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People v. Prescott5/22/2002
nstructions. 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."
CALJIC No. 17.41.1 is a recently developed instruction, the substantive validity of which is currently being reviewed by the California Supreme Court. (See People v. Engelman (2000) 77 Cal.App.4th 1297, review granted April 26, 2000, S086462.)
However, even if the Supreme Court invalidates CALJIC No. 17.41.1, we find the instruction caused no prejudice in the instant case. There was no report of a juror refusing to deliberate or disregarding the law. There was no jury deadlock, and no holdout juror. In short, there is no reason to believe that the court's use of CALJIC No. 17.41.1 played any role in the jury's deliberations. Appellant has therefore failed to demonstrate how the court's reading of the instruction prejudiced him.
Having concluded appellant's convictions must be reversed, we will not address appellant's claim of errors in the taking of the verdicts and the polling of the jurors, as it is unlikely such issues will reoccur on retrial.
DISPOSITION
The judgment is reversed.
WE CONCUR:
Vartabedian, Acting P.J.
Wiseman, J.
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