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People v. Licea5/30/2002
pellant's current offense and the fact that it had used the prior prison terms to select the upper term, and struck appellant's three prior prison term enhancements. The trial court was within the sound exercise of its discretion in concluding that appellant's criminal history, including the facts that he committed the instant offense while on parole and that his prior performances on probation and parole were unsatisfactory, fully warranted the upper term. (People v. Burg (1981) 120 Cal.App.3d 304, 305-306.)
VII. Instruction with CALJIC No. 17.41.1 does not require reversal.
The trial court instructed the jury in accordance with CALJIC No. 17.41.1 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 based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
Appellant contends that the delivery of CALJIC No. 17.41.1 violated his rights to a jury within the meaning of the Sixth Amendment, to jury unanimity, and to due process. This claim lacks merit.
A juror is obligated to follow the instructions of the trial court. (People v. Williams (2001) 25 Cal.4th 441, 448-449; People v. Daniels (1991) 52 Cal.3d 815, 865.) A juror must not, therefore, disregard the law or decide the case based on penalty or punishment or any other improper basis. (CALJIC Nos. 1.00, 17.42.) Since the jury has no right to disregard the trial court's instructions, it should not be instructed as to the power of nullification. (People v. Cline (1998) 60 Cal.App.4th 1327, 1335; see People v. Williams, supra, 25 Cal.4th at pp. 451-459.) To this extent, there is nothing objectionable about CALJIC No. 17.41.1.
Although the propriety of CALJIC No. 17.41.1 raises a question that will ultimately be decided by our Supreme Court, which has granted review on the issue (see, e.g., People v. Taylor (2000) 80 Cal.App.4th 804, review granted Aug. 23, 2000, S088909; People v. Engelman (2000) 77 Cal.App.4th 1297, review granted Apr. 26, 2000, S086462), we need not engage in conjecture as to how the issue will be resolved. Appellant claims that the erroneous giving of the instruction "defies analysis for prejudice" because we cannot determine whether and to what extent jurors were improperly affected by the instruction. Appellant's concerns are simply too speculative to warrant overturning the jury's verdicts. In this case there is no indication that CALJIC No. 17.41.1 had any effect whatsoever on appellant's trial. The record does not reflect that any juror was refusing to follow the law, that there was any disagreement or deadlock, or that there were any holdout jurors. Thus, even were we to hold that delivery of this instruction constituted constitutional error, on this record such error would not require reversal. (People v. Brown (2001) 91 Cal.App.4th 256, 271; People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
BOREN
DOI TODD
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