APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. (Super. Ct. No. DF008878A).
The opinion of the court was delivered by: Wiseman, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In the published portion of this opinion, we uphold the trial court's use of Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM) No. 3550 when instructing the jury, concluding that this standardized instruction does not improperly direct minority jurors to give way to majority jurors or improperly tell the jury that all criminal cases must be decided at some point. The instruction contains none of the flaws determined to be objectionable in People v. Gainer (1977) 19 Cal.3d 835, which disapproved of the use of Allen-type instructions (Allen v. United States (1896) 164 U.S. 492) in California.
In the unpublished portion of the opinion, we reject appellant's contention that the prosecutor impermissibly commented on appellant's silence at trial in violation of Griffin v. California (1965) 380 U.S. 609 and conclude there is sufficient evidence to sustain the jury's finding that appellant suffered a prior strike conviction.
PROCEDURAL AND FACTUAL SUMMARIES
Appellant Pedro Santiago was convicted after a jury trial of possession of methamphetamine and with resisting arrest. In a bifurcated trial, the jury found that Santiago had suffered one prior strike conviction within the meaning of Penal Code*fn2
section 667, subdivisions (c) through (j), and that he had served eight prior prison terms within the meaning of section 667.5, subdivision (b).
The trial court, after striking two of the prior prison-term enhancements and the prior strike conviction, sentenced Santiago on the possession charge to a total term of eight years in state prison (the middle term of two years, plus six, one-year terms for the remaining prior prison terms). The court imposed a 90-day concurrent term on the resisting-arrest count.
Santiago was arrested and charged after a Delano City Police Officer stopped a car in which he was a passenger. The car had a cracked windshield and lacked a front license plate. After noting the car's condition, the officer recognized Santiago as someone with an outstanding warrant who had been alleged to be armed and dangerous. When the officer initiated the traffic stop, the car did not immediately pull over. When it did, Santiago refused to follow the officer's instructions to stay in the car and to keep his hands visible. Santiago was ultimately Tasered by the officer. When the passengers were removed, the officer found methamphetamine in the middle of the passenger seat where Santiago had been sitting.
Santiago claims that the court erred when it included in the instruction to the jury standardized CALCRIM No. 3550 over defense counsel's objection. He claims that the instruction led to a jury verdict that was not based upon the evidence and arguments presented at trial. He argues that the instruction suggested instead that minority jurors give way to the opinions of majority jurors and to consider in deliberations that all criminal cases must ...