Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA097043, Eleanor J. Hunter, Judge.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Timmy Stephon Sullivan appeals from a judgment of conviction after a jury found him guilty of murder in the first degree (Pen. Code, § 187, subd. (a); count 1) and four counts of attempted murder (§§ 187, subd. (a), 664; counts 2-5). The jury also found true the allegations in all counts that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)), that defendant personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)) and personally used a firearm (§ 12022.53, subds. (b) & (e)(1)). With respect to all counts, the jury found not true the allegations that the offenses were gang-related (§ 186.22, subd. (b)(1)(C)).
All statutory references are to the Penal Code unless otherwise identified.
On count 1, the trial court sentenced defendant to state prison for 25 years to life, plus 25 years to life pursuant to section 12022.53, subdivision (d), for a total of 50 years to life. On counts 2 through 5, the trial court imposed consecutive terms of life, plus 20 years in accordance with section 12022.53, subdivision (c). Pursuant to section 654, the court stayed the sentences on all other firearm enhancements. The court awarded presentence custody credit of 564 actual days.
The trial court made no mention of section 12022.53, subdivision (e)(1), at the sentencing hearing.
On appeal, defendant contends that the trial court erred, in that it found that the prosecutor’s use of nine of 18 peremptory challenges to exclude Black prospective jurors did not constitute purposeful racial discrimination. Defendant further claims that reversal is required, in that, rather than declare a mistrial, the trial court ordered the jury to continue deliberating, even though the jury had given two notices to the court that they were deadlocked. We modify and affirm the judgment.
FACTS
On the evening of July 24, 2007, Juan Lopez and his brothers, Victor, Erick, Mark and Luis, were sitting in their truck on Cookacre Street in Compton. Defendant got out of a car behind the truck and approached the truck. He aimed a gun at Juan and told him to get “off the truck.” Juan started to drive away, and defendant fired several shots into the truck. Victor was hit and died from a gunshot wound to his torso.
Four days later, Cedric Cox (Cox) was arrested and found to be in possession of the gun used in the shooting. Fingerprints taken from the exterior of the truck matched defendant’s. Defendant was arrested four months after the shooting. None of the Lopez brothers identified defendant as the shooter in photographic or live lineups.
Cox was tried jointly with defendant but acquitted.
DISCUSSION
A. Peremptory Challenge of Prospective Jurors
Defendant contends that the trial court erred in denying his Wheeler/Batson motion to stop the prosecutor’s use of peremptory challenges to exclude Black prospective jurors from the jury. We disagree.
Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed.2d 129].
We review a trial court’s denial of a defendant’s Wheeler/Batson motion “deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341.) “Evidence is substantial if it is reasonable, credible and of solid value. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 627.) We give deference to the trial court’s determinations because, by virtue of personally witnessing the voir dire and the hearing on the Wheeler/Batson motion, the trial court is able to consider such factors as the demeanor, mannerisms and tone of voice of prospective jurors and counsel, to evaluate their credibility, and to place their questions and statements in context within the totality of the circumstances. (Lenix, supra, at pp. 626-627.)
The three-step procedure articulated in Batson applies when a defendant makes a Wheeler/Batson motion contesting a prosecutor’s use of peremptory challenges for purposeful racial discrimination. (People v. Avila (2006) 38 Cal.4th 491, 541.) “‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (Ibid., quoting Johnson v. California, supra, 545 U.S. at p. 168.) With regard to the trial court’s evaluation of the prosecutor’s reasons for the challenges and determination of whether purposeful discrimination has occurred, “we give deference to the trial court’s ability to distinguish ‘bona fide reasons from sham excuses[, ]’... [a]s long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered....’” (Avila, supra, at p. 541, citations omitted.) A trial court is not required to give specific reasons or detailed comments to justify its acceptance of the justifications. (People v. Hamilton (2009) 45 Cal.4th 863, 901.)
Here, defendant argued that the prosecutor had exercised nine of 18 peremptory challenges against Black prospective jurors, specifically, Nos. 14, 16, 5, 24, 4, 40, 43, 49 and 61. The trial court found that defendant established a prima facie case of racial discrimination, as required by the first step of the Batson process. (See People v. Avila, supra, 38 Cal.4th at p. 541.) The People do not dispute the finding.
In the second step, the prosecutor presented one or more reasons for challenging each of the Black prospective jurors. Defendant’s counsel only challenged the reasons given for excusing two of the nine prospective jurors—Nos. 24 and 61. After argument, the trial court found the reasons were race-neutral. The court completed the third Batson step by ruling that defendant had not proven purposeful racial discrimination as to any of the prospective jurors, and, on that basis, the court denied defendant’s motion.
On appeal, defendant’s basic contention is that the prosecutor’s reasons were shams and the trial court did not make the necessary inquiries to the prosecutor to reveal that the reasons were not genuine and non-discriminatory. Defendant argues that, looking at the totality of each prospective juror’s responses during voir dire, each of them had characteristics that were more pro-prosecution than biased against the prosecution and, therefore, the prosecutor could have had no valid race-neutral reason for challenging them. The argument fails, however, in that it ignores the relevant legal principle, namely, that if a prosecutor gives at least one legitimate race-neutral explanation which is supported by the record, there is a sufficient basis for a trial court to determine a prosecutor’s peremptory challenge was not impermissibly discriminatory. (People v. Pride (1992) 3 Cal.4th 195, 230.)
There is no merit to defendant’s related argument that the prosecutor, and likewise the court, erred in ignoring each prospective juror’s affirmative response when counsel asked whether, despite the facts revealed by the prospective juror that provided a race-neutral basis for excusing the person from the jury, the prospective juror could be fair. A prosecutor is not required to give credence to a prospective juror’s assurances that he or she can be fair. (People v. Young (2005) 34 Cal.4th 1149, 1174.) In any event, a prospective juror’s statement that he or she could be fair does not invalidate an otherwise legitimate reason for exclusion from the jury. (See People v. Watson (2008) 43 Cal.4th 652, 679-680; People v. Williams (1997) 16 Cal.4th 153, 191.) We now examine the specific challenges as to each of the prospective jurors whose excuse from the jury defendant challenges:
1. Prospective Juror No. 14
The prosecutor gave the following reasons for challenging prospective juror No. 14: He was “a witness and a victim of robbery.” He witnessed a murder, but he did not testify in the criminal case “for self preservation. He was looking out for number one.”
The inference is that prospective juror No. 14 would lack the objectivity required to fulfill his duty to decide defendant’s case based only upon the evidence. Any bias the prospective juror had was likely to be toward the defense, rather than the prosecution. A prosecutor’s reason for excusing a prospective juror need not be sufficient to sustain a challenge for cause in order to be valid and race-neutral. (People v. Hamilton, supra, 45 Cal.4th at p. 901.) An indication that a prospective juror would not be pro-prosecution is a race-neutral reason for excluding a prospective juror. (See People v. Bonilla, supra, 41 Cal.4th at pp. 346-349.)
2. Prospective Juror No. 16
Prospective juror No. 16 had several “family members that are gang members. His uncles and his cousins are either in prison or they’ve committed murders, attempted murders, drive-by shootings. His attitude towards gangs [was] things happen. That’s what happens in the neighborhood.” He “was a victim of a carjacking.... The reason why he did not press charges is because... he just didn’t want to get involved for fear of retaliation.” He said “I didn’t want anything to come back on me.”
This case included gang allegations against defendant. Courts have determined that neighborhood exposure to gangs may bias a prospective juror, despite the prospective juror’s insistence that it would not bias him or her. (People v. Watson, supra, 43 Cal.4th at pp. 679-680; People v. Williams, supra, 16 Cal.4th at p. 191.) The fact that prospective juror No. 16 had several family members that were gang members was a race-neutral reason to exclude him from the jury.
A close relative’s adversary contact with the criminal justice system has been held to be a reasonable race-neutral basis for a prosecutor’s peremptory challenge. (People v. Farnam (2002) 28 Cal.4th 107, 138.) That prospective juror No. 16 had several family members who were incarcerated or had committed violent crimes was another race-neutral reason for exclusion.
3. Prospective Juror No. 5
The prosecutor challenged prospective juror No. 5 because she said “her home was burglarized and the cops didn’t handle it very well. She had an attitude, in my view, of disdain towards the cops. Her sister is convicted of a felony. And she doesn’t know why and she also sat on... a hung jury.”
The prosecutor misspoke. Prospective juror No. 5 stated that she believed her sister had been arrested for committing a felony.
A negative attitude toward law enforcement shows a bias adverse to the prosecution and is a race-neutral reason for a prosecutor to exclude a prospective juror. (See People v. Bonilla, supra, 41 Cal.4th at pp. 346-349.) Her sister’s arrest for a felony is an adversary contact with the criminal justice system, which again is a race-neutral reason. (People v. Farnam, supra, 28 Cal.4th at p. 138.) A prospective juror’s “experience of sitting on a hung jury constitutes a legitimate concern for the prosecution, ” in that a conviction requires a unanimous verdict. (People v. Turner (1994) 8 Cal.4th 137, 170, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Accordingly, the fact that prospective juror No. 5 sat on a hung jury was a race-neutral reason for her excuse from the jury.
4. Prospective Juror No. 24
The prosecutor gave the following reason for challenging prospective juror No. 24: She “stated that in her opinion the majority of people would take the stand and will not tell the truth. But she knows that she would tell the truth.” When asked again, “she changed her answer.” Then when the prosecutor followed up by asking her the same “question a different way, ” the prospective juror said “that in fact some people lie some people will tell the truth and some people won’t tell the truth.”
The prosecutor explained to the court that when defense counsel asked the prospective juror the question, “her answer was—the way she answered the question and how the answer was phrased, it was pretty convincing to me that she would think people would automatically lie if they’d take the stand.”
At the hearing, defense counsel objected that the prosecutor’s reason for excluding prospective juror No. 24 was contrived, in that the record showed there were no discrepancies in the prospective juror’s statements about witnesses automatically lying or telling the truth. The trial court rejected defense counsel’s argument. The court found that, even if the prosecutor was mistaken about the prospective juror’s statements in the record, the prosecutor’s reason was genuine, in that the prosecutor “obviously had picked up on something” that caused the prosecutor to ask the follow-up question.
In such a context, a trial court’s findings primarily hinge on its evaluations of credibility. (People v. Williams, supra, 16 Cal.4th at p. 190.) We generally “‘accord great deference to the trial court’s ruling that a particular reason is genuine’” when it has “made a sincere and reasoned attempt to evaluate” a stated reason applied to a particular challenged prospective juror. (People v. Silva (2001) 25 Cal.4th 345, 385-386.) Here, the trial court evaluated the proffered reason based upon the record and upon the court’s observation of the prosecutor’s demeanor and conduct in questioning the prospective juror and in explaining the reasons to the court. The inference from the court’s remarks is that the court found the prosecutor to be credible, even if mistaken.
A prosecutor’s reason may be based, however, on “mistake” due to faulty memory or other factors; “a genuine ‘mistake’ is a race-neutral reason.” (People v. Williams, supra, 16 Cal.4th at p. 189.) The prosecutor’s reason, that prospective juror No. 24 would probably not believe the prosecution’s witnesses when they took the stand, would have been a legitimate race-neutral reason. That it was based upon a genuine mistake in the prosecutor’s memory or understanding of the prospective juror’s responses does not alter the legitimacy of the reason.
Defendant asserts that the court erred, in that it failed to make a reasoned inquiry into the prosecutor’s reasons, as necessary under People v. Silva, supra, 25 Cal.4th at page 385. In Silva, the appellate court concluded that the trial court had not “met its obligations to make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation’ [citation] and to clearly express its findings [citation].” (Ibid.) But the facts regarding the Silva trial court’s evaluation process differ markedly from the instant case. In Silva, the trial court was not aware of the content of the transcripts of the challenged prospective juror’s voir dire responses, and, thus, the court had no basis for evaluating the obvious gap between the prosecutor’s claimed reasons and what the prospective juror actually said.
In the instant case, there was no such gap between the record and the reasons. The trial court expressed its findings that the prosecutor’s reason, though mistaken, was genuine and cited the prosecutor’s follow-up question to prospective juror No. 24 as part of the basis for the finding. The Silva court acknowledged the principle that “an isolated mistake... that the trial court recognizes as such is generally insufficient to demonstrate discriminatory intent.” (People v. Silva, supra, 25 Cal.4th at p. 385.)
5. Prospective Juror No. 4
The prosecutor gave the following reasons for challenging prospective juror No. 4: The prosecutor “was not comfortable personally with his response when he said that [in another case] he had to testify against a gang member. He wasn’t happy that the person didn’t do a lot of time. He got out. And as a result of that, he raped a 14-year-old who could not now have kids. [¶] He has a brother that’s in prison for 10 years for attempted murder.”
The prosecutor also gave the reason that, when defense counsel asked the question in voir dire whether it is “possible that people could think they’re telling the truth and they would make a mistake. And everyone was nodding their heads. And I looked at him and he made the comment, yeah, they’re lying to themselves.” There is merit to defendant’s objection that this reason was not supported by the record. While the prosecutor may have heard the comment, it was not part of a recorded answer by the juror.
Given that the case involved gang allegations against defendant, one race-neutral reason for excluding prospective juror No. 4 was his prior exposure to gang culture. (People v. Watson, supra, 43 Cal.4th at pp. 679-680; People v. Williams, supra, 16 Cal.4th at p. 191.) His brother’s negative contact with the criminal justice system is another race-neutral reason for the prosecutor’s challenge. (People v. Farnam, supra, 28 Cal.4th at p. 138.) Thus, there were at least two race-neutral reasons that were supported by the record. (People v. Silva, supra, 25 Cal.4th at pp. 385-386.) Under such circumstances, contrary to defendant’s assertion otherwise, the trial court was not required to probe the prosecutor’s reasons any further. (Ibid.)
6. Prospective Juror No. 40
The prosecutor challenged prospective juror No. 40 because she “has family members that are gang members. And her cousin has been convicted of weapons and drugs.” As previously stated, these are race-neutral reasons for peremptory challenges to a prospective juror. (People v. Watson, supra, 43 Cal.4th at pp. 679-680; People v. Farnam, supra, 28 Cal.4th at p. 138; People v. Williams, supra, 16 Cal.4th at p. 191.)
7. Prospective Juror No. 43
The prosecutor gave the following reasons for challenging prospective juror No. 43: “[H]is son is in prison for possession of drugs. And... his grandson is also in prison for firearms and he believed both of them are gang members but he doesn’t really know.” About his son and his grandson, he said that “[h]e didn’t really get involved. He thought he saw the signs but he just didn’t, for whatever reason, pay attention to it. And he said that his son lived with him. [¶]... [I]t was uncomfortable for me to keep a person like that who wasn’t really interested in their kid’s life and seeing why or learning why their children are in prison. [¶] If he doesn’t take his own family seriously, he wouldn’t take or consider this case as serious.”
The negative outcome in the criminal justice system experienced by prospective juror No. 43’s close family members qualifies a race-neutral reason. (People v. Farnam, supra, 28 Cal.4th at p. 138.) His family ties with gang members also provided a sufficient race-neutral reason for excluding the prospective juror, given the allegations in the case. (People v. Watson, supra, 43 Cal.4th at pp. 679-680; People v. Williams, supra, 16 Cal.4th at p. 191.)
8. Prospective Juror No. 49
The prosecutor challenged prospective juror No. 49 on the grounds he said he had “three brothers, one was convicted of murder and the other ones were attempted murder. [¶]... [A]lthough his two brothers’ cases were dismissed, he didn’t think they were treated fairly. [¶]... [H]e has a negative attitude towards police officers because based on his experience with talking to his brother-in-law and his nephew [who are police officers] and hanging out with them at some type of club or police officers hang out, he sees that they do what they have to do to make the case. And I took that to mean negative things that police officers would do.”
The negative contact that prospective juror No. 49’s brothers had with the criminal justice system is a legitimate race-neutral reason for a prosecutor to challenge the prospective juror. (People v. Farnam, supra, 28 Cal.4th at p. 138.) His distrust of police officers is another race-neutral reason.
9. Prospective Juror No. 61
The prosecutor challenged prospective juror No. 61 because “[s]he said her brother is a convicted felon... of an assault.” That prospective juror No. 61 had a close relative who had an adverse experience with the criminal justice system was a legitimate race-neutral reason for the prosecutor’s exercise of a peremptory challenge as to her. (People v. Farnam, supra, 28 Cal.4th at p. 138.)
In sum, the prosecutor presented one or more race-neutral reasons for using a peremptory challenge to exclude each of the nine Black prospective jurors. Each race-neutral reason was supported by substantial evidence in the record. Nothing in the record suggests that any of the reasons were implausible or unsupported by the record. Thus, the trial court was not required to direct further inquiries to the prosecutor in order to determine whether they were genuine and legitimate. (People v. Silva, supra, 25 Cal.4th at p. 385.) We conclude that the trial court properly accepted the prosecutor’s race-neutral reasons and determined the prosecutor’s use of peremptory challenges as to the nine prospective jurors did not constitute purposeful racial discrimination. Accordingly, the trial court properly denied defendant’s Wheeler/Batson motion. (People v. Bonilla, supra, 41 Cal.4th at p. 341.)
B. Ordering the Jury to Continue Deliberations
Defendant contends that the trial court abused its discretion when it ordered the jury to continue to deliberate after the jury notified the court on two occasions that the jurors were deadlocked. As we shall explain, the record discloses no impropriety in the trial court’s action.
Defendant maintains that the failure of his trial counsel to request a mistrial did not constitute a waiver of the issue on appeal. Rather, defendant asserts, his counsel preserved the issue by objecting to the court’s order and requesting the court first to inquire of the jurors whether further deliberations would be fruitful. Resolving the issue on another ground, we need not address the waiver question.
The jury sent their first note that they were deadlocked just before noon on the third day of deliberations. The note stated: “We are deadlocked on all counts on both defendants. It is confirmed by all jurors that their vote will not change. What do we do at this point?” Excluding the time spent by the court dealing with an earlier jury request and extensive read backs of testimony, the chronology in the record shows that the jury had deliberated for only approximately six hours before announcing their deadlock. With approval of counsel, the trial court responded in writing: “Please continue your deliberations. If you need anything further, please let the Court know.” The jury deliberated 20 minutes before taking the noon recess.
In the afternoon, 10 minutes after deliberations resumed, the jury sent the court another note stating: “We cannot continue to deliberate without there being tension in the room. No one will change their mind about their decision.”
Noting the short time the jury had deliberated, considering the time spent for read backs, the trial court proposed to counsel to re-read a portion of CALCRIM No. 3550 instructing the jury to exchange their thoughts and ideas about the case and then to direct the jury to continue to deliberate. Counsel for Cox disagreed that deliberations had been short. Defendant’s counsel requested the court to ask each juror whether he or she believed continuing deliberations would be fruitful and then to take the deadlock note “on its face after... an examination of each juror.” The court declined counsels’ requests and called the jury into the courtroom.
The court then told the jury: “I’m going to refer you to a jury instruction and I take this very seriously because this is part of the deliberation process. That is your jobs.... [¶] It is your duty to talk with one another and to deliberate in the jury room. [¶] That means you have to discuss with each other, discuss the issues, go over it, give your opinion, let somebody else give their opinion.” The court read a portion of CALCRIM No. 3550, which it had also read to the jury before they began deliberating. Then the court added: “And ladies and gentlemen, that basically tells you how you should go about, well suggests to you how you should go about your deliberation. I can understand sometimes things get tense. It’s not an easy job. And I appreciate that. But you have to discuss the case, you have to deliberate here, be open to listen to other people. [¶] If you are not convinced and you don’t have to change your mind, but listen to other people and you also express your thoughts and ideas. And tension, obviously, isn’t a good environment for anyone to be in. [¶] So what I’m going to ask everybody to do... [is] come back tomorrow and start to deliberate.” After two more days of deliberations, the jury reached a verdict.
The court read a portion of CALCRIM No. 3550, as follows: “You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because other jurors disagree with you. Keep an open mind and openly discuss, exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. Please treat one another courteously. Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.”
As defendant asserts, a trial court may discharge the jury after the case is submitted to the jurors, if “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.” (§ 1140.) The decision to order further deliberations rather than discharge the jury is within the trial court’s sound discretion. (People v. Bell (2007) 40 Cal.4th 582, 616; People v. Proctor (1992) 4 Cal.4th 499, 539.) “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.]” (People v. Rodriguez (1986) 42 Cal.3d 730, 775.) A court abuses its discretion when it orders further deliberations “‘“‘as mere pressure to reach a verdict on the basis of matters already discussed and considered.’”’” (Bell, supra, at p. 616.) There is no abuse of discretion, however, if the court reaches the reasonable conclusion that directing the jurors to continue deliberations may enable them to improve their understanding of the case. (Ibid.)
Here, according to defendant, the trial court abused its discretion, in that it had no evidence that further deliberations would be fruitful, and it refused defense counsel’s request to poll the jury regarding the issue. We disagree. Inquiry regarding the possibility of agreement is not a prerequisite to directing the jury to continue deliberations. (People v. Rodriguez, supra, 42 Cal.3d at pp. 776-777.)
The case defendant cites as support for this argument does not involve a trial court’s exercise of discretion in order to determine the reasonable probability that a jury would reach a verdict. (People v. Cluff (2001) 87 Cal.App.4th 991, 1004 [court’s decision whether to strike a prior conviction].)
Defendant argues that the trial court improperly relied solely on the length of time the jury had been deliberating. (See People v. Caradine (1965) 235 Cal.App.2d 45, 50.) Although the court noted to counsel that the time had been short, the court’s instruction to the jurors reveals other factors that the court considered. In any event, case law provides numerous examples that the length of deliberations is not determinative on the issue of whether the trial court abused its discretion in failing to order a mistrial pursuant to section 1140. The California Supreme Court has upheld a court’s action to order continued deliberations, rather than declare a mistrial, over much longer periods of time than the few hours of deliberations completed in the instant case. (See, e.g., People v. Bell, supra, 40 Cal.4th at p. 617 [around 10 hours in less than two full days of deliberation]; People v. Sandoval (1992) 4 Cal.4th 155, 194-197 [jury had deliberated for more than 14 hours over five days before announcing an impasse]; People v. Breaux (1991) 1 Cal.4th 281, 317-320 [five days of deliberations]; People v. Rodriguez, supra, 42 Cal.3d at pp. 774-777 [after announcing the fifth impasse 18 days after deliberations began].)
We disagree with defendant’s argument that the jurors had deliberated for a sufficient time, even if it seemed short, in that the issues were few—primarily, the sufficiency of the evidence to identify defendant as the perpetrator. According to defendant, the key testimony had already been read back to the jurors and they had had sufficient time to discuss it and determine they were deadlocked. Contrary to defendant’s view, the issues were numerous and complex, supporting a conclusion that the trial court did not abuse its discretion. (See People v. Rodriguez, supra, 42 Cal.3d at p. 775.) The charges against defendant were serious—murder and attempted murder, involving five victims and bearing life imprisonment as a potential sentence. The jury was faced with the task not only of rendering verdicts with respect to the charged offense against each victim, but also making findings regarding four enhancement allegations as to the offense. By the time the jury submitted the second notice of impasse, the jury had deliberated only about six and a half hours. Given the complexity of the case, it was reasonable for the trial court to determine that the time spent deliberating had been insufficient. (Ibid.)
We note also that the record reveals that, after resuming deliberations as ordered, the jury requested further readbacks and an opportunity to examine some of the physical evidence. A reasonable inference is that requiring the jury to continue deliberations was not an abuse of discretion, in that the jurors used the additional time to improve their understanding of the case. (People v. Bell, supra, 40 Cal.4th at p. 616.)
Defendant also claims that the court’s action effectively coerced a verdict, in violation of his right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Factors found to have an impermissible coercive effect on jurors in other cases are not present here. (People v. Haskett (1990) 52 Cal.3d 210, 238-240.) The trial court did not refer to the numerical split and direction of the vote and did not even inquire about them. (Id. at p. 238.) The court did not refer to jurors holding a minority position in explaining to the jury their duty to continue to deliberate. (Ibid.) The court did not urge an agreement or otherwise pressure the jurors to reach a verdict. (Id. at p. 239.) The court did not encourage any juror to reconsider his or her position in light of the positions taken by other jurors. (Ibid.) Rather the court reiterated the direction in CALCRIM No. 3550 that “[e]ach of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors.” The court reiterated that “[i]f you are not convinced... you don’t have to change your mind.”
Determining the propriety of the trial court’s exercise of discretion and the coercive effect of the court’s order to continue deliberations after receiving one or more notices of impasse depends upon the facts in each case. (People v. Breaux, supra, 1 Cal.4th at p. 319.) Under the facts and circumstances of this case, the trial court did not abuse its discretion, and its order to continue deliberations did not result in a coerced verdict.
C. Modification of Judgment
In its verdicts on counts 1 through 5, the jury found the criminal gang enhancement allegations (§ 186.22, subd. (b)(1)(C)) to be not true, yet it found true the firearm allegations pursuant to section 12022.53, subdivisions (b), (c), (d) and (e)(1). Although the trial court did not mention subdivision (e)(1) of section 12022.53 at the sentencing hearing, that particular subdivision is mentioned in both the June 2, 2009 minute order and the abstract of judgment.
Subdivision (e)(1) of section 12022.53 states: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” The jury’s true findings pursuant to section 12022.53, subdivision (e)(1), unquestionably are inconsistent with its rejection of the criminal gang enhancements pursuant to section 186.22, subdivision (b)(1)(C). We remedy this inconsistency by striking the jury’s findings pursuant to section 12022.53, subdivision (e)(1), from the judgment. This modification has no effect on the actual sentence imposed.
DISPOSITION
The judgment is modified by striking any and all references to section 12022.53, subdivision (e)(1). As modified, the judgment is affirmed. The clerk is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: WOODS, Acting P. J., ZELON, J.