Opinion
A101454.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. TONY RAY LEWIS, JR., Defendant and Appellant.
I.
INTRODUCTION
Appellant Tony Ray Lewis, Jr. appeals from the judgment and sentence of conviction of attempted murder of a police officer and assault with a firearm, with charged enhancements. (Pen. Code, §§ 664, subd. (e); 187; 245, subd. (d).) The court sentenced appellant to life with the possibility of parole for the attempted murder conviction, and imposed an additional consecutive 20-year prison term for a firearm discharge enhancement (§ 12022.53, subd. (c)). We disagree with appellant that the trial courts use of CALJIC No. 3.16 impermissibly directed the jury to find that appellant was a perpetrator of the crimes charged thereby violating his right to due process. Accordingly, we affirm.
All further references are to the Penal Code, unless otherwise specified.
A separate six-year prison term for the assault count and its accompanying firearm discharge enhancement were stayed under section 654.
II.
FACTS AND PROCEDURAL BACKGROUND
On June 5, 2001, Alameda County Deputy Sheriff James Evans observed a red Ford Tempo parked in the bus zone while on patrol at the Oakland Coliseum BART station. Deputy Evans pulled up behind the vehicle to tell the driver to move it because no parking is allowed in the bus zone. Deputy Evans exited his patrol car and approached the vehicle. He observed two Black males in the vehicle, one passenger and one driver. The passenger was wearing a blue t-shirt, black pants and tennis shoes. Deputy Evans also noticed that the passenger had his hands folded in his lap. After Deputy Evans asked the driver to produce some identification, the driver told Deputy Evans that he did not have identification on him. Before the officer could ask the driver to step out of the vehicle, the driver accelerated rapidly and sped off down the road. Deputy Evans then got into his patrol car, trying to catch up to the vehicle so he could record the cars license plate number. While Deputy Evans advised his radio dispatcher of the license plate number, he continued his chase. The driver traveled at speeds in excess of the speed limit, failing to yield, and running red lights.
Eventually, the driver turned onto Garfield Avenue. Soon thereafter, Deputy Evans noticed the passenger of vehicle lean out of the car, look at him, point his gun and fire what seemed to be four or five rounds at him. Deputy Evans made eye contact with the passenger of the vehicle, noticing that he was also looking directly at the barrel of the gun. At that point, Deputy Evans put out an "officer needs assistance" call, advising the dispatcher that he was being fired upon. The deputy took evasive action and moved from directly behind the car over to the left side of the roadway to get out of the field of fire. Deputy Evans was able to get far enough over to the left where he felt that the subject would not be able to shoot at him without shooting through the Tempo. Neither the deputy nor the driver of the Tempo slowed down, and both continued the chase traveling about 50 miles per hour. Subsequently, the passenger pulled his body back inside the vehicle as it continued onto 79th. After the street came to an end, the driver turned onto Bancroft Avenue.
The passenger again leaned out of the vehicle, pointed the gun at Deputy Evans and shot four or five more times. Deputy Evans made eye contact again with the passenger. Deputy Evans did not return fire at any point during the chase. Finally, the passenger door of the Tempo flew open and as the passenger exited the car, his hands went in the air and what looked like a gun flew out of his right hand. The passenger fell to his knees and got up and ran across Bancroft Avenue, down to a creek in that area. Deputy Evans saw that the gun landed in the center median, near a "One Way" street sign pointing westbound. Deputy Evans continued to chase the driver of the Tempo as the driver continued on against traffic on Bancroft Avenue, making his way to Hillside.
Eventually, when the driver of the Tempo arrived again at Bancroft Avenue, he crashed the Tempo into the bushes. Another officer, Officer Salcido, who was on routine patrol on Bancroft Avenue around 7:30 p.m. that evening, saw a suspect wearing a blue shirt and black pants jump out of the car and go down to the creek.
Deputy Evans caught the driver less than a block from where the Tempo had come to rest, and arrested him on the scene. After putting the Tempo driver in the back of the patrol car, Deputy Evans told Deputy Cooly, another officer who responded to the scene, to go by the park and look for the "One Way" sign to see if he could find the handgun.
Officer Kamilah Jackson set up a perimeter post at the scene of the Tempo around 7:40 p.m. She noticed a dark-skinned bald man wearing only brown shorts with a black stripe on the side. Officer Jackson particularly noticed this individual because everyone else in the park was fully clothed, wearing sweatshirts, jackets, and full pants because of the weather. Officer Jackson also noticed the persons shoes were wet. Officer Jackson flagged down other officers who arrived at the perimeter post to help cover her while she attempted to detain the suspect to rule out whether he was involved. As the officers approached the suspect, he began to pull out a blue t-shirt from the waistband of his shorts.
Officer Jackson testified that she was present when appellant was detained and during which Officer Salcido identified him as the subject he saw running from the Tempo. Officer Jackson was also present when Deputy Evans positively identified appellant as the subject that shot at him.
Guerness Walker, a resident of Garfield Avenue, testified that around 7:30 p.m. on the evening of June 5, 2001, he heard cars speeding down the street and that somebody was shooting. Walker was working in his yard when he saw a car with a person in it shooting at a Sheriffs Department vehicle. Walker saw a dark arm on the passenger side of the car shooting. Walker also testified that although he probably did tell the police at the time that the arm he saw coming out of the passenger side of the car was pointed back in the direction of the sheriffs vehicle, Walker stated at trial that the "[the passenger] had his arm straight up. And I dont see how he could be shooting at the sheriff."
Juan Carlos Gil, another resident of Garfield Avenue, testified that around 7:30 p.m. he was outside watering his lawn when he heard two shots, and saw an arm come out of the passengers side window of a passing automobile.
Although appellant states in his brief that "[Gil] recalled, alternatively, that the shot came out of the drivers side and that the shot came out of the passengers side," upon close examination of the record, we find that it is clear that Gil intended to answer that the arm came out of the passenger side of the car. The record reads in part:
"Q: Which window did the arm come out of?
"A: The drivers side.
"Q: The drivers side?
"A: The passenger side.
"Q: Which passenger side, was there a front or a back—
"A: The front side.
"Q: The front-passenger side?
"A: Yes, the front side.
"Q: Which side of the street were you standing on, the passenger side or the drivers side?
"A: The drivers side."
The driver of the Ford Tempo was Bobbie Lee Duren. Duren testified at trial that he pled guilty to assaulting a police officer with a firearm as an accomplice, and to evading the police. Duren further testified that he pled guilty with the understanding that if he testified truthfully and was found by the trial judge to have done so, he would receive a maximum sentence of up to 13 years in prison.
Duren then testified that around 7:30 p.m. on June 5, 2001, he and appellant were in a burgundy Ford Tempo parked at Coliseum BART in a bus zone. Duren was in the driver seat and appellant was in the passenger seat. A uniformed officer in a marked police car pulled up behind him, got out of his car, and approached him, asking for identification. Duren told the officer he did not have any identification. Duren saw appellant pull a gun from his waist and cover it as the police officer was walking up to the car.
Duren fidgeted around his pockets like he was looking for identification, and appellant whispered, "Lets take off," and "Take off," at which point Duren "stepped on the gas and took off." Duren stated that the police officer jumped in his car and started chasing Duren, and that at some point the officer had his sirens and lights on. Duren admitted to running the red light at 73rd and East 14th, and stated he was going about 60 miles per hour when he was traveling on 73rd. When Duren was traveling on Garfield Avenue, Duren stated that appellant jumped up and said, "I am tired of this motherfucker chasing us. I am tired of him." Then, appellant pulled out the gun, hung out the window and started shooting. Duren stated that appellant was shooting "back towards the police." Duren said that appellant fired two or three rapid shots, another after that and then another little burst of two or three shots.
Appellant told Duren to let him out of the car and Duren slowed down to do so. Appellant jumped out at Parker and Bancroft Avenue, throwing the gun into the median strip on Bancroft. Duren then let the car roll into bushes and jumped out and started running. After about half a block Duren fell, and was subsequently arrested. Duren testified that he never noticed his rear passenger window had been shattered.
The trial court gave the jury approximately 60 instructions, including CALJIC No. 3.16, which was modified as follows: "If the crimes of attempted murder and assault with a deadly weapon upon a peace officer was committed by anyone, the witness Bobby Lee Duren was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration."
On December 4, 2002, the jury found appellant guilty of attempted murder, a violation of sections 664, subdivision (e) and 187 (count 2). Further, the jury found that during the commission of the attempted murder, appellant intentionally and personally discharged a firearm upon a peace officer who was engaged in the performance of his duties in violation of section 245, subdivision (d) (count 3). On January 21, 2003, the trial court judge sentenced appellant on count two to life with the possibility of parole and 20 years for the arming enhancement. As to count three, the judge sentenced appellant to six years term (which was stayed), and to a consecutive 20-year prison term (also stayed) as to the enhancement. Appellant filed this appeal on January 24, 2003.
III.
DISCUSSION
Appellant claims that because of Durens admitted guilt, when coupled with the fact that the evidence suggested appellant was the only other person possibly involved in the crime, instructing the jury using CALJIC No. 3.16 effectively told the jury that appellant was guilty of those crimes as well. This instruction, appellant argues, was tantamount to the court directing a verdict against appellant "in that the combined message was clear: the jury must find Mr. Lewis guilty." Further, appellant argues that the court effectively instructed the jury that appellant was guilty of the assault count, and necessarily also of the attempted murder count since both counts were based on the same conduct. We disagree that there was any error in instructing the jury using CALJIC No. 3.16, and that even if it was error, it was harmless.
A.
The standard of review for a claim of instructional error of this kind is de novo because it involves a question of law (i.e., the determination of applicable legal principles.) (See People v. Louis (1986) 42 Cal.3d 969, 985.)
The purpose of instructing the jury with CALJIC No. 3.16 was to emphasize that Durens testimony incriminating appellant must have been corroborated with other evidence before the jury could rely on it. Thus, it is intended to assist the defense in ensuring the jury relies on solid, independent corroborating evidence before crediting the adverse testimony of an accomplice. This instruction is more specific and helpful than the more general instruction contained in CALJIC No. 3.11 (1999 Rev.) (which was also given as part of the jurys charge in this case): "You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. [¶] Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out-of-court was true." CALJIC No. 3.11 is a more generic instruction that instructs the jury about the corroboration rule generally. CALJIC No. 3.16 specifically instructs that the jury must find corroborating evidence when applying Durens testimony, because Duren is an accomplice as a matter of law. As such, it serves appellants interest by reminding the jury of the need to find corroborating evidence before crediting Durens harmful testimony.
Nevertheless, appellant cites to People v. Hill in support of his contention that the trial court effectively directed a verdict to find him a perpetrator of the charged crimes by giving CALJIC No. 3.16. (People v. Hill (1967) 66 Cal.2d 536, 555.) In Hill, our Supreme Court discussed a concern that a codefendant, found to be an accomplice as a matter of law, might have his confession improperly imputed to other defendants. (Id. at pp. 555-556.) Appellant points to a particular passage in the opinion where the court stated, "[h]owever, where a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendants foregone guilt to the other defendants. [Citation.] It is not error even to forego the giving of accomplice instructions where the giving of them would unfairly prejudice a codefendant in the eyes of the jury. [Citation.] In the instant case it was not error to leave to the jury the determination of [the codefendants] role as an accomplice and thus avoid imputations of the guilt of [the complaining codefendants] which might have flowed from the courts direction that the confessing [codefendant] was their accomplice as a matter of law." (Ibid.)
Here, instructing the jury that "[i]f the crimes . . . [were] committed by anyone, the witness Bobby Lee Duren was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration" is not equivalent to directing a verdict. (CALJIC No. 3.16, italics added.) This instruction did not direct the jury that any person is necessarily guilty of the charged crimes, which is confirmed by the use of the word "if." Secondly, the instruction did not direct the jury that Duren was appellants accomplice. Rather, it uses the word "anyone," thereby expressly leaving open the possibility that any other person could have committed the charged crimes.
Similarly, appellant also cites People v. Figueroa (1986) 41 Cal.3d 714, where our Supreme Court held, "[t]he prohibition against directed verdicts `includes perforce situations in which the judges instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.. . ." (Id. at p. 724, quoting United States v. Hayward (D.C. Cir. 1969) 420 F.2d 142, 144.) Here, the trial court did not have the effect of directing a guilty verdict "by eliminating other relevant considerations if the jury found one fact to be true." (Ibid.) Rather, if the jury had found that "anyone" committed the charged crimes, the jury still needed to decide who that person was. Again, the only purpose we find that CALJIC No. 3.16 served here was to inform the jury of its duty to apply the corroboration rule to Durens testimony.
Moreover, in determining whether an instruction is prejudicially ambiguous a court should not read instructions in isolation. (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on other grounds by People v. Reyes (1998) 19 Cal.4th 743.) Instructions should be understood holistically, such that "[i]t is not expected that each instruction fully states the law of the case. . . . The court will look to the pertinent instructions altogether." (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075.)
Reading the jury instructions here as a whole reinforces our conclusion that the court did not effectively direct the jury to find appellant guilty by including CALJIC No. 3.16 in the jurys charge. Of the approximately 60 instructions given to the jury, some that are pertinent here included: CALJIC No. 2.90 [presumption of innocence and burden of proving guilt beyond a reasonable doubt]; CALJIC No. 2.91 [burden of proving identify beyond a reasonable doubt]; CALJIC No. 3.11 [guilty verdict cannot be based on uncorroborated accomplice testimony]; CALJIC No. 3.12 [sufficiency of evidence to corroborate accomplices testimony]; and CALJIC No. 3.18 [viewing accomplice testimony with caution]. The court also instructed the jury on elements of crimes, direct and circumstantial evidence, and the believability of witnesses.
The use of these instructions in the aggregate also leads us to conclude that the trial court did not err in so instructing the jury.
B.
Furthermore, we disagree with appellant that any error here requires reversal.
Firstly, to decide what standard of prejudice applies here, we start with the general rule that a constitutional error does not automatically require reversal of a conviction. (Arizona v. Fulminante (1991) 499 U.S. 279, 306; see Chapman v. California (1967) 386 U.S. 18.) Rather, the Supreme Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. (Arizona v. Fulminante, supra, at p. 306.) It has so recognized because the errors are often trial errors, which occur during the presentation of the case to the jury and may be quantitatively assessed in the context of other evidence presented to determine whether their admission was harmless beyond a reasonable doubt. (Id. at pp. 307-308.) On the other hand, where errors constitute "structural defects in the constitution of the trial mechanism," those errors are not subject to the harmless error rule. (Id. at p. 309.)
Examples of "structural defects" include the total deprivation of the right to counsel at trial and a partial judge. In these circumstances, the "entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial." (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310.) Other cases of constitutional errors not subject to harmless error include, "unlawful exclusion of members of the defendants race from a grand jury, [citation]; the right to self-representation at trial, [citation]; and the right to public trial, [citation]. (Id. at p. 310.) These errors are similar "structural defects" because they affect that "framework within which the trial proceeds, rather than simply an error in the trial process itself." (Ibid.)
This is not a case where the error involved is one comparable to a trial presided over by an impartial judge or the failure to honor a defendants right to self-representation such that would warrant automatic reversal of the trial courts decision. At best, appellant argues this to be a case of federal constitutional error which requires us to analyze whether any error was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.) This is so, appellant contends, because the error implicated appellants Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process of law.
On the other hand, where a jury instruction is ambiguous and therefore subject to erroneous interpretation, the standard we usually apply is "`whether there is a reasonable likelihood that the jury has applied [CALJIC 3.16] in a way that violates the Constitution. . . ." (Estelle v. McGuire (1991) 502 U.S. 62, 72-73, quoting Boyde v. California (1990) 494 U.S. 370, 380; People v. Welch (1999) 20 Cal.4th 701, 766.)
Regardless, assuming the trial court did err in instructing the jury pursuant to CALJIC No. 3.16, any error was harmless under either the Estelle reasonable likelihood standard or the stricter Chapman standard. As to appellants role in the crimes, there is overwhelming evidence that appellant was not only the passenger in Durens car, but was also the person who fired upon the pursuing lawman. First, Deputy Evans testified only that the passenger, who was later identified as appellant, repeatedly shot at him. Deputy Jackson testified that she was present when Deputy Evans without hesitation positively identified appellant as the subject who shot at him, which occurred after Deputy Evans had apprehended and arrested Duren. Witness Walker testified that he saw an arm sticking out of the passenger side window of the car shooting. Another witness, Gil, testified having heard shots and that a persons arm was coming out the passenger side of the car around the same time that he heard the shots. No witness saw the driver of the Ford Tempo ever shoot a gun. Nor is there any evidence in the record that the driver and passenger of the Ford Tempo swapped places. Durens testimony, when corroborated with the police officer and other witness testimony, appellants presence and state of dress at the site of the Tempos rest, and the absence of evidence implicating another individual as the shooter, all tend to prove, without contradiction, that appellant was the shooter.
In summary, we do not find that the challenged jury instruction was erroneously given in a way that violates appellants constitutional rights. The instruction itself does not specifically implicate appellant, nor does it implicate any other person in particular. It merely states that Duren himself is an accomplice and that therefore the jury should not consider his testimony without sufficient corroboration. Further, the jury instructions taken as a whole do not deprive appellant of his defense that Duren was the shooter because we find that no evidence exists that could possibly indicate that Duren was the shooter. As to this last point, because the evidence that appellant was the perpetrator of the crimes along with Duren was compelling, any error by trial court in giving the disputed instruction would have been harmless under even the stricter Chapman standard. That is, any error in instructing the jury pursuant to CALJIC No. 3.16 would have been harmless beyond a reasonable doubt.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., and Haerle, J.