Opinion
E032683.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. REUBEN RENE QUEZADA, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Bradley A. Weinreb and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), kidnapping (Pen. Code, § 207, subd. (a)) (count 2), and battery ( § 242) (count 3). Defendant was thereafter sentenced to the mitigated term of three years in state prison on count 2 and concurrent terms on the other two counts. On appeal, defendant contends (1) the trial court erred in instructing the jury with CALJIC No. 17.41.1, and (2) the abstract of judgment and the courts minute order must be corrected to delete references to a sentence on counts 1 and 3. Because the trial court failed to properly pronounce a sentence on counts 1 and 3, we will remand the matter for that purpose. We reject defendants remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On January 31, 2002, defendant; his girlfriend, Monica Garcia; and Garcias 18-month-old son, Eddie, were driving around in Victorville. Garcia was driving her mothers car. In the course of an argument at a restaurant where they had stopped, defendant slapped Garcia in the face.
They continued to argue, and a short time later at a gasoline station, Garcia, who became afraid defendant was going to hit her again, ran out of the car and asked the cashier at the station to call 911 because her boyfriend was beating her up. The cashier made the call and handed Garcia the telephone. Defendant came into the store, and the cashier informed him that the police were on the way. Defendant took the telephone from Garcia and hung it up. He left the store, got into the car with Eddie still in it, and without Garcias permission drove away. Defendant drove to La Puente, where he left Eddie and the car with Eddies father.
At trial, defendant did not present any evidence on his behalf. However, Garcia recanted her statements to the police and was an unwilling witness for the prosecution. She claimed she gave defendant permission to take the car with Eddie still in it. She explained she told the police that she had not given defendant permission to take the car and her baby because she was upset at defendant. She denied defendant hit her.
II
DISCUSSION
A. CALJIC No. 17.41.1
For the first time on appeal, defendant contends the trial court erred in instructing the jury with CALJIC No. 17.41.1 because it violates his right to a fair trial; it threatens the privacy and impartiality of jury deliberations; it impinges on his right to a unanimous verdict; it has a chilling effect on the jurors; and it is essentially an antinullification instruction, which violates his right to an impartial jury.
CALJIC No. 17.41.1, as given to the jury, without any objection from defendant, in the instant case, states as follows: "The integrity of a trial requires that jurors, at all times during deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on the penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
We reject defendants contentions. Substantially similar and related arguments were considered and rejected by our Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 442-445 (Engelman). Accordingly, we reject defendants constitutional challenges.
We observe, however, that the Supreme Court, exercising its supervisory powers, directed that the instruction not be given in future trials. (Engelman, supra, 28 Cal.4th at p. 449.) It reasoned that the instruction creates an inadvisable and unnecessary risk "of intrusion upon the secrecy of deliberations or of an adverse impact on the course of deliberations." (Id . at p. 445.) The trial here, however, was held before Engelman was decided. Thus, the trial court did not err.
We note that defendants trial preceded the decision in Engelman, which was decided on July 18, 2002. Defendants jury trial was conducted in June 2002.
Defendant, however, claims this case is distinguishable from Engelman, because the jury sent the trial court a question inquiring if a juror could be excused. Jury deliberation began in the afternoon of June 6, 2002. At 4:20 that afternoon, the jury requested a readback of a witnesss testimony. The following day, jury deliberations recommenced at 9:20 a.m. The testimony previously requested was read back from 9:44 to 10:05 a.m. At 10:05, the jury sent the court a question concerning the elements of the unlawful taking of a vehicle. The court provided an answer to the question sometime after meeting with counsel at 10:41 a.m. At 11:39 a.m., the jury sent the court the following question: "Can a juror be excused because she feels she cannot follow the instruction (page 1) You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." (See CALJIC No. 1.00.) But, at 11:59 a.m., just 20 minutes later and before the court provided any response to the jurys question, the jury reached its verdicts.
It is clear the jury was referring to CALJIC No. 1.00 (respective duties of judge and jury), the first of the instruction given by the trial court.
Defendant claims "in these circumstances, there is a reasonable probability that the majority used the instruction to coerce the holdout juror to change her vote from not guilty to guilty." Hence, "there is a reasonable probability that the risks the Supreme Court recognized in Engelman have materialized." We reject these contentions.
Engelman did not turn on a harmless error analysis. Indeed, if it had, the court could not have made its holding prospective only. Rather, it held that "the instruction does not infringe upon defendants federal or state constitutional right to trial by jury . . . ." (Engelman, supra, 28 Cal.4th at pp. 439-440.) We are bound to follow this holding. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) Furthermore, there is no indication that CALJIC No. 17.41.1 affected the jurors deliberations in any way. Defendant is merely speculating. Thus, defendant has not shown that the instruction violated his constitutional rights in any of the claimed respects.
We conclude the trial court did not err by giving CALJIC No. 17.41.1.
B. Correction of Abstract of Judgment and Courts Minute Order
Defendant contends the abstract of judgment and the courts minute order of the sentencing hearing must be corrected to reflect that the court sentenced him only on count 2 (kidnapping). The People respond that, because the court clearly stated it would be imposing a concurrent mitigated prison sentence on count 1 (unlawful vehicle taking), there is no need to amend the abstract of judgment, which contains no reference to the sentence on count 3 (misdemeanor battery). The People further assert that in the interest of judicial economy they will agree that the sentencing hearing minute order, which reflects a sentence of 180 days for count 3, should be amended to reflect that no time in custody was imposed on that count. We disagree with both parties.
At the sentencing hearing, after the trial court heard argument from counsel and a statement from defendant, the court addressed defendant at length about its reasons for its sentencing choice. In pertinent part, the court stated, "But youre at a point where you really can do something to effect what youre going to do in the future, and its only because of your age that Im going to do what I consider is to show you extreme leniency by granting you the mitigated term which is three years. And I am going to run it all concurrent." (Italics added.) The court later declared, "For the reasons that I stated, I am going to order that probation is denied, and I am sentencing you to the state prison for a period of three years. [P] For violation of Count 2, kidnapping in violation of Section 207(a) of the Penal Code as a felony, three years is mitigated term. . . . [P] I will order that everything be concurrent. The reason I am ordering it all be served concurrent is because all facts arise out of the same actions. . . ." (Italics added.)
Defendant claims that from the foregoing summary, "it is clear the court imposed sentence only on Count 2," and therefore the courts sentencing minute order and abstract of judgment must be corrected to reflect the courts oral pronouncement. We disagree.
As defendant points out, " . . . rendition of judgment is an oral pronouncement." (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal. Rptr. 473, 535 P.2d 337.) In pronouncing judgment, the trial court must make it clear the defendant is sentenced. (See, e.g., id. at p. 472.) A trial courts silence is regarded as an acquittal or a finding of not true. (Ibid .) Here, however, the trial court was not silent. It is clear that the court imposed a sentence on counts 1 and 3; it ran those counts concurrent to count 2. The court also made it very clear that it intended to sentence defendant on a mitigated term. The court made an oral pronouncement. Therefore, it cannot be said that the court was silent on counts 1 and 3. Neither can it be said that the court did not make an oral pronouncement on those counts. Although it appears the court intended to impose the mitigated term on counts 1 and 3, out of an excess of caution, we believe a remand is necessary for the court to properly impose sentence on counts 1 and 3.
III
DISPOSITION
The matter is remanded for the trial court to properly impose a sentence on counts 1 and 3. Following resentencing, the abstract of judgment and the courts minute order of the resentencing hearing is to reflect the sentence imposed on counts 1 and 3. The trial court is thereafter directed to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections. ( §§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.