People v. Hampton

96 Cal.App.5th 965

314 Cal.Rptr.3d 797

The PEOPLE, Plaintiff and Respondent,

v.Vernon Lee HAMPTON, Defendant and Appellant.

A165957

Court of Appeal, First District, Division 1, California.

Filed October 25, 2023

Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Melissa A. Meth and Julia Y. Je, Deputy Attorneys General for Plaintiff and Respondent.

Humes, P.J.

Within weeks after defendant Vernon Lee Hampton left his employment at a San Francisco restaurant, the restaurant was robbed by a person in disguise. Hampton was charged in connection with the crime, and a jury convicted him of felony counts of second degree robbery and false imprisonment, acquitted him of accompanying firearm enhancements, and hung on lesser weapon enhancements. The trial court suspended imposition of the sentence and placed him on probation for three years.

This appeal concerns unusual circumstances related to the jury deliberations. Before closing arguments, which took place in January 2022, the trial judge dismissed two jurors for reasons related to COVID-19 and seated the two remaining alternate jurors. After the jury began deliberating, the judge was called away by a personal emergency, and another judge took her place. Subsequently, one of the remaining jurors tested positive for COVID, and Hampton moved for a mistrial, contending that the original judge had made an off-the-record ruling prohibiting any remote deliberations. After consulting with the original judge, the substitute judge denied a mistrial. The substitute judge then permitted the juror who had COVID to deliberate remotely for one day, at the end of which the jury returned its verdicts. The foreperson disclosed that the jury reached agreement on the verdicts while all the jurors were present in person, meaning that during the remote deliberations the jury discussed only the lesser weapon enhancements on which it hung.

On appeal, Hampton contends that (1) the substitute judge improperly relied on ex parte communications with the original judge in denying a mistrial and (2) the jury deliberations in which one juror participated remotely were unauthorized and unconstitutional. He further contends that these errors are structural, meaning they are reversible without a showing of prejudice. We reject these contentions. We conclude that the judges' communications were ethical and did not deny Hampton a fair trial. We also conclude that any error in permitting the jury to deliberate remotely for one day was harmless because, as the record establishes, that day of deliberation did not result in a finding of guilt. Accordingly, we affirm the judgment.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. Background

In July 2014, Hampton began working as a manager at the Rainforest Cafe, a restaurant in the Fisherman's Wharf area that occupied several floors of a large building. Each of the restaurant's managers had a set of keys to various interior and exterior doors, including the door of the manager's office and the building's exterior door on Mason Street. Rainforest Cafe employees were supposed to use the Mason Street door to enter and exit the building. That door had a keypad to which all employees had the code, and the managers "typically ... never used" their physical keys to open it.

The Rainforest Cafe's general manager supervised the other managers and scheduled their shifts. Any manager could close the restaurant on a given night, and they all knew how to perform the closing manager's duties. The closing manager was the last to leave and was responsible for locking the doors that led from the building's interior stairwell to the restaurant. The closing manager's duties also included totaling the day's proceeds and preparing the cash for pickup by an armored car. The cash was picked up twice a week, on Mondays and Fridays.

In 2015, about a year into his employment, Hampton asked for time off over the July 4 holiday weekend. After the general manager denied the request, Hampton stopped going to work. Hampton came to the restaurant later in July to pick up his final check, but he did not return his set of keys to the restaurant. As part of the standard policy whenever a manager left, the restaurant's locks were immediately changed. But after Hampton's employment ended, although the code on the keypad of the Mason Street door was changed, the physical lock was not.

B. The Robbery

Around 1:00 a.m. on Friday, August 28, 2015, another manager, E.S., was in the manager's office. As was usual, the door to the manager's office was open. E.S. was sitting in a rolling chair, finishing paperwork, when someone wearing a red motorcycle helmet came up behind him and put their arm around his throat.

The person wheeled E.S. to the safe where the cash was kept, and "made a hand gesture" indicating E.S. should open it. E.S. responded that the safe was time-locked and could not be opened, which was untrue. The person then produced "a silver pistol," cocked it, and "tapped the safe to ... indicate that they knew the safe opened." E.S., who was not familiar with guns, testified that he could not be sure whether the pistol was real or operable. Nonetheless, he was frightened, and he opened the safe, which contained almost $9,000.

The person then rolled E.S. to a corner of the manager's office, bound his arms, and placed a shirt over his head. It seemed to E.S. that the person was "really slow" and "took their time when they tied [him] up," which was not done "aggressive[ly]." After several minutes during which E.S. could hear "rummaging," the person left, having "never said a word." E.S. was eventually able to free himself and call 911. After doing so, he realized that the cash was missing from the safe.

C. Surveillance Footage and Other Evidence

The Rainforest Cafe had a surveillance system covering much of the restaurant, including hallways and the manager's office. Recordings from the night of the robbery, which the general manager reviewed with the police, showed a "very stocky, mus[cl]y" person "[w]earing dark clothing, in a motorcycle helmet with a dark shield, so you could not see the face," enter the building through the Mason Street door. The person proceeded to the third floor and into the manager's office, where the robbery occurred.

The general manager testified that it struck him "[h]ow calmly and slowly the person ... came in the building and how familiar it appeared to be to them," as they "kn[ew] exactly where to go to commit the armed robbery, where the money would be and on what floor." The general manager also observed that the person's "walk and body style" were similar to those of Hampton, whom the general manager described as a "very clean, crisp, very mus[cl]y man, very, very strong powerful man." Similarly, E.S., who was friends with Hampton, testified that Hampton was "in good shape" and "definitely of muscular build."

A nearby business's surveillance footage showed the suspect, wearing a red motorcycle helmet, enter a white four-door sedan soon after the robbery. At the time, Hampton and his wife had a similar car, a white Nissan Altima.

Based on the robber's appearance and familiarity with the building, the general manager suspected the robber was Hampton. After forming this suspicion, the general manager watched surveillance footage from the previous Monday morning, August 24, 2015, at the end of the last night shift before pickup of the weekend receipts later that day. The footage showed a person enter the building through the Mason Street door, check the hallway doors and, finding them locked, turn around and leave. A Rainforest Cafe cook testified that around 1:00 a.m. on that morning, he was outside the restaurant with friends and saw Hampton walking back and forth. The cook then saw Hampton leave in a white four-door sedan.

The prosecution also presented evidence obtained from Hampton's cell phone. Hampton sent incriminating text messages to another man leading up to and immediately after the robbery. In addition, other text messages indicated that Hampton paid two significant debts shortly after the robbery occurred. No physical items tying Hampton to the robbery were ever recovered, however, including the gun, the stolen cash, or the red motorcycle helmet.

D. Hampton's Testimony

Hampton denied ever using his keys or the keypad code to enter the Rainforest Cafe after leaving his employment. He specifically denied robbing the restaurant or entering the building four days beforehand, although he admitted he was the person the cook saw on the earlier occasion. He claimed that he often went to the Fisherman's Wharf area to hang out with his friends from the restaurant business, including the man whom he texted around the time of the robbery.

E. Procedural History

Hampton was charged in September 2015, but the preliminary hearing did not occur until over three years later. In January 2019, an information was filed charging Hampton with two felonies, second degree robbery and false imprisonment. It was also alleged that he personally used a firearm during both offenses.¹ Later, the prosecution added a lesser allegation as to both counts that Hampton personally used a deadly or dangerous weapon.²

Trial began in December 2021, with Judge Christine Van Aken presiding. On December 23, the court recessed for the holidays. When the jury returned on January 5, 2022, Judge Van Aken noted that one juror was absent because of a COVID exposure. She provided rapid tests to the remaining jurors, and one of them tested positive and left at the judge's request. The judge then seated two alternate jurors, leaving no more alternates.

The defense rested later on January 5, and after closing arguments, the jury started its deliberations shortly before the end of the day. The jury continued to deliberate on January 6 and 7. On the...