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People v. Starr6/26/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Adrian Frank Starr appeals from the judgment entered following a jury trial in which he was convicted of driving under the influence and causing injury to another person (Veh. Code, § 23153, subd. (a)). The jury further found that appellant had proximately caused bodily injury to more than one victim (Veh. Code, § 23558), and that appellant had personally inflicted great bodily injury upon several victims who were not accomplices (Pen. Code, § 12022.7, subd. (a)), causing the offense to become a serious felony (Pen. Code, § 1192.7, subd. (c)(8)). The incident occurred on the 710 Freeway in the early morning hours of May 12, 2001, in clear weather and virtually no traffic. Appellant struck the rear of a vehicle being driven approximately 45 miles an hour with its hazard lights activated for approximately eight minutes because the driver suspected there was a mechanical problem. Appellant contends the judgment must be reversed, asserting the trial court erred in instructing the jury pursuant to CALJIC No. 17.41.1. We affirm the judgment.
DISCUSSION
The trial court instructed the jury pursuant to 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." (Brackets omitted.)
Appellant contends the trial court erred in giving CALJIC No. 17.41.1, asserting the instruction violated his right to a fair trial and to a unanimous verdict by interfering with secret juror deliberations and infringing upon the jurors' free speech and free association rights, impermissibly infringing on the jury's power of nullification, and misadvising the jury by suggesting it had no power to nullify and that jurors may be punished for their views. Appellant's position is without merit.
Although the issue of the propriety of CALJIC No. 17.41.1 is now before the California Supreme Court (see, e.g., People v. Engelman (2000), review granted Apr. 26, 2000, S086462), there is no indication in the instant case that this instruction impinged upon appellant's constitutional right to a unanimous jury or otherwise prejudiced him. Every juror is required to follow the trial court's instructions in order to perform his or her duty as a member of the jury. (People v. Williams (2001) 25 Cal.4th 441, 448-449; People v. Daniels (1991) 52 Cal.3d 815, 865.) Here, in addition to CALJIC No. 17.41.1, the trial court gave instructions, which appellant does not challenge, requiring the jury to deliberate, to decide the case based upon the facts and the law regardless of whether the juror agrees with the law, and not to decide the case based upon the penalty or punishment, mere "sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." (See CALJIC Nos. 17.40, 17.41, 17.42, 1.00.) These additional instructions overlap much of the content of CALJIC No. 17.41.1. The trial court correctly conveyed the law to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Jenkins (1994) 29 Cal.App.4th 287, 297.)
We al
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