P. v. Nissen

1
Filed 12/9/03 P. v. Nissen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUDY SANTOS NISSEN,
Defendant and Appellant.
D040430
(Super. Ct. No. SCS165116)
APPEAL from a judgment of the Superior Court of San Diego County, Wesley R.
Mason, Judge. Affirmed.
A jury found Rudy Santos Nissen guilty of assault with a deadly weapon with
force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 and battery
with serious bodily injury (§ 243, subd. (d)). The jury also found true the allegations that
in committing those crimes Nissen inflicted great bodily injury (§§ 12022.7, subd. (a),
1 All further statutory references are to the Penal Code unless otherwise specified.

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1192.7, subd. (c)(8)), used a deadly or dangerous weapon (§§ 12022, subd. (b)(1),
1192.7, subd (c)(23)), and acted in furtherance of a criminal street gang (§ 186.22, subd.
(b)(1)). Thereafter, the court found true a prior prison term allegation (§ 667.5, subd.
(b)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior "strike" conviction
(§ 667, subds. (b)-(i)). Nissen was sentenced to a term of 24 years in state prison,
consisting of the midterm of three years for the assault conviction, doubled to six years
based upon the prior strike conviction, with a consecutive term of three years for the great
bodily injury enhancement, a consecutive term of 10 years for the criminal street gang
enhancement, and a consecutive term of five years for a prior serious felony
enhancement. The sentence on the battery conviction was stayed pursuant to section 654.
On appeal Nissen asserts that (1) the court violated his Sixth Amendment right to
confront witnesses by admitting evidence of codefendant Rashad Mann's change of
plea;2 (2) there is insufficient evidence to support the criminal street gang enhancement;
(3) the jury instruction on the criminal street gang enhancement was deficient; and (4) the
jury instruction under CALJIC No. 17.41.1 was improper. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
Armando Franco grew up in Chula Vista until he was 15 years old, when he
moved to Imperial Beach with his mother. He associated with an Imperial Beach gang
2 Mann was originally charged, together with Nissen, with attempted robbery,
assault with a deadly weapon and battery. However, as will be discussed, post, he
pleaded guilty to assault with a deadly weapon and was not tried with Nissen.

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known as the "Imperials" from that time until he moved away when he was 18. Franco
was 21 at the time of his testimony at Nissen's trial.
Franco's father was one of the founders of the gang. All of Franco's family
members on his father's side were gang members.
Franco was not highly regarded within the gang for a variety of reasons. One was
that the majority of members grew up in Imperial Beach and had known each other since
elementary school, while Franco had only moved there recently. Another was that he had
not been "jumped into" the gang because of the high status of Franco's father in the gang.
To be "jumped in" means to be beaten up by other gang members before being admitted.
On one occasion Mann, also an Imperial Beach gang member, and three others beat up
Franco and a friend and stole his friend’s hat and money. Franco told his father about the
incident and there was animosity between Franco's family and Mann after that.
Franco's father died as a result of an altercation with a rival gang. A few months
after his father's death, Franco went to a party where Mann was present. Mann gave
Franco a "dirty look" and approached him throughout the night, asking him, "Who got
your back now?" Franco believed that this was a reference to his father's death and the
fact there was no longer anyone to protect him. Franco believed that Mann was angry
over Franco telling his father about his prior altercation with Mann.
Franco stopped associating with the gang when he turned 18 years old. In order to
leave the gang, individuals usually had to be "jumped out" in the same manner that they
entered the gang. Franco did not go through this process and merely left the gang.
Franco moved from Imperial Beach because he knew that sooner or later he was "going

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to get knocked out." Family members informed Franco that he was no longer welcome in
Imperial Beach.
However, Franco occasionally went to Imperial Beach because his mother and
other family members still lived there. Prior to Christmas 2001, Franco had been away
from San Diego for a long time because he was working a construction job in El Centro.
The job ended shortly before Christmas and he spent the holiday with his mother in
Imperial Beach. On December 27, 2001, Franco was taking his cousin Megan Romero to
her home in Imperial Beach when he saw Nissen and Mann standing on a street corner.3
They were wearing clothing worn by Imperial Beach gang members. Mann and Nissen
gestured at Franco to stop, but he ignored them and continued driving. After Franco
dropped his cousin off at their grandmother's house, he drove back and saw Nissen at the
same location. Nissen again motioned him to stop. Franco did not stop, but instead made
a left turn and drove to his mother's house.
Nissen got in his car and followed Franco to his mother's house. Franco parked in
front of his mother's house, although she was not home. After Franco parked, he called
his girlfriend on his cell phone to tell her what was happening. As he was talking to his
girlfriend, Nissen opened the passenger door of Franco's car and got inside.
3 The reporter's transcript refers to Mann as "Cornell." However, this appears to be
a transcribing error of Mann's gang moniker "Conejo."

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Nissen asked Franco what he was doing there. Nissen stated that "Conejo"
(Mann) had told Franco he was not supposed to be in Imperial Beach. Franco responded,
"Who the fuck is Conejo to tell me not to visit my mother."
Nissen handed Franco a cell phone he was carrying. Mann was on the phone.
Mann asked Franco about an old debt and told Franco to stay out of Imperial Beach.
Franco denied that he owed any money. Mann told Franco to give his own cell phone to
Nissen. Franco refused. Mann then told Franco to put Nissen back on the line.
Franco handed Nissen’s cell phone back to him. Franco overheard Mann tell
Nissen, "Just take his phone . . . ." Nissen ended the call and demanded that Franco give
him his cell phone. Franco refused.
Nissen then hit Franco on the side of the head with his fist. Franco and Nissen
then exited the car and began fighting in the street. Nissen punched Franco in the ribs
three times, and Franco hit Nissen in the face, knocking him down. At that point, Franco
noticed that Nissen had a knife in his hand and that the punches to his ribs were actually
stabs. Franco saw that he was bleeding in the area of his ribs. He felt "real wet and kind
of cold" and looked down and saw "blood all over." As Nissen got up, he said, "Oh,
you're dead." Nissen charged at Franco again, but Franco managed to get in his car and
drive off.
Franco then saw that Nissen was following him in his own car. Franco was able to
eventually lose Nissen. Franco drove to his grandmother's house. When he arrived, his
mother and grandmother were there. When he pulled into the driveway and exited the
car, he fainted. His mother asked him what happened. Franco told his mother he had

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been stabbed by some "homeboys" named "Curly" (Nissen) and "Conejo" (Mann). They
called the police and paramedics, and Franco was transported to the hospital by
ambulance. Franco sustained a four-inch deep wound to the right side of his torso, as
well as a superficial puncture wound on his arm.
Carlos Farias, a gang unit detective with the San Diego County Sheriff's
Department, testified that Nissen and Mann were members of the Imperial Beach street
gang and went by the monikers of "Curly" and "Conejo," respectively. Mann was the
primary Imperial Beach gang member enforcing the "keep-out-of-Imperial-Beach" rule.
Michael Speyrer, also a gang unit detective with the San Diego County Sheriff's
Department, testified that the Imperial Beach gang is a documented street gang that has
been in existence for nearly 50 years. The gang is primarily Latino, but a few members
from other races are permitted. The gang has several subgroups or cliques, divided by
age. The younger groups are the ones primarily responsible for committing crimes and
gaining respect for the gang by instilling fear in people. Detective Speyrer testified that
Nissen and Mann were documented members of the "Dukes" clique of the Imperial
Beach gang.
Detective Speyrer stated that membership in the gang had to be earned either by
being "jumped in" or backing up a gang member during a fight or crime. Members who
did not earn their entry into the gang would not be trusted. Detective Speyrer stated that
the Imperials have been involved in various types of crimes, including several homicides.
Detective Speyrer was familiar with the facts of this case from reading the reports
and interviewing Franco. Detective Speyrer testified that in his opinion the charged

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crimes were gang related. He based his opinion in part on the fact that Franco had been
"ranked out" of the gang because he left. Attacking a ranked-out member who returns to
the neighborhood serves to "keep the rest of the members in line." Detective Speyrer's
opinion was also based upon the fact that Mann claimed Franco owed him $80 and
directed Nissen to take his cell phone as payment. Assisting a fellow gang member
collect on a debt is considered beneficial to the gang.
Nissen's codefendant Mann entered a plea of guilty to the charge of assault with a
deadly weapon prior to trial. In his change of plea form, he admitted that he "aided and
advised codefendant Nissen in an assault likely to produce great bodily injury by
instigating and encouraging codefendant Nissen via telephone to take victim Franco's cell
phone." The People called Mann as a witness at trial. However, Mann refused to testify,
invoking his Fifth Amendment right against self-incrimination. Mann was declared an
unavailable witness, and, over Nissen's Sixth Amendment confrontation clause objection,
his change of plea form was admitted under the theory that it was a statement against
penal interest.
B. Defense Case
Officer Pedro Diaz of the Chula Vista Police Department was one of the first
officers to arrive at the scene of the crime. Franco's mother told him that Franco had told
her that he had been attacked by four Hispanic males.
Ericka Mancillas has been friends with Franco for about eight years. She lives
around the corner from Franco's house and next door to Nissen. On December 27,
between 2:00 and 3:00 p.m., she was walking home from a friend's house and Franco

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gave her a ride home. When Franco dropped her off at her house, Nissen was standing
outside his house in the front yard, talking on his cell phone. Franco waved to Nissen
and Nissen walked up to Franco's car. Nissen got in Franco's car, handed his cell phone
to Franco, and said, "Rashad wants to talk to you." After Franco talked to Mann on the
phone, he appeared to be upset. Franco said to Nissen, "You know what, you want to go
for the F'ing money that I owe Rashad." Franco then sped away with Nissen still in the
car and the passenger side door open.
Mancillas walked to the corner to see where Franco's car went. When the car
stopped, Franco and Nissen got out of the car and began talking and moving their hands.
She saw no fighting or weapons. After that, Nissen walked back down to Mancilla's
house and they had pizza.
Nissen's cousin Maria Nissen was at Nissen's house on December 27. After
Nissen arrived, they played video games in his room. He told Maria that he had been in
an argument.
Nissen testified in his own defense. On December 27, Nissen first saw Franco
when he was dropping off Mancillas at her house on the corner. When Franco drove by,
Nissen was standing in his front yard talking to Mann on the telephone. Nissen told
Mann that Franco had just driven by. Mann told Nissen that he wanted to talk to Franco.
Nissen walked over to Franco's car, which was in front of Mancilla's house, and
told Franco that Mann wanted to talk to him. Nissen handed his cell phone to Franco and
sat down on the passenger seat with his feet outside the open door. Franco spoke to
Mann on the phone. After Franco was finished, he and Nissen argued about a debt.

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During the argument, Franco drove off with Nissen's door still open and his feet outside
the car. Nissen pulled his feet inside and closed the car door. Franco drove around the
corner, down the street, around another corner and stopped in front of Franco's mother's
house. Franco drove in a reckless manner and kept reaching under the seat for
something.
When they stopped in front of Franco's mother's house, Franco pulled out a knife
and made a motion toward Nissen with it. Nissen tried to calm Franco down and Franco
said, "I'm tired of this shit." As Franco faced Nissen and got closer, Nissen grabbed
Franco's hand and Franco grabbed Nissen's neck. The two struggled back and forth, with
the knife between them for a few seconds. Nissen managed to push Franco away and get
out of the car. Franco got out of the car and came after Nissen. Nissen and Franco
swung at each other outside the car and Franco then got back in his car and took off.
Nissen never knew Franco had been stabbed as a result of the struggle.
DISCUSSION
I. Admission of Change of Plea Form
Nissen asserts that the court violated his Sixth Amendment right to confront
witnesses by admitting the asserted hearsay change-of-plea form of his codefendant
Mann. We reject this contention.
"Evidence of declarations against penal interest is admissible as an exception to
the hearsay rule." (People v. Jackson (1991) 235 Cal.App.3d 1670, 1677.) This
exception is codified in Evidence Code section 1230, which provides:

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"Evidence of a statement by a declarant having sufficient knowledge
of the subject is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and the statement, when made,
was so far contrary to the declarant's pecuniary or proprietary
interest, or so far subjected him to the risk of civil or criminal
liability, or so far tended to render invalid a claim by him against
another, or created such a risk of making him an object of hatred,
ridicule, or social disgrace in the community, that a reasonable man
in his position would not have made the statement unless he believed
it to be true."
To fall within this statutory exception to the hearsay rule, a declaration against
penal interest "must be 'distinctly' against the declarant's penal interest and must be
'clothed with indicia of reliability.' [Citation.]" (People v. Jackson, supra, 235
Cal.App.3d at pp. 1677-1678.) The Legislature has entrusted to the trial court's sound
discretion the determination of the admissibility of evidence under the declaration-
against-interest exception. (People v. Gordon (1990) 50 Cal.3d 1223, 1250-1251,
overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.)
The party claiming an out-of-court statement is admissible as a declaration against
penal interest must show the declarant is unavailable, the declaration was against the
declarant's penal interest, and the declaration was sufficiently reliable to allow its
admission despite it being hearsay. (People v. Cudjo (1993) 6 Cal.4th 585, 607.) In
deciding whether the statement is sufficiently trustworthy to allow its admission the court
"may take into account not just the words but the circumstances under which they were
uttered, the possible motivation of the declarant, and the declarant's relationship to the
defendant." (People v. Frierson (1991) 53 Cal.3d 730, 745.) The court's determination

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of whether a statement is admissible as against the declarant's interest is reviewed on an
abuse of discretion standard. (Ibid.)
We must also determine whether admission of the statement satisfies Nissen's
right to confrontation and cross-examination under the Sixth Amendment. We review
this issue independently. (Lilly v. Virginia (1999) 527 U.S. 116, 136 (Lilly).)
"'The Confrontation Clause of the Sixth Amendment, extended against the States
by the Fourteenth Amendment, guarantees the right of a criminal defendant "to be
confronted with the witnesses against him." The right of confrontation includes the right
to cross-examine witnesses.'" (People v. Fuentes (1998) 61 Cal.App.4th 956, 963-964,
quoting Richardson v. Marsh (1987) 481 U.S. 200, 206.) "'The central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding
before the trier of fact.'" (Lilly, supra, 527 U.S. at pp. 123-124, quoting Maryland v.
Craig (1990) 497 U.S. 836, 845.) The against-penal-interest exception is not based on
the assumption that the statements are without the typical dangers of hearsay, but founded
on the assumption that "'a person is unlikely to fabricate a statement against his own
interest at the time it is made.'" (Lilly, supra, 527 U.S. at pp. 126-127, quoting Chambers
v. Mississippi (1973) 410 U.S. 284, 299.) Although hearsay rules and the confrontation
clause generally are designed to protect similar values, they are not totally congruent. A
statement admissible under a hearsay exception may be prohibited from evidence by the
confrontation clause. (People v. Rios (1985) 163 Cal.App.3d 852, 863; Ohio v. Roberts
(1980) 448 U.S. 56, 66.) "[T]he veracity of hearsay statements is sufficiently dependable

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to allow the untested admission of such statements against the accused when (1) 'the
evidence falls within a firmly rooted hearsay exception' or (2) it contains 'particularized
guarantees of trustworthiness' such that adversarial testing would be expected to add
little, if anything, to the statements' reliability." (Lilly, supra, 527 U.S. at pp. 124-125,
quoting Ohio v. Roberts, supra, 448 U.S. at p. 66.)
Declarations against penal interest define a large class of situations. Usual
circumstances include admissions used against the declarant himself, exculpatory
evidence offered by the defendant who claims the declarant committed the offense, and
evidence offered by the prosecution to establish the guilt of an accomplice of the
declarant. (Lilly, supra, 527 U.S. at p. 127.) Each of these circumstances involve
different considerations, but generally the mere fact that an accomplice's admission
qualifies as a statement against his penal interest does not justify its use as evidence
against a third person under principles of the confrontation clause. (Id. at p. 128.)
Further, "accomplices' confessions that inculpate a criminal defendant are not within a
firmly rooted exception to the hearsay rule as that concept has been defined in our
Confrontation Clause jurisprudence." (Id. at p. 134, fn. omitted.)
There is a presumption that accomplice' confessions that shift or spread the blame
to a defendant at a criminal trial are unreliable and violate the confrontation clause.
(Lilly, supra, 527 U.S. at pp. 133-137.) However, if the statement has "particularized
guarantees of trustworthiness" (Ohio v. Roberts, supra, 448 U.S. at p. 66), that
presumption may be rebutted and the statement admitted. (Lilly, supra, at pp. 135-137.)
"When a court can be confident . . . that 'the declarant's truthfulness is so clear from the

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surrounding circumstances that the test of cross-examination would be of marginal
utility,'" the statement is admissible. (Id. at p. 136.)
Here, Nissen asserts that Mann's change of plea form was not so reliable that it
could substitute for his Sixth Amendment right to confront Mann as a witness.
Specifically, Nissen asserts that Mann's statements shifted the blame in this matter to him
and that therefore the statement was unreliable, prejudicial, and should not have been
admitted. In support of this proposition, Nissen relies on Lilly, supra, 527 U.S. 116.
However, that case is inapposite.
In Lilly, one of three codefendants in a series of robberies and murders made a 50-
page confession, implicating himself in some aspects of the crime, exculpating himself in
other aspects, and inculpating his codefendants in several respects. (Lilly, supra, 527
U.S. at pp. 118-122.) The United States Supreme Court held that the statements placing
blame on the other defendants were inherently unreliable and violated the codefendants'
cross-examination and confrontation rights. (Lilly, supra, 527 U.S. at pp. 136-139.) The
high court held that such statements were particularly unreliable where, as there, the
declarant had a motive to lie in exculpating himself and shifting blame to others. (Ibid.)
The high court also rejected the proposition that the presumptive unreliability of
the statement could be rebutted in that case by the circumstances surrounding the
confession. In doing so, the high court focused on the fact that (1) the declarant was in
police custody for serious crimes when he confessed; (2) the confession was the result of
leading questions by officers; and (3) he was under the influence of alcohol at the time.
(Lilly, supra, 527 U.S. at p. 139.) Under these circumstances the high court found that

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the confessor "had a natural motive to attempt to exculpate himself as much as possible."
(Ibid.)
Here, we are confronted with an out-of-court statement that, while it does not shift
blame to Nissen, does inculpate him. However, based upon the text of that statement and
the surrounding circumstances, we conclude that any inherent unreliability has been
rebutted in this case. First, in this case, the declarant (Mann) did not attempt to minimize
his role or shift blame to Nissen. The change of plea form merely set forth his crime,
which was aiding and abetting Nissen in the assault and encouraging him to steal Nissen's
cell phone. There is no contention here that Mann was actually at the scene and was later
trying to distance himself from the crime. Mann could not have been charged with the
crimes Nissen was, but only the ones resulting from the statements made via telephone.
Nissen does not assert that Mann actually played a greater role in the crimes or that Mann
was in anyway trying to exculpate himself. There was nothing to be gained by Mann by
lying in the change of plea form. Further, the statement was reliable because it was
signed under penalty of perjury and with advice of counsel, not under questioning by
police. Thus, the statement made in the change of plea form that was the factual basis for
his plea did not have the same indicia of unreliability that was present in Lilly. In sum,
the court did not violate Nissen's right of confrontation by admitting Mann's statement
contained in his change of plea form.

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II. Sufficiency of Evidence That Crime Was "Gang Related"
Nissen asserts that there is insufficient evidence to support the criminal street gang
enhancement as there was no showing that the crimes were committed for the benefit of a
criminal street gang. This contention is unavailing.
A. Standard of Review
In reviewing the sufficiency of the evidence, "'the power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,' to support the trial court's findings." (Estate of Leslie
(1984) 37 Cal.3d 186, 201.)
B. Analysis
Section 186.22, subdivision (b)(1) provides in part:
" . . . [A]ny person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in
any criminal conduct by gang members, shall, upon conviction of
that felony, in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which he or she has been
convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a
violent felony, as defined in subdivision (c) of Section 667.5, the
person shall be punished by an additional term of 10 years." (Italics
added.)
Here, contrary to Nissen's assertion, substantial evidence supports the criminal
street gang enhancement. Franco was not welcome in Imperial Beach because he left the
Imperials gang. He had been told through family members that he was not safe there.
On the date of the crimes both Nissen and Mann indicated to Franco that he was not
welcome in Imperial Beach. Thereafter, Nissen attacked Franco. As the People's gang

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expert testified, beating or attacking a "ranked out" member that reenters the
neighborhood benefits the gang because it keeps "the rest of the members in line."
Further, to the extent the attack was as a result of a perceived debt owed by Franco
to Mann, the attack was either at the direction of, or for the benefit of, the gang. Mann
instructed Nissen to take Franco's cell phone. When Franco refused, Nissen attacked
him. Thus, the attack was at the direction of another gang member. Further, the People's
gang expert testified that assisting another gang member in the collecting of a debt served
to benefit the gang. Substantial evidence supports the criminal street gang enhancement.
III. Instruction Under CALJIC No. 17.24.2
Nissen contends that the court improperly instructed the jury on the criminal street
gang enhancement because it did not state that the jury must find that the appellant had
the specific intent to promote, further or assist the criminal activities of the gang. This
contention is unavailing.
The court instructed the jury under CALJIC No. 17.24.2 as follows:
"It is alleged in Counts 1, 2 and 3 of the Information that the charged
felony was committed for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang
members. [¶] . . . [¶] In order to prove this allegation, each of the
following elements must be proved: [¶] 1. The crimes charged were
committed for the benefit of, at the direction of, or in association
with a criminal street gang; and [¶] 2. These crimes were committed
with the specific intent to promote, further, or assist any criminal
conduct by gang members." (Italics added.)
Although Nissen acknowledges that CALJIC No. 17.24.2 did require that the jury
find the crimes were committed with the specific intent to promote, further or assist

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criminal conduct by gang members, he asserts that it is deficient because it does not
specifically state that Nissen had to have that specific intent. However, Nissen was the
only defendant standing trial and the only person charged with these crimes. He was the
direct perpetrator of these crimes. Therefore, it would be obvious to any juror that the
specific intent referred to was Nissen's. Nissen's challenge to the court's instruction under
CALJIC No. 17.24.2 is unavailing.
IV. Instruction Under CALJIC No. 17.41.1
Nissen contends the court erred by instructing the jury under CALJIC No. 17.41.1.
Nissen asserts that this instruction impermissibly infringed on his federal and state
constitutional rights to a fair trial by eroding the privacy and secrecy of jury
deliberations, thereby chilling the free exchange of jurors' views and their independent
judgment, and pressuring minority jurors to acquiesce in the views of the majority jurors.
We reject these contentions.
The court instructed the jury under CALJIC No. 17.41.1 (1998 New) (6th ed.
1996) as follows:
"The integrity of a trial requires that jurors, at all times during their
deliberations, conduct themselves as required by these instructions.
Accordingly, should it occur that any juror refuses to deliberate or
expresses an intention to disregard the law or to decide the case
based on penalty or punishment, or any other improper basis, it is the
obligation of the other jurors to immediately advise the court of the
situation."
The issue of the constitutionality of CALJIC No. 17.41.1 was decided by the
California Supreme Court on July 18, 2002, in the case People v. Engelman (2002) 28
Cal.4th 436 (Engelman). In that case, the court concluded that CALJIC No. 17.41.1

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"does not infringe upon [a] defendant's federal or state constitutional right to trial by jury
or his state constitutional right to a unanimous verdict . . . ." (Engelman, supra, at pp.
439-440.) Nevertheless, the high court also held that "CALJIC No. 17. 41.1 should not
be given in the future. The law does not require that the jury be instructed in these terms,
and the instruction, by specifying at the outset of deliberations that a juror has the
obligation to police the reasoning and decisionmaking of other jurors, creates a risk of
unnecessary intrusion on the deliberative process." (Engelman, supra, at p. 441.)
In rejecting the defendant's assertion that CALJIC No. 17.41.1 violated his right to
a trial by jury and a unanimous jury verdict by impairing the free and private exchange of
views by jurors in the deliberation process, the court stated that "although the secrecy of
deliberations is an important element of our jury system" (Engelman, supra, 28 Cal.4th at
p. 443), there is no authority for the proposition that "the federal constitutional right to
trial by jury (or parallel provisions of the California Constitution, or other state law)
requires absolute and impenetrable secrecy for jury deliberations in the face of an
allegation of juror misconduct, or that the constitutional right constitutes an absolute bar
to jury instructions that might induce jurors to reveal some element of their
deliberations." (Ibid.) "[A] juror is required to apply the law as instructed by the court,
and refusal to do so during deliberations may constitute a ground for discharge of the
juror. [Citation.] Refusal to deliberate also may subject a juror to discharge [citation],
even though the discovery of such misconduct ordinarily exposes facts concerning the
deliberations, if, after reasonable inquiry by the court, it appears 'as a "demonstrable

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reality" that the juror is unable or unwilling to deliberate.' [Citation.]" (Id. at pp. 443-
444, italics omitted.)
The court also rejected the defendant's claim that instructing the jury under
CALJIC No. 17.41.1 violated his right to a unanimous jury verdict and to the independent
and impartial decision of each juror because "[t]he instructions as a whole fully informed
the jury of its duty to reach a unanimous verdict based upon the independent and
impartial decision of each juror." (Engelman, supra, 28 Cal.4th at p. 444.) The court
also found that the giving of CALJIC No. 17.41.1 was not overly coercive to deadlocked
juries or a holdout juror, as it "is not directed at a deadlocked jury and does not contain
language suggesting that jurors who find themselves in the minority, as deliberations
progress, should join the majority without reaching an independent judgment. The
instruction does not suggest that a doubt may be unreasonable if not shared by a majority
of the jurors, nor does it direct that the jury's deliberations include such an extraneous
factor." (Engelman, supra, at pp. 444-445.)
However, after rejecting the defendant's constitutional claims, the high court went
on to criticize CALJIC No. 17.41.1 as unnecessary and creating at least a risk of the type
of problems the defendant highlighted : "There is risk that the instruction will be
misunderstood or that it will be used by one juror as a tool for browbeating other jurors.
The instruction is given immediately before the jury withdraws to commence its
deliberations and, unlike other instructions cautioning the jury against misconduct such as
visiting the scene of the crime or consulting press accounts, it focuses on the process of
deliberation itself. We believe it is inadvisable and unnecessary for a trial court to create

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the risk of intrusion upon the secrecy of deliberations or of an adverse impact upon the
course of deliberations by giving such an instruction." (Engelman, supra, 28 Cal.4th at p.
445.) The court also noted that juries are already given adequate instructions that guard
against juror misconduct and explain the jury's duty to follow the law as given in the
instructions . (Id. at pp. 448-449.) Therefore, the court concluded that while CALJIC
No. 17.41.1 was not constitutionally infirm, in the future courts are directed not to
instruct juries with this provision. (Engelman, supra, at p. 449.)
Based upon this direction from the California Supreme Court, we must also
conclude that CALJIC No. 17.41.1 is not constitutionally infirm. The court thus did not
err in instructing the jury under this provision in the instant case.
Further, even if it had been improper for the court to instruct the jury under
CALJIC No. 17.41.1, any such error would have been harmless beyond a reasonable
doubt. No juror was reported to the court by another juror. There is no evidence any
juror was coerced or pressured. There is no evidence that any juror refused to follow the
law. Because there is no evidence "that CALJIC No. 17.41.1 had any effect on this case
whatsoever," any error by the court in instructing the jury under CALJIC No. 17.41.1 did
not constitute reversible error. (People v. Brown (2001) 91 Cal.App.4th 256, 271; People
v. Molina (2000) 82 Cal.App.4th 1329, 1335.)

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DISPOSITION
The judgment is affirmed.
NARES, J.
I CONCUR:
HUFFMAN, Acting P. J.

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1
AARON, J., Concurring:
I disagree with section I of the majority opinion because I believe the admission of
Mann's change of plea forman out-of-court statement made by an accomplice that
implicates Nissen in criminal activityviolated Nissen's Sixth Amendment confrontation
rights. As the majority notes, "'The central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding before the trier of fact.'" (Lilly
v. Virginia (1999) 527 U.S. 116, 123-124 (Lilly), quoting Maryland v. Craig (1990) 497
U.S. 836, 845.) Nissen never had the opportunity to subject Mann's statement to such
testing and, in my view, the "presumptive unreliability" of the statement was not
otherwise rebutted. (Lilly, supra, 527 U.S. at p. 137.) However, I concur in the result
because the error was harmless beyond a reasonable doubt.
Mann's change of plea form was clearly not admissible against Nissen as a
statement against Mann's penal interest, since "accomplices' confessions that inculpate a
criminal defendant are not within a firmly rooted exception to the hearsay rule as that
concept has been defined in our Confrontation Clause jurisprudence," (Lilly, supra, 527
U.S. at p. 134), and the majority so concludes. Therefore, as the majority acknowledges,
in order to have been properly admitted as substantive evidence against Nissen under the
Confrontation Clause, Mann's statement must contain "'particularized guarantees of
trustworthiness' such that adversarial testing would be expected to add little, if anything

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to the statement['s] reliability." (Id. at p. 125, quoting Ohio v. Roberts (1980) 448 U.S.
56, 66.)
The majority notes that if the accomplice's incriminating statement has
"particularized guarantees of trustworthiness," the presumption of unreliability of the
statement may be rebutted and the statement admitted. The majority then quotes the
following statement from Lilly: "When a court can be confident . . . that 'the declarant's
truthfulness is so clear from the surrounding circumstances that the test of cross-
examination would be of marginal utility,'" the statement is admissible. (Lilly, supra, 527
U.S. at p. 136.) The majority asserts that in this case, "any inherent unreliability has been
rebutted . . . ." (Maj. Opn. at p. 14.)
In reaching this conclusion, the majority relies on the following factors: 1) Mann
did not attempt to minimize his role or shift blame to Nissen; and 2) the statement was
signed under penalty of perjury and with advice of counsel, and not under questioning by
police. The majority essentially concludes that because Mann's statement does not have
the same indicia of unreliability as were present in Lilly, it was reliable and therefore,
admissible. However, Lilly does not purport to provide an exhaustive list of indicia of
unreliability. Rather, it reaffirms that unless "particularized guarantees of
trustworthiness" are present, the unreliability of inculpatory accomplice statements is
presumed. In my view, no such guarantees were present in this case.
With respect to the majority's attempt to distinguish this case from Lilly on the
basis that Mann's statement does not shift blame to Nissen, as the majority acknowledges,
the statement does inculpate Nissen. Under Lilly, the statement need not specifically shift

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blame in order to be deemed inherently unreliable. The Lilly court made clear that
inculpatory accomplice statements are "suspect" not only if they shift or spread blame,
but more generally, "insofar as they inculpate other persons." The Lilly court concluded
that "confession[s] by an accomplice which incriminate[ ] a criminal defendant" are
"inherently unreliable." (Lilly, supra, 527 U.S. at pp. 130-131, 139.) In a concurring
opinion in Lilly, Justice Scalia remarked that the prosecution's introduction in evidence of
an out-of-court statement of an accomplice, without making the accomplice available for
cross-examination, constitutes a "paradigmatic Confrontation Clause violation." (Id. at
p. 143.) Far from being "inherently trustworthy," Mann's statement is, in my view,
inherently untrustworthy, and its admission constituted a clear violation of Nissen's rights
under the Confrontation Clause.1
Further, the fact that Mann's statement was signed under oath does not satisfy the
requirements of the Sixth Amendment. A central purpose of the confrontation clause was
to abolish "a particular abuse common in 16th- and 17th-century England: prosecuting a
defendant through the presentation of ex parte affidavits, without the affiants ever being
produced at trial." (White v. Illinois (1992) 502 U.S. 346, 352.) As the Lilly plurality
1 It is interesting to note that, with respect to the admission in evidence of Mann's
change of plea form, the trial court was required to give CALJIC No. 3.18, "Testimony of
Accomplice to be Viewed with Care and Caution," which instructs the jury that an
accomplice's testimony that tends to incriminate the defendant should be viewed with
caution. This instruction applies to the out-of-court statement of an accomplice as well as
to an accomplice's in-court testimony. (See CALJIC No. 3.11.) It is difficult to reconcile
this required jury instruction with the majority's conclusion that Mann's out-of-court
statement implicating Nissen is "inherently trustworthy."

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observed: "This abuse included using out-of-court depositions and 'confessions of
accomplices.' [Citations.]" (Lilly, supra, 527 U.S. at p. 124.) Thus, the fact that an
accomplice's out-of-court statement is made under oath clearly does not supply the
indicia of reliability required by the Confrontation Clause.
The majority fails to heed the warning of the Lilly court that, "[T]he historical
underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases
offer one cogent reminder: It is highly unlikely that the presumptive unreliability that
attaches to accomplices' confessions that shift or spread blame can be effectively rebutted
when the statements are given under conditions that implicate the core concerns of the
old ex parte affidavits practicethat is, when the government is involved in the
statements' production, and when the statements describe past events and have not been
subjected to adversarial testing." (Lilly, supra, 527 U.S. at p. 137, italics added.)
This is precisely the situation in this case. It is clear the government was involved
in the production of the factual basis of Mann's change of plea form, since the statement
was the product of plea negotiations with the prosecution. Further, it is obvious upon
examining the form that the handwritten factual basis for the plea is not Mann's own
statement. It appears that Mann's attorney wrote the first portion of the factual basis, and
that the prosecutorapparently not satisfied with what Mann's attorney had
writtenwrote the remainder of it, and then had Mann initial the additional language.
Finally, the statement describes past events, and was never subjected to adversarial

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5
testing since Mann invoked his Fifth Amendment privilege against self-incrimination and
did not testify.
The record contains no information about the circumstances under which Mann's
statement was produced. It is therefore not possible, in my view, to conclude that the
statement is "inherently trustworthy." Because Mann was not subject to cross-
examination, we do not know whether he was coerced in any way to initial the language
that was added to the factual basis set forth in his plea form. We do not know what
incentives, if any, were offered to Mann during plea negotiations in exchange for
implicating Nissen. We do not know who authored the factual basis that appears in the
change of plea form, or the circumstances under which it was amended. Further, Mann
recanted the statement in its entirety in his discussions with the probation officer, telling
the probation officer that he pled guilty only because his attorney told him that if he were
to do so, he would receive a probationary sentence. These facts cast significant doubt on
the trustworthiness of Mann's statement, and would have provided Nissen's attorney with
a rich source of material for cross-examination. Under these circumstances, I cannot
conclude that Mann's statement "contains 'particularized guarantees of trustworthiness'
such that adversarial testing would be expected to add little, if anything, to the
statement['s] reliability," (Lilly, supra, 527 U.S. at p. 125, citing Ohio v. Roberts, supra,
448 U.S. at p. 66) or that Mann's truthfulness is "so clear from the surrounding
circumstances" that cross-examination would have been of marginal utility. (Lilly, supra,
527 U.S. at p. 136.) In my view, the inherent unreliability of Mann's statement was not
rebutted.

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However, I concur with the result reached by the majority because the admission
of Mann's statement was harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18.) The factual basis in Mann's change of plea form states, "I . . . aided
and advised co-defendant Nissen in an assault likely to produce great bodily injury by
instigating and encouraging codefendant Nissen via telephone to take victim Franco's cell
phone." While the statement mentions the assault, it is relevant only to the attempted
robbery charge -- a charge of which Nissen was acquitted -- in that the statement tends to
prove that Nissen intended to steal Franco's cell phone. With respect to the offenses of
which Nissen was convicted -- assault with a deadly weapon and battery with serious
bodily injury -- Franco's testimony and the other evidence presented at the trial
constitutes independent evidence that is more than sufficient to support the convictions,
and Mann's statement neither corroborates nor contradicts this testimony. Further, the
court allowed in evidence the probation report, in which Mann recanted the statement
contained in his change of plea form, thereby diminishing the evidentiary weight of the
statement.
AARON, J.

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