Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Douglas A. Fettel, Judge, Super.Ct.No. FRE05916
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Jennifer A. Jadovitz, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of second degree murder (Pen. Code, § 187), during which he personally discharged a firearm, proximately causing death (§ 12022.53, subd. (b)-(d)) and used a shotgun (§ 12022.5, subd. (a)). He was sentenced to 40 years to life in prison. He appeals, contending the trial court prejudicially erred in instructing the jury, in addition to the appropriate instructions on malice, that malice means a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. (See CALJIC No. 1.22.) The People do not dispute the claim of error, but argue that it was harmless. We agree with the People and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
All further statutory references are to the Penal Code unless otherwise indicated.
Summary of Facts
Prosecution Evidence
On the evening of February 10, 2003, the 15-year-old victim and his 19-year-old male and 17-year-old female companions were at the home of a friend when the female received a telephone call from defendant’s daughter. Defendant’s daughter, who had recently run away from her father’s home, asked the female to take defendant’s truck and deliver it to her at a specified time and place. The female agreed.
That night, the three teens walked to a field across the street from defendant’s house and waited for defendant to go to sleep. When the lights in defendant’s house went out, they crossed the street and began pushing the truck out of the driveway.
Defendant was awakened by his cat and opened the front door to let it out. He saw two people who appeared to be stealing his truck. He yelled at them and chased them down the street. Defendant lost sight of them and returned to his house. He woke his 17-year-old son and told him to watch the truck. Defendant’s son was a friend of the victim’s and had been the female’s boyfriend. She had lived at defendant’s home for three months before February 11, 2003. Defendant knew both the victim and the latter’s male companion.
The female testified that before defendant shot the victim, the latter came into the headlights of defendant’s car. Defendant testified that he had met the victim 10-15 times previously and had spoken to the victim’s male companion a few days before the shooting.
Giving both CALJIC Nos. 1.22 and 8.11 in a murder case does not necessarily violate due process. The conflicting instructions create, at a minimum, an ambiguity as to the nature of malice required for murder. Whether an ambiguous instruction violates due process depends upon whether, considering the charge as a whole, “‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) This “reasonable likelihood” standard requires something more than a mere possibility of such an application, but something less than proof that an unconstitutional application was more likely than not. (Boyde v. California (1990) 494 U.S. 370, 380 [110 S.Ct. 1190, 108 L.Ed.2d 316].) If, for example, both CALJIC Nos. 1.22 and 8.11 are given in a murder case in which the section 7 definition of malice is relevant to other charged crimes and the different malice instructions are tied to the different charged crimes, a reviewing court might conclude that it was not reasonably likely that the jurors would apply CALJIC No. 1.22 in an unconstitutional manner. Here, however, murder is the only charged crime and, the jurors could reasonably conclude, there was no reason to include CALJIC No. 1.22 in the instructions unless it was intended to apply to the murder charge. The People do not dispute the defendant’s contention that the error in this case rises to the level of a violation of due process. Indeed, as discussed below, by asserting that the error should be evaluated under the harmless error standard applicable to nonstructural federal constitutional error, the People implicitly concede such violation.
Defendant went to his car and removed a shotgun from the trunk and loaded it with three buckshot shells. He placed his shotgun in the front passenger seat. He then drove around the block looking for the teens. They were hiding at a steel mill and saw defendant’s car circle the block twice.
Defendant returned to his house and told his son to call the police. He then left to continue looking for the teens. Meanwhile, they left the steel mill and went east into a commercial area. When they saw defendant’s car pass, they ran north into the field across the street from defendant’s house.
Defendant saw them running toward the field. Two of the three appeared to be the people he saw trying to take his truck. He drove around the block and onto the field. The three teenagers scattered. The field was covered in grass up to two feet high. The victim and the female got down in the grass while the other male ran across the street and began to scale a wall.
Defendant got out of his car without setting it in park. He left his headlights on and walked about 30 feet into the field. The victim stood or jumped up out of the grass and ran into the light from the headlights. The female remained in the grass, watching. Defendant fired his shotgun, hitting the victim in the back, killing him.
Defendant’s son ran to the victim; defendant walked. The son asked his father if the victim was breathing, and defendant said, “I don’t know,” and told his son to call the police. Defendant saw that his car was moving, so he returned to it and set it in park. He then went to his house and called 911.
After informing the 911 operator that he “just shot somebody,” he explained: “There was three of [them]. I was looking for [them] and they started coming at me”; “I didn’t go out trying to kill nobody. I just wanted to protect myself and try [to] find out who they were so I could get you guys to get [them]. But they come at me. [¶] . . . [¶] . . . They jumped up off the ground where they were hiding and they came at me.”
When the police arrived, defendant told them of the attempted theft of the truck, the chase, and his shooting of the victim. He was shaking, upset, and crying. He said that he did not mean to shoot anyone; he was merely trying to scare them away.
The victim died from two shotgun pellets that entered his back and went through his lung, heart, abdomen and spleen. A third pellet grazed his head. The shot had also made a pattern of five holes which were 13 feet across in a wooden fence.
Defense Evidence
Defendant testified as follows. On the night of the incident, he went to bed about 10:30 p.m. At 1:25 a.m., he was awakened by his cat. When he let the cat out the front door, he saw two people pushing his truck out of the driveway. He did not know who they were. Defendant chased them down the street, where they ran into a yard. He claimed he was afraid to chase them further “because [he] thought [he] might get stabbed.” He also said he thought they might live at that location and he wanted them to get in trouble for trying to steal his truck. He returned home and woke up his son. He told his son that someone was trying to steal his truck, and asked his son to watch it.
Defendant put his shoes on, got the gun and loaded it “in case I got too close to them and they started to beat me up or stab me, I might have to fire it just to scare them away.” However, defendant admitted he had seen nothing in the victim’s hands as the three had run from his house. He then drove around the block once or twice without finding anyone, and returned home. He told his son that he could not find anyone and then drove around the block again. This time, he saw three individuals on the property of a horseshoe company. The horseshoe company is located adjacent to the field across the street from defendant’s house. He recognized the clothes worn by two of the three people as the clothes worn by the people he had seen trying to steal his truck. He returned home and told his son to call the police.
The son did not call the police. Instead, he walked across the street toward the field as defendant drove back to the horseshoe company to look for the three “to try to keep them trapped wherever they were hiding until the police got there.” But defendant did not see his son walking towards the field and did not think about what his son was doing until he returned to the horseshoe company and did not find the teens there. Then, he thought that his son was in the field with them, and they might beat up or stab his son. He admitted he did not actually see his son in the field until he arrived there. Even then, it was so dark that he could recognize his son only by the silouette of the hat the latter wore. When defendant did see his son, the former jumped out of his car with his shotgun in his hand and fired “on impulse or panic.” However, he also testified that when he got out of his car he was “scared out of [his] right mind” that his son would be injured, he saw someone running “kind of close” to his son and he shot into the dark, towards that person, as the latter ran away from defendant. Defendant testified, “I just wanted to knock them down . . . I forgot that the gun was dangerous. I forgot that the bullets would go inside of him and hurt him.” [¶] [I] didn’t think that if [I] shot a shotgun that somebody would die. [¶] [I thought] they would just fall down until I [got] there and [I would] see who it was, and let them get back up and run away.”
On cross-examination, defendant stated that he had shot the shotgun “a couple hundred” times at cans and crows, and knew it was a deadly weapon.
Prior to oral argument, the People notified this court that counsel may refer to the following cases, which “explain the applicable standard of review for cases in which an inconsistent instruction was submitted to the trier of fact”: Middleton v. McNeil, supra, 541 U.S. 433, People v. Hudson (2006) 38 Cal.4th 1002, People v. Mayfield (1997) 14 Cal.4th 668, Harris, supra, 9 Cal.4th 407, People v. Jeter (2005) 125 Cal.App.4th 1212 (Jeter), and People v. Maurer (1995) 32 Cal.App.4th 1121.
The victim fell about 20 feet away from the son. Defendant noticed that his car was rolling, so he jumped in and set it in park. He and the son ran to see what happened. The son said, “You shot somebody.” Defendant told his son, “Let’s go call 911,” and they both ran to the house. He admitted on the stand that he was not sure where the victim was in relation to his son when he shot the former and he did not know if his son was going to go towards the victim or stay where he was. He could not be sure that the victim was running towards his son, and, in retrospect, his son was probably safe. He admitted telling the 911 operator that the three he was pursuing were teens who lived nearly and they had information about his run-away daughter, but had refused to share it with him, which made him angry. He admitted having had a confrontation with the female and the victim’s male companion about his daughter a few days before the shooting, and he remained angry at the female.
Regarding his 911 call, defendant testified that the story he told the operator was a lie; he just “made up some stuff.” In particular, it was not true that people jumped up at him when he got out of his car. He also lied to the police when he said he had not loaded the gun before he got to the field.
Issue and discussion
Defendant contends that the court prejudicially erred in instructing the jury that malice means a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. We disagree.
“[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘“whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.”’ [Citations.] ‘“A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’ [Citation.] If the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable likelihood that the jury has applied the challenged instruction in a way”’ that violates the Constitution. [Citation.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437 [124 S.Ct. 1830, 1832] (Middleton).)
The jury here was given the following instructions on the charged murder and its lesser included offenses,
“The defendant is accused of having committed the crime of murder . . . . [¶] Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder . . . . [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] (1) A human being was killed; [¶] (2) The killing was unlawful; and [¶] (3) The killing was done with malice aforethought. [¶] Malice may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] (1) The killing resulted from an intentional act; [¶] (2) The natural consequences of the act are dangerous to human life; and [¶] (3) The act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from an intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word ‘aforethought’ does not imply deliberation or lapse of considerable time. It only means that the required mental state must precede rather than follow the act. [¶] All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] . . . [¶] Murder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation. [¶] Murder of the second degree is also the unlawful killing of a human being when: [¶] (1) The killing resulted from an intentional act; [¶] (2) The natural consequences of the act are dangerous to human life; and [¶] (3) The act was deliberately performed with knowledge of and danger to, and with conscious disregard for, human life. [¶] . . . [¶] The crime of manslaughter is the unlawful killing of a human being without malice aforethought. [¶] Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with a conscious disregard for human life, is guilty of voluntary manslaughter . . . . [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. (Italics added.)
The printed version of this instruction bears the following title at the bottom, “‘MALICE AFORETHOUGHT’-DEFINED[.]” The six sentences preceding this footnote comprise CALJIC No. 8.11.
When defendant’s counsel was asked during oral argument about the People’s new position concerning the applicable standard, he stated that he was “comfortable” with it, and did not argue against its application here.
After all of the instructions on murder and manslaughter had been given, and before the instructions on perfect and imperfect self-defense and excusable and accidental homicide were read, the instruction at issue was read. It stated, “The words “malice” and “maliciously” mean a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.”
Given the long-established prohibition on using this instruction in a murder case (People v. Chavez (1951) 37 Cal.2d at pp. 656, 666-667), we attempted, in vain, to discover how this could have happened. Unfortunately, and as is more and more frequently the regrettable case, there was a substantive discussion about jury instructions that was unreported. Additionally, the lists of requested instructions by the parties, if filled out in this case, were not included in the record before this court. However, the record does indicate that some thought was given this instruction by someone, as it was modified and it was referred to by the prosecutor during a reported discussion on other instructions.
Therefore, the instructions given the jurors told them nine different times that malice aforethought was required to convict defendant of the second degree murder they concluded he committed and those instructions correctly defined what malice aforethought was. On the other hand, the jury was given one inapplicable definition of the terms “malice” and “maliciously.” This created an ambiguity (Middleton, supra, 541 U.S. at p.438 [124 S.Ct. at p. 1833]), and requires us to determine whether it is reasonably likely the jury utilized the instruction at issue in a way that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475].)
The chances that the jury ignored the five correct instructions that contained the nine references to the correct definitions of malice aforethought and latched onto the one inapplicable definition of malice or malicious is slight. Moreover, as we will explain later, to do so would have required the jury to ignore these five correct instructions, which is profoundly unlikely. Also, we may look to the argument of counsel to see if it cleared up whatever ambiguity existed. (Middleton, supra, 541 U.S. at p. 438 [124 S.Ct. at p. 1833]; see, also, People v. Davis (2005) 36 Cal.4th 510, 545; People v. Prettyman (1996) 14 Cal.4th 248, 273; People v. Kelly (1992) 1 Cal.4th 495, 526, 527; People v. Lee (1987) 43 Cal.3d 666, 677.)
During argument, the prosecutor said, “Murder requires elements: A human being was killed, the killing was unlawful, because it’s not justifiable or excusable, . . . the killing was done with malice aforethought. [¶] Now, a lot of you are probably [saying], ‘Malice aforethought, what is that? . . . .’ [T]here are two separate types. One is the express malice. This is an intention unlawfully to kill . . . . [I]mplied malice says that killing resulted from an intentional act, the consequences of that act are dangerous to human life, and the act was done with the knowledge of the danger to and conscious disregard for human life. [M]alice aforethought does not necessarily require any . . . ill will or hatred of the person killed. Aforethought says it’s beforehand rather than after the act . . . .”
The prosecutor argued that a person pointing a gun at and shooting another showed an implied malice conscious disregard for human life.
As to first degree murder, the prosecutor listed the following elements, “ . . . that the human being was killed, the killing was unlawful, and it requires what is called express malice aforethought[,] [which is the i]ntent to kill.” The prosecutor argued that defendant was guilty of first degree murder because he loaded his shotgun with three cartridges of large buckshot and chased down the victim and his companions, with whom he was angry because they would not tell him where his runaway daughter had gone, and he aimed at and shot the victim as the latter was trying to get away from defendant, with the intent to kill him.
The prosecutor pointed out, as to a non-murder alternative verdict, “in this voluntary [manslaughter] imperfect self-defense . . . there is no malice aforethought, . . . because . . . the law says that . . . there’s no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another against imminent peril to life or great bodily injury.”
Defense counsel said during argument, “[Defendant] did not commit murder . . . because he did not have any intention to kill.” Rather, defense counsel asserted, defendant was guilty of voluntary manslaughter under the theory of imperfect defense of himself or his son. Counsel twice read the jury the instruction on this crime, the pertinent portion of which is as follows, “A person who kills another . . . in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully but does not harbor malice aforethought and is not guilty of murder.”
Neither counsel mentioned the inappropriate definition of malice during argument to the jury.
It is clear from the remarks of both attorneys that the malice required for the second degree murder verdict the jury rendered was either the intent to kill or implied malice, and not merely the intent to vex, annoy or injure or to do a wrongful act.
Finally, to conclude that the giving of the inapplicable definition of malice requires reversal necessitates the conclusion that the jury ignored the clear instructions it was given that second degree murder required that defendant manifested malice aforethought by “intend[ing] unlawfully to kill” the victim or by deliberately performing an intentional act, the natural consequences of which were dangerous to human life, and doing so “with knowledge of the danger to, and with conscious disregard for, human life.” We are certain that if the jury utilized the inapplicable definition of malice at all, it was as an added element to the above-stated requirements and not as a substitute for them. As the United States Supreme Court so aptly put it in Middleton, if this jury actually substituted the inappropriate definition of malice for the appropriate one, it would have “require[d] such a rare combination of extremely refined lawyerly parsing of an instruction, and extremely gullible acceptance of a result that makes no conceivable sense.” (Middleton, supra, 451 U.S. at p. 438 [124 S.Ct. at p. 1833].)
Cases dealing with the giving of the disputed malice instruction at a murder trial support our conclusion that the error was harmless. In People v. Waysman (1905) 1 Cal.App. 246, 248 and People v. Chavez, supra, 37 Cal. 2d at pages 656, and 666 through 667, the appellate court and California Supreme Court, respectively, concluded that the giving of correct malice instructions incorporated in the standard instructions on murder and manslaughter rendered any error in giving the inappropriate malice instruction harmless. (Accord, People v. Berry (1955) 44 Cal.2d 426, 432 [overruled on other grounds in People v. St. Martin (1970) 1 Cal.3d 524, 537], People v. Dice (1898)120 Cal. 189, 202, People v. Powell (1963) 210 Cal.App.2d 389, 393 and People v. Miceli (1951) 101 Cal.App.2d. 643, 650.)
In People v. Shade (1986) 185 Cal.App.3d 711 (Shade), cited by defendant, the appellate court reached the same conclusion, stating, “Although it was error for the court to have instructed on the basis of CALJIC No. 1.22, the error was harmless when the court also correctly instructed on malice aforethought as defined in Penal Code section 188 and embodied in CALJIC No. 8.11. [Citations.] This is so because, in these circumstances, reversal is required only when the reviewing court cannot determine from the record on which theory the verdict rested. [Citation.] Here the record supports only the ‘intent’ theory of malice. Defendant, while asking the victim how it felt to be beat up, intentionally and repeatedly hit the victim about the head and shoulders with a shotgun, rendering the victim’s face unrecognizable, while the victim lay helpless on the floor. This evidence clearly indicates defendant harbored a conscious disregard for life and supports the conviction based on the correct theory of malice.” (Id. at p. 715.)
See the second sentence of footnote 4, ante.
Similarly, here, the defendant, who had vast experience with his shotgun, shot the unarmed victim in the back with a shotgun round that contained fifteen .32-caliber projectiles indicating that he harbored either the intent to kill or a conscious disregard for life, far more than merely an intent to vex, annoy, injure or to do a wrongful act. Thus, there was abundant evidence of malice aforethought, which also contributes to our conclusion that the error in giving CALJIC No. 1.22 was harmless beyond a reasonable doubt. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130; People v. Chavez (2004) 118 Cal.App.4th 379, 390.)
We disagree with the defendant’s assertion that Shade is distinguishable from this case because the evidence here supported a voluntary manslaughter conviction on the theory that defendant was in good faith but, perhaps, unreasonably defending his son at the time he shot the victim. The version of events supporting such a theory was just one of three defendant offered over the course of the investigation of this crime and the trial. On the stand, defendant claimed he was afraid the victim or his male or female companion would beat or stab his son, yet he admitted that he had not seen anything in the hands of the three earlier and saw nothing in the victim’s hands just before he shot him. In contradiction to his claim that he was defending his son when he killed the victim, defendant testified that when he got out of his car and immediately shot the victim, he “just wanted to knock the[] [victim and his two companions] down, . . . [and] [¶] . . . [¶] [t]hey would just fall down until [he] got there and s[aw] who it was [so he could report them to the police], and let them get back up and run away” “but . . . [he] forgot that the bullets would go inside of [the victim] and hurt him.” Defendant testified that the victim was 20 feet from his son when the victim dropped to the ground after being shot, but at the time defendant fired, he could not see the victim, was not sure where he was in relation to his son and just fired into the dark. In fact, defendant testified that he did not know where his son was when he shot the victim and did not know “if [his son] was going to go towards [the victim] or stay[ing] where he was.” Defendant admitted he could not be sure the victim was running towards his son and at the last second before he fired, he could not say for sure whether his son was in danger. Defendant had told a defense investigator that the victim was running in a path that would have taken him within 15 to 20 feet from where his son was standing and that he could not say he fired the gun to protect his son. He added that he shot impulsively and he said “‘[M]y boy was probably safe[.]’” The female, who was closest to the victim when he was shot, testified that when the defendant’s son approached the victim after the latter had been shot, she did not see from whence the son had come. She did not mention him being near the victim before or at the time of the shooting.
The victim’s male companion had sustained brain damage before trial and his memory of the event was very sketchy, but he did not mention defendant’s son even being present at the time of the shooting. Defendant’s son did not testify.
As the appellate court commented in Shade, supra, 185 Cal.App.3d at page 715, “If malice is adjudged by the minimal standard of vexing or annoying, a jury would be hard-pressed to find its absence.” Here, because it was undisputed that the defendant had killed the victim, the only remaining element to establish murder was the existence of malice aforethought. If the jurors actually believed that that element could be met by proof of the minimal standard that defendant intended to vex or annoy the victim by killing him, all the other instructions they were given would have been superfluous and the prosecutor’s argument would have consumed a sentence or two.
For all the foregoing reasons (see People v. Chavez, supra, 118 Cal.App.4th at pp. 387-390 [the presence of other proper instructions, argument of counsel properly setting forth the requirements for conviction and strong evidence of guilt rendered erroneous instruction harmless beyond a reasonable doubt]), we conclude that the giving of the inappropriate definition of malice was “‘“unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.”’” (People v. Jetter (2005) 125 Cal.App.4th 1212, 1217, quoting People v. Mayfield (1997) 14 Cal.4th 668, 774.) It was not reasonably likely the jury determined that the correct instructions on malice required for second degree murder meant nothing at all. (People v. Rogers (2006) 39 Cal.4th 826, 873.)
Disposition
The judgment is affirmed.
I concur: RICHLI, J.
KING, J., Dissenting.
In this murder case, defendant contends, and the People do not dispute, that the court erred in giving the CALJIC No. 1.22 definition of malice. The only issue is whether that error is harmless. As the majority acknowledges, the applicable inquiry is whether the error was harmless beyond a reasonable doubt. (Maj. opn., ante, at pp. 14-15.) I disagree with the majority’s application of that standard here.
As the People acknowledge, courts have repeatedly held that it is error to give CALJIC No. 1.22 (or other instruction defining malice in terms of the Penal Code § 71 definition) in connection with a murder charge. (See, e.g., People v. Chavez (1951) 37 Cal.2d 656, 666-667; People v. Shade (1986) 185 Cal.App.3d 711, 715 (Shade); People v. Waysman (1905) 1 Cal.App. 246, 248; see also Use Note to CALJIC No. 1.22 (7th ed. 2003), p. 20 [“instruction should not be used as a definition of malice aforethought in a murder trial”]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 166, p. 781 [definition of malice in section 7 “should not be read to the jury in a murder case”]; cf. People v. St. Martin (1970) 1 Cal.3d 524, 537 [because malice aforethought for purposes of section 4500 has the same meaning as it has for murder, courts should not give CALJIC No. 1.22 when defendant is charged with violating section 4500].)
Viewing the erroneous instruction, in the context of the overall charge (see Middleton v. McNeil (2004) 541 U.S. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701]), the materiality of the error is apparent. In accordance with all the instructions given, jurors who are convinced that defendant unlawfully killed, but who harbor a reasonable doubt that defendant acted with malice as described in CALJIC No. 8.11, would nevertheless easily conclude that defendant acted with malice as defined in CALJIC No. 1.22; that is, with the intent to vex, annoy, injure, or do a wrongful act. (See, e.g., Shade, supra, 185 Cal.App.3d at p. 715 [“If malice is adjudged by the minimal standard of vexing or annoying, a jury would be hard-pressed to find its absence”].) A verdict based on the erroneous instruction would thus violate defendant’s due process right to be convicted of a crime only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime. (See Sandstrom v. Montana (1979) 442 U.S. 510, 520-521 [99 S.Ct. 2450, 61 L.Ed.2d 39]; In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].)2 The error is compounded in this case by the fact that the jury was further instructed that the crime of manslaughter occurs without the mental state of malice. (See CALJIC No. 8.37.) Thus, the jury was told, if they find defendant acted with malice, he cannot be guilty of manslaughter. Jurors who are further told that malice includes an intent to vex, annoy, or injure, would be compelled to reject a verdict of manslaughter if defendant harbored this minimally dangerous intent: Defendant intended to injure the victim, therefore he acted with malice (under the incorrect definition), therefore he did not commit manslaughter. If he did not commit manslaughter, such jurors might conclude, he must be guilty of murder.
The sole issue in this case is whether the error was harmless. In his opening brief, defendant, relying on Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182, asserted that per se reversal is required “[b]ecause the instructions violated the United States Constitution in a manner that can never be ‘harmless.’” In the respondent’s brief, the People relied on People v. Watson (1956) 46 Cal.2d 818, 826, and argued that “based on the evidence against [defendant], when weighed against his implausible defense, it is not reasonably probable that a result more favorable to [defendant] would have been reached had the challenged instruction been omitted.” At oral argument, the People abandoned their reliance on Watson, and asserted that the harmless error analysis is controlled by the standard for evaluating misinstruction on elements of an offense, as stated in People v. Harris (1994) 9 Cal.4th 407 (Harris).)3 Under this standard, the reviewing court must determine “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Id. at p. 424, quoting Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman); see also People v. Hudson, supra, 38 Cal.4th at p. 1013; People v. Mayfield, supra, 14 Cal.4th at p. 774.)4 The People have the burden of proving the error was harmless. (Chapman, supra, at p. 24.)
The Harris court relied heavily upon Yates v. Evatt (1991) 500 U.S. 391 [111 S.Ct. 1184, 114 L.Ed.2d 432] (Yates), disapproved on another point in Estelle v. McGuire, supra, 502 U.S. at page 73, footnote 4, which applied the Chapman standard to instructional error. (See Harris, supra, 9 Cal.4th at pp. 425-427.) The Yates court explained: “To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates, supra, at p. 403; see also Harris, supra, at p. 426.) Thus, in this case, the record must reveal that this jury considered the section 7 definition of malice unimportant in relation to everything else the jury considered.
This requires “two quite distinct steps. First, [the reviewing court] must ask what evidence the jury actually considered in reaching its verdict. . . . In answering this question, a court does not conduct a subjective enquiry into the jurors’ minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” (Yates, supra, 500 U.S. at p. 404.) As stated by the Harris court, “we must ultimately look to the evidence considered by defendant’s jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.” (Harris, supra, 9 Cal.4th at p. 428.)
Under the second step, the court must ask “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the [erroneous instruction].” (Yates, supra, 500 U.S. at p. 405; see also Harris, supra, 9 Cal.4th at pp. 426-427.) Yates and Harris make clear, however, that in order to “satisfy Chapman’s reasonable-doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the [erroneous instruction]. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the [pertinent] fact beyond a reasonable doubt, independently of the [erroneous instruction].” (Yates, supra, at p. 405, italics added; see also Harris, supra, at p. 426.)
Following Harris, the California Supreme Court, again relying upon Yates in evaluating the harmless error standard for failing to instruct on an element of the charged crime, stated: “In short, in applying the Chapman test . . ., an appellate court cannot simply reweigh the evidence to conclude a hypothetical reasonable jury would have found the existence of the missing element. Instead, the pertinent question is whether an examination of the record in this case indicates this jury would have found the missing element.” (People v. Flood (1998) 18 Cal.4th 470, 513; see also People v. Lewis (2006) 139 Cal.App.4th 874, 885-886 [“The harmless error inquiry, the [Yates] court explained, is not directed at what a reviewing court believes a jury would have done in the absence of the error, but on whether the jury’s verdict actually rested on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption”].)
This standard was applied in Jeter, supra, 125 Cal.App.4th 1212, a case cited by the People. In Jeter, an inmate at Calipatria State Prison named Hassan was talking with a prison chaplain. The defendant, also an inmate, walked up to Hassan and, according to the chaplain, “socked” him. (Id. at p. 1214.) Hassan then grabbed the chaplain and said, “‘That guy just stuck me.’” (Ibid.) Defendant walked toward a gate and tossed an object through it. When questioned, defendant admitted the assault. (Id. at pp. 1214-1215.) He was charged with assault by a prisoner serving a life sentence under section 4500. This section provides, in part: “Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole.” The phrase “malice aforethought” in this statute has the same meaning as it has for murder convictions. (Jeter, supra, at p. 1216.) At trial, the chaplain’s testimony, the defendant’s admission, evidence that a sharp piece of metal had been found two feet outside the gate, and a nurse’s testimony that Hassan had suffered a four-inch deep wound were admitted into evidence. (Id. at p. 1215.) Hassan testified that defendant did not stab him, and that if he testified otherwise he would be labeled a snitch. (Id. at p. 1216.) The trial court instructed the jury with both a modified version of CALJIC No. 8.11 and with the inappropriate definition of malice in CALJIC No. 1.22. (Jeter, supra, at p. 1216.) The jury convicted him, and the Court of Appeal reversed. Applying the Chapman/Harris standard, the court held: “On this record of conflicting instructions, it is impossible to know the jurors unanimously found [the defendant] committed the offense with malice aforethought. We therefore reverse the section 4500 conviction because we cannot find beyond a reasonable doubt that these conflicting instructions did not contribute to the verdict obtained.” (Jeter, supra, at pp. 1217-1218.)
I do not perceive any disagreement with the foregoing standard from the majority’s opinion in this case. I do disagree with its application of these principles. Based upon its review of the evidence and the argument of counsel, the majority concludes that it is “certain that if the jury utilized the inapplicable definition of malice at all, it was as an added element to the above-stated requirements and not as a substitute for them.” (Maj. opn., ante, at p. 13.) This, however, is precisely the kind of misstep the Yates court and its progeny have cautioned us to avoid. We are not to speculate (even if we are “certain” about our speculation) what a hypothetical jury may have done in the absence of the error; rather, we must determine whether the jury’s verdict in this case actually rested on the correct instruction. (People v. Flood, supra, 18 Cal.4th at p. 513; see also People v. Lewis, supra, 139 Cal.App.4th at pp. 885-886.) The majority has pointed to nothing in the record that compels this conclusion.
I believe the correct application of the standard requires reversal. Initially, I note that, as the People point out, there is ample evidence by which the jury could have convicted defendant of murder under the correct instruction: Defendant retrieved a shotgun from the trunk of his car and set off in search of people he believed were stealing his truck; he found them in a field, got out of his car, aimed the gun at the victim, and shot him. From such evidence, the jury could easily find malice aforethought under proper instructions. As explained above, however, we must consider not only the evidence supporting the conviction under the correct instruction, but also the evidence supporting a conviction under the incorrect instruction—that is, evidence that defendant acted with the intent to vex, annoy, injure, or do a wrongful act. Relevant to this issue, defendant testified that he loaded the shotgun for his protection, and that as he got out of his car in the field, his intention was to “knock them down.” He “forgot that the gun was dangerous” and “that the bullets would go inside of him and hurt him.” On cross-examination, defendant was asked if he was trying to kill Jerel with the shotgun. He said he was not; that he “was trying to knock him down so [he] could go see who it was.” That he did not intend to kill Jerel is consistent with his statements to the 911 dispatcher that, “I didn’t go out trying to kill nobody. I just wanted to protect myself and try [to] find out who they were so I could get you guys to get [them].” This, in turn, is supported by his testimony that he had previously told his son to call the police. If believed, such evidence supports a finding of malice—an intent to injure or do a wrongful act—under the incorrect instruction, and not under the correct instruction.
In addition, there is evidence that tends to support the defense that he held an actual but unreasonable belief in the necessity to defend another. Defendant testified that he believed the would-be thieves went into the field where he had seen his son heading. He panicked, raced around the block, and drove onto the field. As he entered the field, someone jumped up and appeared to run toward his son. Believing his son was in danger, defendant shot toward the perceived attacker to “knock [him] down.”
Next, I look to whether the record reveals whether the jury in this case actually rested its verdict on the evidence establishing malice aforethought based on the correct instruction, and not on the incorrect instruction. (See Yates, supra, 500 U.S. at p. 405; Harris, supra, 9 Cal.4th at p. 426.) In some cases, this inquiry is satisfied when the jury’s verdicts reveal that the jurors necessarily found the essential fact under other properly given instructions. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 192; People v. Hagen (1998) 19 Cal.4th 652, 670-671.) Here, however, there is nothing in the verdicts that implies the jurors unanimously found the existence of malice based upon the correct definition. The jurors’ rejection of first degree murder in favor of second degree murder sheds no light on whether the jurors relied on the correct definition of malice. The true findings on the enhancement allegations reveal only that the jurors found that defendant personally and intentionally discharged a firearm that caused the victim’s great bodily injury or death. (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d).) Such findings are consistent with a conviction for murder based upon either definition of malice.
Nor can it be said that the misinstruction on malice affected only “a peripheral issue that was never actually in dispute at trial,” or that “all of the evidence at trial relevant to the issue” of defendant’s mental state indicated that he acted with malice (as properly defined). (See People v. Flood, supra, 18 Cal.4th at pp. 505-507.) The defendant’s mental state was the primary disputed issue at trial and evidence on the point was in conflict. The incorrect malice instruction, therefore, cannot reasonably be deemed “unimportant in relation to everything else the jury considered” in this case. (See Yates, supra, 500 U.S. at p. 403.) There is, quite simply, nothing in this record from which I can determine whether the jury actually made its malice finding based upon the correct definition. As in Jeter, it is “impossible to know the jurors unanimously found [the defendant] committed the offense with malice aforethought.” (Jeter, supra, 125 Cal.App.4th at pp. 1217-1218.) Accordingly, I cannot, conclude beyond a reasonable doubt that the erroneous instruction did not contribute to the verdict in this case.
The majority concludes that the present case is similar to Shade, supra, 185 Cal.App.3d 711. I believe that Shade is not only distinguishable, but supports reversal here. In Shade, the defendant initially beat an intruder, but did not kill him. (Id. at pp. 715-716.) The defendant then left the house, chased a van he suspected was related to the intruder’s attack, went to his girlfriend’s house, got a gun and some ammunition, then returned to the house where the intruder was still lying on the floor. The defendant searched the house, then resumed his attack on the unconscious intruder, beating him so badly that his face was unrecognizable, and killing him. (Id. at pp. 713-714.) The trial court instructed the jury with both CALJIC Nos. 1.22 and 8.11. The Court of Appeal held that this was error because it presented the jury with “two definitions of malice, one legally incorrect, and one legally correct.” (Shade, supra, at p. 715.) The Court of Appeal pointed out that if the evidence supported voluntary manslaughter (i.e., an unlawful killing without malice), then “the jury may have found malice and convicted defendant [of murder] based on the incorrect definition.” (Ibid.) The court, however, found that the error was harmless because there was no evidence to support any theory of voluntary manslaughter. (Ibid.) The reviewing court could, therefore, determine from the record that the jury did not rely on the erroneous instruction. Here, by contrast, there are facts that would support a finding of voluntary manslaughter based upon an honest, but unreasonable, belief that it was necessary for defendant to defend his son against attack. If the jurors believed defendant’s testimony, they could reasonably have concluded that defendant committed voluntary manslaughter. Thus, unlike Shade, in which the record supported “only the ‘intent’ theory of malice,” the record in this case supports both murder (under a correct definition of malice) and manslaughter. As the Shade court indicated, when, as here, “the jury may have found malice and convicted defendant [of murder] based on the incorrect definition,” the judgment should be reversed. (Ibid.)
For the foregoing reasons, I respectfully dissent.