Filed 8/29/17 P. v. Arroyo CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Abraham I. Arroyo guilty of first degree residential burglary (Pen. Code, § 459),[1] rape (§ 261, subd. (a)(2)), and robbery (§ 211), and found true an allegation the rape was committed during the commission of a first degree burglary with the intent to commit theft (§ 667.61, subd. (e)(2)). The jury found defendant not guilty of assault with intent to commit oral copulation, but found him guilty of the lesser included offense of simple assault. (§ 240.) The trial court sentenced defendant to 15 years to life in state prison for the rape committed during the commission of a first degree burglary and stayed execution of defendant’s sentence on the remaining counts pursuant to section 654.

Defendant appeals, contending (1) there is insufficient evidence of penetration to support his rape conviction, (2) the trial court erred in permitting the prosecutor’s expert to opine that her medical findings were consistent with the victim’s sexual assault history, (3) the prosecutor engaged in misconduct during her rebuttal argument, and (4) the trial court erred in giving a “firecracker” instruction. We shall conclude that none of the contentions has merit and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution

In December 2013, Mona Doe lived by herself in an apartment on Power Inn Road in Sacramento. She sustained a spinal cord injury when she was three years old and lost the use of her legs. She uses a wheelchair to get around. She has a little bit of feeling below her waist. She knows when she has to use the restroom, and sexually she has feeling, “[n]ot a lot, but enough.”

Defendant lived in the same apartment complex as Mona, and she had seen him around. In the fall of 2013, defendant knocked on Mona’s door and asked if she was single. She told him she was going through a divorce, explained that she had to go, and closed the door. On another occasion, someone threw an object through the front window of her apartment. After calling the police, Mona went outside to look around and saw defendant, who acted concerned about her window being broken. A few days prior to December 21, 2013, defendant came to her door and asked for a lighter. She said she did not have one and closed the door.

At approximately 1:00 a.m. on December 21, 2013, Mona got up to use the bathroom. Before she could return to bed, she heard someone banging on her front door. When she asked who it was, she heard a man’s voice respond that he was from “maintenance.” She told him to go to the window so she could see who it was, and she immediately recognized the man as defendant. Defendant told her that she needed to sign something, and she told him to come back in the morning. He then resumed pounding on her door. As she attempted to call her brother, defendant came crashing through her front window. Mona began screaming and crying. Defendant grabbed her phone and put it in his pocket. He told her to “shhh” and said he just wanted to be with her. When Mona continued to scream and cry, defendant began hitting her in the face with his open hand.

Mona stopped screaming because she believed defendant was going to kill her. Defendant continued saying he wanted to be with her and displayed his penis about a foot in front of her face. Mona said, “No, I can’t do that,” and defendant put his penis away. Mona told defendant that he “didn’t have to do this” and that he “could leave right now” and she would not report him. She also offered him $10 (all the money she had) and her laptop if he left. Defendant declined and again told her that he wanted to be with her.

Defendant attempted to wheel Mona down the hallway towards her bedroom. She resisted by grabbing onto a table and a shelf and told him, “Not in my bedroom.” Defendant asked, “Where, where?” Mona responded, “I guess here,” meaning in the hallway. She did not want to have sex with defendant, but she had “no more fight in [her]” and was afraid that if she “didn’t do it, it would be worse.”

Defendant picked her up from her wheelchair and dropped her to the floor. He placed his hand over her mouth and nose, pulled his shorts down, ripped off her adult diaper, and pulled her thighs apart. He then climbed on top of her with his penis exposed and asked, “Is it in; is it in?” She guided his penis towards her vagina with her hand because “he was already hurting me enough and I didn’t want him to hurt me anymore or tear anything.” Defendant’s penis entered her vagina. She is able to “feel or have a sensation to know when a penis is inside of [her] vagina.” She felt pressure when his penis went inside of her. She explained that she had been married for 11 years and had sex many times during her marriage, so she was familiar with the sensation of a penis entering her body.

While defendant was on top of her with his penis inside her vagina, she heard a banging on her door. A security guard had been dispatched to her apartment to perform a welfare check following a report of a possible disturbance or fight. Defendant got up, and she told him to go out the back door. Defendant left out the back door, climbed the fence, and fled. The security guard entered Mona’s apartment through the broken window. Mona was screaming, “He raped me.” The security guard called for backup, and the police arrived about 15 minutes later.

Mona was taken to the hospital. She told a sheriff’s deputy in the emergency room that defendant put his penis in her vagina and started having sex with her. She later spoke to a sexual assault investigator and told the investigator that defendant put his penis in her vagina.

Dr. Angela Rosas, a pediatrician specializing in child abuse and adult sexual assault, examined Mona following the attack. She documented Mona’s medical history, assault history, and her own findings on the standard “923 form” used in adult sexual assault cases.[2] She completed the form as she interviewed and examined Mona. Dr. Rosas explained that the purpose of the assault history is not to get “a full chronology of events and everything that happened.” That is left to law enforcement. Patients are asked “brief questions with just general yes and noes to . . . guide us during the examination . . . .”

Mona told Dr. Rosas that defendant’s penis entered her vagina. Dr. Rosas examined Mona from head to toe and noticed bruising on her face, eye, eyelid, right forearm, and nape of her neck. Dr. Rosas opined that the bruising was consistent with how Mona described the attack. Dr. Rosas also examined Mona’s genitalia and did not find any injuries. Dr. Rosas explained that the lack of any injury was consistent with Mona’s history of assault because half of sexual assault patients have no medical findings on the genital exam. She acknowledged that the percentage of patients with observable injuries is higher for patients, like Mona, who are examined within 24 hours of the alleged assault.

Dr. Rosas did not conclude that Mona had been raped or that the history of sexual assault Mona had given was “completely accurate and truthful.” Rather, all she could say was “that the medical findings are consistent with the story that [Mona’s] given.” When asked if Mona ever complained of pain in her vaginal area during the examination, Dr. Rosas responded that Mona could not complain of pain in that area because she has no feeling as a result of her spinal cord injury.

Investigators located and arrested defendant two days after the assault. Police obtained a DNA sample from defendant’s penis; tests were inconclusive as to whether Mona’s DNA was in the sample. There was no sperm found on Mona’s vaginal or anal swabs.

B. The Defense

Defendant testified in his own defense at trial. On December 21, 2013, he was living with his girlfriend and four-year-old son. On the night in question, he drank a 12-pack of beer and some hard lemonade. He could not recall why he went to Mona’s apartment that night, but asserted that he did not go there to have sex with Mona. He remembered breaking the window and cutting his leg on the glass. When he entered Mona’s apartment, he only expected to “coversate” with her. He did not think about having sex with her until he sat on her couch. He acknowledged hitting Mona after she refused his advances. He knew Mona did not want to have sex with him and that his actions were wrong. When asked if his penis penetrated Mona, he responded, “I feel like it didn’t happen.” In an interview with investigators, defendant admitted having sex with Mona.

During his closing argument, defendant’s trial counsel admitted defendant was guilty of assault, attempted rape, and robbery, but urged the jury to acquit him of burglary and rape.

DISCUSSION

I

There Is Sufficient Evidence of Penetration to Support Defendant’s Rape Conviction

Defendant first contends “[t]here was insufficient evidence of sexual penetration to sustain [his] conviction of rape . . . .” He is mistaken.

In determining whether there is sufficient evidence, we must determine whether the evidence, and reasonable inferences to be drawn from the evidence, provides substantial evidence of each element of the charged crime. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) “ ‘In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (Id. at p. 139, quoting People v. Mincey (1992) 2 Cal.4th 408, 432.)

Section 261 defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under various situations, including intercourse accomplished against a person’s will by force, violence, duress, menace, or fear of immediate bodily injury. (§ 261, subd. (a)(2).) The requisite act of sexual intercourse must include an act of penetration. “Any sexual penetration, however slight, is sufficient to complete the crime” of rape. (§ 263.) “Penetration” means “sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)

In the instant case, Mona testified that she was “positive” defendant’s penis went inside her vagina. She explained that despite her spinal cord injury, sexually she has feeling, “[n]ot a lot, but enough.” She has the ability to “feel or have a sensation to know when a penis is inside of [her] vagina.” She knew defendant’s penis entered her vagina “[f]rom the pressure.”

Defendant acknowledges that Mona testified that his penis entered her vagina, but argues that based on the record, “a reviewing court would be required to speculate that [Mona] had sufficient sensation to know whether penetration had occurred . . . .” In support of his assertion, defendant points to a statement Mona made to the sexual assault investigator that she did not remember everything “because there was so much going on.”

Mona was interviewed by a sexual assault investigator to determine “how much - if anything - that [she] could feel” when defendant penetrated her vagina. She explained, “I have sensation and I can feel the pressure. [¶] . . . [¶] . . . And um, I can feel when they enter, and I can feel penetration.” She went on to state that “at that time, I had . . . my hand on my mouth so that he wouldn’t kiss me,” “[a]nd my other hand trying to keep my nightgown down, so he couldn’t touch me. [¶] . . . [¶] . . . And I had his hand over . . . my mouth and my nose -- so I couldn’t breathe. [¶] . . . [¶] . . . And so there was a lot going on at that time. And him saying, ‘Is -- is it in? Is it in?’ And -- and I -- there was banging on the door from the security guard asking. And so when he was inside there -- I don’t remember everything because there was so much going on.” Mona’s statement that she did not “remember everything because there was so much going on” is ambiguous at best. Defendant apparently interprets her statement to mean that she does not remember whether his penis was inside of her; however, the statement could just as easily be interpreted to mean that she does not remember everything that occurred while defendant was inside her apartment or everything that was happening while his penis was inside of her. Indeed, the investigator later sought clarification, posing the following question: “I know that there was a lot going on. But are you confident that at least at some point his penis actually entered your vagina?” Mona responded, “Yes I am -- I’m very confident that his penis entered my vagina.” At best, Mona’s statement that she did not “remember everything because there was so much going on” created a conflict in the evidence, which we must resolve in favor of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).)

Defendant also points to Dr. Rosas’s testimony that Mona would have been unable to feel pain during the vaginal examination because of her spinal cord injury in support of his assertion that there is insufficient evidence of penetration. When asked if Mona ever complained of pain in her vaginal area during the examination, Dr. Rosas responded that Mona could not complain of pain in that area because she has no feeling as a result of her spinal cord injury. Again, Dr. Rosas’s testimony, at best, created conflict in the evidence, which we must resolve in favor of the judgment. (Johnson, supra, 26 Cal.3d at p. 576.)

Mona consistently stated that defendant’s penis entered her vagina, and testified in detail about how, despite her spinal cord injury, she was able to feel when his penis entered her vagina. The jury was entitled to credit this testimony. There was ample evidence to support a finding that there was sexual penetration in this case.

II

Dr. Rosas Properly Testified That Mona’s Bruising and Lack of Anogenital Injuries Were Consistent with Mona’s History of Sexual Assault

Defendant next contends that Dr. Rosas’s testimony that her “findings were consistent with the history given by Mona Doe constituted an inadmissible opinion that [Mona] had been raped,” and “the trial court erred prejudicially by allowing the expert testimony.” More particularly, he asserts that Dr. Rosas was not qualified to render an opinion on “wound causation,” and her testimony that the lack of anogenital injuries was consistent with Mona’s sexual assault history constituted “an improper opinion on the defendant’s innocence or guilt.” Assuming defendant’s claim is properly before us despite his failure to object to the challenged testimony below, it lacks merit.

Dr. Rosas testified that the bruising on Mona’s face and body, as well as the lack of any anogenital injuries, were consistent with Mona’s sexual assault history. Dr. Rosas explained that the lack of anogenital injuries was consistent with Mona’s history because half of sexual assault patients have no medical findings on the anogenital exam. She based this testimony on personal experience and recent research studies.

“A person is qualified to testify as an expert if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which his [or her] testimony relates.” (Evid. Code, § 720, subd. (a).)

Dr. Rosas specializes in sexual assault. She has performed 250 adult sexual assault examinations since 2004 and supervises an additional 400 examinations annually. She is the medical director of the Bridging Evidence Assessment and Resources (B.E.A.R) program at Sutter Medical Group, which evaluates suspected cases of child abuse and neglect and adult sexual assault. Given her training and extensive experience, she was qualified to render an opinion as to whether a particular injury, or lack of injury, was consistent with the history provided by the patient. More specifically, she was qualified to render an opinion as to whether the bruises on Mona’s face and body and the lack of anogenital injuries were consistent with Mona’s version of events, i.e., that her assailant repeatedly hit her in the face, dropped her on the ground, and entered her vagina with his penis. Indeed, the mandatory “923 form” Dr. Rosas utilized in conducting the examination required her to render such an opinion. As Dr. Rosas explained, the form required her to indicate whether “the medical findings are consistent with the story that she’s given” by checking one of two boxes: “consistent with history” or “inconsistent with history.” Thus, the Office of Emergency Services, the agency charged with establishing the protocol for the examination and treatment of victims of sexual assault and adopting the form in question, believes that the person performing the sexual assault examination is qualified to render an opinion as to whether his or her medical findings are consistent with the patient’s history. (§ 13823.5, subds. (a)-(c).) For all the foregoing reasons, we find Dr. Rosas was qualified to render an opinion on whether her medical findings were consistent with the history provided by Mona.

Contrary to defendant’s assertion, Dr. Rosas did offer an opinion on “wound causation.” She did not opine that Mona’s bruises were caused by defendant striking her, she stated only that the bruising was consistent with the history provided by Mona. Moreover, on cross-examination, Dr. Rosas stated that she had not formed the opinion that what Mona had told her was “completely accurate and truthful.” Rather, all she could say was “that the medical findings are consistent with the story that [Mona’s] given.” “Consistent with” and “caused by” are not synonymous.

We likewise reject defendant’s claim that Dr. Rosas’s testimony amounted to an opinion that Mona had been raped. On cross-examination, Dr. Rosas testified that she was not rendering an opinion that Mona had been raped. Dr. Rosas’s testimony that Mona’s injuries were “consistent with” the history Mona provided is not tantamount to saying Mona had been raped or otherwise was telling the truth.

The trial court did not err in allowing Dr. Rosas to testify that her exam findings were consistent with the history given by Mona.

III

The Prosecutor’s Comments During Her Rebuttal Argument Did Not Rise to the Level of Misconduct

Defendant claims that “[t]he prosecutor engaged in a pattern of intentional misconduct during closing argument” by (1) accusing defendant’s trial counsel of trying to “ ‘subtly intimidate’ ” and confuse the jury, (2) arguing the defense was fabricated, (3) appealing to the jury’s sympathies by referring to “ ‘vulnerable victims,’ ” and (4) misstating the law on voluntary intoxication. We discern no misconduct.

During his closing argument, defendant’s trial counsel described the jury’s task as a “unique act” of passing judgment on another human being and told them that “the ultimate wrong . . . is for you to find [defendant] guilty of any crime . . . he is not guilty of . . . . A wrongful conviction.” He reminded the jury that “there’s no takebacks in the law,” and that members of the jury could not subsequently change their minds once they rendered their verdict. He also told them that they represented all of Sacramento County. “Twelve people representing the whole of the population of Sacramento. Each of you represents 1/12th of Sacramento. If you think something is reasonable, 1/12th of Sacramento think[s] something is reasonable. Hundreds of thousands of people. That’s why we’ve got you. You’re not alone. You represent a large number of people.” In her rebuttal, the prosecutor responded as follows: “So I think when [defense counsel] started out talking to you, he spent a lot of time doing things to subtly intimidate you. To make it hard for you to do your job or to make you doubt yourself. He talked about passing judgment on another human being. He used the phrase wrongful conviction. He talked about the number of people you represent in [the] community, like you’re 10,000 people. And would those 10,000 agree with you. [¶] . . . [¶] If you follow the law, if you use the evidence, if you deliberate with one another as a safety net and use your common sense, you can be confident and secure in your verdict. This is the same process that is used all over our country. And if it was impossible, there would never be a conviction.”

When responding to defense counsel’s discussion of reasonable doubt, the prosecutor argued that counsel “used the phrase Disney a lot. Disney examples. The ‘Parent Trap’ or he used imaginary Disney things. I’m telling you right now, [defense counsel] and the defendant are too smart to come up with Disney examples that you can see right through. Right. That’s lies, the most convincing lies, when you start out with a little bit of truth, some part of it and you build on that . . . .” Defense counsel objected, and following a side bar, the prosecutor clarified: “As it relates to statements, let me be clear. I do not mean to impugn [defense counsel]. He has done a fine job for the defendant. When I’m referring to lies, I’m referring to the defendant’s lies, the things that he has told, it is easier, I believe, for him to start with the pieces that he knows are established. The parts of the case that are there that he knows are there. And then to tweak his version of it to try and fit in with that. To explain away piece by piece by piece. This by itself. This is why I did this.”

The prosecutor also argued, “People that want to sexually assault victims are going to try to do it when they can subdue them, do them away from people, get them to be quiet. Inherently, it has its own challenges. But it’s not impossible. How would we ever prove any sexual assaults to vulnerable victims such as Mona, children, the elderly, any person . . . .” The trial court sustained defense counsel’s objection, and following a sidebar, the prosecutor told the jury, “Let me clarify. In my earlier reference to vulnerable people, I’m not attempting to play on your sympathies. And if there were sympathies, please put them in the box that we discussed.”

Finally, as relevant here, the prosecutor argued, “Just because [defendant] may have been drinking does not mean he does not have specific intent. [¶] Volunteer [sic] intoxication . . . means that you are so intoxicated . . . that you do not have the ability to form intent.” Defense counsel objected, arguing the prosecutor misstated the law. The trial court overruled the objection, and the prosecutor continued, “So simply saying, oh, he was drinking, oh, he smelled like alcohol, that’s not the end of the equation. Right? Alcohol sometimes acts for people like liquid courage. Doesn’t mean they don’t know what they’re doing. [¶] You can believe he was drinking that night and you can believe that he may have even been drunk. . . . That’s not the end of the equation.”

As a preliminary matter, the People contend that defendant forfeited his prosecutorial misconduct claim by failing to object to the challenged comments below and/or request a curative instruction with respect to each of the statements. Defendant responds that his trial counsel objected to three of the four challenged statements and asked for curative instructions. Assuming for argument’s sake that defendant preserved his prosecutorial misconduct claim for appeal, it lacks merit.

“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

The prosecutor’s comment that defense counsel tried to “subtly intimidate” the jury did not amount to misconduct. When considered in context, it is clear that the prosecutor was responding to defense counsel’s argument concerning the enormity of the jury’s task and was arguing that the task was not as daunting as defense counsel made it out to be. A prosecutor is given “ ‘wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.’ ” (People v. Redd (2010) 48 Cal.4th 691, 735.) The prosecutor’s description of defense counsel’s tactic here did not amount to misconduct, and it is not reasonably probable that the jury construed it as an attack on defense counsel’s integrity.

The prosecutor’s reference to “lies” likewise did not amount to misconduct. After defense counsel objected and following a side bar, the prosecutor clarified that she was “referring to the defendant’s lies, the things that he has told.” This was a fair comment on the evidence. (People v. Hinton (2006) 37 Cal.4th 839, 871.) “ ‘The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence . . . .’ [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 863.) That is what the prosecutor did here.

The prosecutor’s reference to “vulnerable victims” likewise did not constitute misconduct. When viewed in context, the prosecutor’s point was that “vulnerable victims,” such as children and disabled persons, present unique challenges with respect to proof when it comes to sexual assault. Moreover, following defense counsel’s objection, the prosecutor told the jury that she was “not attempting to play on your sympathies. And if there were sympathies, please put them in the box that we discussed.” The trial court subsequently instructed the jury in the language of CALCRIM No. 200 not to “let bias, sympathy, prejudice or public opinion influence your decision. Bias includes, but is not limit[ed] to, bias for or against the . . . alleged victim based on disability . . . .” Any possible harm from the prosecutor’s initial comment was cured by defense counsel’s objection, the prosecutor’s clarifying statement, and the trial court’s instruction.

Finally, the prosecutor did not misstate the law on voluntary intoxication. As relevant here, “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . .” (§ 29.4, subd. (b).) Defendant appears to assert that the prosecutor misstated the law by telling the jury that evidence of voluntary intoxication is relevant only if the defendant is so intoxicated that he or she is unable to form or have intent. While the prosecutor did state that “[v]olunteer [sic] intoxication . . . means that you are so intoxicated . . . that you do not have the ability to form intent,” when considered in context, it is clear that her statement was tied to specific intent and that her point was simply that evidence of drinking or intoxication alone is insufficient to negate specific intent. In any event, any possible misunderstanding was clarified by the trial court’s subsequent instruction. Following closing arguments, the trial court instructed the jury in the language of CALCRIM No. 3426 in pertinent part 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 with the intent as specified below. [¶] 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 burglary, the people have the burden of proving beyond a reasonable doubt that defendant acted with the intent to commit theft or rape. If the People have not met this burden, you must find the defendant not guilty of burglary as charged in Count 1.” The trial court continued by setting forth the specific intent for each of the remaining counts and any lesser included offenses.

In sum, none of the challenged comments constituted misconduct, and, to the extent any of the comments could have been misconstrued by the jury, any potential prejudice from was cured by the prosecutor’s clarifying statements and the trial court’s instructions.

IV

The Trial Court Did Not Err in Giving a “Firecracker” Instruction to the Jury

Lastly, defendant contends that the trial court violated his right to due process of laws by giving a so-called “firecracker” instruction to a deadlocked jury. He insists that the court's instruction, which encouraged jurors to continue their deliberations and suggested alternative styles of deliberation, coerced them to reach a verdict and is the type of instruction the California Supreme Court condemned in People v. Gainer (1977) 19 Cal.3d 835 (Gainer), disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163. We disagree.

The jury began deliberating on September 16, 2014, following four days of trial testimony. On September 18, 2014, the jury sent the trial court the following question, “What is the procedure if we are at an impasse on several issues?” The trial court summoned the jury, and the foreperson advised the court that the impasse involved factual, as opposed to legal, issues. The foreperson also informed the court that the jury had reached a verdict on one of the four charges. The jury exited the courtroom, and the trial court advised counsel of its intent to give the jury the so-called “firecracker” instruction upheld by this court in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore). Defense counsel did not object.

When the jury returned, the trial court instructed it in pertinent part as follows: “Your goal as jurors should be to reach a fair and impartial verdict if you’re able to do so based solely on the evidence which is presented and without regard for the consequences of your verdict regardless of how long it takes to do so. [¶] . . . [¶] . . . [Y]ou have absolute discretion to conduct your deliberations in any way in which you deem appropriate. [¶] May I suggest that since you’ve not been able to arrive at a verdict on one or more counts using the methods that you have chosen, that you consider changing the methods you’ve been using, at least temporarily, and try new methods. [¶] For example, you may wish to consider having different jurors lead the discussion for a period of time. Or you may wish to experiment with reverse role playing by [having] those on one side of any issue present and argue the other side’s position and vice versa. This may enable you to better understand the others[’] positions. [¶] By suggesting that you should consider changes in your methods of deliberation, I want to stress that I am not dictating or instructing as to how to conduct your deliberations. I merely suggest that you might find it productive to do whatever is necessary to ensure that each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.” (Italics added.)

The jury resumed deliberations, and the following afternoon the foreperson advised the trial court that while the jury had not reached a verdict on any additional counts, the foreperson believed that further deliberations would be fruitful. One and one-half days later, the jury reached a verdict on all remaining counts.

Whether to declare a hung jury or order further deliberations rests in the trial court’s sound discretion. (§ 1140; People v. Bell (2007) 40 Cal.4th 582, 616 (Bell), disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) “ ‘Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived “ ‘as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ ” ’ [Citation.]” (Bell, at p. 616.)

As defendant acknowledges, the instruction given to jurors in this case is virtually identical to an instruction we approved in Moore. As we explained in that case: “In Allen v. United States (1896) 164 U.S. 492, 501-502, the Supreme Court approved a charge (the Allen charge) which encouraged the minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided. In People v. Gainer (1977) 19 Cal.3d 835, however, our state high court disapproved of Allen in two respects. The Gainer court found ‘the discriminatory admonition directed to minority jurors to rethink their position in light of the majority’s views’ was improper, inasmuch as, 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. (Gainer, at pp. 845, 848.)” (Moore, supra, 96 Cal.App.4th at pp. 1120-1121.)

Defendant urges this court to follow the reasoning of Justice McAdams’s concurrence in People v. Whaley (2007) 152 Cal.App.4th 968, 985, which found the “ ‘reverse role playing’ ” suggestion troubling and the overall instruction to create an expectation of a verdict. (Ibid.) However, even Justice McAdams concluded that his “concerns and criticisms do not rise to a level that compels reversal under the circumstances of this case.” (Id. at p. 986.) Here, on facts less troubling than the 11-1 split known to the trial judge in Whaley, we decline to find the instruction coercive.[3]

DISPOSITION

The judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Robie, J.