P. v. Laverty
Filed 8/21/12 P. v. Laverty CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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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.
TODD RICHARD LAVERTY,
Defendant
and Appellant.
E052332
(Super.Ct.No.
BAF006444)
OPINION
APPEAL
from the Superior Court
of
County. J. Richard
Couzens, Judge. (Retired judge of the
Placer Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Renee
B. Rich, 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, Lilia E. Garcia and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant Todd Richard Laverty guilty of
used a deadly or dangerous weapon during the murder. (§ 12022, subd. (b)(1).) The trial court found true the allegations
defendant suffered two prior convictions that resulted in prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison
for an indeterminate term of 15 years to life, and a determinate term of three
years.
Defendant
raises five contentions on appeal. First, defendant asserts the trial court
erred by permitting the prosecutor to impeach defendant with evidence of his
prior conviction for child abuse (§ 273a).
Second, defendant contends the trial court erred by not instructing the
jury that an unintentional killing without malice committed during the course
of an inherently dangerous felony constitutes
enhancement must be reversed because the trial court did not instruct the jury
on the requirement of a union of act and intent. Fourth, defendant contends the trial court
erred by instructing the jury on how to conduct its deliberations. Fifth, defendant asserts the trial court’s
various errors came together to create a denial of due process. We affirm the judgment.
A. PROSECUTION’S CASE
In
2008, defendant was dating Krystal Smith (Smith). Noel Adamczeski (the victim) grew up with
Smith, and was like a brother to her. On
December 24, 2008, the
victim, the victim’s girlfriend, Smith, Smith’s daughter, defendant, and three
other people—John, Carol, and Randall—were residing in a house and backyard
shed in Cabazon.
On
December 24, 2008, Smith;
defendant; Smith’s good friend, Mechell Moncy (Moncy); and the victim were at
the house drinking eggnog and rum, and other alcoholic drinks in the kitchen
area. Between the four people, they
drank a gallon of rum and some beer.
John repeatedly came and went from the gathering, but only had one
drink. At one point in the evening,
Moncy began arguing over the telephone with her child’s father. Defendant wanted to leave the gathering and
go into a bedroom. Smith told defendant
not to leave because everyone was spending time together. Defendant jokingly said, “[Y]ou want to fight
so we can go have make-up sex.â€
Defendant stood up, and Smith jokingly pushed him back down. Defendant then playfully put Smith in a
chokehold, although the chokehold brought tears to Smith’s eyes.
Moncy
saw defendant put Smith in a chokehold, dropped the phone, and “started
flipping out.†Moncy began screaming
that defendant was not allowed to disrespect Smith. Moncy “went off†on defendant. Defendant then “started going off†on
Moncy. Smith stood in front of
defendant, as Moncy lunged at defendant.
Moncy began moving her arms in a windmill fashion, and she struck
Smith’s nose, which stopped the fight.
At
that point, the victim told defendant, “[Y]ou can’t talk to my sister like
that, and you can’t hit my sister.†The
victim then hit defendant, causing defendant’s lip to split and bleed. Defendant went to the bathroom at the back of
the house, and the victim went outside.
Smith walked with the victim outside in the yard/driveway area, and
tried to explain to the victim that defendant did not hit her. The victim picked up a stick, which appeared
to be a shovel or rake handle, that was by the door area, but he dropped it
before he reached the front yard area.
Approximately
one minute later, defendant came outside.
Defendant yelled that the victim “sucker-punched†him. The victim told defendant that defendant
disrespected Smith. Smith kept reminding
the two men that they had to share Christmas dinner the next day, and live
together; Smith asked the men to “knock it off.†Smith stood between the two men, and was
being pushed as she tried to stay in between them, because the victim was
backing away as defendant moved towards the victim. The victim did not have the stick and was not
using it to threaten defendant.
As
defendant lunged at the victim, the victim continued ducking and moving
backwards. After a couple of minutes,
Smith said, “[F]uck it. If you guys are
going to fight, fight.†Smith stepped
out of the way. Defendant struck the
victim’s chest. It appeared to Smith
that defendant punched the victim’s chest.
The
victim walked away down the street, holding his chest, saying “[D]on’t ever
talk to me again, stay away from me . . . we can’t hang out no more.†The victim walked a few houses away, but then
walked back. The victim said, “[T]ell [Moncy]
to take me to the hospital.†The victim
explained that he was “choking on blood.â€
Defendant said to Smith, “[W]ell, you’d better tell [Moncy to] take him
to the hospital, I stabbed him.â€
Smith
and the victim went inside the house.
Moncy called 911. The victim sat
on a couch, but continued bleeding and slipped off the couch. The victim said he was choking on blood,
could not breathe, and was dying. The
victim had blood coming from his mouth.
Defendant stayed outside. A few
minutes after going inside, Smith went back outside to ask defendant, “[W]hat
the hell[?]†but defendant had left.
Riverside
County Sheriff’s Detective Jason Corey found blood inside the house—in the
kitchen, “all down through the hallway,†in the hallway bathroom, in the master
bathroom, and the living room. Detective
Corey found knives in the kitchen.
Outside the house, it had been raining heavily, but Detective Corey
found possible blood in the street, the gravel area in front of the house, and
on the walkway between the door and the driveway. Detective Corey found a knife in the front
yard of the house to the north of Smith’s, defendant’s, and the victim’s
house. The blade of the knife was six
inches long. Detective Corey also found
three sticks in the yard. Detective
Corey found a 30.5-inch tree branch outside the gate; a “four-by-four†length
of fence post, in the front yard; and a 29-inch piece of a shovel handle in the
yard.
Riverside
County Sheriff’s Investigator Gary Bowen was called out to the house following
the stabbing, and interviewed Smith.
Smith was intoxicated during the interview and not cooperative. During the interview, Smith did not mention
the victim holding a stick during the altercation. Investigator Bowen first heard about the
victim holding a stick during defendant’s trial. Smith told the investigator that the victim
had been running, dodging, and trying to hide from defendant when they were in
the yard together.
The
victim’s autopsy revealed a stab
wound half an inch in length, in the left upper part of his chest. The wound went through a portion of the left
second rib, fracturing the rib, and 2.5 inches into the upper lobe of the left
lung. The total depth of the wound was three
to 3.5 inches. The direction of the
wound path was consistent with a downward strike. A four-inch knife blade would have been
consistent with the cause of the stab wound.
The cause of the victim’s death was a stab wound to the chest.
B. PRETRIAL MOTIONS
Prior
to trial, the People argued defendant’s prior felony convictions should be
admissible for impeachment purposes. Defendant’s prior convictions consisted of
(1) child abuse (§ 273a, subd. (a)), on November 7, 2000, in San
Bernardino County; and (2) grand theft (§ 487, subd. (a)), on March 5, 2005, in
San Bernardino County. The People
asserted both prior convictions were crimes involving moral turpitude.
At
a pretrial hearing, the trial court addressed the People’s argument. The court asked if defendant had any argument
to offer on the issue. Defendant’s trial
counsel responded, “No.†The trial court
found both prior convictions were crimes of moral turpitude and it would not be
prejudicial to introduce the prior convictions since they were not remote in
time and were substantially different than the charged offense. The trial court ruled the prior convictions
could be admitted as impeachment evidence if defendant testified.
C. DEFENSE
Defendant
testified at trial. Defendant said he
was drinking beer and rum the night of the stabbing. Defendant admitted stabbing the victim. Defendant described arguing with Moncy, and
being punched by the victim. After being
punched, defendant went to the bathroom to see how badly his lip was
injured. When defendant left the bathroom,
he was angry, and went to find the victim.
Defendant intended to fight the victim.
Someone in the house told defendant the victim was outside, so he went
outside.
Defendant
found the victim hiding behind a bush.
Defendant asked the victim, “[W]hy’d you hit me?†The victim responded, “[Y]ou shouldn’t hit my
sister.†Defendant did not see anything
in the victim’s hands when they were talking to one another; however, defendant
thought he heard defendant banging a piece of wood against the concrete. Defendant thought the victim “was going to
try to take [him] out,†by hitting him.
The victim, while standing up, swung at defendant as if holding a
baseball bat, defendant believed the victim was swinging a piece of wood at
him. Defendant ducked, and was not
struck, but he was scared. Defendant
immediately took a knife from his back pocket and stabbed the victim one time
in the chest. Defendant did not see
anything in the victim’s hands immediately after the stabbing.
After
stabbing the victim, defendant removed the knife from the victim’s chest, and
the victim backed away. Defendant
believed the victim did not know he had been stabbed. The victim jumped over a fence and ran
away. Defendant threw the knife in the
neighbor’s front yard. The knife law
enforcement found in the yard was the knife defendant used to stab the
victim. Defendant had been carrying the
knife in his back pocket because he did not want Smith’s daughter to find it in
the house and be injured by it.
When
the victim returned, he was coughing and blood was coming out of his
mouth. Defendant said to the victim,
“[S]hit, you know, I—I fucked up. Get in
[Smith’s] van. I’m going to take you to
the hospital.†Defendant told Smith he
stabbed the victim. The victim refused
to accept a ride from defendant, so defendant left. Defendant left because he was scared of what
he had done.
Defendant
was arrested five or six hours after the stabbing. Defendant admitted lying to Investigator
Bowen more than once. Defendant told the
investigator he had a fight with the victim, but the victim left before
defendant could harm him. Defendant told
the investigator, “‘[T]hat dude has enemies,’†and that he “‘didn’t do nothing
to that dude,’†referring to the victim.
While
testifying, defendant admitted suffering the prior child abuse and grand theft
convictions. The examination related to
the prior offenses went as follows:
“[Prosecutor]: Now, you were convicted of two counts of
Penal Code Section 273a(a) on November 7, 2000 correct?
“[Defendant]: Yes.
“[Prosecutor]: Is that in San Bernardino County?
“[Defendant]: Yes.
“[Prosecutor]: That’s felony child abuse, right?
“[Defendant]: Yes.
“[Prosecutor]: You were also convicted of a violation of
Penal Code Section 487(a) on March 7, 2005?
“[Defendant]: That was grand theft?
“[Prosecutor]: Yes.
“[Defendant]: Yes.
“[Prosecutor]: San Bernardino County?
“[Defendant]: Yes.
“[Prosecutor]: So you have a couple [of] prior felony
convictions; right?
“[Defendant]: That’s correct.â€
The
facts related to the jury instructions will be given post.
A. PRIOR CONVICTIONS
Defendant
contends, (1) the trial court erred by permitting the prosecutor to impeach
defendant with evidence of his prior conviction for child abuse (§ 273a);
(2) the prosecutor committed misconduct;
and (3) his own trial counsel was ineffective for not objecting to the
impeachment evidence. The People (1)
agree the trial court erred; (2) assert defendant forfeited his contentions
related to the trial court’s error and the prosecutor’s error; and (3) contend
defendant has not shown he suffered prejudice as a result of his trial counsel
not objecting to the impeachment evidence.
We agree with the People.
1. MORAL
TURPITUDE
The
People and defendant agree child abuse (§ 273a) does not constitute a crime of
moral turpitude. In People v. Sanders (1992) 10 Cal.App.4th 1268, 1275, the Fifth
District Court of Appeal concluded a violation of section 273a does not qualify
as a crime of moral turpitude because the offense can be committed by “wholly
passive conductâ€; for example, extreme neglect.
(Sanders, at pp.
1274-1275.) The appellate court was “not
aware of any decision finding a crime is one of moral turpitude when the
conviction can result from passive conduct unaccompanied by criminal
intent.†(Id. at p. 1274.)
“Whether
a particular offense involves moral
turpitude must be determined based on the statutory elements of the
crime. The court may not consider the
specific facts giving rise to the conviction but must conclude that each
element of the crime, including the minimum statutory elements, involves moral
turpitude. [Citation.]†(People
v. Robinson (2011) 199 Cal.App.4th 707, 712.) This is known as the “‘least adjudicated
elements test.’†(Ibid.) Given the foregoing
law, we will assume, without deciding, that the parties are correct—a violation
of section 273a is not a crime of moral turpitude. 2.
Defendant
contends the trial court erred by permitting the prosecutor to impeach
defendant with evidence of his child abuse conviction (§ 273a). The People agree the trial court erred, but
assert the error was forfeited.
In
order to preserve an evidentiary issue for appeal, an objection must be raised
in the trial court. (Evid. Code, § 353;
300.) During the motions in limine, the
trial court asked defendant’s counsel if he had any argument to offer related
to the prosecutor’s motion to introduce defendant’s child abuse conviction as
impeachment evidence. Defendant’s trial
counsel responded, “No.†When the
prosecutor asked defendant about the convictions during trial, defendant’s
counsel did not raise an objection. Due
to the failure to object to the impeachment evidence, the issue has not been
preserved for appeal. Accordingly, we do
not address the merits of defendant’s contention.
3. PROSECUTORIAL
MISCONDUCT
Defendant
contends the prosecutor committed misconduct by (1) misleading the trial court
about the admissibility of defendant’s prior conviction for child abuse
(§ 273a), in that the prosecutor had an ethical duty to inform the trial
court that child abuse is not a crime of moral turpitude; and (2) stating
defendant was convicted of two counts of child abuse, when there is evidence of
only one child abuse conviction. The
People contend defendant waived this contention by not objecting in the trial court.
“‘A
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion, and on the same ground, the defendant objected to the action
and also requested that the jury be admonished to disregard the perceived
impropriety.’ [Citation.]†(People
v. Lopez (2008) 42 Cal.4th 960, 966.)
When the prosecutor moved in limine for permission to introduce the
child abuse conviction, defendant’s trial counsel did not object. During trial, when the prosecutor asked
defendant if he suffered two prior child abuse convictions, defendant’s trial
counsel did not object. In the
prosecutor’s closing argument, when she said, “[T]he defendant admitted that he
had been convicted of a couple of felonies when he was on the stand,â€
defendant’s trial counsel did not object.
Given defendant’s failure to object to the alleged acts of misconduct,
we conclude the prosecutorial misconduct issue was not preserved for
appeal. Accordingly, we do not address
the merits of defendant’s contention.
4. INEFFECTIVE
ASSISTANCE OF COUNSEL
Defendant
contends his trial counsel rendered ineffective assistance of counsel by
failing to object to the prosecutor (1) impeaching defendant with the prior
child abuse conviction; and (2) misstating defendant suffered two prior child
abuse convictions, when he only suffered one.
“A
defendant whose counsel did not object at trial to alleged prosecutorial
misconduct can argue on appeal that counsel’s inaction violated the defendant’s
constitutional right to the effective assistance of counsel.†(People
v. Lopez, supra, 42 Cal.4th at p.
966.) “To demonstrate ineffective
assistance of counsel, a defendant must show that counsel’s action was,
objectively considered, both deficient under prevailing professional norms and
prejudicial. [Citation.] To establish prejudice, a defendant must show
a reasonable probability that, but for counsel’s failings, the result of the
proceeding would have been more favorable to the defendant. [Citation.]â€
(People v. Burgener (2003) 29
Cal.4th 833, 880.)
We
start our analysis with the prejudice prong.
Defendant admitted stabbing the victim.
Defendant argued (1) he was not guilty because he was acting in
self-defense; (2) at most he was guilty of voluntary manslaughter based upon a
theory of imperfect self-defense; and (3) the evidence did not support a
finding of premeditation. The jury
acquitted defendant of first degree murder, but found defendant guilty of
second degree murder.
When
defendant testified at trial, the story he gave was as follows: The victim punched defendant’s mouth, while
they were in a hallway near the living room.
Defendant went to the bathroom, and then “went to look for [the victim]â€
because defendant “was angry.†Defendant
found the victim standing up, hiding behind a bush outside. Defendant intended to fight the victim. Defendant thought he heard wood banging on
concrete, but did not see anything in the victim’s hands.
The
victim appeared “[a]ngry, confused†to defendant. Smith placed herself between the two
men. Defendant and the victim yelled at
one another for a “couple of minutes,†while Smith was between them. Defendant believed the victim swung at him,
while holding an object, although defendant never saw the object, and defendant
was not struck. Defendant immediately
stabbed the victim. Defendant did not
see an object in the victim’s hands following the stabbing.
When
Smith testified, she recounted seeing the victim backing away from defendant
and dodging defendant’s lunges. Smith
did not see the victim (1) holding an object while in the front yard, (2)
raising an object at defendant, (3) swinging an object at defendant, or
(4) threatening defendant in any way.
Thus, evidence reflects no one saw an object in the victim’s hands, and
defendant stabbed the victim with a knife.
Given
the evidence, it appears the jury rejected defendant’s testimony that he feared
for his safety, which is reasonable given that defendant searched for the
victim after the two separated following the initial punch. Defendant brought a knife with him and used
it, despite the victim never having physical contact with defendant once they
were in the yard. Thus, the evidence
supporting a murder finding was quite strong:
it appears defendant was not acting in self-defense, since he searched
for the victim, in order to fight him; was not harmed by the victim while in
the yard; and there was evidence the victim was consistently backing away from
defendant.
Moreover,
while the murder evidence against defendant was strong, the prosecutor did not
belabor the impeachment evidence. The
prosecutor asked defendant if he suffered the prior convictions, and when and
where the convictions occurred. The
facts related to the prior crimes were not discussed. Additionally, the prosecutor went through
defendant’s various lies to law enforcement in extreme detail. Initially, defendant said he lied to law
enforcement less than 10 times. The
prosecutor then went through defendant’s various statements in detail, and
asked if they were lies. Given the
variety of lies told by defendant, and the properly admitted prior grand theft
conviction, it is unlikely that the jury would have found defendant’s testimony
more believable if his trial counsel had objected to the child abuse
information. Accordingly, due to the
strong evidence supporting the murder finding, and the variety of evidence
calling defendant’s credibility into question, we conclude there is not a
reasonable probability that, but for counsel’s alleged failings, the result of
the proceeding would have been more favorable to defendant.
B. VOLUNTARY
MANSLAUGHTER INSTRUCTION
Defendant
contends the trial court erred by not sua sponte instructing the jury on
voluntary manslaughter being a lesser included offense of murder, when the
killing is committed without malice during the commission of an inherently
dangerous felony.
title="">[3] We disagree.
“It
is well established that even in the absence of a request, the trial court has
a sua sponte duty to instruct on lesser included offenses when there is
substantial evidence the defendant is guilty only of the lesser offense.†(People
v. Cook (2001) 91 Cal.App.4th 910, 917.)
We apply the de novo standard of review when analyzing whether the trial
court should have given a lesser included offense instruction. (People
v. Manriquez (2005) 37 Cal.4th 547, 584.)
Defendant’s
theory of a killing being voluntary manslaughter when it is committed without
malice during the commission of an inherently dangerous felony is based upon
134 (Bryant). Our Supreme Court granted review of
appellate court’s opinion, after defendant submitted his opening brief. (People
v. Bryant, review granted Nov. 16, 2011, S196365.) The Supreme Court granted review for the
purpose of determining whether voluntary manslaughter may be premised on a
killing without malice, which occurs during the commission of an inherently
dangerous assaultive felony. (
In
defendant’s reply brief, he concedes Bryant
has been depublished, and the issue is being reviewed by the Supreme
Court. However, defendant relies on
another case, People v. Garcia (2008)
162 Cal.App.4th 18, 31, in which the appellate court wrote, “[A]n unlawful
killing during the commission of an inherently dangerous felony, even if unintentional,
is at least voluntary manslaughterâ€â€”as opposed to involuntary
manslaughter.
The
People assert Garcia did not create a
new theory of voluntary manslaughter; rather, the court concluded a killing
during the commission of an inherently dangerous felony was not involuntary
manslaughter, such that the trial court in Garcia
did not err by not instructing the jury on involuntary manslaughter. The People further contend there is no legal
basis for a voluntary manslaughter finding being premised on an unlawful
killing, without malice, being committing during the commission of an
inherently dangerous felony, because the Legislature would have defined the
crime in a statute.
For
the sake of efficiency, we will assume, without deciding, that the law supports
a finding of voluntary manslaughter where the killing is committed without
malice during the commission of an inherently dangerous felony. Accordingly, we examine whether there is
substantial evidence defendant is guilty only of the lesser offense.
In
this case defendant committed one felonious act—stabbing the victim. The stabbing was not secondary to a primary
felony that was being committed at the time of the killing—there was only a
stabbing. Thus, there is not substantial
evidence the killing occurred during the commission of an inherently dangerous
felony, because there was not evidence of a secondary felony. As a result, the trial court did not err by
not instructing the jury on the offense of voluntary manslaughter where the
killing is committed without malice during the commission of an inherently
dangerous felony.
Defendant
asserts he did not intend to kill the victim when he stabbed him, he only
intended to batter the victim.
Therefore, defendant contends the killing was committed during the
course of an assaultive felony, wherein defendant did not appreciate the
stabbing would result in the victim’s death.
Defendant’s argument is not persuasive, because he is essentially
arguing that the killing was involuntary manslaughter, not voluntary
manslaughter.
“‘Second
degree murder based on implied malice is committed when the defendant does not
intend to kill, but engages in conduct which endangers the life of another, and
acts deliberately with conscious disregard for life. [Citation.]
An essential distinction between second degree murder based on implied
malice and involuntary manslaughter based on criminal negligence, is that in
the former the defendant subjectively realized the risk to human life created
by his conduct, whereas in the latter the defendant’s conduct objectively
endangered life, but he did not subjectively realize the risk. [Citations.]’
[Citation.]†(
1679, 1704.) Defendant’s argument is
implying he did not appreciate that stabbing a person in the upper left portion
of the chest could result in death, which coincides with a theory of
involuntary manslaughter, as opposed to voluntary manslaughter. Since defendant’s argument appears to relate
more to involuntary manslaughter than voluntary manslaughter, we are not
persuaded the trial court erred by not instructing on voluntary manslaughter as
it relates to a killing committed without malice during the commission of an
inherently dangerous felony.
Moreover,
defendant’s theory that he did not intend to kill the victim when he stabbed
him—he only intended to batter the victim—is problematic due to the merger
doctrine. The merger doctrine provides
that when an assault results in murder, the assault merges into the murder,
such that the assault cannot provide the basis for a felony murder
conviction. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374.) Defendant’s argument is encouraging this
court to look at the singular act of stabbing as two separate acts—an assault
or battery that resulted in a killing.
Under the merger doctrine this is problematic, because there is a
singular act—a single stabbing. To the
extent an assault or battery was part of the stabbing, it would merge into the
killing, so we are left with one act.
Thus, there is not substantial evidence of the killing occurring during
the course of an inherently dangerous felony—there is only a killing.
C. WEAPON ENHANCEMENT
Defendant
contends the true finding related to the weapon enhancement (§ 12022,
subd. (b)(1)) must be reversed because the trial court did not instruct the
jury on the requirement of finding a union of act and intent as it related to
the enhancement. (CALCRIM No. 252.) The People assert a reasonable juror would
have concluded from the instructions that a union of act and intent was
required for the enhancement. We find no
error.
“‘Errors
in jury instructions are questions of law, which we review de novo.’ [Citation.]â€
(People v. Fenderson (2010)
188 Cal.App.4th 625, 642.) Defendant’s
argument relies on section 20, which provides, “To constitute [a] crime there
must be unity of act and intent. In
every crime or public offense there must exist a union, or joint operation of
act and intent, or criminal negligence.â€
Former section 12022, subdivision (b)(1), provided, “Any person who
personally uses a deadly or dangerous weapon in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year, unless use of a deadly or
dangerous weapon is an element of that offense.†(Eff. Jan. 1 2005, to Sept. 30, 2011.)
In
People v. Poroj (2010) 190
Cal.App.4th 165, 172-173 [Fourth Dist., Div. Two], this court explained that
the enhancement in section 12022.7, which provides for an increased sentence if
great bodily injury is inflicted during the commission of a felony, “does not
define a crime or public offense.
Rather, it is typical of many sentencing enhancement statutes that ‘do
not purport to define a criminal offense but simply relate to the penalty to be
imposed under certain circumstances.’
[Citation.]â€
This
court further explained, that “section 12022.7, subdivision (a) is not required
to contain, and by its terms does not contain, an intent element in addition to
the general or specific intent element of the underlying felony or attempted
felony to which it applies. ‘This is
permissible because [the statute] do[es] not criminalize otherwise innocent
activity, since [it] incorporate[s] the underlying crime[], which already
contain[s] a mens rea requirement.
[Citation.]’ [Citation.]†(People
v. Poroj, supra, 190 Cal.App.4th
at p. 173.)
Former
section 12022, subdivision (b)(1), is similar to section 12022.7, in that it
punishes a person for “personally us[ing] a deadly or dangerous weapon in the
commission of a felony or attempted felony,†which incorporates the underlying
crime into the enhancement. (See
1497, 1503 [there is no scienter requirement for section 12022, subdivision
(a)(1)].) The trial court instructed the
jury on the union of act and intent as it related to the murder charge, but not
the enhancement. Since the enhancement
is incorporated into the murder charge, the trial court did not err by
instructing the jury on the union of act and intent as it relates to the
murder, but not the weapon enhancement.
Nevertheless,
to the extent the enhancement could be found to have its own general intent
requirement, separate and apart from the underlying crime, we conclude no
reasonable juror would have understood the instructions to not require such a
union. (See People v. Wardell (2008) 162 Cal.App.4th 1484, 1494 [Enhancements
have general intent requirements if a specific intent is not included in the
definition of the crime.].)
“‘“‘In
determining whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole . . . [and] assume
that the jurors are intelligent persons and capable of understanding and correlating
all jury instructions which are given.’
[Citation.]†[Citation.]’ [Citation.]
‘“Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.†[Citation.]’ [Citation.]â€
(People v. Riley (2010) 185
Cal.App.4th 754, 767.)
The
trial court informed the jury: “The
crime charged in Count 1 requires proof of the union, or joint operation, of
act and wrongful intent.†(CALCRIM No.
252.) The trial court explained murder
is a specific intent crime, and in order to find a person guilty of murder
“that person must not only intentionally commit the prohibited act, but must do
so with a specific intent or mental state.â€
In the enhancement instruction, the trial court informed the jury: “Someone personally uses a deadly or
dangerous weapon if he or she intentionally
does any of the following: [¶] 1. Displays the weapon in a menacing manner;
[¶] OR
[¶] 2. Hits someone with the
weapon.†(CALCRIM No. 3145, italics
added.)
Given
that the trial court explained the union of act and intent to the jurors, and
it instructed the jury defendant must have intentionally
displayed the weapon or struck the victim with the weapon, the instructions
considered as a whole could only be interpreted as requiring defendant to have
acted while having the required general intent.
Thus, we conclude when the instructions are considered as whole, there
was no error.
D. DELIBERATIONS
1. FACTS
The
trial court gave the jury the following instruction: “If all of you find that the defendant is not
guilty of a greater charged crime, you may find him guilty of a lesser crime if
you are convinced beyond a reasonable doubt that the defendant is guilty of
that lesser crime. A defendant may not
convicted of both a greater and lesser crime for the same conduct. Voluntary manslaughter is a lesser crime to
the crime of murder. [¶] It is up to you to decide the order in which
you consider each crime and the relevant evidence, but I can accept a verdict
of guilty of a lesser crime only if you have found the defendant not guilty of
the corresponding greater crime.
[¶] The verdict form contains a
series of instruction[s] on how you are to vote on the question of guilt or
innocence of the greater and lesser crimes.
Please follow the instructions carefully and only proceed in the order
of questions as presented on the verdict form.â€
(CALCRIM No. 3518 [modified by the trial court].)
The
trial court then elaborated on the foregoing instruction. The trial court told the jurors: “And I want to touch on that a little bit
more. This is the verdict form. It’s a single form for all of the issues that
you have to decide in this case. It
contains three parts, part A, B, and C.
“As
indicated in the instructions, you can deliberate and discuss the facts in any
order that you want, but when it gets down to voting, you have to follow a
prescribed order. It’s critical. And this verdict form lays out that
order. You start at the first, and you
work through it. Do not start at the
back and work up. You start at the top
and work through the document in that order.
And you—it’s sort of like a tax form in the sense that if you answer a
certain question one way, it will tell you where to go. If you answer it another way, it may tell you
a different place to go. So how you
proceed through the actual verdict form will depend on what your vote is on the
question[s] as you go through it.
“So
the way this is set up, part A deals with first-degree murder. And the form will instruct you, if you find
him guilty of first-degree murder, then you indicate that. And you also are then directed to answer a
question that is, did the defendant personally use a deadly or dangerous
weapon.
“If
you—the form will also tell you if you find him not guilty of first-degree
murder, then you go on to part B, which deals with second-degree murder. But if you can’t agree on whether it’s first-
or second-degree murder, you sign nothing.
You have not reached an agreement.
You all have to agree unanimously that he is not guilty of murder in the
first degree before you may move to the question of is he guilty of
second-degree murder. [¶] Understand?
“And
likewise, onto voluntary manslaughter.
So again, follow the instructions on the form meticulously. That will tell you the specific order in
which you need to vote.â€
2. DISCUSSION
Defendant
contends the trial court erred by instructing the jury that it could not
consider the lesser offenses unless it unanimously agreed to acquit defendant
of the greater offenses. We disagree.
As
set forth ante, “‘[e]rrors in jury
instructions are questions of law, which we review de novo.’ [Citation.]â€
(People v. Fenderson,
rule: “[T]he jury may deliberate on the
greater and lesser included offenses in whatever order it chooses, but . . . it
must acquit the defendant of the greater offense before returning a verdict on
the lesser offense. [Citation.] In this manner, when the jury renders its
verdict on the lesser included offense, it will also have expressly determined
that the accused is not guilty of the greater offense. [¶]
The acquittal-first rule, requiring the jury to expressly acquit the
defendant before rendering a verdict on the lesser offense, serves the
interests of both defendants and prosecutors [citations], and we encourage
trial courts to continue the practice of giving the [acquittal-first]
instruction . . . .†(
309.)
The
trial court’s instructions conformed to the foregoing rule. The trial court repeated to the jury that it
could deliberate in whatever order it chose, but to start with the greatest
offense when completing the verdict forms, so as to obtain express acquittals
on the greater charges. For example, the
trial court instructed the jurors: “It
is up to you to decide the order in which you consider each crime and the
relevant evidence, but I can accept a verdict of guilty of a lesser crime only
if you have found the defendant not guilty of the corresponding greater
crime.†(CALCRIM No. 3518 [modified
version].) The trial court then again
told the jury, “As indicated in the instructions, you can deliberate and
discuss the facts in any order that you want, but when it gets down to voting,
you have to follow a prescribed order.â€
The trial court’s instructions accurately reflect our Supreme Court’s
ruling in People v. Fields,
Thus, we conclude the trial court did not err.
Defendant
points out the bench notes for CALCRIM No. 3518 direct trial courts to not use
CALCRIM No. 3518 in homicide cases. The
bench notes instruct trial courts to use CALCRIM Nos. 640 through 643 in
homicide cases. While we agree that the
bench notes instruct trial courts to not use CALCRIM No. 3518 in homicide
cases, the trial court modified CALCRIM No. 3518, and it appears to be an
accurate reflection of the law. Thus, we
are not persuaded the trial court erred by using a modified version of CALCRIM
No. 3518, as opposed to CALCRIM Nos. 640 through 643.
Next,
defendant contends the trial court improperly instructed the “jurors on how
they must proceed with their deliberations.â€
Defendant asserts the trial court instructed the jury that it “could not
even consider voluntary manslaughter unless [it] first unanimously acquitted
[defendant] of first and second degree murder.â€
Defendant’s interpretation of the trial court’s instructions is not
reasonable. The trial court twice told
the jurors that it could deliberate in any order they saw fit. Thus, the jurors could consider voluntary
manslaughter from the beginning it they so chose. The trial court explained a particular order
only needed to be followed when completing the verdict forms. The trial court’s instructions were clear and
proper both times the court explained the process. Thus, we are not persuaded by defendant’s
argument.
E. CUMULATIVE ERROR
Defendant
asserts the foregoing evidentiary and instructional errors came together to
create a denial of due process. As to
defendant’s instructional contentions, we have concluded the trial court did
not err. In regard to defendant’s
evidentiary contention, we have concluded the assumed error was not
prejudicial. Defendant’s claims are not
more persuasive when grouped together.
Thus, we conclude defendant did not suffer a denial of due process as a
result of the cumulative impact of the alleged errors. (See People
v. Garcia (2011) 52 Cal.4th 706, 764-765 [similar conclusion].)
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
jury found defendant not guilty of first degree murder. (Pen. Code, § 189.)
subsequent statutory references will be to the Penal Code unless indicated.
