Filed 11/6/15 P. v. Randazzle CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068507
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF145781A)
                   v.

CODY RAYMON RANDAZZLE,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Elisa A Brandes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys
General for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P. J., Detjen, J. and Peña, J.
                                       INTRODUCTION
          Appellant Cody Raymon Randazzle was found guilty of gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 1)1 and driving on a
suspended license, a misdemeanor (Veh. Code, § 14601.1, subd. (a), count 2). The jury
also found true an enhancement allegation for the personal infliction of great bodily
injury (§ 12022.7), and the court found true allegations for a prior strike conviction
(§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a prior conviction for a serious felony
(§ 667, subd. (a)), and that appellant served two prior prison terms (§ 667.5, subd. (b)).
          The court dismissed one of the prior prison term enhancements and sentenced
appellant to an aggregate term of 29 years in prison.
          Appellant argues the trial court abused its discretion by ordering the jury to
continue deliberations after the jury informed the court it could not reach an agreement
on the greater crime charged and needed further guidance to proceed. We disagree and
affirm the judgment.
                       FACTUAL AND PROCEDURAL SUMMARY
Prosecution’s Case
          On October 5, 2012, between 9:00 p.m. and 10:00 p.m., appellant, Chris Brown,
Lawrence Johnson, and Amber Henry, were at Brown’s mother’s home. The group
played dominoes and began drinking brandy and beer. After a couple of hours, the group
decided to drive to appellant’s home. Appellant had consumed between five and six
shots of brandy and some beer.
          Appellant drove Henry’s vehicle, because Henry was too intoxicated to drive.
Johnson sat in the front passenger’s seat, Brown was in the backseat on the passenger’s




1         All undesignated statutory references are to the Penal Code unless otherwise
stated.


                                                2.
side, and Henry sat in the middle backseat, a child’s car seat occupied the backseat on the
driver’s side.
       Brown was awake, but sat with his eyes closed. He estimated the vehicle was
traveling between 40 and 50 miles per hour when he felt it make a quick swerving
motion, similar to a roller coaster. When he opened his eyes, he observed Johnson flail
toward the steering wheel. A few seconds later, Brown felt the vehicle make impact,
which rendered him temporarily unconscious. Emergency responders had to cut the roof
off the vehicle to remove its occupants. Brown was taken to the hospital with a broken
arm.
       Johnson was awake during the incident. He estimated the vehicle was traveling
between 60 and 70 miles per hour when the car made a sudden turn. Johnson, who was
not wearing a seatbelt, started flying toward the driver’s side of the vehicle. He woke up
in the hospital a couple of days later with a fractured neck and brain swelling.
       As Brown was giving a statement to police at the scene of the accident, Henry
stopped breathing. She died as a result of her injuries.
       Appellant was taken to Kern Medical Center. He had red, bloodshot, watery eyes,
and the odor of alcohol on his breath. A blood screen indicated he had a blood-alcohol
content of .18 percent. His blood also tested positive for cocaine, as well as THC, the
compound found in marijuana.
       Bakersfield Police Detective Kevin Fidler spoke to Brown on October 6, 2012, at
6:45 a.m. Just prior to the accident, Brown observed Johnson grab the wheel and try to
turn it counterclockwise to correct the vehicle, which was moving to the right.
       At trial, Bakersfield Police Officer Christopher Bagby testified as an accident
reconstructionist. He determined that the accident was caused by an impaired driver who
made an unsafe turning movement while the vehicle was traveling at a very high speed.
Bagby found no evidence of an attempt to correct the movement of the vehicle. He



                                             3.
explained that if the vehicle had made impact at a lower rate of speed, there would likely
have been no fatalities.
Defense’s Case
       At trial, appellant testified on his own behalf. Appellant admitted he was drinking
brandy and beer prior to driving Henry’s vehicle. He indicated that he drove cautiously
because he felt intoxicated, and did not want to be detained for driving under the
influence. After an argument ensued between him and Johnson, appellant decided to pull
over and wait by the side of the road. As appellant turned the steering wheel to the right
to pull the vehicle over, Johnson unexpectedly grabbed the wheel and jerked it.
Appellant panicked, stepped on the gas, and lost control of the vehicle. He woke up four
days later in the hospital with critical injuries.
Jury Instructions
       On October 23, 2013, at 9:00 a.m., the jury began deliberations. One juror was
dismissed after the court determined he had engaged in misconduct. After the court
reconstituted the jury with an alternate juror, deliberations began again after 3:00 p.m.
The court advised counsel the jury would be permitted to deliberate until 4:30 p.m., at
which time they would be excused for the day and deliberations would resume at
9:00 a.m. the following day.
       Approximately one hour later, at 4:07 p.m., the jury sent a note to the court asking
for further guidance because they were unable to reach an agreement on the greater crime
charged. Around 4:40 p.m., Judge Somers addressed the jury. He read the note back to
the jury and then told them they would be excused for the day, and that deliberations
would resume at 9:00 a.m. the following morning. Judge Somers stated he needed to
know what issues the jury needed guidance on to assist them. He explained that the court
could read back testimony, provide instruction on a point of law, or clarify the law, but
advised that there were limits to what assistance could be provided. The jury was



                                                4.
cautioned not to discuss the case or to express or form opinions on the matter and the
court dismissed the jury for the day.
       The following day, the jury resumed deliberations at 9:00 a.m. and reached a
verdict at 11:37 a.m. The jury found appellant guilty of all counts, and found true the
enhancement allegation against him for inflicting great bodily injury.
                                        DISCUSSION
       Appellant contends the trial court abused its discretion by ordering the jury to
continue deliberations. We disagree.
       Section 1140 provides that “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, . . . 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.” Whether there is a reasonable probability that the jury can agree rests
within the discretion of the trial court. (People v. Halvorsen (2007) 42 Cal.4th 379, 426.)
We will not interfere with the trial court’s discretion absent abuse thereof. (In re
Chapman (1976) 64 Cal.App.3d 806, 815.)
       In People v. Medina (1980) 107 Cal.App.3d 364, 370 (Medina), this court found
the trial court abused its discretion where it discharged the jury after prematurely
concluding the jury was deadlocked. In Medina, the jury notified the court that it was
split six to six, and needed further instructions because there were unanswered questions.
(Id. at p. 369.) Ten jurors indicated further deliberations would be fruitless. (Ibid.) The
trial court declared a mistrial and discharged the jury without asking what instructions or
further information it required. (Id. at pp. 369-370.) This court held that the trial court
was in no position to conclude the jury was unable to reach a verdict, reasoning that a
rereading of the evidence or the instructions may have facilitated a decision. (Id. at
p. 370.)



                                              5.
       Unlike Medina, there is no evidence the trial court here concluded the jury was
deadlocked, and prematurely discharged the jury as a result. We also find no evidence
that the trial court encouraged further deliberations. Rather, the trial court simply
dismissed the jury for the day.
       After one hour of deliberations, the jury sent the court a note that stated the
following: “[w]e are unable to reach an agreement on the greater crime charged. We
need further guidance to proceed.” Because it was already after 4:30 p.m., the time the
jury would ordinarily be dismissed for the day, the court excused the jury and advised
them it would address the jury’s request for assistance the following morning.
       Unlike Medina, where the trial court discharged the jury without asking what
information or instructions it might need to help facilitate deliberations, here, Judge
Somers informed counsel that “[i]t is too short a period of time to draw the conclusion
that the jury is hopelessly deadlocked at this point in time, and they are again asking me
for guidance, and so I’m going to do what I can within the bounds of the law to provide
it.” In addressing the jury, Judge Somers explained the court could provide further
instruction or clarification on the law or read back testimony, and that the jury need only
let the court know what it needed. The trial court acted well within its discretion in
dismissing the jury for the day, and exercised sound judgment by offering the jury any
legally permissible assistance it required. Thus, we find no abuse of discretion.
       Because there is no evidence the jury was deadlocked, or that the court ordered the
jury to continue deliberations, we need not reach appellant’s argument that the jury was
coerced, or that the trial court was required to give a cautionary instruction reminding the
jury not to surrender conscientiously held beliefs to secure a verdict.
       We also note the strong evidence against appellant in this case, and find reversal
would not be warranted even if we did find error. There is no reasonable probability
appellant would have received a more favorable verdict.



                                              6.
                            DISPOSITION
The judgment is affirmed.




                                7.
