Whaley

BAMATTRE-MANOUKIAN, Acting P.J.

Defendant George L. Whaley appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years under the Sexually Violent Predators Act (SVPA). (Welf. & Inst.Code, § 6600 et seq.) [1]

Whaley contends that the trial court erred in giving a supplemental jury instruction to the deadlocked jury that exerted undue pressure on the holdout juror, in violation of the rule established in People v. Gainer (1977) 19 Cal.3d 835, 850 , 139 Cal.Rptr. 861 , 566 P.2d 997 ( Gainer ) that the minority jurors cannot be pressured to acquiesce in the verdict. For reasons that we will explain, we disagree. However, because the commitment period at issue has expired, we will dismiss the appeal as moot after deciding the issue for the guidance of future SVPA proceedings.

In 1982, Whaley pleaded guilty to one count of rape and one count of forcible oral copulation. The rape occurred in July 1981, when Whaley, age 18, invited the 16-year-old victim into an apartment where he forced her to orally copulate him and submit to sexual intercourse. In December 1981, while Whaley was in custody for the rape, he committed forcible…

*971 Opinion

I. INTRODUCTION

Defendant George L. Whaley appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)

Whaley contends that the trial court erred in giving a supplemental jury instruction to the deadlocked jury that exerted undue pressure on the holdout juror, in violation of the rule established in People v. Gainer (1977) 19 Cal.3d 835, 850 [ 139 Cal.Rptr. 861 , 566 P.2d 997 ] (Gainer) that the minority jurors cannot be pressured to acquiesce in the verdict. For reasons that we will explain, we disagree. However, because the commitment period at issue has expired, we will dismiss the appeal as moot after deciding the issue for the guidance of future SVPA proceedings.

H. FACTUAL AND PROCEDURAL BACKGROUND

A. Sexual Offenses

In 1982, Whaley pleaded guilty to one count of rape and one count of forcible oral copulation. The rape occurred in July 1981, when Whaley, age 18, invited the 16-year-old victim into an apartment where he forced her to orally copulate him and submit to sexual intercourse. In December 1981, while…

I agree with the disposition of this case, with much of the analysis and certainly with my colleagues’ cautionary comments regarding departure from existing predeliberation instructions.

I write separately to dispel any impression that such agreement means that I approve of or encourage the use of the entirety of the supplemental deadlocked jury instruction given in this case and found to be commendable in People v. Moore (2002) 96 Cal.App.4th 1105, 1122 [ 117 Cal.Rptr.2d 715 ]. In particular, I am troubled by the statement to the jurors that they should consider using “reverse role playing” as a method of deliberation, especially in a case such as this one where the trial court was aware at the time of the instruction that the numerical breakdown of the deadlocked jury was 11 to one. Furthermore, I have concerns about language found in the early and later portions of the instruction that creates the impression that the court has the expectation that the jurors should come to a verdict, the statement shortly thereafter that they have a “goal as jurors” to reach a verdict if they are able to do so “regardless of how long it takes,” and the concluding charge that the panel is…