P. v. Johnson
Filed 4/26/13 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOE C. JOHNSON,
Defendant
and Appellant.
E054490
(Super.Ct.No.
FSB058147)
OPINION
APPEAL from the
Michael B. McPartland, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Garrett
Beaumont, and Susan E. Miller, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found defendant and
appellant, Joe C. Johnson (defendant), guilty of numerous crimes including second
degree murder. At the conclusion of a
five-day trial on defendant’s claim that he was legally insane at the time he
committed the crimes, the jury was unable to reach a verdict and the
A second jury rejected his defense and found defendant sane. The trial court then sentenced defendant to
serve a total term of 36 years four months to life in state prison.
Defendant contends in this appeal
that the trial court committed prejudicial error when it failed to sua sponte
instruct that if the jurors had a reasonable doubt about whether the crime was
murder or involuntary manslaughter, they had to give defendant the benefit of
the doubt and find him guilty of involuntary manslaughter. Defendant also contends that we must strike
the Penal Code section 667, subdivision (a), sentence enhancement the trial
court found true because the prosecutor did not amend the information to
include that allegation until after the original jury was discharged. We agree with defendant’s second contention;
therefore, we will strike that sentence enhancement and otherwise affirm the
judgment.
FACTS
pertinent facts are undisputed; the only issue at trial was whether defendant
was legally insane at the time he committed the crimes. Because they are not in dispute, we take our
statement of the pertinent facts from the parties’ opening briefs.
In the morning on September 17, 2006, defendant walked across the street
from the mobilehome where his mother lived, to the mobilehome where the victim
lived. Defendant was holding an ax
handle in his right hand as he approached the victim, 75-year-old Anoya Shamon,
and his son, Marcil Youkhana, who were sitting outside Shamon’s mobilehome on
lawn chairs. When he got close enough,
defendant raised the ax handle and swung it at Shamon hitting him on the left
side of the head. Shamon fell from the
chair to the ground. Defendant just
laughed when Youkhana asked why defendant had hit his father. As he lay on the ground, blood flowed from
the wound in Shamon’s head. Youkhana
tried to get the ax handle from defendant.
Defendant hit Youkhana in the mouth with the ax handle during the
struggle. Ultimately, defendant walked
back across the street. He sat on the
hood of his mother’s car and laughed.
Officer Kenneth Edwards of the San Bernardino Police Department
responded to the call reporting the assault.
When he arrived at the scene, Officer Edwards parked his patrol car and
got out of the vehicle. Defendant was
about 20 feet away, standing in front of his mother’s mobilehome, holding a
hammer in his hand. Officer Edwards
directed defendant to drop the hammer.
Defendant threw the hammer down and ran at Officer Edwards yelling,
“Fuck you, Pig.†When he got within
about two feet of the officer, defendant pulled back his clenched right fist,
as if he intended to punch Officer Edwards.
The officer stepped aside, grabbed defendant by the shoulder, and threw
him to the ground. Defendant struggled
when Officer Edwards tried to handcuff him.
He repeatedly threw his head back in order to hit Officer Edwards in the
forehead. When Youkhana tried to help
the officer, defendant bit Youkhana in the left forearm. Eventually, Officer Edwards subdued and
handcuffed defendant.
Paramedics took Mr. Shamon to a hospital where he died, five weeks
later, from the injury to his head. The
blow defendant inflicted fractured Shamon’s skull. The force of that blow caused subdural and
intracerebral hemorrhages, which resulted in damage to Shamon’s brain. The brain damage caused Shamon’s death.
In his defense, defendant offered evidence to show that at the time he
committed the crimes he suffered from severe mental illness, which one expert
described as schizoaffective disorder—a combination of bipolar mood disorder
and schizophrenia thought disorder.
Another expert described defendant’s mental illness as schizophrenia
disorganized type, which involves hallucinations, delusions, disorganized and
unusual thoughts and behavior, and inappropriate affect or emotional
response. In the guilt phase, defendant
argued, as a result of his mental illness, that he did not form the mental
state necessary to commit the alleged crimes.
Defendant also presented evidence to show that he was legally insane
and, therefore, not guilty by reason of insanity.
DISCUSSION
1.
SUA SPONTE
JURY INSTRUCTION
set out above, defendant contends the trial court had a sua sponte duty to give
a so-called Dewberry
in deciding whether he was guilty of the greater crime of murder or the lesser
included crime of involuntary manslaughter and, therefore, the trial court
should have given CALJIC No. 8.72, which instructs that if the jury unanimously
agrees the killing is unlawful but they have a reasonable doubt whether the
crime is murder or manslaughter, they have to give defendant the benefit of
that doubt and find him guilty of manslaughter.
We do not share defendant’s view.
We begin our analysis with the established principle that the trial
court must instruct the jury on the general principles of law applicable to the
case but need not use any particular form as long as the instructions are
complete and correct. (
988; People v. Fiu (2008) 165
Cal.App.4th 360, 370.) We review a claim
of instructional error to determine “whether it is reasonably likely that the
trial court’s instructions caused the jury to misapply the law.†(People
v. Carrington (2009) 47 Cal.4th 145, 192.)
“‘The test is whether there is a reasonable likelihood that the jury
understood the instruction in a manner that violated the defendant’s
rights.’†(People v. Smith (2008) 168 Cal.App.4th 7, 13.) Further, we presume jurors are sufficiently
intelligent to understand and follow the trial court’s instructions. (People
v. Butler
(2009) 46 Cal.4th 847, 873.) Finally, in
reviewing the trial court’s instructions to determine whether they are correct
and sufficient, we consider the entire charge to the jury. (People
v. Carrington, at p. 192.)
This court discussed Dewberry in People v. Crone
(1997) 54 Cal.App.4th 71 (Crone)
(Fourth Dist., Div. Two), a case in which the defendant was charged with both
the greater offense (possession of methamphetamine for sale) and the lesser
offense (simple possession of methamphetamine).
At the outset of our discussion, we noted that the Dewberry trial court had instructed the jury on the effect of
reasonable doubt in general, i.e., if jurors had a reasonable doubt about the
defendant’s guilt they had to acquit him; on the effect of reasonable doubt in
deciding the degree of murder, i.e., if they had a reasonable doubt whether the
defendant was guilty of first or second degree murder they could only convict
him of second degree murder; and the effect of reasonable doubt on deciding
between the lesser included offense of manslaughter and justifiable homicide,
i.e., if they had a reasonable doubt whether the crime was manslaughter or justifiable
homicide they had to acquit the defendant.
(Crone, at p. 75, citing
As we also observed, the trial court in Dewberry refused the defendant’s request to instruct the jury that
if they had a reasonable doubt whether the defendant was guilty of murder or
manslaughter it had to find him guilty of manslaughter. (Crone,
supra, 54 Cal.App.4th at p. 75.) The Supreme Court held in
the requested instruction. In doing so,
it cited the general rule that “‘[W]hen the evidence is sufficient to support a
finding of guilt of both the offense charged and a lesser included offense, the
jury must be instructed that if they entertain a reasonable doubt as to which
offense has been committed they must find the defendant guilty only of the
lesser offense.’ [Citation.]†(Crone,
at pp. 75-76.) Since Dewberry,
it has “been held that in any case involving a lesser included offense, the
trial court has a duty to give a Dewberry
instruction sua sponte.
[Citations.]†(
offense which has one or more uncharged
lesser included offenses, the trial court ordinarily will give CALJIC No.
17.10, which satisfies the requirement of Dewberry. [Citations.]â€
(Ibid., fn. omitted.) “[T]he pertinent portion of CALJIC No. 17.10
(1989 rev.) states, ‘If you are not satisfied beyond a reasonable doubt that
the defendant is guilty of the crime charged, you may nevertheless convict [him][her]
of any lesser crime, if you are convinced beyond a reasonable doubt that the
defendant is guilty of the lesser crime.’â€
(Id. at p. 76, fn. 1.)
In this case, the trial court gave CALCRIM jury instructions, rather
than CALJIC instructions. The trial
court instructed the jury according to CALCRIM No. 220 on the prosecutor’s duty
to prove defendant’s guilt beyond a reasonable doubt. The trial court also instructed the jury on
the effect of reasonable doubt with regard to the charged crime of first degree
murder by giving CALCRIM No. 521, which states, “The People have the burden of
proving beyond a reasonable doubt that the killing was first degree murder
rather than a lesser crime. If the
People have not met this burden you must find the defendant not guilty of first
degree murder.â€
The trial court also instructed the jury according to CALCRIM No. 580
that, “When a person commits an unlawful killing but does not intend to kill
and does not act with conscious disregard for human life, the crime is
involuntary manslaughter. [¶] The difference between murder and involuntary
manslaughter depends on whether the person was aware of the risk to life that
his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act
done with full knowledge and awareness that the person is endangering the life
of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful
act committed without intent to kill and without conscious disregard of the
risk to human life, as a result of the defendant’s mental impairment, is
involuntary manslaughter. [¶] If the People cannot prove beyond a
reasonable doubt the defendant willfully committed an unlawful killing, you
must find him not guilty.â€
Finally, as pertinent to this issue, the trial court instructed the
jury according to CALCRIM No. 641 that they will be given verdict forms for
guilty of first degree murder, guilty of second degree murder, guilty of
involuntary manslaughter, and not guilty.
“Follow these directions before you give me any completed and signed,
final verdict form. You will complete
and sign only one verdict form. Return
the unused verdict forms to me, unsigned.
[¶] 1. If all of you agree that the People have
proved beyond a reasonable doubt that the defendant is guilty of first degree
murder, complete and sign that verdict form.
Do not complete or sign any other verdict forms. [¶]
2. If all of you cannot agree
whether the defendant is guilty of first degree murder, inform me only that you
cannot reach an agreement and do not complete or sign any verdict forms. [¶]
3. If all of you agree that the
defendant is not guilty of first degree murder but also agree that the
defendant is guilty of second degree murder, complete and sign the form for
guilty of second degree murder. Do not
complete or sign any other verdict forms.
[¶] 4. If all of you
agree that the defendant is not guilty of first degree murder but cannot agree
whether the defendant is guilty of second degree murder, inform me that you
cannot reach agreement. Do not complete
or sign any verdict forms. [¶] 5. If
all of you agree that the defendant is not guilty of first degree murder and
not guilty of second degree murder, but also agree that the defendant is guilty
of involuntary manslaughter, complete and sign the form for guilty of
involuntary manslaughter. Do not
complete or sign any other verdict forms.
[¶] 6. If all of you agree that the defendant is not
guilty of first degree murder and not guilty of second degree murder, but
cannot agree whether the defendant is guilty of involuntary manslaughter,
inform me that you cannot reach agreement.
Do not complete or sign any verdict forms. [¶]
7. If all of you agree that the
defendant is not guilty of first degree murder, not guilty of second degree
murder, and not guilty of involuntary manslaughter, complete and sign the
verdict form for not guilty. Do not
complete or sign any other verdict forms.â€
Although the instructions do not use the term reasonable doubt, that
concept is implicit from the instructions viewed as a whole. In particular, the trial court instructed the
jury that they could only find defendant guilty if the prosecution met its
burden to prove guilt beyond a reasonable doubt. From that instruction, the jury would
necessarily understand the reverse, namely that if they had a reasonable doubt
about defendant’s guilt on a particular charge they had to find defendant not
guilty of that charge. When we consider
the instructions as a whole, we conclude they properly informed the jury that
if they decided defendant unlawfully killed the victim but had a reasonable
doubt about whether the crime was murder or involuntary manslaughter because
defendant did not form the requisite intent due to his mental impairment, the
jury had to find defendant not guilty of murder, and thereby give him the
benefit of that reasonable doubt. That
is all Dewberry requires. (See Dewberry,
supra, 51 Cal.2d at p. 555 [“when the
evidence is sufficient to support a finding of guilt of both the offense
charged and a lesser included offense, the jury must be instructed that if they
entertain a reasonable doubt as to which offense has been committed, they must
find the defendant guilty only of the lesser offenseâ€].)
2.
AMENDMENT
AFTER JURY DISCHARGED
The trial court declared a mistrial
and discharged the jury after the jurors were unable to reach a verdict in the
sanity phase of the trial. Defendant had
previously waived his right under Penal Code section 1025
allegations that in 1997 he had been convicted of burglary, a serious or
violent felony within the meaning of the three strikes law (§§ 667, subds.
(b)–(i), 1170.12, subds. (a)–(d)), and that in 2004 he had been convicted of
elder abuse and served a term in prison or jail within the meaning of section
667.5, subdivision (b). At the start of
the court trial on defendant’s prior convictions, the trial court noted that
the prosecution had not alleged defendant’s 1997 burglary conviction as a prior
serious felony under section 667, subdivision (a), a so-called five-year or
“nickel†prior. The prosecutor explained
his belief that it was too late to amend the information to allege the five-year
prior. The trial court disagreed and
permitted the noted amendment over defendant’s objection that it was
untimely. The trial court then found the
allegations true.
title="">[4]
Defendant contends the trial court
acted in excess of its jurisdiction when it permitted the prosecutor to amend
the information after the jury had been discharged. To support his claim, defendant cites
(Tindall), in which the Supreme Court
held that after the jury that decided guilt is discharged, the trial court may
not permit the prosecution to amend the information to add new prior conviction
allegations unless the defendant waives or forfeits the right under section
1025, subdivision (b), to have the same jury decide both guilt and the truth of
the prior conviction. (
In Tindall, after the jury
had reached verdicts on the charges and had been discharged, the trial court
permitted the prosecution to amend the information to allege three recently
discovered robbery convictions as “strikes.â€
Before the amendment, the information had alleged only that the
defendant had previously been convicted of two drug crimes, which made him
statutorily ineligible for probation, and that he had served a prior term in
prison within the meaning of section 667.5, subdivision (b), which also made
him ineligible for probation. (
The Attorney General argues Tindall
is distinguishable because in this case the prosecution had alleged defendant’s
burglary conviction as a strike, but had not alleged that conviction as a
five-year prior under section 667, subdivision (a). Therefore, the amendment did not allege a new
prior conviction; it alleged only additional punishment based on a prior
conviction alleged in the information as a strike. We agree; Tindall
is inapposite.
In our view, the issue in this case is whether the trial court had
discretion to permit a postverdict amendment of the pleadings to include the
section 667, subdivision (a), enhancement.
The Supreme Court addressed that issue in People v. Valladoli (1996) 13
Cal.4th 590, in which it held section 969a
to grant the prosecution leave to amend an information to include prior felony
conviction allegations up until sentencing.
(Valladoli, at p. 603.) The court identified five factors a trial
court should consider in exercising that discretion: “(i) the reason for the late amendment, (ii)
whether the defendant is surprised by the belated attempt to amend,
(iii) whether the prosecution’s initial failure to allege the prior
convictions affected the defendant’s decisions during plea bargaining, if any,
(iv) whether other prior felony convictions had been charged originally, and
(v) whether the jury has already been discharged (§ 1025).†(Id. at
In this case, the first factor militates against permitting the
amendment. The prosecutor did not
explain why he had not alleged the five-year prior, or why he had not
discovered the omission before the jury was discharged. In fact, the record suggests, if the trial
court had not raised the issue, the prosecutor would not have known or been
concerned about the oversight. Because
defendant objected to the amendment and the prosecutor had no explanation for
the oversight or the belated amendment, we must conclude the trial court abused
its discretion in granting leave to amend the information to include the
section 667, subdivision (a), allegation.
DISPOSITION
The sentence is modified and the
judgment amended by striking the five-year sentence imposed under section 667,
subdivision (a), on count 1. Otherwise,
the judgment is affirmed. The trial
court is directed to prepare and forward to the appropriate agencies an amended
abstract of judgment that reflects defendant’s modified sentence.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] People
v. Dewberry (1959) 51 Cal.2d 548 (Dewberry).
name="_ftn2" title=""> [2] The Bench Notes for CALCRIM No. 641 indicate
the instruction is intended to satisfy the Dewberry
requirement.
