People v. Engelman

92 Cal.Rptr.2d 416 (2000) 77 Cal.App.4th 1297 The PEOPLE, Plaintiff and Respondent,

v.

Tye John ENGELMAN, Defendant and Appellant.

No. D032699. Court of Appeal, Fourth District, Division One.

February 1, 2000. Review Granted April 26, 2000. Kyle Marie Wesendorf, under appointment by the Court of Appeal, Solana Beach, for Defendant and Appellant.

[417] Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Esteban Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.

WORK, J.

Tye John Engelman appeals a judgment convicting him of robbery with personal use of a deadly weapon (Pen. Code, §§ 211, 12022, subd. (b)(1)) and assault with force likely to produce great bodily injury or with a deadly weapon (Pen.Code, § 245, subd. (a)(1)). For the following reasons, we reject his contention that the court erred by instructing the jurors, over his objection, they were obligated to advise the court if another juror expressed an intention to disregard the law in reaching a verdict. He faults this admonition, contained in the recently added CALJIC No. 17.41.1, as improperly intimidating jurors who are inclined to exercise what Engelman characterizes as their right to disregard the law through jury nullification. Accordingly, we affirm the judgment.

BACKGROUND

One night, Thomas Smith, who was homeless, was lying on his stomach near a bridge. Engelman hit him on the back of the head with a bottle and asked if he had any money. Smith said no. Engelman asked if he had any cigarettes. Smith said all he had was "rollies." Engelman said "That will do," grabbed Smith's package of tobacco, and walked away. Smith went to a restaurant and called 911. A deputy sheriff stopped Engelman near the crime scene. As the deputy was holding Engelman on the ground, the sheriffs dispatcher loudly and clearly announced that a pack of cigarettes had been taken in the robbery. Engelman volunteered that the cigarettes were in his pocket. After waiving his Miranda rights,[1] he said that he thought he could get away with stealing from Smith because homeless persons seldom report crimes.