Filed 5/3/17 P. v. Peralez CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY PERALEZ,

Defendant and Appellant.
C076169

(Super. Ct. No. 13F05340)




A jury found defendant Johnny Peralez guilty of assault with a firearm (Pen. Code § 245, subd. (a)(2)) , assault (§ 240), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found true two enhancements to the charge of assault with a firearm--personally using a firearm (§ 12022.5, subds. (a) & (d)) and causing great bodily injury (§ 12022.7). The trial court sentenced defendant to a total term of 14 years 4 months in prison.
Defendant argues the trial court erred in denying his motion to remove two jurors who committed misconduct, and that their misconduct deprived him of a fair trial. He also claims the court gave a coercive instruction after the jury announced it was deadlocked.
We shall conclude that the juror misconduct was not prejudicial, and that the instruction the trial court gave was proper. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the crimes are unimportant to our resolution of issues on appeal. Suffice it to say that the crimes were committed during an argument with defendant’s two brothers, and those brothers were the victims of the assaults. He shot his brother A. in the leg and shoulder. He shot at his brother J., but missed.
The jurors were excused to deliberate on February 24, 2014. They deliberated all of the next day, February 25, then on February 26, the trial court told counsel it had received word that a deputy district attorney had overheard a conversation between two jurors while they were at a nearby café. The deputy district attorney heard the jurors, who were identified by their badges, say the word “testimony” a few times. After discussing the issue with counsel, the trial court decided to bring in the two jurors and question them.
The trial court also informed counsel it had received a note from the jury saying it was at an impasse. The jury was brought in. The trial court informed the jury it had received a report that two jurors had been heard talking, and that the words that had been overheard suggested the jurors were talking about the case. The judge reminded the jury of the admonition not to talk about the case except in the deliberation room with all jurors present.
The trial court then addressed the issue of the impasse. The court asked the foreperson whether the jury had reached a verdict on any count, and the foreperson indicated it had reached a verdict on one count. The court asked if it was likely further deliberation would result in a verdict one way or the other. The foreperson said he believed one more day might produce a verdict. The foreperson said he believed there was no need for further instruction on any issue. The trial court then asked the rest of the jurors if they concurred with the foreperson. Juror No. 4 stated he was not sure, and Juror No. 12 stated: “I feel that, as of right now, certain jurors feel strongly one way and certain jurors feel very strongly the other way . . . .” Juror No. 4 stated he did not believe further deliberation would change anything.
The court then dismissed the jury from the courtroom and called in the two jurors who had been overheard talking. Juror No. 2 admitted discussing the case with another juror without the other jurors being present. He stated that the conversation lasted two to three minutes. The court asked whether they discussed the evidence in the case. Juror No. 2 replied: “It was a discussion where we had just gotten really into it when someone wanted a break from the rest of the group, and I -- basically, I didn’t want to lose my train of thought. He and I were on the same page, and we just -- we both understand the same thing that we heard.”
The trial court then asked: “Was the conversation between you and the other juror, [w]e are frustrated because we are talking about the testimony and we had to take this break right when we thought we had an opportunity to resolve it, on the one hand, or at the other end of the spectrum, what that testimony was and why it should or should not be believed?” Juror No. 2 responded: “It was a little of both actually. As I said, we were just getting into the meat of this issue and then somebody wanted a break, and we both wanted to resolve or try and resolve that issue before the break while that was fresh in everybody’s mind.” The court tried to clarify whether the two were trying to resolve an issue between themselves, or whether they were in agreement on that issue. Juror No. 2 stated that they had been in agreement, and they had been commenting that some other people disagreed with them. Although invited to question Juror No. 2, neither counsel did so.
The court then questioned Juror No. 4. He admitted engaging in a conversation with Juror No. 2. Juror No. 4 said they had been talking about evidence and that they had been in agreement on a particular evidentiary issue, and in disagreement “with one of the other jurors.” The court asked, “whether you were just talking about your experiences as a juror and frustrations that jurors frequently experience during deliberations, on the one hand, or whether you were actually trying to resolve a factual issue about the case during the course of your conversation.” Juror No. 4 said they were not trying to resolve anything between them because “along with other jurors, . . . we were already there.” Juror No. 4 added there was definitely some frustration, and apologized that because of that frustration he had forgotten not to speak about the case. Neither counsel questioned Juror No. 4.
Defendant made a motion to have the jurors replaced. His argument was that if the jurors had ignored a simple instruction, they would not abide by other instructions. The trial court found that the jurors had violated the instruction, but were not deliberating about the case in the absence of the other jurors. Instead, they had been expressing their frustration about the inability of the jury to come to a verdict, and their disagreement with one or more of the other jurors. As a result, they had not influenced each other, and there was no evidence they influenced any of the other jurors. The trial court denied the motion. The jury was convened, and the court announced it would not excuse the two jurors involved in the outside discussion.
The court then questioned the foreperson regarding the count on which the jury had reached a verdict, and found that the jury had reached a unanimous verdict on count 3, the weapons possession count. The jury agreed that the verdict on count 3 was reached prior to the break at which the juror misconduct occurred. The jury was sent back to deliberate.
The next morning, the jury sent a note saying it was still at an impasse. The prosecution asked for a “blockbuster” instruction, and the defense asked for a declaration that the jury was deadlocked. The trial court decided to read the instruction, but warned counsel that if the jury was unable to reach a resolution by the end of the day, it would declare the jury deadlocked.
The court then gave the following instruction:
“It’s been my experience, that on more than one occasion, that a jury which initially reported that it was unable to reach a verdict was ultimately able to reach a verdict.
“To assist you in your further deliberations, I will instruct you as follows: Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict, regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at trial, as well as to discuss your views regarding the evidence and to listen to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to re-exam[ine] your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change your view that you once held if you are convinced that it is wrong, or to suggest that other jurors change their views if you are convinced that they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views.
“As I previously instructed you, each of you must decide the case for yourselves, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors.
“It is your duty as jurors to deliberate with a goal of arriving at a verdict on the charge or charges, if you can do so, without violence to your own individual judgment. Both the People and the Defendant are entitled to the individual judgment of each juror.
“As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.
“May I suggest, that since you have not been able to arrive at a verdict using the methods which you have chosen, that you consider changing the methods which you have been using at least temporarily and try new methods. For example, you may wish to consider having different jurors lead the discussion for a certain period of time, or you may wish to experiment with reverse role-playing by having those on one side of an issue present and argue the other side of the issue, and vice versa. This might enable you to better understand each other’s positions.
“By suggesting that you should consider changes in your methods of deliberation, I want to stress that I am not dictating or instructing you 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 other jurors.
“I also suggest that you read CALCRIM Instructions 200 and 3550. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate. The integrity of a trial requires all jurors at all times during their deliberations to conduct themselves as required by the instructions. CALCRIM Instructions 200 and 3550 define the duties of a juror.
“The decision that the jury renders must be based on the facts and the law. You must determine the facts that have been proven from the evidence which was received at trial and not from any other source. A fact is something proven by the evidence or by stipulation.
“Second, you must apply the law which I state to you to the facts as you determine them to be and, in this way, arrive at your verdict. You must accept and follow the law as I state it to you regardless of whether you agree with the law.
“If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
“CALCRIM Instruction 3550 defines the duties, the jury’s duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters that these instructions require you to discuss [for] the purpose of reaching a verdict.
“CALCRIM Instruction 3550 also recommends how jurors should approach their task. You should keep in mind the recommendations that this instruction suggests when considering the additional instructions, comments and suggestions that I have made in the instructions that I’m now presenting to you.
“I hope my comments and suggestions may be of some assistance to you. You are ordered to continue deliberations at this time. If you have any questions, concerns or requests, please put those in writing on the form that the bailiff has provided to you. . . .”
That afternoon, the jury reached a verdict on all three counts. It found defendant guilty of assault with a firearm on his brother, A., as charged in count 1. It found him guilty of the lesser offense charged in count 2-- simple assault of his brother, J. It also found him guilty of possession of a firearm having been convicted previously of a felony.
DISCUSSION
I
The Trial Court Did Not Err When it Refused to Replace the Jurors
Defendant argues the trial court erred when it denied his motion to strike the jurors, and that the error denied him due process and the right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The People concede that the two jurors committed misconduct, but argue there was no resulting prejudice, i.e., no juror was biased by the misconduct.
“Jury misconduct ‘raises a rebuttable “presumption” of prejudice.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 192.) On review, the question is whether “the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment . . . .” (People v. Marshall (1990) 50 Cal.3d 907, 951.) The verdict will not be set aside unless there is substantial likelihood of juror bias. (Tafoya, supra, at p. 192.) In a case not involving the jury’s exposure to extraneous material, “ ‘we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.’ ” (Ibid.)
We find no evidence to support a substantial likelihood that one or more jurors were impermissibly influenced to defendant’s detriment. Juror No. 2 and Juror No. 4 did not deliberate on the weight or validity of any evidence because they were both in agreement on the evidence. There is no indication they discussed their outside discussion with any other jurors. From the trial court’s questioning, their brief conversation appears to have been nothing more than an expression of frustration with the disagreement among the jurors.
Defendant argues the discussion between Juror No. 2 and Juror No. 4 served to make them less receptive to persuasion by other jurors. This is mere speculation. There is no reason to believe that the brief conversation between the two jurors would have influenced their desire or ability to deliberate with the rest of the jury. There is no substantial likelihood of juror bias, thus we will not set aside the judgment.
II
Instruction Was Proper
Defendant argues the instruction given by the trial court to address the jury’s note that it was deadlocked was coercive in that it pressured jurors into reaching a verdict and altering the method of deliberation. We disagree.
The instruction given was virtually identical to the instruction we approved in People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120. In response to Moore’s claim that the instruction was coercive, we held that the instruction was not improper since it did not coerce the jury into returning a verdict, but simply reminded the jury of its duty to try to reach an accommodation. (Id. at p. 1121.) We stated that the trial judge “should be commended for fashioning such an excellent instruction.” (Id. at p. 1122.) We decline defendant’s invitation that we reconsider Moore.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Duarte, J.



/s/
Hoch, J.