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People v. Vilan10/24/2001
nd infringes on the right to an impartial jury. The instruction does not call upon the jury to do anything other than report actions that constitute good cause for dismissal. (Pen. Code, § 1089; People v. Cleveland (2001) 25 Cal.4th 466; People v. Daniels (1991) 52 Cal.3d 815, 864; People v. Collins (1976) 17 Cal.3d 687, 696; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333.) The California Supreme Court's recent opinion in People v. Williams (2001) 25 Cal.4th 441 suggests that Vilan's concerns over the power of jury nullification are overstated.
Finally, the record discloses that no misconduct was reported to the trial court, no jury deadlock occurred, and there were no holdout jurors. Therefore, we cannot agree with Vilan that even if the instruction were defective, it affected his verdict. (See People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336.)
4. Sentencing
The parties agree that the trial court erroneously concluded that it had discretion to impose a concurrent term for the second assault. A consecutive term for that conviction is mandatory, due to the true finding that the crime was committed while Vilan was on bail. They disagree over what should now take place. Vilan says remand for resentencing is appropriate, to permit the trial court to reconsider its other sentencing choices. The People, on the other hand, recommend that we merely convert the three-year concurrent term for the second assault to a three-year consecutive sentence. However, because the possibility exists that the trial court may want to impose a different sentence on the first assault in light of this increase, we will remand the matter for resentencing. (See People v. Garrett (1991) 231 Cal.App.3d 1524; People v. Sanchez (1991) 230 Cal.App.3d 768.)
Disposition
The matter is remanded for resentencing in a manner consistent with the views expressed in this opinion. Upon remand, the trial court is directed to calculate the actual time Vilan has already served and credit it against his new sentence. (People v. Buckhalter (2001) 26 Cal.4th 20, mod. 26 Cal.4th 994a.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
We concur:
HOLLENHORST, J.
WARD, J.
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