Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Ct. No. BF116643A Richard J. Oberholzer, Judge.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
STATEMENT OF THE CASE
On January 4, 2007, the Kern County District Attorney filed an information in superior court charging appellant as follows:
Count I—infliction of corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)) with two instances of personal use of a deadly weapon (§ 12022, subd. (b)(1)), infliction of great bodily injury (§ 12022.7, subd. (e)), and two strike priors (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Further statutory references are to the Penal Code unless otherwise stated.
Counts II and III—assault with a deadly weapon, a serious felony (§ 245, subd. (a)(1)) with infliction of great bodily injury (§ 12022.7, subd. (e)), and two strike priors (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Count IV—making criminal threats, a serious felony (§§ 422, 1192.7, subd. (c) with two instances of personal use of a deadly weapon (§ 12022, subd. (b)(1)) and two strike priors (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
On January 5, 2007, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On February 27, 2007, jury trial commenced. On the same date, the court denied appellant’s motion for acquittal (§ 1118.1).
On February 28, 2007, the jury returned verdicts finding appellant guilty of Counts I (corporal injury), II (assault), and IV (criminal threats), and not guilty of Count III (assault). As to Count I, the jury found one personal use allegation (§ 12022.1, subd. (b)) to be true but the second personal use allegation and great bodily injury allegation (§ 12022.7, subd. (e)) to be not true. As to Count II, the jury found the great bodily injury allegation to be not true. As to Count IV, the jury found one personal use allegation to be true and the second personal use allegation to be not true.
On the same date, the court commenced a bifurcated hearing on the prior strike allegations. On March 1, 2007, the jury returned verdicts finding the allegation of a 1985 Wisconsin strike prior to be not true but the allegation of a 1986 Wisconsin strike prior to be true.
On March 27, 2007, appellant filed a request for dismissal of the strike prior (§ 1385) and a sentencing statement. On April 2, 2007, the district attorney filed written opposition to appellant’s request.
On April 10, 2007, the court denied appellant’s motion for dismissal of the strike prior, denied appellant probation, and sentenced him to a total term of seven years in state prison with 259 days of custody credits. The court imposed the middle term of six years on count I with a one year personal-use enhancement and imposed concurrent two-year terms on counts II and III. The court also imposed a $200 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).
On May 10, 2007, appellant filed a timely notice of appeal.
FACTS
In October 2006, appellant and his wife, Adrienne, lived in a second-floor room of a residential motel on Union Avenue in Bakersfield. On the evening of October 19, 2006, appellant used drugs in their bathroom. Sometime later, Adrienne received a telephone call and appellant asked about the caller and the topic of their conversation. When Adrienne said the call was not important, appellant became angry, “flew of the handle,” and departed the motel room. He returned around midnight, kicked at the room door, and demanded entry. Adrienne awakened and heard him say, “Bitch, open the door. Because you know I will kick it in if you don’t.” Adrienne awakened, opened the door, and returned to bed. Appellant angrily entered the motel room, turned on the light, repeatedly called his wife a “bitch,” and threatened to kill her at least 10 times. She took appellant’s threats seriously although he smelled of alcohol and slurred his words. Appellant eventually approached the bed, called Adrienne a “no good bitch,” and broke a lamp. Although Adrienne was underneath the multiple covers of the bed, she had a hammer on the floor that was available for use as a weapon.
As appellant approached the bed, he asked Adrienne about the location of his knife and then saw a pocketknife on a nearby dresser. He took the knife and made a stabbing motion at her body. The blade of the knife penetrated five comforters and struck Adrienne’s left knee. She felt the force of the knife under her left knee. The force of the stabbing motion caused the knife handle to break off. Adrienne felt the impact of the knife but did not know she was bleeding. Appellant again said he wanted to kill Adrienne and yelled out, “Where’s the goddamn butcher knife?” He then walked into the kitchen, found a butcher knife on the table, and went back to his wife. Appellant swung down with full force and stabbed Adrienne in the right knee with the knife. The butcher knife pierced all five comforters to make contact with her right leg. At that point Adrienne realized blood was flowing from her left leg also.
Motel Manager Sandy Perez knocked on the room door and interrupted the attack. Appellant answered the door and Perez asked Adrienne whether she was all right. Adrienne asked Perez to get appellant out of the room. Adrienne did not tell Perez that appellant had stabbed her because she just wanted him out of the room and was afraid he might stab her again. Perez tugged at appellant’s shoulder, told him he had to leave the room, and appellant complied. After appellant departed, Adrienne called 911, went to the bathroom, and put on some clothes. An ambulance and police officers arrived at the motel. The officers found a butcher knife on an air conditioner. They also recovered a pocket knife. However, no fingerprints were found on either of the knives. Medical personnel transported Adrienne to Mercy Hospital where two staples were used to close the laceration on her left leg and three staples were used to close the laceration on her right leg. Adrienne said she did not notice the second stab wound until she was at the hospital.
The prosecution played a recording of the 911 call to the jury. In that call, Adrienne told the operator her husband stabbed her once with a butcher knife. Adrienne did not mention the pocket knife.
During cross-examination at trial, Adrienne said she normally wears glasses but did not have them on when she was stabbed in bed. Adrienne said she had seen appellant drink on many occasions until he blacked out. She said he would often do things and then have no memory about his conduct. Adrienne admitted the use of cocaine on the evenings preceding the stabbing but said she took no illicit drugs on the night of the stabbing. Adrienne said appellant slapped her once on the evening of the stabbing but she could not remember whether she told that to officers.
Sandra Perez testified that tenant Doreen Montijo called and told Perez there was a loud noise emanating from appellant’s room. Perez went to the room, knocked on the door, and appellant reluctantly opened it. Perez could not remember seeing Adrienne in the room but did remember Adrienne saying, “He hit me.” Perez said she told appellant he had to leave the room. Adrienne initially asked Perez to call the police but Perez advised Adrienne to make the call. Perez took appellant to a bench outside of the motel room and sat down with him. He was angry when he left the room but was calmer once he went outside. Appellant was visibly drunk and stumbled on the stairs leading down from the room.
Paramedic Clifford Kroll treated Adrienne in the ambulance. He only noted an injury to her left leg. At the hospital, Adrienne went to the bathroom and then realized her right leg had sustained a wound. Joe Fosbinder, M.D., an emergency room physician, treated Adrienne for two lacerations on the top of her knees. The cut on the left knee measured two centimeters and the cut on the right knee measured three centimeters. Dr. Fosbinder explained the skin over the kneecap is typically thin and such skin tends to bleed a great deal if lacerated. Dr. Fosbinder said the cuts to Adrienne were not very deep. He applied anesthetic and closed the wounds with staples. On cross-examination, Dr. Fosbinder said Adrienne only mentioned the butcher knife during their conversation at the hospital.
Bakersfield Police Officer Justin Lewis interviewed Adrienne at the motel on the night of the stabbing. When Lewis arrived at the scene, two other officers had appellant in custody. Lewis entered the motel room, saw Adrienne sitting on the bed, and saw blood on both the bed and sheet. He observed a laceration to her left leg. Adrienne told Lewis that appellant tried to stab her but missed. She said appellant hit the bed and broke the knife handle. Adrienne also said appellant threatened to kill her if she said anything about the pocket knife attack and then went to the kitchen and retrieved the 16-inch butcher knife.
Officer John Billdt also responded to the scene and saw an injury to Adrienne’s left leg but did not see any other injuries. Police officers did not photograph Adrienne’s right leg but did photograph the blood-stained mattress in the motel room. At trial, Officer Billdt identified the broken knife and the broken handle from that knife. Officer Lewis said appellant was initially cooperative when questioned but then became uncooperative. Lewis could tell that appellant had been drinking because the latter’s eyes were red and watery, his speech was slurred, and he had the odor of alcohol on his breath.
DISCUSSION
I.
DID THE TRIAL COURT’S HANDLING OF VOIR DIRE TAINT THE FAIRNESS OF THE SUBSEQUENT TRIAL?
Appellant contends the trial court tainted his trial “through its colloquial and confusing voir dire and misleading discussion of reasonable doubt.”
Applicable Law
Code of Civil Procedure section 223 states in pertinent part:
“In a criminal case, the court shall conduct an initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper.… Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause.”
The goal of voir dire is not to “salvage” problematic jurors but rather to find 12 fair-minded jurors who will impartially evaluate the case. (People v. Hoyos (2007) 41 Cal.4th 872, 908, fn. 19.) The right to voir dire the jury is not constitutional but is a means to achieve the end of an impartial jury. (People v. Robinson (2005) 37 Cal.4th 592, 613.) Voir dire plays a critical function in assuring the criminal defendant that his or her Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire, the trial judge cannot fulfill his or her responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence. (People v. Bolden (2002) 29 Cal.4th 515, 538.) In California, there is no constitutional right to any particular manner of conducting the voir dire and selecting a jury so long as such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries are not transgressed. (People v. Robinson, supra, 37 Cal.4th at p. 613.)
A trial court is in the best position to assess the amount of voir dire required to ferret out latent prejudice and to judge the responses. Hence a trial court has great latitude in deciding what questions should be asked on voir dire. (People v. Robinson, supra, 37 Cal.4th at p. 617.) The Constitution does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. The trial court is given wide latitude to determine how to conduct the voir dire. (People v. Tafoya (2007) 42 Cal.4th 147, 168.) Moreover, the trial court is in the unique position of assessing demeanor, tone, and credibility firsthand—factors of critical importance in assessing the attitude and qualifications of potential jurors. (People v. DePriest (2007) 42 Cal.4th 1, 21.)
The California Supreme Court has advised trial judges to closely follow the language and formulae for voir dire recommended by the Judicial Council in the California Standards of Judicial Administration to ensure that all appropriate areas of inquiry are covered in an appropriate manner. (People v. Holt (1997) 15 Cal.4th 619, 661.) Standard 4.30 of the California Judicial Administration Standards (examination of prospective jurors in criminal cases) applies in all criminal cases and provides “[t]he trial judge’s examination of prospective jurors in criminal cases should include the areas of inquiry listed below and any other matters affecting their qualifications to serve as jurors in the case.” (Cal. Stds. Jud. Admin., §4.30(b).) The enumerated topics include physical and time constraints affecting prospective jury service; bias, prejudice, and beliefs affecting jury service; juror acquaintance with the defendant, defense counsel, the prosecutor, and prospective witnesses; prior knowledge of the case; financial or personal interest in the outcome of the case; prior jury service; criminal victimization of a prospective juror or a person in a significant personal relationship with the prospective juror; and criminal investigation of a prospective juror or a person in a significant personal relationship with the prospective juror. (Ibid.)
Standard 4.30(b) states in pertinent part:
“(14) … You must understand that there are substantial differences in the rules applicable to the trial of criminal cases from those applicable to the trial of civil cases. This is particularly true respecting the burden of proof that is placed on the People. In a civil case we say that the plaintiff must prove (his)(her) case by a preponderance of the evidence. In a criminal case, the defendant is presumed to be innocent, and before (he)(she) may be found guilty, the People must prove (his)(her) guilt beyond a reasonable doubt. If the jury has a reasonable doubt, the defendant must be acquitted.…
“(15) … The defendant has entered a plea of ‘not guilty,’ which is a complete denial, making it necessary for the People, acting through the district attorney, to prove beyond a reasonable doubt the case against the defendant. If the evidence does not convince you of the truth of the charges beyond a reasonable doubt, the defendant is entitled to a verdict of not guilty.” (Cal. Stds. Jud. Admin., § 4.30(b).)
Appellant specifically argues:
“Here … the court engaged in a series of exchanges with jurors that dramatically misstated the concept of reasonable doubt. Additionally, the court implied that the determination of guilt was no different from the sort of common sense an individual would exercise in day to day decisions and told jurors that 99 percent of individuals who were arrested were guilty, a statistical starting point for analysis that satisfied the prosecution’s burden before opening statements had even begun. Though these remarks seem to have been well-intentioned efforts to make complex legal concepts accessible to the jurors, the effect of this tinkering … improperly reduced the prosecution’s burden by conflating the idea of proof beyond a reasonable doubt with the more everyday notion of exercising ‘reasonable’ thought.”
The gravamen of appellant's contention centers on the following exchange with a prospective juror.
“Q. … [¶] You’ve got to be convinced beyond a reasonable doubt, but not beyond all possible doubt. [¶] And I’m going to tell you at the end of this trial that it is not Ms. Hartnett’s burden to convince you beyond all possible doubt. Because everything is subject to some possible or imaginary doubt, especially when you weren’t there. There can be all kinds of stuff that could happen when you weren’t actually there.
“So the situation is, though, that Ms. Hartnett has to convince you beyond a reasonable doubt. And I will tell you that it’s not beyond all possible doubt. So you can have any doubt, even when you render a guilty verdict, especially if it’s not beyond a reasonable doubt.”
On February 27, 2007, the court instructed the jury in CALCRIM No. 220 on reasonable doubt. Appellant now contends:
“This colloquy could have easily left the impression that the prospective juror speaking with the court had just referred to ‘the correct rule’ by stating that ‘you can have some [doubt]. But it has to be reasonable.’ The judge appeared to agree that it was appropriate for jurors to convict while they still had doubts about guilt, as long as it was reasonable to have those doubts. In context, moreover, it would have been clear to the jurors that the court was trying to steer them away from the notion that a higher quantum of proof -- proof beyond all doubt -- was necessary. The court had already asked three jurors if they would require such proof beyond all doubt, and appeared to be rejecting that position. Having implied that proof beyond all doubt was not necessary, the court then appeared to suggest that it was in fact acceptable to convict with doubt, as long as such doubts were reasonable.”
A trial court must instruct the jury on the allocation and weight of the burden of proof and must do so correctly. (People v. Mower (2002) 28 Cal.4th 457, 483; see Evid. Code, § 502.) In a criminal case, due process 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. (People v. Johnson (2004) 119 Cal.App.4th 976, 978-979 (Johnson).) Moreover, a trial judge’s exercise of discretion in the questioning of prospective jurors during voir dire commands deference from an appellate court, but not without limit. With the heightened authority of the trial court in the conduct of voir dire goes an increased responsibility to ensure that the process is meaningful and sufficient to ferret out bias and prejudice on the part of prospective jurors. (People v. Mello (2002) 97 Cal.App.4th 511, 516.)
In Johnson, supra, 119 Cal.App.4th 976, a decision of this court cited by appellant, the trial court explained the standard of reasonable doubt and asked a prospective juror at length whether she had ever made a decision “‘where there has been absolutely no doubt in your mind.’” (Id. at p. 979.) The juror replied that she had no doubt that she wanted to have children. The court then questioned whether she had had some doubt whether she could support them properly. When the juror stated that had gone through her mind, the court stated, “‘[s]o there was doubt, wasn’t there,’” “‘[s]o we have eliminated that one,’” (ibid.) and asked the juror to come up with another situation in which she had absolutely no doubt. The juror then stated that she wanted to go to college, but acknowledged, at the court’s prodding, that she had had some doubt about leaving home to do so. The court again said, “‘Okay. We have eliminated that one,’” and stated “‘We will be here for a long long time and never come up with anything you won’t.’” (Id. at pp. 979-980.)
The following exchange then occurred between the Johnson trial court and the prospective juror:
“‘[The Court:] Q. What are you going to do when you’re here on a jury and you want to be convinced beyond all possible doubt when it’s never happened in your life?
“‘[The Juror:] A. Good question.
“‘[The Court:] Q. There is a solution to it. What’s the solution?
“‘[The Juror:] A. Beyond a reasonable doubt.
“‘[The Court:] Q. Very good. See how smart this jury is getting. You’re really now getting into it. That’s what I like. [¶] If you work at it, all of you can figure it out.’” (Johnson, supra, 119 Cal.App.4th at p. 980.)
At one point, the trial court in Johnson told the jurors, “‘If there is no doubt in your mind, then I can tell you you were brain dead during the trial ….’” (People v. Johnson, supra, 119 Cal.App.4th at p. 980.) The trial court used an additional lengthy question and answer session with the jurors, including how they chose a restaurant and drove through an intersection, which we found to be error as it “equate[d] proof beyond a reasonable doubt to everyday decision-making in a juror’s life.” (Id. at p. 981.) The trial court’s error in Johnson was compounded when the prosecutor, in argument to the jury, reiterated what the trial court had said by characterizing a juror who could return a guilty verdict without “some doubt” as to the defendant’s guilt as “brain dead,” and equating proof beyond a reasonable doubt to everyday decision making. (Id. at p. 983.)
Here, respondent submits “the trial court’s comments in this case, while unorthodox, are not similar enough to the errors in Johnson to require automatic reversal nor did they dilute the reasonable doubt standard.” Respondent correctly notes the court discussed the reasonable doubt standard with prospective jurors in different ways. Respondent also acknowledges that the trial court informed jurors some doubt was possible and contends that one need not be 100 percent-doubt free to convict. Nevertheless, the trial court ultimately told the prospective jurors “they must find the defendant guilty beyond a reasonable doubt, and, furthermore, that they must find each element of the crime beyond a reasonable doubt.” (Italics original.)
Here, the trial court correctly and completely instructed the jury in the concept of reasonable doubt and the arguments of counsel conformed to the definition set forth in that instruction. Appellant's claim that voir dire somehow distorted the burden of proof and presumption of innocence is belied by the record and must be rejected.
Questions About Common Sense
Appellant further challenges a later portion of the voir dire, noting “[T]he court blended a discussion of whether appellant was guilty or not with an inquiry into how jurors would handle an informal social issue, such as inviting appellant into their homes for dinner.”
Appellant contends:
“These questions and comments were not only irrelevant and prejudicial but had the potential to inject racial undertones into the voir dire as well as affecting appellant’s ability to receive fair and impartial jury.”
As to reasonable doubt, Standard of Judicial Administration 4.30(b) states in pertinent part:
“(15) The fact that the defendant is in court for trial, or that charges have been made against (him)(her), is no evidence whatever of (his)(her) guilt. The jurors are to consider only evidence properly received in the courtroom in determining whether the defendant’s guilt has been proved beyond a reasonable doubt. The defendant has entered a plea of ‘not guilty,’ which is a complete denial, making it necessary for the People, acting through the district attorney, to prove beyond a reasonable doubt the case against defendant. If the evidence does not convince you of the truth of the charges beyond a reasonable doubt, the defendant is entitled to a verdict of not guilty.” (Cal. Stds. Jud. Admin., § 4.30(b)(15).)
The Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution protect a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. An instruction that lowers the People’s burden or proof or detracts from the heavy burden suggested by the use of the term “reasonable doubt” is federal constitutional error requiring reversal per se. The presumption of innocence is inherent in the reasonable doubt standard. Due process likewise requires that guilt be determined only on the evidence presented at trial, not on suspicion, defendant’s status or facts outside the evidence. A presumption of innocence instruction represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial. (People v. Mayo (2006) 140 Cal.App.4th 535, 541-543.)
In the instant case, the court broadened its inquiry to ascertain whether the prospective jurors deemed appellant a suitable dining companion. (People v. Mayo, supra, 140 Cal.App.4th at p. 543.) In the context of the entire record, the trial court’s queries were well-intentioned efforts to underscore the presumption of innocence in the minds of the prospective jurors. With the heightened authority of the trial court in the conduct of voir dire, mandated under Code of Civil Procedure, section 223, goes an increased responsibility to assure that the process is meaningful and sufficient to its purpose of ferreting out bias and prejudice on the part of prospective jurors. (People v. Wilborn (1999) 70 Cal.App.4th 339, 343.) Although the court did probe the attitudes of prospective jurors in the context of a dining experience with the appellant, the court returned to the fundamental principles of proof beyond a reasonable doubt and the presumption of innocence by giving CALCRIM No 220 at the close of evidence. That instruction stated in pertinent part:
“The fact that a criminal charge has been field against the defendant is not evidence that the charge is true.
“You must not be biased against the 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 a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."
The court also gave CLACRIM No. 359 [corpus delicti: independent evidence of a charged crime] which emphasized: “You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
Not only did the trial court give CALCRIM Nos. 220 and 359 at the close of evidence, but the court repeatedly advised the prospective jurors during voir dire that they must find each element of the crime beyond a reasonable doubt. The court’s questions regarding appellant as a potential dinner guest were well within the trial court’s considerable latitude in conducting voir dire and no error occurred. (People v. Robinson, supra, 37 Cal.4th at p. 617.)
Commentary on Arrestee Status
Much later during voir dire, the following exchange occurred:
“Q. [By the Court]: Mr. [Juror #1018669], do you think a person is more likely to be guilty if they’ve been arrested than those that haven’t been arrested?
“A. No.
“Q. Really? [¶] How may of you feel that way? [¶] How may of you think that if a person has been arrested, they’re more likely to be guilty than not guilty? [¶] Yeah. I think that’s the majority. Most of you would feel that way. [¶] So you’re a little different in that feeling, Mr. [Juror #1018669]. But the majority of people would say: Yeah. If you’ve been arrested, you’re more likely to be guilty than if you weren’t arrested, right? [¶]Does that sound right to you now? [¶] … [¶]
“A. He’s going through a fair trial.
“Q. That’s right. It’s a fair trial. [¶] And that means you follow the procedures. And that is requiring the People to convince you beyond a reasonable doubt of the guilt of the defendant. That’s how you make sure that our system works, is requiring that they convince you beyond a reasonable doubt of the guilt of the defendant before you return a guilty verdict?
Respondent acknowledges the trial court’s comments in this case were “unorthodox” as well as “colorful and challenging.” Nevertheless, respondent submits there is no reasonable cause to believe the trial court’s voir dire inquiry lowered the standard of proof because jurors were properly instructed about reasonable doubt and the presumption of innocence before they began deliberations. The essential connection to a “beyond a reasonable doubt” factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof. Such a misdescription vitiates all of the jury’s findings. (People v. Johnson, supra, 119 Cal.App.4th at p. 986.) Here, however, the trial court ultimately gave the jury a correct instruction on reasonable doubt just before the jurors commenced their deliberations. Moreover, the court repeatedly emphasized the correct burden of proof during the voir dire of prospective jurors. Under these facts and circumstances, no misdescription of the burden of proof occurred and reversal is not required.
Alleged Structural Error
Appellant lastly contends the trial court committed “structural error” by mischaracterizing the reasonable doubt standard, making additional comments that tainted the jury pool, and reducing the prosecution's burden of proof. Therefore, he submits automatic reversal is required.
“Structural defect” is the type of error affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Such error transcends the criminal process and defies analysis by harmless-error standards. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-311.) Examples of structural defects include total deprivation of the right to counsel at trial (Gideon v. Wainwright (1963) 372 U.S. 335); trial before a judge who is not impartial (Tumey v. Ohio (1927) 273 U.S. 510); and the giving of a constitutionally defective instruction on reasonable doubt (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282.)
Trial errors, by contrast, are errors that occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether the error was harmless. (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308.) Under federal law, there is a strong presumption any error falls within the latter category, and it is the rare case in which a constitutional violation will not be subject to harmless error analysis. (Sullivan v. Louisiana, supra, 508 U.S. 275, 282 (conc. opn. of Rehnquist, C.J.).)
The voir dire of jurors is necessarily much less formal than the specific instructions by the Court as to the applicable law. While trial judges are advised under the California Standards of Judicial Administration and People v. Holt, supra, 15 Cal.4th at 661, to ensure that "all appropriate areas of inquiry are covered in an appropriate manner,” we do not conclude that voir dire and its attendant colloquy as urged by appellant are somehow converted into the status of instructions as provided by law. We are mindful and trial judges are advised to be mindful that under some circumstances voir dire that improperly characterizes the interpretation of a correct instruction might be used by a jury to misinterpret or misapply an approved instruction. If that instruction pertains to an error affecting the framework of the trial then it is conceivable that structural error may exist. However, that is a highly fact-dependent scenario and assumes many variables not present in the instant case. Here, the superior court repeatedly referred jurors to the specific definition of reasonable doubt and specifically stated that the instructions as read constituted the law and were not so pervasive as to affect the framework within which the trial proceeded. Clearly, the instructions as a whole correctly conveyed the concept of reasonable doubt to the jurors. (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
While we conclude that the trial judge's various illustrations might be more safely left unsaid, we only caution against novel approaches because the integrity of the reasonable doubt standard is fundamental to the credibility of our justice process. Here, the superior court's inquiry of jurors was not so pervasive as to affect the framework within which the trial proceeded. Clearly, the instructions as a whole correctly conveyed the concept of reasonable doubt to the jurors.
To the extent that our Court's discussion of this issue in People v. Johnson (2004) 119 Cal.App.4th 976 is interpreted as providing that any illustration of reasonable doubt or discussion of reasonable doubt other than what is specifically provided in the CALIFORNIA CRIMINAL INSTRUCTIONS or the California Standards of Judicial Administration is structural error, we do not subscribe to that interpretation. However, we do not conclude that such an interpretation might not be correct under specific fact driven scenarios.
Therefore, in our view, any ambiguity in the trial court's extemporaneous comments does not -- in light of the correct instructions and lack of erroneous argument by counsel thereon -- render the voir dire not amenable to harmless-error analysis. In our view, the factual issue posed by the trial court's remarks at voir dire was necessarily resolved adversely to defendant under other properly given instructions. (See People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, fn. 12.)
The United States Supreme Court has held the jury guarantee to be a basic protection whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282.) The California Supreme Court has also affirmed that under the California Constitution a violation of the right to jury trial is a miscarriage of justice that is reversible irrespective of the strength of the evidence presented at trial. (People v. Cahill, supra, 5 Cal.4th at p. 501.) Given the entirety of the circumstances in the instant case, appellant was neither denied nor deprived of the constitutional jury guarantee. Structural error did not occur and automatic reversal is not required.
II.
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY GIVING CALCRIM NO. 359 (CORPUS DELICTI)?
Appellant contends the trial court erroneously instructed the jury on corpus delicti because appellant never made a confession and because the text of the instruction suggested that proof beyond a reasonable doubt was unnecessary.
The corpus delicti of a crime consists of two elements: the fact of the injury or loss or harm, and the existence of a criminal agency as its cause. (People v. Zapien (1993) 4 Cal.4th 929, 985 986.) In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. (People v. Wright (1990) 52 Cal.3d 367, 403 404; People v. Diaz (1992) 3 Cal.4th 495, 528-529.) Such independent proof may consist of circumstantial evidence and need not establish the crime beyond a reasonable doubt. (People v. Jones (1998) 17 Cal.4th 279, 301.)
The purpose of the corpus delicti rule is to assure that the accused is not admitting to a crime that never occurred. The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as “slight” or “minimal.” (People v. Jones, supra, 17 Cal.4th at p. 301.) The People need make only a prima facie showing permitting the reasonable inference that a crime was committed. The inference need not be the only, or even the most compelling one, but need only be a reasonable one. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.)
The court instructed the jury in CALCRIM No. 359 [corpus delicti: independent evidence of a charged crime]. Appellant now argues:
“Here, the court gave CALCRIM No. 359 on corpus delicti despite the fact that appellant never confessed to any wrongdoing or made any form of admission whatsoever. In his discussions with the police, appellant was ‘uncooperative’ and made no admissions. Moreover, though Adrienne had testified to the threats that appellant made, these statements were a part of the crime for which he was charged and convicted. There was therefore no factual basis to give a corpus delicti instruction because there was no confession or admission.”
California courts have traditionally held the prosecution cannot satisfy its burden of proof by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. Whenever an accused’s extrajudicial statements form part of the prosecution’s evidence, the trial court is required to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) Once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)
In the instant case, the prosecution relied on appellant’s threats to Adrienne as part of its case-in-chief. The California Supreme Court has extended the corpus delicti rule to pre-offense statements of later intent as well as to post-offense admissions and confessions, but not to a statement that is part of the crime itself. A statement to the victim of current intent can itself supply the corpus delicti. Unlike the cautionary instruction, the corpus delicti rule is designed to provide independent evidence that the crime occurred, not to help determine whether the statement was made. (People v. Carpenter (1997) 15 Cal.4th 312, 393-394.) Thus, the trial court properly instructed in CALCRIM No. 359 because appellant’s extrajudicial statements formed part of the prosecution e vidence.
Appellant further contends that use of CALCRIM No. 359 misstated and lowered the prosecution’s burden of proof and violated his right to due process under the Fourteenth Amendment. In determining the correctness of a jury instruction, an appellate court considers the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) In the instant case, the court instructed the jury as part of CALCRIM No. 359: “You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” CALCRIM No. 359 correctly set forth the applicable burden of proof (§§ 1096, 1096a) and reversal for instructional error is not required.
III.
DID THE TRIAL COURT ERRONEOUSLY TREAT APPELLANT’S 1989 WISCONSIN BURGLARY CONVICTION AS A STRIKE?
Appellant contends his 1989 Wisconsin burglary conviction should not have been treated as a strike prior because the underlying Wisconsin burglary statute permitted a conviction without any finding that the crime involved an inhabited dwelling.
Respondent duly concedes:
“[Appellant] contends the jury finding of true on the ‘strike’ enhancement for the 1989 burglary conviction must be reversed. Appellant appears to be correct.
“Respondent has examined the documents used in support of the bifurcated proceeding on the priors and was unable to find anything in the record which indicates the house that appellant burgled was inhabited. While the property owner is identified there is no indication he inhabited at the burgled house. A reasonable inference from the items that were going to be stolen, windows and doors, is that the house was not, in fact, inhabited.”
The Double Jeopardy Clause of the California Constitution does not preclude retrial of a prior conviction allegation in a noncapital criminal case. (People v. Monge (1997) 16 Cal.4th 826, 844-845, affirmed by Monge v. California (1998) 524 U.S. 721, 724, 734.) The appropriate remedy in the instant case is to remand the matter for retrial of prior felony conviction allegation. (People v. Cortez (1999) 73 Cal.App.4th 276, 284.)
IV.
DID THE TRIAL COURT ERRONEOUSLY IMPOSE CONCURRENT SENTENCES ON TWO COUNTS WHERE THOSE OFFENSES WERE PART OF A SINGLE COURSE OF CONDUCT?
Appellant contends the offenses charged under Counts II and IV were part of a single course of conduct and the concurrent terms imposed on those counts should have been stayed.
As noted above, the district attorney charged appellant in Count II with assault with a deadly weapon, a serious felony (§ 245, subd. (a)(1)) and in Count IV with making criminal threats, a serious felony (§§ 422, 1192.7, subd. (c)), along with various enhancements.
The trial court stated at the April 10, 2007 sentencing hearing:
“As to Count 2, probation is denied. And the defendant is sentenced to the Department of Corrections for the mid term – for the term of two years. That’s one-third of the mid term; that sentence to be served concurrent to the sentence imposed in Count 1. [¶] … [¶]
“As to Count [4], probation is denied. And the defendant is sentenced to the Department of Corrections for the term of 16 months, which is one-third of the mid term; that sentence is to be served concurrent to the sentence imposed in Count 1, for a total fixed term of seven years.”
The trial court erroneously referred to Count 3, rather than Count 4, when it pronounced sentence. The jury rendered a not guilty verdict on Count 3. The abstract of judgment clearly reflects imposition of a term on Count 4 and not Count 3.
On April 19, 2007, the superior court filed an abstract of judgment reflecting the imposition of a total term of seven years, a six-year middle term on Count I and a consecutive one-year enhancement under section 12022, subdivision (b)(1). The abstract also reflected the imposition of two, two-year terms on Counts II and IV. As to those counts, the clerk of court apparently erred by marking the box entitled “CONSECUTIVE 1/3 VIOLENT” rather than the box “CONCURRENT.” Nevertheless, the abstract correctly reflected total prison time of seven years, as imposed by the superior court at the April 10, 2007 sentencing hearing.
Appellant now argues:
“Here, the conduct involved in all three of the counts for which appellant was convicted was a single course of conduct carried out with a unified intent. Appellant’s trial counsel explicitly made this argument at sentencing, noting that the actions were ‘one continuous act with one objective.’ The prosecutor, moreover, argued that the threats and the attack with a knife occurred ‘all during one course of conduct.’ This was in fact the case: the same cutting of Adrienne justified both the conviction for inflicting injury on a spouse and that for assault with a deadly weapon, while the threat to commit a crime sustained fear only because appellant was in the process of carrying out this same attack.… [T]here was no break in the events and no change in appellant’s intent to carry out the actions. Therefore, they should not have been subject to multiple punishments.”
Respondent counters:
“In imposing concurrent terms for counts two and four, the trial court did not specifically state that the terrorist threats and the stabbings were separate events but respondent submits it can be so implied from the evidence at trial.
“The victim testified that when appellant angrily entered the motel room he was calling her names and threatened to kill her. Appellant then knocked over a lamp and broke it. He then approached the bed where she had been sleeping, asked where his knife was, and then located the pocketknife on a dresser by the television. It was only at this point that the first of two stabbings began.
“Respondent submits the trial court could have reasonably concluded that the terrorist threats were one criminal objective (frightening but not actually harming the victim) and then, subsequently, appellant decided to stab the victim, which was another criminal objective.”
Section 654 provides that even though an act violates more than one statute and thus constitutes more than one crime, a defendant may not be punished multiple times for that single act. The “act” that invokes section 654 may be a continuous course of conduct comprising an indivisible transaction. The divisibility of a course of conduct depends upon the intent and objective of the defendant. If the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court’s findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313; People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1144.)
If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. The defendant’s intent and objective are factual questions for the trial court and there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
In the instant case, the assault upon and threats to Adrienne were part and parcel of the same course of conduct. During closing argument, the prosecutor incisively summarized appellant’s course of conduct by stating: “He armed himself with weapons, he injured her with weapons, and he was threatening her. She should [have been] fearful.” Appellant’s threats and physical actions were not separate and distinct. Rather, they were incident to a single intent and objective, i.e., the terrorizing of the appellant’s spouse. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Respondent maintains the trial court could have concluded that terrorist threats were directed toward frightening the victim while the stabbings were directed toward physically harming the victim. Given the rapid sequence of events and the contemporaneous nature of the threats and assaultive acts, the crimes charged in Counts II and IV must be deemed part of a continuous course of conduct and the sentences imposed on those counts should be stayed.
Respondent acknowledges: “In imposing concurrent terms for counts two and four, the trial court did not specifically state that the terrorist threats and the stabbings were separate events but respondent submits it can be so implied from the evidence at trial.” We note that California Rules of Court, rule 4.424 expressly states: “Before determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts.”
DISPOSITION
In our review of the abstract of judgment, we note that the clerk erroneously marked “Consecutive 1/3 Violent” in preparing the abstract as to Counts II and IV. These were concurrent terms and therefore, the appropriate commitment is to the selected term with that term stayed upon order that it be concurrent. The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting the appropriate term. The
true finding of appellant's 1989 Wisconsin burglary conviction is reversed for the reasons stated and remanded to the trial court for determination as to retrial. In all other respects the judgment is affirmed.
WE CONCUR: Vartabedian, J., Kane, J.