts on the same count, namely the defendant’s.”

Polling the jury as to the guilty verdict did not cure the error, Moore said, because the jury was not polled regarding the not guilty verdict. Nor did counsel waive its right to object on appeal, she said, because the irregularities occurred outside counsel’s presence, the jury had already been excused when counsel was made aware of what had occurred, and the error caused sufficient prejudice to permit the appellate panel to address the issue even in the absence of a defense objection.

The case is People v. Brown, G049867.


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