I'm a little confused.
The Court of Appeal held a tiny bit ago that it's "unclear" whether the alternate jurors were actually in the jury room alongside the 12 regular jurors. I'm not exactly sure what's unclear. Here are the relevant portions of the transcript (as quoted in the opinion):
"After the bailiff was sworn, the trial court asked him, 'Do you want all of the jurors to go in the deliberation—' The bailiff responded, 'Yeah. All 14.' The trial court said, 'Okay. [¶] All 14 jurors, please go into the jury deliberation room. [¶] The alternates, since you won’t be deliberating, just leave your documents on the seat. [¶] Everybody, take your documents. You will be given the exhibits, the verdict forms, and questions forms.' After the seated and alternate jurors left the courtroom, the trial court stated, 'The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room.' After the jury returned its verdicts, the trial court sent all the jurors, including the alternate jurors, back to the jury deliberation room."
What about that's unclear? Seems to me pretty darn clear that all 14 were in the same room, right?
The Court of Appeal says "That the alternate jurors were sent back with the seated jurors does not mean that they entered the jury room itself and stayed there." But where else would they go?! The trial court expressly said: "All 14 jurors, please go into the jury deliberation room." The trial court also said: "The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room." Literally: How much clearer could the record be?
The Court of Appeal also says: "Moreover, that there was no objection by defense counsel suggests that the alternates were not present." Hmmm. Let's see. Can anyone come up with an idea as to why the defense counsel might not object that doesn't rely on the assumption that the trial court was wrong when it repeatedly said that all 14 jurors were going to the deliberation room? Something along the lines of the defense attorney not knowing -- as the trial judge and bailiff clearly didn't -- that this was improper? Or the defense attorney not paying attention? Or not caring? The theory that the facts must not be X because X is error and hence the defense attorney surely would have objected to X just seems utterly implausible to me. Yet that's where the Court of Appeal comes out.
So, honestly, I'm sincerely confused. Because for the life of me I don't understand what's confusing.
Look, as to whether this constitutes reversible error, on that point, I'm admittedly open. Seems to me that there's a pretty good "no blood, no foul" argument as long as the alternates didn't participate in the actual deliberations. Which, here, there's no evidence that they did.
The strongest response to that position, however, is the clear holding of the California Supreme Court. Or at least a holding that's pretty darn clear to me. Here's the relevant authority:
"In People v. Britton (1935) 4 Cal.2d 622 (Britton), the California Supreme Court addressed the propriety of an alternate juror’s presence in the jury room during deliberations. The court in Britton approved the opinion in People v. Bruneman, supra, 4 Cal.App.2d 75, a then recent Court of Appeal opinion, and, over the dissent of two justices, adopted as its own the Court of Appeal’s opinion in Britton in pertinent part as follows: “Appellants claim reversible error because when the jury retired to deliberate the court directed that the alternate juror should retire to the juryroom with the jury, and that this was error even though the court instructed such alternate juror that while she might listen to the deliberations of the jury, she should not express any opinion or participate by word or action in those deliberations. [¶] Subsequent to the appeal herein this identical question was decided in People v. Bruneman[, supra,] 4 Cal.App.(2d) 75 [40 Pac.(2d) 891], and we agree with the conclusions therein stated, that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error.”
Just so we're clear on what the California Supreme Court said. As its holding. Here it is again: "[W]e agree . . . that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error." Again, how much clearer could the Court be?
Now, it'd be one thing if the California Court of Appeal was the California Supreme Court. In which case it could legitimately say: "Well, that's a stupid rule." But it's not. Last time I checked, anyway, only the California Supreme Court could overrule controlling precedent from the California Supreme Court, not the Court of Appeal.
Sure, the rationale of the California Supreme Court's rule was perhaps undercut by a subsequent U.S. Supreme Court holding that the presence of an alternate in the jury room wasn't a "plain error" that violated Federal Rule of Criminal Procedure 24. But that's a holding about errors under the FRCP not squarely applicable to California. And, yes, there are subsequent California cases that hold that it's not necessarily reversible error for a defendant to stipulate to allow alternates in the jury room. But that's not exactly what transpired here either.
The Court of Appeal never comes out and says that "the holding in People v. Britton is no longer good law." But it seems to me they have to say that in order to reach the conclusion it reaches. And the fact that it's reluctant to come right out and say "We've hereby decided to ignore a controlling holding of the California Supreme Court" probably says something.