Opinion
A164280
10-03-2023
THE PEOPLE, Plaintiff and Respondent, v. R. ZACHARIA GRUBBS, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 18CR010149
Markman, J. [*]
Defendant R. Zacharia Grubbs appeals his jury conviction for first degree murder (Pen. Code, § 187, subd. (a)). Grubbs contends the trial court violated his due process rights because (1) it failed to properly instruct the jury regarding the burden of proof on potential lawful excuses for his conduct, and (2) it gave an allegedly incomplete answer to a question from the jury about the same topic. We conclude that the trial court properly instructed the jury and that any potential instructional error was harmless under the circumstances. We also conclude that the court's response to the jury's question, which defense counsel himself proposed, was legally accurate and procedurally adequate. We therefore affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
A. The Shooting
The evidence at trial reflected that Grubbs and his victim, Andre "Dre" Margain, lived in the San Leandro area. Friends knew Grubbs by his nicknames "Zach" and "Red Beard," and knew he made money by "hustling," including by selling drugs. Margain was known as a "thug" and "gangster"; he had a reputation for robbing people at gunpoint. Grubbs testified that Margain and another man robbed Grubbs at gunpoint, taking money, drugs, and a backpack. Grubbs bragged he was "going to get" Margain, and said he thought he should steal Margain's Harley-Davidson motorcycle. He heard the motorcycle comment got back to Margain, who said Grubbs needed to "quit running [his] mouth or something bad [would] happen."
On June 7, 2018, about a week after Margain robbed him, Grubbs was driving his 2000 Honda Odyssey minivan. According to Grubbs, when he was stopped at a traffic light, Margain approached him on a motorcycle and threatened that Grubbs "was going to get knocked down." "Being knocked down means that I'm going to get killed," Grubbs explained. Then Margain "took off."
Grubbs continued driving and, approximately eight or nine minutes later, made a turn and then stopped at another light. This time, Margain pulled up on the passenger side of Grubbs's minivan. Grubbs said Margain was "as close as you can get without actually rubbing against-him rubbing the handle-bars against the side of the van, like, he could easily stick his hand into my window." According to Grubbs, Margain again threatened to shoot him and made a gesture with his right arm. Grubbs testified he was "scared to death," believed Margain was following him, and thought Margain intended to shoot him.
When the light changed, Grubbs drove into the intersection and swerved towards Margain "[t]o try to knock him off his motorcycle" so that Grubbs could then "take off, get away." Though Grubbs briefly got in front of Margain, Margain was then able to pass Grubbs on the passenger side of the minivan.
Grubbs kept Margain in front of him until Margain made a right turn. Margain maintained the same speed. Grubbs made the same turn. Margain then went the wrong way through a roundabout. Grubbs followed, trying to keep up. Margain began to "gain more distance in between speed bumps." Margain proceeded into a residential area and got further ahead of Grubbs. Grubbs did not try to leave the area but instead focused on following Margain.
Then, according to Grubbs, Margain "[p]retty abruptly" slowed down, veered to the left, and reached for his belt "like he was going to grab . . . some firearm." Grubbs believed Margain was "going for a gun" because of "[e]verything that had happened, you know, him robbing me, pulling a gun on me, him telling me I was going to get knocked down, getting shot, him appearing to tap the gun at the stop light, the fact that he's always-not always but majority of the time I've seen him before that he had a weapon on him, a gun, I mean all that."
Grubbs grabbed his own gun from in between his leg and his seat. He shot Margain. Margain collapsed in a nearby driveway. When first responders arrived, Margain was dead. Investigators searched the scene and Margain's motorcycle, but did not find any firearms.
Grubbs left the scene of the shooting and threw the gun he used to kill Margain into Lake Chabot. He purchased a 2005 Honda Odyssey and left the 2000 Odyssey parked on the street. An acquaintance texted Grubbs asking if he knew what happened to Margain. Grubbs replied, "he robbed the wrong person." Grubbs called Margain a "piece of shit" and said he robbed "his friends' friends" and "[o]ne of those friends shot him."
Grubbs was arrested five days after the shooting as he was getting into his new 2005 Odyssey. He told police he did not own a 2000 Odyssey but had recently bought the 2005 Odyssey, claimed nothing memorable had happened on June 7, and said he learned via Facebook that Margain had been killed. Grubbs did not tell investigators that Margain had previously robbed him or had threatened his life on the night of June 7.
Calling a friend from jail, Grubbs said an officer "got me on film." He said he "should have left," but that "they would have caught me sooner or later" and he "knew what game [he] was playing when [he] started." He told the friend where the 2000 Odyssey was parked, and agreed with the friend that he would figure it out and beat the case.
B. The Information
Prosecutors charged Grubbs by information with murder (§ 187, subd. (a)), including alleged enhancements based on intentionally discharging a firearm causing death and personally inflicting great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b)-(d), (g), 1203.06, subd. (a)(1).) Prosecutors also charged Grubbs with shooting at an inhabited dwelling (§ 246), possession of a firearm by a felon (§ 29800, subd. (a)(1)), and possession for sale of a controlled substance (Health &Saf. Code, §§ 11351, 11378). The charge for shooting at an inhabited dwelling also included enhancements based on use of a firearm and inflicting great bodily injury. (§§ 12022.5, subd. (a); 12022.7, subd. (a).) The information alleged Grubbs had four prior felony convictions.
C. Jury Instructions
The trial court instructed the jury using the standard Judicial Council's Criminal Jury Instructions, known as the CALCRIM instructions. These instructions included CALCRIM Nos. 500 (describing homicide and introducing the concepts of lawful excuse and justification), 505 (self-defense), 522 (provocation), 570 (heat of passion), 571 (imperfect self-defense), and 625 (voluntary intoxication).
The trial court instructed the jury on murder with CALCRIM No. 520, which is the focus of Grubbs's arguments on appeal. The instruction, as read to the jury, explained in relevant part: "The defendant is charged with murder in violation of Penal Code section 187. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant committed an act that caused the death of another person; Two, when the defendant acted, he had a state of mind called malice aforethought; and Three, he killed without lawful justification."
The third element of the form CALCRIM No. 520 instruction contains parenthetical language "(excuse/[or] justification)," and so the trial court needed to determine what language should be used before reading it to the jury. The notes for the form instruction simply state: "Give element 3 when instructing on justifiable or excusable homicide."
The trial court reviewed the proposed jury instructions with counsel before delivering them to the jury. When the court reached CALCRIM No.520, counsel briefly discussed the concept of express versus implied malice:
"[Counsel for Grubbs]: This speaks to both express and implied, is that how we want it Mr. Marin?
"[Prosecutor]: Yeah, that's how it always is. They don't need to agree how they get there."
No one objected to or asked to modify the proposed version of CALCRIM No. 520. The trial court read the language "killed without lawful justification," and did not read the instruction as "killed without lawful excuse or justification."
D. Question from the Jury
During its deliberations, the jury asked a question about CALCRIM No. 520: "[I]n Section 520, for lawful justification of murder, is self-defense the only lawful option available for us to consider? Self-defense as described in 505." Before responding to the jury, the trial court asked counsel for both sides to provide input the following day, noting the extra time could be helpful to everyone because the jury's question was confusing.
At the same time, the jury also asked to "have two more copies of the applicable laws" with "all the pages numbered" because "it is easy to get the pages out of order." The court complied with the jury's request.
The next day, counsel both advised the trial court that the best course of action would be to simply refer the jurors back to the jury instructions themselves. The prosecutor began: "As I was talking to [counsel for Grubbs] off the record, I'm not saying the court should answer it that way, I do think the answer is, yes, that that is the only lawful option for us to consider when it comes to murder, but I would never advise the court to point in that direction. So I think [counsel for Grubbs] and I will agree that a simple vague, you have the instructions refer to those. The only other option I thought, and I don't know if the court wants to bring them up and tell them, we don't understand the question that's why the answer is so vague and you have the instructions to refer to."
Grubbs's counsel agreed. He explained: "My position is that ultimately what [the prosecutor] just said at the very end, which is the court cannot answer this question in the affirmative or in the negative in any way. The question is confusing, it's not clear, and it would be improper for the court to answer in the way that they have phrased it. I think the court should do what it has done, which is refuse to comment on the evidence and point them in any direction and just give them the answer that you have all the-you have been given all the law that applies in this case. I think that's the only proper answer." Grubbs's counsel thought it would be improper to ask the jury for clarification, and the trial court agreed it did not want to "get[] in a dialogue with them."
The discussion continued:
"The Court: I think the safest thing to do is just to say, you have been provided with all the law applicable to this case.
"[Counsel for Grubbs]: I agree.
"[Prosecutor]: That's fine.
"The Court: I think that's what I'm going to say. Yeah, you've been provided with all the law that's applicable to this case. [¶] . . . [¶] I'm going to read it to you right now to make sure we approve. [¶] Should I say anything beyond that? I said, 'you have been given all the law applicable to this case.'
"[Prosecutor]: I'm fine with that.
"[Counsel for Grubbs]: I'm fine with that as well."
The court sent the written response to the jurors, who continued their deliberations.
E. Verdict and Sentencing
The jury convicted Grubbs of first degree murder (§ 187, subd. (a)), shooting at an inhabited dwelling (§ 246), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The court sentenced Grubbs to a prison term of 25 years to life. Grubbs timely appeals.
DISCUSSION
Grubbs contends the trial court violated his due process rights by eliding the word "excuse" from the third element of the definition of murder found in CALCRIM No. 520, thereby misleading the jury regarding the burden of proof concerning the lack of a lawful excuse to murder. He contends the trial court further erred by referring the jurors back to the instructions they had been provided when they submitted a written question regarding the same jury instruction. The Attorney General argues that Grubbs forfeited these claims of error by failing to object to the trial court's CALCRIM No. 520 instruction below, and by proposing the response the court gave to the jury's question. We begin with this forfeiture argument.
I. No Forfeiture
Counsel for Grubbs did not object to CALCRIM No. 520 as proposed. Counsel briefly discussed the proposed instruction with the court, but no one mentioned the language used in the third element. In general, "[f]ailure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights." (People v. Anderson (2007) 152 Cal.App.4th 919, 927 [question is whether error resulted in "miscarriage of justice"].) That general rule, however, does not apply to an instruction that incorrectly stated the law or affected the appellant's "substantial rights." (§ 1259.)
Accordingly, we examine the merits of Grubbs's challenge to confirm that the instruction correctly stated the law and did not adversely affect his substantial rights. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 (Ramos).) Given that Grubbs challenges the answer to the jury question based on alleged misunderstanding from the CALCRIM No. 520 instruction, we review the merits of that argument as well. We turn first to the jury instruction.
II. No Instructional Error Requiring Reversal
We review the legal adequacy of the jury instruction CALCRIM No. 520, as given to the jury, de novo. (Ramos, supra, 163 Cal.App.4th at p. 1088.)" 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole. We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (People v. Yoder (1979) 100 Cal.App.3d 333, 338; People v. Solomon (2010) 49 Cal.4th 792, 822; see also People v. Sanchez (2001) 26 Cal.4th 834, 852 [explaining jurors are "presumed able to understand and correlate instructions"].) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
" '[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is" 'whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.'" '" (People v. Mills (2012) 55 Cal.4th 663, 677, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.) We will reverse the judgment where the incorrect instruction" 'so infused the trial with unfairness as to deny due process of law.'" (Estelle at p. 75, quoting Lisenba v. California (1941) 314 U.S. 219, 228.)
Grubbs contends that the standard of review should be whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18.) The Neder decision, however, is inapposite. That case concerned a true structural error-the complete failure to charge the jury with the element of materiality when asking them to assess criminal liability for tax fraud. (Id. at pp. 4, 14.)
Grubbs bears the burden to demonstrate a "reasonable likelihood" that the jury understood the instruction in the way he asserts. (People v. Cross (2008) 45 Cal.4th 58, 68-69.) Here, Grubbs argues that the omission of the words "excuse or" from CALCRIM No. 520 impacted the jury's ability to understand four of his theories, which he calls "partial defenses" or "excuses": provocation, heat of passion, imperfect self-defense, and voluntary intoxication.
We are not persuaded that Grubbs has met his burden to show reversable instructional error here. First, CALCRIM No. 520, as read by the court, sets forth the elements of murder consistent with the law. The instruction explained that the prosecution had the burden to prove the lack of any lawful justification beyond a reasonable doubt. It did not suggest that Grubbs had any burden to prove justification or excuse. Nor did it more specifically suggest that Grubbs had any burden to prove self-defense, provocation, heat of passion, or voluntary intoxication.
Complete defenses like accident or misfortune did not apply here because Grubbs admittedly shot Margain on purpose. (See § 195; CALCRIM Nos. 510 & 511; see also People v. Frye (1992) 7 Cal.App.4th 1148, 1155.)
Second, the trial court gave the jury accurate instructions as to the burden of proof concerning each of Grubbs's specific theories-complete and incomplete self-defense, provocation, heat of passion, and voluntary intoxication. The court instructed the jury on lawful self-defense, a form of justifiable homicide that was the major focus of the defense at trial. The court used CALCRIM No. 505, which unambiguously explained that "The People have the burden of proving beyond a reasonable doubt that the killing was not justified."
The court instructed the jury on imperfect self-defense, using CALCRIM No. 571. That instruction explains: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete selfdefense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable." The instruction included the elements needed for a defendant to have acted in imperfect self-defense, definitions of those elements, and what information may be considered in evaluating whether the elements had been met here. It concluded: "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
The trial court instructed the jury concerning potential provocation and heat of passion theories using CALCRIM Nos. 522 and 570. CALCRIM No. 522 explained to the jury that "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter." CALCRIM No. 570 explained that "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." The jurors then learned the elements of the sudden quarrel or heat of passion theories. And again, CALCRIM No. 570 concludes: "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
The trial court also instructed the jury concerning the theory of voluntary intoxication (CALCRIM No. 625) as potentially impacting whether Grubbs "acted with an intent to kill or . . . acted with deliberation and premeditation." Of course, the jury instructions concerning the intent to kill, deliberation, and premeditation all require that the prosecution prove those elements beyond a reasonable doubt.
Viewing these more specific instructions as a whole, omission of the phrase "excuse or" from CALCRIM No. 520 did not render the instructions confusing or less accurate. Instruction after instruction repeats that the prosecution, not the defense, bears the burden of proof beyond a reasonable doubt as to the lack of any lawful justification or excuse. None of the instructions suggest any difference in approaching how to evaluate a "justification" versus an "excuse"; the instructions treat those terms as essentially synonymous with regard to the burden of proof.
In short, the trial court correctly instructed the jury on the distinction between justifiable and unlawful homicide. It also gave specific (and correct) instructions on the four "partial defenses" Grubbs's claims were affected by the omission: provocation, heat of passion, imperfect self-defense, and intoxication. The court repeatedly instructed the jury that the People bore the burden to prove Grubbs's mental state, and to disprove heat of passion and imperfect self-defense beyond a reasonable doubt. (People v. Schuller (2023) 15 Cal.5th 237, 253-254 [standard jury instructions addressing heat of passion and imperfect self-defense include appropriate direction on the People's burden of proof].) The court further instructed the jury to consider provocation and intoxication when deciding if Grubbs committed first degree murder or a lesser offense. Viewing these instructions as a whole, Grubbs has not met his burden to show reversable instructional error here.
Third, we are reassured that Grubbs did not suffer a deprivation of due process here by our review of the record, which reflects that the prosecution did in fact establish the lack of any lawful justification or excuse beyond a reasonable doubt. Before the shooting, Grubbs made a number of comments to others concerning his desire for revenge following his prior interactions with Margain. He proposed taking Margain's motorcycle, which is not the reaction of someone fearing for his life. Grubbs himself testified that on the night of the shooting, he tried to use his minivan to run Margain's motorcycle off the road. Grubbs could have disengaged from the fateful encounter with Margain but did not do so. The jury watched video of Grubbs behind Margain until Grubbs caught up with him. When Margain pulled away from the minivan and turned a corner, Grubbs followed him around the corner and continued to follow him rather than attempt to flee. As the prosecutor put it during closing argument, "Mr. Margain was getting further and further away from the defendant and it was the defendant who caught up to him." Law enforcement found no weapon on or near Margain's body during the investigation after the shooting. Grubbs disposed of his weapon by throwing it in Lake Chabot. He disposed of the minivan he drove during the shooting. He did not volunteer that he had shot Margain in self-defense.
As for voluntary intoxication, Grubbs had testified he had taken "some meth" on the day of the shooting but was feeling euphoric rather than incapacitated. Grubbs explained that methamphetamines did not make him more violent on the day of the shooting. Nor did it give him an "itchy trigger finger that day." For Grubbs, the methamphetamine was an "enjoyable experience" rather than something that prevented him from acting with deliberation and premeditation.
In sum, we have no reason to believe the jury would hear all the instructions the trial court used here and then conclude the People did not have the burden of proof on provocation, heat of passion, imperfect selfdefense, and/or intoxication, or somehow think that the jury need not even consider these doctrines or that the defendant (rather than the prosecution) had the burden of proof to establish the absence of facts to support any of Grubbs's theories. Based on the entire charge to the jury, we conclude that the trial court did not improperly "truncate" or misuse CALCRIM No. 520. (See Ramos, supra, 163 Cal.App.4th at p. 1088.)
III. The Response to the Jury's Question Was Appropriate
A trial court has a general obligation to clear up instructional confusion expressed by the jury. (People v. Dykes (2009) 46 Cal.4th 731, 802.) The court does not, however, always have to elaborate on the standard instructions. (People v. Lua (2017) 10 Cal.App.5th 1004, 1016.) If the original instructions are themselves complete, the court has discretion to determine what additional explanations suffice to satisfy the jury's request. (Dykes, at p. 802.) Still, it is generally not appropriate to merely repeat the text of an instruction the jury has indicated it does not understand, and the court must at least consider how it can best aid the jury. (People v. Franklin (2018) 21 Cal.App.5th 881, 887.)
Grubbs claims the trial court should have responded to the jury's question by telling jurors that to convict him of murder, the People "had to prove the absence not only of justification through self-defense, but also the absence of excuse through provocation, heat of passion, imperfect selfdefense, and intoxication." We disagree. Not only did counsel for Grubbs fail to make such a suggestion to the court before the court answered the jury's question, but counsel in fact argued to the court that self-defense was the only "lawful option" for the jury to consider. The jury had already been correctly instructed, and so everyone agreed the best course of action was to simply refer the jury back to the instructions they had already been given. There was no reason for the court to issue a supplemental instruction, as trial counsel recognized. Certainly nothing about the trial court's agreed-upon written response to the jury's question rises to the level of a deprivation of due process. Ultimately, the jury's question affirms it correctly understood that to find Margain's killing was "lawful," it would need to find Grubbs acted in self-defense.
While the headings in Grubbs's briefs mention ineffective assistance of counsel, he does not present any argument or authority on the issue. Grubbs has forfeited separate appellate consideration of the issue. (See People v. Sorden (2021) 65 Cal.App.5th 582, 613-614.)
DISPOSITION
The judgment is affirmed.
We concur: Stewart, P.J. Miller, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.