Opinion
A145313
02-14-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DWAYNE FINLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C173404)
Michael Dwayne Finley appeals from his convictions, following a jury trial, of multiple sex offenses and robbery. He argues the trial court erred in failing to give a unanimity instruction with respect to the robbery charge, and in instructions and proceedings when the jury indicated it was deadlocked as to certain charges. We affirm.
BACKGROUND
Our recitation of background facts omits details not relevant to the resolution of this appeal.
Information
In October 2014, an amended information charged appellant with the following crimes: with respect to victim Z. Doe, forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A) ; count 1) and forcible rape (§ 261, subd. (a)(2); count 2); with respect to victim O. Doe, forcible rape (§ 261, subd. (a)(2); count 3), second degree robbery (§§ 211, 212.5, subd. (c); count 4), and kidnapping for rape (§ 209, subd. (b); count 5); and with respect to victim T. Doe, forcible rape (§ 261, subd. (a)(2); count 6).
All undesignated section references are to the Penal Code.
Prosecution Case
About 11 p.m. on June 17, 2009, Z. Doe was working as a prostitute when appellant approached her. Z. got in appellant's car, they agreed to engage in sex, and appellant paid Z. After driving to a secluded area, Z. took an Ecstasy pill, they both drank gin, and then began to engage in sex. At some point, intercourse became painful for Z. and she asked appellant to stop. Appellant stopped but became aggressive and asked for half of his money back. Z. gave him the money because she was scared. When Z. asked appellant to drive her back, he grabbed her hair, slapped her, told her he had a gun, and demanded she engage in sex with him. Z., crying, asked appellant not to hurt her and he responded that he would not hurt her if she did what he said. Scared, Z. did so. After appellant finished, he drove Z. back.
About 2 a.m. on November 13, 2010, O. Doe was working as a prostitute when appellant approached her. O. got in appellant's car and gave him directions, but appellant drove in a different direction. O. became concerned and asked appellant to pull over, telling him she did not want his money. He did not pull over and O. tried to get out of the car while it was moving, but appellant grabbed her hair and yanked her back inside. When O. reached for her phone, appellant took it from her, either hiding it in the car or throwing it out the window, and slapped her. Appellant put a knife to O.'s face and throat and told her he would kill her if she moved. After parking, appellant told O. to get undressed and then engaged in intercourse with her. Afterwards, O. tried to get dressed, but appellant stopped her and told her to go before he changed his mind. O.'s clothing, shoes, money, and condoms were on the passenger floorboard, but O. ran away and left them behind, too scared to try to retrieve them.
About 4:00 a.m. on November 3, 2011, T. Doe was working as a prostitute when appellant approached her. They agreed to engage in sex and appellant paid T., then drove to a secluded area. The intercourse began to hurt T., but appellant ignored her repeated requests that he stop and that she wanted to go home. Instead, he put his forearm against her neck and continued, pushing her down when she tried to get up. After appellant finished, he left the car to urinate and she leaned over to the driver's side to see if she could drive off. Appellant pulled T. out of the car and slammed her down on a rock. She ran away from appellant's car and flagged down help.
All three victims had sexual assault exams performed at a hospital in the hours after the incidents with appellant.
Defense Case
Appellant testified on his own behalf and acknowledged picking up prostitutes on an occasional basis since 2005. After appellant picked up Z. Doe on June 17, 2009, she drank gin and took an Ecstasy pill, and they parked. When she complained about the intercourse he stopped, then suggested another position which might be more comfortable for her. Z. did not complain about the new position and they completed intercourse. As appellant drove Z. back, they argued over whether appellant should have some of his money refunded. Z. eventually agreed to return 20 dollars; as she was pulling out the bill, appellant grabbed an additional 20 dollars.
Appellant picked up O. Doe on November 13, 2010. They agreed to engage in sex, appellant paid her, and she got in his car. O. did not give appellant directions, but as he drove she began to talk about appellant on her cell phone. Appellant was concerned about continuing because he believed O.'s pimp knew what type of car they were in. O. did not try to get out of appellant's car, and appellant denied having a knife or holding her hair. They parked and began to have intercourse. After a few minutes, O.'s phone rang and she told the caller where she was and the color of appellant's car. Appellant told O. he no longer wanted sex and wanted his money back; when she refused, he told her to get out of his car. O. tried to make a call and appellant grabbed her phone and threw it on the floor, repeating his demand that she leave the car. O. got out and appellant drove away. When he was about a block away, he threw O.'s phone and clothes out of the car.
Appellant picked up T. Doe on November 3, 2011. After finding a secluded location they began to engage in intercourse. T. complained about being tired and her leg cramping. They tried different positions and taking a break before continuing. T. never told appellant to stop. After they finished, T. got dressed and appellant left the car, with the engine idling, to urinate. Appellant noticed T. moving in the car, apparently trying to get into the driver's seat. When he confronted her, she looked guilty and he pulled her out of the car but did not throw her on a rock. Appellant told her he wanted his money back; she returned 20 dollars and then left on foot.
The defense also presented a medical expert who testified that the injuries of all three women could be the result of consensual sex.
Verdict
With respect to the Z. Doe charges, the jury found appellant not guilty of forcible oral copulation and all lesser included offenses of that charge (count 1), and found him guilty of sexual battery, a lesser included offense of the forcible rape charge (count 2). With respect to the O. Doe charges, the jury found appellant guilty of the robbery charge (count 4), but could not reach a verdict on the rape or kidnapping charges (counts 3 & 5). With respect to the T. Doe charge, the jury found appellant guilty of rape (count 6).
The jury found not true an enhancement to this charge alleging appellant committed the offense against more than one victim (§ 667.61, subds. (c)(1), (e)(4)).
Subsequent Proceedings and Sentencing
The trial court declared a mistrial with respect to counts 3 and 5. Appellant subsequently pled no contest to felony sexual battery, a lesser related offense of the mistried rape charge (count 3). The mistried kidnapping charge (count 5) was dismissed on the prosecutor's motion. Appellant was sentenced to eight years' imprisonment.
DISCUSSION
I. Unanimity Instruction
Appellant first argues the trial court erred in failing to sua sponte issue a unanimity instruction with respect to count 4, the robbery of O. Doe. Appellant argues the evidence established two acts of robbery: when he took O.'s cell phone prior to intercourse, and when he drove off with her clothes, money, and cell phone after intercourse. The People agree both acts could constitute robbery, but contend a unanimity instruction was not required because the two acts were part of a continuous course of conduct. We agree with the People and find no error.
"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when the statute contemplates a continuous course of conduct or a series of acts over a period of time.' [Citation.] There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) Although appellant did not request the instruction below, " '[e]ven absent a request, the court should give [a unanimity] instruction "where the circumstances of the case so dictate." ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 877 (Covarrubias).)
Two cases highlighted by the People are instructive. In People v. Haynes (1998) 61 Cal.App.4th 1282 (Haynes), the defendant assisted a perpetrator who struggled with a victim in a parking lot, taking part of the victim's cash before the victim got away. (Id. at p. 1286.) The defendant and the perpetrator followed the victim for some blocks, stopped him, and took the rest of the cash. (Ibid.) The Court of Appeal concluded no unanimity instruction was required because "the two encounters here were 'so closely connected in time' [citation] that the [continuous course of conduct] exception applied." (Id. at p. 1295.) The court explained: "The two encounters were just minutes and blocks apart and involved the same property. The acts were successive, compounding, part of a single objective of getting all the victim's cash, charged as a single robbery, and arguably barred from multiple punishment by . . . section 654. Plus, none of the loot was carried away to a place of temporary safety until all of it was obtained." (Id. at p. 1296.)
In People v. Turner (1983) 145 Cal.App.3d 658 (Turner), disapproved of on other grounds by People v. Majors (1998) 18 Cal.4th 385, 411, and People v. Newman (1999) 21 Cal.4th 413, 422 & fn. 6, the defendant raped the victim in her car, took her money and gold chains, and forced her to drive to another location. (Id. at p. 668.) During the drive, the victim managed to escape from her car and the defendant drove off in it. (Ibid.) The Court of Appeal rejected the defendant's argument that a unanimity instruction was required, finding the continuous course of conduct exception applied: "the prosecutor without objection argued the taking of the money, gold chains and the car constituted a single robbery. Although [the defendant's] driving off with the car occurred after the taking of the other items, it was part of one course of continuous conduct all occurring within a brief period of time against a single victim. Here, the multiple acts were just alternate ways of proving a necessary element of the same offense." (Id. at p. 681.)
As in Haynes and Turner, the takings here were minutes apart, involved the same victim, and appellant did not carry any of the items away to safety until all of them had been taken. Appellant makes no attempt to distinguish Haynes and Turner in his reply brief, and we see no basis to do so.
In addition, there is "no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Jennings, supra, 50 Cal.4th at p. 679; see also Covarrubias, supra, 1 Cal.5th at p. 880 [no unanimity instruction required where, "[e]ven assuming that the events in this case may properly be parsed into multiple discrete takings, defendant did not offer 'entirely different' defenses to each taking"].) In closing argument, defense counsel did not offer different defenses to the two acts, or any substantive argument regarding the robbery charge at all, but rather contended O. was lying about the sexual assault because she wanted "payback to the man who took her phone and clothes and took her money."
The prosecutor also did not distinguish between the two acts, arguing, "how do we know that a robbery took place with regards to [O.] Doe? [¶] Well, as she testified to, her clothing, her phone and her money were taken. She had to run away after this rape happened, completely naked, and they were in the possession of the defendant. [¶] The defendant also admitted in his own testimony that he took these items."
Appellant argues the trial court's instruction to the jury on a lesser included offense, grand theft, indicates "there was more than one factual scenario supporting a charge of robbery." Appellant does not explain how the fact that the jury could have convicted appellant of either grand theft or robbery impacts the necessity of a unanimity instruction.
Because the two takings fall within the continuous-course-of-conduct exception, no unanimity instruction was required.
II. Proceedings Regarding Deadlocked Jury
Appellant contends the trial court erred in instructions and proceedings after the jury twice informed the court it was deadlocked. We again find no error.
A. Background
After a little more than two days of deliberations, the jury sent a note to the court stating: "We've been stuck on counts 3, 5 & 6 since yesterday afternoon. Voting 11 to 1 for most of that time. Need advice." The court informed counsel its "inclination is to read CALJIC 17.40, 17.41, 17.47, and 17.50." The prosecutor proposed certain additional instructions. Appellant's counsel objected to the prosecutor's additional instructions but, after being afforded the opportunity to review the instructions proposed by the court, did not voice any objection to those instructions.
The court did not issue the prosecutor's proposed instructions but instructed the jury with CALJIC Nos. 17.40 and 17.41, as follows: "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 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 by any other chance determination. [¶] Now, 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 show[n] it is wrong. [¶] Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts."
The court also instructed the jury with CALJIC Nos. 17.47 [Admonition Against Disclosure of Jury Balloting] and 17.50 [Concluding Instruction], as well as several other concluding CALJIC instructions. (CALJIC Nos. 17.42 [Jury Must Not Consider Penalty—Non-Capital Case], 17.43 [Jury Deliberations], 17.45 [Manner of Recording Instruction of NO Significance—Content Only Governs], 17.49 [Use of Multiple Verdict Forms—Implied Acquittal-First].)
Following the court's instructions, this exchange took place:
"THE COURT: And so now then addressing our foreperson, No. 11: [¶] Does the foreperson believe that any further deliberation or instruction from the court or reading of testimony by the court reporter would assist the jury in reaching a verdict? [¶] And would you like an opportunity to discuss that with your fellow jurors?
"JUROR NO. 11: We could use an opportunity to discuss that.
"THE COURT: Now, I also have to ask all other jurors: [¶] Does any member of the jury believe that any further deliberations, instructions from the court, or reading of the testimony by the court reporter would assist in reaching a verdict? [¶] I see everyone is either silent or shaking their heads in the affirmative. [¶] Now, the next question is only to our foreperson: [¶] How many ballots has the jury taken on the verdict? How many ballots?
"JUROR NO. 11: Three or four.
"THE COURT: All right. And has there been any movement during each of the ballots, without telling me how people are numerically divided?
"JUROR NO. 11: There was movement early yesterday.
"THE COURT: All right. So, at this time I am going to allow you to return to the jury deliberation room. If you have any further questions, please let us know." The record discloses no objection by appellant's counsel to this instruction or exchange.
A little over an hour later, the jury submitted a note stating: "We believe we are deadlocked on at least 2 two counts." The following colloquy took place:
"THE COURT: [A]ddressing our foreperson. By written note you have informed the court and counsel that you are unable to reach a unanimous verdict as to two counts; is that correct, sir?
"JUROR NO. 11: That's correct, Your Honor.
"THE COURT: Which counts are those? Just the numerical number.
"JUROR NO. 11: Five and six -- five and -- three and five.
"THE COURT: Three and five?
"JUROR NO. 11: That's correct.
"THE COURT: All right. Now, then, is there anything that the court can do to help the jury in its deliberations such as giving you further instructions or having the reporter read back additional testimony?
"JUROR NO. 11: We have not -- Your Honor, we haven't had a chance to talk about that today. There's been a discussion about possibly hearing further testimony regarding count six. I'm not sure that -- I'm not sure there is a consensus that it would be helpful to do that.
"THE COURT: But there are some jurors that would like to hear some readback?
"JUROR NO. 11: That's correct.
"THE COURT: In light of that, I would ask that you turn in any sealed verdict forms in which you have reached a verdict -- but, once again, that will be lodged with Madame Clerk -- and then I will allow you to return to the jury deliberation room."
After a brief discussion about submitting partial verdicts, this exchange took place:
"THE COURT: So, you have reached a verdict on counts three and five.
"JUROR NO. 11: Those we have not been able to reach verdicts on those.
"THE COURT: All right. But you believe that further readback will assist as to count six.
"JUROR NO. 11: Some of us do feel that way. Yes, Your Honor.
"THE COURT: Understood. All right."
After the jury left the courtroom to resume deliberations, the court asked counsel if they wanted to place anything on the record. Appellant's counsel made no comment or objection.
About five hours later, the jury submitted a note stating: "We are unable to reach a unanimous decision on counts 3 and 5. We have a decision on count 6." Once the court determined all jurors believed the jury was "hopelessly deadlocked" on counts 3 and 5, it declared a mistrial as to those counts.
In the interim, the jury requested a readback of certain portions of T. Doe's testimony, and asked a question about the enhancements to count six.
B. Analysis
Appellant argues the trial court erred in its supplemental instructions, in its determination there was a reasonable probability further deliberations would result in a verdict, and in sending the 11-to-1 jury back for additional deliberations a second time.
As an initial matter, the parties dispute whether appellant forfeited his challenges by failing to raise them below. Appellant's sole objection below was directed at the People's proposed instructions, which the trial court did not give, but he argues no objection was needed to preserve his claims. We need not decide whether the claims are forfeited or whether we should excuse any forfeiture because, as explained below, we will reject his claims on the merits. However, we note that the lack of contemporaneous objection undermines appellant's claims on appeal. "[W]here, as here, defense counsel does not object to a supplemental instruction [to a deadlocked jury], 'such an omission indicates that the potential for coercion argued now was not apparent to one on the spot.' " (People v. Whaley (2007) 152 Cal.App.4th 968, 983 (Whaley).)
Appellant's claim of coercion is further undermined by the ultimate mistrial on two counts. Appellant fails to explain how the challenged conduct was coercive as to one count, but not as to two other counts.
1. Supplemental Instructions
Appellant challenges the following instruction, from CALJIC No. 17.41: "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 show[n] it is wrong." Appellant highlights the use of the word "one," arguing it "could only be understood as directed at the lone holdout."
In giving supplemental instructions to a deadlocked jury, " '[t]he court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' " (Whaley, supra, 152 Cal.App.4th at p. 980.) "[O]ur Supreme Court ruled 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.' " (Id. at p. 981.)
Instructions targeting holdout jurors are improper where "[t]he one or more 'holdout' jurors are told that in reaching their independent conclusions as to whether or not a reasonable doubt of the defendant's guilt exists, they are to weigh not only the arguments and evidence but also their own status as dissenters—a consideration both rationally and legally irrelevant to the issue of guilt." (People v. Gainer (1977) 19 Cal.3d 835, 848, disapproved of on another ground by People v. Valdez (2012) 55 Cal.4th 82, 163 (Valdez).) Thus, instructions have been disapproved where the jury is told: " 'if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.' " (Id. at p. 845.)
We do not agree with appellant that the instruction improperly targeted the holdout juror. While the word "one" can mean a single individual, when used as a pronoun, as in the challenged instruction, it means "anyone at all." (Merriam-Webster's Collegiate Dict. (11th ed. 2003) p. 866.) The use of "one" was clearly directed at any individual member of the jury, not just the sole holdout. Other supplemental instructions provided by the trial court underscore this construction. (See People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples) [analyzing coercive effect of supplemental instructions to deadlocked jury in light of "the trial court's complete remarks," not just the challenged statement "read in isolation"].) The trial court directed the jury: "do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision," and "[e]ach of you must decide the case for yourself." (Italics added.) The instructions as a whole "did not in any way single out minority jurors or encourage those jurors . . . to consider, along with the arguments and the evidence, 'their own status as dissenters.' . . . Nor did the instruction either exert pressure on or in any way encourage jurors in the minority to abandon their independent judgment and acquiesce in a verdict simply because the majority had reached a verdict." (Valdez, supra, 55 Cal.4th at p. 162, fn. omitted.)
Appellant argues the challenged instruction was "indistinguishable" from remarks described in People v. Carter (1968) 68 Cal.2d 810 and People v. Crossland (1960) 182 Cal.App.2d 117. In Carter, "the dissenter was singled out in open court and questioned as to his understanding of certain instructions," the trial court opined "the case was not 'complicated,' " and the trial court issued a "stern admonition, couched almost in terms of a threat, that the jurors would be locked up for the night if a verdict were not reached within a half hour." (Carter, at pp. 819-820.) In Crossland, the trial court told the jury the 10-to-2 vote " 'sort of baffles me,' " adding, " 'this is probably the most simple case I have ever tried in my twelve years as a Superior Court Judge, and I have heard over a thousand trials.' " (Crossland, at p. 118.) The trial court here did not single out the dissenter, offered no opinion on the complexity of the case or the jury's vote, and issued no couched threats about what would happen to the jury if no verdict were reached. The supplemental instruction was not improper.
2. Reasonable Probability of Agreement
Appellant next challenges the trial court's determination there was a reasonable probability the jury would reach a verdict with further deliberations. After the first note reporting deadlock, the trial court's inquiry as to whether additional deliberations were worthwhile was met by the jurors being "either silent or shaking their heads in the affirmative." Appellant argues this indicates some jurors disagreed, yet the trial court failed to pursue further inquiry. Similarly, after the second deadlock note, the foreperson told the trial court "[s]ome of us" thought hearing a readback of testimony would be helpful. Appellant contends it was an abuse of discretion to ignore the indications that some jurors felt further deliberations would not be productive.
"Except 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 . . . , 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." (§ 1140.) "Directing further deliberations is proper where the trial court reasonably concludes that 'such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' " (Whaley, supra, 152 Cal.App.4th at p. 980.) "We review a trial court's 'determination whether there is a reasonable probability of agreement' for an abuse of discretion." (Peoples, supra, 62 Cal.4th at p. 782.)
Appellant's argument suggests there must be a consensus among jurors that further deliberations will be productive, but he cites no authority so holding. To the contrary, "a trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict." (Peoples, supra, 62 Cal.4th at p. 782.) The question is whether "the trial court's inquiry was reasonable under the circumstances." (Ibid.) We conclude the inquiries here were reasonable.
After the first note, the trial court asked whether there had been movement in the ballots, and the foreperson replied there had been movement the previous day. Some jurors indicated further deliberations would be helpful. The trial court's inquiry was reasonable and the conclusion there was a reasonably probability the jury could reach a verdict was not an abuse of discretion. (See Peoples, supra, 62 Cal.4th at p. 783 ["Here, each successive ballot showed changes in the jurors' individual determinations, suggesting that the jury had not reached an insurmountable impasse. Under these circumstances, the trial court conducted a reasonable inquiry into whether it was reasonably probable that further deliberations would be productive. Thus, the trial court did not abuse its discretion in declining to poll the jury as to the probability of reaching a verdict."].)
The second note announcing deadlock was submitted after little more than an hour of additional deliberations. The note stated only two counts on which the jury was deadlocked, identified by the foreperson as counts 3 and 5. The jury also had yet to reach a verdict on count 6, but the foreperson volunteered that some jurors thought additional readback of testimony would be helpful as to that count. Under these circumstances, the trial court's inquiry was reasonable and it did not abuse its discretion in concluding it was reasonably probable that further deliberations would be productive.
Appellant argues this case is like People v. Walker (1949) 93 Cal.App.2d 818, in which the trial court directed a jury deadlocked 10-to-2 in favor of conviction to deliberate further, stating: " 'Talk it over fairly; I don't want anybody to do violence to his own judgment, but at the same time there are twelve of you,—and ten one way and two the other—that is coming pretty close to an agreement.' " (Id. at p. 821.) The Court of Appeal noted the jury "was close to an agreement only if the two for acquittal would change their view and join the majority," and the two minority jurors therefore "well could have believed that the judge felt they should agree with the majority." (Id. at p. 825.) The trial court here directed further deliberations without making any such comments; we decline to find, as appellant apparently suggests, the mere fact of directing additional deliberations is analogous to the coercive comment made in Walker.
3. Continued Deliberations Following the Second Note
Appellant separately argues that, given the unchanged 11-to-1 split, it was inherently coercive to direct the jury to continue deliberations after the second note indicating deadlock. We disagree.
"Coercion occurs where 'the trial court, by insisting on further deliberations, expresse[s] an opinion that a verdict should be reached.' " (Peoples, supra, 62 Cal.4th at p. 783.) "Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case." (People v. Pride (1992) 3 Cal.4th 195, 265 (Pride).)
A similar argument was rejected in Pride, supra, 3 Cal.4th 195, involving penalty phase deliberations in a capital case. The defendant argued the court's order that the deadlocked jury continue deliberating was coercive given that "the jury deliberated for more than an entire week, that the vote apparently remained at 11 to 1 for most of that time, and that [the foreperson] publicly suggested the minority juror was breaching his or her duty to impose the appropriate penalty." (Id. at p. 265.) The Supreme Court disagreed, noting in part: "The court avoided any comment on the status of the vote and strongly suggested it was irrelevant. The jury was never told it must reach a verdict, nor were any other constraints placed on their deliberations." (Id. at pp. 265-266.) The Supreme Court further noted "[t]wo jurors told the court they believed a verdict might be reached, and no juror said unanimous agreement was impossible. Once deliberations resumed, the jury requested a reading of testimony and was obviously still focused on the evidence." (Id. at p. 266.) As in Pride, the trial court did not comment on the status of the vote or suggest the jury must reach a verdict, some jurors indicated hearing testimony read back might be helpful, and jurors did request such a read back after they continued deliberations. Under these circumstances, directing the jury to continue deliberations following the second deadlock note was not coercive.
Appellant argues Pride is distinguishable because the deliberations were about the penalty phase of a capital trial, rather than about guilt. Appellant fails to explain why this difference is material to the question of whether the jury's verdict was coerced. Appellant also argues Pride involved "disclosed juror nullification," basing this conclusion on the foreperson's comment. There is no indication either the trial court or the Supreme Court considered the holdout vote to constitute juror nullification; indeed, the jury reached a verdict only after hearing a readback of "virtually all penalty phase testimony," indicating the jury was properly focused on the evidence. (Pride, supra, 3 Cal.4th at p. 264.)
Because we conclude the trial court's conduct did not coerce or compel the jury to reach a verdict, we reject appellant's contention that his federal constitutional rights were violated. --------
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.