Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050612879
Jones, P.J.
A jury convicted appellant Morris Lenois Facen of attempting to evade a police officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)) after the court gave supplemental jury instructions derived from People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1119. On appeal, appellant argues the supplemental jury instructions were “coercive” because they “unduly influenced the jury into reaching a guilty verdict.” We disagree, and we affirm.
Appellant pleaded no contest to misdemeanor possession of a smoking device (Health & Saf. Code, § 11364).
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of December 24, 2005, two Contra Costa County Sheriff’s Deputies were standing next to their cars in a parking lot on Appian Way in the City of El So brante when they saw a blue Nissan traveling 75 to 80 miles per hour in a 30 miles per hour zone. With their overhead lights and sirens, the sheriff’s deputies pursued the car for approximately two miles. During the pursuit, the car drove on the wrong side of the road, made unsafe lane changes, ran several red lights, and drove over 70 miles per hour. The driver eventually lost control of the car and crashed into a fire hydrant. The sheriff’s deputies approached the car and saw appellant, unconscious, in the driver’s seat. They broke the driver’s side window, opened the door, and pulled appellant out of the car. Then they handcuffed appellant and took him to the hospital.
At trial, appellant testified that he was not trying to evade the sheriff’s deputies. He explained that he was trying to kill himself on the night of the incident because he was distraught over the recent deaths of his brother, his daughter, and his son.
The jury began deliberating in the late afternoon on April 24, 2007. The next day, the jury requested a rereading of testimony from the sheriff’s deputies and from appellant. On the morning of April 26, 2007, the jury sent a note to the court stating it was at an “impasse” and requesting the court’s guidance. The court assembled the jury and — in the presence of appellant and counsel for both parties — asked the foreperson whether there was “any question that [the court] could attempt to answer, any guidance [the court] could attempt to provide that would assist the jury in continuing [its] deliberations in this matter toward a verdict?” The foreperson responded that the jury was “at a dead impasse.” The court then asked the same question of the rest of the jurors. In response, Juror No. 2 stated, “Maybe one thing [that] might help [is] if you could help articulate ‘beyond a reasonable doubt’ and ‘no doubt.’”
During voir dire, the trial court prefaced its reading of “the legal definition of proof beyond a reasonable doubt” with the following comment: “The burden of proof is proof beyond a reasonable doubt. You may have heard other terms in your daily lives. You may have heard proof beyond a shadow of a doubt, proof beyond all possible doubt. Proof beyond a shadow of a doubt has no significance to this trial. Proof beyond all possible doubt, nobody can prove anything to you beyond all possible doubt.”
Appellant’s trial counsel asked, “Could we approach?” The court stated in response, “Not right at this moment. No, thank you.” The court then commenced its response to the question posed by Juror No. 2.
“So, first of all, with respect to the question that was raised by Juror No. 2, I can refer you back to the instructions that I have given you, and I know you have two sets of the instructions there.
“The instruction dealing with burden of proof in [CALJIC] is No. 2.90. I am certain you have read it. I am going to read you the instruction from CALJIC, California Jury Instruction 2.90. I will have it printed out and provide you with a copy. It [has] slightly different language. . . .
“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
The court continued:
“And I am going to further give you another instruction or additional instruction at this time. I am going to incorporate into these instructions some additional CALJIC instructions, and again they are simply restatements [of the CALCRIM instructions in another] format, but the instruction I am going to give you makes reference to CALJIC, and that is what I am going to do.
“. . . [B]ased on your note, I have some additional further instructions to give you. It has been my experience on more than one occasion, [that] a jury which reported that it was unable to reach a verdict was ultimately able to arrive at a verdict.
“To assist you in your further deliberations, I am going to further instruct you as follows:
“Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence and listen to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to re-examine your own views or to request a fellow juror[] to re-examine their’s [sic]. You should not hesitate to change a view . . . you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
“Fair and effective jury deliberations require a frank and forthright exchange of views.
“As I have previously instructed you, each of you must decide the case for yourself and you should do so only after a full and complete consideration of the evidence with your fellow jurors. It is your duty to deliberate with the goal of arriving at a verdict on the charge, if you can do so, without violence to your individual judgment.
“Both the People and the defendant are entitled to the individual judgment of each juror. As I have previously instructed you, you have the absolute discretion to conduct your deliberations in any way you determine appropriate.
“May I suggest that since you have not been able to arrive at a verdict using the methods you have chosen, that you consider to change [sic] the methods you have been following at least temporarily and try a new method. For example, you may wish to consider having different jurors lead the discussion for a period of time or you may experiment with reverse role playing, having those on one side of [the] issues present and argue the other side’s position and vice-versa. This might enable you to better understand the other position.
“By suggesting you should consider changes in your deliberations, I want to stress that I am not dictating as to how to conduct your deliberations. I am merely finding that you may find it productive to do whatever is necessary to ensure each other has a full and fair opportunity to discuss his or her view and consider and understand the views of the other jurors.
“At this point, I am going to read — again I made reference to some of the CALJIC instructions, and what I am reading you makes reference to those CALJIC instructions, so I am going to read those to you as well.” After the court read CALJIC 1.00 and announced it was going to read instructions 17.40 and 17.41, defense counsel interrupted, “Excuse me.” The court did not respond; instead, the court read CALJIC 17.40 and 17.41 in their entirety. The court concluded, “I hope my comments and suggestions may have [assisted] you. You are ordered to continue your deliberations at this time. . . . I am not suggesting that you have to deliberate any particular amount of time. . . . If you remain at an impasse, simply let me know, send me a note. . . .”
CALJIC 1.00 provides, “You have heard all the evidence and the arguments of the attorneys, and now it is my duty to instruct you on the law that applies to this case. The law requires that I read the instructions to you. You will have these instructions in written form in the jury room to refer to during your deliberations. [¶] You must base your decision on the facts and the law. [¶] You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A ‘fact’ is something proved by the evidence or by stipulation. A stipulation is an agreement between the attorneys regarding the facts. Second, you must apply the law that I state to you, to the facts, as you determine them, and in this way arrive at your verdict. [¶] You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions. [¶] You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because [he] [she] has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt, and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty. [¶] You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.”
After the jury returned to the deliberation room, defense counsel again asked to be heard before the court sent copies of additional jury instructions to the jury. After giving an anticipatory explanation of why it responded to the jury’s questions as it did, the court finally allowed defense counsel to be heard and make objections to the supplemental instructions. Defense counsel also requested a mistrial, which the court denied. Approximately one hour after receiving the supplemental instructions, the jury reached a guilty verdict.
The court denied appellant’s motion for new trial. It found that his prior conviction allegation was true and sentenced him to a four-year prison term. Appellant timely appealed.
DISCUSSION
Appellant’s sole contention on appeal is that the “coercive” supplemental instructions violated the rule established in People v. Gainer (1977) 19 Cal.3d 835, 852. Appellant does not challenge the court’s well-established authority to give supplemental instructions to a deadlocked jury. (Pen. Code, § 1140 [“[e]xcept as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree”]; see also People v. Whaley (2007) 152 Cal.App.4th 968, 980.) His quarrel is with the instructions themselves and the manner in which the court delivered those instructions.
In Gainer, our high court held that “it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” (Gainer, supra, 19 Cal.3d at p. 852, fn. omitted.) In doing so, the Gainer court disapproved of the so-called Allen or “dynamite” charge — approved by the Supreme Court in Allen v. United States (1896) 164 U.S. 492 — which was designed to “blast” a verdict out of a deadlocked jury. (Gainer, supra, 19 Cal.3d at pp. 842-843; see also Moore, supra, 96 Cal.App.4th at pp. 1120-1121; Whaley, supra, 152 Cal.App.4th at pp. 980-981 & fn. 8.)
The court’s supplemental instructions do not violate the Gainer rule. The instructions did not mention the existence of a majority and a minority position, nor did they place pressure on dissenting jurors to agree with the majority opinion. (See Gainer, supra, 19 Cal.3d at p. 850.) Instead, the instructions urged each juror to use his or her “individual judgment” and to “decide the case for yourself.” The court explicitly instructed the jurors to “deliberate with the goal of arriving at a verdict on the charge” only if they could do so “without [doing] violence to [their] individual judgment.”
Nor did the supplemental instructions give the jurors the impression that the case would be retried if they could not reach a verdict. (Gainer, supra, 19 Cal.3d at pp. 851-852.) This is not a situation like the one in People v. Hinton (2004) 121 Cal.App.4th 655, 657-658, where the trial court admonished the jury that “a great deal of effort [was made] by both the parties, a great deal of time and preparation, no small amount of time of your own, and everybody else’s . . . to this matter” and advised the jurors that “[a]n inability to come to a conclusion one way or the other, . . . means we would not complete the task that we all set out to do.” (Id. at p. 657.) Here, the court did not describe the consequences of the jury’s failure to reach an agreement nor did the court pressure the jury to reach a verdict. Instead, the court explicitly instructed the jury that if it remained at an impasse after continuing deliberations, it could notify the court and it would have the court’s “immediate attention.” And the trial court did not deviate from the text of CALJIC 17.40 in accord with the Supreme Court’s commendation in Gainer of its continued use. (Gainer, supra, 19 Cal.3d at p. 856.) Given the circumstances, we fail to see how the supplemental instructions coerced the jury into finding appellant guilty in violation of Gainer.
As noted above, the court’s supplemental instructions are largely identical to those given in Moore, supra, 96 Cal.App.4th at pages 1118-1120. In that case, the jury was initially unable to reach a unanimous verdict on one of two charges, prompting the court to give the jury additional instructions to try to break the deadlock. (Id. at pp. 1118-1120.) The Moore court rejected the very same arguments appellant makes here — that the instructions were coercive and improper — and instead commended the trial court “for fashioning such an excellent instruction.” (Id. at p. 1122.) The court also concluded the supplemental instructions did not contravene Gainer. (Id. at pp. 1118-1122.) The same supplemental instructions given in Moore have been cited with approval in Hinton, supra, 121 Cal.App.4th at page 661, and Whaley, supra, 152 Cal.App.4th at pages 982-983.
Appellant fails to demonstrate that Moore, Hinton, or Whaley were wrongly decided. Instead, he argues the supplemental instructions were improper because they were directed to a single juror — Juror No. 2 — who he argues was “leaning toward an acquittal.” We are not persuaded. The supplemental instructions were directed toward all members of the jury, and there is simply no evidence in the record that Juror No. 2 was leaning toward acquittal. That Juror No. 2 asked for the court’s guidance on the definition of reasonable doubt does not mean that he or she was “leaning toward an acquittal,” nor does it mean that the court’s instructions were directed at any particular juror.
Next, appellant argues that the supplemental instructions were somehow “discriminatory.” Appellant takes issue with the following portion of CALJIC 1.00 read to the jury: “You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt, and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty. [¶] You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” Appellant notes that the court in Moore did not read this portion of the instruction; he also complains that the excerpt urged the jury to disregard appellant’s explanation for his erratic driving.
This argument is unavailing for several reasons. First, the People correctly note that the trial court in Moore did not read this portion of CALJIC 1.00 but that it did urge the jury to read the instruction. (Moore, supra, 96 Cal.App.4th at p. 1119 [“I suggest you reread CALJIC 1.00. . . .”].) Second, this portion of the CALJIC instruction is similar to the CALCRIM instruction that the court gave the jury before it began to deliberate. The CALCRIM instruction ordered the jury, “Do not let bias, sympathy, prejudice, or public opinion influence your decision.” Appellant did not object at that stage of the proceedings to the reading of that instruction. Third, the CALJIC instruction is a proper statement of the law: it is well established that “appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial.” (People v. Fields (1983) 35 Cal.3d 329, 362, fn. omitted.) As a result, the court’s reading of CALJIC 1.00 in its entirety was not “discriminatory.”
DISPOSITION
We conclude the court did not err in giving the supplemental instructions to the jury. The judgment is affirmed.
We concur: Needham, Reardon, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CALJIC 17.40 provides, “The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision. [¶] Do not decide any issue in this case by the flip of a coin or any other chance determination.”
CALJIC 17.41 provides, “The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts.”