Opinion
C042834.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE JOHNSTON, Defendant and Appellant.
Defendant Brian Lee Johnston was found guilty by a jury of battery with serious bodily injury and assault with intent to inflict great bodily injury. Defendant admitted two prior serious felony convictions and four prior prison terms.
On appeal, defendant contends: (1) the trial court erroneously refused to give a special instruction offered to "supplement" CALJIC No. 17.50; and (2) trial counsel was ineffective because he failed to "address possible juror misconduct." We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2001, defendant struck fellow Tehama County Jail inmate Basilio Mercado Bagorio, Jr., in the face while Bagorio was speaking to his wife on the dayroom telephone. According to Bagorio, at that time he told his wife "I think Brian [defendant] hit me." At trial, Bagorio testified he was "blind-sided" and did not know who hit him. Bagorios jaw was broken in two places and wired shut for six weeks.
Bagorio denied telling his parole agent or a deputy sheriff that defendant hit him.
According to Bagorios wife, during the telephone call she heard her husband say, "I wasnt talking shit." He told her he could not say who broke his jaw. He then told her "Brian" broke his jaw.
Defendant testified he was doing his job cleaning up the dayroom when he saw a fight. He tried to clean up the blood and it stained his clothing.
DISCUSSION
I
Defendant claims the trial court "arbitrarily" rejected his proposed special instruction because it was not a pattern CALJIC instruction. When the trial court stated it intended to give the usual concluding instruction, CALJIC No. 17.50, defendant proposed also giving this special instruction:
The trial court actually gave a modified version of CALJIC No. 17.50: "You should now retire and select one of your number to act as foreperson. He or she shall preside over your deliberations. In order to reach verdicts, all 12 jurors must agree on the decision. As soon as you have agreed upon a verdict, so that when polled each may state truthfully that the verdict expresses his or her vote, have them dated and signed by your foreperson, and then return with them to this courtroom. Return any unsigned verdict forms." The trial court did not give the remainder of the instruction referring to multiple counts.
"You will note that [as to each count] there are two possible verdicts: `not guilty or `guilty. These verdicts should reflect your decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt. The `guilty verdict is for use when the prosecution has proven guilt beyond a reasonable doubt and the `not guilty verdict is for use when the prosecution has not proven guilt beyond a reasonable doubt. It is not necessary for you to conclude that the defendant is factually innocent in order to return a `not guilty verdict. Such a verdict only means that the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt."
Defense counsel argued that the trial court was not prohibited from giving nonCALJIC instructions. The trial court declined to give the instruction.
According to a page appended to defendants proposed instruction, the basis for giving this instruction is to inform the jury of the distinction between a finding of not guilty and a finding of factual innocence. However, defendant did not discuss this difference in the trial court.
CALJIC No. 2.90, which defines the burden of proof, was given. We adhere to the view that CALJIC No. 2.90 adequately informs the jury that the prosecution bears the burden of proof and defines the standard of proof. Failure by the prosecution to prove the case results in a not guilty verdict not an "innocent" verdict. (Pen. Code, § 1096.) When a jury is instructed with the language set forth in Penal Code section 1096, no other instruction on reasonable doubt or the presumption of innocence is required. (Pen. Code, § 1096a.) Moreover, "`[T]he 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. [Citation.]" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) In assessing a claim of instructional error, "the reviewing court must consider the instructions as a whole and must assume that the jurors are intelligent beings capable of understanding and correlating all the instructions which are given to them." (People v. Lonergan (1990) 219 Cal.App.3d 82, 91-92.)
As given, CALJIC No. 2.90 provides, in pertinent part: "A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of `not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt."
Other than the statement concerning the inapplicability of "factual innocence," other portions of the rejected instruction repeat other pattern instructions. (See, e.g., CALJIC Nos. 1.01, 17.31.) The entire panoply of instructions adequately informed the jury of the law. Further discussion of the application of the law to the facts are matters for argument by counsel.
II
Defendant contends his trial counsel was ineffective for failing to "investigate" jury misconduct or to "question" a challenged juror. We disagree.
During the trial, the prosecutor informed the trial court that a jurors wife was "taking notes." The next day, the trial court summoned the juror for questioning outside the presence of the other jurors. The juror stated the person with the pencil and notepad was indeed his wife, who was a writer. The juror stated his wife was not taking notes on the case, explaining she is "A writer, and she does that all the time in her spare time." The juror stated he had not discussed the case with his wife. The prosecutor stated that sounded good to him, and defense counsel stated, "I have nothing."
In order to prevail on an ineffectiveness claim, a defendant must show his counsels representation fell below an objective standard of reasonableness and, but for counsels error, there is a reasonable probability of a more favorable outcome. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Further, defendant is not entitled to relief on direct appeal if the record does not show why counsel failed to act in the manner defendant challenges, unless there is no satisfactory explanation for counsels conduct or counsel was asked for an explanation and failed to provide one. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In all other cases, the defendant is relegated to seeking habeas corpus relief. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
There is no indication in this record there was any juror misconduct for trial counsel to investigate, which is a satisfactory reason to fail to challenge this juror. Defendants contrary suggestion is no more than speculation. Defendant does not point to other questions that should have been addressed to the juror. Hence, no ineffective assistance has been demonstrated.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.