Opinion
E051047 Super.Ct.No. FBA800756
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. GEORGE FOOTE, Defendant and Appellant.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant George Foote was convicted by a jury of attempted voluntary manslaughter and assault with a firearm. On appeal, he contends the reasonable doubt instructions were faulty for failing expressly to inform the jury that it must find each individual element of the crime beyond a reasonable doubt. We affirm.
FACTS AND PROCEDURAL HISTORY
Defendant became acquainted with the victim, Theresa Stores, and in August 2008 he offered to let her live with him rent free, if she cleaned his house. She agreed.
On November 15, 2008, Stores was in the backyard of the home. A problem with some drains and sewer lines had led to some stagnant water standing in the yard. Stores was attempting to clean up the water so the pipes could be repaired. At approximately 10:00 a.m., Stores was in the yard, using a hoe and a shovel to pull boards and debris out of the way so she could get to the water. Defendant came out of the house and told her, "You're not going to do any more work around here." Stores cursed in response and said she would finish what she was doing. Defendant said, "We'll see about that," and went back into the house. Defendant returned a few minutes later, and Stores heard a sound like cocking a shotgun. Stores may have had a hoe or shovel in her hands, but she was 25 feet away from defendant when he came out with the shotgun. Stores denied threatening defendant at any time.
Stores did not remember hearing a shot but she felt it, and her arm flew up in the air. She felt hot blood and everything seemed like a cloud around her. She went into the house and dialed 911 on the telephone; she told the dispatcher that she had been shot. Stores went to defendant's truck and climbed in, begging defendant to take her to the hospital. Defendant drove by an unusual route and seemed to drive very slowly. He looked at Stores and said, "You aren't dead yet?" Defendant finally arrived at the hospital and let Stores out in the parking lot, saying, "I'm not going in with you."
Stores went straight in through the hospital doors and collapsed. As far as Stores could remember, she was in the hospital for 30 days and had two operations on her arm. At the hospital, the treating physician found Stores had suffered a significant gunshot wound to her left shoulder and arm.
Sheriff's deputies responded to the 911 call and went to defendant's house. Deputy Damon Ward saw blood stains in the front yard, and found a telephone lying in the dirt. In the backyard, he found an expended shotgun shell, more blood, and what appeared to be bloody bone and tissue on the ground. There was also a hoe leaning against a fence in the backyard.
Defendant soon arrived home. At first, defendant told the deputies that someone else had shot Stores. When Deputy Ward pressed defendant to tell the truth, defendant changed his story; he told the officers to gather around so he would only have to tell his story once. Defendant then related that he and Stores had argued, and Stores had gone into the backyard to get a hoe. She threatened to hit defendant with the hoe. Defendant then retrieved his shotgun from the gun safe. Defendant went out and confronted Stores, telling her two or three times to drop the hoe. When she refused, he claimed that he "defended himself" by shooting Stores. Defendant said he was 10 to 15 feet away from Stores when he fired his weapon; the expended shotgun shell was found about 10 feet away from the hoe.
Inside defendant's house, deputies found a locked gun safe. Defendant opened the safe and the deputies recovered a pistol, a rifle, and a shotgun. All of the guns were loaded. The shotgun barrel smelled as if it had recently been fired.
Another deputy had gone to the hospital where he talked to Stores. Stores told the deputy that defendant had shot her.
Defendant agreed to accompany the deputies to the police station to talk about the shooting. Defendant waived his constitutional rights and repeated the story that Stores threatened to hit him with the hoe, so he went inside to get his shotgun. When one of the deputies asked defendant why he chose the shotgun, defendant grinned and said if he had selected one of his other guns, "me and him would be talking about different charges."
Defendant was arrested; he was ultimately charged with one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). It was also alleged, as to both counts, that defendant had personally discharged a firearm, causing great bodily injury (GBI), and that he had personally used a firearm.
Defendant testified in his own behalf at trial. Defendant became upset because Stores had made disparaging remarks about defendant's deceased wife; he told Stores, "You're out of here now." Stores went to the backyard and retrieved a hoe, which she began swinging at defendant. Defendant ordered Stores to drop the hoe, but she refused. He went into the house and got his shotgun. He elected not to lock himself inside the house, because Stores had broken windows in the past, so he did not feel safe.
Defendant went outside with the gun. Stores continued ranting and raving and swinging the hoe wildly, and carried on in this manner for about 10 minutes. Stores refused to put down the hoe. Defendant, who is 71 years old, did not feel he could physically disarm Stores, and he feared she would strike him in the head and kill him. When Stores advanced, defendant shot her. They were about 10 to 15 feet apart when defendant fired the gun. Defendant did not shoot to kill.
Defendant then told Stores to go to the truck so he could drive her to the hospital, which he proceeded to do. He dropped Stores off with her belongings at the emergency room and then he went home.
The jury acquitted defendant of the charge of attempted murder, but found him guilty of a lesser included offense, attempted voluntary manslaughter. The jury also convicted defendant of the assault with a firearm charge. The jury found all the allegations true as to both counts.
The court imposed a total state prison sentence of 10 years (midterm of three years on count 2, the principal count, plus midterm of three years consecutive on the GBI enhancement, plus low term of four years consecutive for personal use of a firearm; midterm of three years for attempted voluntary manslaughter, plus midterm of three years on the GBI enhancement, both stayed; firearm enhancement on count 1 was stricken by stipulation).
Defendant filed a late notice of appeal, but, for good cause, this court found it constructively filed within 60 days of the judgment.
ANALYSIS
I. Defendant's Contention and Standard of Review
Defendant raises a single contention on appeal: He urges that the court erred in failing expressly to instruct the jury that it must find that the prosecution has proved "each element" of a criminal charge or enhancement beyond a reasonable doubt. He contends that the failure to so instruct permitted the jury to find defendant guilty, or to find an enhancement true, if it found some, but not all, of the elements were proven beyond a reasonable doubt.
Defendant did not request a special instruction on reasonable doubt to amplify the point he seeks to raise here. Rather, he relies on the trial court's sua sponte duty to instruct on the applicable burden of proof and the elements of the charged offense. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182] [rights to due process and jury trial require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt].) The proper scope and sufficiency of jury instructions on foundational principles is a question of law, which we review de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
II. The Instructions Given on Reasonable Doubt
This is not a case in which the court failed or neglected to give reasonable doubt instructions. (See, e.g., People v. Vann (1974) 12 Cal.3d 220.) The court gave CALCRIM No. 220, the standard reasonable doubt instruction, as follows: "The fact that a criminal charge has been filed against the defendant(s) 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. [¶] 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."
The court also instructed as to mental state: "The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular intent. The instructions for each crime explain the intent required." (CALCRIM No. 225.) CALCRIM Nos. 250 and 251 instructed that the crimes charged required proof of the union, or joint operation, of act and wrongful intent, either a general intent (assault with a firearm) or specific intent (attempted murder, firearm discharge and personal use enhancements).
In addition, of course, the instruction on the necessary elements of each charged offense, lesser offense, and allegation, including frequent reminders that the People were required to prove certain matters, and that such matters were required to be proved beyond a reasonable doubt.
The court gave CALCRIM No. 600 on attempted murder (count 1), stating: "[T]he People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person."
The court gave CALCRIM No. 604 on attempted voluntary manslaughter, including the statement: "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect selfdefense. If the People have not met this burden, you must find the defendant not guilty of attempted murder."
The court gave CALCRIM No. 875 on assault with a firearm, including: "the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. 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 [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm to a person; [¶] AND [¶] 5. The defendant did not act in selfdefense."
The court also defined the elements of simple assault, a lesser offense to count 2, in CALCRIM No. 915: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. 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 [¶] 4. When the defendant acted, he had the present ability to apply force to a person; [¶] AND [¶] 5. The defendant did not act in selfdefense."
As to the enhancements for being personally armed with a firearm, the court instructed that the jury "must then decide whether the People have proved the additional allegation," and setting forth the elements to be proved (carrying the firearm or having it available for use, coupled with knowledge that he or she has the firearm); the court further stated: "The People have the burden of proving each allegation beyond a reasonable doubt." (CALCRIM No. 3131)
As to the finding that defendant personally used a firearm, the court similarly instructed that the jury "must then decide whether the People have proved the additional allegation," setting forth the elements (intentional display of a firearm in a menacing manner, hitting someone with the firearm, or firing the firearm); again, the People had "the burden of proving each allegation beyond a reasonable doubt." (CALCRIM No. 3146.)
As to the allegation that defendant personally discharged a firearm, the court instructed by CALCRIM No. 3148 that the jury "must then decide whether the People have proved the additional allegation," that the "People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission or attempted commission of the crime; [¶] AND [¶] 2. The defendant intended to discharge the firearm." As before, the jury was instructed that, "The People have the burden of proving each allegation beyond a reasonable doubt."
As to the GBI allegation, the court instructed (CALCRIM No. 3150) that the jury was required to decide "whether the People have proved the additional allegations that the defendant personally and intentionally discharged a firearm during that crime and, if so, whether the defendant's act caused great bodily injury or death." The court specifically stated "the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission or attempted commission of that crime; [¶] AND [¶] 2. The defendant intended to discharge the firearm." If these matters were proved, then the jury must decide "whether the People also have proved that the defendant's act caused great bodily injury to a person," defining great bodily injury, and causation. The court instructed, "The people have the burden of proving each of these allegations beyond a reasonable doubt."
III. As a Whole, the Instructions Given Properly Conveyed to the Jurors that Each
Element of a Criminal Charge Must Be Found Beyond a Reasonable Doubt
Defendant contends that, despite the instructions given, including many references to the matters the People were required to prove, and repeated admonitions that the People were required to prove such matters beyond a reasonable doubt, the jury nevertheless "cannot adequately understand and apply the reasonable doubt standard unless it is clearly instructed that it must find each element was proved beyond a reasonable doubt."
The California appellate courts have repeatedly rejected similar claims. (See People v. Henning (2009) 178 Cal.App.4th 388, 406, & fn. 3 [describing the argument as "frivolous"]; People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089.)
In People v. Riley (2010) 185 Cal.App.4th 754, for example, Division One of the Fourth District upheld CALCRIM No. 220:
"Construed in the context of the instructions as a whole, CALCRIM No. 220 adequately explains the applicable law. CALCRIM No. 220 expressly instructs that, 'Whenever [the court] tell[s] you the People must prove something, [the court] mean[s] they must prove it beyond a reasonable doubt.' The court also instructed the jury on the elements of [the crime at issue], stating, 'To prove that the defendant is guilty of this crime, the People must prove that: . . . .' [setting forth the requisite elements]. Thus, the instructions as a whole informed the jury that the People had to prove each element of the offense, and also told the jury that whenever the court instructed that the People had to prove something, this meant that the People had to prove it beyond a reasonable doubt. The court in Ramos, supra, 163 Cal.App.4th at page 1089, concluded that similar instructions (i.e., the current version of CALCRIM No. 220, in combination with the court's statement that the People must prove each of the elements of the specific offenses) 'adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt.' We conclude that as in Ramos, the instructions, as a whole, were sufficient to inform the jury that the prosecution had the obligation to prove each element beyond a reasonable doubt.
"Riley contends that two cases on which the People rely for the proposition that CALCRIM No. 220 is adequate despite the omission of the 'each element' or 'every element' language—i.e., People v. Henning (2009) 178 Cal.App.4th 388 (Henning)and Wyatt, supra, 165 Cal.App.4th 1592—are not sufficiently analogous to her case. Riley notes that in those cases, in addition to instructing with CALCRIM No. 220, the trial courts also instructed with CALCRIM No. 361, ' "which concerns the evaluation of a defendant's failure, if any, to explain or deny adverse evidence against him, and states: 'The People must still prove each element of the crime beyond a reasonable doubt.' . . ." [Citation.]' (Henning, supra, 178 Cal.App.4th at p. 406; see also Wyatt, supra, 165 Cal.App.4th at p. 1601.) Riley complains that the trial court gave no similar instruction here, implying that the lack of such an instruction means that the jury in this case was not sufficiently informed that the prosecutor was obligated to prove each element of the crime charged beyond a reasonable doubt. We reject this contention.
"First, at least one other court has concluded that CALCRIM No. 220 is adequate, even in the absence of CALCRIM No. 361. (See Ramos, supra, 163 Cal.App.4th at p. 1089.) Further, it is clear that the Wyatt and Henning courts did not base their conclusions that CALCRIM No. 220 provided an adequate instruction solely on the fact that the trial courts in those cases instructed the juries with CALCRIM No. 361. Although the Wyatt and Henning courts noted that the trial courts had included CALCRIM No. 361 in the instructions, the courts indicated that the fact that this instruction was given was an additional reason why they concluded that the juries had not been misled into believing that they did not have to find the existence of each element of an offense beyond a reasonable doubt.
"We do not view the giving of CALCRIM No. 361 as necessary to ensure that the jury understands that the prosecutor must prove each element of a crime beyond a reasonable doubt. The CALCRIM No. 220 instruction—which informs the jury that when the court says that the People must prove something, the People must prove it beyond a reasonable doubt, combined with the court's instruction that the People must prove each element of the offense (which is given whenever the court instructs on the elements of an offense), adequately informs the jury that it must find that each element has been proved beyond a reasonable doubt.
"We conclude that CALCRIM No. 220, viewed together with the instruction on the offense . . . correctly informed the jury that the prosecutor bore the burden of proving each element of the crime beyond a reasonable doubt." (People v. Riley, supra, 185 Cal.App.4th at pp. 768-770.)
We adopt the same analysis. The court clearly informed the jury that "whenever" the court stated that the People must prove something, it meant that the People must prove that matter beyond a reasonable doubt. The court plainly stated as to each charge, lesser included offense or enhancement finding, what the People were required to prove, i.e., each "something" was required to be proven beyond a reasonable doubt. Defendant's assertion that "something" could be understood to mean the crime as a whole rather than the elements of each crime or finding strains the common meaning of language. No other reasonable interpretation could be placed on the court's instructions that "whenever" the People were required to prove "something," coupled immediately with a laundry list of elements, which the court specifically stated the People were required to prove, than that each such element was a "something" to be proved beyond a reasonable doubt.
We also agree with the Ramos court with respect to defendant's discussion of out-of-state cases: "Finally, defendant cites numerous out-of-state authorities indicating that many other jurisdictions use the 'each element' or 'every element' language in their jury instructions on reasonable doubt. While we do not doubt that the use of such language is appropriate (see People v. Cole [(2004)] 33 Cal.4th 1158, 1208), defendant has not cited any California or United States Supreme Court authority holding that it is constitutionally required." (People v. Ramos, supra, 163 Cal.App.4th 1082, 1090.)
DISPOSITION
For the reasons stated, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.