Opinion
A145084
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN DAVID JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR286021)
Defendant John David Johnson drove while intoxicated at twice the legal blood alcohol limit, with his six-year-old son in the backseat. Nobody was hurt when he ran into a truck in an intersection on the city streets of Vallejo, California, nor thereafter when he drove away from the scene, inebriated, with his child still in the car. Johnson was subsequently convicted after a jury trial of felony child endangerment (Pen. Code, § 273a, subd. (a)), and he now appeals.
We conclude that substantial evidence supports his conviction. We also reject his other two claims of error: that the trial court failed to respond properly to several jury questions about one element of that offense, and also that, in response to another jury question, it misadvised the jurors about the order in which they were permitted to deliberate on the lesser included offense of misdemeanor child endangerment.
BACKGROUND
I.
The Charges and the Evidence
Johnson was charged with several misdemeanor offenses arising from the incident, and the felony child endangerment count at issue here. The matter proceeded to a three-day jury trial, where the following facts were established.
On July 6, 2011, Johnson was driving from the San Francisco Bay Area to Truckee, California, with his six-year-old son seat-belted into a booster chair in the backseat. At some point, somewhere, Johnson consumed alcohol. At approximately 4:00 p.m. in the afternoon, with a blood alcohol level at least double the legal limit and a strong smell of alcohol still on his breath, Johnson drove through a four-way intersection on the city streets of Vallejo, California without stopping, while a large pickup truck towing a 20-foot, flatbed trailer was passing through the intersection. The truck driver described hearing the "screeching" of tires skidding behind him and a loud, crashing sound of "metal to metal" as Johnson collided into the trailer's rear end. The pickup truck driver felt the impact, which was strong enough to push the flatbed trailer. Johnson made eye contact, staring "[l]ike a deer in the headlights," and then "took off," with a large plume of white smoke behind him.
The pickup truck driver followed after Johnson, driving at approximately 45 miles an hour in a 25 mile an hour zone trying to reach Johnson and get his attention, while Johnson was driving away at approximately 35 to 40 miles an hour. The pickup truck driver spotted a police officer on motorcycle, Vacaville Police Officer Matthew Lydon, and signaled for the officer to follow them. Officer Lydon did so, without turning on his lights, and both vehicles came to a stop by the side of the road about 30 to 45 seconds later, not far from the scene of the accident. It appeared to the pickup truck driver that Johnson pulled over once he noticed the truck driver behind him.
The driver got out to confront Johnson, but Officer Lydon came over and asked him to step away. Officer Lydon then spoke with Johnson, who was visibly under the influence of alcohol. His eyes were bloodshot and watery, his face was flushed, his breath smelled strongly of alcohol and he was slightly unsteady on his feet. Johnson admitted having been in a collision but wasn't familiar with the area and couldn't say which street it had taken place on. Another police officer arrived on the scene, and Johnson was arrested after declining a field sobriety test. Roughly 45 minutes after the accident, he registered a blood alcohol level of .16 percent, which is twice the legal limit of .08, the level at which anyone's driving would be impaired.
Johnson's car left visible skid marks, beginning approximately 30 to 40 feet away from the intersection, but Johnson and his child were unhurt and the collision caused relatively minor damage. The flatbed trailer's fender was dented, there was damage to one brake light and to its metal frame which was bent out of shape. The front plastic bumper of Johnson's car was scratched and a portion torn off, and the headlight housing and surrounding front corner area of the car's body was damaged.
Officer Lydon, who had 20 years of experience with D.U.I. investigations and D.U.I.-related collisions, testified that there is a likelihood of injury or death in any traffic collision, but that a driver under the influence of alcohol is "always a concern," because their reactions are delayed. The People also proffered an expert in alcohol, who testified that the effects of alcohol depend on a person's tolerance, but that alcohol consumption can cause impairments such as "information processing," and "reaction time," and decreased judgment at the low end, with increasing levels of consumption leading to impairment of fine motor skills including turn signaling, followed at the higher levels by impairment of gross motor skills, such as difficulty standing up, walking straight or speaking without slurring.
II.
Jury Deliberations and Verdict
As relevant here, the jury was instructed on felony child endangerment, count 1, under CALCRIM No. 821. It stated in relevant part that the People "must prove that: [¶] 1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered; [¶] 2. The defendant caused or permitted the child to be endangered under circumstances or conditions likely to produce great bodily harm or death; [¶] AND [¶] 3. The defendant was criminally negligent when he caused or permitted the child to be endangered." It further stated in relevant part that, "The phrase likely to produce great bodily harm or death means the probability of great bodily harm or death is high." (Italics added.) It also instructed that "Great bodily harm means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm," and that, "A child does not need to actually suffer great bodily harm."
For count 1, the jury was instructed on the lesser included offense of misdemeanor felony endangerment (Pen. Code, § 273a, subd.(b)), under CALCRIM No. 823. That instruction was substantively identical to the felony instruction except it omitted the element of the felony instruction (and related instructional language) relating to circumstances or conditions likely to produce great bodily harm or death.
In addition, the jury was instructed under CALCRIM No. 3518 concerning its deliberations on lesser included offenses. The instruction stated in relevant part that, "Misdemeanor child endangerment is a lesser crime of felony child endangerment charged in Count 1. [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." The instruction concluded with directions for completing the verdict form for count 1, addressing circumstances both in which jurors were unanimous and in which they were deadlocked.
The concluding portion stated: "For count 1, you will receive a verdict form. Follow these directions before you give me any completed and signed final verdict form. Return any unused verdict forms to me, unsigned. [¶] 1. If all of you agree the People have proved that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict form for that count. [¶] 2. If all of you agree the People have not proved that the defendant is guilty of the greater crime and also agree the People have proved that he is guilty of the lesser crime, complete and sign the verdict form for guilty of the lesser crime. Do not complete or sign any other verdict form. [¶] 3. If all of you agree the People have not proved that the defendant is guilty of the greater or lesser crime, complete and sign the verdict form for not guilty. [¶] 4. If all of you cannot agree whether the People have proved that the defendant is guilty of a charged or lesser crime, inform me only that you cannot reach agreement [as to that count] and do not complete or sign any verdict form for that count."
The jury retired to deliberate mid-day, at 11:40 a.m., on Friday, July 25. At the end of the afternoon, at approximately 4:00 p.m., the trial court reconvened the jury to excuse them for the weekend and discuss scheduling matters. The trial judge (the Hon. Philip Champlin, Ret.) informed the jurors that a different superior court judge would preside over their deliberations the following week, the Hon. Wendy Getty, and then turned to the subject of whether the jury had any questions. This exchange ensued (italics added):
"THE COURT: . . . [I]s there anything that we could do this afternoon in the immediate future that wouldn't take a great deal of time to assist you, or anything that we should be prepared to do next week when you come back, or do you just want to wait until next week, and then send in a note to Judge Getty and tell her what it is you want. [¶] She can find that [sic] the court reporter can read back testimony. The judge can possibly give you further instruction on the law, if necessary, or we will attempt to answer any questions that you may identify. [¶] Of course, Judge Getty will meet with counsel first and go over the questions and try to find an answer to assist you. [¶] Do you want to wait until Tuesday and pinpoint what it is needed, if anything, and send a note in to Judge Getty?
"JUROR NO. 11: Actually, could I ask you a question?
"THE COURT: Well, you can, but I probably won't be able to give you an answer, but why don't you go ahead and ask the questions and see what it is.
"JUROR NO. 11: Could I approach or
"THE COURT: No. It has to be on the record.
"JUROR NO. 11: First, Count 1 for the felony or misdemeanor, we are having trouble deliberating on the felony, and if the instruction, it says that we have to either all
agree that he is not guilty to move to the misdemeanor; is that correct, or is it just a partial?
"THE COURT: I think I can answer that. Both of you agree the answer is 'yes'?
"[PROSECUTOR]: Yes.
"[DEFENSE COUNSEL]: Yes.
"THE COURT: The answer is, yes. You have to all agree that the defendant is not guilty of the felony before you move to the lesser offense.
"JUROR NO. 11: All right.
"THE COURT: Does that answer your question?
"JUROR NO. 11: It does.
"THE COURT: Given that answer, would any further deliberations [sic] this evening, say, in the next 15 minutes or so.
"JUROR NO. 11: I think we have one more questions, [sic] actually.
"THE COURT: Okay.
"JUROR NO. 6: Count 2 of the felony child endangerment refers to the position of being likely to cause great bodily harm or death. How do we define, or how would I define, likely to cause?
"THE COURT: I'm not sure I could answer that any different than what was already stated in the instructions which is the phrase, likely to produce great bodily harm or death, means the probability of great bodily harm or death. That is what the instruction says. [¶] I would have to meet and confer with the attorneys, and it would probably be awhile for us to decide anything beyond that, but I could instruct you, but that is the language of the instruction, and that is the law as it applies to this case. [¶] Does that answer the question or were you hoping there would be something more?
"JUROR NO. 6: I think the term as worded is, probable.
"THE COURT: Well, it's instruction 821, in your packet, you could just go back and reread that on that issue.
"JUROR NO. 6: So is this something we could resolve in 15 minutes?
"THE COURT: (Juror No. 11), you're raising your hand.
"JUROR NO. 11: Maybe if the Court could define high probability. What a high probability is?
"THE COURT: I can't say that the Court can't do that but I'm not sure without spending some time talking about it with counsel whether I could answer in the affirmative or not. [¶] Could I see counsel at the bench for just a minute?
"(A discussion was held at the bench and not reported.)
"THE COURT: (Juror No. 11), while counsel and I were talking, has there been any new development we should be aware of in your view?
"JUROR NO. 11: From our deliberations, no.
"THE COURT: What I think counsel and I have agreed on is they will go to the law books between now and Tuesday and see if they can come up with anything. I don't think I would be in a position to try to add an answer to that question. And they may or may not be able to find anything of assistance, and you may be left with the jury instruction in its present wording."
The jury was then admonished and excused until the following Tuesday morning. Before adjourning the proceedings, Judge Champlin commented to counsel that on the following Tuesday morning, "[the jurors] will come back, and keep in mind they are struggling with that definition, and I don't know where you want to meet with Judge Getty and try to come up with some further definition, but frankly, I can't think of anything."
The jury resumed deliberations the following Tuesday morning, July 29. At some point that morning (the record does not reflect what time), they sent a written question: "On Friday we requested a more defined explanation of 'probability of great bodily harm or death is high.' The lawyers were instructed to consult their law books and see if they could find a definition, and we wanted to see if one was available?" The record does not reflect any response.
The jury deliberated for two hours that morning, and then returned unanimous guilty verdicts on all counts, including the felony child endangerment charge and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). When Judge Getty took the bench to receive their verdicts, she told the jury that Judge Champlin "did let me know where things left off last week." The jury was polled, and no objections were made.
Johnson was subsequently sentenced and this appeal followed.
DISCUSSION
I.
The Felony Child Endangerment Conviction Is Supported by Substantial Evidence.
In evaluating the sufficiency of the evidence, we must "review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We may not reverse a conviction unless " ' "upon no hypothesis whatever" ' " is it supported by sufficient substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 370.)
Penal Code section 273a makes it unlawful to, inter alia, "willfully cause[] or permit[] [any] child to be placed in a situation where his or her person or health is endangered." If a child is endangered "under circumstances or conditions likely to produce great bodily harm or death," then the offense is punishable as a felony. (§ 273a, subd. (a).) Otherwise, it is punishable as a misdemeanor. (§ 273a, subd. (b); People v. Sargent (1999) 19 Cal.4th 1206, 1223.) "It is for the trier of fact to determine whether the act was done 'under circumstances or conditions likely to produce great bodily harm or death,' i.e., under conditions 'in which the probability of serious injury is great.' " (Sargent, at p. 1223.) " '[T]here is no requirement that the actual result be great bodily injury.' " (Ibid.) Furthermore, "[e]xpert testimony is not necessary to prove that the abuse [is] likely to cause great bodily harm." (People v. Clair (2011) 197 Cal.App.4th 949, 956 (Clair).)
Johnson contends his felony conviction is supported by insufficient evidence because there is no evidence he put his son at great risk of serious injury or death. He says "the evidence showed that there was a minor intersection collision between the two vehicles, that appellant had alcohol in his blood and a child in his car, and nothing else." We do not agree. It is within the province of a jury, using everyday common sense, to conclude that embarking on a lengthy road trip with a blood alcohol level at twice the legal limit puts a child passenger in serious danger, not to mention departing the scene of an accident, however minor. That is, that Johnson's actions created a high probability of significant physical injury, as framed by the instructions the jury was given. The fact that Johnson's actions did not actually result in serious injury to his son, and that Johnson was apprehended and arrested before reaching the highway on his way to Truckee from the Bay Area, did not diminish the gravity of what he did. Indeed, he made matters worse when he "took off" after the collision, because a dangerous pursuit could have ensued, with other vehicles involved. (Cf. People v. Wilson (2006) 138 Cal.App.4th 1197, 1205 ["A child entering a neighbor's locked residence in order to help commit a burglary . . . exposes the child to a number of serious physical dangers, e.g., someone in the home might react violently to the trespass, etc."].) And while it is true, as Johnson points out, that dangerously high speeds were not involved, and the collision caused only minor damage, the jury could reasonably conclude that all it might take for serious injury to occur even, at moderate speed, would be poor reaction times; a telephone pole; ignoring a red light; or a low-speed collision occurring in a different manner than this one did. In arguing there was insufficient evidence of risk here, Johnson is effectively asking us to substitute our judgment for the jury's, which we may not do.
Convictions for felony child endangerment have been upheld against sufficiency of the evidence challenges in a wide variety of situations. (See People v. Toney (1999) 76 Cal.App.4th 618, 620-621, 622-623 [keeping dangerous chemicals in the home for the manufacture of methamphetamine]); People v. Odom (1991) 226 Cal.App.3d 1028, 1033 [same, as well as weapons, unsanitary conditions and other perils in the home; "a disaster waiting to happen"]); People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [striking children repeatedly with a wooden stick, causing bruising]); People v. Wilson, supra, 138 Cal.App.4th at p. 1205 [choking and throwing ten-year-old child against refrigerator without causing injury, and hitting wall close to child's head with a mop]); ibid. [forcing child to enter neighbor's locked home to help parent commit burglary]); People v. Kinkead (2000) 80 Cal.App.4th 1113, 1121 [lying down on sofa beside three-year-old child and "crashing," after consuming marijuana and alcohol and having endured days of sleeplessness due to methamphetamine ingestion].) Although no injuries occurred here, there is substantial evidence defendant's actions were comparably dangerous.
In attacking his conviction, defendant chiefly protests the lack of any expert testimony, or statistical data, about the incidence of serious injury or death from impaired driving, but none was necessary. The jury could reasonably conclude, based on their everyday experience and common sense, that defendant put his child in great danger that day even though the danger did not materialize. (See, e.g., People v. Harris (1966) 239 Cal.App.2d 393, 398 [expert testimony that squalid home conditions were likely to injure defendant's children held unnecessary; "[t]he standard imposed by the statute is for the guidance of laymen"]; see also Clair, supra, 197 Cal.App.4th at p. 956.) Simply put, he engaged in conduct that "even the most ignorant and insensitive parent should recognize as hazardous" to his child. (Harris, at p. 398.)
Even defense counsel appealed to the jury's common sense and life experiences, albeit in urging them to acquit.
II.
The Jury's Questions Furnish No Basis for Reversal.
Next, Johnson argues that the trial court failed properly to respond to three of the jury's questions relating to the felony child endangerment count, each warranting reversal individually and together warranting reversal because of their cumulative impact. Specifically, he contends that in response to the jury's request for a definition of "high probability" of causing great bodily harm or death as that phrase was used in the instructions, the trial court had a duty to advise the jury sua sponte that "high" meant "great." He also contends the trial court erred by not responding to the follow-up note the jury sent on the final day of deliberations inquiring about an answer to its question, and by not apprising defense counsel of the note. In addition, he argues the court misadvised the jury by stating the jury could not "move" to the lesser included offense of misdemeanor child endangerment before reaching a verdict of acquittal on the felony, thereby leaving the jury with conflicting instructions concerning the order of its deliberations.
We address each claimed error in turn, and reject them too.
A. The Jury's Request for a Definition of a "High Probability," and Its Follow-Up Note Concerning the Same Subject
Johnson contends the trial court's failure to explain in response to Juror Number 11's question on Friday afternoon that the term "high probability" meant a "great" probability, violated section 1138, which provides that when the jury "desire[s] to be informed on any point of law arising in the case, . . . the information required must be given . . . ." Again, the instruction as given was that "likely to produce great bodily harm or death means the probability of great bodily harm or death is high." (Italics added.) Johnson's contention is that telling the jury the probability must be "great" would have clarified the instruction.
Johnson also argues, briefly and in cursory fashion, that his Fifth and Sixth Amendment rights also were infringed by the court's actions. The reason, he says, is because "a trial court's failure to instruct a jury on all the elements of a criminal charge violates the defendant's Fifth and Sixth Amendment rights to have a jury decide his guilt or innocence." But the trial court did instruct the jury on all of the elements of the charged offense. Johnson cites no authority holding that the federal constitution guarantees a non-capital criminal defendant the right to a clarifying instruction by the trial court in the absence of a request by a party.
We review a claim of error under section 1138 for abuse of discretion. (People v. Lua (2017) 10 Cal.App.5th 1004, 1016 (Lua).) "The trial court abuses its discretion if it refuses to offer any further instruction without first considering how it can best aid the jury. [Citation.] However, the trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.' " (Id. at p. 1017.) Although the trial court "has a primary duty to help the jury understand the legal principles it is asked to apply," "[t]his 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." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Stated simply, a trial court "must do more than figuratively throw up its hands and tell the jury it cannot help . . . [and] must at least consider how it can best aid the jury." (Ibid.) That is exactly what this trial court did.
Unlike in some of the authorities cited by the parties, the trial court did not simply refuse, on-the-spot, to clarify the instructions. (See, e.g., People v. Beardslee, supra, 53 Cal.3d at pp. 96-97; People v. Solis (2001) 90 Cal.App.4th 1002, 1013; People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) Judge Champlin considered the jury's question, conferred with counsel who agreed to conduct legal research over the weekend to determine whether any further amplification of the instruction was appropriate, told the jury it might "be left with the jury instruction in its present wording", and then apprised Judge Getty of where "things left off." Yet neither attorney proposed any additional language after the weekend. We cannot say it was an abuse of discretion for Judge Champlin to handle matters in this fashion. (See, e.g., Lua, supra, 10 Cal.App.5th at pp.1009-1010, 1018 [no abuse of discretion in not affirmatively responding to jury note concerning language of verdict form which was correct]; People v. Montero (2007) 155 Cal.App.4th 1170, 1178-1180 [no abuse of discretion in declining to clarify the word "control" in prosecution for drug possession for sale; referring jury back to relevant instructions held sufficient and "any detailed response to the question would have thrust the court into the jury's role of deliberating"]; People v. Hill (1992) 3 Cal.App.4th 16, 23-25 [no abuse of discretion, after consulting counsel and considering the matter, to direct jury to re-read instructions as to which the jury had requested clarifications], disapproved on another ground in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) Moreover, any error was waived because defense counsel agreed to this procedure. (Cf. People v. Barrios (2008) 163 Cal.App.4th 270, 279.)
Nor was it an abuse of discretion for Judge Getty to decline to elaborate further after the weekend, when neither attorney had proposed a better definition with the benefit of additional research. The instruction as given was correct, and Judge Getty could reasonably conclude in these circumstances there was nothing further that would be of any assistance.
And Judge Getty was right, because there is no meaningful difference between "high" as used in the instruction and "great." Johnson contends that the latter term "connotes a much more strict requirement" than the former, but there is no legal support for that proposition in anything he has cited to us. Both terms simply appear in the case law without distinction, as far as we can tell. The term "great" derives from an opinion by our colleagues in the Second District commenting upon the scope of section 273a, subdivision (a), in the context of a sufficiency of the evidence challenge. (See People v. Jaramillo, supra, 98 Cal.App.3d at p. 835 ["[t]he statute is intended to protect a child from an abusive situation in which the probability of serious injury is great"].) And an instruction that the risk must be "high" was held proper by our colleagues in the Fourth District. (See People v. Chaffin (2009) 173 Cal.App.4th 1348, 1353 (Chaffin) [instructions held adequate, without giving legal definition of "likely," where jury was properly instructed that defendant's actions had to create a "high" risk of death or great bodily harm].) The words are synonymous. (See "high"—thesaurus.com <http://www.thesaurus.com/browse/high?s=t> (as of February 14, 2017) [listing, inter alia, "great"]; "great" —thesaurus.com <http://www.thesaurus.com/browse/great?s=t> (as of February 14, 2017) [listing, inter alia, "high"].) It therefore is unsurprising that nobody proposed telling the jury that the risk must be "great," because it would not have clarified anything, or assisted the jury to discharge their duties any better than the instructions they already had telling them the risk must be "high." The term "great" is a synonym of the term "high," and in the context of the instruction they have the same meaning.
Furthermore, neither party proposed responding to the jury's inquiry with an instruction that "high" meant "great," and we disagree with Johnson that the trial court had a sua sponte duty to give such an instruction. "The trial court has no duty to give a clarifying instruction, absent a request, if the term in the instruction has a plain and unambiguous meaning that is " ' "commonly understood by those familiar with the English language . . . ." ' " (Chaffin, supra, 173 Cal.App.4th at p. 1351.) Rather, the trial court has a sua sponte duty to give amplifying or clarifying instructions "where the term used in an instruction has a " ' "particular and restricted meaning' [citation], or has a technical meaning peculiar to the law or an area of law." ' [Citations.] A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning." (Ibid.) Johnson does not argue the term "high" falls into either category. As said, he contends only that the jury should have been instructed with a synonym, not a technical, legal definition.
For much the same reasons, we find no abuse of discretion in the trial court's failure to respond to the jury's follow-up note inquiring whether the lawyers had found a definition after conducting legal research. (See, e.g., Lua, supra, 10 Cal.App.5th at p. 1018.) While it might have been better practice to confirm for the jury that they had not, the substance of the court's comments the prior Friday afternoon, quoted above, were sufficient to apprise the jury that, come Tuesday morning, they might be left with the instructions as worded. Furthermore, any error in failing to explicitly tell the jury in response to their note that no definition would be forthcoming could not possibly be prejudicial, under any standard.
Johnson argues "the record does not show that Judge Getty was even aware of" the jury's note, "let alone that she exercised any discretion with respect to it", but we cannot presume error from a silent record. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The note is part of the court file, and there is no indication in the record Judge Getty was not aware of it.
Nor, finally, has Johnson demonstrated that Judge Getty erred prejudicially in failing to apprise defense counsel of the jury's follow-up note on Tuesday morning. In the first place, the record does not reflect whether or not defense counsel was notified of the note; the record is simply silent. So, we must presume in favor of the judgment that defense counsel was notified. (See People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) Furthermore, a conviction may not be reversed for a violation of section 1138's requirement that counsel be notified of a jury request " 'unless prejudice is shown.' " (People v. Jenkins (2000) 22 Cal.4th 900, 1027.) "Counsel should be notified in order to ensure that counsel has an opportunity to object to the course of action undertaken by the court or suggest an alternative course." (Ibid.) But here, even assuming defense counsel was not apprised of the jury's follow-up note, that failure cannot have had any effect upon the jury's verdict. Defense counsel was already aware of the jury's underlying question, he had three days to research and propose an answer (including over the weekend and one full court day), and he did not propose anything during that time, not even when the jurors resumed their deliberations at 9:00 a.m. on Tuesday morning. There is no reason to think that when the jurors sent out their note that morning sometime during their final two hours of deliberations, defense counsel, tardily but fortuitously, would have proposed the language that defendant now says was warranted. On the contrary, when defense counsel later moved for a new trial, he still did not raise this issue or contend that the trial court should have advised the jury that the probability standard meant "great." Accordingly, any error in failing to notify defense counsel of the jury's follow-up note was harmless. Johnson does not contend otherwise; his opening brief does not even address the prejudicial impact of the trial court's ostensible failure to apprise counsel of the jury's note.
B. The Jury's Question About "Moving" to the Lesser Included Offense
Finally, Johnson argues the court erred prejudicially when it told the jury, in response to its first question, that "[y]ou all have to agree that the defendant is not guilty of the felony before you move to the lesser offense." He contends this improperly prevented the jury from even considering a misdemeanor conviction for child endangerment until it had rendered a verdict on felony child endangerment, in violation of People v. Kurtzman (1988) 46 Cal.3d 322. Kurtzman authorizes an instruction requiring juries to acquit of a greater offense before returning a verdict on a lesser included offense, but prohibits trial courts from instructing juries not even to deliberate on or consider a lesser included offense before deciding whether to acquit of the greater offense, reaffirming a jury's right to control the order of their deliberations on lesser included offenses. The Supreme Court thus concluded the trial court in that case had erred when, in response to questions from the jury, it told the jury it could not "deliberate on" or "consider" a lesser offense until the jury had read reached unanimity on the greater offense, although the error also was determined to be harmless. (See id. at p. 335.)
The trial court's comments here were not nearly as clear and forceful as those at issue in Kurtzman, and we are not persuaded the jury would have understood the court's ambiguous answer to its ambiguous question (both, framed in terms of "moving" to the lesser offense) as a direction not even to deliberate on the lesser charge. In context, the question and answer more naturally appears to concern that portion of CALCRIM No. 3518 addressing the unanimity requirement for returning a verdict of acquittal on the greater offense ("[T]he instruction, it says that we have to either all agree that he is not guilty to move to the misdemeanor; is that correct, or is it just a partial?"). It appears the jury was inquiring whether it could reach a verdict on the lesser offense if it was hung on the greater offense. The jury's question does not suggest it was confused over that aspect of the instruction telling them, correctly, "it is up to you decide the order in which you consider each crime and the relevant evidence." (Cf. People v. Perez (1989) 212 Cal.App.3d 395, 399-400 [statement to jury that they could not "consider" lesser offense violated Kurtzman but held harmless where, inter alia, the statement was made in "an arguably ambiguous manner" and trial court "did not attempt to restrict the jury from [deliberating] in a clear, forceful and repeated manner"].)
Furthermore, even if there were Kurtzman error, it was waived because defense counsel agreed with the trial court's response to the jury's question. (See, e.g., People v. Debose (2014) 59 Cal.4th 177, 207; People v. Jennings (2010) 50 Cal.4th 616, 683; People v. Boyette (2002) 29 Cal.4th 381, 430.) Johnson cites People v. Breverman (1998) 19 Cal.4th 142, 154-155, 162, for the proposition that "[t]he agreement of counsel to the erroneous answer did not relieve the court of its duty to answer the jury's question correctly, and to do so sua sponte," but Breverman is not on point. It concerns the trial court's sua sponte duty to instruct on lesser included offenses, which is not at issue here.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.