Opinion
H025354.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. WAYNE IWAO NISHINAKA, Defendant and Appellant.
A jury convicted defendant Wayne Iwao Nishinaka of one count of indecent exposure with a prior, a felony (Pen. Code § 314, subd. (1)). Imposition of sentence was suspended and defendant was placed on probation for five years, with conditions that included one year in county jail, completion of psychological treatment, registration as a sex offender (§ 290), and payment of restitution.
During trial, out of the presence of the jury, defendant admitted three prior misdemeanor convictions for indecent exposure (§ 314, subd. (1)). The jury heard evidence regarding one of the priors. According to the probation report, defendant had five prior convictions for indecent exposure, including four misdemeanors and one felony.
All further statutory references are to the Penal Code.
On appeal, defendant contends that the court erred in its responses to jury questions regarding the reasonable doubt standard of proof. We find no error and affirm the judgment.
FACTS
Prosecutions Case
At approximately 5:20 p.m. on November 3, 2001, 21-year old M.V. (Victim) was sitting in her apartment, talking to her mother on the telephone. The back door to Victims apartment was wide open; the screen door was closed and locked. From her position, Victim could see into the carport of the apartment building. While she was on the telephone, Victim observed defendant, who was one of her neighbors, walk into the carport. He was wearing blue shorts, a white t-shirt, and sandals. He was carrying a Styrofoam cup.
That same day, another one of Victims neighbors had purchased a new car, which was parked in the carport. Defendant looked straight at Victim and started gesturing toward the new car with his Styrofoam cup, as if admiring the car. Victim said, "Nice car" or "New car." Victim then turned her attention back to her telephone conversation.
Shortly thereafter, out of the corner of her eye, Victim noticed defendant waving at her. She looked toward the carport and saw defendant waving his arms and crossing them in front of his upper body. Victim made eye contact with defendant. Defendant stopped waving his arms and smiled at Victim. He dropped his arms and looked down at the lower portion of his body. Victim followed his gaze and saw his exposed penis. Defendants shorts were down around his ankles. Victim did not see any underwear. She did not know whether he had an erection, as she had not seen an adult penis before. She described his penis as "hanging down."
Victim said, "Oh, my God," got up, and closed and locked her back door. Victim ended the telephone conversation with her mother and called the police.
J.A. testified on behalf of the prosecution regarding one of defendants prior incidents of indecent exposure that occurred at the same apartment complex as the offense in this case. The prosecution introduced this evidence to show a propensity to commit the offense.
On February 27, 1990, J.A. was in her kitchen, baking cookies. She looked outside her kitchen window and saw defendant standing in the courtyard outside her apartment. He was wearing a white t-shirt, blue shorts, and flip-flops. J.A. looked down at her kitchen counter. When she looked out her window a second time, she saw defendant standing in the courtyard with his erect penis in his hand, facing her window. He was not masturbating. J.A. closed the blinds on her kitchen window and called the police.
The trial court advised the jurors that, as a result of the incident involving J.A., defendant had entered a plea of no contest and was subsequently convicted of a misdemeanor violation of section 314.
Defendants Case
Defendant did not testify. Defense counsel attempted to impeach Victims credibility with inconsistencies between her testimony in court and her statement to the police regarding whether she had waved at defendant when she first saw him, the direction defendants body was facing when he exposed himself to her, and whether he had touched his penis. Defense counsel also attempted to impeach Victim with evidence that she did not properly recall the color of her neighbors new car or the direction it was parked in the carport. Defendant argued that Victims testimony was not credible and that the prosecution had not met its burden of proving that the offense had occurred beyond a reasonable doubt.
DISCUSSION
Trial Courts Responses to the Jurys Questions
One of the issues at trial was whether defendant had the specific intent required to commit the offense of indecent exposure. Section 314, subdivision (1) provides: "Every person who willfully and lewdly . . . [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; . . . is guilty of a misdemeanor." The second and each subsequent conviction under section 314, subdivision (1) is a felony. (§ 314.)
The jury was instructed pursuant to CALJIC No. 3.31 that in order to commit the offense of indecent exposure, "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists[,] the crime to which it relates is not committed. [¶] The specific intent required is included in the definitions of the crime set forth elsewhere in these instructions."
The jury was instructed pursuant to CALJIC No. 10.38 that "Every person who willfully and lewdly exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed, is guilty of a violation of Penal Code section 314, subdivision (1), a crime. [¶] `Willfully means an intentional exposure of ones person or private parts. [¶] `Lewdly means with specific intent to direct public attention to ones persons genitals for the purpose of ones own sexual arousal or gratification, or that of another, or to annoy or offend others. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person intentionally exposed his private parts in a public place or in any place where there were present other persons to be offended or annoyed; and [¶] 2. That person did so with the specific intent to direct public attention to his person or genitals for the purpose of his own sexual arousal or gratification, or that of another, or to annoy or offend others." The jury was also instructed pursuant to CALJIC No. 2.02 regarding the sufficiency of circumstantial evidence to prove the intent element of the offense.
The jury was instructed as follows pursuant to CALJIC No. 2.02: "The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Count 1 unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to specific intent permits two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
After deliberating for two hours and 35 minutes, the jury submitted the following written questions to the court: "What are the standards for determining reasonable doubt as to purpose, both general and specifically, to the four items given in [CALJIC No. 10.38], item — `sexual arousal, `gratification, `annoy, `offend[?]" and "Do reasonable doubts have to be extracted or derived from evidence or lack of evidence?"
The trial judge responded to the second question in writing, stating: "You are to determine reasonable doubt from the instructions and from the evidence. Please feel free to submit additional questions." The court also responded to the first question in writing, stating: "See my answer to Question #2."
After deliberating for almost another hour, the jury submitted the following question to the court: "Is `satisfying some urge the same as `gratification under the definition of CALJIC 10.38.2 [sic]?" The court responded in writing, stating: "Please follow the exact language of the instructions. Please feel free to follow up with additional questions."
There is no CALJIC No. 10.38.2. Presumably, the jury used the number "10.38.2" to refer to subparagraph 2 of CALJIC No. 10.38
Parties Contentions on Appeal
Defendant contends that the trial courts response to the jurys questions about the reasonable doubt standard was erroneous and had the effect of reducing the prosecutions burden of proof. Defendant argues that the jurys questions required the court to instruct the jury that the prosecution had to prove defendants intent and that defendants intent could not be derived from a lack of evidence. The Attorney General asserts that defendant waived this issue by not requesting additional explanation of the jury instructions in the trial court. The Attorney General also contends that the trial court did not abuse its discretion when it referred the jurors to the jury instructions and that the alleged error was harmless.
Waiver
The Attorney General argues that defendant waived any claim of error regarding the courts responses to the jurys questions by failing to object in the trial court. The Attorney General relies on People v. Medina (1990) 51 Cal.3d 870, 902 (Medina ). During jury deliberations in the sanity phase of the murder trial in Medina, the jury requested clarification of the basic definition of insanity and asked questions related to the meaning of "mental illness." (Id. at p. 900.) "After consulting with counsel, and with their approval, the court advised the jury that the court could not directly answer the inquiry, and that the jury should decide the matter on the basis of the evidence in the case." (Ibid.) On appeal, the defendant complained that the courts response to the jurys inquiry was inadequate. After addressing the merits of the defendants argument, the court stated "that defense counsels approval of the courts limited response to the jurys inquiry should bar defendant from contending on appeal that a more elaborate response should have been made. If defendant desired such a response, he should have proposed it." (Id. at p. 902.)
Other cases have found waiver without addressing the merits of the defendants claim. (See e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [where "defendant both suggested and consented to the responses given by the court, the claim of error has been waived"] and People v. Bohana (2000) 84 Cal.App.4th 360, 373 [where the defendant "consents to the trial courts response to jury questions during deliberations, any claim of error with respect thereto is waived"].)
The record in this case is silent regarding whether defendant suggested, consented to, or objected to the trial courts responses to the jurys questions. The record does not include the discussions between the court and counsel regarding the courts responses to the jurys questions. However, defendant concedes, in his opening brief, that he failed to object in the trial court.
Defendant argues that his claim is cognizable on appeal in spite of his failure to object because it involves instructional error that affects his substantial rights. Defendant cites section 1259, which provides in part: "The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." Since the jurys questions and the courts responses related to jury instructions regarding the reasonable doubt standard and the prosecutions burden of proof at trial, we conclude that they affected defendants substantial rights. We shall therefore review defendants claim on the merits.
Standard of Review
"An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) A trial court abuses its discretion only when its ruling "exceeds the bounds of reason, all of the circumstances before it being considered." (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
"In reviewing a claim of error in jury instructions in a criminal case, [an appellate court] must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] [The reviewing court] may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.]" (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331 (Moore).)
The Trial Court Did Not Err in its Responses to the Jurys Questions
Section 1138 provides in relevant part: "After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given . . . ."
Our Supreme Court discussed the trial courts duty under section 1138 in People v. Beardslee (1991) 53 Cal.3d 68, 97, stating: "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]"
The Moore court addressed this point further and explained that the trial court is not required to elaborate "on the standard instructions in every instance. When the original instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jurys inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]" (Moore, supra, 44 Cal.App.4th at p. 1331 citing People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Before the jurors began deliberating, the trial court instructed the jury regarding the prosecutions burden of proof and the reasonable doubt standard pursuant to CALJIC No. 2.90, which provides: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
Section 1096a provides: "In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." The language of CALJIC No. 2.90 is almost identical to that of section 1096. Thus, according to section 1096a, the instruction given in this case was sufficient to instruct the jury on the presumption of innocence and the reasonable doubt standard.
Section 1096 provides: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: `It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. "
Furthermore, "appellate courts have long cautioned against `an impromptu instruction on reasonable doubt . . . because varying from the standard is a `perilous exercise. [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 503-504.) "[W]ell-intentioned efforts to `clarify and `explain [reasonable doubt] have had the result of creating confusion and uncertainty, and have repeatedly been struck down by the courts of review of this state." (People v. Garcia (1975) 54 Cal.App.3d 61, 63.)
When the jury asked the court what the standards were for determining reasonable doubt as to the intent element of the offense and whether reasonable doubt was to be derived from the evidence or a lack of evidence, the court referred the jurors back to the original instructions and told them they were to determine reasonable doubt from the instructions and the evidence. As noted above, the court was within its discretion to respond to the jurys inquiries in this manner. Furthermore, given the perils attendant to clarifying or explaining the reasonable doubt standard, the courts decision to refer the jurors to the original instructions was prudent.
Defendant argues that the portion of the courts response that told the jurors that they must determine reasonable doubt from the evidence is problematic. He asserts that the courts response did not inform the jury that the prosecution had to prove defendants intent and that intent could not be inferred from a lack of evidence. Defendant argues that the courts response shifted the burden to the defendant to prove that he did not have the requisite intent, thereby decreasing the prosecutions burden of proof.
The jury asked whether reasonable doubt was to be "derived from evidence or lack of evidence." The court told the jury that it was to "determine reasonable doubt from the instructions and the evidence." The courts response was in writing, on the same sheet of paper in which the question was set forth. Contrary to defendants assertion, the courts response told the jurors that they were to determine reasonable doubt from the evidence and not the lack of evidence.
In addition, the jury was instructed that the prosecution had the burden of proving defendants guilt beyond a reasonable doubt (CALJIC No. 2.90), that the prosecution had to prove each of the elements of the offense, including intent (CALJIC No. 10.38), and regarding the use of circumstantial evidence to prove intent (CALJIC No. 2.02). Thus, there is no merit to defendants contention that the jury was not instructed that the prosecution had to prove intent.
See page 9 of this opinion for the text of CALJIC No. 2.90.
See page 4 of this opinion for the text of CALJIC No. 10.38.
See footnote 3 for the text of CALJIC No. 2.02.
Defendants reliance on People v. Gonzales (1999) 74 Cal.App.4th 382, 388-391 (Gonzales) is misplaced. The defendant in Gonzales was convicted of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)). The court of appeal concluded that the trial court erred by failing to instruct the jury on the defense of accident. The court reasoned that there was substantial evidence that supported the defense, from which the jury could have concluded that the defendant did not have the requisite intent to commit the charged offense, and noted that defense counsel had argued this theory to the jury. (People v. Gonzales, supra, 74 Cal.App.4th at pp. 389-390.) The court also concluded that the trial court compounded its error when it failed to instruct regarding the defense of accident in response to jury inquiries regarding the relationship between willful and accidental conduct. (Id. at pp. 390-391.) In this case, the jury was properly instructed regarding the reasonable doubt standard in the first place and the original instructions sufficiently explained the point on which the jury requested clarification.
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in the responses it gave to the jurys questions. Since we find no error, we shall not reach defendants arguments regarding prejudice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.