Opinion
C079080
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK E. KREWEDL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00595)
Defendant Mark E. Krewedl was granted five years of formal probation after a jury convicted him of evading a peace officer, driving under the influence of alcohol (DUI), driving while having a blood-alcohol content (BAC) of 0.08 percent or more, and several counts of violating a protective order. On appeal, he contends the trial court violated his constitutional rights to due process and a fair trial by failing to fully instruct the jury on voluntary intoxication. We affirm the judgment.
FACTS
We note that, due to Monique Krewedl's unavailability at trial, her preliminary hearing testimony was read into the record.
The victim and the defendant share the same surname and we will use their first names where appropriate
In November 2013, defendant was married to Monique Krewedl. They lived together in a house on Bishop Way. On November 30, 2013, Monique was getting ready for bed when defendant, who was drunk, began to pester her. Monique asked him to stop but he continued. She took her pillow and went into the living room to sleep on the couch. Defendant came into the room and hit her on one side of her head and then the other and then went into the kitchen. After a few minutes, he came back into the living room and hit Monique on the top of the head, calling her a "cunt" and other derogatory names. Monique called 911 and subsequently obtained a restraining order (issued on December 18, 2013) prohibiting defendant from contacting her or coming within 100 yards of her or her residence or place of employment. Defendant was personally served with the restraining order.
In spite of the restraining order, defendant went to and drove by the Bishop Way house, and stayed with a neighbor who lived four or five houses away.
In January 2014, Monique began receiving offensive text messages from defendant on a cell phone she was borrowing from her brother. She provided the phone to police. On January 22, 2014, Sacramento County Sheriff's Detective Michael Abbott began investigating a possible restraining order violation resulting from defendant's text messages to Monique. Using Monique's phone, Abbott was able to extract text messages from the phone's memory. Abbott found 177 text messages from defendant to Monique between December 28, 2013 and January 10, 2014 (173 of which were sent on January 4, 2014) and 10 to 15 responsive text messages from Monique. Abbott testified that many of defendant's text messages to Monique expressed defendant's desire to talk to her in person rather than by text, and contained statements by defendant that he "had a plan that would make both sides happy." One of the text messages said, "Get a good laugh. Karma is a bitch."
On January 25, 2014, Sacramento County Sheriff's Deputy Erik Petersen was dispatched to the Bishop Way house for "a domestic violence/restraining order violation in-progress call." After confirming the restraining order was valid, Petersen went to Bishop Way. While on his way there, he saw defendant sitting on a motorcycle more than 100 yards from Monique's house. Petersen, who was wearing his uniform, parked his marked patrol car two or three houses down from Monique's house. He and Deputy Jones, who had also arrived and parked his marked patrol vehicle, walked toward defendant.
Defendant put on his helmet and drove the motorcycle toward the officers. As defendant approached, Petersen and Jones, who were both in full uniform, pointed their flashlights at defendant and yelled, "Stop," to prevent him from coming within 100 yards of Monique's house. Defendant accelerated and kept going. The deputies ran back to their patrol cars. Petersen drove to a nearby intersection and waited, listening for the sound of defendant's motorcycle. When he heard it, he followed the sound and, after approximately a half mile, spotted the motorcycle ahead of him. Petersen attempted to catch up to defendant, traveling about 65 miles per hour with his overhead lights and siren activated.
Meanwhile, Deputies Matthew McKim and John Halk, both in full uniform and both driving marked patrol cars, joined in the pursuit with their overhead lights and sirens activated. McKim estimated defendant was going "60 or 70 miles per hour" as he sped through a stop sign in a residential area. Defendant failed to stop at another stop sign further down the road. Halk observed defendant driving at a high rate of speed and running through a stop sign while being chased by the other deputies through a "densely populated residential neighborhood."
Defendant eventually stopped and, after some direction from Deputy Petersen, stepped off his motorcycle. As Petersen obtained identifying information from defendant, including his telephone number, he noticed defendant had bloodshot and glassy eyes, slurred speech, and was emitting a strong odor of alcohol. Suspecting defendant was under the influence of alcohol, Peterson called the California Highway Patrol (CHP) to conduct a DUI evaluation.
CHP Officers Darrell Whitebear and Rafael Friend responded to Deputy Petersen's request and transported defendant to jail to conduct the DUI evaluation. While in transport, defendant acknowledged having violated the restraining order and said he ran from the deputies because he was afraid. At jail approximately 30 to 45 minutes later, Whitebear observed that defendant smelled of alcohol, had slurred speech and red, watery eyes, and appeared to be "extremely intoxicated." Defendant agreed to perform some field sobriety tests. Whitebear conducted four tests: horizontal gaze nystagmus, one-legged stand, Rhomberg, and preliminary alcohol screen. Defendant's test results were consistent with someone who was impaired due to alcohol consumption. In particular, defendant's BAC content was 0.241 percent at 2:50 a.m. and 0.272 percent at 2:53 a.m. Defendant also took the Drager breath test, which revealed a BAC of 0.26 percent at 3:00 a.m. and 0.27 percent at 3:03 a.m.
Based on defendant's unsatisfactory performance in the field sobriety tests, Whitebear formed the opinion that defendant was indeed under the influence of alcohol and unable to safely operate a vehicle, although he was able to carry on a coherent conversation.
Matthew Nakayama, a criminalist with the Sacramento County District Attorney's Office, Laboratory of Forensic Services, testified that, at a BAC of 0.08 or greater, "all individuals are impaired for the purposes of driving." He opined that a person with a BAC of 0.26 percent would not be able to safely operate a motor vehicle. Given a hypothetical with a 155-pound man having a BAC of 0.26 percent at 3:00 a.m., Nakayama opined that that person would have had "approximately ten-and-a-half drink equivalents in his system at the time of the test." He further opined that, if the same hypothetical man had not been drinking for over an hour prior to the test, that man would have had a 0.29 percent BAC at 1:30 a.m. Finally, he opined that there was "a very low possibility" that the hypothetical man could have had a BAC below 0.08 percent at 1:30 a.m. and have a 0.26 percent BAC one and a half hours later, at 3:00 a.m.
LEGAL PROCEEDINGS
Defendant was charged by amended consolidated information with evading a peace officer (Veh. Code, § 2800.2--count one), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)--count two), driving while having a BAC of 0.08 percent or more (Veh. Code, § 23152, subd. (b)--count three), five counts of misdemeanor violation of a protective order (Pen. Code, § 273.6, subd. (a)--counts four, five, six, eight, and nine), misdemeanor battery on a spouse (Pen. Code, § 243, subd. (e)(1)--count seven), and misdemeanor driving when privilege suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)--count 10). The information alleged defendant committed counts two and three within 10 years of a previous conviction for driving under the influence of alcohol. (Veh. Code, § 23152, subd. (b).)
On the first day of jury trial, the trial court granted the prosecution's motion to dismiss count 10 in the interest of justice. The court also granted defendant's motion to bifurcate the prior DUI conviction allegations, and defendant waived a jury trial as to those allegations. Following a two-day trial, the jury found defendant guilty on all but one count, acquitting him on count seven. In a bifurcated proceeding, the court found true the two prior DUI conviction allegations.
The trial court suspended imposition of sentence and placed defendant on five years of formal probation subject to specified terms and conditions, including 364 days in county jail and a waiver of all credit for time served.
Defendant filed a timely notice of appeal.
DISCUSSION
CALCRIM No. 3426, in its entirety, provides as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with <insert specific intent or mental state required, e.g., 'the intent to permanently deprive the owner of his or her property' or 'knowledge that . . .' or 'the intent to do the act required'>. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of <insert first charged offense requiring specific intent or mental state> the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with <insert specific intent or mental state required, e.g., 'the intent to permanently deprive the owner of his or her property' or 'knowledge that . . .'>. If the People have not met this burden, you must find the defendant not guilty of <insert first charged offense requiring specific intent or mental state> [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose. [Voluntary intoxication is not a defense to <insert general intent offense[s]>.]"
Defendant contends the trial court violated his federal and state constitutional rights to due process and a fair trial by failing to instruct the jury with a complete version of CALCRIM No. 3426, that is, by using an instruction that did not include the instruction that voluntary intoxication is to be considered in conjunction with the prosecution's burden of proof beyond a reasonable doubt. He claims that, as a result of the error, the burden was shifted to him to prove that his voluntary intoxication affirmatively removed his specific intent to evade a peace officer (count one).
The People argue that, even assuming the trial court erred, defendant suffered no prejudice. We agree with the People.
A trial court has a sua sponte duty to instruct the jury on the essential elements of an offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) In addition, " '[a] court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citation.]' " (People v. Moon (2005) 37 Cal.4th 1, 25; accord People v. Breverman (1998) 19 Cal.4th 142, 154.)
"On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30; accord People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record. [Citation.]" (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].)
"The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Background
With regard to voluntary intoxication, the court and counsel for the parties spent some time discussing when CALCRIM No. 3426 should be given in relation to the other instructions. Defendant did not object at any time to the content of the proposed jury instruction.
The trial court instructed the jury with the following version of CALCRIM No. 3426: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent to evade a peace officer. [¶] A person is ' voluntarily intoxicated' if he or she becomes intoxicated willingly by using any intoxicating drug, drink, or other substance, knowing it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to Counts 2 through 9."
After the first several hours of deliberation, the jury submitted the following question: "Is there a legal definition of intent? Does voluntary intoxication impact ability to form intent?" Before receiving a response, the jury submitted a request for the "[d]efinition of general intent vs. specific intent beyond what is included on pg 20 of instructions?"
The court provided the following response:
"There are two different kinds of intent.
"(1) Specific intent, which is the intent to accomplish some goal through the commission of an act.
"(2) General intent, which is the intent to do a prohibited act.
"The crime charged in Count 1 of this case [2800.2(a) of the California Vehicle Code; Evade a Police Officer--Driving in a Reckless Manner] requires proof of the union, or joint operation, of act and wrongful intent.
"For you to find a person guilty of the crime charged in Count 1, that person must not only intentionally commit the prohibited acts of failing to yield to a police officer and driving with willful or wanton disregard for the safety of persons or property, but must do so with the specific intent to evade.
"The specific intent required for the crime of evading a peace officer as charged in Count 1, is the intent to evade. Voluntary intoxication could impact or affect a person's ability to form specific intent.
"It is up to you to decide the facts necessary to answer the question in this case. You should read instruction #3426 on page 36 of your instructions to guide your deliberations on this point.
"The other crimes charged require only general intent or the intent to do the prohibited act. Voluntary intoxication is not a defense to those crimes."
The next communication from the jury stated: "After several votes & much discussion, we have not been able to come to a unanimous decision on one charge." The court provided the following response: "Is there any assistance that the Court could provide to help you?" The jury sent the following communication: "In response to the Court's previous question, we do not believe there is any additional assistance the Court can provide. We are divided on the issue of specific intent." The court responded by instructing the jury pursuant to CALCRIM No. 3551, which instructed to continue to deliberate.
After continued deliberation, the jury asked the following question: "Can intent to evade be formed before the other components of evading a peace officer (lights, sirens, etc.) are met? I.e., could intent be established at Bishop?" The court returned the following response: "The specific intent to evade, as it applies to Count 1 can be formed at any time before the prohibited act is complete. However, it must still be present at the time all of the other components or elements (lights, sirens, etc.) are met." Shortly thereafter, the jury notified the court that it had reached verdicts on all counts.
As a preliminary matter, defendant contends his claim was not forfeited for failure to object at trial because his substantial rights were affected by the instructional error.
" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) However, the failure to object to an instruction in the trial court does not waive a claim of error where "the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. (Pen. Code, § 1259; People v. Arredondo (1975) 52 Cal.App.3d 973, 978; accord, People v. Rivera (1984) 162 Cal.App.3d 141, 146.)" (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Addressing defendant's challenge on the merits, we determine there has been no miscarriage of justice.
Here, the trial court omitted the following language from pattern jury instruction CALCRIM No. 3426: "In connection with the charge of [evading a peace officer] the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with [the specific intent to evade]. If the People have not met this burden, you must find the defendant not guilty of [evading a peace officer]." Defendant contends this shifted the burden to him to prove he did not have the required specific intent due to his voluntary intoxication.
The omitted language identifies the prosecution's burden of proof of the specific intent element of the offense of evading a peace officer beyond a reasonable doubt. As the People correctly point out, the jury was otherwise instructed on that point, as well as the People's burden of proof generally, and necessarily found defendant had the specific intent to evade the pursuing peace officers.
CALCRIM No. 103 instructed that the People must "prove a defendant guilty beyond a reasonable doubt," and that such determination required the jury to "compare and consider all the evidence that was received throughout the entire trial." CALCRIM No. 252 instructed the jury, in part, with the following language: "The following crime requires a specific intent: 2800.2(a) VC, evade police officer--driving in a reckless manner as charged in Count One. For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime." CALCRIM No. 2181 instructed the jury with the elements of the charge of evading a peace officer, including that defendant, "who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer." The jury was also instructed with CALCRIM No. 200 to pay careful attention to all of the instructions and "consider them together."
The jury necessarily resolved the issue against defendant under other instructions. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165, citing People v. Stewart (1976) 16 Cal.3d 133, 141 [factual question posed by omitted instruction was necessarily resolved adversely to defendant under other properly given instructions].) Thus, even if we were to assume the court erred in failing to instruct the jury with a complete version of CALCRIM No. 3426, we find the instructional error harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836-837 [reversal required only if it is reasonably probable the jury would have returned a different verdict absent the error]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] [error is prejudicial unless it can be deemed harmless beyond a reasonable doubt].)
Defendant claims CALCRIM No. 3426 was misleading or ambiguous and there was a reasonable likelihood the jury misconstrued or misapplied its language. Any confusion the jury may have had regarding the issue of voluntary intoxication as applied to the charge of evading a peace officer was dispelled by the trial court's responses to various jury questions submitted during deliberation, as well as counsels' closing arguments.
For example, in response to questions regarding the "legal definition of intent," the impact of voluntary intoxication on one's ability to form intent, and the "[d]efinition of general intent vs. specific intent," the court provided definitions of specific and general intent and reiterated that, in order to find defendant guilty of evading a peace officer, the jury would have to find defendant not only intentionally committed the acts but did so "with the specific intent to evade." The court further responded that "[v]oluntary intoxication could impact or affect a person's ability to form specific intent," reminding the jury that it was their duty to decide the facts necessary to answer that question. Thereafter, the jury communicated that it was divided on the issue of specific intent. After being instructed to continue deliberation, the jury asked if intent to evade could "be formed before the other components of evading a peace officer (lights, sirens, etc.) are met? I.e., could intent be established at Bishop?" The court responded that the specific intent to evade could be formed "at any time before the prohibited act is complete," but "must still be present at the time all of the other components or elements (lights, sirens, etc.) are met." With the court's responses in mind, the jury was then able to finish deliberating. Defendant does not argue the court's responses to the questions posed by the jury were incomplete or incorrect.
Moreover, the prosecutor, in her closing argument, reiterated her burden of proof as to the evasion charge. The prosecutor told the jury: "But the evasion, in order to find the defendant guilty, I have to prove to you that a police officer, driving a motor vehicle, was, in fact, persuing [sic] the defendant; and that the defendant was also driving a motor vehicle, and he willfully fled or tried to elude the officer, intending to evade the officer. . . ." After arguing the evidence in that regard, including whether defendant saw the flashing lights on the pursuing patrol cars, the prosecutor continued: "I am going to talk a little more about why we know the defendant saw those lights and how we know he intended to keep going and evade those officers." She went on to argue defendant was "trying to bury his head in the sand and say, 'You know what? I was drinking. I couldn't hear anything. I couldn't see anything. Didn't know what was going on. I have these blinders on.' " "The defendant can hear and he can see the road. And what he wants you to believe is that he's drunk. He didn't know anything that was going on." Arguing defendant knew he was being pursued by the deputies, the prosecutor argued, "Once again, he [defendant] knows he's going to go to jail because he knows he just violated that restraining order and he has been drinking. He's making this conscious choice at that point to evade officers because he's scared of what is going to happen when they actually stop him, so he decides he is not going to stop and he is going to keep on going." The prosecutor further argued defendant was "able to answer questions," "coherent," "responsive to questions," "aware of what is going on," and he "is aware of his actions" and making "conscious choices." Finally, the prosecutor noted defendant did not ask questions about the field sobriety tests and he understood what was going on.
Similarly, defendant's counsel, in his closing argument, reminded the jury that the prosecutor "has to go through every single count with every single element and show why [defendant] is guilty of the charges because it is her burden of proof on that." With regard to the charge of evading a peace officer, defendant's counsel argued, "So what is in dispute? That he [defendant] willingly tried to evade the officers, intending to evade the officers? That's really what this charge is about and really what the evidence is about." With regard to the defense of voluntary intoxication, counsel argued, among other things, "You'll get another instruction on intoxication and that you may consider it only for one purpose, and that one purpose that you can consider it for is could he form or did he formal [sic] that specific intent to flee? And I use that word because that is actually a specific intent for that crime. . . . Evading, you have to have a specific intent to evade, and not any other intent. He has to be intending to evade. Essentially a specific intent is: Was there a plan to do something? That's really kind of what specific intent is about: I really intended to evade; I really intended to get away. And you can use that mental acuity that he had from his intoxication to figure out whether he could have even come up with that plan." After spending significant time on the impact of defendant's intoxication on his ability to form the specific intent to evade the deputies, defendant's counsel argued: "What we do know is there is no evidence, no reasonable conclusion that you can come to from the evidence, that he did intend to evade because for that 32-second period of time he didn't do anything different than he was doing before that, which is going way too fast in an unsafe manner on a motorcycle in the street. But that's not an intent to evade. That's not an intent to lead somebody on a chase. It is just not. [The prosecutor] has not proven beyond a reasonable doubt that he did this. You have to find him not guilty of the charge because it is just not a reasonable interpretation of the circumstantial evidence."
During closing rebuttal, the prosecutor reiterated her duty "to prove to you all the elements of every single crime," and that the standard of proof was beyond a reasonable doubt.
Under the totality of the instructions given, in conjunction with the trial court's responses to questions and counsels' closing arguments, the jury was told that in order to find defendant guilty of evading a peace officer, it had to find defendant had the specific intent to evade the officers, that the People had to prove all elements of the crime beyond a reasonable doubt, and that all of the instructions should be considered together.
Similarly, where "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for [specific intent to evade a peace officer], the erroneous [voluntary intoxication] instruction was harmless." (People v. Chun (2009) 45 Cal.4th 1172, 1205.) There was significant evidence of defendant's level of intoxication at the time of his arrest. Deputy Petersen observed defendant had bloodshot and glassy eyes, slurred speech, and was emitting a strong odor of alcohol. Officer Whitebear observed that defendant smelled of alcohol, had slurred speech and red, watery eyes, and appeared to be "extremely intoxicated." Defendant performed poorly at all four sobriety tests, had a BAC of 0.241 percent at 2:50 a.m. and 0.272 percent three minutes later, and took an additional test revealing a BAC of 0.26 percent at 3:00 a.m. and 0.27 percent three minutes later. Officer Whitebear formed the opinion that defendant was under the influence of alcohol and unable to safely operate a vehicle, but was able to carry on a coherent conversation. Criminalist Nakayama opined that "all individuals [having a BAC of 0.08 percent or greater] are impaired for purposes of driving," and a person with a BAC of 0.26 percent would not be able to safely operate a motor vehicle.
There was also significant evidence that, despite his level of intoxication, defendant willfully attempted to evade the pursuing officers. Sitting on his motorcycle some distance from Monique's house, defendant saw Deputies Petersen and Jones in full uniform, put on his helmet, drove towards the deputies, and accelerated past them as they pointed their flashlights at him and yelled, "Stop." The deputies gave chase in their marked patrol cars, lights flashing, and sirens activated. Petersen eventually spotted defendant's motorcycle some distance ahead of him and pursued defendant at a high rate of speed. Deputies McKim and Halk, also in full uniform and in marked patrol cars, joined in the pursuit with their overhead lights and sirens activated. McKim and Halk both testified defendant was driving at a high rate of speed and running stop signs in residential neighborhoods to avoid pursuing officers. Once apprehended, defendant acknowledged he had violated the restraining order and stated he ran from the deputies because he was afraid.
Defendant argues there was significant evidence he did not intend to evade police, including the fact that his BAC was "extraordinary," he was riding a noisy motorcycle and helmet which limited his vision and hearing, he stopped quickly after Deputy McKim began to follow him, he did not attempt to evade by turning on cross-streets, there was "no clear burst of acceleration" away from the pursuing officers, and the fact that the officers did not see brake lights when attempting to stop him might have been due to defendant "downshifting gears on the motorcycle to stop safely." However, the jury's verdict reflects that the jury either did not believe or was not persuaded by defendant's testimony in that regard. "The credibility of witnesses and the weight accorded the evidence are matters within the province of the trier of fact." (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207.) We " 'must accept logical inferences that the [trier of fact] might have drawn from the evidence even if [we] would have concluded otherwise. [Citation.]' [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the trier of fact's finding.]' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The evidence both of defendant's level of intoxication and his efforts to avoid the pursuing authorities leaves no reasonable doubt that the jury made the requisite findings regarding the specific intent required to convict defendant of evading a peace officer pursuant to Vehicle Code section 2800.2.
Defendant relies on Francis v. Franklin (1985) 471 U.S. 307 (Francis) to support his claim that the incomplete version of CALCRIM No. 3426 had the effect of relieving the prosecution of its burden of proof as to voluntary intoxication and special intent. There, the jury was properly instructed on the prosecution's burden of proof beyond a reasonable doubt, but was also instructed on the dispositive issue of intent that "[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted," and "[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted." (Francis, supra, 471 U.S. at pp. 311, 319 [85 L.Ed.2d at pp. 351, 356].) The jury returned a verdict of guilty. (Id. at p. 312 .) Stating that "[t]he federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts," the United States Supreme Court held the challenged instruction "could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption" and thus "created an unconstitutional burden-shifting presumption with respect to the element of intent." (Id. at pp. 316-318, 325 [85 L.Ed.2d at pp. 354-356, 360].)
Francis is distinguishable. Unlike the conflicting instructions given in that case, the jury here was consistently instructed that the prosecution had the burden of proof beyond a reasonable doubt as to each and every element of the charged crime. In the absence of a contrary or conflicting instruction, or one such as that in Francis which stated or suggested an evidentiary presumption that had the effect of relieving the state of its burden of proof, any error in omitting language from CALCRIM No. 3426 regarding the prosecution's burden of proof was harmless under any standard.
Finally, defendant claims any doubts regarding prejudicial error should have been resolved in his favor because the jury considered this to be a close case, as evidenced by the fact that the jurors took seven hours to deliberate after nine hours of testimony, requested additional guidance and clarification regarding the intent element, and deadlocked at one point during deliberations. (People v. Von Villas (1992) 11 Cal.App.4th 175, 249.) We disagree that the jury's requests for clarification, which lengthened the deliberations, or the fact that they were temporarily deadlocked indicates this was a close case. There were a number of counts to consider, as well as evidence from a number of trial witnesses. The time taken to deliberate and the specificity of the questions asked by the jury more likely demonstrates the jury's careful consideration of the evidence and the seriousness with which the jurors set about reaching their verdicts.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MAURO, J. HOCH, J.