Opinion
F049988
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. RAMIRO CHAVEZ, JR., Defendant and Appellant.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
On May 17, 2005, the Fresno County District Attorney filed an information in superior court charging appellant Ramiro Chavez, Jr. with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with infliction of great bodily injury on a person 70 years of age and older (§ 12022.7, subd. (c)), a serious and violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise indicated.
On May 18, 2005, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegation.
On November 9, 2005, the trial court rejected appellants plea of nolo contendere.
On January 10, 2006, the Fresno County District Attorney filed a first amended information charging appellant with assault with a deadly weapon (§ 245, subd. (a)(1)) with infliction of great bodily injury (§ 12022.7, subd. (c)), a serious and violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), (23)).
On the same date, jury trial commenced.
On January 17, 2006, the jury returned verdicts finding appellant guilty of the substantive count and finding the special allegation to be true.
On February 24, 2006, the court denied appellant probation and sentenced him to a total of nine years in state prison. The court imposed the upper term of four years on the substantive count and a five-year enhancement on the related great bodily injury count. The court imposed a $1,800 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a $20 court security fee (§ 1465.8, subd. (a)(1)). The court also awarded 413 days of custody credits.
On March 10, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At trial, Jose Zamora testified he had been born in Mexico in 1927 and had lived in the Sanger area for almost 20 years. Zamora said he had done agricultural field work and more recently sold nopales door-to-door for about one year. Zamora explained that nopales are edible portions of the cactus plant.
On March 2, 2005, Zamora was selling bags of nopales on a door-to-door basis. He knocked on the door of appellants apartment. Appellant came outside, stood at the door, and held a knife. Zamora departed appellants home. Zamora did not want to have problems with anyone and did not tell anyone about the knife incident. Zamora said he sold nopales to friends and strangers but he had never seen appellant before that date.
After Zamora departed appellants home he went to purchase more nopales for resale. After making his purchase, Zamora walked down J Street, the street on which appellants home was located. Appellant caught up to Zamora from behind and struck Zamora with what the latter described as a "bat." Zamora said appellant hit him in the head with the bat "[a] bunch" and then hit Zamoras arm and back when the latter attempted to deflect appellants blows. Zamora said he suffered a broken arm, bruised back, and cut head and was treated at a hospital. After striking Zamora with the bat, appellant tossed all of Zamoras cactus. At trial, Zamora said his left arm was useless to the point that he could not even bathe. He also said he was experiencing pain every day and could not remember things because of the beating he experienced.
After the incident with the "bat," Zamora spoke with Sanger Police Officers Rodney Jones and Daniel Silva. The latter served as a translator for Zamora, who did not understand English. From an ambulance, Zamora spoke with Officer Jones and identified appellant as his assailant.
M.E. testified he was living on J Street in Sanger and was 15 years old on March 2, 2005. M.E. said he and his brother were watching television in their living room when they saw two men outside the screen door of their residence. M.E. described the behavior of the two men this way:
"... I looked and I saw the old man. He was like trying to run with his little basket case thing, and he was trying to run away, but at the same time block his hand. Thats when I saw the stick, and I got up. And I looked, and I saw the person that was hitting him, you know, hitting him hard. And I saw him blocking it with his hands, and he left his basket there. And he turned around, and he hit him in the head, and it broke the stick. And he took off walking. The person that was hitting him knocked down his basket and kicked all his vegetables out of the baskets and walked away. Thats when I went to the back and told my mom to call the cops because someone was getting beat up outside."
Although M.E. did not know the old man or his assailant prior to trial, he saw the two men in the courtroom and said Jose Zamora was the old man and appellant was his assailant. M.E. indicated that appellant was wearing a yellow sweatshirt and black pants and had a mustache at the time he struck the old man. M.E. also said appellant broke the stick over the old mans back. M.E. acknowledged at trial that he was identifying appellant as the assailant for the very first time.
A.E., M.E.s younger brother testified he saw appellant on March 2, 2005. A.E. said appellant looked different because on March 2 he had a mustache and longer hair. A.E. confirmed M.E.s description of the events of that date. According to A.E., he and M.E. were watching television when they saw appellant hit an old man with a stick. A.E. said appellant struck the old man six or seven times and then the stick broke. According to A.E., appellant was wearing a yellow sweater with black or blue pants on the day of the incident. A.E. also said no one had really asked him to identify the assailant until the time of trial.
Sanger Police Officer Rodney Jones testified he responded to a call at 8th and J Streets in his city on March 2, 2005. He met with Jose Zamora at the scene and conversed using the translation services of Officer Daniel Silva. Jones summoned an ambulance for Zamora, who moaned each time he moved. Zamora pointed out the areas of his body that were hurting. After Jones spoke with Zamora, he took a statement from a nearby gentlemen, continued northbound on J Street, and spoke with the brothers, M.E. and A.E. The brothers pointed out a stick on the ground in front of their house. Jones described it as "approximately a one and a quarter, one and a half inch piece of wooden dowel thats been machine cut on one side, and its jagged as if it had been broken on the other, approximately 12 inches long."
Officer Jones said Officer Silva was an Animal Control Officer on March 2, 2005, but had become a "full sworn" Sanger Police Officer by the time of trial.
The brothers told Jones they had seen the assailant in the area before and pointed out an apartment complex as his possible residence. The brothers also said the assailant had taken the companion piece of the stick and placed it in a blue van parked on the roadway. Jones eventually determined the van belonged to appellants parents. He obtained permission to search the van and found the matching dowel inside. He described that piece as "jagged on one end, machine cut on the other, approximately 12 inches long — correction, 24 inches long. Its approximately one and a quarter to one and a half in diameter."
In addition to finding a dowel on the roadway, Officer Jones saw cactus on the pavement and a damaged cart. At some point, Jones received information about the individual who assaulted Zamora. Jones went to the specified residence, received permission to enter, and received further permission to enter the bathroom in which the individual was showering. Officer Jones waited outside the bathroom door. One of the people who gave permission to Jones then took some clothing, placed it inside the bathroom, and told the occupant to hurry up. The running water eventually stopped and appellant stepped out of the bathroom in the clothing. Appellant appeared startled at seeing the officer. Jones was able to see inside the bathroom and noticed an Old Navy yellow fleece pullover and black jean pants on the bathroom floor. A wallet was chained to the black pants and contained a Social Security card bearing the name and signature of Ramiro Chavez, Jr. The wallet also contained a Washington employee identification card, birth certificate, and State of Washington drivers license for Chavez.
When appellant stepped out of the bathroom, Jones explained that he was investigating a crime and asked whether appellant wished to tell him about what had happened earlier in the day. Appellant said he did not know anything about what had happened earlier. Jones then advised appellant he was going to be placed under arrest as a possible suspect in an assault with a deadly weapon. Jones also explained that he was going to take appellant outside and arrange for his participation in an in-field showup. Jones arranged for an in-field showup between Zamora and appellant. Officer Silva read Zamora an in-field admonishment before Jones presented appellant for possible identification. Jones had appellant sit in front of his apartment complex with his hands cuffed behind his back. Jones then had the ambulance bring Zamora to the complex for the in-field showup. Jones had appellant stand up while Zamora looked out of the back of the ambulance. Zamora identified appellant as his assailant. Based on the results of the in-field showup, Jones took appellant to the police station for booking.
Zamoras medical records, admitted into evidence as Peoples exhibit No. 4, reflected an undisplaced acute fracture of the mid-shaft of the ulna on March 2, 2005, as well as a soft tissue hematoma at the site of the fracture. On that same date, Zamora complained of mild dizziness and nausea. Emergency room personnel noted contusions to Zamoras head and back, lacerations to the back of the head, hematomas to the forearm, shoulder, and shoulder blade, and significant bruising over the scapula.
Defense
Appellant did not testify or present documentary or testimonial evidence on his own behalf, but chose to rely on the state of the prosecution evidence.
DISCUSSION
I.
SUFFICIENCY OF EVIDENCE
Appellant contends the prosecution evidence was insufficient to support the charges at trial.
Appellant specifically argues there was no proof he had used a deadly weapon per se and no proof he used the dowel in a manner likely to produce great bodily injury, stating:
"The information charged that appellant had assaulted Zamora with a deadly weapon, to wit `a club. A club is a deadly weapon and when it is used to commit an assault no further proof of a violation of Section 245, subdivision (a)(1) is required. (People v. Reid (1982) 133 Cal.App.3d 354, 365.) However, the prosecutions proof in this case showed that appellant had not used a club but rather that he had used a wooden dowel. There was therefore insufficient proof of the charge as alleged. [¶] ... [¶]
"... The injuries sustained by Zamora were not sufficient to show that the dowel was used in such a way as was likely to cause serious bodily injury. In the present case ... the victims testimony implied a ferocious beating. Although it may have been the result of mistranslations, Zamora stated that his arm had been `broken and put into a `cast. If true those facts would have been sufficient to show the existence of great bodily injury. [Citations.] However that is not what the medical reports (Exhibit 4) showed. The reports showed that Zamoras arm was swollen, that his ulnar bone had sustained a non-displacing fracture and that he had been given an arm `sling[.] The reports showed a slight abrasion to the head not producing any significant internal or external trauma. Such injuries were ... insufficient to show the use of force likely to produce great bodily injury or the use of an instrument in a manner capable and likely to produce great bodily injury. By the same token, the jurys finding on the special allegation that appellant had actually inflicted great bodily injury was also without sufficient evidentiary support."
The district attorneys first amended information alleged in relevant part:
"On or about March 2, 2005, in the above named judicial district, the crime of ASSAULT WITH A DEADLY WEAPON, in violation of PENAL CODE SECTION 245(a)(1), a felony, was committed by Ramiro Chavez Jr, who did willfully and unlawfully commit an assault upon Jose Zamora with a deadly weapon, to wit, a Club. [¶] ... [¶]
"It is further alleged pursuant to Penal Code section 12022.7(c) that in the commission of the above offense the said defendant(s) Ramiro Chavez Jr, personally inflicted great bodily injury upon Jose Zamora, not an accomplice, who was 70 years of age and older."
Section 245, subdivision (a)(1) describes two different ways of committing a prohibited assault: (1) by use of a deadly weapon or instrument other than a firearm or (2) by means of force likely to produce great bodily injury. (People v. Martinez (2005) 125 Cal.App.4th 1035, 1043.) As used in section 245, subdivision (a)(1), a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects such as dirks and blackjacks have been held to be deadly weapons as a matter of law. The ordinary use for which they are designed establishes their character as such. Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. When it appears an instrumentality is capable of being used in a dangerous and deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion. (People v. Page (2004) 123 Cal.App.4th 1466, 1470-1471.)
In order to succeed in a challenge on appeal to the sufficiency of the evidence, an appellant must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 792-793.) We may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
In the instant case, appellant employed a wooden dowel approximately 36 inches long and approximately one and one-quarter to one and one-half inches in diameter. An iron pipe, a wooden club, and a gun used as a bludgeon have all been held to be dangerous and deadly weapons when they have been used as such. (People v. Reid (1982) 133 Cal.App.3d 354, 365.) Appellant submits his instrumentality was a mere "dowel" as opposed to a club and therefore it was not a deadly weapon per se. Given the substantial length, diameter, and wooden composition of the cylinder, this is a questionable assertion at best. Assuming arguendo, however, appellant is correct, the next question is whether there was sufficient proof that appellant used the dowel in a manner likely to produce great bodily injury.
As noted above, Zamora walked down J Street, the street on which appellants home was located. Appellant caught up to Zamora from behind and struck Zamora with what the latter described as a "bat." Zamora said appellant hit him in the head with the bat "[a] bunch" and then hit Zamoras arm and back when the latter attempted to deflect appellants blows. Zamora said he suffered a broken arm, bruised back, and cut head and was treated at a hospital. After striking Zamora with the bat, appellant tossed all of Zamoras cactus. At trial, Zamora said his left arm was useless to the point that he could not even bathe. He also said he was experiencing pain every day and could not remember things because of the beating he experienced. A.E., a percipient witness, said appellant struck the old man six or seven times and then the "stick" broke.
Neither physical contact nor injury is required for a conviction of assault with a deadly weapon. However, if injuries result, the extent of such injuries and their location are relevant facts for consideration. Great bodily injury is significant or substantial injury. Permanent or protracted impairment, disfigurement, or loss of function is not required, however. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086-1087.) In Beasley, the defendant struck the arms and shoulders of the victim with a broomstick. The appellate court acknowledged that a sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury, e.g., forcefully striking a small child or a frail adult or any persons face or head. However, in Beasley, the victims testimony was too cursory to establish that the broomstick, as used by the defendant, was capable of causing, and likely to cause, great bodily injury or death. The defendant did not strike the victims head or face with the stick. Rather, he used it only on her arms and shoulders. The victim did not describe the degree of force the defendant used in hitting her with the stick. Neither the stick nor photographs of the stick were introduced in evidence. The record did not indicate whether the composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury. The Beasley jury therefore had no facts before it from which it could assess the severity of the impact between the stick and the victims body. The evidence showed that the defendant hit her arms and shoulders, causing bruising in those areas. Extensive, severe bruising, in conjunction with other injuries, has been held to constitute great bodily injury. However, the bruises on the victims shoulders and arms were insufficient to show that defendant Beasley used the broomstick as a deadly weapon. (Id. at pp. 1086-1088.)
The instant case is factually distinguishable from Beasley. Victim Zamora described appellants weapon as a "bat." Officer Rodney Jones seized the weapon and described it as a wooden dowel with a diameter of between one and one-quarter and one and one-half inches. The two broken pieces of the dowel added to a length of three feet. The court admitted the pieces of dowel into evidence so that jurors could assess the composition, weight, and rigidity of the weapon. Zamora testified he sustained a broken arm, cut head, impaired memory, and bruising to the head and back from the attack. Zamora also said his arm was useless at the time of trial. He explained his arm shakes, is not usable, and experiences pain. Medical records admitted at trial showed that Zamora suffered a laceration to his head and bruises to his head, arm, and back. The records also showed that Zamora suffered an undisplaced acute fracture to his left arm, which required splinting. The records further indicated that Zamora suffered from a headache, dizziness, and nausea as a result of the beating and was prescribed morphine and Darvocet for pain relief.
From the foregoing evidence, the jury could reasonably conclude that appellant used the large wooden dowel in such a way that it was likely to (and did) cause serious bodily injury. This is particularly true where the dowel completely broke as appellant wielded it multiple times against the body of the 77-year-old victim.
II.
CALCRIM NO. 875
Appellant contends the trial court committed reversible error by giving CALCRIM No. 875. More specifically he asserts the court committed reversible instructional error by failing to instruct on the specific intent applicable to a charge of assault by means of an instrument used as a deadly weapon.
CALCRIM No. 875, as read to the jury, stated:
"The defendant is charged with assault with a deadly weapon. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. Two, the person did the act willfully. Three, when the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. And four, when the defendant acted, he had the present ability to apply force with a deadly weapon.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intended to break the law, hurt someone, or gain any advantage. The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude and angry way. Making contact with another person including through his or her clothing is enough. The touching does not need to cause pain or injury of any cause. The touching may be done directly or using an object to touch the person. The People are not required to prove that the defendant actually touched someone. The People are not required to prove that the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by the defendants act. But if someone was injured you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was.
"A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous, or one that is used in such a way that is capable of causing or likely to cause death or great bodily injury."
CALCRIM No. 3162 (great bodily injury; age of victim), as read to the jury, stated:
"If you find the defendant guilty of the crime charged, assault with a deadly weapon, you must then decide whether the People have proved the additional allegation that the defendant inflicted great bodily injury on someone who was 70 years of age or older. To prove this allegation, the People must prove that: One, the defendant personally inflicted great bodily injury on Jose Zamora during the commission of the crime. And two, at that time Jose Zamora was 70 years of age or older.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"Under the law a person becomes one year older as soon as the first minute of his or her birthday has begun.
"The people have the burden of proving the allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proved."
CALCRIM No. 915 (simple assault), as read to the jury, stated:
"... Assault is a lesser included offense to the charge of assault with a deadly weapon. To prove the defendant guilty of this crime, the People must prove that one, the defendant did an act which by its nature would directly and probably result in the application of force to a person. Two, the person did the act willfully. Three, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone. And four, when the defendant acted, he had the present ability to apply force to a person.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"The term application of force and applied force means to touch in a harmful or offensive manner. The slightest touching can be enough if done in a rude or angry way. Making contact with another person including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind.
"The People are not required to prove the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by the defendants act. But if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was."
Appellant now contends:
"`Whether a particular weapon is a deadly weapon is a question of fact for the jury (People v. Curcio, 255 Cal.App.2d 183, 190)[.] Thus, except in cases involving a deadly weapon, as a matter of law, the jury must be instructed to determine (1) whether the instrument was capable of inflicting deadly or serious injury and (2) whether the defendant intended to use the instrument as a weapon.
"This specific intent requirement was formerly expressed in CALJIC No. 12.42 which read: `A deadly or dangerous weapon is any weapon, object, instrument, or weapon that is capable of being used to inflict death or great bodily injury and it can be inferred from the evidence ... that the possessor intended on that or those occasions to use it as a weapon should the circumstances require.... (People v. Reid, supra, 133 Cal.App.3d at p. 365.)
"In the present case, the courts instructions per CALCRIM No. 875 instructed only that `A deadly weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. This instruction erroneously omitted the intent requirement.
"The courts instructions were also erroneous because they failed to define the difference between general and specific intent. An instruction equivalent to former CALJIC No. 3.31 must be given sua sponte where specific intent is an element of a charge, and failure to do so is error. (People v. Brenner (1992) 5 Cal.App.4th 335, 339; People v. Ford (1983) 145 Cal.App.3d 985, 989-990.)
"Practically speaking, the defect of instructing only on an instruments `capability to inflict great bodily injury is that this potential exists with virtually every object. A mere toothpick is `capable of destroying an eye or puncturing a jugular. Cited caselaw unequivocally holds that in addition to capability and instrument acquires its deadliness from the defendants intent to use it as a weapon.
"This intent requirement was also not embodied in the instructions language defining a deadly weapon as one that was `used in such a way as to cause great bodily injury, because that formulation focused only on the ultimate, attendant results of the conduct. The difficulty here is that intents and results, while interconnected, are nevertheless distinct issues. It is commonplace that a person can cause a result without intending it.
"This error was compounded by the courts instruction on general intent (CALCRIM 250) which informed the jury that the definition of general intent given applied equally to the special allegation. In that instruction, the jury was told that `to be guilty of the ... allegation charged, [defendant] must not only commit the prohibited act ... but must do so intentionally or on purpose. [Citation.] In other words, appellants intentional striking of Zamora with a broomstick was sufficient to show that he intended to use the stick as a weapon. ... [T]hat is not the law.
"... [T]he court was under a sua sponte obligation to define specific intent and to instruct that proof of the allegations required proof that appellant intended to use the dowel as a deadly weapon." (Fn. omitted.)
Assault with a deadly weapon is termed a general intent crime because it is not necessary to find specific intent to cause a particular injury. What is required is a general intent to willfully commit battery, an act which has direct, natural, and probable consequences (if successfully completed) of causing injury to another. (People v. Tran (1996) 47 Cal.App.4th 253, 261-262.) As the Supreme Court has recently noted, the crime of assault has always focused on the nature of the act and not on the perpetrators specific intent. An assault occurs whenever the next movement would, at least to all appearance, complete the battery. Thus, assault lies on a definitional continuum of conduct that describes its essential relation to battery. An assault is an incipient or inchoate battery; a battery is a consummated assault. Assault is still a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 786-787.)
When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to a defendants intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent. (People v. Hood (1969) 1 Cal.3d 444, 456-457.) Expressed another way, the criminal intent required for assault with a deadly weapon is the general intent to willfully commit an act the direct, natural, and probable consequences of which if successfully completed would be the injury to another. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) In the instant case, CALCRIM No. 875 advised the jury that the People were required to prove various elements to prove appellants guilt of assault with a deadly weapon. These elements included that (a) appellant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (b) appellant did that act willfully; and (c) when appellant acted, he was aware of facts that would lead a reasonable person to realize his act, by its nature, would directly and probably result in the application of force to another. Thus, CALCRIM No. 875 accurately instructed the jury in the applicable substantive law of assault with a deadly weapon.
Appellant nevertheless cites People v. Reid, supra, 133 Cal.App.3d 354, for the proposition that "proof of the deadly weapon element required a showing of specific intent to use the dowel as a weapon." A careful reading of the opinion in Reid reveals that the appellate court did not specifically address the topic of instructional error based on the element of intent. Regardless, appellant contends the instant trial court was required to instruct that on the occasion in question, appellant intended to use the dowel as weapon should the circumstances require. The Supreme Court has long held that "[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner." (People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 9 [dealing with the possession of an altered baseball bat under section 12020, governing possession of a "billy"].) Here, it was undisputed that appellant forcefully applied the wooden dowel against Zamoras body and the jury found that appellants willful use actually inflicted great bodily injury upon Zamora.
Appellants claim of instructional error as to assault with a deadly weapon must be rejected.
III.
CALCRIM NOS. 103 AND 220
Appellant contends the trial court committed reversible error when it instructed on the presumption of innocence and the burden of proof.
CALCRIM No. 103, as given to the jury, stated:
"Im going to explain again the presumption of innocence that weve talked about and the Peoples burden of proof. This defendant Mr. Chavez has pled not guilty to the charges. The fact that a criminal charge has been filed against Mr. Chavez is not evidence that the charge is true. You must not be biased against this defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and any allegations beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I would specifically tell you otherwise.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilt beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
CALCRIM No. 220, as read to the jury, states:
"The fact that a criminal charge has been filed against this defendant is not evidence that the charge is true. You must not be biased against this defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
Appellant now contends the instructions negated the presumption of innocence:
"The courts instruction that the jury was required to `impartially compare and consider all the evidence produced at trial in order to determine whether the prosecution had proved its case beyond a reasonable doubt undermined the presumption of innocence and supplanted it with a mere civil standard of impartiality. [Citation.]
"The crux of the instructional error was that the phrase `impartially compare inescapably implied a weighing of two opposed sets of evidence—the proverbial `balancing of scales[.] That is not the standard applicable in criminal cases. The defendant need not produce any evidence to be compared at all. If the prosecutions evidence is `feather light and insubstantial it would remain incapable of proving the charge beyond a reasonable doubt even if [it] outweighed any non-existent defense evidence to be compared with.... [¶] ... [¶]
"Although the instructions given in the present case did state that the prosecution was required to prove each element of the charge, the very same instruction went to state that in order to determine `whether the People have proved their case.... the jury had to impartially compare and consider all the evidence that was received at trial. What if there was no defense evidence to compare? This latter instruction completely undermined the fundamental rule that the prosecution alone bore the burden of proof, even if no contrary evidence was presented."
Appellant further contends the instructions lessened the burden of proof:
"The defect in the courts instruction on the `assumption of innocence was amplified by its definition of proof `beyond a reasonable doubt as that which produced an `abiding conviction of the truth of the charge. (CALCRIM 220; CALJIC No. 2.90 (7th ed. 2003); see Pen. Code, §1096.) [T]his definition departed from the formulation approved in Coffin [v. United States (1895) 156 U.S. 432] by omitting any reference to the gravity or weight of the proof required and, in conjunction with the `impartial comparison language, served only to perpetuate an erroneous preponderance of the evidence standard.
"Appellant recognizes that the `abiding conviction language of former CALJIC No. 2.90 has been upheld by the Courts of Appeal against challenges in several contexts. [Citations.] However, these cases did not examine the formulation in the present context and in conjunction with the impartiality language previously discussed. [¶] ... [¶]
"The core defect in the current formulation is that duration and weight are two entirely different concepts. The phrase `abiding conviction conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based [upon] weighty evidence. The concept of proof beyond a reasonable doubt embodies the requirement of gravity of proof, not simply a decision that is lasting. Certainly civil verdicts, based on a preponderance of evidence, are not less abiding or less lasting than criminal verdicts. There is no code provision or rule of law providing that civil judgements expire at the end of a certain period. They abide just as much and just as long as criminal verdicts. The difference between the two is the weight of evidence needed to effect a decision.
"The concept of gravity of proof was stated in Coffin, which defined reasonable doubt as that proof which `produces in your minds a settled conviction or belief of the defendants guilt,-such an abiding conviction as you would be willing to act upon in the most weighty and important affairs of your own life,... (Coffin v. United States, supra, 156 U.S., at pg. 453 [emphasis added][.])
"The present formulation simply truncates the definition given in Coffin, cutting away the most significant modification. Coffin did not propound a mere `lasting conviction formulation but an abiding conviction of a certain type; namely one that was so weighty as to be determinative for the jurors own affairs. This is an absolutely critical component.... [¶] ... [¶]
"... [T]he concept of reasonable doubt necessarily includes the requirement of a subjective certitude that is both grave and abiding. That requirement was fully expressed by Coffins formulation that proof beyond a reasonable doubt means `such an abiding conviction as you would be willing to act upon in the most weighty and important affairs of your own life.... (Coffin v. United States, supra, 156 U.S., at pg. 453.) The current formulation, truncates the crucial modifying clause and, as a result, states a standard that is indistinguishable from what is required of any civil verdict." (Fn. omitted.)
The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. (In re Winship (1970) 397 U.S. 358, 364 (Winship ).) The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) A trial courts use of a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279-282.)
When reviewing purportedly ambiguous jury instructions, we ask whether there is a reasonable likelihood jurors applied the challenged instructions in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Welch (1999) 20 Cal.4th 701, 766.) The constitutional question in the present case, therefore, is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard. (Victor v. Nebraska, supra, 511 U.S. at p. 6.) In making this determination, we must keep in mind that instructions are not considered in isolation. Instead, whether instructions are correct and adequate is determined by consideration of the entire charge to the jury rather than by reference to parts of an instruction or from a particular instruction. (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
In Coffin v. United States (1895) 156 U.S. 432 (Coffin), the named defendant and other officers of the Indianapolis National Bank were indicted and ultimately convicted of multiple misdemeanor violations of section 5209 of the Revised Statutes, relating to national banks. They excepted to various parts of the charge to the jurors. (Coffin, supra, at pp. 433-434, 445.) Despite a defense request, the trial court refused to charge the jury on the presumption of innocence in the following language:
"`The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt." (Coffin, supra, 156 U.S. at p. 452.)
However, the court did fully instruct on the subject of reasonable doubt, stating in relevant part:
"`To justify you in returning a verdict of guilty, the evidence must be of such a character as to satisfy your judgment to the exclusion of every reasonable doubt. If, therefore, you can reconcile the evidence with any reasonable hypothesis consistent with the defendants innocence, it is your duty to do so, and in that case find the defendants not guilty. And if, after weighing all the proofs and looking only to the proofs, you impartially and honestly entertain the belief that the defendants may be innocent of the offences charged against them, they are entitled to the benefit of that doubt and you should acquit them. It is not meant by this that the proof should establish their guilt to an absolute certainty, but merely that you should not convict unless, from all the evidence, you believe the defendants are guilty beyond a reasonable doubt.... It is such a state of the proof as fails to convince your judgment and conscience, and satisfy your reason of the guilt of the accused. If the whole evidence, when carefully examined, weighed, compared, and considered, produces in your minds a settled conviction or belief of the defendants guilt — such an abiding conviction as you would be willing to act upon in the most weighty and important affairs of your own life — you may be said to be free from any reasonable doubt, and should find a verdict in accordance with that conviction or belief." (Coffin, supra, 156 U.S. at pp. 452-453.)
The Supreme Court concluded the presumption of innocence is distinct from the doctrine of reasonable doubt and that the trial court erred by failing to instruct on the former. The court held the presumption of innocence to be a presumption of law in favor of the accused. The trial courts reasonable doubt instruction advised the jurors about "`weighing all the proofs and looking only to the proofs." (Coffin, supra, 156 U.S. at p. 461.) This phrasing confined the jurors to those matters that were admitted to their consideration by the court. However, the trial court expressly refused to include the presumption of innocence among those proofs. The defendants were entitled to an instruction on the presumption of innocence and the court and jury were bound to extend the defendants the benefit of such a presumption. By failing to instruct on the presumption of innocence, the court essentially advised the jury that the burden of proof had shifted under the circumstances of the case and that it was incumbent on the accused to show the lawfulness of their acts. The Supreme Court deemed the instruction erroneous, reversed the judgment, and remanded the case with directions to grant a new trial. (Id. at pp. 460-463.)
As respondent points out in the instant case, appellant is misreading the holding in Coffin. The lengthy reasonable doubt instruction in Coffin did employ the phrases "`weighing all the proofs" and "`impartially and honestly entertain the belief." (Coffin, supra, 156 U.S. at p. 461.) However, the court held the instruction inadequate because it omitted any reference to the presumption of innocence. In other words the Supreme Courts focus was on the presumption of innocence and not the doctrine of reasonable doubt. The court never said that the phrases "weighing all the proofs" and "impartially and honestly entertain the belief" were absolutely essential for a constitutionally correct reasonable doubt instruction. In this case, unlike Coffin, the court did properly instruct on the presumption of innocence.
Appellant nevertheless contends he was denied due process because the court advised the jury to "impartially compare and consider all the evidence that was received throughout the entire trial." Appellant submits this language undermined or lightened the prosecutions burden of proof in a case where there was no defense evidence to "compare." A careful reading of the challenged instruction reveals the court simply advised the jury that (a) they had a duty to be impartial; (b) their duty entailed a consideration of all the evidence presented at trial, regardless of who presented it; and (c) guilt was to be established by probative evidence and beyond a reasonable doubt. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) Although appellant further questions the use of the phrase "abiding conviction" in CALCRIM Nos. 103 and 220, the California Supreme Court—in construing former CALJIC No. 2.90—has held an instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof. (People v. Brown (2004) 33 Cal.4th 382, 392, citing Victor v. Nebraska, supra, 511 U.S. at pp. 14-15.)
Appellant argues at great length that he was prejudiced by the phraseology of the CALCRIM instructions. So long as the trial court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. (People v. Mayo (2006) 140 Cal.App.4th 535, 542.) Employing plain language, CALCRIM Nos. 103 and 220 correctly conveyed the concept of reasonable doubt in the instant case and appellants contention must be rejected.
IV.
CLAIMED SENTENCING ERRORS: IMPOSITION OF UPPER TERM
Appellant contends the trial court erroneously imposed the upper term of imprisonment in the instant case because (a) the court abused its discretion in selecting the upper term of imprisonment and (b) failed to cite factors found by a jury as required in Cunningham v. California (2007) 549 U.S. ____ , Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
The trial court stated at the February 24, 2006 sentencing hearing:
"Probation as to Mr. Chavez will be denied. And the Defendant shall be committed to the California Department of Corrections for the aggravated term of four years. The Court in imposing the aggravated term takes into consideration the factors in aggravation as to the Defendant that he has engaged in violent conduct, which indicates a serious danger to society. In that particular regard, the Court takes into consideration the testimony of the victim in this matter, as well as the other evidentiary matters received. The age of the victim. All of the facts and circumstances which were brought forth in the trial. The Court further takes into consideration that this Defendants prior convictions are certainly continuing, although not as long as some that this Court has seen. And they are of increasing seriousness, if you take into consideration the physical violence unprovoked that was taken — that was made evident by the testimony received in this case, which the Court found to be credible, and clearly the jury did, also, in their findings. The Court further — the Court further notes that the Defendant has served a prior prison term as an additional factor in aggravation.
"The Court in reviewing the circumstances in mitigation does acknowledge that the Defendant voluntarily acknowledged wrongdoing, either prior to the arrest or at an early stage of the criminal process, factor in mitigation set forth in Rules of Court 4.423.
"The Court has taken into consideration the factor in mitigation regarding the mental health of the Defendant.
"The Court does not believe based on the reports of the three mental health professionals, and the testimony received in this trial, that that is a sufficient mitigating factor.
"On balance, balancing the factors in aggravation and the factors in mitigation, the Court finds that the factors in aggravation sufficiently outweigh those factors in mitigation. That the Court finds that the aggravated term of four years is appropriate.
"Further, Mr. Chavez will serve an additional consecutive term of five years pursuant to Penal Code Section 12022.7(c) for a total of nine years."
A. Sentencing Reasons
Appellant first contends the trial court based his sentence on a "Misinformed and Unauthorized Dual Use of Sentencing Factors and on Patently Unreasonable Discretionary Considerations."
In People v. Scott (1994) 9 Cal.4th 331, the Supreme Court stated:
"... We conclude that the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. [¶] ... [¶]
"In sum, we hold that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott, supra, 9 Cal.4th at pp. 353, 356.)
In the instant case, appellant did not interpose an objection at the sentencing hearing or argue that the trial courts consideration of aggravating circumstances was improper or somehow constituted an impermissible dual use of facts. His appellate challenge to the trial courts sentencing choices and supporting rationale must be deemed waived under the authority of Scott.
B. Apprendi/Blakely/Cunningham Error
Appellant next contends the imposition of the upper term violated his Sixth Amendment and due process rights as construed in Blakely and related cases.
In Blakely, supra, 542 U.S. 296, the United States Supreme Court reaffirmed the rule announced in Apprendi, supra, 530 U.S. 466: "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court considered the effect of Apprendi and Blakely on this states Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendants Sixth Amendment right to a jury trial." (People v. Black, supra, 35 Cal.4th at p. 1244.)
In Cunningham, supra, 549 U.S. ___ , the court held Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment rights to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
"As this Courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 ... (2000); Ring v. Arizona, 536 U.S. 584 ... (2002); Blakely v. Washington, 542 U.S. 296 ... (2004); United States v. Booker, 543 U.S. 220 ... (2005). `[T]he relevant "statutory maximum," this Court has clarified, `is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304 ... (emphasis in original).... [¶] ... [¶]
"... Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 127 S.Ct. at pp. 860, 871, fn. omitted.)
In the instant case, the trial court referred to appellants prior convictions and service of a prior prison term as factors in aggravation. Under California law, it is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122 Cal.App.4th 542, 550.) Here, the trial court relied on appellants prior convictions and recidivism to impose the upper term, as permitted by Cunningham and Blakely. Even if we were to assume error under Cunningham, the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) ___ U.S.____ [126 S.Ct. 2546, 2553] ["Failure to submit a sentencing factor to the jury ... is not structural error" and is subject to harmless error rule]; Chapman v. California (1967) 386 U.S. 18, 24; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) The trial courts imposition of the upper term does not require reversal of the sentence.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
WISEMAN, J.
GOMES, J.