Opinion
B198067
8-5-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JIMENEZ, Defendant and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
A jury convicted Michael Jimenez (appellant) of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant personally used and intentionally discharged a firearm causing death. (§ 12022.53, subds. (b), (c) & (d).)
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total term of 50 years to life in prison. The sentence consisted of 25 years to life for the murder and an additional 25 years to life pursuant to section 12022.53, subdivision (d).
Appellant appeals on the grounds that: (1) the trial court committed reversible error by instructing the jury that first degree premeditated murder could be committed with implied malice, (2) the trial court prejudicially erred by allowing the prosecutor to argue that a conviction of first degree premeditated murder could be based on express or implied malice, thus presenting the jury with a legally correct and a legally incorrect theory of guilt where it is not possible to determine which theory the jury chose in convicting appellant, and (3) the trial court prejudicially erred by allowing the prosecutor to decline appellants offer to stipulate that the victim died from a gunshot wound to the head.
FACTS
We recite the facts in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) During the early morning hours of April 1, 2006, appellant was part of a gathering at the home of Peter Altamirano (Altamirano). Appellant was drinking beer with Altamirano, Kenneth Ginzo (Ginzo), Armando Ramos (Ramos), a woman named Nicole, and a man named Eric. Appellant had a handgun that he had shown some of the men earlier that evening.
While the group stood outside, a white truck playing loud music drove by twice. The second time it almost knocked over appellant, who was on the sidewalk. Appellant fired one shot at the truck. Altamirano testified that he exited the house when he heard the shot, and Ramos ran up to him and said "this fool just—he shot the gun" and "he went, pow!" He was speaking loudly and quickly. A short time later, Altamirano saw appellant pointing the gun at Ramoss face from a distance of six inches. Ramos said, "okay, dick, pull the trigger." Appellant shot Ramos, and Ramos immediately fell to the ground. Ginzo was speaking with Nicole a few feet away from Ramos and appellant. He heard a shot and turned to see Ramos on the ground. He later told appellant he was "a piece of shit." Because of the severity of the injury, the coroner testified at appellants trial that he believed Ramos was dead by the time he hit the ground.
Daniel Rodriguez (Rodriguez), Altamiranos neighbor, heard the shot and someone screaming. He ran to Altamiranos house to see if help was needed. Rodriguez saw that Altamirano was covered in blood and believed Altamirano had been shot. Rodriguez approached appellant and asked him if he had been shot. Appellant replied, "I had to do it. What would you do?"
Altamirano and Ginzo initially told police that Ramos had been shot in a drive-by shooting. Altamirano was afraid to name appellant as the shooter. Also, his sister had a child with appellant. At the preliminary hearing, Altamirano testified that the shooting occurred when the gun went off as the drunken men played with the gun. Altamirano testified at appellants trial that he was testifying despite fear of retaliation by appellants friends.
DISCUSSION
I. Trial Courts Instruction and Prosecutorial Argument Regarding Malice
Although appellant divides into two separate issues his arguments regarding misinformation provided to the jury on malice, we believe the arguments are intertwined. We therefore address as a single issue appellants arguments regarding the information on malice presented to the jury.
A. Argument
According to appellant, the prosecution presented the jury with two different theories of guilt—one with a basis in law (that appellant committed premeditated first degree murder with express malice), and the second based on an incorrect statement of law (that the jury could return a conviction of first degree premeditated murder under a finding of implied malice and that the jurors need only agree appellant acted with some form of malice, either express or implied). Appellant contends that this misstatement of the law during the prosecutors closing argument was compounded by the trial courts attempts at clarification. According to appellant, this constituted Guiton error. (People v. Guiton (1993) 4 Cal.4th 1116 (Guiton).)
Appellant argues that it was impossible to know whether the jury based its verdict of first degree premeditated murder on a unanimous finding that appellant acted with express malice, or if some of the jurors believed appellant discharged the gun because he was intoxicated. Appellant claims it is impossible for a reviewing court to determine whether the jury relied on the legally correct or the incorrect theory of first degree premeditated murder. Therefore, his conviction is legally unsupportable and must be reversed. The errors violated his state and federal constitutional rights of due process and were not harmless beyond a reasonable doubt.
B. Proceedings Below
Prior to closing arguments, the trial court instructed the jury with CALJIC No. 8.10, which stated that the jury had to find that a human being was killed, that the killing was unlawful, and that the killing was done with malice aforethought. The court read CALJIC No. 8.11, defining malice aforethought. The instruction stated that malice may be either express or implied. It is "express when there is manifested an intention unlawfully to kill a human being." It is implied when the killing results from an intentional act whose consequences are dangerous to human life and which was deliberately performed with knowledge of and conscious disregard for the danger. The court also instructed the jury with CALJIC No. 8.20, which stated that all murder perpetrated by a willful, deliberate, and premeditated killing with express malice aforethought is murder of the first degree, and it went on to explain the terms "willful," "deliberate," and "premeditated." The instruction explained that premeditation can occur in a short period of time, but a mere unconsidered and rash impulse—even though it includes an intent to kill—does not equate to deliberation and premeditation so as to arrive at murder of the first degree.
The court read CALJIC No. 8.30, which informed the jury that murder of the second degree is a killing with malice aforethought when the perpetrator has intent to kill, but the evidence is insufficient to prove deliberation and premeditation. The court read CALJIC No. 8.31, which stated that second degree murder also occurs when the killing results from an intentional act, the natural consequences of the act are dangerous to human life and the act is deliberately performed with knowledge of the danger to and with conscious disregard for human life. When the killing is the result of such an act, it is not necessary to prove that the defendant intended the act to result in the death of a human being.
During final argument, after concluding remarks regarding appellants flight, the prosecutor stated, "This is murder. Its up to you to decide. In fact, the funny thing is you dont even have to decide all 12. Express malice, dangerous act gets you to the same place. But the fact is he set out to kill him and pulled the trigger. Pointed the gun at his head and pulled the trigger. Any way you look at it, its murder; and its first degree murder. Its first degree murder because he thought about it."
After the jury had deliberated for a little more than a day, the court received a note from the jury panel, which read as follows: "We need somebody to explain the difference between 1st and 2nd degree murder. There are some jurors that are not understanding the instructions. They need it explained in more simple terms."
Upon being asked for suggestions by the trial court, the prosecutor expressed his wish to reopen argument and have each side explain the difference. Defense counsel did not wish to reargue. Defense counsel preferred that the trial court read again the pertinent jury instructions, such as CALJIC Nos. 8.20 and 8.30. The trial court stated that it would read certain instructions again and ask the jurors to report to the court if any of them had a problem understanding the instructions. If a juror had a problem, the trial court would ask for more argument.
When the jurors reassembled, the trial court told them it would read the instructions, emphasizing certain words and phrases to help the jurors. Afterwards, the jurors would return to the jury room to deliberate again. If the jury instructions did not help, the trial court requested the jurors to send another note stating that the reading was not helpful.
The trial court read the instructions with prefatory remarks and interspersed comments (in italics), and it is these comments to which appellant objects. The court began with CALJIC No. 8.10, defining murder, as follows: "The defendant is accused of having committed the crime of murder, a violation of Penal Code section 187. Every person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of a felony inherently dangerous to human life is guilty of the crime of murder, in violation of Penal Code section 187. This gives you the definition of the murder concept. In order to prove this crime, each of the following elements must be proved. One. A human being was killed; Two. The killing was unlawful; And Three. The killing was done with malice aforethought."
The trial court then read CALJIC No. 8.11 defining malice aforethought: "Now, theres an instruction as to what malice aforethought means. To lead you to first degree murder. Malice. In the definition of malice aforethought, there are two types of malice. Malice may either be express or implied. Malice is express when there is manifested an intention, an intention unlawfully to kill a human being. Thats express malice, a manifest intention unlawfully to kill a human being. Implied Malice is when: One. The killing resulted from an intentional act; Two. The natural consequences of the act are dangerous to human life; and Three. The act was deliberately performed with knowledge of the danger to and with conscious disregard—once again, keep in mind were talking about malice aforethought to make this a first degree murder case, when it is shown that a killing resulted from the intentional doing of an act, the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. Let me read that again. When it is shown that a killing resulted from the intentional doing of an act, whether with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word "`aforethought" does not imply deliberation or the lapse of considerable time. It only requires the required mental state must precede rather than follow the act. The act obviously being of the shooting."
The trial court then read CALJIC No. 8.20, explaining deliberate and premeditated murder. After reading the instruction with negligible explanatory comment, the court stated, "Now, thats murder. Give you the definition of murder. Then I gave you the definition of what constitutes first degree murder. Now, second degree murder." The court then read verbatim CALJIC No. 8.30 which described unpremeditated murder of the second degree. The court followed its reading of this instruction by stating, "So if you have an issue about that, you go back and look at the definition of premeditation willful and deliberate. Once again, murder of the second degree is also the unlawful killing of a human being with malice aforethought. That definition is in the instruction what that means when the perpetrator intended to unlawfully kill a human being, but the essence of second degree murder, the evidence is insufficient to prove the deliberation and premeditation. So once again, you got to go back to what deliberation and premeditation means, legally speaking, if that is an issue."
The trial court then read CALJIC No. 8.31, which explained that second degree murder is also an unlawful killing when the killing resulted from an intentional act dangerous to life. Finally, the court read again CALJIC No. 17.10, which told the jury that it could convict appellant of any lesser crime if it was not satisfied beyond a reasonable doubt that appellant was guilty of the crime charged and explained the procedure for doing so.
C. Relevant Authority
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 754; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) "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.)
"In assessing whether the jury instructions given were erroneous, the reviewing court `"`must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]"" (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) The test in determining whether a jury could have misconstrued an instruction is "`"whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution." (People v. Raley (1992) 2 Cal.4th 870, 901, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.)
With respect to prosecutorial argument, "[a]lthough counsel have `broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citations.]" (People v. Mendoza (2007) 42 Cal.4th 686, 702.) "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such `"unfairness as to make the resulting conviction a denial of due process." [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citations.]" (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)
D. No Guiton Error; Any Error Harmless
We reject appellants argument that his conviction for first degree murder is the result of the error described in Guiton. In Guiton, the court addressed the issue of whether a conviction was reversible due to being based upon a jury instruction that either was factually unsupported or legally incorrect. In so doing, the court reconciled its own opinion in People v. Green (1980) 27 Cal.3d 1 (Green), with the United States Supreme Courts holding in Griffin v. United States (1991) 502 U.S. 46 (Griffin). (Guiton, supra, 4 Cal.4th at p. 1121.)
Green was overruled on another point in People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.
Green stated that "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (Green, supra, 27 Cal.3d at p. 69.) Griffin held that while error based upon an incorrect legal theory required reversal, factual error did not where another valid basis for conviction existed. (Griffin, supra, 502 U.S. at pp. 59-60.) Guiton harmonized Green and Griffin by observing that Griffin had distinguished between those cases in which a particular theory of conviction is legally inadequate and those in which the jury has been left the option of relying upon a factually inadequate theory, i.e., one that suffered from an insufficiency of proof. Guiton held that the former type of case is subject to the rule generally requiring reversal; the latter type does not require reversal if at least one valid theory remains. (Guiton, supra, 4 Cal.4th at p. 1128.)
In the instant case, we do not believe that the prosecutors comments during closing argument presented alternate theories of first degree murder. The prosecutors words are ambiguous at worst. In speaking about murder in general, the prosecutor correctly stated that a finding of express malice or "dangerous acts" should lead the jury to decide that a murder had been committed. The prosecutor went on to contrast this general concept of murder by saying, "But the fact is [appellant] set out to kill [Mr. Ramos] and pulled the trigger. Pointed the gun at his head and pulled the trigger." The prosecutor followed by again contrasting murder in general with first degree murder by saying, "Any way you look at it, its murder; and its first degree murder. Its first degree murder because he thought about it." (Italics added.) The prosecutor thus informed the jury that premeditation and deliberation were the touchstones of first degree murder.
If defense counsel had heard what appellant now claims was stated, an objection surely would have followed. The cold record, devoid of voice inflections and emphasis, supplies more substance to appellants argument than it deserves, and we do not agree with appellants interpretation of the prosecutors argument.
In any event, assuming the prosecutor misspoke, the most that can be said is that "[t]he prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis." (People v. Morales (2001) 25 Cal.4th 34, 43; see also ibid. [distinguishing Guiton & Green].) In the instant case, the defense made no objection to the prosecutors remarks. Therefore, any claim of prosecutorial misconduct was waived. (People v. Osband (1996) 13 Cal.4th 622, 696 (Osband).)
Turning to the trial court, which purportedly compounded the prosecutors alleged misstatement of the law, we largely disagree with appellant and find any error harmless. The trial courts comments were interjected into the rereading of the instructions at sometimes inappropriate moments. The instructions as a whole—both those read before deliberations and those repeated during deliberations—provided the jury with correct legal instruction. At the conclusion of the rereading, the trial courts notable emphasis on the need for premeditation and deliberation in order for the jury to find that a first degree murder was committed outweighed the trial courts most injudicious comments, which occurred in the midst of explaining both types of malice. The courts instructions made clear that unpremeditated murder is second degree murder. (CALJIC No. 8.30.) The court also emphasized that if the jurors had a reasonable doubt whether the murder was first or second degree, they had to find second degree murder and to reject first degree murder. (CALJIC No. 8.71.)
Furthermore, the jury had a written copy of the correct jury instructions in the deliberation room. The trial court instructed the jurors that "[t]he instructions which will now be given to you will be made available in written form for your deliberations. . . . Every part of the text of an instruction, whether typed, printed or handwritten is of equal importance. You are to be governed by the instruction in its final wording." (CALJIC No. 17.45.) Our Supreme Court has repeatedly held that "the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions." (People v. Prieto (2003) 30 Cal.4th 226, 255; accord, People v. Box (2000) 23 Cal.4th 1153, 1212 ["misreading instructions is at most harmless error when the written instructions received by the jury are correct"]; Osband, supra, 13 Cal.4th at p. 717 ["as long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered orally"]; People v. Garceau (1993) 6 Cal.4th 140, 189 ["error was harmless, because the jury received the correct version . . . in its written form"]; People v. Andrews (1989) 49 Cal.3d 200, 216 ["error in misreading . . . was harmless [because] court provided the jury with written copies of all the instructions"].)
It would be implausible to assume that the jurors made their decision based on their memory of the trial courts comments rather than the written instructions before them. In Osband, for example, the trial court misread various instructions to the jury. It failed to discuss one of the counts against the defendant, and it omitted words and substituted incorrect terms in several different areas. (Osband, supra, 13 Cal.4th at p. 686.) Yet the appellate court found these errors harmless because the jury received correct written instructions. (Ibid.) We presume, having no indication to the contrary, that the jury followed the proper written instructions it received in the instant case. (Id. at p. 687.)
We conclude that neither the trial courts instructions nor the prosecutors argument presented the jury with a choice between a legally valid and a legally invalid ground on which to base its verdict. There is no uncertainty as to the legal basis for defendants conviction, and any error or misstatements were harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Stipulation Regarding Manner of Death
A. Argument
Appellant asserts that the prosecution in a criminal proceeding is obligated to accept a defendants stipulation of conceded elements of a charged offense. Since the elements of murder include the fact that a human being was killed, the trial court should have compelled the prosecution to accept a stipulation offered by the defense regarding the victims cause of death. The trial court should also have excluded the coroners testimony as irrelevant and those portions of Officer Gatess testimony describing the condition of the victims skull and brains.
According to appellant, the error was prejudicial because it ensured the jury would react emotionally against appellant, and it unfairly tilted the evidence in the prosecutors favor. Therefore, reversal of appellants conviction is required.
B. Proceedings Below
Under Evidence Code section 352, defense counsel moved to limit or exclude photographs of the decedent at the scene of the crime and the coroners photographs. The defense offered to stipulate that the decedent died as a result of a gunshot wound to the head, that an autopsy was performed, and that the coroner confirmed the cause of death as a gunshot wound to the head. According to the motion, the stipulation would preclude the need for the prosecution to further prove this fact by oral, documentary, or photographic evidence.
The People declined the offer to stipulate. The trial court stated that, since the People declined to stipulate, the court, exercising its discretion under Evidence Code section 352, would allow the People to set forth the information contained in the offer by oral or documentary evidence.
Prior to the coroners testimony, the trial court stated for the record that it had denied the Peoples request to show during opening statement a poster with a photograph showing the position of the body at the shooting (exhibit 7), and that the item would not be shown to the jury. Defense counsel then objected to photographs "C" and "E" in Peoples exhibit 5. The court stated that exhibit 5 was more probative than prejudicial and would assist the coroner in his testimony as well as the jury. It would also be relevant to an excited utterance offered by the prosecutor. The court overruled the defense objection.
The coroner referred to exhibit 5 in his testimony and stated that the victims skull was empty and that his brain arrived separately from his body in a plastic bag. Officer Gates testified that the victim had a dramatic wound to the head. The officer said he had found brain tissue and blood on parked cars and pieces of skull on the other side of the street.
C. Relevant Authority
Evidence Code section 352 provides: "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The `"general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness." (People v. Arias (1996) 13 Cal.4th 92, 131; see also People v. Garceau, supra, 6 Cal.4th at p. 182; People v. Edelbacher (1989) 47 Cal.3d 983, 1007.)
D. No Abuse of Discretion
We find no abuse of discretion. The Supreme Court has repeatedly noted the "strong policy against depriving the states case of its persuasiveness and forcefulness by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety." (People v. McClellan (1969) 71 Cal.2d 793, 802; see also People v. Scheid (1997) 16 Cal.4th 1, 16-17 [holding that defendants proposed stipulation regarding circumstances of murder did not preclude prosecution from introducing photograph of murder scene]; People v. Edelbacher, supra, 47 Cal.3d at p. 1007 ["The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness"].)
The photographs and testimony in this case were persuasive evidence that appellant committed a first degree murder with premeditation and deliberation. They also constituted forceful evidence that Ramos was not the victim of a drive-by shooting, as the defense suggested when it argued that Altamirano and Ginzo had lied on the stand. Because the prosecutor had the burden of proving beyond a reasonable doubt that appellant committed a first degree murder, the trial court properly declined to limit the prosecutors presentation of evidence. The proposed stipulation would have precluded the prosecutor from forcefully and persuasively presenting the strongest possible case against appellant. (People v. Edelbacher, supra, 47 Cal.3d at p. 1007.)
Officer Gatess evidence showed that the tissue spray was directed outward, toward the street, which was contrary to what would have occurred had there been a drive-by shooting. Furthermore, the officers testimony on his finding blood and brain tissue was brief and factual and "had no potential to inflame the jurors and hence could not have exposed defendant to prejudice." (People v. Bonin (1989) 47 Cal.3d 808, 849; see also People v. Raley, supra, 2 Cal.4th at p. 896.) The coroners testimony was also merely factual and was no more inflammatory than that of Officer Gates. The coroner testified that the bullet entered Ramoss head in about the middle of the forehead and travelled to the back of the head. The coroner stated that the brain arrived separated from the body because of the massive destruction of the head. This, combined with Detective Gatess testimony, helped to corroborate the impossibility of a drive-by shooting.
The jury had already heard testimony that Ramos, sounding as if he were "playing around," had told appellant to pull the trigger and that appellant had fired the gun into Ramoss head from a distance of six inches. The coroners testimony was not unduly inflammatory and not likely to provoke an emotional reaction against appellant given the circumstances described by the percipient witnesses. The trial court did not abuse its discretion by failing to compel the prosecutor to accept the proposed stipulation.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
CHAVEZ, J.