Opinion
B303963
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. BILAL BIN ABDULLAH, Defendant and Appellant.
Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA075683) APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell and Lisa Mangay Chung, Judges. Affirmed. Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Bilal Bin Abdullah of possession of methamphetamine and cannabis for sale. He appeals, contending that the trial court abused its discretion by admitting evidence of his prior convictions, erred by failing to sua sponte instruct on an affirmative defense, and coerced the jury's verdict. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
On November 8, 2019, Los Angeles County Sheriff's Deputies Ryan Thompson and Zachary Gregg were on patrol in Palmdale. Abdullah was the front seat passenger in a vehicle with an expired registration. The deputies initiated a traffic stop due to the expired registration. As the vehicle pulled over, Gregg illuminated it with a spotlight, and Thompson saw Abdullah reach behind his seat into the back seat.
Thompson approached the passenger side of the vehicle, while Gregg approached the driver's side. Thompson illuminated the back seat with a flashlight and observed two plastic bindles on the rear passenger side floorboard. One contained 23.5833 grams of a crystalline substance containing methamphetamine; the other contained 1.9935 grams of plant material containing cannabis. Thompson asked Abdullah whether he had anything illegal in his possession. Abdullah pulled from his pockets $218 in various denominations, and three containers of cannabis, i.e., one bindle containing 14.1973 grams; a plastic jar containing 8.7339 grams; and another bindle containing 1.0468 grams. Each container found on Abdullah's person and in the car contained a usable amount of the controlled substance. No empty baggies, scales, or sales records were found in the car.
Deputy Thompson, testifying as an expert at trial, opined that the cannabis was possessed for sale, based on the amount and number of packages; likewise, he opined that the methamphetamine was possessed for sale, given the large quantity. Narcotics dealers commonly sell multiple types of controlled substances in order to reach a broader range of customers, and to cater to customers who alternate between the use of stimulants and depressants. Dealers also commonly carry cash in multiple denominations in order to make change for customers. The amount of cannabis Abdullah possessed in his pockets was more than a typical user would have had for personal use. The amount of methamphetamine in the baggie on the back floorboard amounted to between 500 to 1,000 doses.
The parties stipulated that on January 11, 2001, Abdullah was convicted of possession of marijuana for sale, and on May 18, 2006, he was convicted of possession of cocaine base for sale.
Abdullah presented no evidence.
2. Procedure
The jury convicted Abdullah of felony possession for sale of methamphetamine (Health & Saf. Code, § 11378, count 1) and misdemeanor possession for sale of cannabis (Health & Saf. Code, § 11359, subd. (b), count 2). The trial court sentenced Abdullah to the upper term of three years on count 1, and a concurrent sentence of 180 days in jail on count 2. It imposed a $900 restitution fine, a court operations assessment, a criminal conviction assessment, a drug program fee, a drug analysis fee, and a related penalty assessment and surcharge.
Abdullah timely appealed.
DISCUSSION
1. The trial court did not abuse its discretion by admitting evidence of Abdullah's prior convictions
During an Evidence Code section 402 hearing, the prosecutor sought to admit evidence of two of Abdullah's prior convictions pursuant to Evidence Code section 1101, subdivision (b), to prove knowledge, intent, and lack of mistake. The People explained that they anticipated the defense to argue that the substances at issue were not Abdullah's, and alternatively that the cannabis was possessed for his personal use. Abdullah objected on the ground the evidence was "highly prejudicial and not probative," without further elaboration. The court ruled that, in light of the anticipated defenses, the priors were relevant and their probative value greatly outweighed any prejudicial effect.
During the People's case in chief, Abdullah stipulated to the fact he had suffered the convictions, as set forth above. He did not further object to the evidence.
Abdullah now argues that the trial court prejudicially erred by admitting evidence of his prior convictions. The People contend this claim has been forfeited, and in any event the evidence was properly admitted.
a. Applicable legal principles
Evidence a defendant has committed misconduct other than that currently charged is inadmissible to prove his bad character or propensity to commit the charged crime. (Evid. Code, § 1101, subd. (a); People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405-406 (Bryant); People v. Rogers (2013) 57 Cal.4th 296, 325.) However, such evidence is admissible if relevant to prove, inter alia, knowledge and intent. (Evid. Code, § 1101, subd. (b); People v. Molano (2019) 7 Cal.5th 620, 664; People v. Jones (2011) 51 Cal.4th 346, 371.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (Jones, at p. 371.) "The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859; People v. Thomas (2011) 52 Cal.4th 336, 355.)
Even if other crimes evidence is admissible under Evidence Code section 1101, subdivision (b), it should be excluded under Evidence Code section 352 if its probative value is substantially outweighed by undue prejudice. (Bryant, supra, 60 Cal.4th at pp. 406-407; People v. Thomas, supra, 52 Cal.4th at p. 354.) Because other crimes evidence may be inflammatory, it should be admitted only if it has substantial probative value. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We review a trial court's rulings on the admission of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1114; People v. Rogers, supra, 57 Cal.4th at p. 326.)
b. The trial court did not abuse its discretion by admitting the prior convictions
We discern no abuse of discretion here. To establish possession for sale, the People had to prove Abdullah possessed the methamphetamine and the cannabis; knew of their presence and nature as controlled substances; and intended to sell them. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1177; People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754; People v. Harris (2000) 83 Cal.App.4th 371, 374; CALCRIM Nos. 2302, 2352.) Abdullah's defense was that he possessed the cannabis for his personal use, not with the intent to sell it. Thus, evidence bearing on his intent was highly relevant and probative.
"In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs." (People v. Williams (2009) 170 Cal.App.4th 587, 607; People v. Washington (2021) 61 Cal.App.5th 776, 787; People v. Ghebretensae, supra, 222 Cal.App.4th at p. 754; People v. Pijal (1973) 33 Cal.App.3d 682, 691 ["Since appellant's knowledge of the narcotic contents of the drug and his intent to sell were at issue, evidence of his prior narcotic offenses was clearly admissible to show his guilty knowledge, motive and intent"].) If " ' "a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.]' " (People v. Ghebretensae, at p. 754.)
Applying these principles here, evidence of Abdullah's prior convictions was properly admitted to establish his intent. Additionally, the prior marijuana conviction was properly admitted to prove his knowledge of the nature of the cannabis he possessed in count 2.
The probative value of the evidence was not substantially outweighed by the danger of undue prejudice. The evidence of the prior convictions was no more inflammatory than the charged crimes; it consisted only of evidence that Abdullah had suffered the convictions. (See People v. Washington, supra, 61 Cal.App.5th at p. 788 [prior drug conviction not inflammatory where jury heard nothing about the circumstances of the prior]; People v. Eubanks (2011) 53 Cal.4th 110, 144 [potential for prejudice is decreased when uncharged acts are no more inflammatory than the charged offenses]; People v. Felix (2019) 41 Cal.App.5th 177, 186.) Admission of the evidence occupied minimal time at trial, comprising half a page of the reporter's transcript. During argument, the prosecutor did not mention the prior cocaine conviction, and only briefly mentioned the prior marijuana conviction, arguing that it showed Abdullah knew marijuana was a controlled substance and intended to sell the drugs. (See People v. Lindberg (2008) 45 Cal.4th 1, 25-26 [no abuse of discretion under Evidence Code section 352 where uncharged crimes evidence was brief and noncumulative].)
Because the jury knew Abdullah had been convicted of the prior offenses, and the evidence was derived from sources independent of the charged offense, there could have been no temptation for it to convict in the instant matter to punish him for unadjudicated prior conduct. (See People v. Jones, supra, 51 Cal.4th at pp. 371-372; People v. Demetrulias (2006) 39 Cal.4th 1, 19; People v. Washington, supra, 61 Cal.App.5th at pp. 788-789; People v. Felix, supra, 41 Cal.App.5th at pp. 186-187.)
Further, the court gave a limiting instruction advising that the prior crimes evidence could be considered only on the issues of knowledge of the character of the substances, intent to sell, and absence of mistake or accident, and for no other purpose. The instruction specifically required that the jury "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." We presume the jury followed this instruction, which mitigated the potential for prejudice. (People v. Jones, supra, 51 Cal.4th at p. 371; People v. Felix, supra, 41 Cal.App.5th at pp. 186-187; People v. Ghebretensae, supra, 222 Cal.App.4th at p. 755.)
Abdullah contends that the mere fact of a prior conviction, without evidence of the underlying conduct, cannot demonstrate intent or knowledge. He argues that in other cases finding uncharged crimes relevant, evidence of the underlying circumstances was introduced. (See People v. Williams, supra, 170 Cal.App.4th at p. 598; People v. Ghebretensae, supra, 222 Cal.App.4th at p. 754; People v. Jones, supra, 51 Cal.4th at pp. 370-371; People v. Demetrulias, supra, 39 Cal.4th at pp. 7, 14-17.) While appellant is correct that such evidence was elicited in the cited cases, none of them stand for the proposition that "the bare fact of a conviction is not sufficient to render prior bad acts relevant," as he argues. Nothing in the cited cases suggests that omission of the details of prior crimes renders the evidence inadequate to prove intent or knowledge, and we cannot see how such evidentiary details were required here. Contrary to Abdullah's argument that the evidence "reveals nothing about the underlying conduct," here the fact of the prior convictions informed the jury of everything it needed to know: Abdullah had previously possessed controlled substances with the intent to sell them. The jury would have been readily able to determine whether the prior crimes were similar enough to be probative: by definition, in the prior offenses, as in the charged offenses, Abdullah possessed contraband with the intent to sell it. (See People v. Jones, supra, 51 Cal.4th at p. 371 ["The Vernon robbery and the Florville home invasion were not particularly similar, but they contained one crucial point of similarity—the intent to steal from victims whom defendant selected."].)
Abdullah additionally argues that the prior conviction for possession of cocaine base for sale could not have logically proved his knowledge of the different substances at issue here, i.e., methamphetamine and cannabis. But Abdullah did not object to admission of the cocaine prior on this basis, and has therefore forfeited the argument. (See People v. Lindberg, supra, 45 Cal.4th at pp. 24-25; People v. Marks (2003) 31 Cal.4th 197, 228-229; Evid. Code, § 353, subd. (a).) And, even if the prior cocaine conviction was inadmissible to prove knowledge, it was nonetheless properly admitted to show intent. The fact cocaine was not involved in the charged crimes did not necessarily render the prior irrelevant. (See People v. Williams, supra, 170 Cal.App.4th at pp. 598, 607 [prior crimes involving cocaine and marijuana admitted in prosecution for possession of methamphetamine].)
Finally, Abdullah urges that the cocaine prior lacked probative value because it was remote in time. The People argue this contention has been forfeited, because Abdullah did not object on this specific ground below. Forfeiture aside, this circumstance did not require exclusion, given that for portions of the intervening time Abdullah was incarcerated, suffered numerous additional convictions, and violated probation or parole. (See People v. Steele (2002) 27 Cal.4th 1230, 1245 [fact prior crime occurred 17 years before the charged offense did not require exclusion, especially since defendant was likely incarcerated for a substantial part of the intervening time]; People v. Jones (2012) 54 Cal.4th 1, 51; People v. Foster (2010) 50 Cal.4th 1301, 1330; People v. Massey (1987) 192 Cal.App.3d 819, 825.)
Although the possession for sale of marijuana conviction was even older, Abdullah does not appear to challenge its admission on this basis.
The People argue that Abdullah has forfeited his evidentiary challenges altogether because he failed to object to the evidence when offered at trial, and instead stipulated to the prior convictions. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 159 [when court rules on motion in limine, defendant must renew his objection at trial, "when the trial court would have the opportunity to evaluate [the] objections in light of the actual evidence presented"].) Given our resolution of appellant's contentions, we need not address this point, nor do we reach the parties' arguments regarding prejudice.
2. The trial court did not commit instructional error
a. Additional facts
The trial court instructed the jury that to find Abdullah guilty of possession of cannabis for sale, count 2, it had to find he possessed a usable amount of cannabis, a controlled substance; knew of its nature as a controlled substance; and intended to sell it. The defense did not request, and the court did not give, any instruction stating that possession of 28.5 grams or less of cannabis for personal use was lawful.
The court likewise instructed on the elements of possession of methamphetamine for sale, count 1. As to that count, it instructed on the lesser included offense of simple possession of methamphetamine.
During deliberations, the jury sent a note to the court with several questions. One was, "We appear to be missing verdict form for lesser crime of count 2." Defense counsel agreed with the court that there was no lesser included offense applicable to count 2, and further agreed with the court's proposal to so inform the jury. The court thereafter provided a written response to the jury's question, stating: "There is no lesser crime to count 2."
b. Discussion
Abdullah now contends the trial court erred by failing to sua sponte instruct on the "affirmative defense of possessing marijuana for personal use." In his view, possession of no more than 28.5 grams of cannabis is presumptively for personal use, and a theory based on this presumption is an affirmative defense. He is incorrect.
In November 2016, the electorate passed Proposition 64, which, among other things, enacted Health and Safety Code section 11362.1. Pursuant to that statute, a person who is 21 years of age or older may lawfully possess 28.5 grams or less of unconcentrated cannabis. (Health & Saf. Code, § 11362.1, subd. (a)(1); People v. Taylor (2021) 60 Cal.App.5th 115, 120, review granted on other grounds April 14, 2021, S267344; People v. Hall (2020) 57 Cal.App.5th 946, 948.) Cannabis remains a controlled substance, and possession of any amount for sale is a misdemeanor. (Health & Saf. Code, §§ 11054, subd. (d)(13), 11359, subd. (b); People v. Taylor, at p. 125.)
In criminal cases, a trial court has a sua sponte duty to instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Covarrubias (2016) 1 Cal.5th 838, 873; People v. Brooks (2017) 3 Cal.5th 1, 73.) That duty extends to instructing on the defendant's theory of the case, including a defense, if the defendant is relying on such a defense, or if there is substantial supporting evidence and it is not inconsistent with the defense theory. (People v. Covarrubias, at p. 873; People v. Brooks, at p. 73; People v. Gutierrez (2009) 45 Cal.4th 789, 824.) We independently review whether the trial court erred by failing to instruct on a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Singh (2019) 42 Cal.App.5th 175, 184; People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
Here, the cannabis discovered on the back seat floorboard and on Abdullah's person totaled 25.9715 grams, under the 28.5 gram limit. As noted, the defense presented no evidence. However, during closing argument, counsel argued that there was insufficient evidence Abdullah possessed the marijuana for sale, given that no scale or empty baggies were found in the car, and no cell phone messages indicated sales. The most reasonable interpretation of the evidence, counsel argued, was that Abdullah possessed the marijuana for personal use. Given the defense theory, Abdullah argues that the court should have sua sponte instructed that "simple possession of less than 28.5 grams is not a crime."
Abdullah describes the instructions he thinks the jury should have received in a variety of ways. He avers that the court should have "explained the changes in the marijuana laws" to the jury, informed it of "the legal theories of liability when possessing marijuana," "fully instruct[ed] on California's marijuana laws," and instructed that he "merely possessed the marijuana for personal use." Obviously, the latter instruction is improper as it would have removed the question of his intent (and guilt) from the jury. Nor was the court required to provide an overview of the state's marijuana laws, an endeavor that would have far exceeded the relevant issues in the case.
But Abdullah's personal use theory was not an affirmative defense. Instead, it simply negated the intent-to-sell element of the charged crime. An instruction on the legality of possession for personal use would thus have been a pinpoint instruction, which the court had no duty to give absent a request. " ' " '[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a "pinpoint" instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such "pinpoint" instructions are not required to be given sua sponte and must be given only upon request.' " ' " (People v. Covarrubias, supra, 1 Cal.5th at p. 873, italics omitted; People v. Anderson (2011) 51 Cal.4th 989, 996-998 [trial court had no sua sponte duty to instruct on defense of accident, as long as the jury received complete and accurate instructions on the mental state element of the offense]; People v. Gonzalez (2018) 5 Cal.5th 186, 199, fn. 3; People v. Saille (1991) 54 Cal.3d 1103, 1117.) Because Abdullah did not request a pinpoint instruction on the 28.5 gram limit or on personal use, the trial court had no duty to give one. (People v. Covarrubias, at p. 873; People v. Gutierrez, supra, 45 Cal.4th at p. 824.)
In his reply brief, Abdullah recognizes that a trial court need not instruct on "issues that negate an element" absent a request for a pinpoint instruction. He seeks to avoid this difficulty in two ways. First, citing People v. Salas (2006) 37 Cal.4th 967, he argues that there are "exceptions" to this rule when a "complex regulatory scheme" is at issue. Salas does not so hold. There, the defendants were convicted of selling unregistered securities. They claimed they had a good faith belief the securities were exempt from registration, but the trial court instructed that this was irrelevant to their culpability. (Id. at pp. 971-974.) Salas disagreed, concluding that a seller who had such a good faith belief is not guilty of the offense. But a defendant's "guilty knowledge"—i.e., knowledge of the security's nonexempt status- was not an element of the crime. (Id. at p. 971.) Instead, a good faith belief that a security was exempt was an affirmative defense, requiring sua sponte instruction where sufficient evidence existed. (Id. at pp. 971, 982-983.)
Salas has no application here. In Salas, an instruction was required because the knowledge requirement was not an element, but an affirmative defense. Here, in contrast, intent to sell is indisputably an element. Moreover, Salas's holding did not turn on the complexity or simplicity of a regulatory scheme; and it certainly did not create the "exception" that Abdullah posits.
Second, citing People v. Urziceanu (2005) 132 Cal.App.4th 747, Abdullah argues that "changes in the marijuana regulation laws have created affirmative defenses in other situations." This vague assertion does not overcome the clear principles set forth in the authorities cited ante, which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Next, citing the 2016 Voter Information Guide, Abdullah asserts that "Proposition 64 has created a presumption that possessing under 28.5 grams of marijuana is for personal use, and thus is not a crime." While it is not entirely clear, we assume he means to suggest the jury should have been instructed that it was required to presume he possessed the cannabis for personal use. But Proposition 64 did not create such a presumption. Making it legal for persons 21 or older to possess 28.5 grams of marijuana is simply not equivalent to requiring a jury to presume that possession of that quantity is presumptively for personal use. Nothing in the text of the statute, the proposition's statement of "Findings and Declarations," or the Voter Information Guide supports Abdullah's contention. There is simply no presumption that 28.5 grams or less of cannabis is for personal use and cannot be "saleable," as Abdullah appears to suggest.
In a related vein, Abdullah asserts that the jury was misled by Deputy Thompson's testimony that the amount of cannabis Abdullah possessed was "a little bit more" than what a typical user would have for personal use. Abdullah argues that the "legal definition of a personal amount" is 28.5 grams, and therefore Thompson's testimony was "simply wrong." But Abdullah is comparing apples and oranges. The legal limit and the amount a typical user could be expected to have on hand are not necessarily equivalents. The fact Health and Safety Code section 11362.1, subd. (a)(1) allows possession of 28.5 grams does not mean that, as a matter of law, typical users possess that much.
Abdullah contends that regardless of the court's original instructional duties, once the jury queried about the "missing" lesser included offense verdict form, the court was at that point required to explain that no lesser included offense existed because he "did not have enough marijuana on him to trigger criminal liability for simple possession."
When a jury asks a question after retiring for deliberations, Penal Code section 1138 requires that the court provide information the jury desires on points of law and help it understand the legal principles it is asked to apply. (People v. Hodges (2013) 213 Cal.App.4th 531, 539; People v. Montero, supra, 155 Cal.App.4th at p. 1179.) " ' "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]" ' " (People v. Montero, at p. 1179; People v. Williams (2015) 61 Cal.4th 1244, 1267.) " 'We review for an abuse of discretion any error under section 1138' " (People v. Hodges, at p. 539), and review de novo the accuracy of any supplemental instructions provided. (People v. Franklin (2018) 21 Cal.App.5th 881, 887 & fn. 4.)
All further undesignated statutory references are to the Penal Code.
Abdullah has forfeited any claim of error. " 'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' " (People v. Boyce (2014) 59 Cal.4th 672, 699; People v. Dykes (2009) 46 Cal.4th 731, 802.) Abdullah's counsel expressly agreed with the trial court's response to the jury's question and did not request further clarification of the law. He cannot now complain that the response was inadequate. Moreover, we see no flaw in the court's response. It was a correct statement of law. The jury did not ask for an explanation of why there was no form; it simply wished to be sure the form was not missing. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1017 [the trial court need not give the jury more information than it asks for].)
3. The trial court did not coerce the verdicts
Abdullah contends the trial court coerced the verdicts by instructing the jury to resume deliberations after it announced it was deadlocked and giving a coercive supplemental instruction, thereby depriving him of his rights to due process and a jury trial. We do not agree.
a. Additional facts
The trial court, the Hon. Daviann L. Mitchell, instructed the jury with CALCRIM No. 3517. As pertinent here, that instruction stated that if all jurors found the defendant not guilty of a greater crime, it could find him guilty of a lesser crime, if convinced of his guilt on the lesser beyond a reasonable doubt. It further stated that the court could accept a guilty verdict on a lesser crime only if the jury found the defendant not guilty of the corresponding greater crime, and provided further direction regarding completion of the verdict forms.
In pertinent part, the instruction advised: "2. If all of you cannot agree whether [the] People have proved that the defendant is guilty of the greater crime, inform me only that you cannot reach an agreement and do not complete or sign any verdict form for that count."
Jury deliberations began on Thursday, December 12, 2019, at 4:16 p.m. and jurors were dismissed for the day at 4:30 p.m. Deliberations resumed at 9:28 a.m. the next morning, Friday, December 13, 2019. At 10:32 a.m., the jury buzzed with two questions: (1) "Was the defendant wearing a seat belt?" and (2) "What type of vehicle was [the] officer in?" It also requested "readback of officer's testimony regarding movement of defendant's arm." The requested readback was provided. Without objection, the court responded to the two questions by stating, "All evidence for your evaluation has been submitted." The jury then broke for a 98-minute lunch recess.
Judge Mitchell was unavailable for a portion of the afternoon, and the Hon. Lisa Mangay Chung oversaw the afternoon proceedings. Deliberations resumed at 1:38 p.m. At 2:07 p.m., the jury buzzed to state it appeared to be missing the verdict form for the lesser included offense in count 2, as discussed ante. As recited above, without objection the court responded that "There is no lesser crime to count 2."
At 2:37 p.m., the jury sent a note asking for clarification of CALCRIM No. 3517, as it pertained to the verdict form for count 1. It also asked for new verdict forms because it believed it had completed the forms incorrectly. At 2:59 p.m., before the court responded, the jury sent out another note stating it no longer needed clarification on CALCRIM No. 3517, but still needed new verdict forms. The court had the bailiff clarify with the jury which forms it needed. Without objection, the court provided to the jury new forms for verdicts of not guilty on both counts and guilty of the lesser included offense on count 1.
At 3:36 p.m., the jury sent a note asking: "If we are hung on count 1 greater crime, but, we agree defendant is guilty for the lesser crime, do we sign the lesser crime 'guilty' form or leave it blank?" Defense counsel requested that the court should indicate that the jury should leave the form blank. The court did so.
At 3:45 p.m., the court was apparently notified the jury was deadlocked. When the jury returned to the courtroom, the court asked the foreperson whether the jury was deadlocked on both counts. The foreperson replied, "Yes, ma'am, the greater charge of those." The court observed, "I think there was some question as to the lesser offenses. So let me just first clarify and then I'm actually going to read a section of CALCRIM 3517 before I send you back." "If you have reached a decision that you are hung on any count, you don't go to a lesser offense. You leave that blank." After reading the relevant portion of CALCRIM No. 3517, the court explained, "I'm going to ask that you really go back and reread this instruction several times, double check all the verdict forms because I want to make sure we don't . . . have anything incorrect such as a verdict on the lesser count if in fact you have reached a decision that you are hung. . . . The only time you ever reach a lesser is if you are unanimously not guilty on the greater. So I really want to make sure that these verdict forms are correct. Please bear with me. Thank you for your patience. So I'm going to send you back and we will be here if you want to double check everything and if in fact you have reviewed everything, let the bailiff know. I'll review it again and we will be speaking soon, perhaps." Deliberations resumed at 3:55 p.m.
Minutes later, at 3:59 p.m., the jury informed the court it was deadlocked as to both counts. The jury returned to the courtroom at 4:09 p.m. After consulting with Judge Mitchell, the court read and provided in writing a supplemental instruction, derived from People v. Moore (2002) 96 Cal.App.4th 1105, which we set forth in the margin. The court then ordered the jury to resume deliberations and to return on Monday if it was still deliberating at the close of the day.
The instruction was as follows: "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 deliberations I'm 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 to listen to and consider the views of your fellow jurors.
"In the course of your further deliberations you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine 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 the 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.
"If there is anything that this court can do to assist you in performing your duties, please do not hesitate to let me know. At your request you can be provided with readback of testimony, further explanation of legal concepts, further instructions or further argument by the attorneys on any point or topic you request.
"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 an 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 consider changes in your methods of deliberations I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely find 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 CALCRIM instruction 200 and CALCRIM instruction 3350. These instructions pertain to your duties as jurors to make recommendations on how you should deliberate.
"The integrity of a trial requires jurors at all times during their deliberations conduct themselves as required by the instructions.
"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 the trial and not from any other source. A fact is something proved by the evidence or by stipulation.
"Second, you must apply the law 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.
"CALCRIM 3550 defines the jury's duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the court. These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
"CALJIC 17.41 is an instruction which recommends how jurors should approach their task. It reads as follows: 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.
"You should keep in mind the recommendations 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 some assistance to you.
"You are ordered to continue your deliberations at this time. If you have other questions, concerns, requests or any communications you desire to report to me, please put them in writing on the form my bailiff has provided you with. Have them signed and dated by your foreperson and please notify the bailiff."
When the jury left the courtroom defense counsel objected that the instruction was not an "approved instruction." The court overruled the objection, reasoning that the instruction was a correct statement of law.
The jury resumed deliberations at 4:15 p.m., deliberated for approximately 15 minutes, and then retired for the weekend. On Monday, December 16, deliberations began at 9:05 a.m., with Judge Mitchell again presiding. The jury rendered its verdicts at 10:18 a.m.
b. Discussion
Section 1140 provides in pertinent part that a "jury cannot be discharged" without having rendered a verdict 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." (People v. Brooks, supra, 3 Cal.5th at p. 88.) When a jury indicates it is deadlocked, the "decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion." (People v. Debose (2014) 59 Cal.4th 177, 209; People v. Brooks, at p. 88; People v. Sandoval (1992) 4 Cal.4th 155, 196.) A court " ' "may direct further deliberations upon its reasonable conclusion 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." ' " ' [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 783; People v. Pride (1992) 3 Cal.4th 195, 265 [court may ask jurors to continue deliberating where it finds a reasonable probability of agreement].)
"However, a court must exercise its power under section 1140 without coercing the jury, and 'avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' [Citation.]" (People v. Brooks, supra, 3 Cal.5th at p. 88; People v. Breaux (1991) 1 Cal.4th 281, 319.) Coercion occurs where the trial court opines that a verdict should be reached. (People v. Peoples, supra, 62 Cal.4th at p. 783.) A court may not give an instruction that encourages consideration of the jurors' numerical division, suggests that minority jurors should rethink their position in light of the majority's view, or implies that if the jury fails to agree, the case will have to be retried. (Id. at p. 784; People v. Gainer (1977) 19 Cal.3d 835, 842-852, disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163; People v. Whaley (2007) 152 Cal.App.4th 968, 978.) Such a "dynamite" or Allen charge is impermissible. (People v. Gainer, at pp. 842-852; Whaley, at p. 980.) Whether a court has coerced a verdict depends upon the totality of the facts and circumstances in the case. (People v. Brooks, supra, 3 Cal.5th at pp. 88-89; People v. Sandoval, supra, 4 Cal.4th at p. 196.) We review a trial court's determination as to whether there is a reasonable probability of agreement for abuse of discretion. (People v. Peoples, at p. 782.)
Allen v. United States (1896) 164 U.S. 492.
We detect no coercion here. The jury first mentioned a possible deadlock on the afternoon of December 13, when it asked whether, if it was "hung on count 1," the greater crime, but "agree[d] defendant is guilty for the lesser crime," it should sign the verdict forms. In response, the court said nothing about continuing deliberations, but simply responded "leave it blank."
The People argue that Abdullah has forfeited his argument because he did not specifically object that the instruction given was coercive, did not object at all the first time the court sent jurors back to review the verdict forms, and did not object to the jury being directed to continue deliberations. In light of our conclusion that Abdullah's contention fails on the merits, we do not address the People's forfeiture argument. --------
Approximately ten minutes later, when the jury returned to the courtroom, the court asked whether it was "hung on counts 1 and 2? Is that what you are trying to tell us?" The foreperson responded: "Yes, ma'am, the greater charge of those." (Italics added.) Thus, it appeared the jury was not deadlocked on the lesser included offense in count 1. In response, the court correctly reminded the jury it could not render a verdict on the lesser offense if it was hung on the greater; requested that the jury reread the pertinent instruction; and asked the jury to double check the verdict forms to be sure "we don't . . . have anything incorrect such as a verdict on the lesser count if in fact you have reached a decision that you are hung." (Italics added.) The court did not direct the jury to continue deliberations and did not "refuse" to accept a verdict on the lesser crime, as Abdullah suggests. Its comments made clear that a deadlock was a possibility.
Less than ten minutes after that, the jury indicated it had reached a verdict, i.e., it was "hung on both counts." At this point, the court acted well within its discretion to direct the jury to continue deliberations. Less than an hour earlier, the jury's note and the foreperson's statements had indicated it was hung on the greater crime in count 1, but agreed Abdullah was guilty of the lesser. Given the brief period that had elapsed and the jury's apparent confusion about the lesser included offense, it was eminently reasonable for the court to conclude it was probable the jury could reach a verdict, at least on the lesser included offense on count 1. Nothing in this sequence of events signaled that the court expected minority jurors to change their votes, as Abdullah suggests. And, contrary to Abdullah's argument, the court never stated it would "not accept the result" of deliberations or the jury's decision.
Nor do we view the court's supplemental instruction to the jury as coercive. The instruction the court gave was in most respects identical to that given in People v. Moore, supra, 96 Cal.App.4th 1105. Moore concluded that instruction was not coercive; "[n]othing in the trial court's charge was designed to coerce the jury into returning a verdict." (Id. p. 1121; see People v. Peoples, supra, 62 Cal.4th at p. 784; People v. Whaley, supra, 152 Cal.App.4th at pp. 983; People v. Hinton (2004) 121 Cal.App.4th 655, 661 [observing that in Moore, the appellate court commended the trial court for " 'fashioning such an excellent instruction' "].)
The instruction did not suffer from the flaws found problematic in other instructions. It did not tell the jury that the case must at some time be decided, nor did it mention the expense involved in a retrial. (See People v. Moore, supra, 96 Cal.App.4th at p. 1121; contrast People v. Hinton, supra, 121 Cal.App.4th at p. 660 [court erred by emphasizing the costs of the trial and implying that a retrial would expend further costs].)
It did not suggest that minority jurors should reevaluate their views in light of the majority's conclusions. (See People v. Whaley, supra, 152 Cal.App.4th at p. 984 [Moore instruction "did not implicitly approve a movement towards unanimity or otherwise send a message that the holdout juror was to cooperate with the majority"]; contrast People v. Hinton, supra, 121 Cal.App.4th at pp. 659-660 [court improperly instructed that jurors holding a minority position should respect the majority opinion and question their own judgment if a majority disagreed].) Instead, the supplemental instruction here stated that "each of you must decide the case for yourself." (See People v. Butler (2009) 46 Cal.4th 847, 883 [instruction that advised " 'each of you must decide the case for yourself' " not coercive].) It repeatedly stressed that all jurors' opinions were to be seriously considered, without differentiating between majority or minority jurors, and advised that jurors should not hesitate to change their views or "request your fellow jurors reexamine" theirs. Thus, the instruction placed no constraints "on any individual juror's responsibility to weigh and consider all the evidence presented at trial." (People v. Moore, supra, 96 Cal.App.4th at p. 1121.)
The instruction did not direct the jury "that it was required to reach a verdict[.]" (People v. Moore, supra, 96 Cal.App.4th at p. 1121.) Instead, it stated that the jury's goal should be to reach a fair and impartial verdict "if you are able to do so," and "if you can do so without violence to your individual judgment." (Italics added.) The court's use of the conditional "if," along with its earlier comments acknowledging that a hung jury was a possibility, conveyed to jurors that it was not required to come to a unanimous verdict. (See People v. Butler, supra, 46 Cal.4th at p. 884 [instructions stated jurors should "pursue 'the purpose of reaching a verdict, if you can do so,' " and "that it was their 'duty to decide the case, if you can conscientiously do so' "; "No more was required."].) We do not agree with appellant that the instruction implied the court would hold jurors "forever," until they rendered a unanimous verdict.
Finally, Abdullah asserts that before sending a deadlocked jury back for further deliberations, a court must inquire of the foreperson whether an agreement is possible and poll the jurors, and the court did not do so here. This is incorrect. A "trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict." (People v. Peoples, supra, 62 Cal.4th at p. 782; cf. People v. Debose, supra, 59 Cal.4th at p. 210 [although court may inquire into jury's numerical division in the event of a deadlock, this is not mandatory].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.