Filed 7/15/15 P. v. Smock 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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



THE PEOPLE,                                                                                  C076711

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F07899)

         v.

WILLIAM SMOCK,

                   Defendant and Appellant.




         Defendant William Smock appeals from a judgment of conviction following a jury
trial. Together with codefendant Shanie Phillips, defendant was charged with two counts
of second degree robbery (Pen. Code, § 211 (Counts One and Two))1 related to an Estes2
robbery of merchandise from Sears. In association with Counts One and Two, defendant




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2   People v. Estes (1983) 147 Cal.App.3d 23.

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was separately charged with personal use of a deadly weapon, a knife (§ 12022,
subd. (b)(1)). Additionally, defendant was separately charged with being a felon in
possession of a tear gas weapon, pepper spray (§ 22810, subd. (a) (Count Three)). On the
prosecution’s motion at trial, Count One was dismissed as to both defendant and Phillips.
Subsequently, a jury found defendant guilty of the remaining charges and found the
deadly weapon allegation associated with Count Two to be true. However, the jury was
unable to reach a unanimous verdict as to Phillips.
       On appeal, defendant contends that the trial court prejudicially erred in instructing
the jury with the “firecracker” instruction, CALCRIM No. 3551.
       We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
                                   The Trial Evidence
       Richard Horn, a loss prevention agent for Sears in the Arden Fair Mall, observed
defendant and Phillips on video surveillance in the men’s department. Both had
backpacks with them. Horn observed Phillips pick up a cell phone charger, which she
removed from its package, and a black and gray men’s beanie. Phillips and defendant
then walked to the shoe department where Phillips discarded the charger packaging in a
shoebox.
       Defendant and Phillips left Sears without paying for the items. Angelo Lora-
Gonzalez, another loss prevention agent, approached Phillips as she was leaving the store
and identified himself as a loss prevention officer, showing his badge. He told her that he
“needed to talk about the merchandise she had in her purse.” He testified that Phillips
denied taking anything, began “flailing about,” and then started to take off. Lora-
Gonzalez grabbed Phillips from behind to stop her; at that point, defendant came out of
the store and attempted to intervene. Lora-Gonzalez again identified himself as a loss
prevention officer and explained that he was detaining Phillips for shoplifting. A trainee
loss prevention agent named Joe then tried to assist Lora-Gonzalez by getting in between

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him and defendant. Lora-Gonzalez testified that he thought Joe had control of defendant,
so he “partially released” Phillips while attempting to hold on to the merchandise. He
asked Phillips to come back into the store and told her she was “[j]ust going to be
ticketed,” but she tried to run away again. Because Lora-Gonzalez maintained control
over her purse, she was unable to get away. Defendant then intervened again, this time
with a weapon, allowing Phillips to get away. Phillips dropped her purse as she ran
toward the parking lot, and Lora-Gonzalez started to pursue her but stopped when he
noticed a knife in defendant’s hand. Lora-Gonzalez testified that he then called 911.3
       Horn testified that he came out of the store and saw defendant and Phillips running
through the parking lot. Horn picked up a purse that Phillips dropped. He testified that
he believed but could not recall for certain that the stolen beanie was recovered from
Phillips’s purse. Then he and Lora-Gonzalez chased after them with another loss
prevention officer, Toby Bonine, in Bonine’s car. When they caught up with Phillips and
defendant, the officers asked them to return the stolen property to Sears, advising that if
they cooperated, Phillips would only get a ticket and would get her purse back. Phillips
and defendant continued to flee, running across the freeway, heading towards Auburn
Boulevard. Horn testified that about four police officers arrived in response to his 911
call, and they took Phillips and defendant into custody.
       Officer Joe Thebeau testified that he was one of the arresting officers. He
searched defendant’s person and found a canister of pepper spray and a folded pocket
knife in his pocket. Officer Thebeau also searched Phillips’s backpack and found the
stolen cell phone charger inside. The loss prevention officers identified Phillips and
defendant, and they were placed under arrest.



3 Horn testified that Lora-Gonzalez called 911 a few minutes later, while they were
chasing defendant and Phillips in a car, so that they could give the police an accurate
location. The 911 call was admitted into evidence and played for the jury.

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       The parties stipulated that, on August 13, 2013, defendant was convicted of felony
attempted vehicle theft (§ 664; Veh. Code, § 10851).
                                   Verdict and Sentencing
       The jury found defendant guilty as charged in Counts Two (second degree
robbery) and Three (felon in possession of a weapon), and it found the deadly weapon
allegation associated with Count Two to be true. The jury was unable to return a
unanimous verdict as to Phillips.
       The trial court sentenced defendant to an aggregate term of four years eight
months in state prison, calculated as follows: the midterm of three years on Count Two;
a consecutive eight-month term (one-third the two-year midterm) on Count Three; and
one year consecutive for the weapon enhancement.
                                        DISCUSSION
                                    I. Instructional Error
                      A. Background and Defendant’s Contentions
       The jury began its deliberations at 3:00 p.m. on May 1, 2014. On the third day of
deliberations, May 5, at 11:30 a.m., the jury sent the trial court a note, which stated that it
had reached a unanimous verdict regarding Count 3 (the felon in possession of a teargas
weapon offense), but they were unable to reach a unanimous verdict as to Count Two,
second degree robbery, for either defendant or Phillips. After conferring with counsel in
chambers, the trial court discussed the note further on the record, outside of the jury’s
presence. The court expressed its intention to give the jury the CALCRIM No. 3551
instruction, known as the “firecracker instruction.” Defendant’s counsel objected,
contending “[a]lthough this particular circuit [sic] has approved the giving of the
firecracker, I still believe it invades the privacy of the jury in attempt to get into their
deliberative process, and I believe it’s a violation of both the State and Federal
Constitution under the Fifth, Sixth, and Fourteenth Amendment as well as applicable
section of the California Constitution . . . .”

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       The court responded: “The jury went out last Thursday. They deliberated the
afternoon. They deliberated all day Friday and half a day today, and they’ve asked for
exhibits. They asked for read back. They reviewed the 911 tape as well as the
surveillance tape. So they’re working hard. I’m not going to begrudge them that. Not
like they’re not being very conscientious about their duty as jurors. [¶] However, the
first time a jury comes back and says they cannot reach a unanimous verdict, I think it’s
important to let them know different ways to go about deliberations to try and see if they
can somehow come to a unanimous verdict. If they can’t, they can’t. I always like to
give them at least one shot to do it. [¶] Cal Crim [No. 3551] is an approved instruction
and reading the instruction doesn’t get into the deliberative process but barely [sic] just
gives them the opportunity to re-examine their views and see if they can possibly come
up with a verdict. So that’s what I intend to do.”
       Later the same day, the court advised the jury to continue its deliberations,
instructing them with a modified version of CALCRIM No. 3551, as follows:
       “I can’t say that you have not been diligent in your deliberations in that you’re
working very, very hard. [¶] However, at this time, I’m not quite ready to let you go. [¶]
Sometimes juries that have had difficulty reaching a verdict, are able to resume
deliberations and successfully reach a verdict. Please consider some of the following
suggestions: [¶] Do not hesitate to reexamine your own views. Fair and effective jury
deliberations require a frank and forthright exchange of views. Each of you must decide
the case for yourself and form your individual opinion after you have fully and
completely considered all of the evidence with your fellow jurors. [¶] It is your duty as
jurors to deliberate with the goal of reaching your verdict if you can do so without
surrendering your individual judgment. Do not change your position just because it
differs from that of other jurors or just because you or others want to reach a verdict. [¶]
Both the People and the defendants are entitled to the individual judgment of each juror.
It is up to you to decide how to conduct your deliberations, but you may want to consider

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new approaches in order to get a fresh perspective. One approach may be to take the
opposite side that you’re arguing and argue the opposite side just to get a fresh
perspective on things. [¶] Let me know whether I can do anything to help you further
such as give additional instructions or clarify instructions that I [have] already given you.
[¶] Please continue your deliberations at this time. . . . [¶] Okay. I’ll send you back out
[for] one more shot. Thank you.”
       After receiving the instruction at 2:09 p.m., the jury continued deliberations. At
4:00 p.m., the jury sent a note to the court indicating that it had reached unanimous
verdicts as to defendant on Counts Two and Three but was still unable to reach a
unanimous verdict as to Phillips on Count Two. The court then declared a mistrial on
Count Two as to Phillips and received the jury’s verdicts on Counts Two and Three as to
defendant.
       Defendant contends that the trial court prejudicially erred in instructing the jury
with the “firecracker” instruction and in doing so, displaced the independent judgment of
the jury. Defendant argues that the court effectively delivered an Allen-type instruction
in this case. (See Allen v. United States (1896) 164 U.S. 492, 501-502 [41 L.Ed. 528,
531] (Allen).) He contends that because the jury returned its verdicts in less than two
hours after the court gave the “firecracker” instruction, the instruction likely had a
“coercive effect” on the holdout juror or jurors as to the verdict on Count Two. We
disagree.
                                        B. Analysis
       This court approved the so-called “firecracker” jury instruction to direct the jury to
continue deliberations in an effort to reach a verdict in People v. Moore (2002) 96
Cal.App.4th 1105, 1118-1122 (Moore). The Moore court reasoned: “In [Allen], the
[United States] Supreme Court approved a charge (the Allen charge) which encouraged
the minority jurors to reexamine their views in light of the views expressed by the
majority, noting that a jury should consider that the case must at some time be decided.

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In People v. Gainer (1977) 19 Cal. 3d 835 [(Gainer)], however, our state high court
disapproved of Allen in two respects. The Gainer court found ‘the discriminatory
admonition directed to minority jurors to rethink their position in light of the majority’s
views’ was improper, inasmuch as, by counseling minority jurors to consider the majority
view, whatever it might be, the instruction encouraged jurors to abandon a focus on the
evidence as the basis of their verdict. (Gainer, at pp. 845, 848.) The second issue with
which the Gainer court took issue was the direction the jury ‘ “should consider that the
case must at some time be decided,” ’ noting such a statement was inaccurate because of
the possibility the case might not be retried. (Id. at pp. 851-852.) In other words, it is
improper to instruct the jury in language that suggests that if the jury fails to reach a
verdict the case necessarily will be retried. (Ibid.)” (Moore, supra, 96 Cal.App.4th at
pp. 1120-1121.)
       However, in Moore, this court held that the “firecracker” instruction was
distinguishable from the instruction given in Gainer because “[t]he trial court did not
direct the jurors that ‘the case must at some time be decided.’ ” (Moore, supra, 96
Cal.App.4th at p. 1121, italics added.) Instead, the trial court “instructed that the ‘goal as
jurors should be to reach a fair and impartial verdict if you are able to do so based solely
on the evidence presented and without regard to the consequences of your verdict [or]
regardless of how long it takes to do so.’ ” (Ibid.) The Moore court continued: “Nothing
in the trial court’s charge was designed to coerce the jury into returning a verdict.
[Citation.] Instead, the charge simply reminded the jurors of their duty to attempt to
reach an accommodation. [¶] Additionally, the court directed the jurors to consider
carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views,
and to consider the views of their fellow jurors. Finally, the court instructed that it was
their 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.’ ” (Ibid.) Several years later, in



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People v. Whaley (2007) 152 Cal.App.4th 968, 979-985 (Whaley), the Sixth District
Court of Appeal approved of the same instruction, citing Moore.
       On appeal, defendant did not bother to cite Moore or Whaley, or otherwise address
the reasoning in those two cases. Instead, he cites several Ninth Circuit cases, most of
which predate this court’s opinion in Moore and, in any event, are not binding on this
court. In doing so, defendant conflates Allen or the “ ‘dynamite’ instruction”4 with the
modified version of CALCRIM No. 3551 given to the jury in this case, contending that
the instruction was impermissibly coercive. Defendant’s speculative and ill-supported
argument is belied by the record. The court’s instruction, like the instruction in Moore,
specifically advised the jurors to “fully and completely consider[] all of the evidence with
your fellow jurors,” to “decide the case for yourself,” and to arrive at a verdict only “if
you can do so without surrendering your individual judgment.” As opposed to the more
coercive instruction at issue in Gainer, the “firecracker” instruction “did not implicitly
approve a movement towards unanimity or otherwise send a message that the holdout
juror [or jurors] was to cooperate with the majority. . . . [W]hile the trial court urged the
jurors to continue deliberating, the court also emphasized that the jurors should arrive at a
verdict only if they could do so without violence to their individual judgment.” (Whaley,
supra, 152 Cal.App.4th at p. 984, italics added.)
       Here, as in Moore and Whaley, the instruction was not coercive. It appropriately
encouraged jurors to use different approaches, such as arguing the opposite position, to
“get a fresh perspective.” However, it did not single out holdout jurors, instruct the jurors




4 In Gainer, our high court disapproved of so-called “dynamite” instructions: “[I]t is
error for a trial court to give an instruction which either (1) encourages jurors to consider
the numerical division or preponderance of opinion of the jury in forming or reexamining
their views on the issues before them; or (2) states or implies that if the jury fails to agree
the case will necessarily be retried.” (Gainer, supra, 19 Cal.3d at p. 852.) The
“firecracker” instruction at issue here, like the instruction at issue in Moore, does neither.

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to reconsider their positions in light of the majority opinion, or indicate that the case
would need to be retried if they failed to reach a verdict. (See Gainer, supra, 19 Cal.3d at
p. 852.) When the jurors resumed deliberations, they presumably followed these
instructions because it took almost another two hours to reach a verdict as to defendant
and the jury still could not reach a verdict as to Phillips. In light of these circumstances,
it is not reasonably likely that the jury took the court’s instruction to mean that they were
required to reach a unanimous verdict or that jurors were otherwise coerced into finding
defendant guilty. (See People v. Jablonski (2006) 37 Cal.4th 774, 831 [“In assessing a
claim of instructional error, ‘we must view a challenged portion “in the context of the
instructions as a whole and the trial record” to determine “ ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.” ’ [Citation.]”].) Moreover, in light of the fact that the jury had spent a
little over a day and a half deliberating at the time it received the “firecracker”
instruction, we do not find the additional two-hour deliberation overly-hasty or indicative
of coercion. Accordingly, we conclude that the trial court did not err in giving the jury
the “firecracker” instruction.
                                       DISPOSITION
       The judgment is affirmed.


                                                          MURRAY                , J.


We concur:



      BLEASE                 , Acting P. J.



      NICHOLSON              , J.


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