Filed 6/24/16 P. v. Dwiggins CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144028
v.
DAVID JOSEPH DWIGGINS,                                               (Contra Costa County
                                                                     Super. Ct. No. 5-131099-4)
         Defendant and Appellant.


         In 2013, defendant David Joseph Dwiggins and his wife were in the process of
dissolving their marriage, a marriage that had endured more than 17 years and produced
four children. Economic necessity compelled the couple to live under the same roof,
which was about to be lost through foreclosure.
         On the afternoon of Friday, March 29, the children were at school. Defendant and
his wife were packing up their belongings because they had to vacate the premises on
Monday. Without provocation, defendant began repeatedly striking his wife about her
head and face with a mallet. Defendant then began to choke her, telling her he was sorry
“but this was the only way.” She fought back, escaped, and summoned police.
Defendant was arrested at the scene.
         After deliberating for over three days, the jury convicted defendant of attempted
murder (Pen. Code,1 §§ 187, 664) and inflicting corporal injury resulting in a traumatic
condition (§ 273.5, subds. (a)-(b)). The jury found true enhancement allegations that


         1
             Statutory references are to the Penal Code unless otherwise indicated.


                                                             1
during the commission of these offenses defendant had personally used a deadly weapon
and inflicted great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (e)). The jury
also convicted defendant of assault with a deadly weapon (§ 245, subds. (a)(1)). The trial
court sentenced defendant to state prison for an aggregate term of 12 years. On this
timely appeal, defendant presents two contentions: (1) the trial court exerted undue
pressure on the jury; and (2) his trial counsel was constitutionally incompetent for not
making a motion to suppress highly incriminating material taken from his private
computer.
       There Was No Undue Pressure Exerted On the Jury By the Trial Court
       The case was sent to the jury at 9:54 a.m. on August 20. Just before recessing for
lunch, the jury sent out a number of questions. The remainder of the day was devoted to
answering those questions, and responding to requests for readback of testimony. On
August 21, the jury heard the readback, and spent the day deliberating. The jury was to
resume deliberating on August 25.
       August 25 was a busy day. The court finalized its answers to the last of the
questions sent by the jury on August 21, which included further readback of testimony.
Before sending the answers to the jury, the court received another question from them,
plus two more requests for readback. Just before the lunch break, the court received the
following message: “We are locked on Count one [the premeditated attempted murder
charge]. We have a verdict on Counts two and three. We have been discussing Count
one for three days, have reviewed the evidence and have not had any movement.”
       The court discussed with counsel whether, as the court phrased it, “all of the
readback request should be completed first before the Court reads the Allen2 instruction,
modified, or whether the Allen instruction should be read now to be followed by the
requested readback. [¶] Ms. Maldonado [the prosecutor] thinks that the end request, that
the Allen instruction should be read now. Mr. Kelly’s [defense counsel] view is that it

       2
        A reference to Allen v. United States (1896) 164 U.S. 492, where the United
States Supreme Court approved the use of a so-called “dynamite charge” that was
repudiated for use in California by People v. Gainer (1977) 19 Cal.3d 835.


                                             2
should not be read now, and all the readback request[s] received before the notification
from the jury that they were deadlocked on Count One should be read first followed by
the Allen instruction.” The court was inclined to agree with the prosecutor, but the
question was argued at some length.
         At 2:12 p.m., the court instructed the jury with the following language, taken from
People v. Moore (2002) 96 Cal.App.4th 1105:
         “Ladies and gentlemen, I have further instructions to give you.
         “It’s been my experience on more than one occasion that a jury that initially
reported that it was unable to reach a verdict was ultimately able to arrive at a verdict. To
assist you in your further deliberations, I’m going to give you the following instructions.
         “Your goal as jurors should be to reach a fair and impartial verdict if you’re able
to do so based solely on the evidence presented and without regard for the consequences
of your verdict, regardless of how long it takes to do so.
         “It is your duty as jurors to carefully consider, weigh, and evaluate all of the
evidence presented at the trial, and to discuss your views regarding the evidence, and to
listen and consider the views of your fellow jurors.
         “In the course of your further deliberations, you should not hesitate to re-examine
your own views or to request your fellow jurors to re-examine theirs. You should not
hesitate to change a view you once held if you are convinced that it’s wrong or to suggest
that other jurors change their views if you are convinced they are wrong.
         “Fair and effective jury deliberations require a frank and forthright exchange of
views.
         “As I previously instructed, each of you must decide the case for yourself, and you
must do so only after a full and complete consideration of all of the evidence with your
fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict
on the charge if you can do so without violence to your individual judgment.
         “Both the People and the defendant are entitled to the individual judgment of each
juror.



                                                3
       “As I previously instructed, you have the absolute discretion to conduct your
deliberations in any way you deem appropriate. If I may suggest, since you have not
been able to arrive at a verdict using the methods that you have chosen, that you consider
to change the methods you have been following, at least temporarily, and try new
methods.
       “For example, you may wish to consider having different jurors lead the
discussions for a period of time, or you may wish to experiment with reverse role playing
by having those on one side of an issue present and argue the other side’s position and
vice versa. This might enable you to better understand the other’s positions.
       “By suggesting you should consider changes in your methods of deliberations, I
want to stress I am not dictating or instructing you as to how to conduct your
deliberations. I merely suggest you may find it productive to do whatever is necessary to
ensure each juror has a full and fair opportunity to express his or her views and consider
and understand the views of the other jurors.
       “I also suggest you reread instructions 200 and 3550. These instructions pertain to
your duties as jurors and make recommendations on how you should deliberate.
       “The integrity of a trial requires that jurors at all times during their deliberations
conduct themselves as required by the instructions. Instructions 200 and 3550 define the
duties of a juror.
       “The decision the jury renders must be based on the facts and the law. You must
determine what facts have been proved from the evidence received in the trial and not
from any other source. A fact is something proved by the evidence or by stipulation.
       “Second, you must apply the law as I stated it to you to the facts as you determine
them and, in this way, arrive at your verdict.
       “You must accept and follow the law as I stated it to you regardless of whether
you agree with the law. 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.



                                                 4
       “Instruction 3550 defines the jury’s duty to deliberate. The decisions you make in
this case must be based on the evidence received in the trial and the instructions given by
the Court. These are the matters this instruction requires you to discuss for the purpose
of reaching a verdict.
       “Instruction 3550 also instructs how jurors should approach their task.
       “You should keep this instruction in mind when considering the additional
instructions, comments and suggestions I’m now giving you. I hope these comments and
suggestions may be of some assistance to you.
       “I will ask that you continue your deliberations at this time. If you have questions,
concerns, requests or any other communications you desire to report to me, please put
those in writing on the forms we have provided to you. Have them signed and dated by
your foreperson, or by one or more members of the jury, and then please notify the
bailiff.”
       The jury retired and deliberated from 2:18 p.m. until recessing at 4:29 p.m.
Initially, the court sent the reporter to “read the requested testimony from the defendant”
to the jury, and thereafter worked with counsel on the content of the rest of the readback
for the jury.
       On August 26, the jury deliberated from 9:15 a.m. to approximately 11:40 a.m.,
when it advised the court that it had reached a verdict on count one.3
       Defendant claims the above-quoted instruction amounted to prejudicial error. He
terms it “undue pressure,” not because of its content, but because of its timing. Although
defendant cites People v. Gainer, supra, 19 Cal.3d 835, he does not contend that the
instruction given here was actually coercive or otherwise browbeat the jury in convicting
defendant on count one. Such a claim would have to be rejected. (See People v. Valdez




       3
         The jury acquitted defendant of the charged offense of attempted willful,
deliberate, and premeditated murder, convicting him of the lesser included offense of
attempted murder.


                                             5
(2012) 55 Cal.4th 82, 162–163.)4 Defendant discerns the “undue pressure” in the timing
of the instruction: “the giving of the Allen [sic] charge after receiving the jury’s request
for additional readbacks of testimony, without first providing the testimony they had
requested, interfered with the jury’s task in a way which violated appellant’s
Constitutional right to have his guilt or innocence determined by the unanimous verdict
of a jury of 12 persons.”
       The trial court’s election as to how to respond to the jury’s note of deadlock was
one of several tools at its disposal,5 and would thus be a matter entrusted to the court’s
discretion. (E.g., People v. Ardoin (2011) 196 Cal.App.4th 102, 127–128 [under § 1138
trial court has discretion to decide when supplemental instruction is necessary]; People v.
McCleod (1997) 55 Cal.App.4th 1205, 1219–1220 [under § 1138 trial court has

       4
         Although the instruction in Valdez differed from the one used here, the Supreme
Court’s reasoning is equally applicable: “[T]he instruction defendant challenges here
does not share the vices the Gainer instruction contained. It did not in any way single out
minority jurors or encourage those jurors—if in fact there were any—to consider, along
with the arguments and the evidence, ‘their own status as dissenters.’ . . . Nor did the
instruction either exert pressure on or in any way encourage jurors in the minority to
abandon their independent judgment and acquiesce in a verdict simply because the
majority had reached a verdict. . . . Nor did the court, through its instructions, in any
way indicate or suggest that it favored a particular verdict or even that it had an opinion
as to the proper verdict under the evidence.” (People v. Valdez, supra, 55 Cal.4th 82,
157–158, 162–163; see also People v. Sheldon (1989) 48 Cal.3d 935, 959–960 [examples
of coercive instructions].)
       5
           “(a) Determination
        “After a jury reports that it has reached an impasse in its deliberations, the trial
judge may, in the presence of counsel, advise the jury of its duty to decide the case based
on the evidence while keeping an open mind and talking about the evidence with each
other. The judge should ask the jury if it has specific concerns which, if resolved, might
assist the jury in reaching a verdict.
       “(b) Possible further action
       “If the trial judge determines that further action might assist the jury in reaching a
verdict, the judge may: [¶] (1) Give additional instructions; [¶] (2) Clarify previous
instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4)
Employ any combination of these measures.” (Cal. Rules of Court, rule 2.1036, bold
type omitted.)


                                              6
“discretion to determine what additional explanations . . . are needed to satisfy the
[jury]”]; cf. People v. Young (2007) 156 Cal.App.4th 1165, 1171 [“when faced with
questions from the jury, including that they have reached an impasse, ‘a court must do
more than figuratively throw up its hands . . . .’ ”].) It was, in other words, an exercise of
the court’s discretion to alter the order of procedure. (§§ 1093, 1094; People v. Smith
(2008) 168 Cal.App.4th 7, 14 [“trial courts are vested with wide discretion as to when to
instruct the jury”].) The trial court could reasonably conclude that giving the readbacks
without the instruction would only compound the impasse. On the other hand, the
instruction might allow the jury to reach a verdict without the need for the readback.
Moreover, in making that decision, we must assume the court was aware of the logistical
difficulty in complying with the pending readback request; the decision to send in the
reporter to readback defendant’s testimony was done immediately after the instruction,
but settling the rest of the readback request takes up almost 30 pages in the reporter’s
transcript.
       What we said in People v. Blocker (2010) 190 Cal.App.4th 438, 444 is applicable
here: “The standard test for ascertaining an abuse of . . . discretion is whether the court’s
decision exceeded the bounds of reason. [Citations.] We conclude the signposts of
reason were not passed.”
                  Defendant Has Not Established He Was Denied the
                           Effective Assistance of Counsel
       Defendant contends his trial counsel was constitutionally deficient because he did
not move to suppress damaging evidence retrieved from defendant’s computer.
       During in limine preliminaries it emerged that the prosecution planned to use at
trial a number of incriminating documents and Internet searches downloaded from
defendant’s computer. The prosecutor told the trial court that one document in
particular—known from its salutation as the “Fuck It” letter—was discovered on
defendant’s computer by his daughter, who told her mother, who in turn e-mailed it to
police. A warrant was then obtained authorizing seizure and forensic examination of the
computer. This information was partially verified during the course of an extended


                                              7
hearing pursuant to Evidence Code section 402.6 At trial, and without objection from the
defense, the letter—in the form of a Word document created on March 23, 2013—was
admitted in evidence. So were a number of Internet searches made by defendant,
including “kill with a knife” and “the real way to make a silent kill” (both made on
March 28).
       The wife testified at trial that she and defendant had separate computers.
Defendant’s laptop was for his exclusive use and was not shared with other members of
the family. However, defendant had left his computer running during the assault. The
day after the assault, his daughter began using the laptop (with the wife’s permission),
and found the “Fuck It” document. The wife read it. Horrified that in it defendant wrote
about killing the children, she immediately e-mailed it to the detective in charge of the
investigation. A police officer came to the house and “retrieve[d]” the computer.
       “ ‘ “ ‘Reviewing courts will reverse convictions [on direct appeal] on the ground
of inadequate counsel only if the record on appeal affirmatively discloses that counsel
had no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’ [Citation.]
If the record on appeal ‘ “ ‘sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,’ the claim on
appeal must be rejected,” ’ and the ‘claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.’ [Citation.]” (People v. Vines
(2011) 51 Cal.4th 830, 876.) Defendant cannot satisfy these standards.
       First of all, we must evaluate defense counsel’s acts or omissions in light of what
he or she knew at the time. (E.g., Strickland v. Washington (1984) 466 U.S. 668, 690;
People v. Bolin (1998) 18 Cal.4th 297, 333.) The suppression motion would have to have
been made prior to trial. (See § 1538.5., subd. (f)(1) [“If the property or evidence relates
to a felony offense initiated by a complaint, the motion shall be made only upon filing of

       6
         At the conclusion of the hearing, the court overruled defense objections that the
prosecution had not shown a proper foundation; that the information was not relevant;
and that it should be excluded by reason of Evidence Code section 352.


                                              8
an information . . . .”].) Accordingly, information derived from the ensuing trial cannot
be used in evaluating counsel’s decision to forego a motion to suppress evidence
retrieved from defendant’s computer.
       Second, defense counsel was never asked why he did not make a pretrial
suppression motion. Can there be a satisfactory explanation for that omission? The easy
answer is yes.
       We assume that pretrial discovery made defense counsel aware of two inescapable
realities. The first was that the “Fuck It” document came to light not because of police
actions, but because it was discovered by defendant’s daughter and sent to them by
defendant’s wife. We also assume that defense trial counsel was aware of the elemental
principle that the constitutional prohibition against unreasonable searches and seizures
does not apply to private individuals not affiliated with, or acting on behalf of,
governmental agencies. (E.g., Burdeau v. McDowell (1921) 256 U.S. 465, 475; Jones v.
Kmart Corp. (1998) 17 Cal.4th 329, 332–333; In re William G. (1985) 40 Cal.3d 550,
558.) Counsel could reasonably conclude that any attempt to suppress the letter would
fall to this principle. “[D]efense counsel’s decision not to file a motion he believes will
be futile does not ‘ “ ‘substantially impair’ . . . defendant’s right to effective assistance of
counsel.” ’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 804.)
       The second reality is that police did secure a warrant to examine the contents of
defendant’s computer once it was in their custody. A copy of the warrant, and its
supporting affidavit, are not in the record on appeal. However, we further assume that
trial counsel examined it and was satisfied with its sufficiency. Certainly there is nothing
in the record on appeal to disprove that assumption.
       Defendant’s argument on appeal can also be read as covering the initial acquisition
of defendant’s computer. Granted, no warrant authorized taking it into police possession.
But the context was a family moving out of their home under a deadline. There is no
pretrial information in the record showing that defendant’s wife objected to officers
taking the laptop, or that those officers had any reason to believe she did not have the
ostensible authority to authorize its seizure. Because this too could be viewed as purely


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private action with no Fourth Amendment implications (Burdeau v. McDowell, supra,
256 U.S. 465, 475), defendant’s trial counsel could make the reasonable tactical decision
that there would be scant likelihood of success for a suppression motion aimed at the
laptop’s acquisition by police prior to it being searched pursuant to a lawfully-issued
warrant. (People v. Gutierrez, supra, 45 Cal.4th 789, 804.)
       The judgment of conviction is affirmed.

                                                 _________________________
                                                 Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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