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People v. Jenious11/13/2001
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant, Donald Jenious, appeals from his felony conviction for driving under the influence of alcohol. (Veh. Code § 23152, subd. (a).) He was also convicted based on his nolo contendere plea of driving with a suspended license in violation of Vehicle Code section 14601.2, subdivision (a). Defendant's sole argument on appeal is that the trial court improperly instructed the jury with CALJIC No. 17.41.1. We affirm as to the impaired driving count but remand to allow the imposition of a mandatory Vehicle Code section 23550.5, subdivision (a) fine. We dismiss the appeal from the misdemeanor driving with a suspended license count.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Defendant was stopped by Los Angeles County Sheriff's Deputy John Dennis at a sobriety checkpoint. Defendant was arrested following his failure to successfully complete a field sobriety test. Defendant's subsequent blood test revealed he had a blood alcohol level of .17.
Defendant argues the trial court improperly instructed the jury with CALJIC No. 17.41.1 because it violated his rights to: trial by jury; jury unanimity; and due process of law. CALJIC No. 17.41.1 was given as follows: "The integrity of a trial requires that jurors at all times during their 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 on any improper basis, it is the obligation of the other jurors to immediately advise the court of this situation." There is no juror nullification right. (People v. Williams (2001) 25 Cal.4th 441, 463; People v. Brown (2001) 91 Cal.App.4th 256, 270-271.) As was recently pointed out in People v. Cline (1998) 60 Cal.App.4th 1327, 1335: "Courts have long recognized that `a jury, in rendering a general verdict in a criminal case, necessarily has the naked power to decide all the questions arising on the general issue of not guilty; but it only has the right to find the facts, and apply to them the law as given by the court.' (People v. Lem You (1893) 97 Cal. 224, 228 , . . . overruled on another ground in People v. Kobrin (1995) 11 Cal.4th 416, 427, fn. 7 .) Because juries have no right to disregard the court's instructions, it is inappropriate to instruct juries on their power to nullify the law. [Citation.]" (Original italics; People v. Nichols (1997) 54 Cal.App.4th 21, 24-26.)
With those precepts in mind, we turn to the instructions in question. The California Supreme Court has held: " he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]" (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-754, 756; People v. Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation].) Much of CALJIC No. 17.41.1 reiterates other properly given instructions. For instance, CALJIC No. 1.00 instructed the jury to follow the law as it was given to them by the trial court. CALJIC No. 17.40 instructed the jurors to deliberate by dis
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