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The People v. Tatiana Rose Gerowitz

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


October 21, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TATIANA ROSE GEROWITZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF101643)

The opinion of the court was delivered by: Robie , Acting P.J.

P. v. Gerowitz

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Tatiana Rose Gerowitz guilty of possession and transportation of methamphetamine. The court placed her on three years' probation.

On appeal, defendant raises two issues. First, defendant contends the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 225, which tells a jury how to evaluate circumstantial evidence used to prove a mental state. Second, defendant argues that once the jury announced it was deadlocked, the court's refusal to provide a cautionary instruction to the jury violated her right to an impartial trier of fact. Because both arguments are meritless, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Officer Cristobal Lara of the Woodland Police Department pulled over defendant's vehicle after observing her roll through a stop sign. A legal search of her vehicle discovered a baggy containing .37 grams of methamphetamine. After Officer Lara placed defendant under arrest, defendant admitted in a voluntary conversation with Officer Lara that the methamphetamine was hers and that she was aware of the drug's presence in her car at the time of the stop.

At trial, the prosecutor used Officer Lara's testimony of this conversation as direct evidence of defendant's knowledge that she was transporting methamphetamine. Defendant testified that although the methamphetamine was indeed hers, she forgot she had placed the drugs in her car the night before, and thus, was unaware of the presence of the drug in her car when she was stopped. This was the only evidence presented of defendant's knowledge of the possession of the drug.

At the conclusion of evidence, counsel for both parties discussed necessary jury instructions. As part of this discussion, defense counsel requested the court instruct the jury pursuant to CALCRIM No. 225.*fn1 The trial court refused to give the instruction. Less than two hours after jury deliberations began, the foreperson notified the court they were deadlocked with no reasonable possibility of coming to a decision.

In response, the trial court discussed with the jury the likelihood of a verdict being reached. During the course of this conversation, the court offered the jury a read back of instructions or testimony. The judge then reminded the jurors they "decide what hours [they] wish to deliberate" as long as it is within the court's hours of operation and told them to send a note if they needed anything read back. With that, the judge sent the jurors back to deliberate. Several minutes later, the jury sent a note requesting a read back of Officer Lara's testimony. Thirty minutes later, the jury left for the day. The following morning, the jury resumed deliberations and reached a guilty verdict 55 minutes later.

DISCUSSION

I

Failure To Give CALCRIM No. 225

Defendant contends the trial court erred when it did not instruct the jury pursuant to CALCRIM No. 225, which directs the jury on how to evaluate circumstantial evidence used to prove a mental state. Defendant asserts that because she "refuted" Officer Lara's testimony regarding her knowledge of the presence of the methamphetamine at the time of the stop, "the only reasonable inference is that the jury considered circumstantial evidence when reaching its verdict." The crux of her argument appears to be that when two witnesses disagree about facts, the jury must consider information outside the actual testimony in order to decide which witness is correct. Not so.

The court's duty to instruct the jury with CALCRIM No. 225 arises only when the prosecutor "substantially relies upon" circumstantial evidence to prove the defendant's mental state. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) Here, although the jury may have considered factors other than the witness's testimony, any circumstantial evidence the jury considered was secondary to the prosecutor's direct evidence. The prosecutor relied on Officer Lara's testimony of the arrest-scene statement of defendant to prove the state of mind element (knowledge) of the transportation charge. During his testimony, Officer Lara testified defendant explicitly told him she knew she had the drugs when she was stopped. The officer's testimony was direct evidence because, if believed, it proved the defendant's knowledge without any additional inference. (See Evid. Code, § 410.) As the People correctly state in their brief, direct evidence "is not converted to circumstantial evidence simply because it is being disputed." Because any circumstantial evidence the jury may have considered was incidental to the prosecutor's direct evidence, and the prosecutor did not substantially rely on circumstantial evidence to prove defendant's mental state, the court had no duty to instruct with CALCRIM No. 225.

II

Failure To Give A Cautionary Instruction On Juror Deadlock

The second issue relates to the trial court's discussion with the deadlocked jury. Defendant contends the court's discussion with the jury was coercive because the court did not give a cautionary instruction, by which defendant means an instruction emphasizing that a verdict is not mandatory, before sending the jury back to deliberations. Defendant is wrong.

Defendant cites two cases where courts gave additional instructions to a deadlocked jury and argues the cautionary language contained in the instructions quoted in those cases is the reason the judgments in those cases were affirmed. Defendant first points to People v. Moore (2002) 96 Cal.App.4th 1105, where the court upheld additional instructions that admonished the jurors to "'reach a fair and impartial verdict if you are able to do so . . . .'" (Id. at p. 1121.) Defendant also points to People v. Sheldon (1989) 48 Cal.3d 935, where the court instructed, "'[y]ou should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.'" (Id. at p. 959, italics added.) Noting the absence of any such instruction here, defendant argues that "[w]ithout reminding them of their duty to hold onto conscientiously-held beliefs and their right not to reach an agreement, the trial court implicitly coerced the jury to reach fast agreement."

Although both Moore and Sheldon involved instructions containing cautionary language, the holdings in those cases do not suggest that such language must be given or else the jury will be coerced.

In both Sheldon and Moore, the courts upheld the instructions because they "made no remarks either urging that a verdict be reached or indicating possible reprisals for failure to reach agreement." (People v. Sheldon, supra, 48 Cal.3d at p. 960; see People v. Moore, supra, 96 Cal.App.4th at p. 1121.) It was the absence of coercive language from the instructions that contributed to the conclusion in those cases that no jury coercion occurred. In no way can those cases be considered authority for the proposition defendant urges here: that such instruction must be given or else there will be jury coercion.

The proper inquiry in a case where the defendant claims jury coercion is whether the totality of the circumstances compelled the jury to reach a verdict through fundamentally unfair considerations. (See Lowenfield v. Phelps (1988) 484 U.S. 231, 237 [98 L.Ed.2d 568, 576-577] [holding that in order to determine whether supplemental instructions are coercive, the court must consider the totality of the circumstances].)

Here, the trial court merely requested that the jury continue to deliberate. The discussion did not contain an instruction for the jurors to consider a different position. (See People v. Gainer (1977) 19 Cal.3d 835, 845, 848 859, [overturning a coercive instruction to a deadlocked jury because it expressly required the minority jurors to consider the majority position].) Defendant contends the court's statement about knowing which way the jury was "leaning" coerced jurors into considering the court's position on the matter, but we disagree. Although the court acknowledged it was aware which way the jury was "leaning," because the jury was split six to six, the court's comments would not have been perceived as implying a bias that would compel a juror to give up his or her conscientiously held belief. The court did not expressly or impliedly telegraph its support for either position and there is no evidence to show the six jurors who changed their votes felt pressure from a perceived bias of the court.

Further, the court did not suggest to the jury that a failure to reach a verdict would have negative repercussions. (See People v. Gainer, supra, 19 Cal.3d at pp. 845, 848.) Defendant argues the statement that the jury "was free to deliberate up to 8.5 hours each day for five days a week" coerced the jurors because it implied they would be forced to "endure an indefinite marathon . . . until unanimity was reached." Such a conclusion is totally unwarranted by the facts. At the time the court sent the jury back for further deliberation, the jury had been deliberating for less than two hours and the court's instruction made clear they could leave at the end of the day. Just before sending the jury back to the deliberation room, the court gave the jury control of its own deliberation schedule.

Nor does the fact that six jurors changed their position after the read back of Officer Lara's testimony when the issue was credibility of witnesses indicate coercion in any way. Defendant contends there is a strong inference of coercion because six jurors changed their position after 55 minutes of more deliberation. In fact, the jury deliberated a total of 154 minutes. The jury foreperson's discussion with the court revealed the first 99 minutes of the deliberation were marked by confusion over instructions and testimony. It is reasonable to infer that once the jury had Officer Lara's testimony reread, the issues clarified and the jury came to a conclusion relatively swiftly in a case that defendant admits was "simple" and uncomplicated.

Lastly, nothing in the court's discussion with the jury would compel them to give up their conscientiously held beliefs. The jury instructions pointed out: "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."

Because the instructions contained cautionary language and the court's discussion with the jury was not coercive, an additional cautionary instruction was unnecessary.

DISPOSITION

The judgment is affirmed.

We concur: BUTZ , J. MAURO , J.


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