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Jury released from duty could not be reconvened to make a remaining finding

Tim Kowal     April 12, 2023

Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in ***************People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened.

The prosecutor in Jones had charged an enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed a prior serious felony before the trial judge thanked and released the jurors from their duties. The judge specifically told the jurors that, while they previously had not been able to talk about the case with anyone, “that’s over. Now, if you want to talk about the case, you can.”

Some minutes later, the prosecutor remembered the prior serious conviction needed to be found. So the judge sent the bailiff to track down the jurors. The bailiff did so, but it took about four hours.

A jury that has been released may be reconvened, but only if the jury has remained in the court’s control.

The court did note that the jurors had not left the courthouse. But the record was silent whether the jurors had abided by the admonitions (from which they had been released). “Given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.”

The Upshot:

The operative statute in Jones is Penal Code section 1164. There does not appear to be an analogous civil statute, but the rule is likely to be the same or similar. So in your next jury trial, have a checklist of all the findings the jury needs to make, and do not let the judge discharge the jury until its work is done.

A good practice is to have thorough verdict forms prepared before beginning trial.

Thanks to Prof. Shaun Martin for writing about this case, including this observation about the remand:

“[A]ll this means is that a new jury's going to be empaneled to decide whether the defendant had previously been convicted. Which I'm certain he has been. So it's going to be the quickest retrial in the history of California jurisprudence. As well as perhaps the most boring jury service ever.”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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