Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F02228
BLEASE, Acting P. J.
While serving a life sentence at the California State Prison, Sacramento, defendants Kristopher Kirchner and Jayson Weaver attacked and stabbed a fellow inmate. They were tried together and both found guilty of assault by a life prisoner with a deadly weapon and possession by an inmate of a weapon. The jury also found true the allegations that each defendant personally used a dangerous weapon and the court found true the allegation that each had a prior serious felony conviction and inflicted great bodily injury. Kirchner was sentenced to a term of 25 years to life plus nine years for the enhancements. Weaver was sentenced to life without the possibility of parole for 18 years, plus nine years for the enhancements.
We consolidated the cases for appeal. Both defendants argue: (1) the trial court improperly imposed the deadly weapon enhancement because use of a deadly weapon is an element of the underlying offense, (2) the trial court violated their constitutional rights when it refused the production of state prison inmates to testify in their defense, and (3) the trial court erred in giving several standard jury instructions.
We shall conclude that the one year enhancement for personal use of a deadly weapon was improperly imposed because use of a deadly weapon was an element of the offense charged. We shall affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Weaver and Kirchner were cell mates at Folsom State Prison. They were in an exercise yard with nine to eleven other inmates, including the victim, when the officer located in the guard tower overlooking the yard observed them attack the victim with stabbing motions. The guard activated the alarm and ordered all the inmates to sit down. The guard saw Kirchner walk away from the victim and throw something over the wall of the yard. Weaver went to a drain port in the yard, lay down in a prone position, lifted the top corner of the drain grate, and placed something underneath. The entire incident was videotaped, and the videotape was played for the jury.
A search of a grassy area outside the exercise yard resulted in the discovery of a five-inch long inmate-manufactured weapon consisting of a piece of sharpened steel with material wrapped around one end. Another weapon was found in the storm drain. The weapon was approximately five inches long, with a sharpened end.
The victim was stabbed several times, and had blood on his head, the front of his chest, back, and leg. At the time of the incident, both defendants had been sentenced to a maximum term of life in prison.
I
Section 12022 Enhancement
Each charging document contained an allegation that defendants used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). That subdivision provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (Italics added.)
References to an unnamed section are to the Penal Code.
The underlying offense to which this enhancement was alleged was section 4500. That section punishes a person undergoing a life sentence in state prison, “who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury . . . .” (Italics added.)
Defendants argue the one year enhancement pursuant to section 12022 was improper, since use of a deadly weapon is an element of the underlying offense. We agree.
Section 12022 provides the enhancement is improper where use of a deadly or dangerous weapon is an element of the offense. Accordingly, this court has held that the sentence for violating section 245, assault with a deadly weapon, may not be enhanced under section 12022, subdivision (b). (People v. McGee (1993) 15 Cal.App.4th 107, 113.) Just as in section 245, use of a deadly weapon is an element of section 4500. The relevant language of the two statutes is identical. In fact, section 245 is a lesser included offense of section 4500. (People v. Oppenheimer (1909) 156 Cal. 733, 745.)
The People argue that because each defendant could have been guilty as an aider and abettor, and could have been an unarmed aider and abettor, each was properly subject to a section 12022 enhancement. The People claim that each defendant individually assaulted the victim in addition to aiding and abetting the other in the assault. The People argue that use of a deadly weapon is not an essential element of the crime of aiding and abetting an assault with a deadly weapon, making the enhancement permissible.
The People correctly point out that the jury was given instructions on aiding and abetting. However, each defendant was charged with and convicted of only one violation of section 4500. The jury was instructed that it could find defendants violated section 4500 in two ways, by directly committing the crime or by aiding and abetting the other.
Our analysis in People v. McGee, supra, 15 Cal.App.4th 107, is instructive. In that case, the defendant had been charged with violating section 245, which describes the offense of assault with a deadly weapon or by any means of force likely to produce great bodily injury. (Id. at pp. 112-113.) A section 12022 enhancement was also alleged. The trial court deleted the portion of the section 245 instructions relating to use of a deadly weapon, and the jury convicted the defendant of assault by means of force likely to produce great bodily injury and imposed the section 12022 enhancement for personal use of a deadly weapon. (Id. at p. 113.)
In holding that the enhancement was improperly imposed, we stated that section 245 defines only one offense, and that in determining whether use of a deadly weapon is an element of that offense, “the question is not simply whether, in the abstract, the section can be violated without using such a weapon. Rather, the conduct of the accused, i.e., the means by which he or she violated the statute, must be considered.” (McGee, supra, 15 Cal.App.4th at p. 115.)
Here, too, while it would have been possible in the abstract for an aider and abettor to have been guilty of the assault without directly assaulting the victim and without directly using a deadly weapon, that is not what happened here. Instead, the videotape showed both defendants attacking the victim, two weapons were recovered, and the jury found both defendants personally used a deadly weapon. Thus, defendants’ use of a deadly weapon was not an additional factor above and beyond the elements of section 4500 which would permit the imposition of the enhancement.
II
Right to Produce Witnesses
Where a prisoner is a material witness whose testimony is required, the trial court may, in its discretion and upon application, order the prisoner’s temporary removal from prison if it finds the prisoner’s testimony is material and necessary. (§ 2621.)
Defendants made a motion to produce five eye-witnesses to the incident, all of whom were prisoners in custody outside Sacramento County at the time of trial. Defense counsel submitted a declaration in support of the motion, stating the witnesses had “relevant information.” Defense counsel also submitted a sealed declaration in which he claimed the witnesses had special knowledge concerning the guards involved and security procedures implemented at the unit where defendant was housed (i.e., that the prisoners were searched and double “wanded” before entering the exercise yard, that the area beyond the wall was not controlled, and that the storm drain had not been searched for a considerable time period). Defense counsel also stated the prisoners “personally knew relevant characteristics of the defendants, had personal knowledge of the reputation of the defendants within the relevant community, and specific knowledge regarding the cells in which they lived.”
Defendants now claim the trial court’s denial of the motion violated their federal and state constitutional right to due process, compel witnesses, and present a defense. We disagree.
The constitutional right of a criminal defendant to call witnesses for the defense is not unlimited. (United States v. Scheffer (1998) 523 U.S. 303, 308 [140 L.Ed.2d 413, 418].) Because other legitimate interests in the criminal trial process may take precedence over the defendant’s interest in presenting relevant evidence, states have broad latitude to establish rules excluding evidence, and such rules do not violate a defendant’s right to present a defense as long as they are not arbitrary or overbroad. (Ibid.)
A criminal defendant is not entitled as a matter of right to an order allowing a prisoner to testify on his or her behalf. (Willard v. Superior Court (1890) 82 Cal. 456, 459-460.) Although it has not done so, the Legislature has the right to provide that no convicted felon may testify in any action. (Id. at p. 460.) The Legislature has provided that a prisoner’s deposition may be taken in lieu of testimony at trial, a provision of which defendants did not avail themselves. (§ 2622.)
Under section 2621 a court may order the temporary removal of a prisoner from state prison for the purpose of testifying only upon a showing that the prisoner’s testimony is “material and necessary; and even then the granting of the order shall be in the discretion of said superior court or a judge thereof.”
The trial court did not abuse its discretion in finding the defendants’ showing that the testimony was material and necessary was insufficient. There was no showing of any statement of fact to which the witnesses would testify, only that they had “knowledge concerning the conditions and characteristics of the guards involved with this case, the specific security procedures implemented which would have made it improbable that the defendants could have carried in weapons of the type alleged, and were privy to issues of credibility or lack thereof involving the prison guards.”
Any testimony regarding the security procedures would have been cumulative. The guards who testified could and did testify to the prison security procedures. Defendants cross examined them thoroughly and argued it was improbable they could have carried weapons into the exercise yard. Nevertheless, the victim was stabbed, weapons were found, and the attack was caught on videotape.
If defendants had any specific material evidence that one of the proposed witnesses had information concerning the guards’ lack of credibility, such information could have been presented in the declaration in support of the motion, or the prisoner’s testimony could have been presented to the jury by way of deposition. The fact that such measures were not taken is an indication the evidence did not exist. In any case, if there was such evidence, defendants had a means of introducing it by deposition, and the failure to produce the prisoners to testify did not deprive defendants of their right to present evidence.
III
Jury Instructions
Defendants raise numerous challenges to the criminal jury instructions adopted by the California Judicial Council, effective January 1, 2006. Defendants admit their trial counsel made no specific objection to the instructions. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 []; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193 [].) The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818 []. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978 [].)” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
Defendants claim the instructional errors affected their substantial rights, or to the extent any issues were waived for lack of objection, that they received ineffective assistance of counsel at trial. Accordingly, we address their challenges on the merits.
A. CALCRIM Nos. 102, 202, and 222.
Defendants maintain these instructions, which relate to the jurors’ use of notes, were erroneous. The instructions given were as follows:
“You may take your notes into the jury room during deliberations. Here are some of the points to consider if you take notes. [¶] Note taking may tend to distract you. It may [a]ffect your ability to listen carefully to all the testimony and watch the witness[es] as they testify. [¶] And that you may use your notes only to remind yourself of what happened during the trial but, remember, your notes may be inaccurate or incomplete. I do not mean to discourage you from taking notes. I believe you may find them helpful. . . .
You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations only to remind yourself of what happened during the trial. But, remember, your notes may be inaccurate or incomplete. If there’s a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes. . . .
The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask the court reporter’s notes be read to you. You must accept the [c]ourt reporter[’]s notes as accurate.”
Defendants contend it is error to imply that the jurors’ recollections are less accurate than those of the court reporter, or that the court reporter’s notes must be accepted over the juror’s notes.
While a cautionary instruction regarding the jurors’ notes is not mandatory, the Supreme Court has recommended as the “better practice” giving an instruction that includes the information of which defendants complain, that the reporter’s transcript prevails over the juror’s notes. (People v. Whitt (1984) 36 Cal.3d 724, 747; People v. Silbertson (1985) 41 Cal.3d 296, 303-304.) Furthermore, defendants have made no showing of prejudice, nor is it conceivable they could do so, since the record does not demonstrate any notes were taken. (See People v. Bonillas (1989) 48 Cal.3d 757, 794 [no prejudice where no instruction given and no record notes were taken].)
B. CALCRIM Nos. 200 and 222
The trial court instructed the jury in relevant part:
“You must decide what the facts are. It is up to you exclusively, to decide what happened based only on the evidence that has been presented to you in this trial. . . .
You must decide what the facts are in this case.”
Defendants claim these instructions improperly defined the jury’s duty as deciding “the truth” rather than determining whether the prosecution has carried its burden of proving the allegations. We reject this strained interpretation of the instructions.
In fact, the trial court is required to inform the jurors that they are to be “the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.” (§ 1127.) The language of CALCRIM No. 200 alters the words of section 1127, but not the meaning.
The jury was instructed that the prosecution was required to “prove each element of a crime and special allegation beyond a reasonable doubt.” This instruction was clear as to the jury’s role. When reviewing the court’s instructions to determine whether there is a reasonable likelihood the jury misunderstood or misapplied an instruction, we review the instructions as a whole, rather than reviewing each instruction in isolation. (People v. Smithey (1999) 20 Cal.4th 936, 963.) We find no reasonable likelihood the jury misunderstood the instruction as defendants suggest.
C. CALCRIM No. 220
Defendants argue that the standard reasonable doubt instruction, CALCRIM No. 220, “defines the presumption of innocence only in the context of the prosecution’s burden to prove each element of a charged offense [but] does not discuss how the presumption relates to other essential factual issues.” Defendants cite no authority for this proposition because there can be none.
The presumption of innocence is the counterpart to the prosecution’s burden of proof. The prosecution’s burden is to “prove beyond a reasonable doubt every element of a charged offense.” (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590].) There is no requirement that the prosecution prove every fact beyond a reasonable doubt.
The reasonable doubt instruction need merely instruct the jury that the defendant’s guilt must be proved beyond a reasonable doubt. (Victor v. Nebraska, supra, 511 U.S. at p. 5 [p. 590].) “[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.’ [Citation.]” (Ibid.) Accordingly, the instruction given was not erroneous for failing to inform the jury that the prosecution had the burden of proving all essential facts beyond a reasonable doubt.
D. Contentions previously decided by this court.
Defendants raise numerous claims of error regarding other standard CALCRIM instructions. This court has resolved the identical issues raised here in People v. Anderson, supra, 152 Cal.App.4th 919. We decline to reconsider any of these arguments.
The arguments raised, with the corresponding citation to Anderson, are as follows: (1) CALCRIM No. 200 is coercive because it implies the jurors are obligated to reach a verdict (Anderson, supra, 152 Cal.App.4th at p. 929); (2) CALCRIM No. 220 implies certain bias against the defendant is permissible (Id. at p. 944); (3) CALCRIM No. 223 gives jurors the impression they may not give circumstantial evidence greater weight than direct evidence (Id. at p. 930); (4) CALCRIM No. 224 gives the false impression that reasonable doubt and burden of proof principles apply only to circumstantial evidence, incorrectly limits to circumstantial evidence the principle that when two inferences may be drawn, the one pointing to innocence must be assumed, incorrectly couches the jury’s conclusions in terms of innocence and guilt, and defines the burden of proof in terms of being convinced (Id. at pp. 931-934); (5) CALCRIM No. 226 inaccurately uses the term “sometimes” (Id. at pp. 934-936); (6) CALCRIM No. 300 fails to inform the jurors that defendant has no burden to present evidence or prove anything (Id. at pp. 937-938); (7) CALCRIM No. 302 undermines the presumption of innocence by requiring the jury to accept the testimony of a witness unless the defendant disproves the testimony, conflicts with the presumption of innocence by instructing the jury not to favor one side over the other, improperly implies that disbelief of defense witnesses means that prosecution witnesses are believable, and improperly instructs the jury to choose between the prosecution and defense witnesses (Id. at p. 939-940); and (8) numerous CALCRIM instructions refer to jurors collectively rather than individually (Id. at p. 952.).
DISPOSITION
The section 12022, subdivision (b)(1) deadly weapon use enhancement is stricken from the judgments. The matter is remanded with directions to the trial court to issue and send to each appropriate person a certified copy of an amended abstract of judgment. The judgments are otherwise affirmed.
We concur: DAVIS, J., HULL, J.