P. v. Landis

Filed 8/12/08 P. v. Landis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Ronald S. Sims, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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This is an appeal from judgment after a jury found defendant Michael Landis guilty of possession of a firearm by a felon. (Pen. Code  12021, subd. (a)(1).) Defendant contends the trial court prejudicially erred in its written instructions to the jury. We conclude the instructional error did not deprive defendant of his constitutional rights to the presumption of innocence and proof beyond a reasonable doubt. We also conclude it is not reasonably probable defendant would have obtained a more favorable verdict in the absence of the error. We will affirm the judgment.

Facts and Procedural History

As a result of a dispute with his cousin and his grandfather, defendant was arrested. He was charged with making criminal threats (count one; Pen. Code,  422), receiving stolen property (count two; Pen. Code,  496, subd. (a)), false impersonation (count three; Pen. Code,  529), and possession of a firearm by a felon (count four; Pen. Code,  12021, subd. (a)(1)).

While much of the evidence was in conflict, the evidence was uncontradicted that defendant told an investigating deputy (after proper Miranda advisements [see Miranda v. Arizona (1966) 384 U.S. 436]) that defendant had the weapon in question for protection.

The jury found defendant not guilty on counts one through three and guilty on count four. Defendant admitted two prior prison term allegations. The court sentenced defendant to five years in prison. Defendant filed a timely notice of appeal.

Discussion

1. The Instructions

After the jury was selected, the court gave extensive pretrial instructions. In particular, the court instructed on the presumption of innocence and the burden of proof beyond a reasonable doubt. This portion of the pretrial instructions concluded with this admonition: Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. The court also gave pretrial instructions on the elements of each charge. Defendant does not contend these instructions were erroneous.

The prosecution presented several witnesses and other evidence; defendant rested without presenting evidence.

At the close of evidence, the court instructed the jury again. The court gave each juror a printed version of the instructions for your personal use. The court stated: Traditionally the jurors will just sit and listen to the judge read the instructions to you, theres nothing wrong with that. If you want to do that, thats perfectly fine. Some people, however, have better comprehension if they follow along in reading with the Court as I read out loud to you. Together with all the usual instructions, the court repeated the instructions on presumption of innocence and burden of proof beyond a reasonable doubt. Toward the end of the instructions, the court again instructed on count four: To prove that the defendant is guilty of this crime, the People must prove that: After stating the elements of the crime, the court told the jury: It has been established by a stipulation that the defendant was previously convicted of two prior felonies only to prove Element Number 3 of the crime. Do not consider such evidence for any other purpose. [] The defendant has the burden of proving each element -- oh, Im sorry. Those last four lines there should be deleted. Just ignore those.

(In the printed instructions provided to each juror, the last four lines to which the court referred state: The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true. There was no direction from the court to strike this paragraph, only to ignore it. We assume for purposes of discussion that the paragraph remained in the written instructions taken into the jury room.)^[1]

The court concluded by explaining the next step of the case, attorney argument to the jury: The format we use is that the People, since they have the burden of proof, will commence their closing argument, then the defense will present their rebuttal and their own closing at the same time and then after that, the People will have their opportunity to do their rebuttal to the defenses close.

2. Defendants Contentions

Defendant contends the erroneous portion of the instruction, because it was included in the written instructions taken into the jury room, was contradictory of the proper presumption of innocence and burden of proof instructions and is likely to have caused confusion to the jury. The result, defendant contends, undermined the proper instructions and deprived him of his due process and jury trial rights.

3. Analysis

Read as a whole, the instructions unmistakably and repeatedly informed the jury that defendant was presumed innocent and that to overcome this presumption the prosecution was required to prove each element of an offense beyond a reasonable doubt. The extraneous sentences were directed toward this defense and that, in turn, referred to nothing that had been mentioned in the case. The jury was instructed that [s]ome of the[] instructions may not apply, depending on your findings about the facts of the case. We are satisfied that any juror who somehow missed the trial courts admonition to ignore these sentences would have concluded the sentences did not apply in this case, since they referred to nothing before the jury. Because there is no reasonable likelihood the jury was confused by the erroneous sentences, defendant was not deprived of either his due process rights or his right to a jury trial. (See Victor v. Nebraska (1994) 511 U.S. 1, 6.)

Since the jury was properly instructed on the presumption of innocence and the burden of proof beyond a reasonable doubt, the error in submitting the erroneous portion of the written instructions does not constitute structural error requiring per se reversal. (See People v. Flores (2007) 147 Cal.App.4th 199, 210.) Under any other applicable standard of review, defendant was not prejudiced by the error. He admitted while in custody that he possessed the firearm. The shotgun was found in defendants dwelling, albeit in the closet of his boarder. Although defendants cousin and his grandfather were somewhat equivocal about defendants other actions (including whether he had stolen the shotgun from his grandfather), the cousin was unequivocal in her testimony that she had seen defendant in possession of a gun, and the grandfather testified he had seen defendant with the shotgun. We conclude beyond a reasonable doubt that the jury verdict in this case was unaffected by the instructional error. (Chapman v. California (1967) 386 U.S. 18.)

Disposition

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.

^[1] While the record does not contain an explanation for the presence of this paragraph in the written instructions, reference to the California Judicial Councils Criminal Jury Instructions, CALCRIM No. 2510, suggests the answer. After the instruction states the elements of the crime, it states two defenses that might be applicable in particular cases, namely, momentary possession and justifiable possession. Following these defenses (on which the jury was not instructed and which were not an issue in the case), the instruction concludes with the paragraph quoted in the text, The defendant has the burden of proving each element of this defense, etc.