Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06HF1386, Dan McNerney, Judge.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Eliseo Cruz Gomez appeals from a judgment after a jury convicted him of attempting to commit a lewd act upon a child under 14 years old. He contends insufficient evidence supports his conviction, the prosecutor committed misconduct during voir dire when discussing the reasonable doubt standard, and the trial court erroneously instructed the jury during jury deliberations. None of his contentions have merit, and we affirm the judgment.
FACTS
One late afternoon in June 2006, O.B. was sitting in a tree reading a book when Gomez appeared and talked to her. After O.B. climbed down from the tree, Gomez told her she was pretty and asked her age. O.B. told Gomez she was 16 years old. Gomez said he wanted her to go home with him or wanted her to meet him somewhere. O.B. told Gomez she did not want to go home with him. When Gomez offered to pay her, O.B. said she was not a prostitute. At some point, Gomez wrote his telephone number on a piece of paper O.B. had given him, and he handed her the piece of paper. When Gomez offered her drugs, O.B. walked away, but Gomez followed her for a time. O.B. went home and told her grandmother and uncle what had happened; O.B. called the Orange County Sheriff’s Department. When a deputy arrived, O.B. told the deputy what had happened and gave the deputy the piece of paper Gomez had given her.
Based on O.B.’s report, Orange County Sherriff Department investigators Robin Shirakawa and Myrna Caballero, and investigative assistant Vianey Castro, planned to call Gomez. Castro, who was 32 years old and fluent in Spanish, would call Gomez and pose as 13-year-old “Lucia” who was given Gomez’s telephone number by a friend who met him at a park to determine whether Gomez would agree to meet her.
Approximately three weeks later, Castro, posing as Lucia, called Gomez. Castro called Gomez a total of seven times and Caballero listened in on all the calls but the last one. During the first call, Castro told Gomez the girl he met at the park gave her Gomez’s telephone number and said to call him if she was interested in meeting him. Gomez told her to call him back at a specified time so he could speak with the girl he met at the park. When Castro explained she wanted to meet him, Gomez responded, “Oh. No, well yes. Call me back at [3:40].”
During the calls, Castro and Gomez spoke Spanish. A compact disk of the calls were played for, and a transcript of the calls were provided to, the jury. Gomez required a translator during trial.
Castro called Gomez back and said she was with her friend. Gomez asked when he could see her. Castro said she would like to meet him and asked his age. When Gomez responded he was 22 years old, Castro said she was 13 years old. Gomez responded, “Ah, [13]?” and laughingly, “You’re really young. Yes.” After Castro explained her friend was 14 years old and she was only 13 years old, Gomez asked if she wanted to meet him. Castro responded she did want to meet him and she had not had sex, but she was interested. Gomez stated: “Well if you want, where do you want to meet . . . or when?” Castro stated she did not want to get pregnant, and Gomez answered, “Well, we can use protection.” Castro suggested meeting during the week at a hotel where her friend’s brother works. Gomez suggested meeting at his house, but Castro stated she would be nervous. They agreed Castro would call Gomez the following day to finalize their plans. Gomez asked Castro whether she was still a virgin and Castro said she was. He said, “Oh cool.” Castro explained she did not want to get pregnant because she was only 13 years old and her family would be upset. Gomez said they would use a condom. Castro said she would call him the following day.
The next day, Castro called Gomez and stated she wanted to meet at the hotel. Gomez expressed concern about the friend’s brother finding out. Castro said the brother would not know. Gomez asked, “How old are you really?” Castro responded, “I’m [13].” A little later, Castro asked, “Why don’t you believe I am [13]?” Gomez answered, “Yes, I do believe you. No well, it’s because your voice sounds like a person with more age. But like I said, I can’t tell you if you are that age, because I haven’t seen you yet. You understand?” Castro agreed to call him later that day.
When Castro called, Gomez asked her if she had ever made love and Castro said she had not. Gomez asked her if she had “little hairs/peach fuzz[]” on her legs and “pussy.” After Castro said she did, Gomez stated, “How is your pussy? It must be really good?” When Castro stated she did not know, Gomez inquired, “And they haven’t sucked it?” After Castro said no, Gomez said, “I would like to suck your pussy. Stick my tongue in it. Would you like that?” As Castro tried to answer, Gomez asked, “Would you suck my, my dick?” Castro said she thought so.
Later that same day, Castro called Gomez again and said she could meet him later that night at the hotel. When Gomez agreed, Castro told him not to forget the condoms because she was 13 years old and did not want to get pregnant.
Later that night, Castro called Gomez and told him she was at the Irvine Suites Hotel. Gomez stated he had to buy condoms and asked if there were police there. Gomez said he would be there in 25 or 30 minutes. A little while later, Castro called Gomez who stated he was at the hotel.
Caballero was waiting in the hotel lobby. After Gomez entered the hotel and sat on a sofa in the lobby, Caballero approached him and asked whether he was “Eliseo.” Gomez said he was. Caballero said her friend Lucia was embarrassed to come to the lobby and it would not look right for a young girl to be in the lobby. She asked Gomez if he brought condoms, and Gomez said he did. Caballero arrested Gomez. Upon searching Gomez, Caballero found a new box of condoms.
An information charged Gomez with attempted lewd act upon a child under 14 years old (Pen. Code, §§ 664, 288, subd. (a)) (count 1) and misdemeanor child annoyance (§ 647.6, subd. (a)) (count 2).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered Castro’s testimony. Castro testified that when she spoke with Gomez, she tried to sound younger. Castro admitted she forgot to change her voice in all the conversations, but she tried to do it at certain times in the conversation. On cross-examination, Castro said she could not remember how many of the conversations she changed her voice, but it was more than one.
The prosecutor also offered Caballero’s testimony. Caballero explained that when she met Gomez in the hotel lobby and told him Lucia was embarrassed to come to the lobby because she was a young girl, Gomez seemed to understand and did not seem to be confused. On cross-examination, Caballero stated she did not tell Castro to disguise her voice and did not recall her disguising her voice during the telephone calls.
The jury convicted Gomez of count 1 and acquitted him of count 2. After the trial court denied Gomez’s motion for a new trial, the court sentenced him to 18 months in state prison.
DISCUSSION
I. Sufficiency of the Evidence
Relying on Hatch v. Superior Court (2000) 80 Cal.App.4th 170 (Hatch), and People v. Reed (1996) 53 Cal.App.4th 389 (Reed), Gomez argues insufficient evidence supports his conviction for count 1 because the evidence did not demonstrate he believed Lucia was under 14 years old. We disagree.
“‘“In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citations.] We apply an identical standard under the California Constitution. [Citation.] “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]’ [Citation.] [¶] We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning ‘evidence which is reasonable, credible, and of solid value.’ [Citation.] In contrast, ‘mere speculation cannot support a conviction. [Citations.]’ [Citation.] ‘In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]’” (People v. Mejia (2007) 155 Cal.App.4th 86, 93.)
Section 288, subdivision (a), prohibits any person from “willfully and lewdly commit[ting] any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .”
“A defendant is guilty of an attempt when he harbors a specific intent to commit the target crime and does a direct, although perhaps ineffectual, act toward its commission. [Citation.] The act need not be an element of the substantive offense, but only an immediate step in the present execution of the criminal design. [Citation.]” (Hatch, supra 80 Cal.App.4th at p. 185.)
Here, during the second telephone call Gomez stated, “Ah, [13]?” and “You’re really young. Yes[,]” when Castro told him that she was 13 years old. Gomez also stated they could use a condom when Castro said she only 13 years old and did not want to get pregnant. During the third call, Gomez asked, “How old are you really?” After Castro said she was 13 years old, she asked Gomez why he did not believe she was 13 years old. Gomez answered, “Yes, I do believe you. No well, it’s because your voice sounds like a person with more age. But like I said, I can’t tell you if you are that age, because I haven’t seen you yet. You understand?” During the fourth call, Gomez asked Castro whether she had made love with anyone and whether anyone had sucked her “pussy.” He also asked her whether she had “peach fuzz” on her legs and “pussy.” During the fifth call, Castro again told Gomez she was 13 years old and did not want to get pregnant. Gomez answered, “Aha. Sure.” During the sixth call, when Castro told Gomez she was at the hotel, Gomez asked her if the police were there.
Based on the entire record, the jury could reasonably conclude Gomez had the specific intent to commit a lewd act on 13-year-old Lucia. Gomez stated she was “really young” and expressed excitement at the fact she was 13 years old when he said, “Ah, [13]?” Although during the third telephone call, Gomez asked Castro how old she really was because she sounded older and he had not seen her, his subsequent questions and comments were a sufficient basis for the jury to conclude he intended to commit a lewd act on 13-year-old Lucia. Gomez asked her whether she had “peach fuzz” on her legs and “pussy.” Based on this question, the jury could reasonably infer Gomez believed Lucia to be young because older girls typically do not have “peach fuzz.” We are not persuaded by Gomez’s claim “many women remove body hair in various places” and therefore his question does not demonstrate he believed her to be young. Gomez did not ask Castro whether she removed hair from her legs and “pussy.” Moreover, during one of the later calls when Castro told Gomez she was 13 years old, he acknowledged her age by saying, “Aha. Sure.” Finally, during one of the last telephone calls, he asked Castro whether the police were at the hotel. Based on Gomez’s acknowledgment of Castro’s statement of her age and Gomez’s inquiry whether the police were at the hotel, the jury could reasonably infer he believed Lucia was 13 years old because it evidenced his belief he was about to engage in illegal activity.
Gomez relies on his question to Castro regarding how old she “really” was and his statement she sounded older and he had not seen her to contend there was insufficient evidence to support the conclusion he intended to commit a lewd act on 13-year-old Lucia. We decline Gomez’s invitation to consider only half the telephone calls in assessing whether there was substantial evidence to support his conviction. As we explain above, we review the entire record when addressing a claim of insufficient evidence.
Additionally, we do not find compelling the fact Castro could not remember when and how many times she changed her voice to sound younger. It is within the sole province of the jury to determine the credibility of a witness and we will not second guess those determinations on appeal.
Finally, Gomez’s reliance on Hatch, supra, 80 Cal.App.4th 170, and Reed, supra, 53 Cal.App.4th 389, is misplaced. In Hatch, defendant told the fictitious 13-year-old minor he feared being caught and wanted to obtain her assurance she was not with the police. (Hatch, supra, 80 Cal.App.4th at pp. 178-179.) Gomez did ask whether she was with the police and he did not want her friend’s brother who worked in the hotel to find out they were meeting. The fact he did not say he suspected a “police trap” is of no consequence when he did otherwise express a fear of the police.
In Reed, defendant raised a mistake of fact defense. (Reed, supra, 53 Cal.App.4th at pp. 396-397.) In assessing the applicability of the offense to the same charge at issue here, the court stated, “When, however, ‘“a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them.”’” (Id. at p. 396.) We are not concerned here with the mistake of fact defense, and as we explain above, there was sufficient circumstantial evidence from which the jury could reasonably conclude Gomez intended to commit a lewd act on 13-year-old Lucia. There was sufficient evidence to support Gomez’s conviction on count 1.
II. Prosecutor’s Argument
Gomez contends the prosecutor committed misconduct when during voir dire he equated the reasonable doubt standard to buying a home and he misstated the reasonable doubt standard. The Attorney General asserts Gomez forfeited appellate review of his first complaint because he did not object at trial. The Attorney General also claims the prosecutor did not err, and in any event, the jury instructions as a whole were proper. As we explain below, we agree with the Attorney General on all counts.
“‘[I]t is improper for the prosecutor to misstate the law generally [citations], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829-830.) “‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.)
During jury voir dire, the trial court began by informing the prospective jurors of the charges against Gomez, the fact he pleaded not guilty, and that the prosecutor had the burden of proving the charges beyond a reasonable doubt. At the beginning of the voir dire process, the court informed the prospective jurors Gomez was presumed innocent and the prosecutor had to prove the charges against him beyond a reasonable doubt. The court explained that to satisfy such a standard, the prosecutor had to prove the charges are true “to the point where you have an abiding conviction that those charges are, in fact, true.” The court further explained the prosecutor was required to prove the case beyond all reasonable doubt, but not all possible doubt “because everything is open to some possible doubt.”
During the prosecutor’s questioning of prospective jurors, the prosecutor explained “[he] [had] to prove to [the jury] the elements of the crime beyond a reasonable doubt.” The prosecutor reminded the jury the trial court informed the jury “everything in human affairs is open to some possible or imaginary doubt.” The prosecutor asked a prospective juror if the juror understood he or she could “have a possible doubt and still vote guilty[.]” The prosecutor when addressing the degrees of doubt stated: “If it’s up to a level of a reasonable doubt, we’ve got really a doubt based upon reason, that’s one thing. But if you’ve got possible doubt or I don’t think [the prosecutor] proved it a [100] percent, do you realize that’s not my standard.” The court overruled defense counsel’s objection. The prosecutor asked three additional jurors whether they could follow the law and vote guilty even if they had a possible doubt. Again addressing the degree of doubt, the prosecutor explained: “There’s that doubt based on upon [sic] reason, which we call reasonable doubt; bu[t] then there’s possible doubt. Now, sometimes we say like when you’re buying a home, you love the home, right, but you’re thinking about your finances, you’re stretching it. God, I love the home, I want to buy, but we’re in escrow, but you’ve got that possible doubt, can I do it, can I not do it.” The prosecutor added a juror could have a possible doubt and still vote guilty.
When a prospective juror expressed some confusion as to the applicable standard, the prosecutor said: “The law says if you can have possible doubt, that equals conviction; reasonable doubt equals not guilty.” The prosecutor explained he did not want the jury to hold him to a higher standard, i.e., that he had to prove the charges beyond any possible doubt. After the court sustained counsel’s objection, counsel responded it misstated the prosecutor’s burden of proof. The court answered it did not misstate, but it was argumentative, and sustained the objection. During the remainder of voir dire as the court excused prospective jurors and called additional prospective jurors, the court instructed the prospective jurors on the prosecutor’s burden to prove the charges beyond a reasonable doubt on three separate occasions.
First, Gomez contends the prosecutor committed misconduct when during voir dire the prosecutor equated the reasonable doubt standard to buying a home. Gomez did not object to the prosecutor’s statement and request an admonition. Had defense counsel requested an admonition, the trial court could have cured any harm. Because counsel did not object and request an admonition, Gomez waived appellate review of the issue. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
Second, Gomez contends the prosecutor committed misconduct when during voir dire the prosecutor repeatedly stated, “possible doubt, that equals conviction[.]” When read in their entirety, the prosecutor’s comments do not evince deceptive or reprehensible methods designed to lower the burden of proof. The prosecutor’s comments demonstrate he was concerned prospective jurors were having difficulty understanding the concept of beyond a reasonable doubt, and he did not want the jury to hold him to a higher burden of proof. The prosecutor’s comment “possible doubt, that equals conviction; reasonable doubt equals not guilty[,]” although inarticulate, was not error. The prosecutor correctly explained, albeit in abbreviated form, that if he failed to prove the charges beyond a reasonable doubt, the jury should vote not guilty. The prosecutor also explained, again in abbreviated form, that he did not have to prove the charges beyond all possible doubt because everything is open to some possible or imaginary doubt. This is a correct statement of the law. (Victor v. Nebraska (1994) 511 U.S. 1, 17.) Because we conclude the prosecutor’s comments were not misconduct when read in their entirety, Gomez’s complaint the trial court compounded the error by instructing the jury concerning “possible doubt” is unpersuasive.
In any event, Gomez was not prejudiced by the prosecutor’s statements during voir dire because the trial court repeatedly and correctly instructed the jury on the prosecutor’s burden of proof. The adequacy of jury instructions is considered by examining the charge as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677 [the adequacy of jury instructions is considered by examining the charge as a whole].) Here, the trial court instructed the jury with the following instructions which properly addressed the prosecutor’s burden of proof and how the jury was to evaluate the evidence: Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM Nos. 200, “Duties Of Judge And Jury”; 220, “Reasonable Doubt”; 224, “Circumstantial Evidence: Sufficiency Of Evidence”; 355, “Defendant’s Right Not To Testify”; and 359, “Corpus Delicti: Independent Evidence Of A Charged Crime.” We presume jurors are intelligent people “‘“capable of understanding the instructions and applying them to the facts of the case.”’” (People v. Carey (2007) 41 Cal.4th 109, 130.)
III. Jury Instruction
Gomez argues the trial court erroneously instructed the jury during deliberations with a “modified Allen charge” because it was coercive. The Attorney General claims Gomez forfeited appellate review of this issue because he did not object to the instruction after the court gave it and request clarification. The Attorney General also contends the instruction was not coercive. We need not reach the Attorney General’s claim Gomez forfeited appellate review of this issue because we reject his contentions on the merits. (People v. Whaley (2007) 152 Cal.App.4th 968, 979 (Whaley).)
The jury retired to deliberate on April 19 at 3:35 p.m. At 4:30 p.m., the jury ceased deliberating for the day. On April 23, the jury resumed deliberations at 8:30 a.m. At 11:04 a.m., the jury foreperson informed the trial judge the jury had reached an impasse. The foreperson explained the jury could not reach a verdict on either count. “There’s some pretty strong views on each side. And we figured, basically, that just sitting in there, continuing to deliberate would not reach a verdict one way or the other.” After the trial court inquired whether each of the jurors had reviewed the instructions and whether there was anything that confused the jurors, the court instructed the jury with a “modified Allen charge” as follows:
“It has been my experience that there are occasions when a jury initially reported that it was unable to reach a verdict, but was ultimately able to do so. To assist you in your deliberations, I’m going to take a moment to instruct you as to the law and discuss how you wish to approach your deliberations.
“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 trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors in your efforts to reach a verdict. Your determination of the facts and your verdict must not be influenced in any way by sympathy, compassion, prejudice, public opinion, or by concerns regarding penalty or punishment.
“During your deliberations, you can consider only the evidence that was presented during the trial. You must not engage in speculation or conjecture as to matters that were not presented by the evidence. You must determine what facts have been proved only by the evidence presented at trial, and not from any other source. You must apply the law I state to you to the facts as you determine them and in this way, arrive at your verdict.
“In the course of your 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 become convinced that it was incorrect, or to suggest that other jurors change their view if you are convinced that they are incorrect.
“Fair and effective jury deliberations require a frank and forthright exchange of views. Please keep an open mind and openly exchange your thoughts and ideas about this case. Please treat one another courteously. Remember, you are impartial judges of the facts, not advocates for one side or the other.
“Both the People and the defendant are entitled to the individual judgment of each juror. Each of you must decide the case for yourself, but you should only do so after a full and complete consideration of all the evidence with your fellow jurors. It is your duty to deliberate with the goal of arriving at a verdict if you can do so.
“You have complete discretion to conduct your deliberations in whatever way you deem appropriate. There may be occasions where one approach to deliberations has not proven productive, and that a different method may be of benefit. You may find it helpful to have different jurors take a turn at leading the discussion, or asking jurors with opposing views to reverse roles and argue the other position in an effort to gain a better understanding of the view. I am not attempting to instruct you as to how to conduct your deliberations, but merely suggesting methods you may find helpful.
“The intent or mental state with which a particular act is done can be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to convict has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, one of which supports a finding that he had the require[d] intent and another that he did not, then you must conclude that the required intent has not been proved.
“However, when considering circumstantial evidence, you must consider only reasonable conclusions and reject any that are reasonable.
“The evidence has been presented in this case has been subject to different interpretations by the prosecution and the defense. You should carefully consider all the evidence presented during the trial in determining whether a particular version of the events appears to be reasonable. You should use your common sense in determining whether a version of these events appears to be reasonable. You should reject a version of these events that you find, based on all the evidence, to be unreasonable.
“Please keep in mind the burdens of proof that apply to this case as set forth in [CALCRIM No.] 220 which requires the People to prove the charges to be true beyond a reasonable doubt, and [CALCRIM No.] 3408 which requires the [d]efense to prove [e]ntrapment by a preponderance of the evidence.
“When you reach a verdict, have the foreperson date and sign the form that states your verdict, and place all verdict forms for that count in the envelope provide[d], and notify the bailiff.
“You should keep in mind the recommendations contained in the written instructions you were provided, as well as the additional suggestions I have discussed with you today. I hope these additional comments and suggestions have been of some assistance to you.
“You are instructed to continue your deliberations at this time. If you have other questions, concerns, or requests, or have any other matter you wish to communicate to me, please put those in writing on the form provided by the bailiff. Have them signed and dated by your foreperson and then notify the bailiff.”
The jury returned to the deliberation room at 11:15 a.m. At 11:38 a.m., the jury requested a transcript of Caballero’s testimony. Sometime before noon, the jury reached a verdict, convicting Gomez on count 1 and acquitting him on count 2.
In Allen v. United States (1896) 164 U.S. 492, 501-502, the Supreme Court of the United States approved a charge (the Allen charge), which encouraged the minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided.
In People v. Gainer (1977) 19 Cal.3d 835, 843 (Gainer), the California Supreme Court addressed the validity of a jury instruction designed to extract a verdict from a deadlocked jury. The instruction admonished jurors to consider whether his or her doubt was reasonable and informed the jury the case had to be decided at some time. (Id. at p. 841.) The court held “it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” (Id. at p. 852, fn. omitted.) The court reasoned that “[b]ecause it instructs the jury to consider extraneous and improper factors, inaccurately states the law, carries a potentially coercive impact, and burdens rather than facilitates the administration of justice, we conclude that further use of the charge should be prohibited in California.” (Id. at pp. 842-843.)
In Gainer, the trial court stated: “‘You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose the case will ever be submitted to [12] men or women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this view, it is your duty to decide the case, if you can conscientiously do so.’” (Gainer, supra, 19 Cal.3d at p. 841.)
“The trial court’s authority to give supplemental jury instructions to a deadlocked jury in a criminal case derives from . . . section 1140[] . . . . [¶] The trial court is therefore required to determine in its ‘sound discretion’ whether there is a reasonable probability of agreement by the jury. [Citation.] However, ‘[t]he court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citations.] [¶] Directing further deliberations is proper where the trial court reasonably concludes that ‘such direction would be perceived “‘as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ [Citation.]” [Citation].’ [Citation.] The supplemental instructions that may be given for the purpose of directing further deliberations are governed by the ‘judicially declared rule of criminal procedure’ established by the California Supreme Court in its landmark decision Gainer, supra, 19 Cal.3d at page 852.” (Whaley, supra, 152 Cal.App.4th at pp. 979-980.)
Gomez claims the trial court’s instruction “was impermissibly coercive” in what it said and what it failed to say. He complains: (1) the instruction failed to caution the jury not to abandon their conscientiously held beliefs; (2) the instruction informed the jury the court expected a verdict; and (3) the instruction suggested jurors with opposing views reverse roles and argue the other position to better understand the opposing view. We find People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), and Whaley, supra, 152 Cal.App.4th 968, instructive.
In Moore, supra, 96 Cal.App.4th at pages 1118-1120, the trial court instructed the deadlocked jury with an instruction similar to the one at issue here. In rejecting defendant’s contention the instruction was coercive, the court explained the instruction was not an improper Allen charge. (Id. at p. 1121.) The court, in commending the trial judge for drafting “such an excellent instruction,” explained the trial judge instructed the jury their goal was “‘to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.’” The court also stated the trial judge “instructed that it was their 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.’” The court noted the trial judge never directed the jury it was required to reach a verdict or constrained “any individual juror’s responsibility to weigh and consider all the evidence presented at trial.” In concluding the trial judge’s instruction was not coercive, the court opined the trial judge “simply reminded the jurors of their duty to attempt to reach an accommodation.” (Ibid.) The court concluded, “The fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion.” (Id. at p. 1122.)
In Whaley, supra, 152 Cal.App.4th at pages 974-977, 981, the trial judge instructed the deadlocked jury (11 to 1) with the instruction used in Moore. In rejecting defendant’s claim the suggestion jurors “reverse roles” placed undue pressure on the holdout juror, the court explained the trial judge’s suggestion applied to all jurors, not just the holdout juror. (Id. at p. 983.) The court added the instruction was not unduly coercive because it “emphasized the jurors’ duty to use their independent judgment” by deciding the case for yourself. The court also noted the trial judge suggested, not ordered, the jurors to consider role reversal as a method of deliberation. Finally, the court noted where “defense counsel does not object to a supplemental instruction, . . . ‘the potential for coercion argued now was not apparent to one on the spot.’ [Citation.]” (Ibid.)
Here, although the instruction did not inform the jury it was their duty as jurors to deliberate with the goal of arriving at a verdict on the charge if it could do so without violence to their individual judgment, the trial judge did instruct the jury the prosecutor and defense counsel were “entitled to the individual judgment of each juror[]” and each of the jurors must decide the case for himself or herself. Additionally, CALCRIM No. 3550 instructed jurors not to “change your mind just because other jurors disagree with you.” While we conclude the omission was not coercive, the better practice is to include the omitted language as the trial judge’s did in Moore and Whaley. (Whaley, supra, 152 Cal.App.4th at p. 975; Moore, supra, 96 Cal.App.4th at p. 1119.)
The federal cases Gomez relies on Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, U.S. v. Bonan (9th Cir. 1985) 772 F.2d 1449, U.S. v. Mason (9th Cir. 1981) 658 F.2d 1263, and Smalls v. Batista (2d Cir. 1999) 191 F.3d 272, do not persuade us otherwise.
And similar to both Moore and Whaley, the trial judge instructed jurors their goal was to reach a verdict “‘regardless of how long it takes to do so,’” but also instructed the jury it was their duty to reach a verdict if they were able to do so. The trial judge did not instruct the jury it must reach a verdict. Finally, as in Whaley, the trial judge suggested to all the jurors they reverse roles to understand the opposing view. And the trial judge did not order the jurors to engage in role reversal, but merely suggested it. Finally, the fact the jury returned with a verdict in less than one hour does not demonstrate the instruction was coercive. (Moore, supra, 96 Cal.App.4th at p. 1122.) When read in its entirety, we conclude the instruction was not coercive and, therefore, did not violate Gomez’s federal due process rights.
IV. Cumulative Error
Gomez contends the cumulative effect of the errors requires reversal. We have concluded there were no errors, and therefore, this claim has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J. IKOLA, J.