Opinion
B228241
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL GODINEZ, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Steven E. Mercer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA307364)
APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
In this drive-by-shooting case, the jury convicted Rafael Godinez of murder and attempted murder, and the court sentenced him to life without possibility of parole plus consecutive life sentences. Godinez raises numerous issues on appeal. We conclude that none of them has merit and affirm the convictions.
FACTS AND PROCEEDINGS BELOW
On a Saturday night in July 2006, at approximately 10:00 p.m., a small group of people including men, women and children stood in front of a laundromat on 8th Street in the Pico-Union neighborhood of Los Angeles. A car drove by slowly and the front passenger fired a shotgun into the crowd, killing one person and injuring five others. The primary issue in this trial was whether Godinez was the person who had shot into the crowd.
The prosecution presented the testimony of two eyewitnesses who identified Godinez as the shooter.
One eyewitness, Ricardo Rosas, testified at the trial that just before the shooting he was walking on 8th Street toward the laundromat with his wife, his 6-year-old daughter and his friend, Jorge Rivera. Rosas saw a Honda automobile coming toward them very slowly. The car had the letters L.A. on the rear window. A man stuck his head out of the front passenger window and then pulled it back. Rosas got a "good look" at the man's face. This look lasted for approximately two seconds. As the man pulled his head back inside the car, he poked a rifle out of the window. The man appeared to be aiming at Rosas's friend, Rivera. Rosas grabbed his daughter's hand and pulled her into the laundromat just as he heard a gunshot. After finding a safe place for his daughter, Rosas went back outside to find his wife. As he did so, he heard a second shot. On August 2, 2006, the police showed Rosas a six-pack photographic lineup. He identified Godinez as the person he had seen shoot into the crowd. Rosas was not asked to and did not identify Godinez at trial.
It is undisputed that the weapon was a shotgun not a rifle.
The other eyewitness was Renee Bell. Bell did not testify at trial, but her preliminary hearing testimony was read to the jury. Bell stated that on the night in question, at approximately 10:00 p.m., she was walking on Irolo Street when a black Honda slowly passed by. Bell could see the person in the front passenger seat, whom she described as a heavy-set male Hispanic in his 20's. The person was waving a "shiny" handgun back and forth and seemed upset. Bell heard the passenger say: "We're going to get these motherfuckers." The car turned right onto 8th Street and almost immediately Bell heard two shots and saw people running. She didn't focus on the gun "too much," and stated that once she saw the passenger had a gun, "I wasn't trying to look that much into the car[.]"
In September 2006, during an interview that was recorded and transcribed, Detective Javier Hernandez (Hernandez) of the Los Angeles Police Department showed Bell a six-pack photographic lineup from which she selected Godinez. In her preliminary hearing testimony, Bell stated that she had selected Godinez from the photo lineup as "most likely" the passenger in the Honda. Bell denied that before selecting Godinez she considered any other person in the lineup as possibly being the passenger. Bell was not asked to and did not identify Godinez at the preliminary hearing.
At the preliminary hearing, Hernandez testified that Bell picked only the photograph of Godinez. But, after Hernandez had his memory refreshed with the transcript of his interview with Bell, he agreed that "during the course of this interview Ms. Bell indicated that it could have been number 4 [Godinez] or number 6." Hernandez's preliminary hearing testimony was not read to the jury. Rather, at trial Hernandez testified without contradiction that Bell picked only Godinez from the photographic lineup.
Rosas's friend, Rivera, was killed in the shooting and five other people, including Rosas's wife, were wounded. The police recovered two 12-gauge shotgun shells at the scene but never found the gun that fired the shots.
Over Godinez's objection the court permitted evidence that, in a search of his home, pursuant to a warrant, approximately three weeks after the shooting, the police seized a loaded Ruger nine-millimeter firearm and its ammunition, a box of long-rifle ammunition and a box of .32-caliber automatic ammunition. There was no testimony that any of the ammunition could be used in a shotgun.
The prosecution introduced evidence that at the time of the shooting Godinez was a member of the Hobart Street Thugs. The laundromat was in the territory of the Thugs' rival, the MS13. One of the men who was shot was a member of MS13. The Hobart Street Thugs had between 40 and 50 members.
The evidence also showed that a Honda automobile that Rosas testified looked "similar" to the car used in the shooting was registered to Ray Ochoa, a former member of the Hobart Street Thugs. At the time of the shooting, Ochoa was a member of the Aztlan gang; a gang that was friendly with the Thugs. Both gangs "hated" MS13. Hernandez testified that Godinez had told him that he knew Ochoa from his days with the Thugs. When Los Angeles Police Officer Jose Castenada inspected Ochoa's Honda a month after the shooting, he noticed residue from a sticker that had been previously affixed to the car's back window.
A jury convicted Godinez of one count of first degree murder (with special circumstances of a drive-by shooting and gang participation) and four counts of willful, deliberate and premeditated attempted murder. It found various enhancement allegations true. The court sentenced Godinez to life in prison without parole for the murder conviction and consecutive terms of life, plus additional years for the other convictions and enhancements. Godinez filed a timely appeal.
The jury acquitted Godinez of one count of attempted murder.
DISCUSSION
I. GODINEZ'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FAILS ON APPEAL
A. Background
Approximately two and a half months after the shooting, Detective Hernandez and his partner, Detective Telis, went to Bell's home to show her a photographic lineup and ask her if she recognized any of the men in the photographs as the passenger with the gun. The detectives' interview with Bell was recorded and a copy of the transcript made available to Godinez's counsel.
The transcript shows that Bell initially picked number four, the photograph of Godinez, saying "that looks like that was probably him." Then she looked at photograph number six and said: "Maybe him, you know? . . . It's between him and this guy." Later Bell said, "I think this guy," referring to Godinez, but "could have been this guy too though." The following colloquy took place between Detective Telis and Bell. Telis: "Okay. So it could have been No. 4 . . . the picture you first went to?" Bell: "Uh-huh." Telis: "And then you also looked at No. 6, and it could be No. 6 too?" Bell: "Yeah. . . . I think it was one of these people."
In her preliminary hearing testimony, read to the jury, Bell testified as follows on cross-examination. Question: "Do you remember that, when you looked at these photographs, did you only pick No. 4?" Answer: "I said that most likely looked like the guy that I saw." Question: "Didyou only pick number. . . photo No. 4?" Answer: "Yes." Question: "You never said anything about any other photograph possibly being the person as well?" Answer: "Not that I recall. No." Question: "You never picked No. 6?" Answer: "Not that I remember." (Italics added.) Later in her cross-examination Bell testified as follows: Question: "[A]nd you never picked out another photograph in that six-pack other than No. 4; correct?" Answer: "I circled No. 4." Question: "I'm asking you did you select any other photograph in. . . the six-pack, did you pick any other photograph other than No. 4 as possibly being the person?" Answer: "No. I circled four." (Italics added.)
Number four was a photograph of Godinez.
At the preliminary hearing Hernandez testified that when looking at the six-pack "Bell indicated that it could have been number four [Godinez] or number six could have been the person that did it." He also stated that Bell said: "'I think it was one of these people' meaning either 4 or 6[.]"
Hernandez testified at trial. The prosecutor showed him the six-pack and asked him if Bell circled and initialed photograph number four. Hernandez answered that she did. The prosecutor then asked Hernandez: "Did she ever make any writings or pick any other individual other than the person shown in No. 4?" Hernandez answered: "No, sir." (Italics added.) Defense counsel did not pursue this line of inquiry on cross-examination nor proffer Hernandez's preliminary hearing testimony to impeach his trial testimony. He also did not question Hernandez regarding the transcript of the interview or proffer the transcript itself.
B. Godinez Failed to Show Ineffective Assistance of Counsel
As a general rule, a claim of ineffective assistance of counsel will fail on appeal when the record does not disclose why counsel acted in a certain way. Under those circumstances, the defendant may pursue a writ of habeas corpus which allows trial counsel an opportunity to explain the reasons for the challenged action or inaction. (People v. Pope (1979) 23 Cal.3d 412, 426 (Pope).)
The attorney who represented Godinez at trial was not the same attorney who represented him at the preliminary hearing. The first attorney was not able to get Bell to admit that she had waffled in her selection from the photo lineup but she did get Hernandez to impeach Bell's testimony with his own recollection of their interview after reviewing the transcript of that interview.
After Bell's preliminary hearing testimony was read to the jury and Hernandez was called as a witness for the People, defense counsel could have but did not impeach Hernandez's and Bell's testimony because Bell had only picked Godinez from the lineup. At a sidebar conference during closing argument, defense counsel indicated that he had a tactical reason for not bringing out evidence that Bell had said the passenger might have been the person in photograph number six. The following colloquy took place between defense counsel and the prosecutor. Defense counsel: "And furthermore, we both know [Bell] did pick No. 6." Prosecutor: "I don't know that, and I don't believe that . . . ." . . . Defense counsel: Then I'll tell you it is what happened. She picked No. 6." Prosecutor: "Why didn't you present it?" Defense counsel: "Because if I had done that —" Prosecutor (interrupting): "Why wasn't she cross-examined on that?" Defense counsel: "If I had done that —" Prosecutor (interrupting again): "What does that have to do with the issue we are at sidebar for?" At that point the court intervened and returned counsel to the issue that was the subject of the sidebar.
Because the record indicates that trial counsel claimed to have a tactical reason for not bringing out the contents of Bell's interview with Detective Hernandez, but does not disclose what that reason was, we will not reverse on the ground of ineffective assistance of counsel but allow Godinez to pursue the issue on a petition for habeas corpus if he chooses. (Pope, supra, 23 Cal.3d at p. 426.)
II. THE PROSECUTOR DID NOT COMMIT MISCONDUCT
Godinez claims that the court should have granted his motion for new trial on the ground that the prosecutor committed misconduct in remaining silent when prosecution witnesses, Bell and Hernandez, testified falsely or by not correcting their misleading testimony regarding Bell's identification of Godinez. The Attorney General opposes this claim solely on the ground that Godinez forfeited it by not raising it in his new trial motion. We conclude that Godinez has not forfeited his misconduct claim but on the merits the record does not establish misconduct.
Prosecutorial misconduct is a ground for a new trial if it is prejudicial. (Pen. Code, § 1181, subd. 5.)
A. Godinez Did Not Forfeit His Claim Of Prosecutorial Misconduct
Our Supreme Court has held that a new trial motion only requires a statement of the "particular errors upon which the defendant will rely" so that the other party may "present such matters as, in his judgment, tend to sustain the verdict." (Butterfield v. Central Pac. Railroad Co. of California (1869) 37 Cal. 381, 385.) Godinez's new trial motion complied with that requirement. His motion is replete with references to his claim that the prosecutor committed misconduct in allowing eyewitness Bell and Detective Hernandez to testify falsely and misleadingly that Bell singled out only Godinez's photograph from the lineup when in fact Bell initially pointed to the photographs of Godinez and another man and told the police: "I think it was one of these people" before finally settling on Godinez. In any event, we know of no requirement that prosecutorial misconduct in allowing false or misleading testimony to go uncorrected must be first raised as a ground for a new trial before it can be raised on appeal. (See People v. Dickey (2005) 35 Cal.4th 884, 909.)
B. The Record Does Not Establish Prosecutorial Misconduct
It is well settled that the prosecution has a "constitutional obligation" "to correct any testimony of its own witnesses which it knew, or should have known was false or misleading." (In re Jackson (1992) 3 Cal.4th 578, 597, 595, citing, e.g., United States v. Agurs (1976) 427 U.S. 97, 103-104; Napue v. Illinois (1959) 360 U.S. 264, 269.) (Italics in original.) Because the scope of this duty reflects the prosecution's fundamental responsibility to promote justice, fairness and truth (People v. Seaton (2001) 26 Cal.4th 598, 649), this constitutional obligation is not excused merely because defense counsel knows as plainly as the prosecutor that the witness's testimony is false or misleading. (United States v. La Page (9th Cir. 2000) 231 F.3d 488, 492.)
Although the portions of Bell's preliminary hearing testimony and Hernandez's trial testimony, quoted in Part I above, could be perceived as false or misleading, viewing the record as a whole, we cannot say that the prosecutor was guilty of misconduct. For that reason, we need not decide whether Bell's and Hernandez's testimony, even if false or misleading, was prejudicial.
III. THE COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE OF THE GUN TO SHOW GODINEZ'S IDENTITY AS THE PASSENGER
Over Godinez's objection, the court admitted evidence that a nine-millimeter firearm and assorted ammunition were seized from underneath his house during a search approximately three weeks after the shooting. The court admitted the gun into evidence on the grounds it was relevant to show Godinez was an active gang member and his identity as the shooter. On the issue of identity the court noted that Bell testified that the passenger was waving a shiny handgun and "there are several portions of the gun that are shiny in nature" such that with the "movement of the handgun, . . . the eye might catch the part of the gun that is shiny in nature."
Godinez argues that the court erred in admitting evidence of the gun. The evidence was irrelevant, he maintains, because the victims were not shot with a handgun but with a shotgun. Godinez further contends that, even if the evidence was relevant, it should have been excluded as impermissible character evidence and as unduly prejudicial and likely to confuse the issues or mislead the jury.
A. Godinez Objected To Evidence Of The Gun
The Attorney General argues that Godinez forfeited the issue of admissibility because he did not object to the evidence in the trial court. We disagree.
Although Godinez's objection to the admission of the gun and ammunition is not contained in the reporter's transcript, that transcript and the clerk's transcript, show that an objection was made off the record but the ruling was made on the record. The clerk's transcript for February 9, 2009 states: "Defendant's motion to exclude reference to the [gun] found [by] a search warrant conducted at the defendant's residence [subsequent] to the instant offense is called for hearing and argued." The clerk's transcript then states the court's ruling: "The court will allow the witnesses to testify about the gun found at the defendant's home during the search warrant [sic] for the purposes of the allegation that the defendant is an active participant of a criminal street gang; however, the court will not allow the witnesses to testify about the gun to prove the issue of identity." The reporter's transcript shows that on the following day the court inspected the gun found at Godinez's residence and changed its mind about its admissibility on the issue of identity. The court asked Godinez's counsel if he wanted to address the court further on the issue and counsel replied he would submit the issue. The court then ruled that, because Bell had testified the gun she saw Godinez holding was "shiny" and the gun found at Godinez's residence was "shiny," the people would be allowed to use the gun as evidence of the shooter's identity.
Although the record does not reflect the grounds of Godinez's objection to the gun and the ammunition, it does show that earlier in the proceedings he advised the court he would be objecting to those items "based on [Evidence Code sections] 1101(a), 352, and . . . relevance . . . ." We will presume those were the grounds for the motion he eventually made.
B. Evidence Of The Gun Found Under Godinez's House Was Relevant To Identity
To be relevant, evidence must have a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
The People do not argue that the gun was relevant to prove Godinez's active membership in a gang. The People do argue, however, that even though the gun was not the weapon fired into the crowd the gun was relevant to prove Godinez's identity as the front seat passenger, who only moments before the shooting brandished a shiny handgun. The court accepted this argument reasoning that because the gun found under Godinez's house was, in the trial court's opinion, "shiny" it "could have been" the handgun Bell glimpsed in the hand of the person in the front passenger seat.
We agree the gun was relevant in determining whether Godinez was the passenger with the "shiny" gun seen by Bell. Bell and Rosas identified Godinez as the passenger holding a handgun prior to the shooting, so the police were looking for a shiny handgun, and they found one underneath Godinez's house.
Godinez complains that the prosecutor did not use the gun to prove identity but to argue to the jury that the presence of a loaded gun under Godinez's house "is consistent with the same person who will be shooting from a car into a crowd of people." In other words, "such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Riser (1956) 47 Cal.2d 566, 577.) Godinez did not object to the prosecutor's remark so he cannot raise it here.
C. Evidence Of The Gun Was Not Unduly Prejudicial
Godinez maintains that even if the gun evidence was relevant it should have been excluded as unduly prejudicial and likely to confuse the issues. (Evid. Code, § 352.) We disagree.
The court had broad discretion in deciding whether to exclude the gun evidence under Evidence Code section 352 and even if a contrary ruling would have been valid, we cannot say the court abused its discretion. As to inflaming the jury regarding Godinez's possession of a gun, given that the gang expert testified possession of guns was common among gang members, the court was not unreasonable in determining that this evidence was not significantly more inflammatory. The gun evidence did not confuse the issues. If the prosecutor misused the evidence in closing argument, Godinez could have objected and asked for a corrective instruction.
IV. THE COURT DID NOT ERR IN LIMITING THE SUBJECTS OF ROSAS'S IMPEACHMENT
The trial court allowed Godinez to impeach Rosas's identification testimony with his two felony convictions for media piracy (Pen. Code, § 653) and evidence that he was on felony probation when he testified at trial. The court did not allow Godinez to impeach Rosas with evidence that he was on probation when he was interviewed by the police or with evidence that he had been convicted of illegal entry into the United States and was currently under an order for deportation. The court did not err in excluding this evidence.
A. Evidence That Rosas Was On Probation When Interviewed By The Police
Godinez contends that evidence that Rosas was on or seeking probation at the time he identified Godinez as the person who had shot from the car, and identified the car, should have been admitted to show Rosas had a motive to lie. On this record, the court did not abuse its discretion in determining that any inferences were too speculative and the inquiry would be too time consuming relative to its impeachment value, particularly where other impeachment evidence was admitted.
B. Evidence Of Rosas's Conviction For Illegal Entry Into The United States
Godinez has not cited any case, and we know of none, holding that illegal entry into the United States is an act of "moral turpitude" or shows a "readiness to do evil." (People v. Castro (1985) 38 Cal.3d 301, 314.) We therefore reject the contention that illegal entry is an offense that can be used to impeach a witness's credibility.
C. Evidence That Rosas Was Under An Order Of Deportation
Godinez attempted to use a rap sheet supplied by the prosecution to argue that Rosas was under an order of deportation which could be effected by his cooperation with authorities in this case. The trial court rejected that argument for two valid reasons. First, it found the rap sheet was "not clear enough" to conclude that Rosas was under an order of deportation. The court further found that even assuming Rosas was under an order of deportation it did not follow that such an order would give him an incentive to try to assist the prosecution in this case.
For these reasons, the court did not abuse its discretion in determining that any inferences were too speculative, and the inquiry as to whether he was under an order of deportation would be too time consuming, particularly where other impeachment evidence was admitted.
V. THE COURT DID NOT ERR IN THE "KILL ZONE" INSTRUCTION IT GAVE
The trial court instructed the jury under the February 2009 version of CALCRIM No. 600, stating in pertinent part: "A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of [names of victims] the People must prove the defendant not only intended to kill [name of primary target] but also either intended to kill [names of victims] or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [names of victims] or intended to kill [name of primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [names of victims]." (Italics added.)
Godinez contends that the references in the instruction to "anyone" rather than "everyone" in the "kill zone" incorrectly described the requisite intent. He cites People v. Stone (2009) 46 Cal.4th 131, in which our high court observed that "any possible ambiguity [in CALCRIM No. 600] can easily be eliminated by changing the word 'anyone' to 'everyone.'" (Id. at p. 138, fn. 3.) But the Stone court did not conclude that this ambiguity rendered CALCRIM No. 600 erroneous. Instead, it noted that "[i]n context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone." (Ibid.)
CALCRIM No. 600 properly informed the jury of the elements of attempted murder, including the requirement of a specific intent to murder the victim. In reality the "kill zone" portion of the instruction is superfluous. The "kill zone" theory "is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others." (People v. Campos (2007) 156 Cal.App.4th 1228, 1243.) In addition, although the instruction used "anyone" in the first two sentences of the "kill zone" paragraph, the final sentence told the jury that it could not find the defendant guilty of killing Rivera unless it either found that the defendant "intended to kill" the named victim "or intended to kill Rivera by killing everyone in the 'kill zone.'" This language instructed the jury that it could not find Godinez guilty of attempted murder under the "kill zone" theory unless it found that he intended to harm "everyone" in the zone. (Ibid.)
VI. THE TRIAL COURT DID NOT COERCE THE JURY INTO RETURNING A GUILTY VERDICT
Godinez maintains the court coerced the jury into returning a guilty verdict by forcing it to continue deliberations after it reported that it was deadlocked and by requiring the foreperson to reveal the jury's numerical division. Neither contention has merit.
A. Factual Background
The jury began its deliberations at 11:15 a.m. on February 23, 2009. It took an hour and a half lunch break and the court excused it for the day at 3:15 p.m.
After deliberating an additional half hour on February 24 (for a total of three hours) the jury sent the court a note stating: "We cannot reach a verdict." The court brought the jury into the courtroom and asked the foreperson whether the jury was deadlocked on all six counts. The foreperson replied the jury had only voted on count 1, the murder charge. The court asked whether the jury would like a readback of testimony, a clarification of the law or "anything else that you think that the court could do to assist in [the] process of attempting to unloosen the issue on count 1?" The foreperson replied, "I don't think so." The court instructed the jury to return to the jury room and vote on all the counts and to notify the court of any questions or requests for assistance. The jury deliberated for 50 minutes and was excused.
Deliberations resumed on February 26. After two hours and 45 minutes the jury reported it was "deadlocked on all accounts." The court brought the jury into the courtroom and asked the foreperson: "[I]s there a reasonable probability that the jury might reach a verdict on any of the six counts?" The foreperson answered, "No." When asked the same question, each juror gave the same answer. The court then asked the foreperson to state how many times the jury voted on each count and the numerical split on each vote but not to reveal which side the votes favored. Finally the court again asked if there was anything it could do to help the jury with its verdicts. A juror asked the court to expand on the concept of a "'kill zone.'" The court told the juror to write out a specific question and the jury returned to the jury room. After 15 minutes the jury sent the court three questions concerning the attempted murder counts and was excused for the day.
On the morning of February 27 the court responded to the jury's questions with answers that both counsel had agreed to. The jury deliberated for one hour and 10 minutes, broke for lunch, deliberated another hour and a half and announced it had reached verdicts on all six counts.
B. Inquiry Into The Numerical Division Of The Jury
Godinez argues that the court coerced the jurors into reaching a guilty verdict by simply inquiring into the numerical divisions of their votes, even though it was careful not to ask whether the votes had favored conviction or acquittal. Our Supreme Court has repeatedly rejected this contention. (E.g., People v. Howard (2008) 42 Cal.4th 1000, 1030; People v. Carter (1968) 68 Cal.2d 810, 815; but see Brasfield v. United States (1926) 272 U.S. 448, 450 [prohibiting numerical inquiries in the federal courts as matter of judicial policy].) We are bound by our Supreme Court's decision. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.)
C. Refusal To Accept The Two Claims Of Deadlock
Godinez also argues that the court coerced the jury into returning a guilty verdict by refusing to accept the jury's two claims of deadlock. We disagree.
The first time the jury's foreperson declared a deadlock, the jury had only deliberated for three hours on one count, the murder charge. It had not even voted on the other counts. The court could reasonably conclude that there was still a reasonable probability the jury could agree on at least some of the counts. (See Pen. Code, § 1140.)
Penal Code section 1140 states in relevant part that the jury shall not be discharged until it reaches 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."
--------
The second declaration of deadlock occurred after the jurors deliberated another four hours. This time each juror declared that there was no reasonable probability the jury could reach a verdict on any of the counts. The court was not required to accept this announcement on its face. (People v. Sandoval (1992) 4 Cal.4th 155, 196.) The court had several alternatives including the one that it chose, asking whether there was something it could do to help the jury reach its verdicts. (Cal. Rules of Court, rule 2.1036(a) ["The judge should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict"].) After receiving answers to those questions, the jury deliberated for approximately two and a half hours and reached verdicts on all six counts.
Nothing in the record suggests that the court coerced the jury into reaching guilty verdicts. It applied no pressure, made no threats and did not unreasonably extend the time the jury was required to deliberate considering it had to reach verdicts on one count of murder and five counts of attempted murder.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J. We concur:
CHANEY, J. JOHNSON, J.