Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09WF2513 Gregg L. Prickett, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted defendant Tuan Anh Mai of first degree residential burglary (Pen. Code, §§ 459-460, subd. (a); all statutory references are to the Penal Code unless noted). We appointed counsel to represent Mai on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised this court he found no issues to support an appeal. We provided Mai 30 days to file his own written argument. That period has passed, and we have received no communication from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we conclude there is no basis to reverse the judgment.
On the morning of December 3, 2009, Nancy Ralsten left her home at 15691 Poinsettia Way in Westminster and told her son Justin to set the house alarm when he left for school. Justin testified he set the house alarm and left for school at 7:15 a.m. At approximately 10:00 a.m., Cody Riechers, a neighbor, heard the Ralsten’s house alarm go off. He looked out his garage window and saw two Asian men walking from the Ralsten home. The men then ran to a light-colored, two-door sedan across the street and drove off. Riechers phoned his father and the police.
Westminster Police Officers Ramirez and Ingwerson responded. According to Ramirez, the bathroom window at the back of the house was open and the screen was off and lying on the ground outside. The rear sliding glass door was open about a foot, the sliding screen door was still locked, and the front door, while closed, was unlocked. Investigators found dirt and shoeprints facing away from the bathroom window, and lifted two shoeprints from the master bathroom.
Another neighbor, Danny Vasquez, saw the men drive away and recorded the license plate number. Ramirez ascertained the plate was assigned to a white Hyundai Tiburon registered to a Tiep Hien Mai at 2410 Lori Lane in Santa Ana. Mai had previously received a traffic citation while driving the vehicle.
Detective Kapp conducted a photo lineup with Riechers. Riechers identified Mai, who was the fifth person in a lineup of six, declaring he was 75 percent certain of his identification. Two days later, Kapp spoke with Mai outside the Lori Lane residence. Kapp asked Mai where he was on December 3, and received conflicting responses. Mai first stated he was working or at home, but later said he was tutoring a friend named Haoa Nguyen. Kapp arrested Mai.
Kapp spoke with Haoa Nguyen, who told Kapp he had last seen Mai at his house a week or two earlier. He could not be sure whether it was in the morning or afternoon. Nguyen explained he recently had brain surgery and his memory was poor.
Xuyen Nguyen, Haoa’s father, testified Mai arrived at his house around 8:30 a.m., which conflicted with his prior testimony Mai had arrived an hour earlier. Xuyen Nguyen left to purchase insurance at 9:00 a.m., and when he returned between 12:30 p.m. and 1:30 p.m., Mai was no longer at the house. Xuyen had difficulty determining which day of the week Mai visited his home.
Vasquez also selected Mai from a photographic lineup, stating he was 50 percent certain. He identified Mai’s vehicle with 100 percent certainty. The imprints of Mai’s shoes were consistent with the prints collected at the Ralsten home. Mai informed Kapp his shoes were two weeks old and he had been the only person wearing them during that time.
Following a trial in August 2010, the jury convicted Mai as noted above. In October 2010, the trial court sentenced Mai to four years in state prison.
Discussion
Counsel identifies one potential issue appearing in the record: Whether the trial court exercised undue influence over the jury after it declared it was deadlocked.
Jury Impasse
After two days of deliberation, the jury informed the court it had reached an impasse. The court inquired into the numerical split of the jury without asking “in what direction the numbers are going.” The jury foreman informed the court there had been movement toward a verdict and the last vote was 11-1. The court advised the jury it could not assist in interpreting the facts, but could assist on an issue regarding the law. One juror asked for assistance defining reasonable doubt, but the court said it could not provide a further definition. The court then stated it was “going to ask that you go back into the jury room and discuss the various questions that I’ve asked, because I’ve asked enough that perhaps in looking at your faces, perhaps if you could just spend five more minutes saying do we, any of us, think that because for that –– if it is fine. If it’s not, that’s fine too. I’m not in any way trying to say what you should do. [¶] But in light of what I’ve said, just kind of look at some of your faces, some of the questions that you’ve asked, perhaps there is something more that we can do or some other options. If so, feel free to ask them of me. But if not, then that’s okay, too.” The jury retired for further deliberation and announced it had reached a verdict about 25 minutes later.
Rule 2.1036 of the California Rules of Court provides that after a jury reports it has reached an impasse, a trial judge may in the presence of counsel “advise the jury of its duty to decide the case based on the evidence while keeping an open mind and talking about the evidence with each other.” The judge should “ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict.” The judge may also “(1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures.” (Cal. Rules of Court, rule 2.1036(b).)
The trial court’s actions here complied with rule 2.1036 of the California Rules of Court and with case law on jury impasse. The judge confined his inquiry to numerical division and trend, and did not attempt to learn how the jurors stood on guilt and innocence. (People v. Rodriguez (1986) 42 Cal.3d 730, 768.) The judge attempted to assist the jury in questions of law, refrained from commenting on questions of fact, and proceeded cautiously. The judge’s remarks were not coercive and did not direct the jury to consider extraneous or improper factors. (See People v. Butler (2009) 46 Cal.4th 847, 880-885; People v. Gainer (1977) 19 Cal.3d 835 [disapproving instructions suggesting minority jurors rethink position, case must be decided, or highlighting expense of retrial].) Finally, the court properly did not attempt to further define the concept of reasonable doubt. (People v. Freeman (1994) 8 Cal.4th 450, 503–504 [varying from the standard reasonable doubt instruction is a “‘perilous exercise’”].) The trial court did not exercise undue influence over the jury. We discern no other arguable issues.
Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J.IKOLA, J.