Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F11184
SIMS, Acting P. J.A jury convicted defendants Deandre Cerrone Scott and Cammitt Russell Doughton of first degree murder in the commission of a robbery. (Pen. Code, §§ 187, subd. (a), 211.) The jury found true allegations that defendants committed the robbery in concert and in an inhabited dwelling. (§ 213, subd. (a)(1)(A).) The jury also found that Doughton committed the murder in the course of a robbery (§ 190.2, subd. (a)(17)), was a felon in possession of a firearm (§ 12021.53, subd. (a)(1)), personally discharged a firearm (§ 12022.53, subd. (d)), and committed a second residential robbery in concert (§§ 211, 213, subd. (a)(1)(A)).
Undesignated statutory references are to the Penal Code.
On appeal, defendants contend the trial court erred by (1) excluding impeachment evidence regarding a prosecution witness’s previous involvement in a shooting, (2) giving CALCRIM No. 372 to instruct regarding flight after a crime, and (3) giving CALCRIM No. 220 to define the standard of proof. Scott separately contends the trial court erred in instructing the jury to continue deliberating after jurors reached an impasse.
We affirm the judgment.
FACTS
On the evening of December 9, 2004, Kobra Turner drove her boyfriend, Edward Quintanilla, to a Value Inn Motel in Sacramento. Doughton, Scott, and Danny Hampton arrived at the motel shortly thereafter. Approximately 15 minutes later, Quintanilla called Turner and asked her to give Scott a ride. Turner drove Scott to his house, where he spent a few minutes inside before being driven back to the Value Inn.
Later that evening, the four men set out from the motel in two cars, one driven by Scott and the other by Turner. The drivers parked their cars at a park near the home of Larry Elliott.
Elliott was expecting Hampton to come by to purchase marijuana. Hampton and Doughton told Scott and Quintanilla that they “were going up to the house and said they would call when they knew the guy was there.”
A few minutes later, Quintanilla received a call on his cell phone. He said they would be “right there” and gave the phone to Turner. Quintanilla and Scott left their cars and walked into the park.
Hampton and Doughton found Elliott in his garage making music with James Willis and George Porter. Hampton and Doughton expressed interest in buying marijuana and smoked a sample at Elliott’s invitation.
About seven minutes after Hampton and Doughton arrived, Quintanilla and Scott rushed into the garage wearing black ski masks. Doughton brandished a revolver. Willis became scared and got down on the ground.
One of the assailants began hitting Elliot. Elliott yelled out, “Stop, ya’ll are killing me.” One of the masked men shouted, “[W]here’s the money? Where’s the weed? Where’s the keys to [the] car?” Elliott responded that he did not have any money because he had just spent it on a truck. While Elliott was being beaten in an effort to obtain the location of his stash of drugs and money, the other assailants entered the house.
Elliott’s girlfriend, Heidi Mackelvie, awoke from a nap to find a semi-automatic gun held to her head. Mackelvie also saw two masked men rummaging around the house. Mackelvie immediately complied with an order to lie on the floor.
Mackelvie and Elliott had a one-year-old son who was sleeping in one of the bedrooms. She pleaded for her son to be left alone, and one of assailants responded that he would not bother the baby. Doughton repeatedly demanded that Mackelvie tell him “where the money is.” Mackelvie retrieved $140 from her purse and handed it to him.
Mackelvie heard someone from the garage say, “If somebody doesn’t tell me where the fuck the money is, somebody is gonna get popped.” When the masked men left her alone for a moment, Mackelvie got up and ran to a neighbor’s house to call the police.
In the garage, one of the assailants told Elliott that he was going to get shot if he said another word. Scott, Quintanilla, and Hampton left while Doughton remained in the garage. Willis heard Doughton say, “I told you not to look up.” Willis then heard a gunshot. Doughton came up behind Willis and warned him not to say anything. Doughton left the garage and ran toward the park.
Elliot died of a gunshot wound to his head.
Turner had been waiting for about 20 minutes when Quintanilla and Scott came running toward the car. A few moments later, Hampton and Doughton also came running. Quintanilla got into Turner’s car with a tall plastic bucket and said, “Go, go, go.” Once in the car, Quintanilla asked, “Who capped him?” Both cars drove to Quintanilla’s house, and they all went inside. A few hours later, Turner noticed that the other men had departed.
The next day, Doughton and Hampton showed up at the apartment of Brandi Cummings in Tracy, California. Hampton was carrying a small backpack inscribed with the name of Quintanilla’s brother. Hampton left the next morning, but Doughton stayed with Cummings for several more days. Doughton and Hampton left the backpack behind. A subsequent search of the backpack by the police revealed items including several plastic bags containing marijuana packaged for sale. Doughton’s fingerprint was on one of the bags.
On December 12, 2004, Quintanilla traveled by bus to La Grande, Oregon. Turner followed him a few days later. After Quintanilla told Turner what had happened at Elliott’s house, Turner convinced him to surrender to the police.
Doughton and Hampton were arrested in Sacramento, California, on December 17, 2004. Scott was arrested in Phoenix, Arizona, on February 3, 2006. Scott did not have permission to be in Arizona.
DISCUSSION
I
Exclusion of Evidence Offered for Impeachment
Doughton contends the trial court abused its discretion in excluding evidence that Willis was involved in a shooting accident prior to the fatal shooting in this case. We disagree.
A
Willis testified that he heard a gunshot immediately after Doughton said to Elliott, “I told you not to look up.” Doughton then came up behind Willis and threatened, “Don’t tell nobody.” Willis looked up to see Doughton running away and a pool of blood on the garage floor. With a surge of adrenaline, Willis “just ran.”
When the prosecutor asked why he ran, Willis responded: “I never really seen nothing like that, so, kind of shocking. So I just –- just ran.”
During cross-examination, Doughton’s counsel sought to cast Willis as another accomplice to the robberies. Defense counsel also returned to the question of why Willis ran away:
“Q. You indicated that you were pretty upset because you didn’t know what to do, so you ran off because nothing like this had ever happened before, is that right?
“A. [by Willis] Yes.
“Q. You’d never experienced anything like this before?
“A. Yes.
“Q. Never experienced any gunplay before?
“A. Not like that.
“Q. Not like that?
“A. To the resulting in death or major injuries.
“Q. So that, of course, excludes the time you got shot in the ankle on October 3rd, 2003?
“[The prosecutor]: Objection, your Honor, objection, relevance.
“THE COURT: Sustained.”
Later, outside the presence of the jury, the trial court held an Evidence Code section 402 hearing. During the hearing, Willis testified that he had been shot in October 2003 by a female cousin. His cousins had gotten into an argument that escalated in tension. When Willis tried to break up the fight, he got caught in the crossfire and was accidentally shot in the ankle. Willis explained that the 2003 shooting was not “as dramatic” as Elliott’s murder because he was “just an innocent bystander” who got caught in the line of fire.
Subdivision (b) of Evidence Code section 402 provides, “The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.”
Doughton’s counsel sought to introduce evidence of the 2003 shooting to show that Willis was naturally calm around gunshots and his reason for running after Elliott’s death was due to Willis’s role as an accomplice. The trial court rejected the argument and excluded the testimony. The court explained:
“I’m not going to allow the evidence nor the questioning regarding that October ’03 incident in which Mr. Willis indicated he was shot in the ankle. I do not see the probative value whatsoever. It’s not connected to anything involving this case. It’s not connected to any of the parties in this case. It’s not connected to Mr. Hampton. It’s not connected to the decedent, nor his girlfriend, nor [Porter]. It has nothing to do with the drugs. It has nothing to do with the sales of drugs. [¶] It appears to be just a random act, as the testimony indicated, in which Mr. Willis was shot when he appeared at a scene involving girl cousins fighting. So I do not see the probative value. So I’ll disallow any evidence on that.”
B
A trial court’s exclusion of evidence offered for impeachment is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.) On this point, we have explained the “abuse of discretion standard requires the reviewing court to uphold the exclusion of evidence unless the reviewing court finds the trial court acted arbitrarily, capriciously, or in a patently absurd manner and that the exclusion of the evidence resulted in a manifest miscarriage of justice.” (People v. Foss (2007) 155 Cal.App.4th 113, 125; see also People v. Ledesma, supra, at p. 705)
We find no abuse of discretion in the trial court’s exclusion of evidence regarding Willis’s involvement in the 2003 shooting. The 2003 shooting was unrelated to the shooting of Elliott. The accidental nature of the 2003 shooting stands in contrast to the deliberate taking of Elliott’s life. Willis’s statement that he ran after seeing a pool of blood on the garage floor would not have been undermined by the fact that he did not panic after being accidentally shot in the ankle by a family member. The trial court did not err in determining evidence of the 2003 shooting to be nonprobative in this case.
C
Even if the trial court had erred in excluding the evidence of the 2003 shooting, we would affirm nonetheless. Willis’s testimony was not necessary to prove that Elliott was murdered by a gunshot to his head. Willis’s testimony was also not necessary to prove Doughton was one of the robbers. Both Turner and Mackelvie identified Doughton as one of the robbers. Mackelvie, in particular, expressed confidence in her identification of Doughton as the one who put a gun to her head.
Although Willis’s testimony painted a more complete picture of the tragic events in Elliott’s garage, it was corroborated as to the robbery by Turner and Mackelvie and as to the murder by the forensic pathologist. Although Doughton seeks to cast doubt on the strength of the testimony by Turner and Mackelvie, we do not reweigh the evidence on appeal. (People v. Hatch (2000) 22 Cal.4th 260, 272.)
Viewed in a light most favorable to the judgment, the evidence adduced at trial sufficed to convict Doughton even if his counsel had succeeded in entirely discrediting Willis. Even if the trial court had erred in excluding evidence of the 2003 shooting involving Willis, the absence of the error would not have yielded a result more favorable to Doughton. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II
CALCRIM No. 372
Defendants contend the trial court erred in instructing the jury with CALCRIM No. 372 regarding flight. Scott argues that there was no substantial evidence to support the giving of the instruction. Doughton contends the instruction “is argumentative, casting the evidence in the light most prejudicial to the defendant, and thereby denying due process....” We reject the contentions.
A
During the jury instruction conference, the prosecution requested a flight instruction on grounds that it was required by section 1127c. Over objection by Scott and Doughton, the trial court gave CALCRIM No. 372 as follows:
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”
“If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
B
The California Supreme Court has “construed section 1127c ‘as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper.’ (People v. Roberts (1992) 2 Cal.4th 271, 310.) ‘A flight instruction is proper whenever evidence of the circumstances of [a] defendant's departure from the crime scene... logically permits an inference that his movement was motivated by guilty knowledge.’ (People v. Turner [(1990)] 50 Cal.3d [668,] 694.)” (People v. Abilez (2007) 41 Cal.4th 472, 521-522.)
Scott asserts the trial court erred in giving CALCRIM No. 372 because “there was no evidence [he] fled after the commission of a crime or after he was accused of a crime....” We disagree.
The record reveals sufficient evidence of flight by Scott to warrant the giving of CALCRIM No. 372. Willis saw all four assailants, including Scott, leave the garage and run toward the park. Turner testified that the four men came running toward their parked cars. Running away from the scene of a crime is the archetypal form of flight. (See People v. Abilez, supra, 41 Cal.4th at p. 522.)
Scott protests that a hasty departure by itself does not establish guilt. True. However, the trial court must give a flight instruction whenever the evidence is reasonably susceptible of a conclusion that defendant’s departure indicated a consciousness of guilt. “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
After the murder, Scott traveled to Arizona when he did not have permission to leave California. The jury could have found this to be a second instance of flight by Scott. (People v. Carter (2005) 36 Cal.4th 1114, 1182 [flight instruction properly given when evidence showed defendant left California for Las Vegas after the crimes].)
Scott argues that the stipulation regarding his travel to Arizona without permission and his subsequent arrest in that state do not establish that he fled. He contends there was no evidence of when he traveled to Arizona or whether he was trying to be evasive in doing so. Regardless of the specific date defendant left for Arizona, he did not have permission to travel outside of California. The jury had a reasonable basis to conclude that defendant’s unauthorized departure from California constituted flight. “[T]he instruction neither requires knowledge on a defendant's part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest.” (People v. Carter (2005) 36 Cal.4th 1114, 1182.)
Accordingly, we conclude that substantial evidence indicating flight by Scott justified the trial court’s giving of CALCRIM No. 372.
C
Doughton acknowledges, “it is futile to argue that his excursion to Tracy did not support a flight instruction in the instant case.” Nonetheless, he argues CALCRIM No. 372 violated his due process right to a fair trial. Specifically, Doughton contends the instruction violates a defendant’s right to due process by emphasizing evidence of flight. We disagree.
In allowing a permissible inference of consciousness of guilt from evidence of flight, CALCRIM No. 372 does not give undue weight to evidence of flight. In People v. Mendoza (2000) 24 Cal.4th 130, at page 180, the California Supreme Court held “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Thus, allowing “a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt” does not violate due process. (Ibid.; see also People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1158.) Moreover, as the Attorney General points out, even if the jury relied on CALCRIM No. 372 to infer consciousness of guilt, the instruction cautioned that evidence of flight alone failed to support a conviction.
The jury was also instructed with CALCRIM No. 200. In pertinent part, the instruction states: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give you a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” Thus, the jury was not required to find that defendant fled or that his flight proved consciousness of guilt.
The jury was properly instructed on the permissible inference that, if jurors found evidence of flight, they could infer consciousness of guilt. Accordingly, we reject Doughton’s due process challenge to CALCRIM No. 372.
III
CALCRIM No. 220
The trial court instructed the jury with CALCRIM No. 220 as follows:
“The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because he [sic] has been arrested, is in custody, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, he [sic] is entitled to an acquittal and you must find him not guilty.”
Defendant Doughton contends this instruction is constitutionally deficient.
It is not. (People v. Zavala (2008) 168 Cal.App.4th 772; People v. Zapeda (2008) 167 Cal.App.4th 25; People v. Ramos (2008) 163 Cal.App.4th 1082; People v. Garelick (2008) 161 Cal.App.4th 1107; People v. Campos (2007) 156 Cal.App.4th 1228; People v. Flores (2007) 153 Cal.App.4th 1088; People v. Westbrooks (2007) 151 Cal.App.4th 1500; People v. Hernandez Rios, supra, 151 Cal.App.4th 1154.)
IV
Instruction to Continue Jury Deliberation
Scott contends the trial court erroneously gave an instruction that we approved in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore) to aid the jury in continuing its deliberation. We reiterate our approval of the Moore supplemental instruction.
A
Jury deliberation commenced on March 20, 2008. On March 25, 2008, the jury convicted Doughton on all counts and found all of the enhancement allegations against him to be true. However, the jury indicated it was split on the charges against Scott. A note from the jury stated, “We as a jury could not reach a unanimous decision as to Kobra Turner being an accomp[l]ice or not. And we did not recieve [sic] any collaborating [sic] evidence, that was sufficient. The count was 11 to believe she was not an accomplice and 1 believed she was an accomplice.”
The trial court inquired whether jurors thought further instruction on the accomplice issue would help them reach a decision. Eleven jurors stated that further instruction might help, and one juror expressed doubt that it would. The court also asked jurors whether further argument would be helpful on the issue. One juror thought further argument would be helpful, seven thought it might be, and four did not. The court announced it would allow counsel to present additional argument on the accomplice issue and sent the jury home for the night.
The next morning, all counsel briefly argued the issue of whether the evidence showed Turner to be an accomplice. At the conclusion of the arguments, the court reread CALCRIM Nos. 334, 703, and 707 to the jury. At the request of Scott’s counsel, the court read to the jury an instruction nearly identical to that given in Moore, supra, 96 Cal.App.4th at pages 1118-1121. The trial court instructed:
“What I’m gonna do now, ladies and gentlemen, is I have a further instruction –- direction and instruction to give you.
“It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict, was ultimately able to arrive at verdicts on one or more of the counts before it.
“To assist you in your further deliberation, I’m going to give you a further instruction 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 to listen 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 your fellow jurors to re-examine theirs.
“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 previously instructed you, each of you must decide this case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors.
“It is your duty as jurors 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 previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.
“May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily, and try new methods. For example, you may wish to consider having different jurors lead the discussions for a period of time or you may wish to experiment with reverse role playing, by having those on one side of the issue present and argue the other side’s position and vice versa. This might enable you to better understand the other’s positions.
“By suggesting you should reconsider changes in your methods of deliberations, I want to stress that I am not dictating or instructing you as to how to conduct your deliberations. I merely find that you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
“I also suggest you reread instructions 200 and 3250 [sic; 3550]. These instructions pertain to your duties as jurors and make recommendations as to how you should deliberate.
“The integrity of a trial court requires that jurors at all times during deliberations conduct themselves as required by these instructions.
“Instructions 200 and 3250 [sic; 3550] define the duties of a juror.
CALCRIM No. 200 defines the respective roles of the judge and jury along with a cautionary statement that not all instructions necessarily apply to the case. CALCRIM No. 3550 instructs jurors on how to approach their tasks during deliberation.
“The decision the jury renders, must be based on the facts and the law. You must determine what facts have been proved from the evidence received in this trial and not from any other source.
“A fact is something proved by the evidence or by a stipulation. 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 the law.
“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.
“Instruction 32 –- strike that -– 3550 defines the jury’s duty to deliberate. The decisions you make in this case must be based on the evidence received in this trial, and the instructions given to you by the Court.
“These are the matters this instruction requires you to discuss for the purpose of reaching a verdict. Instruction 3550 also recommends how jurors should approach their task. You should keep in mind the recommendation this instruction suggests when considering the additional instructions, comments, and suggestions I have made in the instructions now presented to you.
“I hope my comments and suggestions may have been of some assistance to you.
“You are ordered to continue your deliberations at this time. If you have any other questions, comments, requests, or any communications you desire to report to me, please put those in writing on the form the bailiff has provided to you.
“Now, I’m gonna order you to return to the jury room for further deliberations.”
The jury resumed deliberation. The next day, the jury indicated it “was still split.” The jury requested clarification of terms, including the word “slight.” The trial court responded by defining the terms. Later that day, the jury requested further elaboration on the meaning of “slight.” The court responded, “That is the definition.”
The next day, the jury returned a verdict convicting Scott of murder and robbery of Elliott and finding true the allegation of robbery in concert. However, the jury remained split on the charged robbery of Mackelvie and one of the enhancement allegations.
The court declared a mistrial as to the second robbery charge and gun enhancement allegations. The prosecution dismissed the mistried matters in the interest of justice.
B
The Attorney General contends Scott forfeited the issue by requesting the very instruction he now challenges as erroneously given. We disagree.
It is well settled that “a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights.” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156; see also § 1259.) Even so, “a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012, quoting People v. Andrews (1989) 49 Cal.3d 200, 218.)
Here, Scott does not contend the supplemental instruction was too general or incomplete. Instead, he argues the supplemental instruction had an impermissible coercive effect on jurors so that his constitutional rights to fair trial and unanimous verdict were denied. Scott’s argument that the supplemental instruction violated his substantial rights did not require objection in the trial court to preserve the issue for appeal. (People v. Hudson, supra, 38 Cal.4th at p. 1012.)
But Scott did more than fail to object. His counsel appeared to invite any error in giving the supplemental instruction when the court asked whether counsel wanted the instruction to be given. Scott’s counsel responded emphatically, “I did, I did, I did.”
The doctrine of invited error applies “to estop a party from asserting an error when ‘his own conduct induces the commission of error.’” (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3, italics omitted.) However, the doctrine does not apply to bar a criminal defendant from contesting an erroneous instruction even when requested by the defense. As the California Supreme Court has explained, “The invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction. [Citations.] Because the record here shows no tactical reason, we reject the People's reliance on the invited error doctrine.” (People v. Moon (2005) 37 Cal.4th 1, 28.)
Defendant’s right to have the jury properly instructed on the applicable law was not forfeited or waived, and we proceed to consider his argument on the merits.
C
The supplemental instruction challenged in this case is substantively identical to that reviewed in Moore, supra, 96 Cal.App.4th 1105, at pages 1118 to 1121. In Moore, we concluded that the instruction did not exert a coercive effect on jurors. (Id. at p. 1121.) Instead, the instruction “directed the jurors to consider carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views, and to consider the views of their fellow jurors.” (Ibid.) In People v. Whaley (2007) 152 Cal.App.4th 968 (Whaley), at pages 982-983, the same instruction was again upheld against similar challenge that it coerced a holdout juror into capitulating to the verdict.
Scott contends Moore and Whaley were wrongly decided but offers no authority casting doubt on the propriety of the instruction. Instead, Scott suggests the “particular circumstances” of this case rendered the supplemental instruction wrongful. Specifically, Scott asserts that the trial court’s rereading of accomplice instructions in addition to additional arguments by counsel “amounted to a de facto dynamite charge designed to have the holdout juror reexamine his or her position and embrace unanimity.”
Scott mischaracterizes the trial court’s handling of the split jury as an “onslaught” on the single juror who disagreed with the other 11. The trial court properly reread the pattern jury instructions regarding accomplices to crimes after 11 jurors expressed the opinion that further instruction would be helpful. Although one juror expressed doubt regarding the helpfulness of further instruction, even this juror did not deny the possibility that further instruction would ultimately assist the jury. Thus, the court did not err In rereading instructions regarding the accomplice issue. A trial court has a responsibility to help the jury understand the law governing a case. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
The trial court also did not err in allowing all counsel to briefly argue the accomplice issue after a majority of jurors indicated that further argument might be helpful. As the California Supreme Court has noted, “a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury.” (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Here, the trial court responded appropriately to the jury’s professed difficulty in reaching a verdict as to the charges and allegations against Scott. The court sought to shed light on the accomplice issue by rereading the applicable jury instructions and allowing all counsel to present further argument on the issue. To facilitate productive deliberations, the court gave the supplemental instruction approved in Moore and Whaley. Although Scott decries the court’s efforts as an onslaught, the record instead shows the court did not overreach in its efforts to help the jury resolve the accomplice issue.
The trial court did not err in giving the supplemental instruction informing the jury of productive strategies for further deliberation.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.