return home. The possibility the evidence also could be interpreted to conclude Hernandez left the scene to avoid confrontation with Stepanyan is an insufficient basis upon which to omit the instruction.
In any event, Hernandez cannot show prejudice because the instruction does not assume flight has been proven, but leaves that determination and its significance for the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 61.)
4. CALJIC No. 17.41.1.
Over defense objection, the trial court instructed the jury on the possibility of juror misconduct in the form of refusal to deliberate in the words of CALJIC No. 17.41.1. Fuentes and Hernandez claim this instruction improperly chills deliberations, allows the trial court to assist the majority to impose their will on minority jurors, denies the accused the right to juror unanimity, infringes on the power of the jury to nullify and violates the jurors’ right of free speech and association. They claim the error defies analysis for prejudice and amounts to a structural defect which requires reversal per se.
These claims were rejected in People v. Engelman (2002) 28 Cal.4th 436, 444, which held CALJIC No. 17.41.1 does not infringe upon a defendant’s federal or state constitutional right to a trial by jury or to the state constitutional right to a unanimous verdict. However, in the exercise of its supervisory powers, the Supreme Court directed CALJIC No. 17.41.1 not be given in future trials to avoid the risk the instruction might be misunderstood or used by one juror to “browbeat” other jurors or cause the trial court unnecessarily to intrude upon the secrecy of deliberations. (People v. Engelman, supra, at p. 445.) Nothing in the record of this case indicates any of these risks materialized.