Partial Verdict in Penn Trial Canceled : Judge’s Ruling on Guilty Finding Follows Discussion of Juror’s Second Thoughts

A Superior Court judge canceled a partial verdict in the Sagon Penn murder trial Tuesday after a juror expressed second thoughts about whether Penn was guilty of assault with a deadly weapon when he drove a car over a San Diego police officer.

After a one-week recess, the jury resumed deliberations Tuesday on all six charges against Penn. Those include murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shootings of Police Agent Donovan Jacobs and a civilian observer who was riding in Riggs’ patrol car.

On May 17, the jury convicted Penn of the lesser offense of assault with a deadly weapon and concluded that he inflicted “great bodily injury” when he ran over Jacobs with Jacobs’ police car. The conviction carries a prison term of five to seven years. By finding Penn guilty of assault with a deadly weapon, the jurors rejected the charges of attempted murder and attempted voluntary manslaughter, both of which required a finding that Penn intended to kill Jacobs with the car.

The jury’s partial verdict was unsealed May 20 when juror Vernell Hardy went to the hospital to deliver a baby. After the 11 other jurors confirmed the guilty verdict, Superior Court Judge Ben W. Hamrick sent them home until Hardy could rejoin the deliberations.

Hamrick, Deputy Dist. Atty. Michael Carpenter, Penn and defense attorney Milton Silverman visited the maternity ward at Kaiser Hospital last Wednesday to affirm that Hardy agreed that Penn was guilty of the assault charge.

But during the visit, Hardy indicated that she had some reservations. Hardy said that, because Hamrick earlier had instructed the jury to return all verdicts at the same time, she and other jurors wanted to further discuss the assault verdict along with the other charges.

Hamrick ordered the jury on Tuesday to reconsider the verdict. The judge also said that he would let stand the jury’s finding that Penn was not guilty of attempted murder and the lesser charge of attempted voluntary manslaughter when he ran over Jacobs.

“In effect, there is no guilty verdict,” Silverman said.

Thus, the worst possible verdict for the defense on the attempted murder charge would be guilty of assault with a deadly weapon. The only other choice facing the jury is that Penn was not guilty of assault when he ran over Jacobs.

The judge’s ruling gave the defense renewed hope that the jury will acquit Penn of all charges in the highly publicized murder trial, which began in mid January.

In another development Tuesday, Silverman asked the 4th District Court of Appeal to halt jury deliberations and order Hamrick to issue revised jury instructions on the attempted murder charges. Silverman charged in court documents filed Tuesday that Hamrick failed to instruct jurors that, to convict Penn of assault charges, they must conclude that he intended to strike his victims. But Presiding Justice Daniel Kremer denied the appeal.

Penn claims that he acted in self-defense when he shot Riggs, Jacobs and Sarah Pina-Ruiz, who was participating in the police ride-along program. Numerous witnesses have testified that the officers beat Penn with batons and Jacobs shouted racial slurs while sitting on top of Penn, who is black.

The 24-year-old Southeast San Diego man shot Jacobs once in the neck, shot Riggs three times and then stood and fired twice at Pina-Ruiz through the driver’s side window of Riggs’ patrol car. Riggs was killed with the third shot, Jacobs was paralyzed in the arm and Pina-Ruiz was grazed in the side and arm.

Penn jumped into Jacobs’ patrol car and drove over the officer as he lay wounded on the driveway in Encanto, where the shootings took place. Penn also faces two counts of theft for taking Jacobs’ patrol car and Riggs’ service revolver as he fled.

Hamrick began Tuesday’s court session by asking jurors if they had discussed the case with anyone during their layoff. They indicated that they had not.

Hamrick then explained “the latest developments” in the case, ending the week-old mystery that began last Wednesday when the judge ordered both attorneys and all court personnel not to comment on the trip to the hospital to visit Hardy.

“She wanted to meet with other jurors and discuss it a little further,” Hamrick said. “I am going to send in a clean, blank verdict form on Count Three and ask you to again discuss that verdict.”

After the jurors left the courtroom to resume deliberations, Hamrick said he would instruct his clerk to record the “not guilty” verdicts on the attempted murder and attempted voluntary manslaughter charges in connection with Penn running over Jacobs.

Silverman explained that Hamrick accepted the two not guilty verdicts because the defense had requested that the jurors be individually polled only on the conviction.

In light of the apparent guilty verdict, Silverman argued in documents filed Tuesday with the appellate court that the jury may have misunderstood its instructions regarding the assault charges.

“The jury has not been instructed that any intent is required for the commission of assault with a deadly weapon, when in fact it must be proved beyond a reasonable doubt that (Penn) intended to strike the victim,” Silverman wrote.

Silverman appealed to the 4th District court after Hamrick refused his request to alter jury instructions during a closed court session held Friday.

“If this obvious error remains uncorrected and the defendant is convicted as a result of it, enormous resources will be expended . . . to resolve the question,” Silverman said in his appeal.

“It simply makes no sense--common, economic or legal--to allow the jury to be misinformed on the issues of intent when they are still deliberating and have not yet returned a verdict on any of the three assault charges.”