P. v. Bright

Filed 1/26/09 P. v. Bright 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Jerry Bright was convicted by a jury of being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)),^[1]misdemeanor driving under the influence (DUI) (Veh. Code,  23152, subd. (a)), and misdemeanor driving with an elevated blood-alcohol level. (Veh. Code,  23152, subd. (b).) The jury found defendant was armed at the time of his commission of the firearm offense and that his blood-alcohol level was 0.15 percent or more within the meaning of Vehicle Code section 23578 for purposes of the driving with an elevated blood-alcohol level offense. In a bifurcated court trial the trial court found defendant had two prior DUI convictions, had a prior serious felony juvenile adjudication for attempted second degree murder with personal use of a firearm and personal infliction of great bodily injury, and had served a prior prison term for possession of a controlled substance. The trial court ruled defendants prior juvenile adjudication could be used as a strike for purposes of Californias three strikes law. ( 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c).)

The trial court sentenced defendant to five years in state prison for his conviction of the firearm offense, based on a two-year middle term, doubled pursuant to the three strikes law ( 667, subd. (e)(1)), plus an additional one year for the prior prison term enhancement. ( 667.5, subd. (b).) Defendant was sentenced to time served for his misdemeanor convictions.

On appeal defendant claims several jury instructional errors, prejudicial prosecutorial misconduct in closing argument, several errors in the trial courts giving of a firecracker instruction, and error in the trial courts use of his prior juvenile adjudication in sentencing under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.

FACTUAL BACKGROUND

In December 2006, Folsom Police Officer Hector Alvarez observed a vehicle swerve into a ditch and then come back onto the road, making a series of erratic corrections or fishtails. There were no other vehicles on the road. Alvarez began to pursue the vehicle, a Ford Explorer, and followed it as it made a U-turn before turning into an apartment complex. The Explorer pulled into what Alvarez assumed was its assigned parking stall at the apartment complex. Alvarez activated the lights of his patrol car and pulled in behind the vehicle. The driver, later identified as defendant Jerry Bright, the sole occupant, started to get out of the Explorer. Alvarez ordered him to get back inside. Apparently understanding Alvarezs commands, defendant complied.

Alvarez approached the Explorer on the drivers side while his partner, Officer Steven Bailey, approached on the passenger side. The drivers side window was down. Alvarez noticed a smell of alcohol and that defendants eyes were bloodshot. As Alvarez began talking with defendant, Bailey shined his flashlight into the passenger side of the Explorer and saw a handgun within arms reach of defendant on the front passenger seat. The gun, a .40-caliber Beretta, was in plain view, with the barrel of the gun pointed downward and the handle of the gun leaning next to, or in contact with, the back of the passenger seat nearest to the drivers seat. Bailey signaled to Alvarez that there was a gun in the vehicle. Defendant was arrested and placed in the officers patrol car. Bailey recovered the gun, which had a magazine clip loaded with 10 bullets.

While defendant was being arrested, the officers noticed, in addition to defendants bloodshot eyes and the strong smell of alcohol, that defendants speech was slurred, although intelligible, and his gait was unsteady. His pants were unzipped and the crotch was wet, apparently from urine. Defendant did appear to understand what was happening and what was being asked of him. He complied fairly readily with the officers commands, although his demeanor and language were increasingly defiant and aggressive. When Folsom Police Sergeant Andrea Chapman arrived at the scene, defendant called her by rank and complained of his treatment by Alvarez and Bailey.

The officers determined the Explorer was registered to Akisha Byrd, who lived at the apartment complex in an apartment right in front of where the Explorer was parked. Alvarez spoke with Byrd who confirmed her ownership of the Explorer. Bryd had given defendant, her boyfriend, permission to take the Explorer at about 8:00 p.m. the previous night. Byrd testified there was no gun in the Explorer when defendant borrowed it. Byrd testified she does not own a firearm and had never before seen the Beretta seized from her Explorer. She has never seen defendant with a gun in the 10 years she has known him.

Bryd testified that while she allows defendant to use her Explorer, she does not allow his friends to be in the Explorer. She knows defendant disregards her wishes, in part, because she has found items in the Explorer that do not belong to either her or defendant. Bryd testified defendant has a drinking problem and that he had been drinking heavily over the past year. He often does not recall later what happened when he was drinking.

No fingerprints were found on the Beretta, the magazine clip or the bullets. The fingerprint identification technician testified it is difficult to obtain fingerprints from the handle of a gun. Defendants blood sample taken after his arrest showed he had a blood-alcohol level of 0.21 percent.

It was stipulated defendant was convicted of a felony in 1999 in Sacramento County.

Defendant testified on his own behalf and admitted being drunk and driving that night. He testified he drank two 40-ounce beers and multiple mixed drinks in the approximately four hours prior to his arrest. Defendant claimed he was asked by a friend to drive a friend of that friend back to Orangevale from the club in South Sacramento where they had been drinking. Defendant drove this person, whose name he could not remember, to a location in Orangevale which he could not remember. Defendant could not provide any description of the person to whom he gave a ride except that he was African-American.

Defendant denied the Beretta was his and testified he never touched the gun. He testified he did not know the gun was in the Explorer. Defendant said he did not notice it. He wasnt paying attention. He did not remember it. He did not know anything about the gun. He did not know it was there. He did not know if the friend of his friend that he gave a ride to left the gun, but it was possible. He admitted he did not tell the police officers that there had been someone else in the car. He did not recall interacting with the police because he was drunk. He remembered being in a holding tank somewhere. Defendant never tried to find the person he gave a ride to that evening.

DISCUSSION

I.

Failure to Instruct The Jury On The Defenses of

Mistake Of Fact and Accident Was Not Error

Defendant claims the trial court erred by failing to sua sponte provide the jury with instructions on two of his defenses -- mistake of fact and accident. Alternatively, defendant contends his counsel was ineffective for failing to request instructions on such defenses. Respondent argues the trial court was not required to give the instructions sua sponte because in this case they were not affirmative defenses, that other instructions adequately covered defendants defense theory, that any error was harmless, and that defense counsel was not ineffective. Defendant responds that the trial courts sua sponte duty is not limited to affirmative defenses, that the instructions were required, that other instructions did not inform the jury of his defenses, that omission of the instructions was prejudicial, and that he has met his burden to show ineffective assistance of counsel.

A trial court must instruct sua sponte on the general principles of law that are closely and openly associated with, and necessary to, the jurys understanding of the case. The duty to instruct sua sponte arises only when the facts of the case support the particular instruction. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) We conclude the trial court had no duty to instruct here on mistake of fact or accident because no evidence supported such defenses.

A mistake of fact refers to a defendants erroneous belief in some fact or circumstance that disproves criminal intent. ( 26; see, e.g., In re Jennings (2004) 34 Cal.4th 254, 276-277, 280 [defendant entitled to raise defense that he erroneously believed he was furnishing alcohol to someone over the age of 21]; People v. Mayberry (1975) 15 Cal.3d 143, 155 [defendant charged with forcible rape and kidnapping entitled to raise defense that he reasonably believed victim consented]; People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1427, 1431 [defendant charged with possession of stolen property entitled to raise defense that he believed the property abandoned]; People v. Lucero (1988) 203 Cal.App.3d 1011, 1018 [providing various examples of application of defense].) Here there was no evidence defendant held any such erroneous belief. For example, defendant did not testify that he mistakenly believed the item on the passenger seat next to him was a wallet, a cell phone or a squirt gun. Instead, defendants sole claim was that he did not know there was anything next to him. Essentially, he claimed he was unaware of its presence. He did not notice the gun; he did not see the gun or pay attention to what was on the seat next to him; he knew nothing about the gun. Defendants evidence was soley a denial of the knowledge element of possession of a firearm by a felon in violation of section 12021, subdivision (a). (People v. Snyder (1982) 32 Cal.3d 590, 592.) Defendants defense was not that he had made a mistake of fact.

The defense of accident likewise fails. A person who commits a prohibited act through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence has not committed a crime. ( 26.) (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (Jeffers), italics added.) For example, in Jeffers the defendant entered a gun store and delivered to the gunsmith a package that turned out to contain a handgun. (Id.at p. 919.) The appellate court reversed the defendants conviction for being a felon in possession of a handgun because the trial court had failed to properly instruct the jury. The trial court had both failed to give a general intent instruction and had erroneously refused to instruct the jury on defendants theory of defense that he did not know what was in the package until he arrived at the gun shop and that he immediately got rid of the gun. (Id.at pp. 920-925.) The omitted instructions were required under the facts of the case because a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent. (Id.at p. 922.) [K]nowledge plus physical possession may ordinarily demonstrate an intent to exercise dominion and control, but knowledge does not conclusively demonstrate such intent as a matter of law. Otherwise, a felon would be strictly liable for the crime immediately upon finding a firearm, even if found under innocent circumstances. (Ibid.; see People v. Padilla (2002) 98 Cal.App.4th 127, 135-136.)

This case is distinguishable from Jeffers, supra, 41 Cal.App.4th 917. Here defendant did not claim he committed the prohibited act through misfortune or accident. (See, e.g., People v. Padilla, supra, 98 Cal.App.4th at pp. 134-136 [defendant claimed unintentional temporary possession of gun]; People v. Gonzales (1999) 74 Cal.App.4th 382, 389 [testimony that defendant caused injuries to his cohabitant/girlfriend when she was struck by door as defendant entered the bathroom gave rise to accident defense]; People v. Jones (1991) 234 Cal.App.3d 1303, 1314 [defense to attempted murder charge was that shotgun discharged by accident].) Instead, defendant testified that he never knowingly possessed the firearm, i.e., that he did not commit the prohibited act. Defendant denied seeing the gun next to him and never claimed, as in Jeffers or Padilla, that his temporary knowing control or right to control the gun was the result of misfortune or accident. He denied all knowledge of the gun. Defendants defense was not misfortune or accident.

The trial court had no duty to sua sponte instruct on defenses not raised by the evidence. Likewise defense counsel was not ineffective for failing to request instructions on defenses not supported by the evidence.

II.

Failure to Instruct The Jury That Mere Presence Or Access To The Gun Without More Is Insufficient Evidence Of Possession Or Control Was Not Error

Defendant claims [t]he jury was [] never informed that presence of the weapon was not a strict liability offense and that it had to find [defendant] had the intent to exercise control or actually have custody of the item, such that mere presence near or access to the gun was insufficient evidence of possession or control. He claims that [u]nder the instructions provided, the jury could have believed that if [defendant] had glanced over and mentally recognized the shape of a gun on the seat, he would be guilty of a crime. Defendant emphasizes the portion of Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 2511 that told the jury generically that [a] person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. He claims the prosecutor relied on this portion of the jury instructions in a portion of his closing argument regarding the evidence of defendants possession or control of the gun.^[2] Defendant then asserts the trial court had a sua sponte duty to instruct on whether access or mere presence constitutes possession or control or alternatively, that his counsel was ineffective for failing to request such an instruction and in failing to object to the prosecutors argument.^[3]

The portion of CALCRIM No. 2511 informing the jury that a person does not have to hold or touch something in order to possess it, but that control or the right to control is sufficient, correctly states the law that physical possession is not required, constructive possession or control may be sufficient for the offense of being a felon in possession of a firearm. (People v. Nieto (1966) 247 Cal.App.2d 364, 368.) Furthermore, while [p]roof of opportunity of access to a prohibited item without more, will not support a finding of unlawful possession, possession may be imputed when the item is found in a location subject to the immediate and exclusive control of the defendant. (Goodlow v. Superior Court (1980) 101 Cal.App.3d 969, 975.) Here, defendant borrowed his girlfriends Explorer and had been driving it that night and into the early morning. There was no one else in the Explorer at the time defendant parked in front of his girlfriends apartment. The gun was found on the front passenger seat within arms reach of defendant as he sat in the drivers seat.

On this basis we reject defendants claim that his counsel was ineffective for failing to object to the referenced portion of the prosecutors argument. Such argument correctly stated the law applicable to this case. We likewise reject defendants claim that the trial court had a sua sponte duty to instruct that mere presence or access was insufficient to show possession as such an instruction would not have been a complete and accurate statement of the law. Nor was defense counsel ineffective in failing to request an instruction regarding mere presence or access as such an instruction would not have fully or accurately informed the jury of the applicable principles of law.

Defendants reliance on People v. Perry (1979) 100 Cal.App.3d 251, 259-260, is misplaced. In Perry, one of the defendants claimed the jury should have been instructed that her mere presence at the scene was not sufficient to make her an aider and abettor of a burglary. Nothing suggests the jury in this case should have been instructed that the mere presence of or access to the gun was insufficient evidence of defendants possession of it.

Moreover, [i]t is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753; see People v. Ledesma (2006) 39 Cal.4th 641, 718.) We assume juries are comprised of intelligent people who dutifully correlate and follow the courts instructions. (People v. Phillips (1985) 41 Cal.3d 29, 58; People v. Kegler (1987) 197 Cal.App.3d 72, 80.)

In this case, the jury was instructed the People must prove that defendant not only did the acts charged, but also that he acted with a particular mental state as provided in the instructions for each crime. (CALCRIM No. 225.) The jury was instructed that the crime of being a felon in possession of a firearm required proof of the union, or joint operation, of act and wrongful intent[,] that [i]n order to be guilty of this crime, a person must not only intentionally commit the prohibited act, but must do so with a specific mental state as explained in the instruction for the crime. (CALCRIM No. 251.) The jury was instructed pursuant to CALCRIM No. 2511 that one of the required elements for possession of a firearm by a convicted felon is that [t]he defendant knew that he possessed the firearm[.] The jury was given a special instruction regarding the limited purpose of the evidence of voluntary intoxication in connection with the knowledge element of the firearm possession count and again told that the People have the burden of proving beyond a reasonable doubt that the defendant knew that he possessed a firearm.

Under the totality of these instructions the jury would not have reasonably understood that the mere presence of the gun in the Explorer or its mere accessibility to defendant was sufficient, without anything more, to find defendant guilty of being a felon in possession of a firearm. The jury could not have believed defendant guilty if all he did was glance[] over and mentally recognize[] the shape of a gun on the seat[.] Defendants argument improperly isolates one portion of the offense apart from its other elements; one portion of the instructions apart from the instructions as a whole. Instructions are not considered in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.)

III.

Prosecutorial Misconduct In Closing Argument

Defendant claims prosecutorial misconduct in the following portion of the prosecutors closing argument:

We have the best justice system in the world. And maybe that is just my opinion, but Im pretty confident saying that is the case. And our justice system is one that, even if you are found right next to a gun in arms length and you barely know whats going on, you just cant be found guilty just like that. You still have your right to a jury trial. You have your right to your day in court, and you have the right to take the stand if you choose, and you have the right to be represented.

That is what this is about, his rights. Hes presumed innocent until proven otherwise, until evidence is brought to show that he is responsible for this crime. But just because you have that presumption, just because thats the way our legal system works, it doesnt mean that he is not guilty of this crime.

An example that I use is this man, Jack Ruby. I imagine most people are going to remember who Jack Ruby is. But Jack Ruby, for instance, shot Lee Harvey Oswald on national television. The whole world saw it.

He walked up to Oswald, pulls out a gun, and shoots him. Some of you may have seen it live. Many of us saw it in history class. But its right there. Even though everyone sees that, even though its right there in front of you, Jack Ruby was presumed innocent until he was proven otherwise, until he actually had his trial and 12 jurors said, you know what, you are guilty of that crime. (Italics added.)

The record reflects defense counsel asked for a side bar conference at this point. The side bar conference was not reported or memorialized on the record, but a settled statement for appeal reflects that at the side bar conference, defense counsel objected that the Peoples closing argument was improper and asked that it be stricken. The trial court ordered the prosecution to not continue or develop the argument further. Defense counsel did not request the jury be admonished. A request for an admonition is required in order to preserve a claim of prosecutorial misconduct. (People v. Montiel (1993) 5 Cal.4th 877, 914.) In the absence of such a request, the issue of prosecutorial misconduct is forfeited.

Even if we were to reach the merits of defendants claim, however, we would not find the prosecutors argument regarding Jack Ruby to be prejudicial misconduct on this record. The prosecutors brief comments were cut off by defense counsels objection and the trial courts order to the prosecution to move on from the argument. An admonition could have cured any harm at that point,^[4]but defense counsel appropriately chose instead to address the prosecutors comments by beginning defendants closing argument with the following: I take exception to the comparison to Jack Ruby. There is no direct evidence, none, that [defendant] owned this gun. Nobody saw him with it. Theres no fingerprints -- there is no direct evidence. No police officer saw him grabbing the gun, touching the gun, looking at the gun, hiding the gun. This is no direct evidence that he knew that gun was there. []  This case is not a formality exercise to go through a jury trial. We are here because [defendant] has said over and over in the court process, Im not guilty of this crime, and I want a trial. Thats what this is about.

On this record, there was no prejudicial misconduct.

IV.

The Trial Courts Supplemental Instruction Directing The Jurors To Continue Deliberating

After two days of evidence and approximately a half day of arguments and instructions, the jury began deliberating. After roughly six hours of deliberation, the jury advised the trial court that we have been unable to agree on Count 1 [felon in possession of firearm]. Counts 2 & 3 we have been able to decide on. What should we do now, your advice would be appreciated. The trial court discussed the situation with counsel. Over defendants objection, the trial court decided to give a so-called firecracker instruction we approved in People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1122 (Moore) (with substitution of the applicable CALCRIM jury instruction references for the former CALJIC instruction references used in Moore) to direct the jury to continue deliberations in an effort to reach a verdict. The trial court stated its opinion that the jury had jelled pretty fast, that there was enough evidence here to sort this case out here one way or another[,] and that with the firecracker instruction the jury would be able to reach a verdict or advise the court it could not do so by the end of the day. The trial court gave the supplemental instruction to the jury. Less than 10 minutes later the jury requested read-back of the testimony of the arresting officers and defendant. The read-back of testimony took the rest of the day and into the next morning. An hour and 10 minutes after the conclusion of the read-back, the jury announced they had reached verdicts.

Defendant contends on appeal the trial courts supplemental jury instruction impermissibly coerced the jury in violation of the concerns explained by the California Supreme Court in People v. Gainer (1977) 19 Cal.3d 835. Defendant complains the trial court expressed an opinion that a verdict should be reached through the language of the instruction that warned the jury that other juries in similar situations had been able to reach a verdict and ordered the jury to continue its deliberations. We disagree with defendants view of the instruction.

As we explained in Moore, supra, 96 Cal.App.4th at pages 1120-1121: In Allen v. United States (1896) 164 U.S. 492, 501-502 [17 S. Ct. 154, 157, 41 L. Ed. 528, 531], the Supreme Court approved a charge (the Allen charge) which encouraged the minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided. In People v. Gainer (1977) 19 Cal. 3d 835 [139 Cal. Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73], however, our state high court disapproved of Allen in two respects. The Gainer court found the discriminatory admonition directed to minority jurors to rethink their position in light of the majoritys views was improper, inasmuch as, by counseling minority jurors to consider the majority view, whatever it might be, the instruction encouraged jurors to abandon a focus on the evidence as the basis of their verdict. (Gainer, at pp. 845, 848.) The second issue with which the Gainer court took issue was the direction the jury should consider that the case must at some time be decided, noting such a statement was inaccurate because of the possibility the case might not be retried. (Id. at pp. 851-852.) In other words, it is improper to instruct the jury in language that suggests that if the jury fails to reach a verdict the case necessarily will be retried. (Ibid.)

The Moore instruction given by the trial court here began with the following comment: Ladies and gentlemen, at this time, I have further instructions and directions to give to you. It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at a verdict. []  To assist you in your further deliberations, Im going to further instruct you as follows: . . . We do not view this prefatory language, particularly in light of the subsequent specific language that the goal . . . should be to reach a fair and impartial verdict [if]^[5]you are able to do so (italics added), as improperly suggesting a verdict must be reached. Such initial language simply provided the jury with a background explanation for why the trial court was giving it further instructions and directing it to deliberate further.

Nor do we think it significant that the instruction concluded with an order to continue deliberations at this time. Such order did not suggest to the jury that it had to reach a verdict, only that at this point it should resume trying to do so.

Defendant also argues the suggestion of reverse role playing in the instruction contributed to its coercive effect because [r]ole playing forces the minority to accept the majority viewpoint, at least temporarily, which is prohibited by Gainer. Defendant recognizes this argument was rejected in People v. Whaley (2007) 152 Cal.App.4th 968, 982-983 (Whaley), because the suggested role playing applied equally to both the minority and majority positions, but points us to the concern of concurring Justice McAdams that if the breakdown was 11-1, undue pressure could be placed on the sole minority juror. (Id.at p. 985, conc. opn. of McAdams, J.) Defendant notes that we do not know whether the breakdown was 11-1 here because the trial court rejected defendants request to poll the jury.^[6] We agree with the majority in Whaley that the neutral suggestion of role playing did not violate Gainer.

Defendant complains that the instruction given here referenced CALCRIM No. 3550^[7]instead of former CALJIC No. 17.40.^[8] According to defendant CALJIC No. 17.40 gives significantly greater emphasis and attention to the importance of each juror deciding the case for him or herself, explaining that the participants in the action are entitled to the individual opinion of each juror. Defendant claims the majority in Whaley, supra, 152 Cal.App.4th at pages 985-986, cautioned courts to give former CALJIC No. 17.40 as a supplemental instruction where appropriate, but then violated that caution by implicitly equating former CALJIC No. 17.40 with CALCRIM No. 3550.

We do not see any significant difference between CALCRIM No. 3550 and former CALJIC No. 17.40 in the emphasis placed on the individual decision of each juror. Moreover, the Moore supplemental instruction given here specifically told the jury in a later portion of the instruction that both the People and the defendant are entitled to the individual judgment of each juror[,] the very language from former CALJIC No. 17.40 that defendant feels should be emphasized. Nor do we read Whaley, supra, 152 Cal.App.4th at pages 985-986, to caution that only former CALJIC No. 17.40 should be used and referenced. The defendant in Whaley argued any departure from former CALJIC No. 17.40 was unwarranted (Whaley, supra, at p. 982), but the majority did not agree, stating its belief that departure from CALJIC No. 17.40 or the new pre-deliberation instruction set forth in CALCRIM No. 3550 should be carefully considered in light of Gainer and the circumstances of each case. (Id.at p. 985, italics added.) We agree with the Whaley majoritys treatment of the two instructions as being equally acceptable.

Defendant distinguishes his case from Moore, supra, 96 Cal.App.4th 1105, on the basis that the contested issue in [his] case was whether he knew the weapon was on the front seat and involved fewer witnesses and less evidentiary complexity[.] Defendant claims that since the issue was relatively simple and the jury had already deliberated an entire day (the record reflects it was only a partial day of actual deliberations), the trial court should have first inquired whether further deliberations would be of assistance before giving the firecracker instruction. According to defendant, its failure to make such inquiry contributed to the coerciveness of the instruction. Defendant claims the firecracker instruction should not be evaluated by post-instruction events.

In Moore, supra, 96 Cal.App.4th 1105, we rejected a claim that the trial court should have questioned the jury as to whether there was a reasonable probability of reaching a verdict before giving the firecracker instruction. We noted section 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse. [Citations.] (Id. at p. 1121.) We concluded the trial court properly exercised its discretion in concluding further deliberations might be beneficial without express questioning of the jury presumably because of the relatively brief duration of deliberations conducted by the jurors before they announced they could not reach a verdict. (Id.at p. 1122.) We noted that [t]he fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion. (Ibid.)

The trial court here noted a similar brief period of deliberations, that the jury had jelled pretty fast, and that there was enough evidence here to sort this case out . . . one way or another. The trial court believed the jury would be able to reach a verdict or a conclusive impasse relatively quickly if given the firecracker instruction. The trial court proved to be correct. On this record, we do not find any abuse of discretion in the trial courts failure to make a formal inquiry of the jury regarding the helpfulness of further deliberations before providing the supplemental instruction directing them to continue deliberations.

We conclude there was no error in the trial courts provision of the supplemental firecracker instruction in this case.

V.

CALCRIM No. 220

Defendant claims CALCRIM No. 220, the now standard instruction on reasonable doubt, failed to correctly apprise the jury of the presumption of innocence and the prosecutions burden of proof in violation of the federal Constitution.^[9] Defendant claims the phrase impartially compare in the instruction improperly implied a weighing of two opposed sets of evidence so that if no contrary evidence was put into defendants side of the scales, the prosecution would have sustained its burden of proof. Defendant claims this error was exacerbated by the use of the phrase abiding conviction that the charge is true in the instruction, which according to defendant fails to convey the gravity or weight of the proof required. Defendant argues CALCRIM No. 220 fails to inform the jury it could consider the lack of evidence produced and so lessens the prosecutions burden of proof.

Identical contentions to these have been considered and rejected by this court and others. (People v. Stone (2008) 160 Cal.App.4th 323, 331-332; People v. Campos(2007) 156 Cal.App.4th 1228, 1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268.) For the reasons given in those opinions, we again reject the contentions here.

VI.

Defendants Prior Juvenile Adjudication Qualified As A Strike Prior

Over defendants objection, the trial court used defendants prior juvenile adjudication of attempted second degree murder with personal use of a firearm and personal infliction of great bodily injury as a prior serious felony strike to double the base two-year term for his conviction of being a felon in possession of a firearm to a term of four years. Defendant claims on appeal this violated his federal constitutional rights under Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856] and its predecessors, Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Defendant recognizes this court, and others, have rejected his arguments. (People v. Palmer (2006) 142 Cal.App.4th 724 (Palmer); People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1313-1316.) Defendant raises the issue to exhaust his state court remedies and preserve his right to federal review.

The issue of whether a juvenile adjudication can be used as a strike prior for purposes of the three strikes law in light of Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856], is pending before the California Supreme Court in People v. Ngyuen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847. Pending further instruction from the California Supreme Court, we continue to adhere to our view expressed in Palmer, supra, 142 Cal.App.4th 724, and agree with the opinions of the other courts noted ante. We reject defendants claim of federal constitutionalerror.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]In the portion to which defendant refers, the prosecutor addressed possession as the first element of the firearm offense and stated: So we have to ask ourselves, okay, element -- what facts do we have to go to that element? . . . Well, weve heard from the officer that when they approached [defendant], arms length away, right there sitting in the passenger seat, was that loaded Beretta. Is that possession, custody, or control? []  The judge is actually going to give you jury instructions on what that means, but it basically means that did he have access to the weapon? Was he in custody of it? It doesnt mean he has to own the weapon. It doesnt mean it has to be registered to him. It doesnt mean it has to be his. It means, did he have control of it? Did he have custody of it? []  Think back to Officer Baileys testimony. He said the weapon was positioned in a manner that all [defendant] would have had to do, if he wanted to grab it, was turn, reach, and up. That is control and custody. That is having possession of a firearm.

^[3]All of these arguments are improperly made under a single heading regarding the trial courts duty to sua sponte instruct the jury. (Cal. Rules of Court, rule 8.204(a)(1)(B).)

^[4]Defendant admits in his opening brief that the misconduct could have been cured by an admonition, but states the trial court declined to give one. The record does not support defendants assertion that the trial court declined to give an admonition. The record reflects defendant requested the matter be stricken but never requested an admonition to the jury.

^[5]The reporters transcript reflects the word is instead of if, but we view this as a likely typographical error in light of there being no objection or comment below or on appeal.

^[6]Defendant does not argue on appeal the trial court erred in refusing to poll the jury regarding its numerical division.

^[7]CALCRIM No. 3550 is a lengthy standard jury instruction that includes the following pertinent part: []  It is your duty to talk with one another and to deliberate in the jury room. 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. (Italics added.)

^[8]Former CALJIC No. 17.40 provided, in pertinent part: The People and the defendant are entitled to the individual opinion of each juror. []  Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. []  However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. (Italics added.)

^[9]The jury was instructed with CALCRIM No. 220 that: The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. []  A defendant in a criminal case is presumed to be innocent. This presumption required that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. []  Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. []  In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.