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People v. Rizo4/24/2002
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Before the presentation of evidence, when the court ruled it would admit the Krazy Crowd evidence, it also stated it would give CALJIC No. 2.50 on the use of evidence of uncharged misconduct. During evidence, the court raised the issue of how it should phrase CALJIC No. 2.50 to reflect the purposes for which the wedding and soccer game fight evidence had been admitted. However, defendants did not request CALJIC No. 2.50, or related instructions on uncharged misconduct, when jury instructions were formally determined. They now contend the court should have given the instructions sua sponte.
In People v. Padilla, supra, 11 Cal.4th 891, the Supreme Court said: "We have long since held that `in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.' (People v. Collie (1981) 30 Cal.3d 43, 64 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], fn. omitted.) Although our opinion in Collie recognized the possibility (one that had no application in that case) that there might be `an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose' (ibid., last italics added), this is not such a case." (Id., at p. 950.)
This is not such a case, either. As we have already discussed, the prior fights and Krazy Crowd evidence was highly relevant and not unduly prejudicial. It was not so dominant as to require an instruction without a request. Therefore, no sua sponte duty to instruct on the use of the evidence arose.
O. CALJIC No. 17.41.1
Defendants argue the court erred in instructing the jury with CALJIC No. 17.41.1, which states that if any juror refuses to deliberate or expresses an intention to disregard the law or decide the case on an improper basis, it is the obligation of the other jurors to advise the court. Defendants contend the instruction improperly intrudes on a juror's power of nullification and has the potential to disrupt deliberations.
To the extent defendants' arguments are based on the right of nullification, they are precluded by People v. Williams (2001) 25 Cal.4th 441. In that case, the Supreme Court held there is no such right and that a juror who cannot or will not render a verdict in accordance with the court's instructions on the law may be discharged. (Id., at p. 463.)
With respect to the other defects alleged by defendants in CALJIC No. 17.41.1, the court in People v. Molina (2000) 82 Cal.App.4th 1329 held that, where there is no indication in the record of any alleged failure or refusal to deliberate, holdout jurors, jury deadlock, or any other problem attributable to CALJIC 17.41.1, there is no prejudice even assuming that giving the instruction is error. (Molina, supra, at pp. 1336-1337.) We reject defendants' argument that Molina does not apply because the deliberations in this case were lengthy while in Molina they were short. The basis of the decision in Molina was not just the short deliberations, but the lack of any indication of a problem with the deliberations that might have been affected by CALJIC No. 17.41.1. This case has that feature in common with Molina.
IV. SENTENCING ISSUES
A. Failure to Refer Defendants for Diagnostic Report (Pen. Code, § 1203.03)
Jesus, Salvador, and Victor argue the court abused its discretion and denied them due process by failing to accept the recommendation of the probation authorities that they be referred to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03. Defend
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