P. v. Dawes

Filed 2/25/10 P. v. Dawes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant claims the trial court erred when it instructed the jury with CALCRIM Nos. 521 and 3450. We affirm.

I

FACTS

A jury found defendant William Orren Dawes guilty of murder in the first degree and found it to be true he personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). (All further statutory references are to the Penal Code.) The jury also found defendant to be legally sane at the time he committed the murder. The court sentenced him to 26 years to life in prison.

Lauren Dawes is the mother of Sonia Dawes who was born on March 9, 1994, and the sister of defendant. On September 20, 2005, between 5:00 p.m. and 6:00 p.m., Lauren Dawes went to her mothers home. Sonia was in the living room doing her homework. Defendant was in the bedroom reading the Bible aloud. She was asked to describe defendants demeanor, and said: I heard his voice, a different voice than his normal voice before I walked into the room, so when I opened the door, he turned around, and I said, Hey, what are you doing? or something. And he was just reading the Bible. And then, um so he seemed okay, . . .

Defendant asked her if she was going to buy methamphetamine, and Lauren Dawes said she was not. After dinner, she met friends by the pool of the apartment complex and defendant came to the pool area. According to Lauren Dawes, defendant was acting kind of different. She said he was talking to himself in a deep voice. The group moved to someones apartment. Lauren Dawes said, in general [defendant] was acting very strange, very weird.

Lauren Dawes and a friend walked to a Mobil gas station to make some purchases, but defendant did not go along. At 12:18 a.m. on September 21, defendant called her on her cell phone. He sounded loud and angry. She asked defendant whether Sonia and their mother were asleep, and he said, yeah. Defendant questioned his sister

about where she was, and she laughed and said, check the sign-in sheet. Defendant hung up on her. A few minutes later, Lauren Dawes walked back toward her mothers apartment and saw some sheriffs cars in front of her mothers gate.

Darlene Dawes is the mother of defendant and Lauren Dawes and the grandmother of Sonia. Sometime in the early morning of September 21, she looked into Sonias bedroom and noticed she was diagonally and was wondering why she was laying that way, so I I was gonna go straighten her up and cover her up. Then Darlene Dawes saw that Sonia was bleeding.

Sonia died from multiple stab wounds. When the police found defendant, he had a knife in a sheaf in his belt. Defendant said: I heard a voice in heaven, told me to kill her and I just did what I was told.

II

DISCUSSION

CALCRIM No. 521

Defendant contends the trial court erred and reduced the burden on the prosecution in instructing the jury with CALCRIM No. 521 which conflates the definitions of malice aforethought, intent to kill, willful action, premeditation, and deliberation. He informs us his trial counsel did not object to the instruction, but claims the trial court had a sua sponte duty to instruct the jury fully and accurately, so the issue is preserved for appeal.

The court gave CALCRIM No. 521 as follows: If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to

kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [] All other murders are of the second degree. [] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than second degree murder. If the People have not met this burden, you must find the defendant not guilty of first degree murder.

The court also instructed with CALCRIM No. 520 as follows: The defendant is charged with murder in violation of Penal Code section 187. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant committed an act that caused the death of another person; [] AND [] 2. When the defendant acted, he had a state of mind called malice aforethought. [] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [] The defendant acted with express malice if he unlawfully intended to kill. [] The defendant acted with implied malice if: [] 1. He intentionally committed an act; [] 2. The natural and probable consequences of the act were dangerous to human life; [] 3. At the time he acted, he knew his act was dangerous to human life; [] AND [] 4. He deliberately acted with conscious disregard for human life. [] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

Defendant places great weight on the fact the jury asked the following question: We need clarification of difference in meaning of 1st & 2nd degree pg. 27 (CALCRIM No. 521 was on page 27 of the instructions given to the jury). The court responded: The difference between first degree and second degree murder is that for first degree murder, the defendant must have acted willfully, deliberately and with premeditation. If the defendant did not act willfully and with premeditation and deliberation then the murder is of the second degree. [] CALCRIM [No.] 521 defines what is required to find that the defendant acted willfully, deliberately and with premeditation. [] Willfully means the defendant intended to kill. [] Premeditation means the defendant decided to kill before committing the act that caused death. [] Deliberation means the defendant carefully weighed the consequences for and against his choice and knowing the consequences did he decide to kill. [] Please refer to that instruction for the complete definitions.

The legal adequacy of an instruction is reviewed independently. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1210.) [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citation.] (People v. Harrison (2005) 35 Cal.4th 208, 252.)

Defendant argues: The plain language employed in CALCRIM [Nos.] 520 and 521 renders indistinguishable (1) express malice and willful action; (2) malice aforethought and premeditation; and (3) implied malice and deliberation. He also claims that express malice under CALCRIM No. 520 and premeditation under CALCRIM No. 521 are identical, and that there is no distinction between the definitions of implied malice and deliberation in the two jury instructions.

First degree murder may be found when the prosecution proves beyond a reasonable doubt that the actor killed with malice aforethought, intent to kill,

premeditation, and deliberation. [Citation.] (People v. Memro (1995) 11 Cal.4th 786, 862.) In the crime of first degree murder, the necessary mental state is express malice and premeditation and deliberation. (People v. Moon (2005) 37 Cal.4th 1, 29.) Although malice may include concepts that are not included in willfulness, willfulness does not include any concept that is not contained in express malice. An intent to kill is the functional equivalent of express malice. [Citation.] (Ibid.)

Defendant has not demonstrated any error in the courts instructions. CALCRIM No. 521 clearly and adequately describes the elements of a willful, premeditated and deliberate first degree murder.

CALCRIM No. 3450

Defendant next contends CALCRIM [No.] 3450 does not accurately state the limitation on the insanity defense set forth in Penal Code section 25.5. His argument is that the instruction requires a defendant to prove more than one mental illness/defect and the statute only requires that drug/alcohol abuse not be the sole cause of the mental illness/defect.

CALCRIM No. 3450 as given by the court states: You have found the defendant guilty of First Degree Murder. Now you must decide whether he was legally insane when he committed the crime. [] The defendant must prove that it is more likely than not that he was legally insane when committed the crime. [] The defendant was legally insane if: [] 1. When he committed the crimes, he had a mental disease or defect; [] AND [] 2. Because of that disease or defect, he did not know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong. [] None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or

antisocial acts. [] Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity. [] If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect combined with another mental disease or defect may qualify as legal insanity. A settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off. [] You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime. If you are satisfied that he had a mental disease or defect before he committed the crime, you may conclude that he suffered from that same condition when he committed the crime. You must still decide whether that mental disease or defect constitutes legal insanity. [] If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crime. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crime. You must not speculate as to whether he is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way. [] You may find that at times the defendant was legally sane and at other times was legally insane. You must determine whether he was legally insane when he committed the crime. [] If you

conclude that the defendant was legally sane at the time he committed the crime, then it is no defense that he committed the crime as a result of an uncontrollable or irresistible impulse. [] If, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that he was legally insane when he committed the crime, you must return a verdict of not guilty by reason of insanity. (Italics added.)

Section 25.5 states in relevant part: In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances.

This limitation [in section 25.5] has been interpreted to establish an absolute bar prohibiting use of ones voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off. [Citation.] (People v. Cabonce (2009) 169 Cal.App.4th 1421, 1433-1434.)

The challenged instruction is clear. It states: Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. (Italics added.) It also states: You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime. Defendant has cited nothing in the record which would indicate the jury misunderstood CALCRIM No. 3450. He has not shown error.

III

DISPOSITION

The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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