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People v. Collins6/27/2002
violated his parole on four occasions, and was subsequently convicted of three misdemeanors for drug possession, disorderly conduct involving drug use, and driving under the influence. In 1991, he was convicted of two felony drug offenses, resulting in a three-year prison term. Thereafter, in early 1994, he was convicted of felony and misdemeanor drug offenses and felony evasion of a peace officer while driving recklessly, resulting in a five-year prison term. After his last release from prison, he again violated his parole on three occasions. He was still on active parole when he committed the current offense, his fourth parole violation.
Hence, there was ample basis to support the trial court's refusal to reduce the offense to a misdemeanor.
2. Trial Court's Use of CALJIC No. 17.41.1 Does Not Warrant Reversal
The trial was completed in two days. On the first day, after presenting five witnesses, the People rested and the matter was adjourned until the next day. On the second day, the defense rested without presenting any witnesses. Immediately thereafter, the jury heard summations and the trial court's instructions, which included CALJIC No. 17.41.1, regarding the jurors' obligation to notify the court if "any juror refuses to deliberate or expresses an intention to disregard the law or decide the case based on penalty or punishment, or any other improper basis." The jury retired to deliberate at 11 a.m. and returned its verdict at 12:00 p.m. Neither party requested that the jurors be individually polled.
The California Supreme Court is currently considering the propriety of using CALJIC No. 17.41.1. (People v. Engelman (2000) 77 Cal.App.4th 1297, review granted Apr. 26, 2000, S086462; People v. Taylor (2000) 80 Cal.App.4th 804, review granted Aug. 23, 2000, S088909; People v. Morgan (2000) 85 Cal.App.4th 34, review granted Mar. 14, 2001, S094101.) However, even if the trial court should not have instructed the jury using CALJIC No. 17.41.1, any error "is not reversible per se, but rather is subject to harmless error analysis." (People v. Molina (2000) 82 Cal.App.4th 1329, 1335.) Collins fails to explain how the instruction operated to his detriment. There is no evidence CALJIC No. 17.41.1 played any role in the jury's deliberations. After a two-day trial, the jury returned a verdict in one hour without any indication that a juror had intended to disregard the law or decide the case on an improper basis. Thus, any possible error in instructing the jury using CALJIC No. 17.41.1 was harmless beyond a reasonable doubt.
Disposition
The judgment is affirmed.
We concur:
Corrigan, Acting P. J.
Parrilli, J.
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