Filed 9/1/21 P. v. Harper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ADAM WAYNE HARPER,

Defendant and Appellant.

F078674

(Super. Ct. No. F18902657)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, 

Judge.

Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and 

Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Defendant Adam Wayne Harper contends on appeal that (1) his right to present a 

complete defense was violated when the trial court denied his request to instruct on a 

lesser related offense, (2) he was deprived of his Sixth Amendment right to competent 

counsel by defense counsel’s failure to object to jury instruction CALCRIM No. 3551,

(3) the court abused its discretion in considering only his recidivist status in denying his 

Romero1 motion, and (4) three 1-year prior prison term enhancements should be stricken 

from his sentence in light of Senate Bill No. 136. We strike the prior prison term 

enhancements and affirm in all other respects.

PROCEDURAL SUMMARY

On April 23, 2018, the Fresno County District Attorney charged defendant with 

second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b);2 count 1) and 

possession of ammunition by a person prohibited from owning a firearm (§ 30305, 

subd. (a)(1); count 2). The felony complaint further alleged that defendant had suffered a 

prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, 

subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served three prior prison terms (§ 667.5, 

subd. (b)).

On June 22, 2018, the defense declared a doubt as to whether defendant was 

competent to stand trial pursuant to section 1368. The trial court suspended criminal 

proceedings and appointed Dr. Howard Terrell to conduct a section 1368 examination. 

On July 19, 2018, defendant waived his right to a jury trial and submitted the issue of 

competency on the report of Dr. Terrell dated July 12, 2018. The court stated that 

Dr. Terrell was of the opinion that, although defendant suffered some incapacities, he was 

competent to stand trial. The court adopted the recommendation, found that defendant 

was competent, and reinstated criminal proceedings.

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

2 Undesignated statutory references are to the Penal Code.
3.

On July 24, 2018, the defense again declared a doubt as to defendant’s 

competency. The court suspended proceedings and appointed Dr. Doriann Hughes. 

Dr. Hughes found that defendant demonstrated some delusional beliefs but was 

competent. On August 21, 2018, the defense submitted on the report of Dr. Hughes. The 

court found defendant competent and reinstated criminal proceedings.

An information was filed on September 7, 2018. After a trial, on November 19, 

2018, a jury found defendant guilty on both counts. In a bifurcated proceeding, 

defendant waived his right to a jury trial on the prior convictions and admitted the prior 

strike conviction and the prior prison terms.

On January 9, 2019, the trial court sentenced defendant to seven years in prison: 

on count 1, the midterm of two years, doubled pursuant to the Three Strikes law; on 

count 2, the midterm of two years, doubled pursuant to the Three Strikes law, to be 

served concurrently; plus three 1-year prior prison term enhancements.

On January 9, 2019, defendant filed his notice of appeal.

FACTS

At about 9:00 p.m. on April 18, 2018, the owner of a small grocery and 

convenience store closed up the store for the night, emptying his cash register before 

locking the windows and doors and going home. He left the keys in the cash register but 

removed the money. When he and his son returned the next morning at about 7:15 a.m.

to open the store, the owner discovered one of the store’s windows was broken and a 

jacket he had never seen before was covering the opening. There was also a hammer he 

had never seen before lying on the floor inside the store. The owner and his son found 

three boxes sitting outside the store containing the cash register, energy drinks, candy, 

and cigarette boxes from the store.

While outside the store, they saw a car pull up in front. Defendant exited the car 

and attempted to pick up the boxes containing the cash register and other items. The son 

stopped defendant from picking up the items while the owner called the sheriff’s 
4.

department. As the owner spoke to the sheriff’s department, defendant walked away 

from them and started to run. The owner saw defendant throw several items out of his 

pockets onto the ground as he ran across the street. Defendant then stopped and waited in 

a parking lot across the street from the store.

Sheriff’s deputies arrived soon after the owner’s call. After the owner talked with 

the sheriff’s deputies for several minutes, the deputies went across the street and arrested 

defendant where he was still waiting. The deputies searched defendant’s pockets and 

also the street and parking lot where the owner saw defendant throw items as he ran. In 

defendant’s pockets, deputies found $13 in loose change, two brand new packs of 

cigarettes, eight lighters, a new roll of black electrical tape, 12 silver dollars, and six

bandannas. They recovered keys for the store’s cash register and two shotgun shells from 

the parking lot across the street where defendant had thrown things while running. 

Defendant was cooperative. The deputies saw no marijuana or influence of marijuana 

use by defendant.

The deputies transported defendant to their substation. There, defendant was 

interviewed by Detective Carl Chalmers, the arresting officer, Deputy Patrick Beggs, and 

Detective Eric Penland.

At trial, a video recording of defendant’s interview was played for the jury. 

Detective Chalmers and Deputy Beggs testified about the recorded interview. Defendant 

admitted during the interview that he entered the store by breaking the window during the 

night and that he took loose change, silver dollar coins, the store keys, food, energy 

drinks, and bandannas. He did not admit to using the hammer to break the window. He 

told them the hammer was already inside the store. He admitted he stacked items in the 

boxes and left them outside the store, planning to come back for them because he could 

not carry everything at once. Defendant said he felt a little bit bad about breaking in, so 

he swept up some of the mess he made. Defendant said he hung the jacket over the 

window and locked the back door when he left. Defendant stated that he knew the owner 
5.

of the store; however, the person he named was not the owner. Defendant said he used 

some marijuana the night he broke into the store. He stated that, in the morning, a friend 

gave him a ride back to the store so he could retrieve the boxes he left outside. The 

friend did not know about the burglary. When Detective Chalmers asked why he went 

into the store, defendant stated, “Right. Well, I heard in my head (Dennis Lane Harper)

wanted me to go in there so I did.” Detective Chalmers testified defendant was dirty and 

unkempt and appeared as though he might be homeless.

DISCUSSION

I. Instruction on Lesser Related Offense

Defendant contends his constitutional right to present a complete defense was 

violated when the trial court denied his request to instruct on the lesser related offense of 

theft by larceny as to count 1, the charge of burglary. The People argue defendant was 

not entitled to lesser related offense instructions as a component of his constitutional right 

to present a defense, and the lack of instructions on theft by larceny did not prevent 

defendant from arguing that he lacked the requisite elements of burglary as a theory of 

his defense. We agree with the People.

A. Background

The defense theory at trial was that when defendant entered the building, he had 

no specific intent to commit a theft; he went in because a voice told him to do so and he 

was just seeking shelter because it was cold outside and he was homeless. Defendant 

requested an instruction on the lesser related offense of theft by larceny on the burglary 

count. The prosecutor objected, and the trial court denied the request. The court noted it 

had found no authority to support the position that theft by larceny is a lesser included 

offense of burglary, and that the prosecutor had not alleged in the information a separate 

and independent charge concerning theft. During argument to the jury, defense counsel 

argued defendant did not have the requisite intent for a burglary conviction.
6.

B. Law

1. Duty to Instruct

Under the United States Constitution, a defendant has a due process right to 

present a full defense and to receive jury instructions that would make such a defense 

possible. (Crane v. Kentucky (1986) 476 U.S. 683, 690 [“the Constitution guarantees 

criminal defendants ‘a meaningful opportunity to present a complete defense’ ”]; see 

Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739–740 [“It is well established that a 

criminal defendant is entitled to adequate instructions on the defense theory of the 

case”].)

Under California law, “ ‘[i]t is settled that in criminal cases, even in the absence of 

a request, a trial court must instruct on general principles of law relevant to the issues 

raised by the evidence’ ” and “ ‘necessary for the jury’s understanding of the case.’ ” 

(People v. Diaz (2015) 60 Cal.4th 1176, 1189.) This duty to instruct extends to defenses 

“ ‘if it appears ... the defendant is relying on such a defense, or if there is substantial 

evidence supportive of such a defense and the defense is not inconsistent with the 

defendant’s theory of the case.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 73.)

This duty also applies to any lesser offenses that are necessarily included in the 

charged offenses when there is substantial evidence the defendant is guilty only of the 

lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118–119 (Birks) [courts must 

instruct in this situation even absent a request and over the parties’ objections]). 

However, “[i]f a lesser offense shares some common elements with the greater offense, 

or if it arises out of the same criminal course of conduct as the greater offense, but it has 

one or more elements that are not elements of the greater offense as alleged, then it is a 

lesser related offense, not a necessarily included offense.” (People v. Hicks (2017) 

4 Cal.5th 203, 209, italics added, citing Birks, at pp. 119–120.)

The federal Constitution does not require state trial courts to provide jury 

instructions on offenses that are not lesser included offenses of the charged crime. 
7.

(Hopkins v. Reeves (1998) 524 U.S. 88, 90–91.) Similarly, under California law, a 

defendant does not have “a unilateral entitlement to instructions on lesser offenses which 

are not necessarily included in the charge.” (Birks, supra, 19 Cal.4th at p. 136.) “[I]t is 

ordinarily the prosecution’s function to select and propose the charges,” and substantial 

separation of powers issues arise if criminal defendants are allowed the “right to insist on 

jury consideration of nonincluded offenses without the prosecutor’s consent.”3 (Birks, at 

pp. 134, 136.) In People v. Rundle (2008) 43 Cal.4th 76, the court expressly held that 

“there is no federal constitutional right of a defendant to compel the giving of lesserrelated-offense instructions.” (Id. at p. 148, overruled on another point in People v. 

Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

A defendant’s right to a complete defense is not infringed by denial of instructions 

on a lesser related offense where the “defense” is in actuality not a true defense to the 

charged offense but rather a related “theory of criminal liability based on a different 

offense” because “the failure to give the instruction [on the lesser related offense does] 

not impinge on [the defendant’s] right to present a defense to [the greater charged 

offense]. It simply reflect[s] the fact that the prosecutor chose not to file on the other 

[lesser related] charge. We do not suggest, however, that [the defendant] could not argue 

to the jury that his culpability was as one who [committed the lesser related offense] but 

not one who committed [the greater charged offense].” (People v. Valentine (2006) 

143 Cal.App.4th 1383, 1388 (Valentine); see Birks, supra, 19 Cal.4th at p. 136, fn. 19 

[“Finally, nothing in our holding prevents the defendant from arguing in any case that the 

evidence does not support conviction of any charge properly before the jury, and that 

complete acquittal is therefore appropriate”].) The argument that “there is a general 

3 Birks noted: “[O]ur decision does not foreclose the parties from agreeing that the 

defendant may be convicted of a lesser offense not necessarily included in the original charge. 

When the parties consent to such a procedure ... neither can claim unfairness, and the 

prosecution’s role in determining the charges is not improperly compromised.” (Birks, supra, 

19 Cal.4th at p. 136, fn. 19.)
8.

federal constitutional due process right to present the ‘theory of the defense case,’ thus 

requiring that the instruction ... on [the lesser related offense] be given ... merely ... 

recast[s] in different terms the same claims we already have rejected.” (People v. Rundle, 

supra, 43 Cal.4th at p. 148.)

The appropriate standard of review for claims of instructional error is independent 

or de novo review. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

2. Theft and Burglary

Section 484, subdivision (a), criminalizes theft by larceny in that “[e]very person 

who shall feloniously steal, take, carry, lead, or drive away the personal property of 

another ... is guilty of theft.”

Section 459 defines burglary, providing that “[e]very person who enters any 

house, room, apartment, tenement, shop, warehouse, store ... with intent to commit grand 

or petit larceny or any felony is guilty of burglary.”

As theft by larceny shares some common elements with the greater offense of 

burglary, but has at least one element that is not an element of burglary as alleged, theft 

by larceny is a lesser related offense to burglary, not a lesser included offense. 

(See Birks, supra, 19 Cal.4th at pp. 119–120.)

C. Analysis

Here, defendant argues that his constitutional right to present a complete defense 

was violated because the court denied his request to instruct on the lesser related offense 

of theft by larceny as to count 1, the charge of burglary. He argues that the established 

cases of Birks and Valentine should be overturned, because without an instruction on a 

lesser related offense, his constitutional right to present a defense is meaningless. He 

urges us to hold that if a defendant has a right to present a lesser related offense as a 

theory of his defense to the charged crime, then the trial court must instruct the jury on 

the elements of the lesser related offense, with an explanation that the lesser related 

offense is not a charged offense in the case but simply the defense theory. He claims this 
9.

would prevent the prosecutor’s authority to choose the charges against the defendant 

from being undermined.

Defendant points to three cases as support for his position: Bradley v. Duncan

(9th Cir. 2002) 315 F.3d 1091, 1099 (“the right to present a defense ‘would be empty if it 

did not entail the further right to an instruction that allowed the jury to consider the 

defense’ ”); People v. St. Martin (1970) 1 Cal.3d 524, 531 (under state law, the trial court 

must instruct jurors on all issues relevant to their understanding of the case); and Conde 

v. Henry, supra, 198 F.3d at pages 739–740 (a defendant is entitled to adequate 

instructions on the defense theory of the case). However, defendant fails to note that 

none of these cases involved instructions on lesser related offenses.

Defendant’s argument that he was entitled to a lesser related offense instruction 

under state law principles and as a component of his constitutional right to present a 

defense is foreclosed by Birks and Valentine (see Birks, supra, 19 Cal.4th at p. 136; 

Valentine, supra, 143 Cal.App.4th at p. 1388), and we are bound by those cases (Auto 

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“The decisions of this 

court are binding upon and must be followed by all the state courts of California”]). But 

we note that defendant was not prevented from presenting a defense because theft by 

larceny is not a defense to the crime of burglary; it is a separate criminal offense. 

Furthermore, defendant was not barred from arguing his defense theory that he was only 

culpable of stealing the items from the store, rather than entering the store with the intent 

to commit a felony, and thus that he lacked the intent necessary for the greater offense of 

burglary. In fact, defense counsel did argue, “What this case is about, there’s one issue in 

this case, and that’s that the People cannot prove [defendant]’s intent at the time of 

entry .... That is what needs to be proven in order to prove a burglary. It has to be at the 

time of entry, not after.”

Accordingly, the trial court did not err in refusing defendant’s request to instruct 

the jury on the lesser related offense of theft by larceny, and defendant was not denied his 
10.

federal Constitutional right to present a complete defense by the trial court’s refusal to so 

instruct the jury, as he could still argue it as a theory of his defense.

II. Ineffective Assistance of Counsel

Defendant contends he was deprived of his Sixth Amendment right to competent 

counsel by defense counsel’s failure to object to the trial court’s instruction with 

CALCRIM No. 3551, urging the jury to continue deliberating. Defendant argues defense 

counsel should have objected because (1) the trial court instructed with CALCRIM 

No. 3551 without first asking the jurors if further instruction might assist them or 

determining their numerical division, and (2) CALCRIM No. 3551 was coercive and 

violative of defendant’s right to due process. Defendant claims he was prejudiced by 

defense counsel’s failure to object to the instruction because had she objected, the trial 

court would not have given the instruction, the jury would not have reached a verdict on 

the burglary charge, and he would not have been found guilty. The People respond that 

the instruction was proper and defendant’s trial counsel performed competently. We 

agree with the People.

A. Background

After approximately four hours of presenting evidence during two days of trial, the 

parties gave closing arguments. At 11:20 a.m. the day closing arguments were made, the 

jury began deliberations. A little less than four hours later, at 3:06 p.m., the jury 

submitted a written note to the judge. It stated, “We would like clarification on what to 

do in the event of a dead-lock that seems unlikely to be resolved; we have a verdict on 

one count, but are at an impasse on the other.” The court discussed the matter with 

counsel off the record. The prosecutor suggested the court instruct the jurors with 

CALCRIM No. 3551, to urge them to continue deliberations. The court stated on the 
11.

record that it “appears appropriate,” presumably referring to the decision to give the jury 

the instruction. The court read CALCRIM No. 3551 to the jury, stating:

“Sometimes juries that have had difficulty reaching a verdict are 

able to resume deliberations and successfully reach a verdict on one or 

more counts.

“Please consider the following suggestions. Do not hesitate to

reexamine your own views. Fair and effective jury deliberations require a 

frank and forthright exchange of views. Each of you must decide the case 

for yourself and form your own individual opinion after you have fully and 

completely considered all of the evidence with your fellow jurors. It is 

your duty as jurors to deliberate with the goal of reaching a verdict if you 

can do so without surrendering your individual judgment.

“Do not change your position just because it differs from that of 

other jurors or just because you or others want to reach a verdict. Both the 

People and the defendant are entitled to the individual judgment of each 

juror. It is up to you to decide how to conduct your deliberations.

“You may want to consider new approaches in order to get a fresh 

perspective. Let me know whether I can do anything to help you further, 

such as give additional instructions or clarify instructions I have already 

given you.

“Please continue your deliberations at this time. If you wish to 

communicate with me further, please do so in writing using the form my 

deputy has given you which is actually contained in your deliberation 

binder.”

Defense counsel made no comment or objection, either before or after the 

instruction was given, regarding the use of the instruction.

After the instruction was given, the jury resumed deliberations from 3:37 p.m.

until 4:25 p.m. After a weekend recess, the jury returned the following Monday and 

continued deliberating from 9:00 a.m. to 9:17 a.m. At 9:17 a.m., the jury notified the 

court it had reached a verdict. The jury found defendant guilty of second degree burglary 

(count 1) and possession of ammunition by a person prohibited from owning a firearm

(count 2).
12.

B. Law

1. Ineffective Assistance

“The Sixth Amendment guarantees competent representation by counsel for 

criminal defendants. [Reviewing courts] presume that counsel rendered adequate 

assistance and exercised reasonable professional judgment in making significant trial 

decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) “A defendant who raises the 

issue on appeal must establish deficient performance based upon the four corners of the 

record.” (People v. Cunningham, 25 Cal.4th 926, 1003 (Cunningham).) “To secure 

reversal of a conviction upon the ground of ineffective assistance of counsel under either 

the state or federal Constitution, a defendant must establish (1) that defense counsel’s 

performance fell below an objective standard of reasonableness, ... and (2) that there is a 

reasonable probability that defendant would have obtained a more favorable result absent 

counsel’s shortcomings.” (Cunningham, at p. 1003, citing Strickland v. Washington

(1984) 466 U.S. 668, 687–694 (Strickland).)

Defense counsel’s performance is reviewed with deferential scrutiny, indulging a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance and recognizing the many choices that attorneys make in handling 

cases and the danger of second-guessing an attorney’s decisions. (People v. Maury

(2003) 30 Cal.4th 342, 389; Strickland, supra, 466 U.S. at p. 689.) Our review accords 

“ ‘great deference to counsel’s tactical decisions.’ ” (People v. Mickel (2016) 2 Cal.5th 

181, 198.)

“It is particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective assistance only 

if (1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 
13.

assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. 

Mai (2013) 57 Cal.4th 986, 1009.)

Counsel is not ineffective for failing to make a meritless objection or motion. 

(People v. Weaver (2001) 26 Cal.4th 876, 931.)

Further, the defendant must affirmatively prove prejudice. (Mickel, supra, 

2 Cal.5th at p. 198.) The defendant must show a reasonable probability of a more 

favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) “ ‘A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.’ ” 

(Cunningham, supra, 25 Cal.4th at p. 1003.) Mere speculation does not meet the Sixth 

Amendment standard for demonstrating prejudice. (In re Clark (1993) 5 Cal.4th 750, 

766.) The reviewing court does not need to determine whether counsel’s performance 

was deficient before examining the prejudice suffered by the defendant; if it is easier to 

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that 

course should be followed. (Strickland, supra, 466 U.S. at p. 697.)

2. Deadlocked Jury

Section 1140 provides the trial court with discretion to determine whether there is 

a reasonable probability of agreement among jurors who have not yet agreed upon a 

verdict. The statute states:

“Except as provided by law, the jury cannot be discharged after the cause is 

submitted to them until they have agreed upon their verdict and rendered it 

in open court, unless by consent of both parties, entered upon the minutes, 

or unless, at the expiration of such time as the court may deem proper, it 

satisfactorily appears that there is no reasonable probability that the jury 

can agree.” (§ 1140.)

Section 1140 clearly commits to the trial judge, not to the jury, the determination 

of the question whether “ ‘ “there is no reasonable probability that the jury can agree.” ’ ” 

(People v. Finch (1963) 213 Cal.App.2d 752, 763.) “The trial court is therefore required 

to determine in its ‘sound discretion’ whether there is a reasonable probability of 
14.

agreement by the jury. [Citation.] However, ‘[t]he court must exercise its power ... 

without coercion of the jury, so as to avoid displacing the jury’s independent judgment 

“in favor of considerations of compromise and expediency.” ’ ” (People v. Whaley

(2007) 152 Cal.App.4th 968, 980.) Accordingly, “ ‘the court may direct further 

deliberations upon its reasonable conclusion that such direction would be perceived “ ‘as 

a means of enabling the jurors to enhance their understanding of the case rather than as 

mere pressure to reach a verdict on the basis of matters already discussed and 

considered.’ ” ’ ” (People v. Debose (2014) 59 Cal.4th 177, 209 (Debose).)

California Rules of Court, rule 2.1036(a),4 also provides guidance for the trial 

court:

“After a jury reports that it has reached an impasse in its deliberations, the 

trial judge may, in the presence of counsel, advise the jury of its duty to 

decide the case based on the evidence while keeping an open mind and 

talking about the evidence with each other. The judge should ask the jury if 

it has specific concerns which, if resolved, might assist the jury in reaching 

a verdict.” (Rule 2.1036(a).)

Rule 2.1036(b)(1) states in part, “[i]f the trial judge determines further action 

might assist the jury in reaching a verdict, the judge may ... [¶] ... give additional 

instructions.”

“While rule 2.1036 does not state so expressly, it is apparent the trial court has 

discretion when choosing whether to resort to the tools provided and how to use those 

tools.” (People v. Salazar (2014) 227 Cal.App.4th 1078, 1088.) The trial court is not 

required to question the jurors as to whether a verdict can be reached when exercising its 

discretion in determining whether there is a reasonable probability of reaching a verdict. 

(People v. Moore (2002) 96 Cal.App.4th 1105, 1121–1122 (Moore).) Nor is the trial 

court required by rule 2.1036 to first poll the jurors as to their numerical division. 

(Debose, supra, 59 Cal.4th at p. 210.)

4 All references to rules are to the California Rules of Court.
15.

When giving instructions to a deadlocked jury, “it is error for a trial court to give 

an instruction which either (1) encourages jurors to consider the numerical division or 

preponderance of opinion of the jury in forming or reexamining their views on the issues 

before them; or (2) states or implies that if the jury fails to agree the case will necessarily 

be retried.” (People v. Gainer (1977) 19 Cal.3d 835, 852, fn. omitted (Gainer), 

disapproved on another ground by People v. Valdez (2012) 55 Cal.4th 82, 163 (Valdez).) 

In Gainer, the trial court gave the jury an instruction that explicitly told the deadlocked 

jurors, “the case must at some time be decided,” “listen [to each other] with a disposition 

to be convinced to each other’s arguments,” and “a dissenting juror should consider 

whether a doubt in his or her own mind is a reasonable one, which makes no impression 

upon the [majority of the other jurors].” (Gainer, at pp. 841–842.) The Gainer court 

disapproved of this so-called “dynamite” instruction or “Allen charge” (Allen v. United 

States (1986) 164 U.S. 492), which was used as a means of “blasting” a verdict out of a 

deadlocked jury, because such an instruction tells “the jury to consider extraneous and 

improper factors, inaccurately states the law, carries a potentially coercive impact, and 

burdens rather than facilitates the administration of justice.” (Gainer, at pp. 842–843.)

C. Analysis

1. Questioning Jurors Before Instructing

Defendant contends the trial court erred in instructing the jury with CALCRIM 

No. 3551 without first asking the jurors if further instruction might assist them 

(see rule 2.1036) and determining their numerical division to ascertain whether there was 

a reasonable probability the jury could reach a verdict. We find no error.

The trial court was not required by section 1140 or rule 2.1036 to first question the 

jury or determine its numerical division when determining whether there was a 

reasonable probability of agreement among jurors who reported an impasse. 

Section 1140 and rule 2.1036 gave the trial court discretion in determining what, if any, 

tools to use and how to use them when making this determination.
16.

Despite rule 2.1036(a)’s suggestion that the court “should ask the jury if it has 

specific concerns which, if resolved, might assist the jury in reaching a verdict,” the court 

in Moore, supra, 96 Cal.App.4th 1105 found the trial court did not err in ascertaining 

whether there was a reasonable probability of the jury reaching a verdict without first 

questioning the jurors. (Id. at pp. 1108, 1118–1120.) In Moore, the jurors reported to the 

trial court that they were deadlocked one day after deliberations began, and the trial court 

instructed them to deliberate further, without first asking if they had any specific 

concerns. (Id. at p. 1118.) Following the supplemental instruction, the jury reached a 

verdict two hours after resuming deliberations. (Id. at p. 1120.)

Defendant attempts to distinguish Moore by arguing that the trial in Moore was 

long and complex, while the trial here was brief. However, despite the differences in 

charges and lengths of the trials, the same reasoning holds true here as in Moore. The 

jury here also returned a verdict quickly (65 minutes) after resuming deliberations once 

the trial judge gave the supplemental instruction. In Moore, presumably because of the 

relatively brief duration of deliberations before the jurors announced they could not reach 

a verdict, the trial court concluded further deliberations might be beneficial without first 

questioning the jury regarding the impasse. (Id. at pp. 1118–1120.) The reasoning of the 

trial court here was presumably the same as that of the trial court in Moore: that juries 

deadlocked after only brief deliberations are likely to reach a consensus with further 

deliberations. Clearly, the Moore court interpreted rule 2.1036(a)’s phrase (“should ask 

the jury if it has specific concerns which, if resolved, might assist the jury in reaching a 

verdict”) as meaning it is advisable to question the jury before instructing, but not 

required. As defendant admits, the fact the jury in Moore was able to reach a verdict 

relatively quickly after being further instructed reflected that the court properly exercised 

its discretion in giving supplemental instructions without first questioning the jurors. The 

same is true here. Accordingly, the court did not err in giving CALCRIM No. 3551 

without first questioning the jury.
17.

Nor was the trial court required to poll the jury to determine its numerical division 

before giving further instruction. As the court in Debose explained, “[a]lthough we have 

expressly approved of inquiring into a jury’s numerical division in the event of a 

deadlock (see, e.g., People v. Breaux (1991) 1 Cal.4th 281, 319), we have never held this 

to be mandatory.” (Debose, supra, 59 Cal.4th at p. 210.)

Because the trial court did not err in further instructing the jury without first 

questioning the jurors as to whether further instruction might assist them or determining 

their numerical division to ascertain whether there was a reasonable probability the jury 

could reach a verdict, an objection on this issue would have been meritless and defense 

counsel was not ineffective for failing to object.

2. CALCRIM No. 3551

Next, defendant contends instructing the jury with CALCRIM No. 3551 violated 

his right to due process because it was a coercive and improper Allen charge. Again, we

find no error.

First, defendant argues that the portion of CALCRIM No. 3551 stating 

“sometimes juries that have had difficulty reaching a verdict are able to resume 

deliberations and successfully reach a verdict” implies to the jurors that it is preferable to 

reach a verdict and that the they have failed if they do not. He argues that this portion of 

the instruction told the jurors to consider the position of the judge, their own status as 

minority jurors, and the position of the majority jurors in determining defendant’s guilt, 

rather than their individual judgment, and sent the same message as the language 

disapproved of in the Gainer instruction, which explicitly told the jury they “should 

consider that the case must sometime be decided.” (Gainer, supra, 19 Cal.3d at pp. 851–

852.) However, unlike Gainer, CALCRIM No. 3551 does not discuss “majority,” 

“minority,” or “holdout,” nor does it mention the trial court’s position on reaching a 

verdict. The portion quoted by defendant does not suggest that jurors should change their 

position based on anything other than the evidence, or that they should consider any 
18.

extraneous information or positions in reaching a determination. It only suggests that 

sometimes, with further deliberation, a deadlocked jury might reach a verdict.

Defendant concedes that the language of the instruction here is similar to the 

language in Moore, which read in pertinent part:

“Your goal as jurors should be to reach a fair and impartial verdict if you 

are able to do so based solely on the evidence presented .... [¶] ... [¶] 

[E]ach of you must decide the case for yourself, and you should do so only 

after a full and complete consideration of all of the evidence with your 

fellow jurors. It is your duty as jurors to deliberate with the goal of arriving 

at a verdict on the charge if you can do so without violence to your 

individual judgment.” (Moore, supra, 96 Cal.App.4th at pp. 1118–1119.)

The Moore court rejected the argument that this instruction was a coercive and 

improper Allen charge, and instead commended the trial court “for fashioning such an 

excellent instruction.” (Moore, supra, 96 Cal.App.4th at p. 1122.) The court found that 

nothing in the trial court’s instruction was designed to coerce the jury into returning a 

verdict. (Id. at p. 1121.)

Defendant also attempts to distinguish CALCRIM No. 3551 from CALJIC 

No. 17.40, approved of in Valdez, supra, 55 Cal.4th 82, which specifically told jurors not 

to compromise or give in to the majority and addressed both the majority and minority 

equally. (Id. at p. 162.) However, CALCRIM No. 3551 is substantively similar to the 

instruction approved of in Valdez. The language used here also explicitly told the jurors 

they should not compromise their individual judgment for the sake of agreeing with the 

majority or simply reaching a verdict, and the trial court here never directly addressed the 

majority or minority at all. Accordingly, the CALCRIM No. 3551 portion at issue here, 

stating that “sometimes juries that have had difficulty reaching a verdict are able to 

resume deliberations and successfully reach a verdict,” did not imply to the jury that it is 

preferable to reach a verdict and that the jury has failed if it does not.

Second, defendant contends the language in CALCRIM No. 3551, stating to the 

jurors that it was their duty “to deliberate with the goal of reaching a verdict if you can do 
19.

so without surrendering your individual judgment,” sent the same message as the 

language disapproved of in Gainer, which said the jury “ ‘should consider that the case 

must at some time be decided.’ ” (Gainer, supra, 19 Cal.3d at p. 845.) However, the 

trial court here did not say or imply that the case must be decided. To the contrary, the 

court here explicitly instructed the jury, “Do not change your position just because it 

differs from that of other jurors or just because you or others want to reach a verdict.” 

(Italics added.) Unlike Gainer, this language does not tell the jury they must reach a 

verdict. Nor does this language suggest that a failure to reach a unanimous decision 

would require a retrial. In People v. Virgil (2011) 51 Cal.4th 1210, the Supreme Court 

found that it was not coercive to instruct a jury that it “must make every effort to reach 

[a] unanimous [verdict] if at all possible” in response to a jury question about what would 

happen if it was unable to reach a unanimous verdict. (Id. at pp. 1281–1282.) Also, in 

People v. Butler (2009) 46 Cal.4th 847, the court found that the trial court properly 

instructed a deadlocked jury “to pursue ‘the purpose of reaching a verdict, if you can do 

so,’ and that it was ‘their duty to decide the case, if you can conscientiously do so.’ ” (Id. 

at p. 884.) Accordingly, the language at issue here, telling the jury it was their duty “to 

deliberate with the goal of reaching a verdict if you can do so without surrendering your 

individual judgment,” was not coercive and did not violate defendant’s due process.

Third, defendant argues the instruction violated his due process right to have his 

guilt or innocence determined by the unanimous verdict of a jury of 12 persons because it 

encouraged minority jurors to agree with the majority. Defendant contends CALCRIM 

No. 3551 “places the sanction of the court behind the views of the majority, whatever 

they may be, and tempts the minority juror to relinquish his position simply because he 

has been the subject of a particular instruction.” Defendant claims the language put the 

minority jurors under inevitable pressure to agree with the majority.

As discussed above, the trial court never used any language referring to the 

minority, majority, or holdouts. Unlike the disapproved-of language in Gainer, the 
20.

language in CALCRIM No. 3551 did not put pressure on the minority jurors to agree 

with the majority. (See Gainer, supra, 19 Cal.3d at p. 852.) Instead, CALCRIM 

No. 3551 explicitly told jurors not to “change your position just because it differs from 

that of other jurors or just because you or others want to reach a verdict. Both the People 

and the defendant are entitled to the individual judgment of each juror,” and instructed 

the jurors that it was their duty to deliberate with the goal of reaching a verdict on the 

charge “if you can do so without surrendering your individual judgment.” As a result, 

CALCRIM No. 3551 did not violate defendant’s due process right to have his guilt or 

innocence determined by the unanimous verdict of a 12-person jury. Again, any 

objection by defense counsel would have been meritless, and thus counsel was not 

ineffective for failing to object.

3. Conclusion

Because the trial court did not err, any objections to these issues would have been 

meritless. Defense counsel had no duty to make meritless motions, and defendant was 

not prejudiced by counsel’s failure to make them. Thus, defendant was not denied his 

Sixth Amendment rights to competent counsel and due process.

III. Romero Motion

Defendant contends the trial court abused its discretion in considering only 

defendant’s recidivist status in denying his Romero motion to dismiss a prior strike. The 

People argue the trial court did not abuse its discretion in denying defendant’s Romero 

motion and was not required to state its reasons for doing so. We agree with the People.

A. Background

Defendant filed a motion to dismiss his prior strike conviction for assault with a 

deadly weapon other than a firearm or by any means of force likely to produce great 

bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)), for which he was sentenced to 

prison for six years. He argued in both his written motion and at the hearing that the trial 

court should dismiss the strike because the conviction was 18 years old, his current 
21.

offense was not violent, he cooperated with police and did not resist arrest, and he was 

homeless.

Defendant’s motion set out the details of the current offense, arguing that the 

evidence presented at trial demonstrated that defendant may have had mental health 

issues that clouded his judgment when he committed the burglary, and that he stole items 

from the store that could be considered necessities for a homeless individual. According 

to the motion, “[t]hese items include[d] soap, deodorant, medicine, bandan[n]as, a couple 

of beverages and change, [defendant] later indicated was for food,” and defendant was 

wearing the bandannas as socks. The motion further argued that defendant’s current 

offense showed no prior planning or sophistication, and defendant did not flee the scene. 

Since the prior conviction, defendant had not incurred further serious or violent 

convictions, and the offenses for which he had been convicted were decreasing in 

severity.

Defense counsel argued at the hearing that based on defendant’s criminal history, 

the remoteness of his 18-year-old prior conviction, and the nonviolent nature of the 

current offense, the trial court should strike the prior conviction. She noted that, in the 

current offense, the items defendant took were inexpensive, and when he was found, he 

remained in the area and was not combative towards the owner’s son or the police. Some 

of defendant’s prior violations of probation occurred because his homelessness made it 

difficult for him to maintain contact with probation. Counsel also pointed out that 

defendant’s criminal history showed he pled to several offenses on the same day. She 

argued that defendant would still be subject to a lengthy prison sentence even if the court 

chose to strike the prior conviction.

The prosecutor opposed the motion, arguing that defendant had an ongoing, 

consistent criminal history and lacked the ability to stop committing crimes. The 

prosecutor also pointed out that the multiple criminal offenses defendant pled to on the 

same day were actually many different crimes involving separate cases.
22.

The probation officer’s report included a detailed criminal history showing that 

defendant had suffered the prior strike conviction in 2000 for assault with a deadly 

weapon with an enhancement for great bodily injury, and following that conviction, he 

committed four felonies and four misdemeanors, and accumulated four parole violations, 

three violations of postrelease community supervision, and three flash incarcerations. 

The report also set forth information about the institution of section 1368 proceedings on 

two occasions, stating that defendant was found competent to stand trial. The report 

noted that defendant reported using heroin while in state prison and had never 

participated in any drug or alcohol treatment. The report listed factors in aggravation, 

including that defendant had engaged in violent conduct indicating a serious danger to 

society, suffered numerous prior convictions, served a prior prison term, was on 

probation or parole when the crime was committed, and performed unsatisfactorily on 

probation or parole. The report listed no factors in mitigation in determining the 

appropriate sentence.

The trial court stated it had reviewed and considered both defendant’s motion and 

the probation officer’s report. The court denied defendant’s motion as follows:

“The matter having then been submitted, as I stated, the Court has 

read and considered the Defense request to strike the prior pursuant to the 

case of People v. Romero. The Court after consideration of the 

constitutional rights of the defendant and the interests of society, let me 

make it clear the Court is aware of its discretion under ... section 1385. 

After consideration of [] defendant’s written statement and request for 

relief, defendant’s request for relief is denied. Even though [] defendant’s 

strike was suffered over 18 years ago, [] defendant has failed to remain 

crime free. He has a lengthy criminal history which includes several prior 

prison commitments and has suffered multiple [postrelease community 

supervision] violations. And for all those reasons, the Court will deny []

defendant’s request.” (Italics added.)

B. Law

Section 1385 grants trial courts limited discretion to strike prior convictions in 

Three Strikes cases. (§ 1385.) Trial courts may strike prior felony conviction allegations 
23.

in cases brought under the Three Strikes law in furtherance of justice. (Romero, supra, 

13 Cal.4th at pp. 529–530.) The lower court must determine whether “in light of the 

nature and circumstances of [the defendant’s] present felonies and prior serious and/or 

violent felony convictions, and the particulars of his background, character, and 

prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in 

whole or in part, and hence should be treated as though he had not previously been 

convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 

17 Cal.4th 148, 161.)

While a defendant’s recidivist status is relevant, it is not singularly dispositive. 

(People v. Garcia (1999) 20 Cal.4th 490, 501.) The court must look at the totality of the 

circumstances to determine whether the defendant falls outside the spirit of the Three 

Strikes law. (Id. at pp. 498–499.) The relevant factors, as identified in Romero, include 

the defendant’s background, the nature of his present offense, and other individualized 

considerations. (See Romero, supra, 13 Cal.4th at p. 531.) The sentence imposed by the 

trial court is itself a factor when deciding the defendant’s prospects for committing future 

crimes because the defendant will have fewer opportunities to commit crimes while 

incarcerated. (People v. Gaston (1999) 74 Cal.App.4th 310, 315.)

It is the defendant’s burden to provide the trial court with evidence to support his 

Romero motion. (People v. Lee (2008) 161 Cal.App.4th 124, 129.)

A trial court need not state any reasons when it denies a Romero motion. (In re 

Large (2007) 41 Cal.4th 538, 550; see § 1385, subd. (a); Romero, supra, 13 Cal.4th at

p. 531; People v. Orin (1975) 13 Cal.3d 937, 945.) On review, the trial court’s denial of 

the motion is strongly presumed to be a proper exercise of discretion. (In re Large, at

p. 551.) “The court is presumed to have considered all of the relevant factors in the 

absence of an affirmative record to the contrary.” (People v. Myers (1999) 

69 Cal.App.4th 305, 310.)
24.

C. Analysis

Here, defendant contends the trial court abused its discretion because it considered 

only his recidivist status when it denied his Romero motion. He notes the trial court 

discussed his prior criminal history but failed to discuss the purported mitigating factors 

presented in his motion as required by section 1385.

We conclude the trial court properly denied defendant’s Romero motion to strike 

his prior conviction. The court was not required to state any reasons when denying 

defendant’s motion, and “is presumed to have considered all of the relevant factors in the 

absence of an affirmative record to the contrary.” (People v. Myers, supra, 

69 Cal.App.4th at p. 310.) Even though the court here focused its statement denying 

defendant’s motion on defendant’s criminal history, this does not mean the court did not 

also consider the other relevant factors outlined in defense counsel’s argument in support 

of the motion. The trial court stated that it was aware of its discretion under 

section 1385, and that it had reviewed and considered the probation officer’s report, as 

well as defendant’s written motion. Defendant’s motion discussed his mental health 

issues and his need for basic hygiene and health care at the time he committed the crimes 

at issue. These were all mitigating factors under section 1385. The probation report 

detailed the nature of defendant’s criminal history, including his numerous convictions, 

parole and probation violations, and flash incarcerations for failing to report to the 

probation officer, as well as his history of alcohol and drug abuse. Defendant’s extensive 

criminal history included 10 convictions and repeated violations of probation and parole 

over a 20-year period. The report also discussed mitigating factors, including issues 

concerning his competence to stand trial, the decreasing violence of his offenses, and his 

employment as a landscaper working 30 to 40 hours per week and making $25 to $30 per 

hour.

As the trial court stated that it read and considered both the motion and the 

probation report, the court is presumed to have considered all of these relevant factors 
25.

and was not required to recite them in its denial of defendant’s motion. Defendant has 

not affirmatively shown that the court failed to consider the mitigating factors discussed 

above and that the motion would have been granted had the court taken them into 

account. The trial court did not abuse its discretion in denying defendant’s Romero

motion.

IV. Senate Bill No. 136

By way of supplemental briefing, defendant contends Senate Bill No. 136 applies 

retroactively to him and requires that his three prior prison term enhancements be 

stricken. The People concede and we agree.

Senate Bill No. 136 (2019−2020 Reg. Sess.) amended section 667.5, 

subdivision (b) to limit prior prison term enhancements to only prior terms that were 

served for a sexually violent offense as defined by Welfare and Institutions Code 

section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, 

§ 1, eff. Jan. 1, 2020.) Defendant’s three prior prison terms were served for assault with a 

deadly weapon (§ 245, subd. (a)(1)); driving in willful disregard (Veh. Code, § 28002, 

subd. (a)); and obstructing an officer (§ 69), driving away a vehicle (Veh. Code, § 10851, 

subd. (a)), possession of ammunition (§ 30305, subd. (a)(1)), and evading an officer

(Veh. Code, § 2800.2, subd. (a)). None of his prior prison terms was served for a 

sexually violent offense, and thus they must all be stricken.

DISPOSITION

Defendant’s three 1-year prior prison term enhancements (§ 667.5, subd. (b)) are 

stricken. The trial court is directed to prepare an amended abstract of judgment and 

forward copies to the appropriate entities. In all other respects, the judgment is affirmed.

HILL, P. J.
26.

WE CONCUR:

FRANSON, J.

SMITH, J.