The court is not required to instruct on its own motion as to specific points of evidence. ( People v. Billings (1981) 124 Cal.App.3d 422, 428 ( Billings).) "In determining whether error has been committed in giving or not giving jury instructions, the reviewing court must consider the instructions as a whole.
The court must also assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them. [Citation.]” (People v. Billings (1981) 124 Cal.App.3d 422, 427-428 (Billings), disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22; see also People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112 (Martin).) The two CALCRIM No. 2511 instructions given to the jury in this case, adequately instructed the jury on the offense of a felon in possession of a gun.
As such, the claim is waived on appeal. ( People v.Billings (1981) 124 Cal.App.3d 422, 433 [ 177 Cal.Rptr. 392], overruled on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22 [ 250 Cal.Rptr. 659, 758 P.2d 1189]; see People v. Lucas (1995) 12 Cal.4th 415, 486-487 [ 48 Cal.Rptr.2d 525, 907 P.2d 373].) Juror C. was the only juror who read the article; he confirmed there had been no discussion with any of the other jurors about the fact that an article about the case had appeared in the morning paper.
The issue here, however, is not jury misconduct but a claim of ineffective assistance of counsel for failing to raise the issue of juror misconduct at trial. (See People v. Billings (1981) 124 Cal.App.3d 422, 433 [ 177 Cal.Rptr. 392] [claim of juror misconduct waived if not raised in trial court], overruled on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22 [ 250 Cal.Rptr. 659, 758 P.2d 1189]; see also People v. Wisely (1990) 224 Cal.App.3d 939, 947 [ 274 Cal.Rptr. 291].) Obviously, counsel did not merely forget to challenge the juror, but decided not to do so.
The People, however, offered declarations by several jurors which established that the misconduct occurred during the penalty phase of the trial, and the initial juror executed a second declaration stating that if the word "mitigating" had been included in a penalty phase instruction it was during that phase of the trial that the definition was given. In People v. Billings (1981) 124 Cal.App.3d 422 [ 177 Cal.Rptr. 392], on which the People rely, the parties agreed that a dictionary might be sent into the jury room when requested by the foreman. The Court of Appeal held that the parties' agreement waived any error, but also concluded that the use of the dictionary was not misconduct.
It is presumed the jury properly followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Billings (1981) 124 Cal.App.3d 422, 428, disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22.) Furthermore, the prosecutor argued to the jury that she had proven the charged crimes beyond a reasonable doubt, and explained to the jury that to find defendant guilty, the jury must find she proved the charged crimes beyond a reasonable doubt.
In reviewing a challenge to jury instructions, we must consider the instructions as a whole. ( People v. Billings (1981) 124 Cal.App.3d 422, 427-428 [ 177 Cal.Rptr. 392], disapproved on another point in People v. Karis (1988) 46 Cal.3d 612, 642 [ 250 Cal.Rptr. 659, 758 P.2d 1189].) We assume that the jurors are capable of understanding and correlating all the instructions which are given to them.
(5) In determining if the trial court erred in giving or not giving jury instructions, the reviewing court must consider the instructions as a whole and must assume that the jurors are intelligent beings capable of understanding and correlating all the instructions which are given to them. ( People v. Billings (1981) 124 Cal.App.3d 422, 427-428 [ 177 Cal.Rptr. 392], disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22 [ 250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Martin (1983) 150 Cal.App.3d 148, 158 [ 197 Cal.Rptr. 655], judgment vacated sub nom. In re Martin (1987) 44 Cal.3d 1 [ 241 Cal.Rptr. 263, 744 P.2d 374].
In reviewing these instructions as a whole (cf. People v. Burgener (1986) 41 Cal.3d 505, 538-539 [ 224 Cal.Rptr. 112, 714 P.2d 1251]; People v. Billings (1981) 124 Cal.App.3d 422, 427-428 [ 177 Cal.Rptr. 392]), we conclude that prejudicial instructional error occurred. Where possession is an element of the offense, the trial court has a duty to submit to the jury, with proper instructions, the question of whether the defendant had knowledge of the object's presence.
We assume that the jurors, properly instructed, were capable of understanding the instructions and that no confusion resulted. ( People v. Billings (1981) 124 Cal.App.3d 422, 428 [ 177 Cal.Rptr. 392].) III