California Court of Appeal Jun 30, 2014 No. D063743Unpublished
Filed 6/30/14 P. v. Sexton CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063743
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243610)
DONALD L. SEXTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Sean M.
Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Donald L. Sexton was convicted of removing a peace
officer's weapon while resisting arrest. (Pen. Code, § 148, subd. (b); count 3.)1 On
appeal, Sexton contends the trial court failed to properly instruct the jury with respect to
the general intent to commit the offense. Sexton also contends the trial court erred in
responding to questions from the jury.
We find no error. The jury was provided with an instruction that required the
In Montero, the defendant was discovered by peace officers who were conducting
a parole search in the garage of a residence that did not belong to the defendant. The
officers found methamphetamine in the defendant's pockets and a "pay/owe" sheet in his
wallet. In addition, the officers found bags of methamphetamine and other drug
paraphernalia, including two scales, in the back of the garage where defendant was first
observed. The condition of the bags and the amounts in them suggested they had been
prepared for sale.
The defendant was charged with possession for sale of methamphetamine. During
the jury's deliberation, the jury sent the trial court the following questions: "'Clarification
on possession: [¶] We have read the last two paragraphs of [CALCRIM No. 2302] and
still need clarification:
"'How do we evaluate the idea of "control"? Is it enough that [defendant] was in
the same room as excessive amounts of drugs, scales ect [sic] that are in plain precence
[sic] or tucked-away; is it enough to say that he was indeed in "control" and in possession
of these items?'" (Montero, supra, 155 Cal.App.4th at p. 1178.)
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The court responded: "'In response to your question, "How do we evaluate the
idea of 'control?'": It is for the jury to decide.
"'In response to your question, "Is it enough that [defendant] was in the same room
as excessive amounts of drugs, scales ect [sic] that are in plain precence [sic] or tucked-
away; is it enough to say that he was indeed in 'control' and in possession of these
items?": It is also for the jury to decide.
"'Please reread instruction # 2302 [CALCRIM No. 2302] in this regard.'"
(Montero, supra, 155 Cal.App.4th at p. 1178.)
After the trial was concluded, the trial court made a statement explaining its
unwillingness, in its response to the jury's questions, to elaborate on the instructions it
had provided the jury. The trial court "'did not read this request for clarification as a
request to clarify a jury instruction, but rather, a request as to how they should deliberate
or how they should go about their deliberations.
"The court believed that with these questions, 'the jury was disclosing their
internal deliberations, which they shouldn't do anyway, but especially the second part of
that where they gave a fact pattern and asked if that was enough. So it appeared to me
that this question was inappropriately asking the Court to assist them in their substantive
deliberations and, again, was not a request for a clarification of the instruction on
possession.'" (Montero, supra, 155 Cal.App.4th at pp. 1178-1179.)
On appeal, the court in Montero approved the trial court's response: "We agree
with the trial court that any detailed response to the question would have thrust the court
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into the jury's role of deliberating whether defendant had controlled the substances.
'When a question shows the jury has focused on a particular issue, or is leaning in a
certain direction, the court must not appear to be an advocate, either endorsing or
redirecting the jury's inclination.' [Citation]." (Montero, supra, 155 Cal.App.4th at p.
1180.)
The trial court here faced a dilemma quite similar to the one considered in
Montero. As we have indicated, the jury's questions here suggested there was some
division within the jury as to whether Sexton intended to take or remove Ward's weapon
and, as the trial court here indicated in its response, any answer it gave would assume and
thereby endorse a finding of guilt with respect to the other elements of the offense.
Moreover, in providing the trial court with two fact patterns and inquiring whether
Sexton would be guilty under those fact patterns, the jury's questions suffered from the
same vice the court identified in Montero: the questions essentially asked the trial court to
resolve the issue of whether Sexton intended to take or remove Ward's weapon. The trial
court did not err in declining to interfere in the jury's resolution of that question.
Contrary to Sexton's alternative argument, his counsel was not ineffective in
failing to object to the trial court's proposed responses and in failing to offer any
alternatives. As we have noted, given the difficulty the jury was having with respect to
whether Sexton intended to take or remove Ward's weapon, counsel plainly made a
tactical decision that, without further elaboration with respect to the definition of remove
or in response to the fact patterns, there was a greater likelihood the jury would be unable
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to reach a verdict. (See People v. Stanley (2006) 39 Cal.4th 913, 954.)
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in its jury instructions regarding intent, its provision of a dictionary definition for the term "remove," or its refusal to answer specific factual questions from the jury during deliberations.
Issues
Whether the trial court erred in its jury instructions regarding the intent required for a violation of Penal Code section 148, subdivision (b).
Whether the trial court erred by providing the jury with a dictionary definition of the term "remove."
Whether the trial court erred by declining to answer specific factual questions posed by the jury during deliberations.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The jury was provided with an instruction that required the prosecution prove Sexton acted with an intent to commit the crimes with which he was charged.”
“In response to one of the jury's questions, the trial court acted well within its discretion in providing the jury with a dictionary definition of the term "remove."”
“The trial court properly declined to respond to the jury's remaining questions because any response would have required the trial court to assume the jury had made certain preliminary findings”