Filed 12/4/14 P. v. Parker CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C068510

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF112938A)

         v.

CHRIS PARKER,

                   Defendant and Appellant.




         A jury found defendant Chris Parker forcibly raped and digitally penetrated an
intoxicated female friend at a gathering of college students. (Pen. Code, §§ 261, 264.1,
289; unless otherwise stated, statutory references that follow are to the Penal Code.) On
appeal from the conviction, defendant contends (1) the presence of a support person
during the victim’s testimony violated his Sixth Amendment right to confrontation; (2)
the trial court erred in instructing the jury; (3) the trial court erred in denying his motion


                                                             1
for new trial; and (4) the cumulative effect of errors warrant reversal. We affirm the
judgment.

                                 FACTS AND PROCEEDINGS

       Defendant was charged with forcible rape in concert with another, under section
264.1 (Count 1); two counts of rape of an intoxicated person under section 261,
subdivision (a)(3) (Counts 3 and 6); penetration of an intoxicated person by a foreign
object under section 289, subdivision (e) (Count 4); and two counts of forcible rape under
section 261, subdivision (a)(2) (Counts 7 and 8). Other counts were charged against
codefendant Ramar Weldon only and/or were dismissed before trial.
       Defendant and Weldon were jointly tried, but with separate juries. Weldon’s jury
ultimately found him not guilty on several counts and failed to reach a verdict on two
counts. Weldon’s case was reset for trial and is not at issue in this appeal.
       Evidence adduced at trial showed that victim Rosa “Doe” (then age 19) and four
of her girlfriends, drank alcohol with defendant (then age 20) and four other males at
defendant’s apartment on September 12, 2009. The victim was a college student and
knew defendant and Weldon because they attended the same college, but she never
expressed any sexual interest in them. The group played a drinking game. The victim
drank three or four double shots of vodka, got falling-down drunk and “goofy,” and spent
more than an hour in the bathroom, where she vomited several times and sat on the floor.
Others, including defendant, came to the bathroom to check on her and offer her water
and bread. Several people helped her move to a bed in the bedroom defendant shared
with Weldon. The victim vomited again, on the bed covers, which were removed. A
female friend stayed awhile with the victim, who kept moving and hit her head trying to
get up. When the victim settled down, the friend left on an errand.
       Defendant and Weldon periodically checked on the victim in the bedroom. The
victim testified Weldon started kissing her. He unbuttoned her pants, pulled them down,


                                              2
put his fingers in her vagina, and orally copulated her. Defendant entered the room,
removed the victim’s pants, and had sexual intercourse with her, while Weldon tried to
put his penis in her mouth. The victim did not participate and said, “no” and “stop,” but
she was too intoxicated to resist physically. Defendant left the room, then returned and
had sex with her a second time. She told him to stop and tried to push him away, but he
pulled her closer by her legs.
       The victim testified it ended when she started screaming, though nobody entered
the room in response. No witness testified about hearing screams, but there was music
playing in the apartment, and defendant’s jury heard that Weldon told the victim during a
tape-recorded phone call that he stopped because the victim screamed for her ex-
boyfriend.
       The victim’s friend returned from her errand and entered the bedroom to find the
victim crying. The victim said, “They raped me.” The victims’ friends took her to a
clinic and called police, who took her to a hospital for a sexual assault examination. The
victim had a scratch on her shoulder and wrist, bruising to her left arm, redness on her
chest, and a hickey on her neck. The emergency room doctor testified, using his records,
that he examined the victim at 9:03 a.m. and noted bilateral purplish bruises of unknown
origin on the victim’s upper thighs. The doctor was asked if the bruises could have been
created within a four-hour, six-hour, or 24-hour period before the examination. He
answered yes to all three questions.
       The victim’s blood was tested about nine hours after she stopped drinking. A
criminalist testified the victim’s blood-alcohol level (BAC) at the time of the test was .02.
The expert opined the BAC nine hours earlier would have been between .11 and .20,
depending on whether the individual burned off alcohol at a faster or slower rate.
       Five days later, the police recorded an interview with defendant, which was played
for the jury. Defendant initially denied having sex with the victim but, after learning the
police had listened in on a phone conversation between the victim and Weldon, defendant

                                             3
admitted he had sex with her twice and put his finger in her vagina. Defendant said the
victim and Weldon were kissing, defendant walked up to them, and the victim grabbed
him by the neck and began kissing him. He claimed the victim “came onto us.” He also
said she was “just too drunk. Just couldn’t talk,” and was “just out of it.”
       The college’s basketball coach testified as a defense witness; he coached both
defendant and Weldon and considered them to be of good character.
       Defendant testified at trial. He said he drank 10 to 15 shots of vodka that night.
He went into his bedroom to get a cranberry juice from a refrigerator. The victim and
Weldon were on the bed in the darkened room. Defendant went to the bed “to see what
was going on.” The victim reached up, grabbed his neck, and pulled him toward her.
They kissed and “flirt[ed],” touching each other. Defendant testified the victim pulled
her own pants down and pulled his penis toward her. He testified he did not recall if he
had sex with her or digitally penetrated her, but he “probably” had sex and “might have”
inserted his finger in her. She never told him to stop. He believed she acted of her own
free will and did not think she was too intoxicated to consent. He believed Rosa’s arm
got bruised when her friend held her up and she stumbled on the way to the bathroom.
       Weldon testified they were all intoxicated. He fell asleep next to the victim, and
when he awoke, she leaned over and kissed him, and he kissed her back. She kept
saying, “Put it in me, put it in me.” At trial, Weldon denied any contact with her vagina.
Weldon did not recall putting his penis near her face, but the victim may have grabbed
his penis and brought it to her face. He testified the victim was aware of everything and
never told him to stop. Later, Weldon was on the floor, looked up, and saw defendant on
top of the victim. Weldon later saw the victim kissing a third male, Remy (Raymond)
McAlister.
       Weldon called McAlister as a defense witness. McAlister testified the victim
seemed to come on to him earlier in the evening. On cross examination, McAlister



                                             4
admitted he fondled the victim’s breasts in the bedroom, and she was too intoxicated to
consent, and he was charged with misdemeanor sexual battery for the incident.
         In the prosecution’s rebuttal case, the victim testified she was friends with
Weldon, and they did not have sex. When he was kissing her, she was thinking she
wanted him to stop, but she was unable to say it. One of the victim’s female friends
testified she did not see the victim flirt with defendant, Weldon, or McAlister that night,
though the victim did compliment McAlister on his eyes.
         The jury found defendant guilty of Counts 3 and 6 (rape of an intoxicated person),
Count 4 (penetration with foreign object) and Count 8 (forcible rape). The jury found
defendant not guilty on Count 1 (rape in concert). The jury was unable to reach a verdict
on Count 7 (forcible rape as an alternative to Count 1), and Count 7 was dismissed.
         The trial court denied defendant’s motion for new trial, as we discuss post. The
court sentenced defendant to a low prison term of three years on the Count 8 forcible rape
and concurrent terms on Counts 3, 4, and 6.

                                          DISCUSSION

                                                I

                                        Support Person

         Defendant contends the presence of the support person at the witness stand during
the victim’s testimony violated his Sixth Amendment right to confrontation, because the
trial court did not require the prosecutor to make a showing of necessity for the support
person. As we explain, defendant forfeited this contention by failing to object in the trial
court.
         Section 868.5, subdivision (a), provides in part that “a prosecuting witness in a
case involving a violation or attempted violation of [specified offenses including rape]
. . . shall be entitled, for support, to the attendance of up to two persons of his or her own
choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at

                                               5
a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of
those support persons may accompany the witness to the witness stand, although the
other may remain in the courtroom during the witness’ testimony. . . .” The statute
requires a showing of necessity only if the support person is also a trial witness. (§ 868.5,
subd. (b) [requires evidence that the person’s support is desired by and will be helpful to
the prosecuting witness].) “Absent improper interference by the support person . . . no
decision supports the proposition that . . . the support person’s mere presence infringes
[the defendant’s] due process and confrontation clause rights.” (People v. Myles (2012)
53 Cal.4th 1181, 1214 (Myles).)
       The trial record shows only that, when the victim took the witness stand, the trial
court instructed the jurors: “Perhaps, I don’t know if we explained this before, ladies and
gentlemen, a witness in some cases, and this is one of them, is entitled to have a support
person sit with her. A support person is not supposed to say anything or do anything.
She’s just there for moral support. But the fact that the witness does nor does not have
somebody here as a moral support should not in any way influence your decision. It’s
her right under the law to have a moral support person sit.” Defendant did not object
during trial, nor did he raise the issue in his motion for new trial. On appeal, defendant
does not dispute the People’s assertion that the support person in this case did not testify
at trial, and therefore there was no statutory requirement for a showing of necessity.
       Though not mentioned by the parties, the victim also had a support person at the
witness stand at the preliminary hearing, with acquiescence by the same defense counsel,
Joel Carash, who represented defendant at trial. The defense did not object to the support
person. Rather, Mr. Carash stated: “Judge, my understanding based upon some earlier
remarks that were not on the record, in discussions with Counsel, is that the victim
advocate is in fact a disinterested person and not a relative or member of the family or
close friend.” The prosecutor confirmed that was correct.



                                              6
       On appeal, defendant argues the absence of a particularized showing that the
victim needed the support person violated the confrontation clause. Defendant relies on
People v. Adams (1993) 19 Cal.App.4th 412, which said the presence of a support person
at the witness stand “has an effect on jury observation of demeanor,” which is an aspect
of the Sixth Amendment right to confrontation. (Id. at pp. 437, 441, 443.) Adams cited
United States Supreme Court authority which did not involve support persons but rather
the more problematic issue of allowing victims to avoid face-to-face confrontation with
defendants by testifying behind screens or on closed circuit television. (Maryland v.
Craig (1990) 497 U.S. 836 [111 L.Ed.2d 666] (Craig) [remand for case-specific finding
of necessity for closed circuit television]; Coy v. Iowa (1988) 487 U.S. 1012 [101
L.Ed.2d 857] (Coy) [screen violated confrontation clause, remand for prejudice
determination].) Adams concluded the confrontation clause required the trial court to
demand a showing of need before allowing the victim’s father, who, according to
defendant, abused the victim, to go to the witness stand as the victim’s support person.
(Id. at pp. 443-444.)
       However, the defendants in Adams, Craig, and Coy all raised their objections in
the trial court. (Craig, supra, 497 U.S. at p. 842; Coy, supra, 487 U.S. at p. 1015; Adams,
supra, 19 Cal.App.4th at p. 434.) Consequently, defendant cites no support for imposing
a sua sponte duty on the trial court to require such a showing when there has been no
objection by counsel for the defendant.
       We agree with the People that defendant has forfeited his confrontation clause
claim by failing to raise it in the trial court. (Myles, supra, 53 Cal.4th at p. 1214
[defendant forfeited constitutional claims by failing to object when the victim-witness
advocate accompanied the witness to the witness stand]; People v. Stevens (2009)
47 Cal.4th 625, 641 [defendant forfeited any claim of error by failing to object to the
support person’s presence at trial]; People v. Lord (1994) 30 Cal.App.4th 1718, 1722
[absence of an objection deprived the trial court of the opportunity to correct any

                                              7
procedural error and make an evidence-based finding that the prosecuting witness needed
a support person].)
       Defendant argues there is no forfeiture for several reasons. He maintains the
confrontation clause imposes on the trial court a sua sponte duty to demand a showing of
necessity. Defendant cites no supporting authority. He claims Adams and Craig
“indicate[]” the court has a sua sponte duty to ensure that the requisite necessity exists.
However, the defendants in those cases made appropriate objections in the trial court, and
neither case imposed a sua sponte duty.
       Defendant argues an objection would have been futile “in the face of the statute
and lack of any fair opportunity to object to the abrupt procedure” without “alienat[ing]
the jury.” Defendant claims on appeal that the use of a support person was not discussed
before the victim took the witness stand. However, the defense should not have been
surprised at trial because, as indicated, the victim also used a support person when she
testified at the preliminary hearing (with no objection by the defense), and defendant had
the same defense counsel, Joel Carash, at both proceedings. Moreover, the lack of a
statutory basis for the objection would not preclude an objection based on the
confrontation clause.
       Defendant argues the trial court has a sua sponte duty to ensure that minimum
foundational evidentiary showings are met, and the proponent of evidence has the burden
to make the foundational showing for admissibility. Aside from the fact that the presence
of a support person is not evidence, even foundational evidentiary objections must be
timely raised in the trial court. (Evid. Code, § 353.)
       Defendant contends he did not invite error. He also claims the law is unsettled as
to whether a showing of necessity is required. Neither point excuses the failure to object.
       We conclude defendant forfeited any constitutional challenge to the presence of
the support person at the witness stand.



                                              8
                                               II

                                Response to Jury’s Questions

       Defendant maintains the trial court prejudicially erred in responding to the jury’s
questions about lesser offenses during deliberations. We disagree.

                                         Background

       The jury instructions on all counts listed the four elements by number, and then
included unnumbered paragraphs addressing the defense of consent and reasonable belief
in consent. The trial court instructed the jury on simple assault and battery as “lesser
crime[s].” The court also gave an instruction labeled “DELIBERATIONS AND
COMPLETION OF VERDICT FORMS,” stating: “If all of you find that the defendant is
not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are
convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A
defendant may not be convicted of both a greater and lesser crime for the same conduct.
. . . [¶] It is up to you to decide the order in which you consider each crime and the
relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have
found the defendant not guilty of the corresponding greater crime.” The court instructed
the jurors that if they could not agree whether the prosecution proved defendant guilty of
the greater crime, they should inform the court and not sign any verdict for that count.
       During deliberations, the jury asked the court, “If on charges 3 & 6 & 4 [rape and
digital penetration of intoxicated person] we agree that elements 1, 2, 3, & 4 are true can
we find him guilty of a lesser charge instead of rape of an intoxicated person?”
       Outside the jury’s presence, the trial court interpreted the question as one of jury
nullification and said it would answer “no.” The defense objected that a negative answer
would be misleading, because it ignored the consent defense. The prosecutor expressed
concern that the court not inject itself into jury deliberations.




                                               9
       The trial court told the jury, “the answer to your question is ‘No.’ However, it is
very important that you not single out just part of an instruction and ignore the rest. It’s
very important you take the instruction as a whole. [¶] So on each of those charges . . .
the specific instruction to each of those three charges is about three or four pages long.
It’s very important that you look at the entire instruction and, of course, consider in view
of all the other instructions, the entire instruction the Court gave you. So don’t just single
out part of the instruction, look at the entire instruction before making up your mind.”
       The jury foreperson interjected: “I have an additional clarification. Can the jury
consider at the same time two separate possible charges for the same event? Example:
Consider, for instance, if the defendant is guilty of rape by force or assault, or should we
consider and reach a decision on rape by force, then if determined not guilty, then
consider if he’s guilty of assault.”
       The question led to this colloquy:
       “THE COURT: Yes. You are referring to the lesser crimes.
       “JUROR NO. 10: Correct. My understanding of reading it is we all have to be in
agreement that the greater charge is not guilty [and] then consider the lesser charge.
       “THE COURT: You have got it exactly right. . . . In order to find the defendant
guilty of a lesser-included offense, you have to unanimously agree that the defendant is
not guilty of the greater or charged offense. If you were unable to make a decision on
that, then you have to follow the instructions. And so you are correct.
       “JUROR No. 10: So again, further, we can’t say on the four elements that you
point out guilty on those, but then call it the lesser charge, because if he’s guilty on those
four he’s guilty of whatever that charge, however that charge reads?
       “THE COURT: If after looking at the entire instruction, based upon the entire
instruction you find -- all twelve of you find beyond a reasonable doubt that he is guilty,
then yeah, that speaks for itself.



                                              10
       “JUROR NO. 10: It’s whatever that charge is. We can’t say it’s guilty, but we
are going to say this other charge instead.
       “JUROR NO. 10 [sic]: No. That’s not it.
       “THE COURT: Let me ask you, are you asking if you were to find a defendant
guilty beyond a reasonable doubt, based upon all the evidence and all the instructions,
can you nevertheless ignore that and still find -- still substitute a lesser charge for that, is
that what you are asking?
       “JUROR NO. 10: Yes.
       “THE COURT: The answer to that is --
       “JUROR NO. 10: Do those four elements apply to the lesser charge? . . .
       “THE COURT: No. The lesser charge -- the lesser charges are as I defined,
simple battery and simple assault.
       “JUROR NO. 10: And have their own element[s]?
       “THE COURT: And the only way you get to those is if based upon all the
instructions and all the evidence, you first find the defendant is not guilty of the greater
charge. You can’t get to the lesser unless you find --
       “JUROR NO. 10: Which has to be those elements?
       “THE COURT: That’s correct. The way the instruction reads, if you cannot agree
on whether the defendant is guilty or not guilty of the greater charge, then you simply
can’t agree. That’s all. You can never get to the lesser at that point. Okay. Does that
make it clear?
       “JUROR NO. 10: Yes.”
       The jury resumed deliberations.

                                            Analysis

       Defendant argues the trial court’s “no” answer to the jury’s question was incorrect
and misleading, because the jury could find the numbered elements proven yet still return


                                               11
a verdict on a lesser offense based on the consent defense. Defendant complains the
consent defense was “every bit as significant . . . as the numbered elements,” yet the
defense was not numbered.
          However, the trial court told the jurors to consider the instructions as a whole, not
simply the numbered elements. The court’s answer was correct. In reviewing a claim
that jury instructions were misleading, we ask whether there is a reasonable likelihood the
jury misconstrued or misapplied the instructions in the manner asserted by the defendant.
(People v. Cross (2008) 45 Cal.4th 58, 67-68.) We consider the instructions as a whole
and presume the jurors are intelligent and capable of understanding and correlating the
instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) There is no reasonable
likelihood the jury disregarded the instructions on the consent defense.
          Defendant thinks he showed at least one juror misunderstood the instructions in
his motion for new trial. He submitted a declaration from a defense investigator, who
said Juror No. 3 told him after the trial that she felt defendant was guilty of some sexually
related crime but not rape; she felt the judge did not understand the question; and she
voted guilty of rape only because the jury foreperson said the judge said they could find
guilt or innocence only on the greater charge. However, the remarks attributed to Juror
No. 3 were hearsay and were further inadmissible under Evidence Code section 1150,
which provides in part: “No evidence is admissible to show the effect of [a] statement,
conduct, condition, or event [of such character as is likely to have influenced the verdict
improperly] upon a juror either in influencing him to assent to or dissent from the verdict
or concerning the mental processes by which it was determined.” The declaration is
additionally suspect because it suggests that the court gave the answer only to the jury
foreperson, whereas the court gave the answer in open court in the presence of all the
jurors.
          In denying defendant’s motion for new trial, the trial court stated the investigator’s
declaration about the juror’s remarks was hearsay, “and even if the Court were to

                                                12
consider it, it would have to be done in proper form, even have the juror come in and
testify or at least a sworn affidavit. But it wouldn’t make any difference, because the
only thing the juror is potentially saying here is that she felt that she misunderstood the
instructions of the Court and that somehow the foreman was guilty of giving her some
kind of wrong information. [¶] But that again does, as [the prosecutor] points out here,
that relates to the juror’s mental processes. And you cannot impeach the verdict based on
jurors having buyer’s remorse later on and being -- and now saying that she didn’t
understand the whole thing. There is nothing to indicate here that there was any coercion
applied to her or that she didn’t decide the case in the way she indicated she did when I
polled the jury here. [¶] So even if this juror were to testify according to the declaration
that was presented here, it would not be a basis for the Court granting a new trial. So the
Court is not going to grant the new trial based on that.”
       On appeal, defendant does not defend admissibility of the declaration but instead
says, “[a]dmissible or not,” the juror information is disturbing. It is not, however, a
ground for reversal of the judgment or the order denying a new trial.
       As to the jury instructions on the order of considering the charges, defendant
acknowledges the instructions properly informed the jurors, in accordance with People v.
Kurtzman (1988) 46 Cal.3d 322, 330-331, that they could not return verdicts on lesser
offenses absent a not-guilty verdict on the greater offense. Defendant nevertheless
maintains the trial court violated Kurtzman by suggesting a not-guilty verdict must
actually be returned before the jurors could consider a lesser offense. (Id. at pp. 329,
336.) However, in Kurtzman the trial court instructed the jurors they must agree on the
greater offense before “considering” the lesser offense. (Ibid.) People v. Riel (2000)
22 Cal.4th 1153, 1200-1201, held there was no Kurtzman error where the trial court
instructed the jurors that if they were not satisfied beyond a reasonable doubt that the
defendant was guilty of the charged offense, they could convict him of the lesser. There



                                             13
is no reversible error where there is no reasonable likelihood the jury misconstrued the
instruction. (People v. Dennis (1998) 17 Cal.4th 468, 537.)
       Defendant argues the jury could not understand the court’s responses as anything
but a direction for acquittal first on the greater offense before even deliberating on the
lesser offenses. Defendant is wrong. The trial court expressly instructed the jurors: “It is
up to you to decide the order in which you consider each crime and the relevant
evidence.” The jurors were merely prohibited from returning a verdict on the lesser
crime unless they found the defendant not guilty of the greater crime. And, we note that,
in the original instruction given to the jury on lesser and greater offenses, they were told
that “[i]t is up to you to decide the order in which you consider each crime and the
relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have
found the defendant not guilty of the corresponding greater crime . . . ”
       There is no reasonable likelihood the jury misconstrued the instruction.
       There was no error, and we therefore need not address defendant’s prejudice
argument. We nevertheless note defendant again argues he showed a juror was confused
in connection with his motion for new trial. Again, the inadmissible declaration does not
support reversal of the judgment or the order denying a new trial.

                                             III

                                      Deadlocked Jury

       Defendant argues the trial court coerced a verdict by ordering further deliberations
when the jury reported a deadlock. We disagree.

                                        Background

       The day after the exchange about lesser offenses, the jury reported it had reached
some verdicts but was deadlocked on three counts, which led to the following exchange:




                                             14
         “THE COURT: Okay. As to the counts on which you have not been able to reach
agreement, do you feel that any further instructions by the Court or anything else that we
could possibly aid you with would help you to arrive at verdicts on those counts?
         “JUROR NO. 10: I don’t think so, Your Honor.
         “THE COURT: Okay. Does anybody on the jury feel differently than that?
Anybody think that anything further would be helpful in allowing you to reach a verdict
on the remaining counts? Okay. All right. Let me see the attorneys here. Well, before I
do that . . . how many ballots have you taken on those remaining three counts, do you
remember?
         “JUROR NO. 10: Many. Several.
         “THE COURT: Have the numbers been changing at all? . . .
         “JUROR NO. 10: Yes.
         “THE COURT: Okay. Have they been edging closer to an agreement or further
away. [¶] . . . [¶]
         “JUROR NO. 10: Closer to an agreement.
         “THE COURT: Well. All right. Say the last two ballots you have taken, have
they changed at all or are the number still the same.
         “JUROR NO. 10: I think the last two were the same. If it was changed, it was
minor.
         “THE COURT: . . . But there is some change taking place, though?
         “JUROR NO. 10: Yes, but the final, when we couldn’t get any further, we said ‘Is
anybody -- if we have more discussion, more stuff, is anybody going to change their
vote?’ I think some of the people voting were starting to feel badgered and we didn’t
want to do that, so we just agreed that we weren’t going to come to a unanimous
conclusion.”




                                            15
       The foreperson added, “We had one [count] that has been consistent, we had two
[counts] then, but they were all moving toward one direction or another. Except one
[count] looks like it was consistent.”
       After a bench conference, the trial court told the jurors: “As long as there is some
change taking place, I don’t want to pull the plug on this yet. So I would like you to go
back to the jury room and see if there is any chance that there is going to be any change at
all. I don’t want to declare a mistrial unless there is absolutely no possibility of further
change. So I’m going to ask you to go back to the jury room, discuss it again carefully,
and then let us know. . . .”
       The jury resumed deliberating. The trial court stated, “For the record, again, I
want to say I called the attorneys up to bench and informed them as long as it appeared
there was some possibility of change, the Court was not inclined to declare a mistrial. So
that’s the reason I sent them back.” The court asked if counsel wanted to put anything on
the record, and counsel said no.
       About an hour later, the jury returned its verdicts.
       In rejecting defendant’s motion for new trial on the ground that the court coerced
the verdicts, the trial court stated, “with regard to whether or not the Court was mistaken
in the instruction that it gave the jury when they indicated they were deadlocked on some
counts, and . . . I want to emphasize the jury did not indicate they were deadlocked on the
other counts and they did return a verdict of guilty on Count 8. So it has to be presumed
that they had already decided that count at the time that they considered the counts that
they were still unable to reach a verdict on. So we have gone over this thing several
times. There is no point in repeating it again. We have a transcript of it already. There
will be a transcript of it for review by the appellate court.”




                                              16
                                          Analysis

       Under section 1140, “Except as provided by law, the jury cannot be discharged
after the cause is submitted to them until they have agreed upon their verdict and
rendered it in open court, unless by consent of both parties, entered upon the minutes, or
unless, at the expiration of such time as the court may deem proper, it satisfactorily
appears that there is no reasonable probability that the jury can agree.”
       “[The] determination whether there is reasonable probability of agreement rests in
the sound discretion of the trial court. [Citation.] The court must exercise its power,
however, without coercion of the jury, so as to avoid displacing the jury’s independent
judgment ‘in favor of considerations of compromise and expediency.’ [Citations.]”
(People v. Sheldon (1989) 48 Cal.3d 935, 959 (Sheldon).) Whether coercion has
occurred necessarily depends on the facts and circumstances of the case. (People v.
Sandoval (1992) 4 Cal.4th 155, 195-196.)
       Here, the trial court said nothing coercive.
       Defendant argues the court’s direction for further deliberations was coercive,
because the foreperson said she thought some jurors were “starting to feel badgered” and
there had been no significant movement “recently” despite many votes. However, the
jury at that point had been deliberating for only two-and-a half days, and there had been
movement. Jurors’ opinions that further deliberations will not help does not necessarily
render further deliberations coercive. (Sandoval, supra, 4 Cal.4th at pp. 196-197.)
Moreover, we know that further deliberations did not coerce the jurors into reaching
verdicts, because the jurors ultimately remained deadlocked on one count, resulting in a
mistrial on that count.
       Citing federal case law, defendant suggests the trial court was required to remind
the jurors of their duty “not to surrender conscientiously held beliefs simply to secure a
verdict.” (United States v. Mason (9th Cir. 1981) 658 F.2d 1263, 1268; Rodriguez v.



                                             17
Marshall (9th Cir. 1997) 125 F.3d 739, 750-751.) However, the federal courts require
that instruction when needed to counteract an Allen instruction (Allen v. U.S. (1896) 164
U.S. 492 [41 L.Ed. 528]) stressing the importance of securing a verdict and asking the
jurors to reconsider potentially unreasonable opinions. (People v. Debose (2014)
59 Cal.4th 177, 210.) Here the trial court did not give an Allen instruction.
       We conclude the trial court did not coerce the verdict and did not abuse its
discretion in directing the jury to resume deliberations or in denying defendant’s motion
for new trial.

                                               IV

                                     CALCRIM NO. 373

       Witness McAlister, who testified on behalf of Weldon, admitted on cross-
examination that he, McAlister, fondled the victim’s breasts and kissed her, and he had
been charged with misdemeanor sexual battery.
       On appeal, defendant contends the trial court erred in instructing the jury, without
objection, with CALCRIM No. 373, that “The evidence shows that another person may
have been involved in the commission of the crimes charged against the defendant.
There may be many reasons why someone who appears to have been involved might not
be a codefendant in this particular trial. You must not speculate about whether that other
person has been or will be prosecuted. Your duty is to decide whether the defendant on
trial here committed the crimes charged.”
       Defendant argues the trial court prejudicially erred in failing to add that the
instruction did not apply to other participants who testified at trial. According to
defendant, the instruction chilled jury consideration of McAlister’s motive to shade his
testimony against defendant in order to curry favor with the prosecutor for McAlister’s
own case. Assuming for the sake of argument that defendant has not forfeited this
contention by failing to raise it in the trial court, we reject the contention.


                                               18
       A prior version of this instruction -- the pre-2004 version of CALJIC No. 2.11.5 --
was held to be error when a person who might have been prosecuted for the charged
crime testified at trial, because it chills jurors’ consideration of significant accomplice
witness bias going to credibility. (People v. Hernandez (2003) 30 Cal.4th 835, 875-876
(Hernandez), disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758.)
Former CALJIC No. 2.11.5 used different language, directing jurors not to “discuss or
give any consideration to” why others were not being prosecuted. The concern with that
language was that it might improperly lead a jury to believe it could not consider the
potential bias of a witness who was not being prosecuted because of a grant of immunity
or plea bargain. (People v. Fonseca (2003) 105 Cal.App.4th 543, 549 (Fonseca).)
Hernandez concluded the instruction should not be given when an apparent participant in
the crime testified but accomplice instructions were not given. (Hernandez, supra,
30 Cal.4th at pp. 875-876.)
       The People contend CALCRIM No. 373 corrected the problem by replacing the
admonition not to “discuss or give any consideration to” language with an admonition not
to “speculate” about the prosecution of other participants. The People cite no supporting
authority. Instead, the Bench Notes to CALCRIM No. 373 state “If other alleged
participants in the crime are testifying, this instruction should not be given or the
bracketed portion [that the instruction does not apply to testimony of __] should be given
exempting the testimony of those witnesses. [Citations.] It is not error to give the first
paragraph of this instruction if a reasonable juror would understand from all the
instructions that evidence of criminal activity by a witness not being prosecuted in the
current trial should be considered in assessing the witness’s credibility. [Citation.]”
(Bench Notes to CALCRIM No. 373 (2014) pp. 141-142.)
       The Bench Notes cite, among other cases, Fonseca, supra, 105 Cal.App.4th 543,
which stated, “the Supreme Court has held that, in every case where the jury receives all
otherwise appropriate general instructions regarding witness credibility, there can be no

                                              19
prejudice from jury instruction pursuant to CALJIC No. 2.11.5. In other words, the
potentially prejudicial effect of this instruction in the context of the testifying unjoined
coperpetrator lies not in the instruction itself, but in the rather remote possibility that the
trial court would fail to give otherwise pertinent and required instructions on the issue of
witness credibility. [Citations.] There is no error in giving CALJIC No. 2.11.5 so long
as a reasonable juror, considering the whole of his or her charge, would understand that
evidence of criminal activity by a witness not being prosecuted in the current trial should
be considered in assessing the witness’s credibility. [Citation.]” (Id. at pp. 549-550.)
       Here, the trial court gave full instructions on witness credibility. Moreover,
CALCRIM No. 373 did not hamper the jury’s consideration of McAlister’s bias or
credibility. The instruction is meant to stem speculation about why another participant is
not being prosecuted. Here, the jury learned that McAlister was being prosecuted for his
conduct that night. His potential bias was plain. Contrary to defendant’s implication, the
jury’s request for a read back of McAlister’s testimony does not demonstrate or even
support an inference that the jury misapplied the instruction.
       Defendant suggests Fonseca’s blanket rule of harmlessness is contrary to
Hernandez. We disagree. Hernandez, which involved questions of accomplice liability,
said, “We have frequently said that a jury is not misled by this instruction [CALJIC No.
2.11.5] when the trial court gives the standard instructions on accomplice liability.
[Citations.] Here, however, the court did not give those instructions.” (Hernandez,
supra, 30 Cal.4th at p. 877.)
       Defendant fails to show reversible error regarding CALCRIM No. 373.

                                               V

                                    Motion for New Trial

       Defendant argues the trial court erred in denying his motion for new trial.




                                               20
       “A trial court has broad discretion in ruling on a motion for a new trial, and there
is a strong presumption that it properly exercised that discretion. ‘ “The determination of
a motion for a new trial rests so completely within the court’s discretion that its action
will not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis).)
       Defendant moved for a new trial on multiple grounds. The only grounds he
revisits on appeal under his “motion for new trial” heading are that (1) the trial court
abdicated its duty to reweigh the victim’s credibility, and (2) the trial court failed to make
adequate inquiry as to whether any of his jurors saw him handcuffed and arrested outside
the courthouse by bail bondsmen

                                         Credibility

       Defendant’s motion argued the jury’s finding of forcible rape in the second
encounter (Count 8) was contrary to the evidence as to two elements of section 261,
subdivision (a)(2) -- lack of consent and force. He argued his testimony on consent was
believable, and the victim’s testimony was not. No witness corroborated her testimony
that she screamed, and she admitted she was unable to recall everything due to
intoxication. As to force, defendant incorrectly asserted the jury acquitted him on Count
7 -- forcible rape for the first encounter -- and he considered the evidence stronger for the
first encounter such that the evidence was insufficient for the second encounter.
However, the jury did not acquit him; it deadlocked on Count 7. Defendant’s motion also
argued, without explanation, the evidence was insufficient on Counts 3, 4, and 6.
       In denying the motion for new trial, the court stated, “certainly this is a case where
it uniquely required the jury to listen to both sides. The defendant had an opportunity and
did testify. The victim had an opportunity; she testified. It is really a decision of who is
telling the truth here. There was certainly sufficient evidence, if you wanted to believe
the victim, that the offense occurred and that’s what the jury ultimately decided. [¶] So


                                             21
it’s not up to the Court to weigh the credibility of the witnesses unless there is some
egregious mistake that was made here, and there was simply a matter of the jury deciding
they believed one side as opposed to the other. So it is not a basis for granting a new
trial.” After the trial court addressed each ground in the motion, defense counsel asked if
the court had addressed insufficiency of the evidence. The court replied, “Well, I think it
was covered by the point with regard to the credibility of evidence here or the credibility
of the witness. The jurors weighed the credibility of the witness. They decided who they
felt was telling the truth. And that’s something uniquely that the jury is equipped to do.
[¶] So the Court is going to deny that motion based upon that as well.”
       On appeal, defendant claims the trial court abdicated its responsibility to reweigh
the evidence independently. (§ 1181, subparagraph (6) [trial court may grant new trial
“[w]hen the verdict or finding is contrary to law or evidence]; People v. Robarge (1953)
41 Cal.2d 628, 633 (Robarge) [trial court should decide whether or not, in its opinion,
there is sufficient credible evidence].)
       Robarge stated: “While it is the exclusive province of the jury to find the facts, it
is the duty of the trial court to see that this function is intelligently and justly performed,
and in the exercise of its supervisory power over the verdict, the court, on motion for a
new trial, should consider the probative force of the evidence and satisfy itself that the
evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that
a defendant is entitled to two decisions on the evidence, one by the jury and the other by
the court on motion for a new trial. [Citations.] This does not mean, however, that the
court should disregard the verdict or that it should decide what result it would have
reached if the case had been tried without a jury, but instead that it should consider the
proper weight to be accorded to the evidence and then decide whether or not, in its
opinion, there is sufficient credible evidence to support the verdict. [Citations.]”
(Robarge, supra, 41 Cal.2d at p. 633.) In ruling on a motion for a new trial, “the trial
court must weigh the evidence independently. [Citation.] It is, however, guided by a

                                               22
presumption in favor of the correctness of the verdict and proceedings supporting it.
[Citation.]” (Davis, supra, 10 Cal.4th at pp. 523-524.)
       Robarge held the trial court failed to give the defendant its independent conclusion
as to the sufficiency of credible evidence to support the verdict, where the court stated it
adhered to the rule that the jurors are the sole judges of credibility “even though the Court
disbelieves what the witnesses may have said” and it was “ ‘awfully hard for the Court
. . . to believe’ ” the sole witness who identified the defendant as the perpetrator.
(Robarge, supra, 41 Cal.2d at pp. 633-634.)
       Davis, supra, 10 Cal.4th 463, held the trial court did not abuse its discretion where
it made some statements about the evidence supporting the jury’s findings but also
expressly stated the trial court’s own view that there was strong evidence of
premeditation and deliberation, evidence of planning and motive, and evidence of lack of
consent to kidnapping. (Id. at pp. 523-524.)
       Here, unlike Robarge, the trial court did not state it disbelieved the victim. Unlike
Davis, the trial court here did not expressly state it believed the victim. Nevertheless, in
context it is clear that, based on its own review, the judge concluded there was evidence
of sufficient credibility to support the verdicts. The judge confirmed his appropriate
deference to the jury’s findings and was satisfied that the evidence sufficed to sustain the
findings.
       Defendant fails to show the “manifest and unmistakable abuse of discretion”
required for reversal. (Davis, supra, 10 Cal.44th at p. 524.)

                                  Arrest by Bail Bondsmen

       As defendant was leaving the court one day before his jury began deliberations,
his bail bondsman confronted him outside the courthouse, and handcuffed and arrested
him. The matter was brought to the trial court’s attention. The court stated on the record
that none of defendant’s jurors were there, only perhaps some of Weldon’s jurors, and the


                                              23
court would not make any inquiry because the incident did not involve Weldon. Weldon
suggested his jury be instructed. The court disagreed. Defendant did not request an
inquiry at that time but, with the court’s assent, reserved the right to revisit the matter if
he later discovered something prejudicial.
       After the verdicts, defendant raised the matter in his motion for new trial.
Defendant submitted a declaration from his investigator, who attested he spoke with a
courtroom spectator, Denrik Robertson, who said he and some of the jurors saw the arrest
and handcuffing by bail enforcement officers; he was “one hundred percent sure” more
than one juror saw it; and in particular he recalled an older female juror with salt-and-
pepper hair who saw it.
       In denying the motion for new trial, the court stated, “[t]hat was certainly
unfortunate, but again, there is no evidence here that any juror saw that or was in any way
influenced by it. Obviously the other jury, the Weldon jury, wasn’t influenced by it and
there is nothing here to indicate that the Parker juror[s] even observed. There is no
evidence at all that would suggest that it in any way influenced the jurors’ verdict.”
       The trial court was correct. The investigator’s declaration was insufficient on its
face, because it merely recounted hearsay remarks of a courtroom spectator about whom
nothing but his apparent name was known. Defendant’s implication that he could not get
a declaration from a juror does not explain his failure to present a declaration from the
spectator. Aside from that dispositive hearsay defect, there is no evidence whatsoever
that the woman with the salt-and-pepper hair was on defendant’s jury. Defendant asks us
to assume she was on his jury, because the only courtroom proceedings of interest to a
spectator that afternoon were jury arguments in defendant’s case, since Weldon’s jury
was already deliberating. Defendant acknowledges his jury was released earlier than
Weldon’s jury, but he notes it was only by about three minutes.




                                              24
       Defendant presented no evidence supporting a new trial. He argues the trial court,
at a minimum, should have conducted an inquiry of the jurors after trial. But defendant
neither requested an inquiry nor presented anything sufficient to trigger an inquiry.
       We conclude defendant fails to show the trial court abused its discretion in
denying the motion for new trial.

                                             VI

                                      Cumulative Effect

       In response to defendant’s claim that the cumulative effect of error deprived him
of a fair trial, we have reviewed all claims and conclude there was no cumulative error
warranting reversal of the judgment.

                                        DISPOSITION

       The judgment is affirmed.



                                                          HULL                , J.



We concur:



      RAYE                  , P. J.



      NICHOLSON             , J.




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