Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FBA009626, John B. Gibson, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Melvin Lamar Hodge shot his neighbor, Herbert Daire, after defendant, along with his cousin, exchanged words with Daire in the stairwell of their Barstow apartment complex. Defendant was convicted of attempted murder and assault with a firearm. Defendant now contends:
1. Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3517 did not fully instruct the jury on reasonable doubt as it pertained to the greater and lesser offenses.
2. The trial court did not adequately poll the jury after receiving unnecessary verdict forms on the lesser offense enhancements and erred by refusing to release the jurors’ names and addresses in order to investigate the additional verdicts for a possible new-trial motion.
3. CALCRIM Nos. 603 and 604 deprived him of his due process rights and improperly intruded into the deliberative process.
We conclude that there was no prejudicial error and affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was convicted of attempted murder (Pen. Code, §§ 664/187) and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true the allegations that defendant personally and intentionally used a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), and (d)) and personally caused great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to state prison for a 7 year determinate term, plus a consecutive term of 25 years to life on the weapons-use enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. Prosecution
On August 20, 2006, defendant, who was known as “Trouble,” lived at an apartment complex located at 200 West Williams in Barstow, which was known as the “Zoo.” About 11:00 a.m. on that day, defendant and Reggie Harris, Jr., or “Little Man,” approached defendant’s neighbor, Herbert Daire, as Daire was walking up the stairs to his apartment. Harris instigated a fight with Daire. Daire proceeded up to his apartment on the second floor. Harris and defendant followed after him. As Daire was trying to unlock his front door, he turned to face defendant and Harris. Defendant pointed a gun at Daire.
Daire had previous convictions for petty and grand theft.
Daire was shot in the arm and chest. He told a neighbor to call paramedics.
Daire was hospitalized for four or five days and had permanent damage to his hand and fingers. Prior to trial, Daire identified defendant from a six-pack photographic lineup as the man who shot him. At trial, Daire stated that he did not actually see who shot him.
Daire’s next door neighbor, Kendra Williams, heard a disturbance outside her door that morning. She opened her door and saw defendant, Harris, and Daire arguing. Williams told police prior to trial that defendant told Harris to “move,” and then defendant shot Daire. At trial, Williams testified that she did not see who had the gun.
Prior to trial, Williams identified Harris and defendant from photographic lineups and stated that defendant was the shooter. At trial, Williams said for the first time that there was a fourth man on the stairs wearing a white T-shirt. She also said that she heard Daire say that he was going to “pop” somebody. Williams admitted she was concerned that she would be hurt based on her testimony in court. She would be in more danger if she identified the shooter.
Harris’s friend, Brian Freeman, picked up defendant and Harris from the Zoo after the shooting and drove them to his house. Harris was very upset, but defendant was not. At trial, Freeman claimed that defendant told him that someone had been shot at the Zoo. Defendant did not name the victim and did not indicate who shot the victim. Freeman stated that Harris told him that he and defendant got into a fight with a man, who threatened to get a gun and shoot them. At that point, they heard a gunshot from behind them, and they ran.
Freeman had several prior felony convictions.
Freeman told police prior to trial that Harris told him he and defendant had gotten into an argument with Daire. Defendant retrieved a gun and put it in his back pocket. Harris and defendant went to confront Daire at his apartment door. Harris told Freeman that Daire threatened that he was going to go inside his apartment and get his gun. When Daire was having trouble opening the door to this apartment, defendant reached around Harris and shot Daire.
Freeman told police prior to trial that defendant had told him that he shot Daire. Although Freeman admitted at trial that he identified defendant from a photographic lineup, he did not recall that he told police defendant was the shooter. Freeman also told the deputy district attorney prior to trial that the police reports were incorrect and that he never identified defendant as the shooter.
B. Defense
Defendant testified as follows on his own behalf. Harris confronted Daire because Daire had tried to sell a gun to defendant’s little brother. Harris ended up hitting Daire, and Daire ran up to his apartment. Despite defendant telling Harris they should leave, Harris ran up the stairs. Defendant denied he had a gun and denied he shot Daire. He claimed that either Harris or another man, who was standing near another apartment, shot Daire. Defendant was not sure whether Harris told Freeman that defendant had shot Daire.
Defendant told the police that, after the initial fight downstairs, he and Harris ran away before the shooting. At trial he said he had lied to the police because he was afraid for his life if he told on Harris or the other man. Defendant knew that Daire owned guns, and he was afraid of him. When defendant returned to the Zoo, his neighbors told him that he had better leave, because he was wanted for attempted murder. Although defendant wanted to talk to the police about what happened, his mother told him not to. Defendant went to Las Vegas.
III
INSTRUCTIONAL ERROR ON THE BURDEN OF PROOF ON THE GREATER AND LESSER OFFFENSES
Defendant claims that CALCRIM No. 3517 does not adequately instruct on the requirement set forth in People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry) that the jury be instructed that, if they have a reasonable doubt as to whether the defendant committed the greater or lesser offense, they are required to find the defendant guilty of the lesser offense.
Here, despite limited evidence in support thereof, the trial court chose to instruct the jury on the lesser offense of attempted voluntary manslaughter out of an abundance of caution. The jury was instructed on the lesser offense of attempted voluntary manslaughter for the attempted murder charge in count 1 on the theories of both heat of passion and imperfect self-defense. The trial court also instructed the jury pursuant to CALCRIM No. 3517, which informed the jury in pertinent part: “You can not find the defendant guilty of both attempted murder and the lessor [sic] offense of attempted voluntary manslaughter. If you agree the defendant is not guilty of attempted murder, but you agree the People have proved the defendant is guilty of attempted voluntary manslaughter, you must do two things. First, complete the verdict forms stating the defendant is not guilty of attempted murder; then, complete the verdict form stating that the defendant is guilty of attempted voluntary manslaughter. Do not complete the verdict form stating the defendant is guilty of attempted voluntary manslaughter unless you all agree the defendant is not guilty of attempted murder. The People have the burden of proving beyond a reasonable doubt that the defendant committed attempted murder, rather than the lessor [sic] offense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
In Dewberry,the court held, “[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Dewberry, supra, 51 Cal.2d at p. 555.) This instruction is embodied in section 1097, which states, “When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime of attempted crime he is guilty, he can be convicted of the lowest such degrees only.” The trial court must give a Dewberry instruction even in the absence of a request. (People v. Crone (1997) 54 Cal.App.4th 71, 76.) However, when a trial court instructs the jury similarly to that directed in Dewberry, there is no error. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.)
We believe that instructing the jury with CALCRIM No. 3517 adequately set forth the concept espoused in Dewberry. CALCRIM No. 3517 essentially mirrors the language in CALJIC No. 17.10. The first paragraph of CALJIC No. 17.10 reads: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him][her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime.” Numerous courts have concluded that the above language in CALJIC No. 17.10 satisfies the requirements of Dewberry. (People v. Barajas (2004) 120 Cal.App.4th 787, 793-794; People v. Gonzalez (1983) 141 Cal.App.3d 786, 794 & fn. 8; People v. St. Germain (1982) 138 Cal.App.3d 507, 521-522.) We agree with the reasoning in those cases.
Moreover, the instructions as a whole made it abundantly clear that the jury could only find defendant guilty of the greater offense if they found the greater offense beyond a reasonable doubt. Here, the jury was instructed with CALCRIM No. 220 that, in order to find defendant guilty, the People had to prove defendant’s guilt beyond a reasonable doubt. The jury was also instructed, “The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as a 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 attempted murder.” It was further instructed, “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 attempted murder.”
Based on the instructions as a whole, the jury was advised it had to find defendant guilty beyond a reasonable doubt of the greater offense. Hence, the language of CALCRIM No. 3517, combined with the other instructions, advised the jurors to find defendant guilty of the greater offense beyond a reasonable doubt, and if it failed to so find, it must find the lesser offense true beyond a reasonable doubt. This is exactly what Dewberry requires.
Even if we were to conclude the jury was not properly instructed, the error is evaluated under the People v. Watson (1956) 46 Cal.2d 818, 836 harmless error standard. (People v. Crone, supra, 54 Cal.App.4th at p. 78; Dewberry, supra, 51 Cal.2d at p. 558.) Importantly, defendant never relied on the fact that he was only guilty of the lesser offense. Rather, he asked the jury to conclude that Harris shot Daire and that he was not guilty. The question before the jury based on the evidence and defendant’s argument was not whether he committed the greater or lesser offense, but rather whether he committed the shooting at all.
Furthermore, based on the evidence, it is inconceivable that the jury would have found that defendant was only guilty of attempted voluntary manslaughter. The evidence was clear that Daire was unarmed and standing at his front door at the time he was shot. Defendant was clearly identified as the shooter by three separate witnesses. In contrast, there was little or no evidence supporting that defendant acted in self-defense, as defendant never claimed that he or Harris were in fear of Daire, Daire never made any movement toward them, and no evidence was presented that Daire possessed a gun or other weapon. Further, there was no evidence supporting that defendant was angry or in a heat of passion at the time that he shot Daire. Any conceivable instructional error was therefore harmless.
IV
POLLING THE JURY ON THEIR VERDICT AND REFUSAL TO DISCLOSE JUROR NAMES PURSUANT TO CODE OF CIVIL PROCEDURE SECTIONS 206 AND 237
Defendant contends that the trial court did not adequately poll the jurors as to their verdict, which included a true finding on weapons use and great bodily injury enhancements for the lesser offense of attempted voluntary manslaughter, despite finding him guilty only of the greater offense of attempted murder. Defendant also claims that the trial court erred by refusing to release the jurors’ names and addresses so that he could investigate the verdicts in preparation for a motion for new trial.
A. Additional Factual Background
The jury returned a verdict of guilty on the greater offense of attempted murder in count 1. It also found the personal arming and great bodily injury enhancements true for count 1. The jury did not return a verdict on the lesser offense of attempted voluntary manslaughter for count 1. However, they signed verdict forms finding the personal use of a firearm and great bodily injury enhancements for the “lesser included offense as to count 1” true.
After the verdicts were read in open court, the trial court inquired whether the parties wanted the jury to be polled as to their verdict. Defendant’s counsel asked for a side-bar conference. Defendant’s counsel asked the trial court to inquire of the jurors why they had completed the enhancement forms for the lesser included offense of attempted voluntary manslaughter. Defense counsel asked that the jurors be polled specifically as to each charge and allegation, not how they came to their verdict. The trial court did not feel such inquiry was appropriate. It stated that it appeared as though the jury had made a mistake, which would be cleared up at sentencing.
The trial court then polled the jurors as to whether all of the verdicts and findings were correct as read by the court clerk, but they were not polled as to each individual charge. Each juror confirmed that all of the verdicts as they were read correctly reflected their findings.
On June 18, 2007, defendant filed a petition for release of personal juror information pursuant to Code of Civil Procedure sections 206 and 237 for purposes of developing a motion for new trial. Counsel for defendant submitted his own declaration that stated it was clear the jurors wished to convict defendant of the lesser included offense instead of the greater offense. Counsel also surmised that this error on the jurors’ part indicates that there may have been other fatal errors committed by the jury.
The People filed opposition to the petition for disclosure. The People contended that defendant had failed to make a prima facie showing for disclosure as required by California Code of Civil Procedure section 237. The jury had been polled and affirmed they intended to convict defendant in count 1 of the attempted second degree murder. The fact the jury signed the verdict forms for all of the enhancements for both the charged and lesser offenses shows it intended to convict defendant on all offenses, and there had been no showing of juror misconduct. The People also noted that defendant had failed to show what efforts he made to contact jurors by other means and what further information was necessary in order to prepare an adequate new-trial motion.
Defendant also filed a motion for new trial on the same day. He specifically reserved any issues as to juror misconduct pending the trial court’s ruling on the petition for disclosure. The only ground raised in the new-trial motion was that insufficient evidence supported the verdicts. The People opposed the new-trial motion, contending that the evidence overwhelmingly established defendant’s guilt.
At the hearing on the matter, no additional argument was made by counsel to support disclosing the jurors’ names and addresses. The trial court ruled, “Matter of juror misconduct. They were polled and asked if the answer they gave was the one they intended to give when asked if they wanted to convict to the greater, and I found no merit in the argument that there was some sort of misconduct on the part of the juror, or confusion that was to your client’s detriment.” The petition for disclosure was denied.
In his argument regarding the motion for new trial, defendant’s counsel claimed that a new trial was required due to the jurors filling out the special allegations for the lesser offense on count 1. Such verdicts called into doubt whether the jurors intended to convict defendant of the lesser offense. Since his petition to disclose juror names was denied, defendant could not contact the jurors. The People responded that the jurors had signed all of the verdict forms for the greater offense, which were a little different than the lesser offense special allegation forms. The jury was polled and they affirmed their verdict.
The trial court denied the motion for new trial. As to the jury’s verdict, the trial court stated, “As to the jury, its clear there were tons of forms they were given. If they hadn’t been polled, this could have been a real problem, but they were asked directly, individually in open court and attempted second-degree murder was their finding. I don’t recall there being any hesitation on anybody’s part. It’s clear to me that they just got confused over the bewildering number of forms they had been given.”
B. Analysis
1. Polling of the jury
Defendant first claims that the trial court’s polling of the jury was inadequate because they were not asked as to each individual charge whether it represented their verdict. Essentially, defendant argues that these additional verdicts show that the jurors may not have unanimously agreed on the greater offense of attempted murder.
Polling of jurors is founded upon the constitutional right to a unanimous jury verdict. (People v. Thorton (1984) 155 Cal.App.3d 845, 858-859.) Section 1149 provides, “When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” Further, section 1163 provides that: “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if anyone answer in the negative, the jury must be sent out for further deliberation.”
Here, all of the jurors were polled if the verdicts -- which included a guilty verdict on attempted murder and no finding on the lesser offense of attempted voluntary manslaughter – as a whole constituted their verdicts, and all jurors answered affirmatively. Each juror was asked individually whether the verdict was his or her own, and they all affirmed the verdict on the greater offense. This was all that was required under section 1163. This affirmation shows that the jurors intended to convict defendant of the greater offense of attempted murder, as they clearly acknowledged the verdict in open court.
Even if we were to conclude that the trial court erred by failing to adequately poll the jury, such failure would not constitute reversible error. Even the complete failure to poll jurors does not “constitute an error of federal constitutional dimension.” (People v. Masajo (1996) 41 Cal.App.4th 1335, 1340.) Consequently, the defendant is entitled to reversal only upon a showing that a more favorable result is reasonably probable in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
As in Masajo, “the record is completely devoid of any indication that the verdict was not unanimous or that any juror was coerced into voting for conviction.” (People v. Masajo, supra,41 Cal.App.4th at p. 1340.) Although the jurors completed additional forms on enhancements for the lesser offense, absolutely nothing in the record supports that they did not find defendant guilty of the greater offense of attempted murder unanimously. We might be more concerned if the jurors had not completed and affirmed the true findings on the enhancements for the greater offense. However, these additional verdicts, and the absence of a signed guilty verdict form for attempted voluntary manslaughter, shows either that the jury wished to convict defendant of additional enhancements or were merely confused.
Further, each juror had the opportunity in open court to express their concern regarding the attempted murder verdict, and none of them did. We therefore cannot find error in the trial court refusing to poll each juror as to each of the charges and enhancements, and even if it was error, it was not reversible error because it does not show a less than unanimous verdict on the greater offense of attempted murder.
2. Petition for disclosure of juror names
Defendant also claims that the trial court erred by refusing to grant his petition to disclose names and addresses of the jurors so that he could investigate the additional verdict forms.
Code of Civil Procedure section 206, subdivision (g) provides: “Pursuant to [Code of Civil Procedure] Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.”
Upon the recording of a jury verdict in a criminal case, the court’s record of the jurors’ personal identifying information is to be sealed. (Code Civ. Proc., § 237, subd. (a)(2).) Any person may petition the court for disclosure of the identifying information, and the petition must be supported by a declaration establishing good cause for the disclosure. (Id., subd. (b); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1098, fn. 7; People v. Granish (1996) 41 Cal.App.4th 1117, 1131.)
Code of Civil Procedure section 237 provides, in pertinent part: “The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . .” (Id., subd. (b).)
Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires “a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; accord, People v. Wilson (1996) 43 Cal.App.4th 839, 850-852.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (See Wilson, at p. 852.) We review the denial of a petition for disclosure for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Although Code of Civil Procedure section 206 was amended after People v. Rhodes, supra, 212 Cal.App.3d 541 was decided, our Supreme Court has expressly accepted that the 1992 amendment of that statute did not disturb the holding requiring good cause for disclosure. (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1094, fn. 4.)
Here, defendant’s sole reason raised in the trial court for disclosure of the jurors’ names and addresses was to investigate the possibility that the jurors actually intended to convict defendant of the lesser offense, not the greater offense. For the first time on appeal, defendant states that the reason for the disclosure is because juror misconduct occurred due to the jurors disregarding the trial court’s instructions. However, since we only review the trial court’s decision for an abuse of discretion, we can only consider those claims raised by defendant in the lower court. (People v. Jones, supra,17 Cal.4th at p. 317.)
Initially, good cause to release jurors’ names and addresses was not shown by the signing of additional verdict forms on the enhancements for the lesser offense. Nothing in this action supports that some or all of the jurors committed misconduct and did not want to convict defendant of the greater offense.
Even considering that potential misconduct occurred due to the jury ignoring the instructions, it is true that a jury commits misconduct by violating a trial court’s specific instructions. (See, e.g., People v. Williams (2001) 25 Cal.4th 441, 463.) Here, the instructions did advise the jurors that they need not reach a verdict on the lesser offense enhancements if it found defendant guilty of the greater offense of attempted murder.
However, despite the jury disregarding the trial court’s instruction on the verdicts, the trial court did not necessarily have to disclose the jurors’ names and addresses under Code of Civil Procedure section 237. Here, the additional verdicts were certainly not inconsistent with the verdicts on the greater offense of attempted murder or the greater offense enhancements.
Moreover, defendant failed to establish what efforts were made to contact the jurors. (See People v. Rhodes, supra, 212 Cal.App.3d at pp. 551-552 [requiring that defendant show efforts to contact jurors prior to granting petition to disclose jurors’ names and addresses]; Townsel v. Superior Court, supra, 20 Cal.4th at p. 1093 [citing the test in Rhodes after the enactment Code of Civ. Proc, § 237].) Defendant clearly was aware of the verdicts when the jury was advised that they could speak with the parties in the case. Defendant provided no information to the trial court regarding what discussions he had with jurors or what efforts he made to contact them regarding the verdicts.
Finally, defendant failed to show how the additional verdict forms were “of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a); see also People v. Jefflo (1998)63 Cal.App.4th 1314, 1322.) Here, defendant has completely failed to explicate how the additional verdict forms improperly influenced the verdict. As previously stated, the forms were not inconsistent with the verdicts on the greater offenses. Although defendant speculates that the additional verdicts are evidence that the jury intended to only convict him of the lesser offense of attempted voluntary manslaughter, it can just as easily be surmised that the jurors were confused by the multitude of verdict forms. Defendant’s speculation does not support good cause to disclose jurors’ names and addresses.
Even if we were to conclude that some misconduct occurred, there was no prejudice. “We assess prejudice by a review of the entire record. ‘The verdict will be set aside only if there appears a substantial likelihood of juror bias. . . . [W]e look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.]’” (People v. Tafoya (2007) 42 Cal.4th 147, 192.) When the evidence of the defendant’s guilt is overwhelming, the risk that juror misconduct “will prejudicially influence a juror is minimized. [Citation.]” (Ibid.)
Here, the evidence that defendant was guilty of the greater offense of attempted murder as set forth, ante, was overwhelming. Moreover, defendant never argued to the jury that he was guilty of the lesser offense of attempted voluntary manslaughter. Finally, by finding all of the enhancements true on the greater and lesser offense the message from the jury was clear that they intended to convict defendant of all possible charges. The record simply does not support that prejudicial juror misconduct occurred.
V
CALCRIM NOS. 603 AND 604
Defendant claims the trial court’s instruction to the jury with CALCRIM Nos. 603 and 604 deprived him of due process of law and the right to a jury trial by interfering with the jury’s deliberative process.
We review defendant’s claim despite the lack of objection in the trial court. (§ 1259.)
The first part of CALCRIM No. 603, as read to the jury in this case, stated, “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.” The first part of CALCRIM No. 604, as read to the jury in this case, stated, “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in complete self-defense of defendant or another . . . .”
Defendant claims the instructions interfere with the jury’s deliberative process by telling the jurors they should presume his conduct constituted murder unless they are persuaded to “reduce” the crime to attempted voluntary manslaughter. We disagree. CALCRIM Nos. 603 and 604 did not advise the jurors that defendant committed murder. Rather, the instructions clearly advised the jurors that “[an a]ttempted killing that would otherwise be attempted murder” must be reduced to attempted voluntary manslaughter if the jury found defendant acted in a sudden quarrel or heat of passion or in self-defense. The jurors were never advised to presume that the defendant committed attempted murder.
Defendant claims CALCRIM Nos. 603 and 604 “slanted” the evidence toward the prosecution the same way as the instruction struck down in People v. Owens (1994) 27 Cal.App.4th 1155. In Owens, the defendant claimed that language in CALJIC No. 10.46.2, “‘[t]he People have introduced evidence tending to prove’” conveyed to the jury that the trial court believed that the prosecution had proved their case. (Owens, at p. 1158.) The court agreed and concluded the instruction was erroneous because it carried the inference that the prosecution had established guilt. (Ibid.)
In contrast, CALCRIM Nos. 603 and 604 do not raise such an inference. Instead, these instructions expressly state the prosecution has the burden of proving each element of the charged offenses beyond a reasonable doubt. The last paragraph of CALCRIM No. 603 stated, “The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to 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 attempted murder.” The last paragraph of CALCRIM No. 604 stated, “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 attempted murder.” Hence, the jury was clearly advised that the People had the burden of proving defendant’s guilt beyond a reasonable doubt, and no inference of established guilt was made by the instructions.
Relying on People v. Kurtzman (1988) 46 Cal.3d 322, defendant also argues CALCRIM Nos. 603 and 604 impermissibly set the order of deliberations, with the jury being advised that they should presume that the “starting point” was that defendant was guilty of attempted murder. In Kurtzman, the California Supreme Court held the trial court erred by advising a deadlocked jury that it must unanimously agree on the second degree murder charge before it could consider voluntary manslaughter. (Kurtzman,at p. 328.) It established that the only rule for deliberations is that the jury must acquit on the greater offense before finding the lesser offense. (Id. at pp. 330-331.) It concluded otherwise the jury can consider the greater and lesser offenses in any order they choose. (Id. at p. 331.)
Here, the jury was not told it had to unanimously agree on attempted murder before it could consider attempted voluntary manslaughter. The jurors were instructed, “Count 1 charges the defendant committed attempted murder. The offense of attempted voluntary manslaughter is a lessor [sic] offense to that of attempted murder. You have been given one verdict form for each offense. You may consider these different offenses in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use.”
Based on the instructions as a whole, the jury was clearly advised that they could consider the greater and lesser offenses in any order that they chose.
Even if we were to conclude that CALCRIM Nos. 603 and 604 did improperly “slant” the jurors toward the prosecution evidence and that it intruded into the jurors’ deliberative process, we would find such error harmless. In Kurtzman, the California Supreme Court found that any instructional error was harmless, as it was not “reasonably probable” that the jurors would have found the defendant guilty absent the error, i.e., the standard in Watson. (People v. Kurtzman, supra, 46 Cal.3dat p. 336; Watson, supra, 46 Cal.2d at p. 836.) Here, as set forth, ante, the evidence of defendant’s guilt of the greater offense of attempted murder was overwhelming. We therefore conclude any conceivable instructional error was harmless.
Although defendant argues that the proper standard of review is Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], instructional errors are generally reviewed under Watson. Even if we were review the claim under Chapman, such error was harmless beyond a reasonable doubt.
VI
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.