People v. Molina

“In Arizona v. Fulminante [(1991)] 499 U.S. 279 [ 111 S.Ct. 1246 , 113 L.Ed.2d 302 ], a decision holding that the erroneous admission of a coerced confession is not reversible per se, the court elaborated upon harmless error analysis by distinguishing between ‘trial errors,’ which are subject to the general rule that a constitutional error does not require automatic reversal, and ‘structural’ errors, which ‘defy analysis by harmless-error standards’ and require reversal without regard to the strength of the evidence or other circumstances. [Citation.] Fulminante characterized trial errors as those that occur ‘during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt.’ [Citation.] Structural errors, on the other hand, are ‘structural defects in the constitution of the trial mechanism . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ [Citation.] The court noted examples of trial errors, including erroneous jury instructions [citation], as well as structural errors, which include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant’s race from a grand jury, denial of the right to self-representation at trial, and denial of the right to a public trial. [Citation.] With regard to such structural errors, Fulminante explained: ‘ “Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” ’ [Citation.]” (People v. Flood, supra, 18 Cal.4th at p. 493.)

As examples of structural error, the United States Supreme Court has noted by way of example that “[w]here th[e] right [to a jury trial] is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” (Rose v. Clark, supra, 478 U.S. at p. 578 [106 S.Ct. at p. 3106].) Where demonstration of prejudice is “ ‘a practical impossibility, prejudice must necessarily be implied.’ ” (Waller v. Georgia (1984) 467 U.S. 39 , 49, fn. 9 [ 104 S.Ct. 2210 , 2217, 81 L.Ed.2d 31 ] [denial of right to public trial].) “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.” (McKaskle v. Wiggins (1984) 465 U.S. 168 , 177, fn. 8 [ 104 S.Ct. 944 , 950, 79 L.Ed.2d 122 ].)

People v. Flood, supra, 18 Cal.4th 470 , went on to observe “the United States Supreme Court made clear that at least one type of instructional error may amount to a structural defect in the trial mechanism that requires

reversal regardless of the strength of the evidence of the defendant’s guilt. In Sullivan v. Louisiana [(1993)] 508 U.S. 275 [ 113 S.Ct. 2078 , 124 L.Ed.2d 182 ], the trial court gave a constitutionally deficient reasonable doubt instruction. In explaining why Chapman harmless error analysis cannot be applied to such an error, Sullivan stated: ‘Harmless-error review looks . . . to the basis on which “the jury actually rested its verdict.” [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.’ [Citation.] Because a constitutionally defective reasonable doubt instruction renders it impossible for the jury to return a verdict of guilty beyond a reasonable doubt, ‘[t]here is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. [Citation.] The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.’ [Citation.]” (Flood, supra, 18 Cal.4th at p. 494, original italics, citing Sullivan v. Louisiana, supra, 508 U.S. 275 , 280-281 [ 113 S.Ct. 2078 , 2082, 124 L.Ed.2d 182 ].) The California Supreme Court has interpreted United States Supreme Court authority as indicating “instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall within the broad category of trial errors subject to Chapman review on direct appeal.” (Flood, supra, 18 Cal.4th at p. 499.)

Flood involved a prosecution for evading peace officers, where the trial court did not instruct the jurors to decide whether the police were peace officers but instead informed the jurors that the police who chased the defendant were peace officers. The California Supreme Court held that, although the trial court committed constitutional error in violation of the defendant’s due process right to have the jury decide each element of the offense, the error was not “structural error,” hence, not reversible per se, but rather was subject to harmless error analysis under the Chapman standard. (People v. Flood, supra, 18 Cal.4th at pp. 502-503.)

The United States Supreme Court has endorsed a categorical approach to structural errors, i.e., a particular error is either structural or it is not, regardless of the facts of the particular case. (Neder v. United States (1999)

527 U.S. 1 [ 119 S.Ct. 1827 , 144 L.Ed.2d 35 , 50] [in criminal tax fraud case, trial court’s refusal to submit materiality issue to jury was not structural error].)

Here, defendant argues the asserted error in instructing the jury with CALJIC No. 17.41.1 is error of federal constitutional magnitude which directly implicated his Sixth Amendment right to trial by jury and Fourteenth Amendment right to a fair trial. He argues jury nullification is implicit in his Sixth Amendment rights. He argues CALJIC No. 17.41.1 invites jurors in the majority to coerce holdout jurors into agreeing with the majority and intrudes into the deliberative process. He also mentions the California Constitution but provides no separate analysis.

Defendant submits the error is one which defies assessment of its actual impact on the jury, hence is “structural error” which is reversible per se, without regard to the question of prejudice. Defendant alternatively argues that if the error is subject to harmless error analysis, the error requires reversal because it was not harmless beyond a reasonable doubt.

However, even assuming for the sake of argument "that the giving of CALJIC No. 17.41.1 constitutes constitutional error, it is not “structural error” and does not require reversal per se. All the instruction does is to require jurors to inform the court of juror misconduct. It does not “ ‘affect[] the framework within which the trial proceeds,’ ” nor does it “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Neder v. United States, supra, 527 U.S. at pp. 8-9 [119 S.Ct. at pp. 1833-1834, 144 L.Ed.2d at pp. 46-47], italics omitted; see also People v. Flood, supra, 18 Cal.4th at p. 493.) We do not agree that the instruction is likely to be coercive. Absent misconduct by the jury, expressly identified in the instruction, the instruction is not likely to enter into jury deliberations at all. In the vast majority of cases, there is no jury misconduct. We do not see how an instruction that is not likely to come into play in most cases can constitute structural error requiring the reversal of every case in which it is given. We think that such a result would be, frankly, absurd.

Accordingly, we conclude any error in instructing the jury with CALJIC No. 17.41.1 is not reversible per se, but rather is subject to harmless error analysis.

Assuming applicability of the Chapman standard, any error in this case does not require reversal because it was harmless beyond a reasonable doubt. In this case, the jury reached a verdict in less than an hour, with no

indication of deadlock or holdout jurors. Thus, the record reflects the jury began deliberations after lunch on April 14, 1999, around 1:30 p.m., and notified the court at 2:21 p.m. that it had reached a verdict. The jury did not communicate with the court during its deliberations. We will not infer that the jury instruction had any impact prejudicing defendant. We reject defendant’s speculative assumption that the instruction had a chilling effect on the jurors’ deliberations, inhibiting the kind of free expression and interaction among jurors that is so important to the deliberative process. There is no warrant for that view on this record.

We conclude there was no reversible error in this case.

Disposition

The judgment is affirmed.

Morrison, J., and Callahan, J., concurred.

Appellant’s petition for review by the Supreme Court was denied November 29, 2000.