THE PEOPLE, Plaintiff and Respondent, v. TYE JOHN ENGELMAN, Defendant and Appellant, 28 Cal. 4th 436

Opinion GEORGE, C. J. In this case we consider whether trial courts should advise juries in the terms of CALJIC No. 17.41.1, a recently drafted pattern jury instruction given in criminal cases.

This instruction informs jurors at the outset of jury deliberations that “should . . . any juror refuse[] to deliberate or expressQ 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.” (CALJIC No. 17.41.1 (1998 new) (6th ed. 1996).) We agree with the Court of Appeal that the instruction does not infringe upon defendant’s federal or state constitutional right to trial by jury or his state constitutional right to a unanimous verdict, and uphold the Court of Appeal’s decision affirming the judgment of conviction.

As we shall explain, however, caution leads us to conclude that in the future the instruction should not be given in criminal trials in California. Although jurors have no right to refuse to deliberate or to disregard the law in reaching then- decision, we believe the instruction has the potential to intrude unnecessarily on the deliberative process and affect it adversely—both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors.

Directing the jury immediately before deliberations begin that jurors are expected to police the reasoning and arguments of their fellow jurors during deliberations, and immediately advise the court if it appears that a fellow juror is deciding the case upon an “improper basis,” may curtail or distort deliberations. Any juror is free, of course, to bring to the court’s attention any perceived misconduct that occurs in the cotuse of jury deliberations.

In our view, however, it is not conducive to the proper functioning of the deliberative process for the trial court to declare—before deliberations begin and before any problem develops—that jurors should oversee the reasoning and decisionmaking process of their fellow jurors and report perceived improprieties in that process to the court. I Defendant Tye John Engelman was charged by information with robbery (Pen.

Code, §211) and assault with a deadly weapon by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) The information further alleged that in the commission of each offense, defendant personally used a deadly weapon. (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1).) The crimes occurred on August 20, 1998, in Vista, California. The evidence presented at trial demonstrated that the victim, a homeless person, had bedded down for the night near a bridge when defendant approached him and hit him on the head with a bottle, asking whether the man had cigarettes or money.

Defendant appropriated the victim’s tobacco. The jury returned guilty verdicts on each count and found to be true the allegations that defendant personally used a deadly weapon in the commission of each of the offenses. At the sentencing hearing, the court reduced the assault charge to a misdemeanor. The court suspended imposition of sentence on both counts for a period of three years and granted probation on the condition that defendant serve 180 days in the county jail on the robbery count and 90 days in the county jail on the assault count, to be served consecutively and with 57 days of custody credit.

Penalty assessments and restitution fines in the amount of $200 also were imposed. Defendant appealed. His sole claim was that the trial court erred in instructing the jury, over defendant’s objection, pursuant to CALJIC No. 17.41.1. In the present case, the jury did not contact the court for any assistance or otherwise indicate that any problem had developed with respect to deliberations. The Court of Appeal affirmed.

It reasoned that the jury has a duty to follow the court’s instructions, despite the circumstance that historically jurors on occasion have disregarded the court’s instructions and the evidence, returning a not guilty verdict in the course of improperly engaging in what has been called jury nullification. The Court of Appeal determined that the jury has the power, but not the right, to engage in nullification.

Therefore, it concluded, an instruction is justified that “oblig[es] jurors to report both refusals to deliberate and expressions of an ‘intention to disregard the law or to decide the case ... on [an] improper basis.’ ” The Court of Appeal rejected defendant’s claim that the giving of such an instruction violated his constitutional rights to trial by jury, to the independent and impartial judgment of each juror, and to a unanimous verdict. We granted defendant’s petition for review and initially deferred decision pending our resolution of two cases presenting questions involving jury nullification, People v.

Cleveland (2001) 25 Cal.4th 466 [106 Cal.Rptr.2d 313, 21 P.3d 1225] and People v. Williams (2001) 25 Cal.4th 441 [106 Cal.Rptr.2d 295, 21 P.3d 1209]. The Court of Appeal was correct in determining that the jury has the duty to follow the court’s instructions and that the jury lacks the right to engage in nullification. We also agree with the Court of Appeal that defendant’s constitutional claims are without merit. Nonetheless, we conclude 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. II The challenged instruction, which is among the concluding instructions that are given before the jury retires to deliberate, states in full: “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.” (CALJIC No. 17.41.1.) As defendant hardly can dispute, the jury must follow the court’s instructions, “receiv[ing] as law what is laid down as such by the court.” (§ 1126.) A juror who actually refuses to deliberate is subject to discharge by the court (People v.

Cleveland, supra, 25 Cal.4th at p. 484), as is a juror who proposes to reach a verdict without respect to the law or the evidence. (People v. Williams, supra, 25 Cal.4th at p. 463.) And in cases not involving the death penalty, it is settled that punishment should not enter into the jury’s deliberations. (See People v.

Nichols (1997) 54 Cal.App.4th 21, 24 [62 Cal.Rptr.2d 433], and cases cited; CALJIC No. 0.50.) Finally, the court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity—always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court. (See § 1120; see also § 1089; People v.

Cleveland, supra, 25 Cal.4th at p. 476.) Defendant contends, however, that the giving of CALJIC No. 17.41.1 impaired the free and private exchange of views that is an essential feature of the right to a jury trial guaranteed by the federal and California Constitutions. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) He also contends that the instruction encroached on his state constitutional right to a unanimous jury verdict, including the right to the independent and impartial decision of each juror. (See Cal. Const., art. I, § 16; see also People v.

Gainer (1977) 19 Cal.3d 835, 848-849 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73].) He contends that the latter intrusion also constituted a violation of his federal constitutional right to due process of law in that it arbitrarily deprived him of a state entitlement. Finally, he contends that the error caused by the giving of CALJIC No. 17.41.1 constituted a structural defect in the trial and thus is reversible per se.

We acknowledge, as defendant claims, that an important element of trial by jury is the conduct of deliberations in secret, free from “ ‘ “intrusive inquiry into the sanctity of jurors’ thought processes.” [Citation.]”’ (People v. Cleveland, supra, 25 Cal.4th at p. 475.) Secrecy affords jurors the freedom to engage in frank discussions, free from fear of exposure to the parties, to other participants in the trial, and to the public. (Id. at pp. 475-476, 481-482; see also U.S. v.

Thomas (2d Cir. 1997) 116 F.3d 606, 618-619.) The mental processes of deliberating jurors are protected, because “[j]urors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations. The danger is increased if the attorneys for the parties are permitted to question individual jurors in the midst of deliberations.” (People v.

Cleveland, supra, 25 Cal.4th at p. 476.) As we recently observed, quoting an opinion by a federal court of appeals: “ ‘As a general rule, no one—including the judge presiding at a trial—has a “right to know” how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror. The secrecy of deliberations is the cornerstone of the modem Anglo-American jury system. . . .

Especially troublesome is the danger that such disclosure [upon inquiry by the court] presents to the operation of the deliberative process itself. . . . “Juror privacy is a prerequisite of free debate, without which the decisionmaking process would be crippled. . . . [Participants must feel completely free to dissect the credibility, motivations, and just deserts of other people.

Sensitive jurors will not engage in such a dialogue without some assurance that it will never reach a larger audience.” . . . [T]he mere suggestion that the views of jurors may be conveyed to the parties and the public . . . understandably may cause anxiety and fear in jurors, and distort the process by which a verdict is reached . . . (People v. Cleveland, supra, 25 Cal.4th at pp. 481-482, quoting U.S. v.

Thomas, supra, 116 F.3d 606, 618-619.) On the other hand, although the secrecy of deliberations is an important element of our jury system, defendant has not provided any authority, nor have we found any, suggesting 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.

Defendant relies upon our recent decision in People v. Cleveland, supra, 25 Cal.4th 466, but in that case, although we recognized the importance of secrecy in deliberations, we also recognized that such secrecy may give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct. (People v. Cleveland, supra, 25 Cal.4th at p. 476.) Claims of misconduct may merit judicial inquiry even though they may implicate the content of deliberations.

For example, as we have explained above, 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. (People v. Williams, supra, 25 Cal.4th at pp. 463-464.) Refusal to deliberate also may subject a juror to discharge (People v.

Cleveland, supra, 25 Cal.4th at pp. 474-475), 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 reality’ that the juror is unable or unwilling to deliberate.” (Id. at p. 484.) Accordingly, we are not persuaded that, merely because CALJIC No. 17.41.1 might induce a juror who believes there has been juror misconduct to reveal the content of deliberations unnecessarily (or threaten to do so), the giving of the instruction constitutes a violation of the constitutional right to trial by jury or otherwise constitutes error under state law.

With respect to defendant’s separate claim based upon the state constitutional right to a unanimous jury verdict and to the independent and impartial decision of each juror, we also conclude that the giving of the instruction did not constitute constitutional error.

The 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. (CALJIC No. 17.40 [“The People and the defendant are entitled to the individual opinion of each juror. [U] Each of you must decide the case for yourself. . . .”]; CALJIC No. 17.50 [instructing that in order to reach a verdict, “all twelve jurors must agree to the decision”].) The defendant’s state constitutional right to a unanimous verdict is not violated when that right has been explained to the jury and an instruction gives rise to a risk that jurors might be encouraged to exert pressure on each other by threatening to bring in the court to mediate disputes among jurors.

Defendant attempts to draw an analogy between CALJIC No. 17.41.1 and the so-called dynamite charge that we disapproved in People v. Gainer, supra, 19 Cal.3d 835, as overly coercive of minority jurors. The analogy is not persuasive. In Gainer a deadlocked jury was informed, among other things, that jurors who were in the minority should consider whether their doubts were reasonable when equally honest and intelligent jurors had reached a different conclusion.

We concluded that this instruction erroneously directed minority jurors to consider an extraneous factor, namely “the position of the majority of jurors at the moment” (id. at p. 848), a factor that we determined was “both rationally and legally irrelevant to the issue of guilt.” (Ibid.) Moreover, we said, the direction to reconsider in light of the majority view constituted an invitation to minority jurors to acquiesce in the majority view without reaching an independent judgment. (Id. at p. 849.) CALJIC No. 17.41.1 does not share the flaws we identified in Gainer.

The instruction 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.

CALJIC No. 17.41.1 simply does not carry the devastating coercive charge that we concluded should make us “uncertain of the accuracy and integrity of the jury’s stated conclusion” and uncertain whether the instruction may have “ ‘operate[d] to displace the independent judgment of the jury in favor of considerations of compromise and expediency.’” (People v. Gainer, supra, 19 Cal.3d at p. 850.) Nonetheless, although we are not persuaded by defendant’s constitutional claims, we conclude that criticism of the instruction is warranted.

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 the risk of intrusion upon the secrecy of deliberations or of an adverse impact upon the course of deliberations by giving such an instruction. Courts must exercise care in responding to an allegation from a deliberating jury that one of their number is refusing to follow the court’s instructions or is refusing to deliberate (People v. Cleveland, supra, 25 Cal.4th at p. 475; People v.

Williams, supra, 25 Cal.4th at pp. 464-465 (cone, opn. of Kennard, J.)), even though a juror’s refusal to follow the court’s instructions (including the usual instructions regarding the duty to deliberate (CALJIC No. 17.40) and not consider penalty (CALJIC No. 17.42)) constitutes misconduct that could be a proper basis upon which to discharge the juror. As Justice Kennard stated in her concurring opinion in People v.

Williams, supra, 25 Cal.4th 441, 464, even though refusal to follow the court’s instructions on the law constitutes misconduct, a court’s inquiry regarding a juror’s motivations could “compromis[e] the secrecy of the jury’s deliberations.” That opinion properly warned of the risk inherent in “permit[ting] trial judges ‘to conduct intrusive inquiries into ... the reasoning behind a juror’s view of the case, or the particulars of a juror’s (likely imperfect) understanding or

interpretation of the law as stated by the judge’ . . . .” (Ibid.) We also note that claims of other types of misconduct involving the content of discussions among deliberating jurors are subject to the same cautious treatment. (See, e.g., People v. Keenan (1988) 46 Cal.3d 478, 533 [250 Cal.Rptr. 550, 758 P.2d 1081].) This approach recognizes the importance of maintaining the secrecy of jury deliberations and thereby protecting the freedom of jurors to express differing views.

It is difficult enough for a trial court to determine whether a juror actually is refusing to deliberate or instead simply disagrees with the majority view. (See People v. Cleveland, supra, 25 Cal.4th at pp. 475-476; see also People v.

Bowers (2001) 87 Cal.App.4th 722, 728 [104 Cal.Rptr.2d 726] [trial court erred in excusing a juror for alleged refusal to deliberate].) Drawing this distinction may be even more difficult for jurors who, confident of their own good faith and understanding of the evidence and the court’s instructions on the law, mistakenly may believe that those individuals who steadfastly disagree with them are refusing to deliberate or are intentionally disregarding the law. Jurors, of course, do not always know what constitutes misconduct.

They may be tempted to relinquish the secrecy of deliberations unnecessarily, simply because of fierce disagreement among the jurors. As we have observed, jurors, without committing misconduct, may disagree during deliberations and may express themselves vigorously and even harshly: “[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.” (People v.

Johnson (1992) 3 Cal.4th 1183, 1255 [14 Cal.Rptr.2d 702, 842 P.2d 1].) During deliberations, expressions of “frustration, temper, and strong conviction” may be anticipated but, in the interest of free expression in the jury room, such expressions normally should not draw the court into intrusive inquiries. (People v. Keenan, supra, 46 Cal.3d at p. 541; see also People v.

Johnson, supra, 3 Cal.4th at p. 1255.) The law provides, of course, that the court may not discharge a juror for failing to agree with the majority of other jurors or for persisting in expressing doubts about the sufficiency of the evidence in support of the majority view (see People v. Cleveland, supra, 25 Cal.4th at pp. 481-484), but laypersons may not understand this. It is not always easy for a juror to articulate the exact basis for disagreement after a complicated trial, nor is it necessary that a juror do so.

As we have stated, it is not required that jurors deliberate well or skillfully. (Id. at p. 485 [“The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge”].) Indeed, when inquiring into asserted misconduct of a member of a deliberating jury, the court should take care that any inquiry “minimize pressure on legitimate minority jurors” (People v.

Keenan, supra, 46 Cal.3d at p. 533), and the court should not conduct an inquiry that could “risk[] pressuring the dissenting juror to conform her vote to that of the majority.” (People v. Johnson, supra, 3 Cal.4th at p. 1255.) A juror could, however, without ever actually communicating with the court, place undue pressure on another juror by threatening to accuse that juror in open court of reasoning improperly or of not following the court’s instructions in his or her decisionmaking process.

We believe that CALJIC No. 17.41.1 has the potential needlessly to induce jurors to expose the content of then- deliberations. The instruction suggests that jurors embarking upon deliberations have an obligation to police each other’s reasoning and decisionmaking process during their discussions and to report perceived improprieties to the court in order to bring about judicial intervention—despite the difficulty a juror may have in accurately identifying misconduct and the danger that an allegation of misconduct will draw the court into exposing confidential deliberations.

Furthermore, the instruction is vague—the improprieties giving rise to an obligation to report to the court include not only the refusal to deliberate but also the intention to “decide the case based on . . . any other improper basis.” (Italics added.) This language permits members of the jury to provide their own

interpretation of what is improper. As noted, members of a deliberating jury may not understand that CALJIC No. 17.41.1 is not intended to be employed to single out a juror who persists in holding a minority view of the evidence. The instruction could cause jurors to become hypervigilant during deliberations about perceived refusals to deliberate or other ill-defined “improprieties” in deliberations. The threat that the contents of the jury’s deliberations might be reported to the judge could chill the free exchange of ideas that lies at the center of the deliberative process.

Additionally, jurors entering into deliberations should be tolerant of and patient with the differences of opinion that may arise, and should remain open to persuasion.

Jurors are instructed that they must decide the case for themselves, but only after discussion with other jurors, and that they should not hesitate to abandon their original conclusions if these prove to be wrong. (CALJIC No. 17.40.) They are instructed not to begin deliberations by expressing too emphatic a view, because such an approach might prevent them from remaining open to persuasion. (CALJIC No. 17.41.) A juror endowed with confidence in his or her own views, however, might rely on CALJIC No. 17.41.1 as a license to scrutinize other jurors for some ill-defined misconduct rather than to remain receptive to the views of others.

Jurors should not be led to believe that disagreement during deliberations constitutes misconduct, nor should self-confident jurors be furnished with a means to short-circuit discussions by threatening to call upon the court to arbitrate normal disagreements. We believe that CALJIC No. 17.41.1 not only has the potential to lead members of a jury to shed the secrecy of deliberations, but also to draw the court unnecessarily into delicate and potentially coercive exploration of the subject matter of deliberations.

Jurors should not needlessly be encouraged to be on the alert for refusal to deliberate or for other undefined failings on the part of their fellow jurors in the deliberative process. Jury deliberation is a sensitive mechanism that most often simply must—and will—accommodate itself to the resolution of strong differences of opinion. In sum, despite the legitimate and significant interest in avoiding juror misconduct, it is unnecessary and inadvisable for a court to take the risks posed by this instruction.

We recognize, of course, that the jury should be instructed regarding its duties, particularly its duty to avoid misconduct.

As early as 1872, it was required by statute that at each adjournment the jury be “admonished by the court that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.” (Former § 1122, enacted 1872.) In 1994 the Legislature added language to this provision requiring a court “[ajfter the jury has been sworn and before the people’s opening address” to instruct the jury regarding its “basic functions, duties, and conduct,” including “admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury.” (§ 1122, subd. (a), as amended by Stats. 1994, ch. 869, §4, p. 4404; see also §§ 1127, 1127a-1127f [specific instructional requirements regarding, for example, the testimony of in-custody informant and instructions on flight].) There is no indication in the language of

section 1122, however, that an instruction such as CALJIC No. 17.41.1 is required. Instructions other than

section CALJIC No. 17.41.1 are adequate to guard the jury against misconduct without focusing unduly upon the deliberative process. For example, in accord with the directive of

section 1122, CALJIC No. 0.50 is given at the outset of trial. Among other things, it advises jurors that they “must accept and follow the law as [the court] state [s] it to you, whether or not you agree with the law.” (Ibid.) It also directs jurors that they “must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence.

This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information.” (Ibid.) The instruction directs jurors not to discuss the case with outsiders and not to discuss the case with other jurors prior to submission of the case to them for deliberations. (Ibid.) It also states: “You must not read or listen to any accounts or discussions of the case reported by the newspapers or other news media, including radio and television.” (Ibid) Finally, it states: “You must promptly report to the Court any incident within your knowledge involving an attempt by any person to improperly influence any member of this jury.” (Ibid.) Other standard instructions inform the jury more than once of its solemn duties during trial and deliberations, including the duty to follow the law as given in the court’s instructions.

For example, not only CALJIC No. 0.50 but also CALJIC No. 1.00, which is given at the conclusion of the evidentiary portion of the trial, states: “You must accept and follow the law as I state it to you, regardless of whether you agree with the law.” The duties to deliberate with an open mind and not to decide the case on the basis of penalty or punishment also are covered in standard instructions. (See CALJIC No. 0.50 [pretrial admonition regarding jury’s “basic functions, duties and conduct”]; CALJIC No. 1.00 [respective duties of judge and jury]; CALJIC No. 1.03 [independent investigation and premature decisionmaking prohibited]; CALJIC No. 17.40 [duty to form an independent judgment “only after discussing the evidence and instructions with the other jurors”]; CALJIC No. 17.41 [instruction to approach deliberations with an open mind and to remain impartial and dispassionate]; CALJIC No. 17.42 [jury not to consider penalty]; CALJIC No. 17.43 [questions or requests to be addressed to the court].) Nothing in our experience suggests that these instructions have proved inadequate over the years to discourage juror misconduct during deliberations.

As we have explained, the Court of Appeal rejected defendant’s claim that the giving of CALJIC No. 17.41.1 constituted error, and we agree. Nonetheless, for the reasons discussed above, we believe that CALJIC No. 17.41.1 creates a risk to the proper functioning of jury deliberations and that it is unnecessary and inadvisable to incur this risk. Accordingly, in the exercise of our supervisory power (see, e.g., In re Podesto (1976) 15 Cal.3d 921, 938 [127 Cal.Rptr. 97, 544 P.2d 1297]; People v.

Vickers (1972) 8 Cal.3d 451, 461 [105 Cal.Rptr. 305, 503 P.2d 1313]), we direct that CALJIC No. 17.41.1 not be given in trials conducted in the future. Ill The judgment of the Court of Appeal is affirmed. Kennard, J., Werdegar, J., and Moreno, J., concurred. All further statutory references are to the Penal Code, unless otherwise indicated.