NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MILLER, J.

A jury convicted defendant and appellant Albert Jonathan Naranjo of second degree robbery (Pen. Code § 211)1 as an aider and abettor. The court denied defendant probation and sentenced him to the midterm of three years imprisonment. On appeal, defendant raises five contentions: (1) the court erred in neglecting to make specific sua sponte modifications to the standard CALCRIM No. 335 jury instruction requested by defendant; (2) insufficient evidence supports the jury's inherent finding that defendant knew the perpetrator's intent in committing the robbery; (3) the court committed reversible error in responding to a jury question in a manner which ostensibly lowered the prosecution's burden of proof; (4) the court's discussion with the jury after it had announced it was unable to reach a unanimous verdict improperly pressured it to convict; and (5) the court abused its discretion in imposing the midterm sentence rather than granting defendant probation or imposing the low term. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Bernardo Calderon testified that on March 24, 2008, at approximately 7:00 a.m., he met Jose Navarro in a parking lot in Calderon's car.2 They left the parking lot on their way to the Jack in the Box restaurant on Summit Avenue in Fontana (the Summit store). Calderon's intent was to rob the Summit store. Calderon was wearing gray sweatpants, a black T-shirt, a black jacket, and wore a beanie on his head in which he had cut two holes the night before so that he could see through it when he pulled it down over his face. Calderon walked into the restroom of the Summit store, covered his face with the beanie, pulled a gun out of his jacket, and left the restroom. He told everyone in the restaurant to get down; he walked behind the cash registers and into the manager's office. Defendant, the assistant manager, opened the door to the office for him.3 Calderon then took the morning deposit money, which defendant was counting. Calderon told defendant to get him a bag for the money; defendant did so. Calderon never pointed the gun at defendant.4

Ramirez testified that she went into the manager's office to make a phone call. The door was unlocked. She closed the door behind her. Defendant was counting the cash from the previous day in order to make the daily deposit. Ramirez testified that there were two safes in the manager's office: a corporate safe to which only the manager and assistant manager have access and another one to which the team leaders have access in order to make change for the registers. The daily deposit cash is kept in the corporate safe. Only the manager and assistant manager are allowed to count the deposit money. The deposit must be made on a daily basis. The individual performing the deposit determines what time of day to count the money. Leticia Leon, the manager of the Jack in the Box restaurant on Sierra Avenue in Fontana (the Sierra store), testified corporate policy required that another individual be present when the manager or assistant manager is counting the deposit cash, and that the door to the office be kept closed. No one else was allowed in the manager's office when the deposit money was being counted.

Ramirez heard some sort of commotion in the restaurant, which she believed involved high school students fighting. Defendant did not react to the tumult. Ramirez opened the manager's door to discern what was causing the disorder; a person in a mask immediately pointed a gun at her face. He yelled at her to get out of the office. She ran to a local convenience store and told individuals therein to call the police. At trial, the People played a video surveillance recording of the entire robbery. Calderon was caught almost immediately after leaving the restaurant.5 Calderon admitted to the arresting officer that he had robbed the Summit store; he said he orchestrated it without help from anyone.

Officer David Goodland of the Fontana Police Department interviewed defendant on the day of the robbery. Defendant told Officer Goodland he did not get a good look at Calderon. Officer Goodland took defendant to an in-field show up with Calderon. Officer Goodland asked defendant if Calderon looked familiar; defendant said that he did not know him. Officer Goodland asked defendant whether he could identify Calderon; defendant responded that he did not recognize Calderon's face, but that Calderon's clothing and height matched the robber's.

Detective Cliff Ohler was assigned to conduct a follow-up investigation of the robbery. He likewise interviewed defendant that day. He asked defendant if defendant was involved in the robbery; defendant responded that he was not. Detective Ohler asked defendant if he knew Calderon; defendant replied that he knew Calderon "vaguely." Detective Ohler asked if he could look through defendant's cell phone; defendant agreed and Detective Ohler found Calderon's phone number programmed into defendant's cell phone contacts.6 Leon later disclosed to Detective Ohler that defendant and Calderon had worked together and that she had been informed they were friends.

Leon testified that she knew Calderon because she had previously worked with him at the Jack in the Box restaurant on Cherry Avenue in Fontana (the Cherry store) and currently worked with him at the Sierra store. She had also worked regularly with defendant at the Cherry store approximately two years earlier; defendant had been her assistant store manager. Calderon worked at the Cherry store at the same time. Defendant had also worked with her one or two days at the Sierra store. Defendant had been promoted to store manager at one point in time, but was later demoted for poor performance.

Leon testified she had heard from others that defendant and Calderon were friends. She had also heard defendant had loaned money to Calderon so that Calderon could move out of his parents' house. Defendant had called her store asking for Calderon in the past.

Calderon testified that he knew defendant from working with him a couple of years earlier at another Jack in the Box. They hung out socially five or six times over a five-year span of time. He also spoke with defendant over the phone.

Calderon testified that he broached the subject of potentially robbing the Summit store two weeks prior to the actual robbery: "When I first approached him with the idea, I was currently at the time working at a Jack-in-the-Box so I knew some of the stuff, procedures, that they had going on as far as deposits and money. I didn't know anything about that particular store he was working at, so I needed to verify certain things and make sure. And I asked him when the largest amounts would be there and which days would be the best, the day that he would be working." "I needed to know [from defendant] exactly when it was he counted, when he counted the money, between the hour range between 6 and 7, 7 to 8. I needed to know exactly what time he would be in the office counting the money."

He first called defendant on defendant's cell phone; he "[t]old him I had an idea. I owed him some money, so I told him that it would be a good way to get his money back at the same time. I told him I didn't want to talk about it over the phone, better in-person, and I ended up driving to his house." Calderon met with defendant at defendant's house approximately two weeks prior to the robbery. Defendant told him the best days to commit the robbery would be Friday, Saturday, or Sunday.

Nevertheless, Calderon picked Monday because "[i]t was after a holiday, and the way I thought about it was most people stay home, go to restaurants, eat take out, probably had the best customers and most amount of customers during the weekend, so I figured there would be more money."7 "I had talked to [defendant] about doing it on a Monday because he worked on Mondays and I knew that." Defendant told him he would be counting the money sometime between 7:00 and 8:00 a.m., though most likely prior to 7:30 a.m. Calderon testified that defendant knew he would be coming on the Monday after the holiday. Defendant agreed to assist the robbery in order to get back the money Calderon owed him. Calderon discussed the details of the robbery twice with defendant prior to the actual robbery.

Although Calderon's mother worked at the Summit store, he never saw his mother count the money; she was not working on the morning he committed the robbery, and he was not familiar with the procedures regarding who was authorized to count the money and make the deposits at the Summit store. When Calderon committed the robbery, defendant "made it easy for me to get the money."

Navarro testified that on the morning of March 24, 2008, Calderon drove them to a park, told him "he was going to get money really quick[ly]," that he was going to "jack somebody," and that it would be fast because someone was "`going to give me the money.'" Navarro previously told a detective that Calderon had conveyed the impression that the store manager was going to give him the money. Navarro testified that Calderon had previously talked about committing a robbery, but Navarro believed that he was joking.8

Defendant's investigator testified that he interviewed Calderon in jail on August 4, 2009. Calderon informed him that defendant picked the date of the robbery because defendant had knowledge of which day of the week the most money would be on hand. Nonetheless, Calderon informed the investigator that defendant was supposed to give him 24 hours notice of when to commit the robbery.

DISCUSSION

A. CALCRIM NO. 335

Defendant contends the court should have unilaterally modified the standard accomplice testimony instruction (CALCRIM No. 335), because the word "accomplice" had the impermissible effect of insinuating that defendant was, indeed, an "accomplice" of the robbery. Therefore, it unconstitutionally lowered the prosecution's burden of proof. We hold that the doctrine of invited error bars defendant's complaints about the instruction because he expressly requested that the trial court give the unmodified instruction. Moreover, to the extent the doctrine of invited error is inapplicable, defendant forfeited the issue on appeal by failing to raise it below. Finally, to the degree we can even reach the merits of the issue, we hold that defendant suffered no prejudice from the instruction as given.

Prior to trial defendant requested that the jury be instructed with CALCRIM No. 335. The People acceded to the request. The trial court agreed and gave the unmodified version of CALCRIM No. 335 as a pretrial instruction as follows: "If the crime of robbery was committed, then Bernardo Calderon and Jose Navarro were accomplices to that crime. [¶] . . . [¶] You may not convict the defendant of robbery based upon the statement or testimony of an accomplice alone. You may use the testimony of an accomplice to convict a defendant only if: [¶] 1. The accomplice's testimony is supported by other evidence that you believe; [¶] 2. The supporting evidence is independent of the accomplice's testimony; AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime. [¶] Supporting evidence, however, may be slight. It does not need to be enough by itself to prove the defendant is guilty of the charged crime, and it does not need to support every fact about which the defendant testified. On the other hand, it's not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant with the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice. Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution in light of all of the other evidence."9 The trial court repeated the instruction at the close of evidence.

There is a sua sponte duty to instruct on the principles governing the law of accomplices, including the need for corroboration, if the evidence at trial suggests that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.) "Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) A trial court must give CALCRIM No. 335 only if the court concludes that the witness is an accomplice as a matter of law, or the parties agree about the witness's status as an accomplice. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161 [only give instruction "`if undisputed evidence established the complicity'"].) If there is a dispute about whether the witness is an accomplice, the court should give CALCRIM No. 334 (accomplice testimony must be corroborated: dispute whether witness is accomplice). (Verlinde, at p. 1161.) Here, there is no question that Calderon and Navarro were accomplices to the robbery because they had already pled guilty. Thus, the court was required to instruct the jury with CALCRIM No. 335.

Nevertheless, defendant complains that the instruction insinuated that he, along with Calderon and Navarro, was an "accomplice" to the robbery; thus, presumptively suggesting to the jury that he was guilty and concomitantly, lowering the People's burden of proof. First, as we noted above, defendant is barred from raising the issue by the doctrine of invited error because he unilaterally requested that the court give the unmodified instruction. (People v. Russell (2010) 50 Cal.4th 1228, 1250 ["[T]he doctrine of invited error applies when a defendant, for tactical reasons, makes a request acceded to by the trial court and claims on appeal that the court erred in granting the request."].) Second, defendant forfeited the issue by failing to request the court make the specific modifications he now contends were crucial. (People v. Richardson (2008) 43 Cal.4th 959, 1022-1023 [defendant's failure to seek modification of standard jury instruction below forfeited any contention it should have been modified]; see also People v. Dykes (2009) 46 Cal.4th 731, 798-799 [court's response to jury question, including recitation of standard jury instruction agreed to by defendant forfeited issue on appeal].) Thus, defendant has forfeited the issue on appeal.

Nevertheless, defendant asserts that he may appropriately raise the issue because the unmodified instruction affected his substantial rights by lowering the prosecution's burden of proof. (People v. Flood (1998) 18 Cal.4th 470, 483, fn. 7 ["`The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.'"].) We disagree that defendant's substantial rights were affected because the instruction given was correct in law. Nonetheless, we shall address defendant's concerns.

Defendant cites People v. Hill (1967) 66 Cal.2d 536 (Hill) for the proposition that the accomplice instruction as given here impermissibly suggested defendant's compliance with the testifying accomplices, thus virtually insinuating his own guilt. Where a defendant is charged with identical crimes and the evidence places him in the company of accomplices in the commission of those crimes, the defendant is an accomplice as a matter of law and the court must so instruct the jury. (Id. at p. 555.) "However, where a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant's foregone guilt to the other defendants." (Ibid.) Thus, it is not error in such circumstances to forgo the accomplice instructions if giving them would unfairly prejudice the defendant in the jury's eyes. (Ibid.) Likewise, defendant notes the language in People v. Richardson (1960) 182 Cal.App.2d 620 (Richardson), in which the court stated that "[u]nder the peculiar circumstances of this case, and since [a testifying witness] is a codefendant, the usual form of such instruction [on accomplice testimony] might well be claimed to assume the guilt of one or both defendants." (Id. at p. 623.) Thus, defendant asserts the instruction as given here assumed his guilt.

First, we find Hill and Richardson distinguishable. In both cases, the appealing defendant was tried together with his "accomplices"; thus, there was more of an incentive for the codefendants to play the universal game of "pointing fingers" at the "other guy." Here, on the other hand, both of defendant's "accomplices" had already pled guilty; they testified they had no promises of leniency for their testimony; thus, they had no motive to implicate defendant other than to "do the right thing." In other words, there was less danger in the instant case of equating the "confessing" witnesses' testimonies as an imputation of defendant's guilt because the testifying witnesses were not being tried together with the defendant. Indeed, one would be hard-pressed to characterize Navarro's testimony as a "confession" at all. Likewise, because Calderon and Navarro were not being tried with defendant, the references to "accomplice" in the instruction as given could and would be reasonably construed as referring to Calderon and Navarro, not defendant; thus, negating defendant's chief complaint.10 Second, although Hill determined that it would not be error "to forego the giving of accomplice instructions where the giving of them would unfairly prejudice a codefendant in the eyes of the jury," it did not hold that the giving of such an instruction in its standard form would constitute reversible error. (Hill, supra, 66 Cal.2d at p. 555, italics added.) Rather, it merely permitted the option of not giving the instruction at all. Therefore, Hill is not supportive of defendant's contention, because he specifically requested the instruction and did not request any modifications.

Third, we note that the instruction informed the jury that Calderon and Navarro's participation in the crime was hypothetical for its deliberative purposes: "If the crime of robbery was committed, then Bernardo Calderon and Jose Navarro were accomplices to that crime."11 (Italics added.) Thus, the jury was effectively told not to assume that the robbery had actually occurred, which essentially lessened any assertion that defendant was an "accomplice" to a crime that may or may not have happened. Fourth and finally, like in Hill and Richardson, we hold defendant suffered no prejudice.

"`"[I]t is the rare case in which [a claimed instructional error] will justify reversal of a criminal conviction when no objection has been made in the trial court."' [Citation.]" (People v. Franco (1994) 24 Cal.App.4th 1528, 1538 quoting People v. Graham (1978) 83 Cal.App.3d 736, 742, fn. 3.) "[N]o prejudice could have resulted as the jury found [defendant] guilty of the identical crimes as [Calderon] and [Navarro]. Thus, it clearly found him to be an accomplice [citation], and we may presume that it followed the proper instructions to find corroboration [citation]." (Hill, supra, 66 Cal.2d at p. 556.)

Here, the instructions, when considered as a whole, clearly informed the jury that the prosecution bore the burden of proving defendant guilty of the crime beyond a reasonable doubt. Indeed, the court instructed the jury with numerous requisite standard instructions on the People's burden of proof and on the proper manner of evaluating the evidence. (CALCRIM Nos. 103-105, 220, 224-226, 251, 335, 359, 400-401, 1600, 1603.) Moreover, those instructions also patently conveyed that, simply because Navarro and Calderon were potential accomplices to the crime of robbery and had incriminated defendant, did not mean there was sufficient grounds to support defendant's conviction for robbery. (See, e.g., People v. Bloyd (1987) 43 Cal.3d 333, 351; People v. Barker (2001) 91 Cal.App.4th 1166, 1177.) The instruction of the jury with the unmodified version of CALCRIM No. 335 benefitted defendant by informing the jury it could not convict him on Calderon and Navarro's testimonies alone. It is simply not plausible that the jury would attach itself to the word "accomplice" in one of the numerous instructions, ignore all the remaining instructions, and conclude therefrom that they had been informed by the court that defendant's guilt had been predetermined. Finally, as we will discuss below, there was substantial corroborating evidence to support defendant's conviction. (Hill, supra, 66 Cal.2d at p. 556; People v. Avila (2006) 38 Cal.4th 491, 562-563.)

B. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the People adduced insufficient supporting evidence, separate and apart from the testimonies of Calderon and Navarro, to prove the requisite element of aider and abettor law that defendant have had knowledge of the perpetrator's, i.e. Calderon's, criminal intent. We disagree.

Our review of any claim of insufficiency of the evidence is limited. "`"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."'" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Further, before we may set aside a judgment for insufficiency of evidence, it must clearly appear that there is no hypothesis under which we could find sufficient evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "`Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (Young, at p. 1181.) This standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft, supra, 23 Cal.4th at p. 1053.) Supporting evidence sufficient to support a conviction that is based in part on the testimony or statements of accomplices need only be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the witnesses testified. (CALCRIM No. 335; Hill, supra, 66 Cal.2d at p. 556; Richardson, supra, 182 Cal.App.2d at p. 623) An aider and abettor need only "`by act or advice aid[], promote[], encourage[] or instigate[], the commission of the crime.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259.)

Here, the People adduced sufficient supporting evidence that defendant knew of Calderon's intent to rob the Summit store. First, the People played for the jury and introduced into evidence a video surveillance recording of the entire robbery. Ramirez testified that the door to the manager's office was not locked despite the fact that defendant was counting the money for the daily deposit. Ramirez testified that no other individual was in the manager's office while defendant was counting the money, despite Leon's testimony that corporate policy required the presence of another individual. Although Ramirez reacted to the commotion in the store, defendant did not. Although Calderon testified that he did not point the gun at defendant, defendant told Officer Goodland that he did; the video presumably resolved this discrepancy.12 Calderon commenced the robbery sometime between 7:00 and 7:30 a.m. on the Monday following the Easter holiday when defendant was working and counting the money. Ramirez testified that the individual counting the money determines himself when he will do so. Thus, the evidence supported the contention that Calderon committed the robbery at precisely the time defendant had decided to count the money. Defendant's failure to have another person present while he was counting the money, failure to lock the door, allowance of Ramirez's entrance into the room, failure to react to the commotion, and opening of the door for Calderon all support the jury's determination that he knew Calderon's intent to rob the store.13

Defendant handed Calderon a bag in which to stash the money.14 Defendant and Calderon were friends who had worked together at some point in time. Defendant had called the Cherry store asking for Calderon. Defendant had loaned money to Calderon. Thus, defendant had a motive for cooperating with Calderon. Defendant initially informed officers he did not recognize Calderon when asked to identify the robber. Defendant informed the officer that he did not get a good look at the robber although the video apparently showed him looking repeatedly at the robber. Defendant later admitted that he knew Calderon "vaguely." Defendant had Calderon's phone number programmed in his cell phone. Thus, defendant's attempt to deny and then minimize his familiarity with Calderon reflects a consciousness of guilt. Finally, defendant had previously been demoted; thus, providing yet another motive for the robbery. This was more than sufficient supporting evidence of Calderon's testimony to support the jury's inherent determination that defendant knew Calderon intended to rob the store. Thus, substantial evidence supports defendant's conviction.

C. THE COURT'S RESPONSE TO JURY QUESTION NO. 3

Defendant contends the court's response to one of the jury's questions lessened the people's burden of proving defendant knew of Calderon's intent to rob the store; thus, lowering the requisite standard to support defendant's conviction. We disagree.

The jury sent an initial request to the court asking for a "Legal definition of intent as it relates to #2 of jury instruction 401." The court responded, with counsels' acquiescence, "The definition of intent for instruction 401 is contained within the body of that instruction following the listing of the elements." The next note from the jury read, "We don't feel we are able to come to a unanimous decision." After a lengthy discussion with the jury regarding its posture with respect to deliberations (see below), the court instructed the jury to return to the deliberation room and send it any requests the jury believed would help resolve any outstanding issues. The jury sent the court the following questions: "Need Clarification re: the following: [¶] `The defendant knew that the perpetrator intended to commit the crime.' We have one juror that agrees that aiding and abetting occurred; however, we need a definition of what legally defines the `knowledge' of intention as to whether or not you can aid and abet without knowledge including intent. [¶] Does saying verbally `I am thinking about (the crime details)' constitute actual intent?" The court proposed to reply, "As to Question 1: [¶] As it relates to these instructions the word `know' or `knowledge' is the fact or condition of being aware of something. [¶] As to Question 2: As to this question it is up to you to decide whether someone had actual intent within the meaning of these instructions."

Defendant objected to the court's proposed response: "It's just that I think that CALCRIM 401 is sufficient. If they cannot make up their mind, then they can't make up their mind. [¶]. . . [¶] . . . I would rather have the jurors be told [to] use their everyday, general knowledge or common sense to come up with their definition of what `knowledge' is, since I think there's already a definition in CALCRIM." "I think that the jury should just be told to just—that's what the instructions are, and use your everyday experiences based on what `knowledge' is." The court explicated: "I'm satisfied that what I'm telling them is an exceptionally common and everyday understanding of the term as defined in the dictionary and common, everyday usage." The court instructed the jury as it had previously tentatively indicated.

Defendant maintains that the court's instruction that "knowledge," in the circumstances of this case, meant only to be aware of "something," permitted the jury to convict defendant on even the most attenuated knowledge of Calderon's plans. Thus, he contends that the jury convicted him of the charged offense on a lesser degree of knowledge than that required by aiding and abetting law. He points to the quickness with which the jury rendered the conviction after receiving the instruction despite having just earlier indicated that it was deadlocked. Defendant stresses Calderon's testimony indicating the robbery was an unplanned, random, impromptu act: "This is something that was kind of in a middle kind of both spur of the moment thing and this is something that I had thought of before, and it wasn't completely mapped out. I wouldn't say that, but it was put together." "I mean I had the idea—I just didn't know if I was capable of doing such a thing. I'm not a career criminal. I don't do this for a living. The way I said it, I just didn't know what I was doing. I just went in and did it, didn't think about it." "I . . . didn't really commit to it until I walked out of the restroom. It didn't matter if I had the gun in my hands." Calderon told defendant he may or may not commit the robbery, he was merely thinking about it, he did not mention a particular day, and he did not commit to the robbery until the day he actually did it.15

"An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) "[T]he trial `court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]' [Citation.] However, `[a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the term's meaning. [Citation.]' [Citation.]" (People v. Solis (2001) 90 Cal.App.4th 1002, 1015; see also People v. Montero (2007) 155 Cal.App.4th 1170, 1179.)

Here, the court committed no abuse of discretion in defining a commonly used, non-legal term after the jury expressed exasperated confusion over its application in the present case. The court responded to the jury's initial request by appropriately referring it back to the instructions as given. When that proved insufficient the court instructed the jury with a dictionary definition of a commonly used term. Appropriately, the court did not redefine the intent element, the term of truly legal significance on this element. Rather, it essentially, again, referred the jury back to the instructions as given. The only rational interpretation of the instructions given, in whole, on this particular element of aiding and abetting, was that the jury must find that defendant had some awareness of Calderon's intent to rob the Summit store.16 Thus, the instruction was legally correct and clearly within the court's discretion.

D. THE COURT'S DISCUSSION WITH THE JURY REGARDING ITS INABILITY TO REACH A UNANIMOUS VERDICT

Defendant contends that the court's verbal interactions with the jurors after receiving a note from the jury indicating that it could not reach a unanimous verdict improperly pressured the jury into convicting defendant. We disagree.

The jury sent a second note to the court on September 1, 2009, that read, "We don't feel we are able to come to a unanimous decision." The court then called in the jury and questioned the foreperson in the following colloquy:

The court then queried the entire jury panel regarding its ability to reach a verdict: "Okay. Let me just go through the jurors one by one and ask them, starting with Juror no. 1. [¶] Your foreperson has indicated that in his judgment, the jury is hopelessly deadlocked and further deliberations wouldn't necessarily bring about a verdict in this case. Would that be your opinion as well?" Jurors 1 through 7 answered that further deliberations would not necessarily bring about a verdict. However, when juror No. 8 concurred, the trial court noted that her response "[s]ounds . . . very hesitant." Juror No. 8 responded, "It is a hesitant `yes.'" The court then engaged in the following colloquy with juror No. 8 and the foreperson:

The court then queried jurors Nos. 9 through 12 who all indicated more discussion would not be fruitful in reaching a verdict. The court then concluded the results of its poll: "So at least one person thinks that maybe something else would help. But based on the negative answers that I heard from the other 11, it does seem to me that you are hopelessly deadlocked. [¶] And even though you, Juror No. 8, would like some additional information—to do what with, I'm not going to ask you but obviously to further discuss things—no one seems to be in agreement. [¶] Well, just if I asked you generally is there anyone that is in agreement with Juror No. 8 and what she said, that getting—I got another hand—I got three hands."

The court continued: "Because three of you raised your hands, I need to see—if Juror No. 8's opinion is being joined by a couple other people, then I think you need to write out for me—for us what it is that you want, whatever it is that you think you would like to have—probative, defined, or something. And we will try to answer that—answer that question." Juror No. 8 replied, "I think that if there's—there would be further legal clarification on an issue that we've been discussing for four hours where there's people that are not seeing it as perhaps other people are seeing it and they understood what the actual legality of it meant, that it may clarify some matters. I don't know if that was specific enough for you without going into specifics." The court requested that the jurors return to the deliberation room and write out any specific questions they had. The jurors did so and responded with the question(s) discussed above. The record reflects that the court's response was given to the jury at 3:30 p.m. The jury announced it had a verdict at 3:37 p.m. The verdict of guilt was taken at 3:42 p.m.

"Section 1140 provides, `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.' The determination whether there is a reasonable probability of agreement rests within the sound discretion of the trial court. [Citation.] `Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], 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.'"' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 363-364.)

First, although all of the jurors initially indicated that they were hopelessly deadlocked, three indicated that further discussion, particularly after more instruction on the matter, might be helpful. Juror No. 8 specifically appeared to strongly believe that such a clarifying instruction might prove beneficial to the jury's resolution of the matter. This, in itself, warranted the court's action in merely returning the jury to the jury room simply to formulate an additional question, an answer to which may or may not have helped it complete its duties. This did not constitute inappropriate pressure to reach a verdict. Second, although the court never inquired into the statistical breakdown of the individual jurors' positions on the issue of defendant's guilt, the subsequent jury question implied that the jury was hung 11 to 1. Thus, given that the jury was deadlocked at 11 to 1, the court could have properly determined there was a reasonable probability it was close to reaching an agreement. If so, that determination was prescient.

The trial court did not make any statements that, by any stretch of the judicial imagination, could be construed as telling the jurors they had to reach a verdict. Nor did the trial court make any other potentially coercive statements: "[T]he jury was never directed that it was required to reach a verdict, nor were any constraints placed on any individual juror's responsibility to weigh and consider all the evidence presented at trial. The trial court also made no remarks either urging a verdict be reached or indicating possible reprisals for failure to reach an agreement. In short, it is clear the trial court took great care in exercising its power `without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency. . . . Nothing in the trial court's comment in the present case properly may be construed as an attempt to pressure the jury to reach a verdict . . . .' [Citation.]" (People v. Moore (2002) 96 Cal.App.4th 1105, 1121.) "[T]he direction to continue deliberations could only have been perceived as giving jurors an opportunity to enhance their understanding of the case, rather than as pressure to reach a verdict. [Citation.]" (People v. Pride (1992) 3 Cal.4th 195, 266.) The court acted well within its discretion in merely instructing the jury to return to the jury room and attempt to formulate a question that, if answered appropriately might, and actually did, aid them, in reaching a verdict.

E. SENTENCING

Defendant contends the court abused its sentencing discretion in refusing to grant him probation or impose the low term of imprisonment. Specifically, defendant maintains the court's characterization of defendant as the mastermind of the offense, its determination that defendant's actions put people's lives in danger, that defendant failed to provide his version of events, and the court's mention of a witness who did not testify at all, demonstrate that it had an understanding of the case that was simply not warranted by the evidence or law and, therefore, its imposition of sentence was an abuse of discretion. First, we note that defendant failed to object on any of these grounds below; thus, his contention has been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353; accord People v. De Soto (1997) 54 Cal.App.4th 1, 7-8 [complaints about sentencing court's purported mis-weighing of sentencing factors or recitations of factors not applicable in the particular case are forfeited if not raised below].) Second, we disagree with both defendant's view of the court's rationale and defendant's conclusion of error.

Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "`In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Here, in determining to impose the midterm sentence, the court noted that defendant had shown no remorse; that he had set in motion events that placed people at grave risk; that he had abused his position of trust as assistant manager; and that although he had every opportunity to back out of the scheme, he had chosen not to. The record amply supports the court's enumeration of these aggravating factors. Defendant had a prior conviction, albeit one for misdemeanor driving under the influence. Moreover, the court noted it felt "that there are very few mitigating facts but the aggravating facts certainly outweigh whatever mitigating facts there should be and I don't feel probation is appropriate." Defendant's contention that the court characterized him as the "mastermind" of the crime is belied by the record. Although the court noted that defendant had set the scheme in motion, this does not equate with being the instigator. Rather, it acknowledges, as Calderon testified, that without defendant's insider knowledge the crime would probably not have taken place. The court's mention of a non-testifying witness is trivial in the scheme of its thorough exposition of the reasons for its sentence.17 Likewise, in stating that the court had yet to hear from defendant, it was not impugning defendant's exercise of his constitutional right not to testify, but his refusal, even after conviction, to admit complicity and express remorse. Finally, by agreeing to the scheme, defendant did indeed put lives in jeopardy, as Calderon committed the robbery with a loaded weapon; while the two apparently had no intention of injuring anyone, there is simply no forecasting what may occur in the fog of robbery. Thus, the court's statement of reasons for imposing the midterm was well within its discretion.

DISPOSITION

The judgment is affirmed.

We concur.

KING, Acting P. J.

CODRINGTON, J.