Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIF102529 Robert George Spitzer, Judge. Affirmed with directions.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Teresa Torreblanca and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Philip Patin was drunk and spoiling for a fight. He and his two codefendants managed to get into one with a group of strangers at a gas station. When the dust settled, one of the strangers had been stabbed; Patin, too, had been stabbed. Patin did not have a knife, but one or both of his codefendants did.
Patin was found guilty on three counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Codefendant Jeremy Fields was likewise found guilty on three counts of assault with a deadly weapon, plus an enhancement on one count for personally inflicting great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Fields was also found guilty on one count of vandalism. (Pen. Code, § 594, subd. (a).) Codefendant Nathan Clardy was acquitted of assault with a deadly weapon and vandalism; on two counts, however, the jury deadlocked on the lesser included charge of simple assault (Pen. Code, § 240), and the trial court declared a mistrial on those counts as against Clardy. Thus, Patin’s convictions were necessarily based on the theory that he aided and abetted Fields.
Patin was placed on probation for four years, on terms and conditions including the service of a 150-day jail term.
Patin appeals. He raises four claims of instructional error:
1. The trial court erred by failing to give a unanimity instruction.
2. The trial court erred by instructing that instigation alone could constitute aiding and abetting.
3. The trial court gave erroneous instructions on the “natural and probable consequences” doctrine.
4. After the jury indicated that it was deadlocked, the trial court gave it an erroneously coercive instruction.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Prosecution Version.
1. The confrontation at T.B. Scott’s.
On the night of February 21-22, 2002, a group of young male friends — including Bryan Cooper, Alfred Rios, Aaron Notarianni and Scott Newby — got together at a restaurant and bar in Corona called T.B. Scott’s. While they were there, Cooper and Notarianni had four or five cocktails each; Rios had five or six beers.
The three counts of assault with a deadly weapon named Cooper, Rios, and Notarianni, respectively, as victims.
Around 1:30 or 2:00 a.m., they left. Cooper and Newby got into Cooper’s Ford Expedition. Notarianni and Rios got into Rios’s Infiniti. Notarianni was driving. They all waited for another acquaintance, who was talking to some women (and who eventually decided to leave with the women).
Meanwhile, defendants Philip Patin and Nathan Clardy were walking in the parking lot. Patin appeared to be drunk. He seemed “menacing,” like he was “looking for trouble.” As he was walking past the Infiniti, he said something like, “Nice fucking car,” then spat toward the car. He leaned against the driver’s side door and said, “I’d do anything for a car like this.” Clardy then walked up next to Patin and said, “[T]hese guys are all right. . . . Leave them alone.” He guided Patin away. They got into a black Dodge pickup truck.
Cooper pulled up next to Notarianni and suggested buying some chips and cigarettes. They agreed to stop at a nearby Shell gas station.
2. The confrontation at the Shell station.
Notarianni and Cooper both drove to the Shell station and parked at the gas pumps. Rios stayed outside, talking to a couple of girls, while the other men went into the minimart and made their purchases.
As they went back outside, they saw the black Dodge pickup in the street; it was about to turn left, away from the gas station. Several people in the pickup were yelling “something offensive.” Someone in the group at the gas station yelled something back.
At that point, instead of turning left, the pickup turned right, toward the gas station. It entered the gas station quickly, tires squealing, and stopped by a pump. Clardy got out of the driver’s side. Patin and defendant Jeremy Fields got out of the passenger side.
Notarianni, who had been an offensive lineman in college, was six feet four inches tall and weighed about 355 pounds. He said, “Hey, these guys are coming up to start trouble,” adding, “Let’s get out of here.”
Patin and Fields walked up to Cooper and Newby. Fields said, “What’s up, [m]otherfucker?” Patin said, “What are you going to do?” Rios said, “We don’t want any problems.” Meanwhile, Clardy walked past them “in an aggressive manner”; he may have gone into the minimart, but Notarianni felt that he was trying to get behind them.
A fistfight began -- Patin against Cooper and Fields against Newby. Nobody could remember who threw the first punch. The fight moved toward a grassy area, where Patin fell.
Fields “jumped in on” the fight between Patin and Cooper. He was holding a knife. Cooper felt Fields “c[o]me in contact” with him.
Notarianni, seeing the knife, rushed Fields, football style, and knocked him off his feet. Fields got back up and came at Notarianni, “swinging the knife really erratically.” Notarianni backed away, saying “Whoa, whoa, whoa, whoa.” Meanwhile, Clardy reappeared; now he, too, was holding a knife. He moved toward Notarianni, saying, “Let’s go, fat boy,” and toward Cooper. They backed away. At this point, Patin was lying in the grass, evidently unconscious.
Notarianni, Cooper, and Rios ran to the minimart. They tried to open the door but found that it had been chained shut. Notarianni screamed to the attendant to let them in, but he refused. However, the attendant did call 911.
Clardy yelled, “One of you guys got stabbed.” Cooper realized it was him. He pulled up his shirt; some of his intestines were protruding through the open wound. Clardy or Fields said, “Yeah, that’s right, motherfuckers. Who else wants to get stuck?”
At least according to Rios, Patin had rejoined Clardy and Fields; Patin said, “You’re fucking dead.” Notarianni said, “You guys win. . . . Let us get our friend to the hospital.” Rios added, “Let us go. Let us get him to the hospital.” Clardy put his knife away; Fields lunged toward Notarianni and Rios but did not actually stab them.
Notarianni said, “I’m on the phone . . . calling 911.” Clardy and Fields then went over to the Expedition and slashed the tires. All three defendants got back in the pickup and left.
Cooper was taken to a hospital, where he was found to have a stab wound to the right upper abdomen. Emergency surgery was performed, and he survived; without the surgery, however, it was “[h]ighly likely” that he would have died.
B. The Defense Version.
1. Patin’s statements to the police.
a. First statement.
Patin went to a different hospital, where he was treated for a stab wound. The police were called, and they interviewed him there.
He appeared to be intoxicated. He said he had been stabbed at the Shell station, but he could not remember being stabbed or who stabbed him. All he could remember was that a large white man had yelled at him. He said he had been with a couple of friends named Nate and Jeremy; he denied knowing their last names. A friend whose name he did not know, driving a red Chevy Blazer, had dropped him off at the hospital.
b. Second statement.
Later that morning, the police interviewed Patin again, this time at the police station. He said he had been out drinking with friends, including Clardy and Fields. By the time they left T.B. Scott’s, he was drunk.
They went to a gas station, where “a big white dude and a couple of his homies” were staring at them and “started to say some shit.” Clardy went to buy gas, but Patin and Fields got out and walked over to the other guys. Patin asked, “What the fuck is your problem?” A fight broke out. Patin could not remember who threw the first punch.
Patin got knocked down. Clardy and Fields helped him back to the pickup. He did not know he had been stabbed until he got back to the pickup. He did not see anyone with a knife. He denied having a knife or stabbing anyone.
2. Testimony of Clardy.
According to Clardy, he had had three beers all evening, and he was not drunk. Patin was drunk and “a little obnoxious, but not aggressive.”
When they left T.B. Scott’s, they had to walk past the Infiniti to get to Clardy’s pickup. Patin went up to the Infiniti and put his hands on the door. Notarianni got out of the car and stood in “an offended posture.” Clardy walked over and said, “What’s up?” Notarianni replied, “I don’t know. What’s up?” They went back and forth in this vein several times until Clardy said, “We’re cool. We ain’t got no problem.” Notarianni agreed, “We’re cool.” At that point, Clardy felt “[i]t was over.”
As they were driving by the gas station, Patin yelled something toward “a group of guys” there. Clardy told him to shut up. Clardy was about to turn left when he noticed that his gas light was on, so he turned right instead and went into the gas station. Patin said, “There’s those guys.” Clardy ordered Patin to stay in the pickup while he went in to pay for gas. On the way in, he passed Notarianni, who did not react.
Clardy was just paying when he saw a group of guys attacking Patin. As he went back outside, he saw two or three guys heading back toward the Infiniti and the Expedition; somebody said, “We fucked ’em up.” Patin was lying near the grass; he was dazed, and “his whole face . . . was bloody.” Clardy helped him get up and get into the truck.
Clardy started pumping his gas. Patin got out of the truck and headed toward the “other guys” until Clardy stopped him. Patin then said, “My back. I fell on something.” Clardy looked at Patin’s back and discovered that he had been stabbed. He helped Patin back into the pickup. Just then, Fields came running up and jumped into the pickup. His nose was “split open,” and there was a lump on his back.
Clardy and his friends drove away. They stopped at Fields’s house, then dropped Patin off at the hospital. When Clardy heard the police were looking for him, he went to talk to them voluntarily. He denied having a knife. He also denied slashing any tires.
3. Testimony of Fields.
According to Fields, he was “buzzed up” but not drunk. He did not see the confrontation in the parking lot of T.B. Scott’s. However, he did hear Patin yelling out of the window of the pickup.
At the gas station, Clardy went inside to buy gas. Fields stayed in the pickup, but Patin “jumped out.” Fields then heard yelling; he looked up and saw three “guys” coming toward Patin. Patin had his hands up. The guys punched Patin, who fell to the ground.
Fields got out of the truck and ran to help Patin. The other guys were on top of Patin, punching and kicking him. When Fields punched and kicked one of them, they started coming toward him. A “big ol’ guy” (i.e., Notarianni) punched Fields, and he fell. The other guys were punching and kicking him. Fields pulled out his pocketknife and started “jabbing [it] in the air” to make them get away from him. They all jumped back, saying, “He’s got a knife.” Fields did not know that he had stabbed anybody. However, he admitted that he did not see anybody else with a knife.
As he got back up, he saw Patin on the ground. His face was all bloody. Fields helped him up and took him to the pickup.
Clardy came back to the pickup and started pumping gas. Fields yelled, “Let’s get the hell out of here.” He admitted “popp[ing] the tires” of the Expedition so it could not be used to chase them.
When Fields learned that the police were looking for him, he contacted his attorney, then turned himself in. He also gave them his knife. There were traces of blood on it from two different people, but it could not be determined whose blood it was.
II
DISCUSSION
A. Failure to Give a Unanimity Instruction.
Patin contends that the trial court erred by failing to give a unanimity instruction (e.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3500) in connection with the charges of assault with a deadly weapon on Cooper and on Rios. He argues that the evidence showed two separate knife attacks on each of these victims — one by Fields and one by Clardy.
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 422-423.) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (Ibid.)
A continuous assault constitutes a single discrete crime, even if it is committed first with one deadly weapon and then with another. For example, in People v. Oppenheimer (1909) 156 Cal. 733, the defendant was charged with assault with a deadly weapon. The evidence showed that first, he struck the victim with a window weight; then, he grabbed a knife and cut the victim with it. (Id. at pp. 736-737.) The Supreme Court held that prosecution did not have to elect between charges of assault with the weight and assault with the knife: “We think it is manifest that there was but a single assault shown by this evidence . . . . The mere fact that two weapons are used does not necessarily show two assaults. If one unlawfully assails another with his two hands, first striking at him with one hand and immediately thereafter with the other, no one would say that there were two offenses. The offense would be the one unlawful attempt, coupled with a present ability, to commit a violent injury upon the other’s person, and each effort made in what constituted only the same attempt to accomplish this result would constitute only a single element of that attempt. . . . The evidence . . . in this case tended to show one continuous transaction, one assault in which two weapons were used.” (Id. at p. 740.)
Here, similarly, the evidence showed one continuous assault on all three victims, even though the means of the assault changed — from Patin’s fists, to Fields’s knife, to Clardy’s knife. The jury would not have been allowed to find Patin guilty of three separate assaults on any one victim. Likewise, it would not have been allowed to find him guilty of two separate assaults with a deadly weapon on any one victim. Accordingly, a unanimity instruction was not required.
Separately and alternatively, the asserted error was harmless beyond a reasonable doubt. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.) The jury acquitted Clardy on all three counts of assault with a deadly weapon. Thus, it must have been unanimous that Patin was guilty of assault with a deadly weapon based solely on the knife attacks by Fields.
B. Conviction under an Aiding and Abetting Theory Based on Instigation Alone.
Patin contends that the jury was allowed to convict him on the legally invalid theory that instigation alone can constitute aiding and abetting. According to him, the evidence showed that he did not aid in or assist any of the assaults with a deadly weapon; at most, he merely instigated them, by means of his “intoxicated bellow[ing] . . . .”
We do not agree that there was insufficient evidence of actual aiding. Patin personally engaged in a fistfight with Cooper. The jury could reasonably find that this not only furthered the group assault on Cooper, but also furthered the group assault on Notarianni and Rios, by keeping Cooper occupied. However, this evidence did not prove that Patin actually aided all three assaults as a matter of law. Thus, we do agree that the jury might have convicted him on the theory that he merely instigated at least some of the assaults.
The People argue that Patin forfeited this contention by failing to request an amplifying or clarifying instruction. “‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012, quoting People v. Andrews (1989) 49 Cal.3d 200, 218.) Here, however, Patin is essentially contending that the relevant instruction was not “correct in law.” Hence, he had no duty to request a clarification or to object. (Hudson, at p. 1012.)
In arguing that instigation is insufficient, Patin relies on People v. Elliott (1993) 14 Cal.App.4th 1633, in which this court held that the crime of being an accessory after the fact under Penal Code section 32 requires “aiding” — which we defined as help or assistance — as well as “abetting” — which we defined as encouragement or incitement. (Elliott, at pp. 1641-1642.) We relied, in part, on cases defining “aiding” and “abetting” for purposes of Penal Code section 31. (Elliott, at p. 1641 & fns. 7, 8.) However, we did not purport to decide whether Penal Code section 31 itself required both aiding and abetting. Subsequent cases have rejected the argument that the holding in Elliott should be extended to apply to Penal Code section 31. (People v. Booth (1996) 48 Cal.App.4th 1247, 1255; People v. Campbell (1994) 25 Cal.App.4th 402, 410-414.)
Penal Code section 31 defines what is normally referred to as aiding and abetting. Despite this shorthand description, however, the actual definition of this theory of criminal liability, as pertinent here, is as follows: “All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or [1] aid and abet in its commission, or, [2] not being present, have advised and encouraged its commission, . . . or . . . [3] by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.” (Ibid.) Thus, guilt may be premised on aiding and abetting; alternatively, however, it may also be premised on advising and encouraging.
Admittedly, the statute uses the words “not being present” before “advis[ing] and encourag[ing].” It would be highly anomalous, however, to criminalize advising and encouraging from a distance, but not advising and encouraging at the scene. Accordingly, it has long been established that a “person who advises and encourages the commission of the crime while present at its perpetration” is guilty under Penal Code section 31. (People v. Holford (1965) 63 Cal.2d 74, 81.) The Supreme Court has approved of instructions that allow the jury to find the defendant guilty as long as he or she, “by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561, italics added; accord, People v. Perez (2005) 35 Cal.4th 1219, 1234.)
Patin argues that “it is . . . error to instruct a jury that one may be found guilty as a principal if one aided or abetted. [Citations.]” (People v. Beeman, supra, 35 Cal.3d at p. 556.) However, this is not because abetting alone is not enough. Rather, it is because aiding alone is not enough: “[A]n aider and abettor must have criminal intent in order to be convicted of a criminal offense. [Citations.] Decisions of th[e Supreme C]ourt dating back to 1898 hold that ‘the word “abet” includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime’ and that it is therefore error to instruct a jury that one may be found guilty as a principal if one aided or abetted. [Citations.] The act of encouraging or counseling itself implies a purpose or goal of furthering the encouraged result.” (Ibid.)
We therefore conclude that the jury was not misinstructed on the elements of aiding and abetting liability and was not allowed to convict Patin on an improper legal theory.
C. Instructions on the “Natural and Probable Consequences” Doctrine.
Patin contends that the trial court gave erroneous instructions on the “natural and probable consequences” doctrine.
1. Additional factual and procedural background.
a. Main jury instructions.
The trial court instructed the jury with CALCRIM No. 400 (“Aiding and Abetting: General Principles”) and No. 401 (“Aiding and Abetting: Intended Crimes”).
The prosecution requested CALCRIM No. 403 (“Natural and Probable Consequences (Only Non-Target Offense Charged)”). Counsel for all three defendants objected. The trial court refused to give that instruction, explaining, “The language . . . is confusing.”
Apparently the prosecution also requested and drafted a special instruction on the natural and probable consequences doctrine. However, the text of that instruction is not in the record. The trial court refused to give this instruction, too. Instead, it drafted an instruction itself, which it drew from People v. Mendoza (1998) 18 Cal.4th 1114, People v. Prettyman (1996) 14 Cal.4th 248, and People v. Gonzales (2001) 87 Cal.App.4th 1.
The trial court therefore instructed:
“A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime, but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime.
“‘A natural and probable consequence’ is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, you should consider all of the circumstances established by the evidence. The question is not whether the aider and abettor actually foresaw the additional crime[,] but[] whether judged objectively, it was reasonably foreseeable.”
The trial court also instructed on the elements of simple assault; it then instructed the jury that, if it found any defendant not guilty of aggravated assault, it could still convict him of simple assault as a lesser included offense. (CALCRIM Nos. 915, 3517.)
b. First supplemental jury instruction.
During deliberations, the jury sent out the following question:
“Ref. [CALCRIM No. 401]: Aiding or Abetting.
“‘The defendant knew that the perpetrator intended to commit the crime.’ Does ‘the crime’ above mandatorily refer to Section 245a[,] Assault with a deadly weapon[,] or may it refer to the lesser charge of Simple Assault (Section 240)? May we find one or more guilty of 245 and one or more guilty of 240?”
The trial court responded orally, as follows:
“[THE COURT:] The answer to that question is it depends. It depends on what you determine to be the facts. The crime may obviously refer to a violation of Penal Code Section 245, but it may also refer to a violation of Penal Code Section 240, or simple assault, if you find that under all the circumstances of this case the violation of Penal Code Section 245 was a natural or probable consequence of the simple assault.
“Here I would direct your attention to the language . . . in [the natural and probable consequences instruction]. Quote, ‘A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime, but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime.’ And then I define natural and probable consequence in that instruction. . . .
“Does that answer your question?
“[FOREPERSON]: I don’t think so, sir. There was another line in our question.
“THE COURT: Well, the next question . . . was, ‘May we find one or more guilty of 245 and one or more guilty of 240?’ And the answer to that question is simply yes.
“If on any given charge involving one of the victims you can find — you have three defendants. You can find one or more guilty of the 245, or one or more guilty of the 240. And that operates on each of the counts because they’re all — they can be separate and different combinations. [¶] . . . [¶]
“[FOREPERSON]: All right. We were confused in the aiding and abetting aspect in that it seemed to imply if one was guilty of 245, the others, by their presence, were also guilty of aiding and abetting.
“THE COURT: No. Mere presence at the scene of a crime in and of itself is not aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it is not aiding and abetting. One must meet all of those elements[,] which include an activity which, by its very nature, aids, encourages, instigates, or promotes the commission of the crime, and that may be by act or words, and it requires a certain mental state on the part of that person who is acting as the aider and abettor. That is[,] they must intend to support the commission. They understand what’s going on, and they enter into it. They’re not simply passive.
“[FOREPERSON]: All right.”
c. Second supplemental jury instruction.
Later, the jury sent out another question: “Can the court provide any additional information regarding [the natural and probable consequences instruction]. We are arguing about the interpretation of the law as it regards to this. ‘Natural and probable consequence[,]’ ‘reasonably foreseeable[,]’ ‘judged objectively[,]’ by who[?]”
The trial court responded in writing, as follows:
“With regard to determining whether a defendant is guilty of a violation of Penal Code § 245(a)(1), assault with a deadly weapon or by means of force likely to produce great bodily injury, under the theory that he was ‘aiding and abetting’, ask the following questions:
“1. Did the defendant do an action that in fact aided, facilitated, promoted, encouraged or instigated another individual [‘perpetrator’] to commit an assault with a deadly weapon or by force likely to produce great bodily injury on another person [‘alleged victim’]?
“2. Did the defendant intend that his action would aid, facilitate, promote, encourage or instigate the perpetrator in committing an assault on the alleged victim?
“3. Did the perpetrator in fact commit an assault on the alleged victim with a deadly weapon or by means of force likely to produce great bodily injury?
“4. Under all of the circumstances at the time, if nothing unusual happens, would a reasonable person in the defendant’s situation[] know that the commission of an assault with a deadly weapon or by means of force likely to produce great injury [sic] is likely to be committed by the perpetrator if a simple assault is committed?
“If you find beyond a reasonable doubt that each of the above questions is answered ‘yes,’ then you should find the defendant guilt[y] of a violation of Penal Code § 245(a)(1), under the theory that the defendant aided and abetted the perpetrator.
“If you find that any of the above questions are answered ‘no,’ then the People have not proved the defendant’s guilt under a theory of aiding and abetting the perpetrator, and you must vote not guilty.
“The phrase ‘judged objectively’ . . . means as judged by a reasonable person in the same situation as the defendant, knowing what the defendant knew at the time. [¶] . . . [¶]
“This instruction is meant to supplement my prior oral and written instructions and to answer the jury’s questions . . . . It is not meant to replace or change any of my prior instructions. You should consider all of the Court’s instructions, both oral and written, in arriving at your remaining decisions in this case.”
2. Analysis.
Under the natural and probable consequences doctrine, “a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman, supra, 14 Cal.4th at p. 254.)
People v. Woods (1992) 8 Cal.App.4th 1570 dealt with the situation in which the nontarget crime is not a natural and probable consequence of the target crime. It held that, under those circumstances, the aider and abettor can be guilty of the lesser, target offense, even though the perpetrator is guilty of the greater, nontarget offense. (Id. at pp. 1577-1578, 1586-1591.)
Patin focuses on that portion of the trial court’s second supplemental instruction that told the jurors that, if they answered four questions “yes,” they “should find the defendant guilt[y] of a violation of a violation of Penal Code § 245(a)(1),” but if they answered any of the questions “no,” they “must vote not guilty.” He argues that, by presenting it with this stark “yes” or “no” decision, the trial court essentially instructed the jury — contrary to Woods — that it could not find an aider and abettor guilty of simple assault once it found the perpetrator guilty of aggravated assault.
The second supplemental instruction, however, standing alone, was legally correct because it applied exclusively to aggravated assault. First, it said that, if the jurors answered all four questions “yes,” they “should find the defendant guilt[y] of a violation of Penal Code § 245(a)(1) . . . .” This was legally correct, under Prettyman. Second, it said that, if the jurors answered any of the questions “no,” they “must vote not guilty.” But not guilty of what? Clearly, the trial court was referring to aggravated assault; this is apparent from the very beginning of the instruction — “With regard to determining whether a defendant is guilty of a violation of Penal Code § 245(a)(1) . . . .” This, too, was legally correct, even under Woods. The instruction in no way prevented the jury from finding Patin guilty of simple assault; it did not address simple assault at all.
Patin seems somewhat confused on this point. He asserts at least four times that the vice of the instruction was that it required the jury to find him guilty of aggravated assault “if it concluded that the ‘natural and probable consequence’ theory applied.” The fact is, however, that if the jury concluded that the natural and probable consequences doctrine did apply — i.e., if it found that Patin intended to aid and abet a simple assault, that the perpetrator committed an aggravated assault, and that an aggravated assault was a natural and probable consequence of the intended simple assault — then, under Peterson, it was required to find him guilty of aggravated assault.
Moreover, it is axiomatic that “‘“‘[a] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” [Citation.] . . . [Citation.]’” (People v. Huggins (2006) 38 Cal.4th 175, 192, quoting Middleton v. McNeil (2004) 541 U.S. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701], quoting Boyde v. California (1990) 494 U.S. 370, 378 [110 S.Ct. 1190, 108 L.Ed.2d 316], quoting Cupp v. Naughten (1973) 414 U.S. 141, 147 [94 S.Ct. 396, 38 L.Ed.2d 368].) In its second supplemental instruction, the trial court specifically reminded the jury of this principle.
In its original instructions, the trial court had correctly instructed the jury that, if the prosecution failed to prove that a defendant was guilty of aggravated assault, it could still find that defendant guilty of simple assault. Then, in its first supplemental instruction, the trial court had also correctly instructed the jury that it could find one or two defendants guilty of aggravated assault, yet still find the remaining defendant(s) guilty of simple assault. The second supplemental instruction in no way contradicted the earlier instructions. We therefore reject Patin’s claim of error.
D. The Trial Court’s Instruction to the Deadlocked Jury.
Patin contends that, when the jury indicated that it was deadlocked, the trial court erred by giving it an unduly coercive instruction.
1. Additional factual and procedural background.
At 3:20 p.m. on its first full day of deliberations, the jury sent out the following note: “We are unable to reach a decision on the 245 assault with a deadly weapon charge against two defendants. We cannot go further after (7-8) seven or eight votes, we are deadlocked. . . . [¶] What next?” The trial court responded in writing that the jurors should “[t]ake a deep breath” and continue to deliberate.
By 4:00 p.m., counsel for both sides had returned to court to discuss the jury’s question. The trial court expressed concern about Juror No. 11, “who had previously informed the Court and counsel” that she was due to go on a vacation two days later.
The trial court had the jury brought back in. The foreman reported that the jurors had continued to deliberate and had taken another vote, but they remained deadlocked. With respect to the assault charges against Patin, they were split nine to three. In response to the trial court’s inquiries, Juror No. 11 confirmed that she could only deliberate for one more day.
The trial court acknowledged that the jurors had been “hard at work,” though it suggested that they had been “spending a lot of time balloting and maybe not sufficient time discussing things.” It then instructed the jury:
“It’s been my experience on more than one occasion that a jury that initially reports that they’re unable to reach a verdict or arrive at a decision ultimately will be able to arrive at a unanimous verdict. The goal as jurors that you should have is 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 the verdict, regardless of how long it takes.
“It’s your duty as jurors to carefully consider and weigh and evaluate all of the evidence presented in the trial and to discuss your views regarding the evidence and to listen to and consider the views of all of your fellow jurors. That means all 11 other people. In the course of your deliberations, you shouldn’t hesitate to reexamine your own views or to request fellow jurors to reexamine theirs. You should not hesitate, as I told you before, to change an opinion if you are convinced that it is wrong or to suggest to other jurors to change their views if you are convinced that they are wrong. Fair deliberations require a frank and forthright exchange of views. [¶] . . . [¶]
“As I have told you before, each of you must decide this case for yourself, but you should do so only after a full discussion of these facts and the evidence with the other members of the jury. It’s your goal to deliberate with the aim 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 opinion of each and every juror. . . .
“You have absolute discretion to conduct your deliberations in any way that you deem appropriate. However, I would suggest that since you have not been able to arrive at a unanimous verdict in going about it in the way that you have chosen to go about it, that you perhaps change some of the methods that you have been following, at least temporarily, and try some new methods.
“For example, you may try to have different jurors lead the discussions. I don’t know if you have had one person lead the discussions or not. Sometimes that’s helpful. You may reverse role play by having those on one side of the position present and argue the other side’s position and vice versa, and basically this may enable you to better understand the positions of your fellow jurors.
“Again, this is complicated, and I want you to consider whether or not the Court can be any more helpful to you either in terms of answering questions . . . or exposure to other evidence. If you would want the testimony of a particular witness to be reread, you can make that request as well. I’m merely suggesting that you may find it productive to do whatever is necessary to ensure that each juror has a full opportunity to have your views expressed and considered.
“ . . . I want to emphasize the amount of patience that’s necessary in trying to work with other people to come to a decision and to listen actively to what other people are saying. It is more difficult for a group of people to come to a decision than one individual, but . . . it is rarely helpful for someone to sort of dig in their heels and say, I’m not going to talk about this anymore, or, you know, I’ve made up my mind and nothing you can say is going to change my mind. That’s not participating in the deliberations, and that kind of problem, should it exist, needs to be reported back to the Court.
“As I said, this process can take a long period of time. There is no set amount of time for the deliberations on any particular case.
“ . . . I am going to order, (Juror Number 11), that you come back and continue this work tomorrow. I can indicate something that I think you should be aware of. I don’t see any reason to hide it from you, and I don’t know that it should in any way affect your decision-making process. Like I said, there’s no time limit to this, but in (Juror Number 11’s) situation, she had indicated at the beginning of the trial what her situation is, and if there is no decision with her as part of this jury . . . by the middle of the afternoon tomorrow, . . . it would be my inclination, at least at this point in time, to excuse her and substitute in one of the alternates . . . and order you to start all over again with respect to the decisions that have not yet been made.”
The following day, around 12:10 p.m., the jury reached a verdict against Patin.
2. Analysis.
Preliminarily, the People argue that Patin forfeited his present contention by failing to object to the challenged instruction. They rely on People v. Neufer (1994) 30 Cal.App.4th 244. There, however, the defendant was arguing that, after learning that the jurors were split 11 to 1 in favor of guilt, the trial court erred by requiring them to continue to deliberate at all. (Id. at p. 253.) He was not arguing that the trial court gave an improperly coercive instruction. Here, by contrast, Patin is raising precisely that argument. Hence, the controlling principle is that an objection is not necessary to preserve a claim that a jury instruction violated the defendant’s substantial rights. (Pen. Code, §§ 1176, 1259, 1469; see also People v. Barraza (1979) 23 Cal.3d 675, 683-684 [assertedly coercive instruction was reviewable despite defense counsel’s statement that he had no objection to it].)
“The court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement. [Citations.]” (People v. Pride (1992) 3 Cal.4th 195, 265, fn. omitted, quoting Pen. Code, § 1140.) “‘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.” [Citation.]’ [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 195-196, quoting People v. Breaux (1991) 1 Cal.4th 281, 319, quoting People v. Carter (1968) 68 Cal.2d 810, 817.)
To determine whether an instruction is coercive, we ask “whether [it] tend[s] to impose such pressure on jurors to reach a verdict that we are uncertain of the accuracy and integrity of the jury’s stated conclusion. This determination . . . is perhaps best characterized as requiring a generalized assessment of the potential effect of a given instruction on the fact finding process, rather than as an attempted inquiry into the actual volitional quality of a particular jury verdict.” (People v. Gainer (1977) 19 Cal.3d 835, 849-850.)
Patin claims the instruction was coercive in three respects. First, he claims that “it failed to clearly remind each juror to give ultimate controlling weight to his or her own honest opinion.” (Capitalization altered.) The jury, however, had already been instructed, “Each of you must decide the case for yourself . . . . [D]o not change your mind merely because other jurors seem to disagree with you.” (CALCRIM No. 3550.) There was nothing in the supplemental instruction that the trial court gave the jury after it was deadlocked that conflicted with this.
Nevertheless, assuming, without deciding, that the trial court was required to reinstruct the jurors on this point, it did so. It stated: “You should not hesitate . . . to change an opinion if you are convinced that it is wrong . . . .” (Italics added.) It continued: “[E]ach of you must decide this case for yourself, but you should do so only after a full discussion of these facts and the evidence with the other members of the jury. It’s your goal to deliberate with the aim 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 opinion of each and every juror.” (Italics added.)
Patin complains that the instruction did not refer to a juror’s “honest” or “conscientiously held” opinion. Assuming, however, that the jurors actually misunderstood the instruction to mean that they were entitled to stick to a dishonest or an irresponsibly held opinion, then they would be even less likely to agree. Such an instruction would be even less coercive; Patin could only have benefited.
Second, Patin challenges the statement that “not participating in the deliberations . . . needs to be reported back to the Court.” He argues that this fell afoul of People v. Engelman (2002) 28 Cal.4th 436. In Engelman, the California Supreme Court held that CALJIC No. 17.41.1, which directed each juror to advise the court of any other juror’s refusal to deliberate, should not be given. (Engelman, at pp. 445-449.) The court, however, was careful to rest this holding exclusively on its own supervisory power. (Id. at p. 449.) It held that CALJIC No. 17.41.1 was not unconstitutional, and specifically that it was not coercive: “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 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.” (Engelman, at pp. 444-445.) Admittedly, the instruction in this case was directed at a deadlocked jury. Nevertheless, it did not contain any of the language that the court in Engelman concluded would have made CALJIC No. 17.41.1 coercive.
Third and finally, Patin argues that it was coercive to tell the jury that, if it did not reach a verdict by the middle of the following afternoon, it would have to start its deliberations all over again with an alternate. The trial court, however, cautioned the jury that “there’s no time limit to this” and that this information should not “in any way affect your decision-making process.” This was sufficient to keep the instruction from being coercive.
As we discussed earlier, defense counsel’s failure to object does not rise to the level of a forfeiture. However, it does support our conclusion that the instruction as a whole was not coercive: “[W]here, as here, defense counsel does not object to a supplemental instruction, ‘such an omission indicates that the potential for coercion argued now was not apparent to one on the spot.’ [Citation.]” (People v. Whaley (2007) 152 Cal.App.4th 968, 983, quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240 [108 S.Ct. 546, 98 L.Ed.2d 568].)
Finally, even assuming the instruction was erroneously coercive, on this record, the error was harmless.
In principle, even an erroneously coercive instruction to a deadlocked jury is subject to the California constitutional standard of harmless error. (People v. Barraza, supra, 23 Cal.3d at p. 684; People v. Gainer, supra, 19 Cal.3d at p. 855.) Two particular coercive features, however, present an especial likelihood of prejudice, while at the same time making any prejudice inquiry especially difficult. First, if an instruction tells the minority jurors to reconsider their position in light of the views of the majority, prejudice is presumed, and reversal is required. (Gainer, at p. 855.) Second, if an instruction tells the jurors that a deadlock will require a retrial, it “involves [a] heightened potential for prejudice . . . . We must therefore find the error prejudicial unless there are affirmative indications that persuade us this heightened potential was not realized.” (Barraza, at p. 684; see also Gainer, at pp. 855-856.)
The challenged instruction had neither of these two features. Thus, arguably, it is up to Patin to demonstrate prejudice. Even assuming, however, that the record must affirmatively indicate that Patin was not prejudiced, it does so here. Admittedly, the jury did agree on a verdict against Patin before Juror No. 11 had to leave. However, it never completely agreed on a verdict against Clardy; it acquitted him on all three counts of assault with a deadly weapon, but it remained hung on the lesser included charges of simple assault on Notarianni and Rios. Rather than require it to restart its deliberations with an alternate, the trial court declared a mistrial on these charges. Thus, it affirmatively appears that the jury was not coerced.
We therefore conclude that the trial court, in its instruction to the deadlocked jury, did not err; but even assuming it did err, the error was not prejudicial.
III
DISPOSITION
The judgment is affirmed.
The sentencing minute order erroneously recites that the trial court placed Patin on probation for three years. Actually, it placed him on probation for four years. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement of judgment prevails over clerk’s minute order].) The People have asked us to correct this clerical error, and Patin has not opposed the request. Accordingly, the trial court is directed to enter a corrected minute order.
We concur: RAMIREZ P.J., McKINSTER J.
On these facts, the only way the jury could have found Patin guilty of simple assault was if it concluded that the natural and probable consequences doctrine did not apply — i.e., if it found that Patin intended to aid and abet a simple assault and that the perpetrator committed an aggravated assault, but that an aggravated assault was not a natural and probable consequence of the intended simple assault. (See People v. Woods, supra, 8 Cal.App.4th at pp. 1577-1578.)