Molina

Defendant Luis Alonso Molina appeals from the judgment and sentence imposed following his conviction for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a prohibited blood-alcohol level of 0.08 percent or more (§ 23152, subd. (b)). Defendant contends the trial court erred in (1) refusing to instruct the jury on the defense of necessity, and (2) instructing the jury with CALJIC No. 17.41.1 (juror misconduct), which assertedly impinged upon defendant’s Sixth and Fourteenth Amendment rights to have a unanimous jury and a jury free to use its power of nullification.

In the unpublished portion of the opinion, we shall conclude the trial court did not err in refusing the necessity instruction. In the published portion of the opinion, we shall conclude that, assuming for the sake of argument that CALJIC No. 17.41.1 is defective, reversal is not required if the giving of the instruction was harmless beyond a reasonable doubt, as it was in the case before us. Accordingly, we shall affirm the judgment.

Factual and Procedural Background

Discussion

I. Necessity Defense*

II. CALJIC No. 17.41.

The trial court instructed the jury with…