Opinion
D057596 Super. Ct. No. SWF026493
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY PINTO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Donald G. Umhofer, Judge. Affirmed.
A jury convicted David Anthony Pinto of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and found true (1) the offense was willful, deliberate and premeditated (§189), (2) he inflicted great bodily injury in circumstances involving domestic violence (§ 12022.7, subd. (e)); and (3) he personally used a deadly weapon (a knife) (§ 12022, subd. (b)(1)). Pinto subsequently admitted the allegation he had a prior conviction for robbery. The court sentenced Pinto to prison for an indeterminate term of 14-years-to-life consecutive to a determinate term of five years. The court also imposed, among other fines, $5,569.76 in victim restitution.
Statutory references are to the Penal Code unless otherwise specified.
Pinto appeals, contending the court erred when it provided a supplemental instruction to the jury. Pinto also argues the amount of restitution is not supported by substantial evidence. We affirm.
FACTUAL BACKGROUND
Because the facts related to each claim are different, we report the facts pertinent to each claim of error in the discussion section of this opinion. By way of brief background, we provide the basic facts of Pinto's crime.
Pinto and Sandra Byrd enjoyed a romantic relationship. One night, Byrd invited Pinto to her apartment for dinner. At some point during the evening, Pinto became angry. Byrd asked Pinto to leave, which he did.
Pinto returned to Byrd's apartment later that night and stabbed Byrd multiple times with a kitchen knife while she was lying in bed. Byrd struggled against Pinto and eventually was able to get off the bed when she fell to the floor. Pinto got on top of Byrd and began strangling her. Pinto eventually stopped choking Byrd, and Byrd promised she would not tell the authorities what Pinto did if he left her apartment. Pinto left.
At trial, Pinto conceded he had attempted to murder Byrd, but argued he did not act with deliberation.
DISCUSSION
I
THE JURY'S QUESTIONS AND THE COURT'S WRITTEN RESPONSE
A. Background
After deliberating a day and a half, the jury said it had reached a verdict. The jury, however, did not reach a verdict on the allegations the attempted murder was willful, premeditated, and deliberate, and did not sign any verdict form regarding those allegations. The court asked the jury about the absence of the form. The foreperson explained the jury could not reach a decision on the allegations. The court asked if the foreperson thought more time would allow the jury to reach a unanimous decision of the allegations, to which the foreperson responded, "Yes." The court then asked if more instruction would assist the jury in reaching a decision, and a few of the jurors acknowledged further instruction might be helpful.
The court told the jurors to retire to the jury room and formulate a question for the court. The jury then resumed deliberations. At that time, the People noted there did not appear to be a minority position within the jury: "And from the shaking of their heads, it doesn't look like it's 11 to 1. . . . They were all over the place."
The jury asked the court two questions:
"Do we need to find guilty or not guilty on the three allegations [the attempted murder was willful, deliberate, and premeditated] or can we be hung on only the three allegations and still charge the defendant with attempted murder[?]
"Sir we need a clearer definition of deliberation to help distinguish the difference between deliberation and premeditation[.]"
After consulting with trial counsel by telephone, the court proposed to answer the first question by stating it was the jury's duty to try to reach a verdict on the charge and three additional allegations. It proposed responding to the second question by reciting the CALCRIM No. 601 definition of deliberation and a definition of premeditation, underlining the words "deliberate," "premeditate," and "before" in the definitions to emphasize the temporal distinction. The court did not advise counsel in advance that it intended to underline the word "and" in response to the first question.
Pinto's counsel objected to the proposed response to the first question and requested an additional sentence that each special allegation must be proved beyond a reasonable doubt. Both parties wanted the court to tell the jury it could find a verdict on attempted murder without a finding on the three related allegations. The court declined both requests.
The court provided the following written response to the jury's questions:
"It is your duty to try to reach a verdict on [the] charge of attempted murder and the three additional allegations. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting."The response was the same as what the court discussed with counsel, except the court underlined the word "and" in the first sentence.
The court later explained that, in providing the written response, it was relying in part on the fact the jury had already been instructed with CALCRIM No. 3550, which informs the jurors of their duty to talk and deliberate together, to reach an individual decision on each count and allegation after discussion with the other jurors and consideration of the evidence.
The jury reached its verdict a little more than 30 minutes after it received the court's written response. The jury found the attempted murder was willful, deliberate, and premeditated.
B. The Court's Written Response to the Jury's First Question
Pinto contends the court's written response to the jury violated sections 1138 and 1140. Pinto also contends the court's written response violated his federal due process rights to an impartial jury and fair trial. Finally, Pinto insists the court violated section 1138 and the Sixth Amendment by underlining the word "and" in the written response without notice to the parties. We reject each contention.
1. Section 1138
When a jury asks a question after retiring for deliberation, "[s]ection 1138imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) But "[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.) We review for an abuse of discretion any error under section 1138. (People v. Waidla (2000) 22 Cal.4th 690, 746-747.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
While the jury asked the court two questions, here we are only concerned with the first question: "Do we need to find guilty or not guilty on the three allegations or can we be hung on only the three allegations and still charge the defendant with attempted murder[?]" The court's response was to remind the jury of its duty to try to reach a verdict on all the allegations: "It is your duty to try to reach a verdict on [the] charge of attempted murder and the three additional allegations." Pinto argues the court's response failed to answer the jury's question. Pinto also contends the response was materially incomplete because it failed to remind each jury member of his or her duty to make an individual determination. We disagree on both contentions.
Although a more complete response perhaps could have included a qualifier, "if you can," we are not convinced the court abused its discretion in providing its answer to the jury's first question. The court simply reminded the jury of its duty to try to reach a verdict on the charge and all allegations. Moreover, the court's use of the word "try" in its response only highlights the jury's duty to attempt to reach a unanimous verdict while making it clear the jury does not have to do so. Otherwise stated, the jury could convict Pinto of attempted murder, but not reach a unanimous decision on the three related allegations. It is not reasonable to interpret the court's written response as forcing the jury to reach a unanimous decision. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].) The court did not violate section 1138 in responding to the jury's first question.
2. Section 1140
Pinto argues the court improperly coerced the jury to reach a verdict in violation of section 1140. We are not persuaded.
Section 1140 allows the court to discharge the jury after it has rendered its verdict, "unless, at the expiration of such time as the court may deem proper, it satisfactorily appears there is no reasonable probability that the jury can agree." Under section 1140, a court has discretion to determine when a jury is truly deadlocked. (People v. Whaley (2007) 152 Cal.App.4th 968, 979-980; see also People v. Rojas (1975) 15 Cal.3d 540, 546.)
Section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."
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Here, Pinto's reliance on section 1140 is misplaced. The foreperson indicated his belief that the jury could reach a unanimous verdict if given additional time to deliberate. There is nothing in the record that leads us to believe there was no "reasonable probability that the jury" could reach a verdict on the allegations. In fact, the jury did so shortly after receiving the court's response to its questions. Moreover, as we will discuss, the court's response did not improperly coerce the jury to reach a unanimous verdict.
3. Pinto's Federal Due Process Right to an Impartial Jury and a Fair Trial Pinto argues the court's written response to the jury's first question violated his due process rights to an impartial jury and fair trial because it tended to coerce the jury to make a finding as to whether the attempted murder was willful, deliberate, and premeditated. Essentially, Pinto insists the court's written response was a dynamite charge that unfairly coerced the jury to reach an agreement. (See People v. Gainer (1977) 19 Cal.3d 835, 850-855 (Gainer).) We conclude it was not.
In Gainer, our Supreme Court addressed the instruction commonly called the Allen or dynamite charge, which the United States Supreme Court approved in Allen v. United States (1896) 164 U.S. 492 (Allen ). (Gainer, supra, 19 Cal.3d at pp. 842-844.) Our Supreme Court determined the "first and most questionable feature" of the Allen charge was "the discriminatory admonition directed to minority jurors to rethink their position in light of the majority's views." (Gainer, at p. 845.) The court disapproved the Allen charge because the instruction violated the defendant's right to a jury decision based upon the evidence and arguments presented at trial. (Gainer, at p. 848.) As the court later reiterated "[a] principal flaw in the Allen charge at issue in Gainer was that, by counseling minority jurors to consider the majority view, whatever it might be, the instruction encouraged jurors to abandon a focus on the evidence as the basis of their verdict." (People v. Rodriguez (1986) 42 Cal.3d 730, 768-769.) Additionally, the court determined the Allen charge violated the defendant's right under the California Constitution (Cal. Const., art. I, § 16) to a unanimous verdict of a jury of 12 persons because it encouraged the minority jurors to acquiesce in the verdict reached by the majority without exercising their independent judgment. (Gainer, at pp. 848-849.)
In disapproving the Allen charge, the court concluded "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. We adopt the foregoing as a judicially declared rule of criminal procedure." (Gainer, supra, 19 Cal.3d at p. 852, fn. omitted.)
Here, the court's written response does not fall within the same category as the instruction disapproved in Gainer. The court's written response did not improperly direct a deadlocked jury that it was required to reach a verdict. It did not place any constraints on an individual juror's responsibility to consider and weigh the evidence. It did not coerce the jurors into abdicating their independent judgment to majority jurors for expediency. It did not encourage jurors to look at the numerical split in determining whether to hold fast to their views of the evidence. It did not suggest that a failure to reach a verdict would result in an expensive retrial. (See People v. Brown (2004) 33 Cal.4th 382, 393; People v. Engelman (2002) 28 Cal.4th 436, 439-440.) Simply put, the court's written response here contains none of the fatal flaws identified in Gainer, supra, 19 Cal.3d 835.
Further, merely telling a jury it should try to reach a verdict is not coercive, especially on this record. The jury was properly instructed, including receiving CALCRIM No. 3550, which emphasizes a juror's individual role: "Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors." The jury requested additional instructions and indicated that if it was given additional time, it could reach a unanimous verdict. In addition, there was no evidence the jury was deadlocked 11 to 1 or 10 to 2. Instead, it appeared the jury "was all over the place." Simply put, nothing in the record leads us to conclude the court's written response coerced the jury.
Largely ignoring Gainer, supra, 19 Cal.3d 835, Pinto encourages us to follow Weaver v. Thompson (1999) 197 F.3d 359 (Weaver) and Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976 (Jiminez) in concluding the court's written instruction was coercive. We decline to follow either case.
As a threshold matter, we are not bound by the decisions of the federal courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Nevertheless, even if we consider these federal cases, both are distinguishable.
In Weaver, the jurors, not yet having reached a verdict on all counts, sent a note to the judge inquiring whether they must decide all counts. The note, moreover, was sent out at 8:30 p.m., after a full day of trial followed by four hours of deliberations. After departing to deliver the note to the judge, the bailiff returned and informed the jury it was required to return a verdict as to all four counts. Five minutes later, the jury reached guilty verdicts on all counts. (Weaver, supra, 197 F.3d at pp. 365-366.)
In contrast to Weaver, supra, 197 F.3d 359, here the court did not tell the jury it had to return a verdict on the charge and related allegations. Instead, the court reminded the jury that it was its duty to try to reach a verdict. Further, the jury here spent more time deliberating after it received the court's written response than the five minutes the jury deliberated in Weaver.
Jiminez, supra, 40 F.3d 976 offers no more help to Pinto than Weaver, supra, 197 F.3d 359. In Jiminez, after nearly five hours of deliberations, the jury stated it was unable to reach a verdict. The court inquired as to the number of votes taken and the results of the most recent vote. The foreperson responded that five or six votes had been taken and the most recent vote had a numerical division of 9 to 3. The judge then inquired as to whether there had been movement, and the foreperson said there had been movement in one direction. After a three-day weekend, the jury returned to its deliberations. Three hours later, the jury sent a note advising the court it was at an impasse. Both counsel agreed the jury was hung and the case should be set for retrial. However, the court inquired of the jury as to the numerical division and, upon learning it was 11 to 1, instructed the jurors to continue deliberating for the rest of the day. (Jiminez, at pp. 978-979.)
In holding the trial court's action amounted to an improper Allen charge, the Ninth Circuit Court of Appeals concluded the trial court sent, "a clear message that the jurors in the majority were to hold their position and persuade the single hold-out juror to join in a unanimous verdict, and the hold-out juror was to cooperate in the movement toward unanimity." (Jiminez, supra, 40 F.3d at p. 981.) The Ninth Circuit reasoned the trial court's instruction was implicitly coercive to the single juror who had not moved in the court's favored position, and thus, the defendant did not have the benefit of an impartial and unanimous jury and fair trial. (Ibid.)
Unlike Jiminez, supra, 40 F.3d 976, here the court's written response to the jury's first question did not implicitly approve the jury's movement in one direction. There also was no evidence in the record of a single holdout juror who was subjected to pressure to join the majority. Further, there was never a consensus that the jury was hung. Instead, the foreperson indicated the jury could reach a unanimous verdict if given additional time. Jiminez, thus is not instructive.
C. The Underlining of "And"
Pinto also claims the court's written response to the jury's first question violated section 1138 and the Sixth Amendment because the court underlined the word "and" without giving him the opportunity to object. We conclude Pinto's argument lacks merit.
The court did not inform the parties it would underline the word "and" in its response to the jury's first question. As such, Pinto did not have the opportunity to object to the underlining of "and," and Pinto argues his lack of opportunity to object is akin to instructing the jury without first notifying counsel. (See People v. Hawthorne (1992) 4 Cal.4th 43, 68; People v. Neufer (1994) 30 Cal.App.4th 244, 251-252.) We are not persuaded.
Here, the court told Pinto's counsel how it intended to respond to the jury's first question and allowed Pinto's counsel the opportunity to object. After hearing both parties' respective objections, the court provided the written response to the jury unchanged, except the court underlined the word "and" in the first sentence. The court did not add or omit any words from the response previously disclosed to the parties. It merely underlined an additional word.
Pinto has provided no case finding error under similar circumstances. Nor did we discover any such authority. Moreover, there is a substantial difference between instructing a jury without first notifying counsel and underlining an additional word in a written response to a jury's question after counsel had the opportunity to object to the substance of the written response. In the former, counsel does not have notice of the substance of the court's intended instruction. In the latter, counsel has notice of the intended instruction and is given an opportunity to object. The fact that the court subsequently, out of the presence of counsel, underlines a specific word does not minimize this difference. The underlining of the word "and" did not change the substance or meaning of the court's written response. And Pinto had the opportunity to object to the substance of the court's written response prior to the court providing it to the jury. No error occurred.
II
RESTITUTION
Pinto also argues substantial evidence does not support the court's restitution amount of $5,569.76. We conclude Pinto has waived this claim on appeal.
Here, the court set the restitution amount based upon the People's representation the victim filed a claim with the Victim Compensation Government Claims Board and was paid $5,569.76. The court imposed restitution, but stated Pinto was entitled to a hearing challenging the amount. The court further stated it was reserving jurisdiction for the hearing, which section 1202.46 permits.
A defendant challenging the amount of restitution can do so at a hearing. (§ 1202.4, subd. (f)(1).) The hearing often is held after the sentencing hearing. (See e.g., People v. Millard (2009) 175 Cal.App.4th 7, 19-20; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1541.) Here, Pinto failed to request a hearing to challenge the amount of restitution. We conclude his failure to request a hearing, after he was told he was entitled to one, waives this issue on appeal. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Foster (1993) 14 Cal.App.4th 939, 944; People v. McMahan (1992) 3 Cal.App.4th 740, 750.) Moreover, without a hearing on the amount of restitution, there is nothing in the record that allows us to evaluate the restitution amount.
III
CUMULA TIVE ERROR
Pinto contends the cumulative effect of the asserted errors rendered the trial so unfair as to violate his federal and state constitutional rights to due process warranting reversal of the judgment. Because we hold no errors exist, this cumulative error argument necessarily fails. (See People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
McDONALD, J.
O'ROURKE, J.