v. |
JOHN DOE, |
Solano County Superior Court No. VC29784
DANIEL E. LUNGREN
JOHN H. SUGIYAMA
RONALD S. MATTHIAS
ARGUMENT
I.
NEITHER ERROR NOR PREJUDICE OCCURRED BY THE COURT’S INSTRUCTION ON THE ACCIDENT DEFENSE
At trial, defense counsel requested the court give CALJIC 4.45 on the accident defense. (RT 512.) The court gave a modified version of CALJIC 4.45 as follows:
“When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, he does not thereby commit a crime.” (RT 527.)
He maintains the instruction could be interpreted to “lessen the prosecutor’s burden of proof” thereby violating the Sixth Amendment right to a jury trial and the due process clause of the Fourteenth Amendment. [Footnote 1] (AOB 9-23.) We disagree. The law is clear that when a defendant asserts ambiguity in the given instructions, he is obliged to raise the issue at trial and seek clarifying instructions. (People v. Bell (1989) 49 Cal.3d 502, 550; People v. Hernandez (1988) 47 Cal.3d 315, 353; People v. McNeil (1980) 112 Cal.App.3d 330, 340; People v. Martinez (1978) 82 Cal.App.3d 1, 19; People v. Anderson (1966) 64 Cal.2d 633, 639.) When the instructions are correct as given, failure to request amplification or modification of the instruction constitutes a waiver which precludes raising the issue on appeal. (People v. Bell, supra, 49 Cal.3d at p. 550; People v. Duran (1983) 140 Cal.App.3d 485, 493; People v. Goodall (1982) 131 Cal.App.3d 129, 143; People v. Cortez (1981) 115 Cal.App.3d 395, 407.)
In any event, the instruction is not misleading, confusing, or ambiguous. When the instructions are read as a whole, counsel’s arguments are considered and the jurors’ actions and decisions are reviewed, there is nothing in the record that demonstrates a reasonable likelihood that the jury misunderstood the law and applied the challenged instruction in a way that violated the constitution or in any manner that prejudiced appellant.
Most recently in Estelle v. McGuire (1991) _ U.S._ 112 S.Ct. 475, the United States Supreme Court addressed a constitutional challenge to a jury instruction. The Court stated:
“‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional right]’. It is well established that the instruction “may not be judged in artificial isolation,” but must be considered in the context of the instructions as a whole and the trial record. Cupp v. Naughten, [1973] 414 U.S. 141, 147, 94 S.Ct. at 400-01. In addition, in reviewing an ambiguous instruction such as the one at issue here, we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, __, 108 L.Ed. 2d.” (Id., at p. 482.)
California courts have expressed this same point using similar language:
“‘[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.’ (People v. Rhodes (1971) 21 Cal.App.3d 10, 20.) ‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568 [160 Cal.Rptr. 914.)” (People v. Haskett (1990) 52 Cal.3d 210, 231; People v. Burgener (1986) 41 Cal.3d 505, 538-539.)
Here, when the instructions are read in conjunction with one another, there is nothing misleading, confusing or ambiguous as to the burden of proof necessary to convict appellant.
First, while the version of CALJIC 4.45 given here did not refer to the “prosecution’s burden of proof” or include any “reasonable doubt” language, other instructions given to the jury covered those points. (CALJIC 2.90—Presumption of Innocence, Reasonable Doubt—Burden of Proof; 2.01—Sufficiency of Circumstantial Evidence.) (RT 522-533.) A reviewing court must assume that the jurors are intelligent beings, capable of understanding and correlating all instructions which are given to them. (People v. Bolton (1979) 23 Cal.3d 208, 213-214; People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
Furthermore, counsel correctly stated the laws. Defense counsel repeatedly referred to the fact that his client is presumed innocent and in order to find him guilty of the charged crimes, the prosecution had the burden of proving beyond a reasonable doubt that appellant intended to assault the victim. (RT 538-544, 556.) He then proceeded to argue that the evidence raised a reasonable doubt that the shooting was accidental. (RT 556-560.) The prosecutor, never disputing that he bore the burden, concentrated on refuting the claim of accident. These arguments helped ensure that the jury correctly understood the legal principles relevant to the case.
Finally, nothing in the record indicates that the jury was confused or misled. The fact that at one point during the jury’s deliberations the foreperson announced a deadlock does not suggest otherwise. After the declared deadlock, the judge polled the jurors on whether they felt further deliberations would be futile; based on their responses, he directed that they resume their deliberations the following Monday. (RT 581-586.) The following Monday, three hours after resuming deliberations, the jury reached a verdict. (RT 587-589.) At no time did they request further instructions or clarification on the law. Moreover, contrary to appellant’s argument, the jury’s verdict of acquittal on the two specific intent charges (Pen. Code, §§ 664/187 and 12022.7) does not demonstrate the jury was confused on the appropriate application of the accident defense. The verdicts merely indicate they believed that appellant did not have the specific intent to kill or inflict serious bodily injury to the victim, but that appellant did intend to assault the victim.
Certainly, the evidence supports the verdicts. Based on appellant’s version of the incident, he was within a few feet of the victim when he pulled out the gun from his waistband. Knowing the gun was loaded, he did not pull the hammer back, but he did place his finger on the trigger. When the victim grabbed the barrel of the gun, appellant made no effort to remove his finger from the trigger. Appellant never stated that the victim attempted to reach for the trigger of the gun. The weapons expert testified that with the hammer in it resting position, twelve to fourteen pounds of pressure would be required to fire the weapon used by appellant. (RT 377.) This was not a hair trigger weapon.
Accordingly, in reviewing the instructions as a whole, the arguments of counsel, and the jury’s actions and decisions, there is nothing in the record that demonstrates a reasonable likelihood that the jury misunderstood the law and applied the challenged instruction in a way that violates the constitution or in any manner that prejudiced appellant. Reversal is unwarranted. (Estelle v. McGuire, supra, 112 S.Ct. 475, 482; People v. Haskett, supra, 52 Cal.3d 210, 231.)
CALJIC 4.45 in its standard form reads as follows:
“When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor [criminal] negligence, [he] [she] does not thereby commit a crime.”
“Here, the clerk’s transcript does not include the written jury instructions that were provided to the jury; however, from the reporter’s transcript, it appears that when giving CALJIC 4.45, the court did not include “criminal negligence.” If the court had included in its instruction the term “criminal negligence”, it would have been necessary for it to also give CALJIC 3.36, defining criminal negligence. (People v. Brucker (1983) 148 Cal.App.3d 230, 239-240.) The court did not give CALJIC 3.36. However, the instructions as given did not prejudice appellant, but made it easier for the defense to argue that the shooting was an accident. Indeed, at trial, appellant did not request CALJIC 3.36 nor did he object to the court’s instructions as given. Furthermore, appellant does not now dispute that the instruction, as given, correctly stated the law on the defense of accident. Appellant maintains the instruction as given is seriously defective because it fails to advise the jury of the prosecution’s burden of proof; he is not concerned with the court’s failure to define accident in the terms of the absence of “criminal negligence.”
