Opinion
B197931
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY STEWART, Defendant and Appellant.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Michael Anthony Stewart appeals from the judgment entered following his conviction by jury of petty theft with an admission that he suffered a prior theft-related conviction (Pen. Code, § 666), and with a court finding that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for three years. Appellant claims trial errors occurred. We affirm the judgment.
FACTUAL SUMMARY
1. Peoples Evidence.
Viewed in accordance the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on November 25, 2006, appellant was with Charmayne Porter in a Long Beach store. Appellant put clothes belonging to the store inside a store bag in a shopping cart. Porter removed from a store rack additional clothes belonging to the store and gave them to appellant, who removed them from their hangers and put the additional clothing in the bag. Appellant and Porter went to the cashier, and appellant paid for some items in the cart but not for the clothing in the bag. Porter and later appellant exited the store, and appellant still had the clothing. Antiwan Cole, an asset protection officer for the store, detained appellant. Porter fled.
Cole escorted appellant to the stores security office and asked him to put everything which was not paid for on a table. Appellant removed the clothes from the bag and put them on the table. Appellant told Cole that appellants name was Johnny Leak.
2. Defense Evidence.
In defense, appellant testified that Porter was his girlfriend and, on November 25, 2006, he was with her in the store. Appellant bought electronics items and put them in a bag in the cart. He had not seen Porter put anything in the bag, and he had been unaware that the clothing was in the bag. Appellant obtained dog food and cleaning items and put them in the cart but not in the bag. After he went to the cash register in the front of the store and paid for the dog food and cleaning items, he went towards the front door. However, before he exited the store, he was detained with all the items, including those inside the bag. At trial, appellant denied knowledge that a crime had occurred. Appellant admitted having suffered four prior convictions, that is, for burglary, forgery, possession of drugs for sale, and purchase or transportation of a controlled substance.
A defense investigator testified that Porter told the investigator that Porter had been with appellant at the store on the above date and that Porter had taken the items which had not been purchased.
CONTENTIONS
Appellant claims (1) the trial court gave incomplete preinstructions which violated Penal Code section 1122, (2) the trial court erroneously failed to preinstruct on the presumption of innocence and the definition of proof beyond a reasonable doubt, (3) the trial court erroneously failed to instruct on aiding and abetting, (4) the cumulative instructional error violated appellants right to a fair trial, and (5) appellant was denied effective assistance of counsel.
1. The Trial Court Did Not Reversibly Err Regarding Preinstructions.
a. Pertinent Facts.
Prior to voir dire of the prospective jurors, the court commented to them concerning their function. According to the reporters and clerks transcripts, at 3:15 p.m. on February 27, 2007, the jury was sworn. Later, the court, using a modified CALJIC No. .50 instruction, preinstructed the jury concerning its basic functions, duties, and conduct. However, the record does not reflect that the court preinstructed the jury "not converse among themselves, or with anyone else, on any subject connected with the trial" within the meaning of Penal Code section 1122, subdivision (a). After the court preinstructed the jury, the jury heard evidence.
The court stated, inter alia, "All we ask of you is to come in with an open mind, with a view that you want to do justice, you want to follow the law and make the right decision on the facts that are presented, the evidence that is presented to you and how you see the facts, how you see what happened, talk about it with your fellow jurors and then come to the right decision on the evidence and the law." The court also stated, "All we want is you to come here, use your life experiences to determine the facts of the case from the credibility of the witnesses as you see them and discuss them with your fellow jurors and come to conclusions on what you believe happened, what is truth, and rest your verdict upon fact determinations, apply the law as you see the facts, you talk about your thinking with your fellow jurors, and you come to a proper verdict based upon the evidence and the law. Thats all we ask of jurors."
CALJIC No. .50 is entitled "Pre-trial admonition (Penal Code[,] § 1122, subdivision (a)."
The court told the jury, "Here are your basic functions, duties, and conduct. At the conclusion of the case, I will give you more instructions on the law. All of these instructions, whether given now or later, are of equal importance." The court then preinstructed the jury, inter alia, to base its decisions on the facts and the law, determine the facts from the evidence received in the trial and not from any other source, apply the law as the court stated it to the jury, and not to be influenced by pity toward appellant or by prejudice against him. The court also preinstructed the jury that statements by counsel are not evidence, and not to conduct an independent investigation.
The court later excused the jury for the day, and subsequently adjourned for the day. The record does not reflect that, at the time of this adjournment, the court instructed the jury that it was their "duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them" within the meaning of Penal Code section 1122, subdivision (b).
On February 28, 2007, court reconvened, the jury heard evidence, and the court instructed the jury. The jury retired to deliberate, and, at 3:15 p.m., announced their verdict. Various recesses occurred on February 27, and February 28, 2007.
The court gave to the jury, inter alia, CALJIC Nos. 17.40, concerning the duty to deliberate, and 17.41 concerning how jurors should approach their task. CALJIC No. 17.40 stated, in relevant part, "The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision." CALJIC No. 17.41 stated, "The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts."
b. Analysis.
Appellant claims the trial court reversibly erred by (1) failing to preinstruct jurors that they were not to form an opinion about the case or converse among themselves prior to deliberations, and (2) failing to give at the breaks in the trial the admonitions specified in Penal Code section 1122, subdivision (b). He argues the incomplete and inadequate instructions violated Penal Code section 1122. His claim is unavailing.
Penal Code section 1122, states, in relevant part, "(a) After the jury has been sworn and before the peoples opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; . . . [¶] (b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, . . . be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them."
Appellants argument that the trial court gave incomplete and inadequate instructions in violation of Penal Code section 1122 is partially unavailing. "It is of course true that a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights. ([Pen. Code,] § 1259; People v. Hillhouse [(2002)] 27 Cal.4th [469,] 505-506; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) On the other hand, `"Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." [Citation.] [Citations.]" (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156, italics added.)
Accordingly, notwithstanding appellants citation to Penal Code section 1259, he waived the issue of whether the courts preinstructions should have been modified by the addition of clarifying or amplifying language indicating that jurors were not to form an opinion about the case or converse among themselves prior to deliberations, because appellant failed to request appropriate clarifying or amplifying language. (Cf. People v. Palmer, supra, 133 Cal.App.4th at p. 1156.)
As to the merits and Penal Code section 1122, subdivision (a), the trial court, after the jury was sworn and before the Peoples opening address, preinstructed the jury to some extent on its basic functions, duties, and conduct. However, the trial court did not, during that period, preinstruct jurors that, as appellant puts it, they were not to form an opinion about the case or converse among themselves prior to deliberations.
We note Penal Code section 1122, subdivision (a), requires the trial court to instruct generally on the jurys basic functions, duties, and conduct. The subdivision does not expressly require that the court preinstruct jurors not to form an opinion about the case. It appears the trial court did not, as required by subdivision (a), preinstruct jurors that they shall not converse among themselves, or with anyone else, on any subject connected with the trial.
As to Penal Code section 1122, subdivision (b), that subdivision applies only when the court continues proceedings to another day. (Cf. People v. Moore (1971) 15 Cal.App.3d 851, 852-853.) The subdivision does not apply to a recess, that is, to a temporary suspension of proceedings for a period less than a day (id. at p. 853.) or to breaks in a trial for a period less than a day. Accordingly, in the present case, there was only one adjournment of the court before the submission of the cause to the jury within the meaning of Penal Code section 1122, subdivision (b), and only one such adjournment at which the trial court was obligated to give the admonitions required by that subdivision.
However, even if the trial court erred, there is no need to reverse the judgment. There is no dispute that noncompliance with Penal Code section 1122, is not reversible error absent prejudice as evaluated under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. In the present case, appellant never complained about any violation of Penal Code section 1122 at the time that section applied. Nothing in the record indicates jurors formed an opinion about the case, conversed among themselves prior to deliberations, or did anything that would have violated instructions given pursuant to Penal Code section 1122.
This was a short trial. The jury heard, as part of its final charge, instructions (CALJIC Nos. 17.40 and 17.41) indicating that jurors were to decide the case after discussing the evidence with other jurors, and that a juror was not to hesitate to change an opinion which the juror viewed as wrong. The jury is presumed to have followed those instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852) and those instructions lessened the impact of any failure by the trial court, earlier during this short trial, to comply with Penal Code section 1122.
We note Penal Code section 1122 governs trials generally, and contains nothing that specifically relates to the particular crime, or elements thereof, alleged against appellant. Moreover, the present case was largely a credibility conflict. The People presented evidence not only of theft, but that appellant provided a false name to Cole, which evidenced consciousness of guilt. Appellant admitted at trial that he had suffered four prior convictions. Any trial court error in failing to comply with Penal Code section 1122 was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)
To the extent appellant claims the trial court violated Penal Code section 1122 or otherwise erred by commenting to prospective jurors that they should talk with one another (see fn. 1), we reject the claim because the section applies to sworn, not merely prospective, jurors, and, in any event, the alleged error was not prejudicial.
2. The Trial Court Did Not Erroneously Fail To Preinstruct on the Presumption of Innocence and the Definition of Proof Beyond a Reasonable Doubt.
a. Pertinent Facts.
The trial court did not preinstruct on the presumption of innocence, or the standard of proof beyond a reasonable doubt. The trial court did instruct on those issues using CALJIC No. 2.90 as part of the courts final charge to the jury.
First, as mentioned, the trial court gave some preinstructions. Accordingly, appellant waived the issue of whether the courts preinstructions should have been modified by the addition of clarifying or amplifying language on the presumption of innocence, and the standard of proof beyond a reasonable doubt, because appellant failed to request appropriate clarifying or amplifying language on those issues. (Cf. People v. Palmer, supra, 133 Cal.App.4th at p. 1156.)
As to the merits, Penal Code section 1122, subdivision (a), requires the trial court to preinstruct the jury generally on their basic functions, duties, and conduct. Moreover, although the subdivision specifies what those preinstructions must include, the subdivision does not expressly refer to instructions on the presumption of innocence, or on the standard of proof beyond a reasonable doubt.
Moreover, in People v. Crawford (1997) 58 Cal.App.4th 815, a case in which the trial court failed to instruct on these principles after the presentation of evidence, the court stated, "There can be little question that instruction on the presumption of innocence and the reasonable doubt standard of proof after the presentation of evidence places the concepts at center stage for consideration during deliberations. . . . [¶] . . . Instructions given after the evidence has been received and before deliberations commence is one way of protecting an accuseds constitutional right to be judged solely on the basis of proof adduced at trial." (Id. at pp. 825-826, second through fourth set of italics added.)
A trial court has wide discretion in determining the timing of jury instructions. (People v. Chung (1997) 57 Cal.App.4th 755, 758.) Moreover, a trial court is under no duty to give repetitive instructions. (Cf. People v. Wright (1988) 45 Cal.3d 1126, 1134.) Appellant cites no case holding that criminal convictions must be reversed unless a jury has been twice instructed (that is, once before, and once after, the presentation of evidence) on the presumption of innocence, and the standard of proof beyond a reasonable doubt. No instructional error occurred.
3. The Trial Court Did Not Erroneously Fail to Instruct on Aiding and Abetting.
Appellant claims the trial court erroneously failed to instruct on aiding and abetting. We disagree. Theft by larceny requires, inter alia, the caption and asportation of personal property with intent to steal. (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. 4; People v. Davis (1998) 19 Cal.4th 301, 304-305.) A "person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.) If a defendant performs an element of an offense, the defendant is a direct perpetrator, not an aider or abettor. (People v. Cook (1998) 61 Cal.App.4th 1364, 1368-1371.) A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944; People v. Flannel (1979) 25 Cal.3d 668, 684.)
In the present case, based on the Peoples evidence, appellant and Porter each took store clothing, Porter gave the clothing she took to appellant, and appellant put all the clothing in the bag in the cart. Appellant exited the store with the clothing; therefore, he committed the theft elements of caption and asportation, and was guilty of theft as a direct perpetrator and not as an aider and abettor. Based on the defense evidence, appellant lacked intent to steal and committed no crime. The trial court did not err by failing to instruct on the elements of aiding and abetting, because there was no substantial evidence to support the giving of such an instruction. What the prosecutor argued to the jury does not compel a contrary conclusion.
In light of the above, we reject appellants claim that cumulative instructional error occurred which denied him his right to a fair trial. We also reject appellants claims that his trial counsels failure to object to the trial courts alleged failure to (1) preinstruct, and instruct, according to Penal Code section 1122, (2) preinstruct on the presumption of innocence and the standard of proof beyond a reasonable doubt, and (3) instruct on aiding and abetting denied him effective assistance of counsel. In each instance, no prejudicial constitutionally-deficient representation occurred. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
DISPOSITION
The judgment is affirmed.
We concur:
KLEIN, P.J.
CROSKEY, J.