Filed 11/24/15 P. v. Partridge CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              Case No. B256860

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA096093)
         v.

CHRISTIAN NOEL PATRIDGE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed.


         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
                                        _________________________
       Defendant and appellant Christian Noel Patridge raises a claim of instructional
error following his conviction of possession of a firearm by a felon, with prior serious
felony conviction and prior prison term enhancement findings. For the reasons discussed
below, the judgment is affirmed.
                                     BACKGROUND
       Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       On June 21, 2013, California Highway Patrol Officer Brandon Bailey made a
traffic stop on a Ford Focus. Defendant Patridge, who was sitting in the front passenger
seat, had been smoking marijuana. When Bailey approached the Ford, he noticed the
odor and asked who had the marijuana. Patridge quickly admitted it was his. Patridge
was visibly nervous and shaking despite the summer heat. As Bailey questioned the
other occupants of the Ford, Patridge kept interrupting and trying to answer for them,
making Bailey suspicious. When asked if he had thrown the marijuana out the window,
Patridge said, “ ‘No, I didn’t want you to think I was reaching for my - -’ ” paused, and
then added: “ ‘It’s in my pocket.’ ” All this made Bailey “very nervous,” so he decided
to investigate further.
       Bailey put Patridge in the back of his patrol car and then searched the vicinity of
the Ford’s front passenger seat. Underneath the seat, Bailey found a 9-mm. handgun
wrapped in a bandana. While sitting in back of the patrol car, Patridge called the Ford
driver’s cell phone and left a message asking her to tell Bailey that whatever he found in
the Ford belonged to her.
       Patridge did not present any evidence at trial.
       Patridge was convicted of possession of a firearm by a felon, with prior serious
felony conviction and prior prison term enhancements (Pen. Code §§ 29800, subd. (a)(1),
667, subds. (b)-(i), 667.5, subd. (b)).1 He was sentenced to a prison term of 14 years.



1      All further statutory references are to the Penal Code unless otherwise specified.


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                                      CONTENTION
       Patridge contends that a jury instruction given midway through deliberations
improperly coerced a guilty verdict from a holdout juror.
                                       DISCUSSION
       1. Background.
       Jury deliberations began on May 6, 2014, after the trial court finished reading a
few final instructions following the parties’ closing arguments. Among these final
instructions were the following:
       “The People and the defendant are entitled to the individual opinion of each juror.
       “Each of you must consider the evidence for the purpose of reaching a verdict if
you can do so. Each of you must decide the case for yourself, but should only do so after
discussing the evidence and instructions with the other jurors.
       “Do not hesitate to change an opinion if you are convinced it is wrong. However,
do not decide any question in a particular way because a majority of the jurors or any of
them favor that decision.
       “[¶] . . . [¶]
       “In your deliberations, do not discuss or consider the subject of penalty or
punishment. That subject must not in any way affect your verdict.
       “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.” (Italics added;
former CALJIC 17.4.1.)
       The jury was excused to begin deliberations at 11:50 a.m. That afternoon, at
4:05 p.m., the jury sent the trial court a note which stated: “One juror is having
‘difficulty’ following the ‘instructions.’ ” Meeting with counsel, the trial court proposed
to convey the following written response to the jury: “The instructions of the court is
[sic] the law. [¶] You must accept and follow the law as I state it to you, regardless of


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whether you agree with it. If anything concerning the law said by the attorneys in their
arguments or at any other time during the trial conflicts with my instructions on the law,
you must follow my instructions. (Instruction 1.00). [¶] If the juror cannot follow the
instruction [sic] for whatever reason, that juror needs to be identified and needs to write
to the court that he or she cannot follow the instructions of the court and, therefore,
cannot discharge his or her duties as a juror.” After both attorneys agreed with this
proposed response, it was sent to the jury.
       At 4:20 p.m., the jury delivered a second note to the trial court stating: “Juror #8
. . . wants evening to think about his decision[.] If given more time, can make a
decision[.]” At that point, the jury was excused and ordered to return the following
morning. The jury resumed deliberations the next day at 9:35 a.m., and reached a verdict
at 10:15 a.m.
       Patridge contends the trial court’s mid-deliberation instruction, given in response
to the jury’s first note, violated his rights to a jury trial and a unanimous verdict.
       2. Legal principles.
       “A jury has the ‘undisputed power’ to acquit, even if its verdict is contrary to the
law instructed upon by the court and contrary to the evidence.” (People v. Fernandez
(1994) 26 Cal.App.4th 710, 714.) Nevertheless, California law disapproves of having a
trial court inform the jury of this inherent power of nullification. (See People v. Baca
(1996) 48 Cal.App.4th 1703, 1707 [“The California cases, while recognizing the jury’s
‘undisputed power’ to acquit regardless of the evidence of guilt, reject suggestions that
the jury be informed of that power, much less invited to use it.”]; People v. Partner
(1986) 180 Cal.App.3d 178, 185-186 [jury should not be instructed on jury nullification;
although jury has raw power to disregard the law, this power should not be legitimized by
an instruction]; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113,
1136-1137 [jury should not be instructed on nullification doctrine; rather, the jury “must
itself identify the case as establishing a call of high conscience, and must independently
initiate and undertake an act in contravention of the established instructions”].)



                                               4
       At the same time, however, trial courts have been directed to refrain from
explicitly advising juries against exercising their power of nullification. Former CALJIC
No. 17.41.1, one such “anti-nullification” instruction, stated according to our Supreme
Court: “ ‘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.’
[Citation.]” (People v. Engelman (2002) 28 Cal.4th 436, 441-442 (Engelman).) This
instruction, which directs jurors to report any fellow juror who refuses to deliberate or
expresses an intent to disregard the law, was one of those given to Patridge’s jury just
before it began deliberating.
       Our Supreme Court held in Engelman that it was not reversible error for the trial
court to have given this anti-nullification instruction. However, Engelman also directed
that the instruction not be given in future cases: “We agree with the Court of Appeal that
the instruction does not infringe upon defendant’s federal or state constitutional right to
trial by jury or his state constitutional right to a unanimous verdict, and uphold the Court
of Appeal’s decision affirming the judgment of conviction. As we shall explain,
however, caution leads us to conclude that in the future the instruction should not be
given in criminal trials in California. Although jurors have no right to refuse to deliberate
or to disregard the law in reaching their decision, we believe the instruction has the
potential to intrude unnecessarily on the deliberative process and affect it adversely –
both with respect to the freedom of jurors to express their differing views during
deliberations, and the proper receptivity they should accord the views of their fellow
jurors. Directing the jury immediately before deliberations begin that jurors are expected
to police the reasoning and arguments of their fellow jurors during deliberations, and
immediately advise the court if it appears that a fellow juror is deciding the case upon an
‘improper basis,’ may curtail or distort deliberations. Any juror is free, of course, to
bring to the court’s attention any perceived misconduct that occurs in the course of jury


                                               5
deliberations. In our view, however, it is not conducive to the proper functioning of the
deliberative process for the trial court to declare – before deliberations begin and before
any problem develops – that jurors should oversee the reasoning and decisionmaking
process of their fellow jurors and report perceived improprieties in that process to the
court.” (People v. Engelman, supra, 28 Cal.4th at pp. 439-440.)
       Engelman also explained that, despite the potential problems raised by giving an
anti-jury nullification instruction, giving the instruction was not reversible error because
“[t]he Court of Appeal was correct in determining that the jury has the duty to follow the
court’s instructions and that the jury lacks the right to engage in nullification” (People v.
Engelman, supra, 28 Cal.4th at p. 441) and, “[a]s defendant hardly can dispute, the jury
must follow the court’s instructions, ‘receiv[ing] as law what is laid down as such by the
court.’ (§ 1126.)[2] A juror who actually refuses to deliberate is subject to discharge by
the court [citation], as is a juror who proposes to reach a verdict without respect to the
law or the evidence. [Citation.] And in cases not involving the death penalty, it is settled
that punishment should not enter into the jury’s deliberations. [Citations.] Finally, the
court does have a duty to conduct reasonable inquiry into allegations of juror misconduct
or incapacity – always keeping in mind that the decision whether (and how) to investigate
rests within the sound discretion of the court. [Citations.]” (People v. Engelman, at
p. 442.)
       3. Discussion.
       As recently as People v. Banks (2014) 59 Cal.4th 1113, 1171 (disapproved on
other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3), our Supreme Court
noted: “We have repeatedly affirmed Engelman’s holding that CALJIC former
No. 17.41.1 [does] not violate a defendant’s right to a fair trial. [Citations.] Nor did
giving CALJIC former No. 17.41.1 violate defendant’s right to due process here, where

2      Section 1126 states: “In a trial for any offense, questions of law are to be decided
by the court, and questions of fact by the jury. Although the jury has the power to find a
general verdict, which includes questions of law as well as of fact, they are bound,
nevertheless, to receive as law what is laid down as such by the court.”


                                              6
there is no suggestion that any juror was hampered in his or her deliberation or was
coerced into changing his or her views as a result of the instruction. [Citation.]”
       In apparent acknowledgment of this prevailing case law, Patridge largely ignores
the fact that CALJIC No. 17.41.1 was given to his jury before it began deliberating, and
instead focuses on the trial court’s response to the first jury note. Trying to analogize to
the so-called Allen dynamite instruction -- used to force a verdict from a deadlocked jury
by directing minority voters to reconsider their verdict in light of the fact they are not in
the majority -- that was disapproved in People v. Gainer (1977) 19 Cal.3d 835, 841-842
(Gainer) (disapproved on other grounds in People v. Valdez (2012) 55 Cal.4th 82, 163),
Patridge argues that the trial court’s mid-deliberation instruction violated due process by
coercing a guilty verdict from his jury.
       In Gainer, the trial court was informed that the jury was having difficulty reaching
a verdict with the numerical count standing at 11 to 1. The trial court responded by
giving the jury an instruction which included the following language:
       “ ‘In a large proportion of cases and perhaps strictly speaking, in all cases,
absolute certainty cannot be attained or expected. Although the verdict to which a juror
agrees must, of course, be his own verdict, the result of his own convictions and not a
mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve
minds to a unanimous result, you must examine the questions submitted to you with
candor and with a proper regard and deference to the opinions of each other. You should
consider that the case must at some time be decided, that you are selected in the same
manner and from the same source from which any future jury must be selected, and there
is no reason to suppose the case will ever be submitted to twelve men or women more
intelligent, more impartial or more competent to decide it, or that more or clearer
evidence will be produced on the one side or the other. And, with this view, it is your
duty to decide the case, if you can conscientiously do so.




                                               7
        “[¶] . . . [¶]
        “ ‘And . . . if much the larger of your panel are for a conviction, a dissenting juror
should consider whether a doubt in his or her own mind is a reasonable one, which makes
no impression upon the minds of so many men or women equally honest, equally
intelligent with himself or herself, and [who] have heard the same evidence with the same
attention and with an equal desire to arrive at the truth and under the sanction of the same
oath.
        “ ‘And, on the other hand, if a majority are for acquittal, the minority ought
seriously to ask themselves whether they may not reasonably and ought not to doubt the
correctness of a judgment, which is not concurred in by most of those with whom they
are associated, and distrust the weight or sufficiency of that evidence which fails to carry
conviction to the minds of their fellows.
        “ ‘That is given to you as a suggestion of the theory and rationale behind jurors
coming to a decision one way or the other.” (People v. Gainer, supra, 19 Cal.3d at
pp. 841-842.)
        Gainer noted that this “instruction, which is of a type commonly referred to either
as the ‘Allen charge’ or the ‘dynamite charge,’ has had a controversial history since it was
cursorily approved by the United States Supreme Court in the case of Allen v. United
States (1896) 164 U.S. 492 [41 L.Ed. 528, 17 S.Ct. 154]. Because it instructs the jury to
consider extraneous and improper factors, inaccurately states the law, carries a potentially
coercive impact, and burdens rather than facilitates the administration of justice, we
conclude that further use of the charge should be prohibited in California.” (People v.
Gainer, supra, 19 Cal.3d at pp. 842-843.)
        In reversing the defendant’s conviction, Gainer detailed the serious problems
presented by this kind of jury instruction: “The first and most questionable feature is the
discriminatory admonition directed to minority jurors to rethink their position in light of
the majority’s views. . . . A second controversial element in Allen-type instructions, not
approved in Allen itself, is the direction given by the court below that ‘You should
consider that the case must at some time be decided.’ ” (People v. Gainer, supra,


                                               8
19 Cal.3d at p. 845.) “The one or more ‘holdout’ jurors are told that in reaching their
independent conclusions as to whether or not a reasonable doubt of the defendant’s guilt
exists, they are to weigh not only the arguments and evidence but also their own status as
dissenters – a consideration both rationally and legally irrelevant to the issue of guilt.”
(Id. at p. 848, fn. omitted.) “Moreover, the extraneous majoritarian appeal contained in
the Allen instruction interferes with the jury’s task in a way which threatens the
defendant’s right under the California Constitution to have his guilt or innocence
determined by the unanimous verdict of a jury of 12 persons. [Citations.] ‘Unanimity
obviously requires that each juror must vote for and acquiesce in the verdict.
Acquiescence simply because the verdict has been reached by the majority is not an
independent judgment, and if permitted, would undermine the right to a unanimous
verdict.’ [Citation.] The open encouragement given by the charge to such acquiescence
is manifestly incompatible with the requirement of independently achieved jury
unanimity. [¶] It follows that even if it were possible to demonstrate that Allen’s
admonition to dissenters were without appreciable effect on a jury, it would nevertheless
be objectionable as a judicial attempt to inject illegitimate considerations into the jury
debates as an appeal to dissenting jurors to abandon their own independent judgment of
the case against the accused.” (Id. at pp. 848-849.)
       Contrary to Patridge’s reasoning, our Supreme Court has expressly rejected any
simple analogy between the dynamite instruction condemned in Gainer and the anti-
nullification instruction cautioned against in Engelman: “[Engelman] acknowledged that
the instruction ‘creates a risk to the proper functioning of jury deliberations and that it is
unnecessary and inadvisable to incur this risk’ [citation], but nevertheless found no
constitutional infirmity with respect to either the right to trial by jury or to a unanimous
verdict. [Citation.] In particular, we rejected the analogy – also drawn by defendant here
– to the ‘dynamite’ instruction disapproved in [Gainer.] ‘CALJIC No. 17.41.1 does not
share the flaws we identified in Gainer. The instruction is not directed at a deadlocked
jury and does not contain language suggesting that jurors who find themselves in the
minority, as deliberations progress, should join the majority without reaching an


                                               9
independent judgment. The instruction does not suggest that a doubt may be
unreasonable if not shared by a majority of the jurors, nor does it direct that the jury’s
deliberations include such an extraneous factor. CALJIC No. 17.41.1 simply does not
carry the devastating coercive charge that we concluded should make us “uncertain of the
accuracy and integrity of the jury’s stated conclusion” and uncertain whether the
instruction may have “ ‘operate[d] to displace the independent judgment of the jury in
favor of considerations of compromise and expediency.’ ” [Citation.]’ [Citation.]”
(People v. Brown (2004) 33 Cal.4th 382, 393.)
       Patridge nevertheless maintains there was error in his case because the trial court’s
mid-deliberation instruction “clearly constituted a direction for a holdout to reconsider
his views.” He asserts: “While not directed at a necessarily deadlocked jury, it is
obvious that there was a dissenter and the instruction was directed at that particular juror.
It directed the dissenter to reconsider his position in light of the majority’s view that he
was having trouble following the law.” (Italics added.)
       We disagree. The trial court’s mid-deliberation instruction, on its face, did not
direct “a holdout juror” to “reconsider his views.” Preliminarily, we would note that
Patridge is merely speculating that Juror No. 8 was a lone holdout juror: the first jury
note did not say a deadlock had been reached, nor that the jury was currently split 11 to 1.
More importantly, though, the trial court’s mid-deliberation instruction did not say any of
the impermissible things that an Allen instruction would have said: it did not “contain
language suggesting that jurors who find themselves in the minority . . . should join the
majority without reaching an independent judgment,” nor did it “suggest that a doubt may
be unreasonable if not shared by a majority of the jurors.” (People v. Engelman, supra,
28 Cal.4th at pp. 444-445.) Instead, the instruction directed Juror No. 8 to notify the
court if he felt he could not follow the jury instructions, and among the instructions Juror
No. 8 heard just before retiring to deliberate was an advisement that “[t]he People and the
defendant are entitled to the individual opinion of each juror,” and that each juror “must
decide the case for yourself” and “not decide any question in a particular way because a
majority of the jurors or any of them favor that decision.”


                                              10
       Hence, none of the improper coerciveness condemned by Gainer was inherent in
the trial court’s response to the first jury note. Moreover, there is no indication that the
problematic aspects of CALJIC No. 17.41.1 identified by Engelman were realized. Once
the first jury note disclosed an issue with respect to one of the deliberating jurors, the trial
court’s subsequent instruction did not “intrude unnecessarily on the deliberative process
and affect it adversely – [either] with respect to the freedom of jurors to express their
differing views during deliberations, [or with respect to] the proper receptivity they
should accord the views of their fellow jurors.” (People v. Engelman, supra, 28 Cal.4th
at p. 440.) The trial court merely repeated its earlier admonition that Juror No. 8, like all
of the jurors, was required to follow the jury instructions, and that he should inform the
court if he believed he could not do so. There was no improper coercion of a guilty
verdict in this case.




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                                    DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




                    ALDRICH, J.




                    JONES, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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