Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Mistrials

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

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.

By the time the jurors were brought back in, four hours had passed.

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.

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Judge’s Death After Deciding Case But Before Issuing a Statement of Decision Results in Mistrial

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in *Marriage of Stone* (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.).

The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a tentative decision, held a hearing on the parties’ respective proposed statements of decision, and indicated he would consider modifying certain language. But the judge passed away before entering a final statement of decision or entering a judgment. So the presiding judge declared a mistrial.

On appeal, the appellant-wife argued the mistrial was error and the presiding judge should have entered a judgment on the trial judge’s findings in the intended decision. She had a great case on point, holding that under Code of Civil Procedure section 635, the presiding judge may enter a judgment on an unavailable trial judge’s intended decision. But ultimately the court held it was not close enough, and affirmed.

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