Opinion
Monterey County Super. Ct. No. SS021689
NOT TO BE PUBLISHED
RUSHING, P.J.
Defendant Geoff St. John appeals a judgment entered following a jury trial during which he was convicted of assault with a deadly weapon or force likely to produce great bodily injury. (Pen. Code, § 245, subdivision (a)(1).) On appeal, defendant asserts the trial court erred in denying him the right to present a complete defense, and in giving the jury instructions that allowed consideration of punishment if convicted.
Statement of the Facts and Case
The instant case arises out of a stabbing incident that occurred in 2002 in the Monterey County Jail. The victim, Shiloh Owens, was an inmate in the jail, along with defendant. The two were housed in the same unit called the “I pod,” which is a lockdown unit of the jail. Inmates are kept locked in their cells for all but one hour each day when they are let out on a rotating basis. On May 29, 2002, Owens and his cellmate, Douglas Shrock, were the only inmates that were supposed to be out of their cells.
At the time Owens and Shrock were out of their cells, Shrock went to use the phone on the lower level, and Owens walked over to defendant’s cell, after defendant called him over. At the time, defendant was alone in his cell. There is small window on the door of the cell, and a slot under the window where food is passed. Owens walked over to defendant’s cell, and crouched near the food slot. According to Owens, defendant began asking him questions, during which Owens felt a sudden pressure on the left side of his face. At the time, Owens thought he had been punched in the face through the food slot. Owens stood up, and saw defendant throw an unknown object into the toilet in his cell and flush.
Owens said after this incident, there was blood all over him. He began to press the side of his face and walk downstairs. When Owens looked back at defendant, he saw defendant make a Nazi salute. Owens got to the bottom of the stairs, and he tried banging on the window to get the deputy’s attention. Schrock saw Owens, and that Owens was not able to get the deputy’s attention, so he made a collect call to a person outside of jail, who in turn called 911 to alert the jail of what happened.
Owens was transported to a hospital, where he received 60 stitches to repair a gland that had been cut, and 13 staples to close the wound. While being transported to the hospital, Owens told the deputy that defendant was the person who cut him.
After Schrock made the phone call to the person who alerted 911, deputies came to I pod. One of the deputies was Sergeant Veronica Meza, who arrived and saw Owens holding a towel to his neck. Meza saw that Schrock was out of his cell, and checked the other cells, finding them all locked.
In conducting her investigation of the incident, Meza followed a blood trial that started near the telephone on the first tier. The blood trial went upstairs, and then to the left. Meza saw a larger pool of blood to the left of the staircase and in front of one cell, that of another inmate, Joseph Salcido. Meza said that the largest concentration of blood was in front of Salcido’s cell. Based on the large pool of blood there, Meza questioned Salcido. The blood from in front of Salcido’s cell went all the way down to defendant’s cell. Meza saw that someone had tried to wipe the blood up in front of Salcido’s cell, and the wipe marks continued down to defendant’s cell.
Meza searched the inside of defendant’s cell, and found the bottom handle of a razor. She searched the toilet, and did not find the razor blade. Meza stated that at the time of the incident, Owens and Schrock were the only two inmates that were supposed to be out of their cells, but that from time to time, inmates do get out of their cells by manipulating the doors so they appear to be locked when they are actually open.
At the trial in this case, Owens was reluctant and said that he had been threatened not to testify in person and by telephone. Owens said that he was only testifying because he was told he would go to jail if he did not.
In February 2002, defendant was charged with attempted murder (Pen. Code, §§ 667/187 - count 1); battery with serious bodily injury (§ 243, subd. (d) - count 2); and aggravated assault (§ 245, subd. (a)(1) - count 3). The information also included an allegation that as to counts 1 and 3, defendant personally inflicted great bodily injury (§ 12022.7), and that defendant suffered a prior strike conviction.
The case proceeded to trial, and a jury found defendant guilty of aggravated assault, and found true the enhancement that defendant personally inflicted great bodily injury. The court found the strike prior to be true, and sentenced defendant to 11 years in state prison.
On January 25, 2008, this court granted defendant relief from default for failure to file a timely notice of appeal. On January 29, 2008, defendant filed a notice of appeal.
Discussion
On appeal, defendant asserts the trial court erred in denying him the right to present a complete defense, because it did not allow defendant to present evidence of possible third party culpability for the crime. Defendant also argues the trial court erred in giving the jury instructions that allowed consideration of punishment if convicted.
Third Party Culpability Evidence
Defendant claims the court erred under California law and violated his right to due process by refusing to allow him to produce evidence suggesting that Salcido was the inmate who actually stabbed Owens. Specifically, defendant asserts the trial court erred in its exclusion of “a critical piece of evidence necessary to support [defendant’s] claim that Owens was cut by another inmate, Salcido; proof that Salcido in the past had rigged his cell door so as to be able to get out whenever he wanted.”
At trial, defendant proffered evidence that Salcido had been disciplined for jamming door locks on the cells, and had been outside his cell at unauthorized times. The trial court reviewed the evidence, and concluded that the fact that Salcido was disciplined for jamming the door on his cell one month prior to the incident in this case was irrelevant.
“To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in Mendez, evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833; People v. Mendez (1924) 193 Cal. 39.)
In assessing the admissibility of third-party culpability evidence, the trial court must consider whether the evidence could raise a reasonable doubt as to the defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) The trial court’s determination of this issue is reviewed for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372.) “[J]udicial discretion is... ‘the sound judgment of the court, to be exercised according to the rules of law.’ [Citation.]... [T]he term judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
In the instant case, the trial court correctly concluded that the evidence proffered by the defense was irrelevant. The fact that Salcido had been disciplined one month earlier for jamming his cell door only suggested that Salcido may have had the opportunity to commit the crime in the present case. This evidence was not direct or circumstantial evidence that Salcido stabbed Owens, and as a result, does not qualify as third party culpability evidence. “[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall, supra, 41 Cal.3d at p. 833.)
In addition, the evidence of Salcido’s jamming of the cell door one month before the stabbing in this case, and the implication that this gave him an opportunity to commit the crime was speculative, and did not create a reasonable doubt that defendant committed the crime. “[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.” (People v. Babbitt (1988) 45 Cal.3d 660, 684, 681-682.)
Nevertheless, defendant asserts his Fifth and Fourteenth Amendment due process rights and his Sixth Amendment right to present a defense were violated by the exclusion of the evidence. Defendant cites numerous United States Supreme Court cases, including Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes), in which the Supreme Court addressed “whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.” (Id. at p. 321) The defendant in Holmes sought to introduce evidence that another man had attacked the victim, proffering at a pretrial hearing the testimony of several witnesses who placed the other man in the victim’s neighborhood on the morning of the assault, and the testimony of four additional witnesses who testified at the pretrial hearing that the other man had proclaimed the defendant’s innocence or had admitted to having committed the crimes. (Id., at p. 323.) The trial court excluded the defendant’s evidence.... The South Carolina Supreme Court affirmed, holding that ‘ “where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” [Citation.]’ (Id. at p. 324.) The United States Supreme Court reversed, holding that it is improper to consider the weight of the prosecution’s case in determining the admissibility of third party culpability evidence. The Holmes court opined that to consider the prosecution’s case in deciding if a defendant may introduce third party culpability evidence violates a criminal defendant’s right to have “ ‘ “a meaningful opportunity to present a complete defense.” ’ ” (Id., 547 U.S. at p. 331; Goodwillie, supra, 147 Cal.App.4th at p. 728.)
Here, the court did not improperly consider the strength of the prosecution’s case in deciding to exclude the evidence of Salcido’s disciplinary record. Instead, the court considered the evidence, and determined that it was irrelevant, and produced mere speculation of possible third party responsibility for the crime. The court’s action in this case did not deprive defendant of the opportunity to present a defense in violation of this constitutional rights.
Instructional Error
Defendant asserts the trial court erred in instructing the jury in such a way that allowed them to consider punishment while at the same time considering guilt.
During deliberations, the jury posed the following question to the court: “Is there a hierarchy of seriousness between the battery with serious bodily injury charge and the assault with a deadly weapon or by means of force likely to produce great bodily injury charge?” In discussing this question with counsel, the court stated, “[t]he reason they’re asking, obviously, is we’ve asked them to decide on one of these and they may wish to pick the least serious, the middle serious or the most serious, and they need to know which those are.”
The court then advised counsel that it would clarify that the issue of punishment was not before the jury; however, when it responded to the jury’s question, it made no such admonition. Instead, the court stated: “We have asked you to, obviously, address the question of whether the defendant is responsible for this episode, and if so, to address the question of which of the offenses you wish to associate him with. And we’ve asked you to do that in an order of-in a hierarchy. The most series [sic] charge is the attempted murder. The next most serious one is assault with a deadly weapon charge, with its enhancement of intentional or personal infliction of great bodily injury. And the third in the line or the hierarchy would be the battery with series [sic] injury. Your copies of documents show that the battery with series [sic] bodily injury charge is count 2 and the assault with a deadly weapon charge is count 3. That’s true. The Counts don’t necessarily reflect the hierarchy.”
Defendant asserts the court’s response to the jury’s question not only allowed the jury to consider punishment in determining guilt, but is also impermissibly encouraged them to do so by instructing them on a hierarchy of charges by most serious to least. In particular, even though the court did not expressly inform the jury of the differing punishments defendant would receive for the crimes charged, it implied them through the hierarchical ranking of the charges.
“It is well established that when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’ Rogers v. United States, 422 U.S. 35, 40 (1975). The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. [Citations.]” (Shannon v. United States (1994) 512 U.S. 573, 579., fn. omitted.)
Here, there is no question that the court’s ranking of the crimes in a hierarchy encouraged the jury to inappropriately consider punishment when determining defendant’s guilt. The ranking of the crimes from most to least serious is completely irrelevant to a determination of guilt, and should not have been communicated to the jury.
It is important to note that hierarchy of seriousness of charges may be considered by a jury when the crimes are charged as lesser included offenses. Here, however, none of the charges were lesser includeds of any of the others. Assault with a deadly weapon and battery with serious bodily injury are not lesser included charges to attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) Therefore, there is no conceivable reason the jury should have been instructed to consider the hierarchy of charges in the present case.
Because we find the court erred in improperly instructing the jury on the hierarchy of the offenses charges, we must determine if the error requires reversal. In analyzing claims of instructional error, we apply the standard set forth in People v. Watson (1956)46 Cal.2d 818, 836. (See People v. Falsetta (1999) 21 Cal.4th 903, 925 [applying Watson standard in analyzing CALJIC No. 2.50.01]; cf., People v. Flood (1998) 18 Cal.4th 470, 490 [applying Watson standard in determining whether instruction removed an element of the crime from the jury’s consideration].) Under Watson, reversal is warranted only on a determination that it is reasonably probable that defendant would have obtained a more favorable result in the absence of any error. (People v. Watson, supra, 46 Cal.2d at pp. 836-838.) Instructional error such as that claimed here is “ordinary trial error whose prejudicial effect may be assessed in light of the entire record.” (People v. Flood, supra, 18 Cal.4th at p. 503.)
As a general rule, “ ‘if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.... Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.’ [Citations.]” (People v. Flood, supra, 18 Cal.4th at p. 492, quoting Rose v. Clark (1986) 478 U.S. 570, 579.)
Based on our review of the record, we cannot say that the instructional error in this case did not affect the result. Here, the jury asked if there was a hierarchy of seriousness between the battery and assault charges. By its own admission, the court understood this question to mean that the jury wanted to know the seriousness of the crimes in terms of punishment. In answering the jury, the court told them in no uncertain terms the hierarchy of seriousness of the crimes charged. The jury ultimately decided defendant was guilty of assault with a deadly weapon, the more serious of the two crimes about which it posed its question to the court. In view of the record, we cannot say the jury was not affected by their knowledge that assault with a deadly weapon was the more serious of the two charges.
However, while we are uncertain if the improper instruction affected the jury’s decision to convict defendant of assault with a deadly weapon, we do not believe that under the Watson standard, it is reasonably probable defendant would have received a more favorable result, in this case an acquittal on all charges, or a guilty verdict on the battery charge absent the error. Indeed, the evidence produced at trial supports the guilty verdict for the assault with a deadly weapon charge. As a result, although the jury was improperly instructed on the hierarchy of seriousness of the charges, the evidence produced at trial supports the jury’s verdict beyond a reasonable doubt. Under Watson and subsequent cases, such error is harmless, and does not mandate reversal.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.