(Santa Clara County Sup. Ct. No. B9945646)
The opinion of the court was delivered by: Elia, J.
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After a jury trial, defendant Darion Branch was convicted of five counts of second degree robbery, one count of attempted second degree robbery, and one count of attempting to dissuade a witness or victim. On appeal, he contends that the trial court improperly instructed the jury with CALJIC No. 17.41.1. He also asserts sentencing error, arguing that the court improperly imposed a consecutive sentence and failed to stay the term for the attempted dissuading of one of the robbery victims. Finally, he contends that the court should have dismissed all but one of his "strike" priors, and that the resulting sentence of 175 years to life constituted cruel and/or unusual punishment. We will affirm the judgment.
Because the issues raised in this appeal are primarily addressed to sentencing, we will only briefly summarize the record of the trial testimony. All of the crimes took place during the first week of August 1999. Four of the robberies and the attempted robbery took place outside a bank or credit union during or just after the completion of the victims' transactions. The robbery charged in count 5 took place outside a hotel.
The victim of counts 3 and 4 was Odel Malan, who was robbed at a Mountain View branch of the Technology Credit Union on August 2, 1999. After making a deposit inside, Malan returned to her car. She was about to leave when she saw defendant next to her car door. He asked for money to buy gas, and she gave him a dollar and some loose change. He asked if she had any more money, but she said she did not. He told her to give him her purse. He had his hand in his right pocket, apparently pointing either a gun or his finger toward her. Malan asked him not to hurt her, and he promised he would not. Defendant remained beside her door for several minutes. He decided, however, that the items in her purse were not "worth it."
At one point Malan saw a car being parked nearby, and she turned to get the driver's attention. But defendant told her not to scream or call for help. Malan turned back to defendant, who warned her not to call the police because he had her address and other information in the purse.
Defendant contends that the court erred by instructing the jury with CALJIC No. 17.41.1. *fn1 In his view, the instruction infringed his constitutional right to secret jury deliberations, violated his right to a unanimous verdict from an impartial jury, chilled the jurors' uninhibited expression, and interfered with the jurors' power of nullification. The error, he adds, was reversible per se. Because his trial attorney did not object, defendant further argues he was deprived of effective assistance of counsel. These last two assertions are moot because no instructional error occurred.
The California Supreme Court has recently held that CALJIC No. 17.41.1 "does not infringe upon defendant's federal or state constitutional right to trial by jury or his state constitutional right to a unanimous verdict." *fn2 (People v. Engelman (July 18, 2002, S086462) ___ Cal.4th ___, ___ (written opn., p. 1] (hereafter Engelman).) The court was not convinced that, "merely because CALJIC No. 17.41.1 might induce a juror who believes there has been juror misconduct to reveal the content of deliberations unnecessarily (or threaten to do so), the giving of the instruction constitutes a violation of the constitutional right to trial by jury or otherwise constitutes error under state law." (Id. at [p. 7].)
The court explained: "[A]lthough the secrecy of deliberations is an important element of our jury system, defendant has not provided any authority, nor have we found any, suggesting that the federal constitutional right to trial by jury (or parallel provisions of the California Constitution, or other state law) requires absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct, or that the constitutional right constitutes an absolute bar to jury instructions that might induce jurors to reveal some element of their deliberations." (Engelman, supra, ___ Cal.4th at [pp. 6-7].)
The court in Engelman found that "[t]he instructions as a whole fully informed the jury of its duty to reach a unanimous verdict based upon the independent and impartial decision of each juror. (CALJIC No. 17.40 ['The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must decide the case for yourself . . . .']; CALJIC No. 17.50 [instructing that in order to reach a verdict, 'all twelve jurors must agree to the decision'].)" (Engelman, supra, ___ Cal.4th at [pp. 7-8].) The court further noted that no language in CALJIC No. 17.41.1 suggests that jurors who find themselves in the minority during deliberations "should join the majority without reaching an independent judgment." (Id. at [p. 8].)
As to the argument that CALJIC No. 17.41.1 infringes a defendant's constitutional right to jury nullification, it is without merit in light of People v. Williams (2001) 25 Cal.4th 441, 449-463. The court in Williams declared: "Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." (Id. at p. 463.) The court explained that although the possibility of jury nullification exists because of certain procedural aspects of our criminal justice system, a defendant does not have a constitutional right to that possibility. (Id. at pp. 449-451.) And in Engelman, the court again confirmed that, while the jury as a practical matter may have the power to engage in nullification, it has no legal right to do so. (People v. Engelman, supra, __ Cal.4th at p. __.)
We also reject defendant's assertion that he has standing to assert the jurors' right to freedom of speech. He has failed to demonstrate the third-party standing necessary to raise the constitutional challenge. *fn3 (Cf. Powers v. Ohio (1991) 499 U.S. 400; cf. also Campbell v. Louisiana (1998) 523 U.S. 392.) We do not discern a commonality of interest between a criminal defendant and jurors with regard to unrestricted "free speech" during jury deliberations.
Even if he does have standing, his argument nonetheless fails. Jurors do not have the right, as a matter of freedom of speech or otherwise, to inject outside influences into their deliberations. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 351.) Jurors likewise do not have the right to disregard the law. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1335.) Whatever right to "free speech" that trial jurors may have during deliberations is circumscribed by their oath. *fn4 (Code Civ. Proc., § 232, subd. (b).)
2. Consecutive Sentencing
A defendant with one or more prior "strike" felonies within the meaning of the "three strikes" law is subject to consecutive sentencing as follows: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . ." (Pen. Code, § 667, subd. (c)(6).) *fn5 This subdivision "clearly provides that consecutive sentencing is mandatory for any current felony convictions 'not committed on the same occasion, and not arising from the same set of operative facts.' " (People v. Hendrix (1997) 16 Cal.4th 508, 512.) By the same token, "if two current felonies either were committed on the same occasion or do arise from the same set of operative facts, the three strikes law does not mandate consecutive sentencing; the trial court retains discretion to sentence either concurrently or consecutively." (People v. Danowski (1999) 74 Cal.App.4th 815, 821; People v. Coelho (2001) 89 Cal.App.4th 861, 865; People v. Hendrix, supra, 16 Cal.4th at p. 513.) *fn6
Defendant contends that the court erred in imposing consecutive sentences for counts three and four. The taking of Malan's purse, he notes, occurred at the same location and approximately the same time as the threat not to call the police, and the two counts involved the same victim. Looking to the factors listed in California Rules of Court, rule 4.425, he argues that ...