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People v. Ellis5/28/2003
ounsel could have reasonably believed it best to be forthright in acknowledging the prior. Thus, defense counsel simply "embarked on an informed if calculated risk" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260), and acted reasonably under prevailing professional norms (Scott, supra, 15 Cal.4th at p. 1211). It appears defense counsel did not anticipate that the court would rule further questioning on the prior would open the door to the prosecution's evidence of bad character. At that point, defense counsel changed his tactics by making a record and turning to other areas of inquiry. Again, we cannot say his actions were objectively unreasonable.
In any event, defendant fails to affirmatively demonstrate she was prejudiced by a single question in 153 pages of trial testimony. Her claim that " iven the gravity of the charges pending against , it reasonable to assume the jury inferred the conviction was for something more serious than a DUI" is mere speculation. It is also possible that because defense counsel asked the question, and the prosecutor objected, the jury assumed the prior was a minor offense. Or the jury may have ignored the question altogether. We agree defendant's credibility was an important issue at trial. The jury listened to the contradictory accounts of key events and differing descriptions of Michelis's mental capabilities and simply resolved the inconsistencies against defendant. We therefore conclude there is no possibility, let alone reasonable probability, that, but for defense counsel's actions, "the result would have been more favorable to defendant." (Scott, supra, 15 Cal.4th at p. 1211.)
IV. CALJIC No. 17.41.1
Defendant contends the court violated her state and federal constitutional rights to trial by jury, jury unanimity, and due process by instructing the jury with CALJIC No. 17.41.1. The California Supreme Court considered and rejected this contention in People v. Engelman (2002) 28 Cal.4th 436 (Engelman). Although the court held there was no constitutional violation, it found that CALJIC No. 17.41.1 might needlessly induce jurors to expose the content of their deliberations, unnecessarily involve the court in arbitration of normal disagreements between jurors, and "chill the free exchange of ideas that lies at the center of the deliberative process." (Id. at pp. 446-447.) For this reason, the Supreme Court directed trial courts not to use CALJIC No. 17.41.1 in future trials. (Id. at p. 449.)
The Supreme Court decided Engelman on July 18, 2002. (Engleman, supra, 28 Cal.4th at p. 436.) Thus, the court in this case was free to instruct the jury with CALJIC No. 17.41.1 on February 21, 2002, and there was no constitutional violation under Engelman.
DISPOSITION
The judgment is affirmed.
I concur:
BLEASE, Acting P.J.
I concur, except part III, in which I concur in the result:
MORRISON, J.
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