Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA061248, Michael K. Kellogg, Judge.
Jean Ballantine, 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, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Julio Martinez was convicted by jury in count 1 of attempted murder in violation of Penal Code sections 664 and 187, subdivision (a), with a further finding the offense was willful, deliberate, and premeditated within the meaning of section 664, subdivision (a). The jury found that defendant personally used a knife in the commission of the offense as described in section 12022.53, subdivision (b), and he inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In count 2, defendant was found guilty of misdemeanor vandalism in violation of section 594, subdivision (a). The trial court sentenced defendant to seven years to life in state prison in count 1, enhanced by a total of four years for the use of a knife and great bodily injury findings.
All further statutory references are to the Penal Code, unless otherwise indicated.
The verdict form prepared by the trial court indicated the jury found defendant guilty of “ATTEMPTED MURDER of the FIRST degree.” The jury was also instructed in language purporting to describe the crime of attempted murder of the first or second degree. There are no degrees of attempted murder. (People v. Bright (1996) 12 Cal.4th 652, 667-668, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Defendant was not prejudiced by the references to the degrees of attempted murder.
In his timely appeal, defendant argues the trial court committed reversible error and violated his federal constitutional rights by committing several instructional errors, including improperly instructing the jury on implied malice in an attempted murder case. He further contends the court erred in imposing a sentence of seven years to life for attempted murder and in denying all presentence conduct credits and calculating his presentence custody credits.
We agree the trial court committed instructional errors, but hold the errors were harmless beyond a reasonable doubt. We also agree the court imposed an unauthorized sentence and erred in denying all presentence conduct credits and in calculating the presentence conduct credits. We affirm the judgment, with modifications to the sentence and presentence credits.
FACTS
Prosecution Evidence
Angelica Meza was stabbed repeated by defendant on February 6, 2009. Meza and defendant had worked together previously at Prestige Medical in Northridge. In June or July 2008, defendant accused Meza of having telephoned defendant’s wife and telling her that defendant was romantically involved with a woman at work. Meza denied making the call. Defendant was fired from Prestige Medical a few months after this confrontation.
On February 6, Meza was driving home from work in her Ford pickup truck when she saw defendant standing at the corner of Wilbur and Chase. Defendant waved at Meza, who stopped. Defendant said his car had broken down and needed a ride to his cousin’s home. Meza agreed to give defendant a ride.
Meza parked in the driveway of the cousin’s house, near defendant’s red Ford pickup. Defendant asked Meza why she had called his wife; she denied making the call. Meza did not think defendant was intoxicated, although she later stated at the hospital defendant seemed drunk.
Defendant opened the passenger door to Meza’s truck. Instead of exiting the truck, defendant suddenly began stabbing Meza with a knife. She was stabbed five times in the chest, forearm, face, and neck. Meza opened her door and tried to get out of the car, but defendant grabbed her by the ponytail and stabbed her three times in the back. Meza was able to exit the car and run across the street yelling for help, with defendant in pursuit. Meza was able to gain entry to a nearby home. Defendant drove away in her truck.
A neighbor and his son observed defendant running after Meza with a knife. After defendant drove off, he returned minutes later and used a towel to wipe the door handles of Meza’s truck.
Meza was hospitalized for a week and a half. She was unable to raise her right arm as a result of the attack. Her truck had a stab mark in the seat belt. Strands of Meza’s hair were found inside the truck on the driver’s side.
Officers were looking for defendant on San Fernando Road on February 11, 2009. Defendant entered a Mercury Sable, followed by the officers. Defendant attempted to evade the officers, but in the process, he drove his car into two police vehicles. A search of defendant’s truck on February 11 resulted in discovery of a knife inside a tool box. The knife had dark color stains on it.
Defense Evidence
Defendant testified he was married, had a young daughter, and had been unable to find work after his dismissal from Prestige Medical, where he had complained to human resources and Meza about Meza calling his wife and spreading rumors that defendant was having an affair. Defendant has had a problem with alcohol since 1991, when his three-year-old brother died.
Defendant drank excessively on the night before, as well as the day of, the attempted murder. He left his car at his cousin’s house and flagged down Meza as she was driving home from work, so that he could talk to her about her repeated calls to his wife. Defendant brought a folding knife with him to scare Meza into ceasing the calls.
As they drove toward defendant’s cousin’s house, Meza denied calling defendant’s wife. As defendant was about to exit Meza’s car, he snapped and stabbed her numerous times. He grabbed her ponytail and stabbed her in the back. Defendant chased Meza as she ran to safety. Defendant did not believe Meza would die, and if he had intended to kill her, he would have stabbed her in the throat or heart. He did return to wipe his fingerprints from Meza’s truck and returned the knife to a toolbox where it was normally kept.
On February 11, 2009, defendant did not know he was being followed by police officers in unmarked vehicles with no visible badges. He surrendered when black and white police cars arrived. After his arrest, defendant told officers he accepted responsibility for what happened, that he had not been drinking, and he was thinking with a clear mind.
An expert explained that drinking anywhere from 3 to 21 beers would affect, and perhaps negate, the ability to deliberate. The expert also opined that an alcohol induced delusional condition can occur in a person who abuses alcohol over a significant period of time, causing the person to misinterpret events.
DISCUSSION
Instructional Error
Defendant argues the trial court committed prejudicial error by including instructions on implied malice in this attempted murder prosecution. Defendant also points out that the court read only portions of some of the written instructions and read others that were not included in the set of written instructions provided to the jury. Defendant contends the conflicting instructions violated his federal due process rights, and the error was not harmless beyond a reasonable doubt.
We agree the trial court committed multiple instructional errors, but hold the errors were harmless beyond a reasonable doubt in light of other instructions properly defining the elements of attempted murder, the jury’s finding the offense was willful, deliberate, and premeditated, and the overwhelming evidence of guilt.
a. Malice Instructions
“It is now well established that a specific intent to kill is a requisite element of attempted murder, and that mere implied malice is an insufficient basis on which to sustain such a charge. Accordingly, implied malice instructions should never be given in relation to an attempted murder charge. (See People v. Ratliff (1986) 41 Cal.3d 675, 695-696; People v. Guerra (1985) 40 Cal.3d 377, 386-387; People v. Ramos (1982) 30 Cal.3d 553, 583-584; People v. Johnson (1981) 30 Cal.3d 444, 447-449 [assault with intent to murder]; People v. Collie (1981) 30 Cal.3d 43, 61-62; People v. Murtishaw (1981) 29 Cal.3d 733, 762-765 [assault with intent to murder].)” (People v. Lee (1987) 43 Cal.3d 666, 670 (Lee).)
Despite the settled state of California law, the trial court erroneously instructed the jury on the definition of implied malice in CALJIC No. 8.11(“MALICE AFORETHOUGHT”—DEFINED.) Moreover, the trial court instructed the jury with the Penal Code section 7 definition of malice set forth in CALJIC No.1.22 (“Malice” and “Maliciously”—Defined) without limiting the instruction to the vandalism charge. As reflected in the use note to CALJIC No.1.22, it has long been the law in California that malice should not be defined as set forth in CALJIC No.1.22 in a prosecution involving the elements of murder. (People v. Chavez (1951) 37 Cal.2d 656, 666, citing People v. Waysman (1905) 1 Cal.App. 246, 248; People v. Powell (1963) 219 Cal.App.2d 389, 392-393.) In addition, the court instructed the jury on a definition of willful conduct pursuant to CALJIC No. 1.20 (“Willfully”—DEFINED) that should not be given in a specific intent prosecution, such as attempted murder. (People v. Kozel (1982) 133 Cal.App.3d 507, 529.)
CALJIC No. 8.11 provides as follows: “‘Malice’ may be either express or implied.
CALJIC No. 1.22 provides as follows: “The words ‘malice’ and ‘maliciously’ mean a wish to vex, [defraud, ] annoy or injure another person, or an intent to do a wrongful act.”
CALJIC No. 1.20 also had no application to the vandalism charge, as the instructions on vandalism do not contain a willfulness element. (See CALJIC No. 16.320.)
We are satisfied that the trial court’s errors pertaining to the intent and malice instructions were harmless beyond a reasonable doubt. The jury was properly instructed on the elements of attempted murder in CALJIC No. 8.66, undermining defendant’s argument the instructions resulted in a denial of federal due process. (Lee, supra, 43 Cal.3d at pp. 673-676.) In its oral instructions, the court referred to the required specific intent to kill at least six different times. As in Lee, the prosecutor in argument made repeated reference to attempted murders’ requirement of an intent to kill and never suggested anything less than an intent to kill was sufficient for establishing attempted murder. In addition, the jury found the attempted murder was willful, deliberate, and premeditated, and the willfulness finding establishes that the jury found defendant acted with the intent to kill. (People v. Moon (2005) 37 Cal.4th 1, 29 [“willfulness does not include any concept that is not contained in express malice”].) Finally, the overwhelming evidence of intent to kill demonstrated by defendant arming himself with the knife, tricking Meza into giving him a ride as she drove home, and viciously attacking her as she sat restrained by her seatbelt in her truck, all point unerringly to an intent to kill.
CALJIC No. 8.66 provides as follows: “[Defendant is accused [in Count[s] ____ ] of having committed the crime of attempted murder in violation of sections 664 and 187 of the Penal Code.]
We also view the failure to limit CALJIC No. 1.22 to the vandalism charge to be harmless error as to the attempted murder, as “in all cases in which the question has been considered it has been held that, while the giving of the general definition of malice is unnecessary and perhaps inappropriate in a murder trial, nonetheless any error that might otherwise result therefrom is cured by the full and proper instructions here requested by both parties and given by the court. (People v. Berry [(1955)] 44 Cal.2d 426, 432; People v. Chavez[, supra, ] 37 Cal.2d [at pp.] 666-667; People v. Dice [(1898)] 120 Cal. 189, 202; People v. Miceli [(1951)] 101 Cal.App.2d 643, 650; People v. Waysman[, supra, ] 1 Cal.App. [at pp.] 248-249.)” (People v. Powell, supra, 219 Cal.App.2d at p. 393.)
The instruction on willfulness in CALJIC No. 1.20 was also harmless beyond a reasonable doubt. “It has been held that giving this instruction is error where the crimes involved require specific intent, but that no prejudicial error results where the jury has been otherwise instructed on specific intent. (People v. Warren (1959) 175 Cal.App.2d 233, 240.) The jury in the present case was instructed fully as to the required mental states and intent for the crimes involved.” (People v. Kozel, supra, 133 Cal.App.3d at p. 529.)
b. Additional Instructional Contentions
Defendant makes reference to other problems associated with the jury instructions, including the instructions as read to the jury do not match the written instructions included in the clerk’s transcript. He also points out the trial court improvised a number of the instructions as they were read, deviating from the written form. He further contends the court did not fill in blanks in several of the instructions, particularly those which have blanks to insert the intent required for the charged offenses.
We have carefully examined the instructional deficiencies in this case, focusing both on what instructions were read to the jury as well as the instructions in their written form. This review leads to the conclusion that the instructional errors, whether viewed individually or in combination with each other, were harmless beyond a reasonable doubt.
Review of the instructional issues in this case has been made difficult because the trial court failed to create a record of which party requested any instruction, and whether instructions were given as requested, modified, or refused. “Each instruction should be identified by a number and should indicate by whom it was requested or that it was given by the court of its own motion; on each requested instruction the trial judge should endorse the fact as to whether it was given or refused or given as modified, with the modification, if any, clearly indicated.” (Vaughn v. Jonas (1948) 31 Cal.2d 586, 596; People v. Letourneau (1949) 34 Cal.2d 478, 493; People v. Robinson (1960) 180 Cal.App.2d 745, 749.) None of the instructions in this case contains any of this information, which precludes this court from determining if any of the improper instructions were given on defendant’s request and were therefore invited error.
Defendant is correct that several standard instructions contain blanks to be filled in as to the intent required in the charged offenses and lesser included offenses. None of the blanks in instructions were filled in by the trial court in this case. Defendant also accurately describes the clerk’s transcript as not including each of the instructions given orally by the trial court. It appears that many, if not all, of the closing set of instructions, which primarily explain how the jury is to conduct itself in reaching a verdict, are not included in the clerk’s transcript in written form. The written instructions in the clerk’s transcript include some instructions that were not read to the jury. For example, the clerk’s record includes instructions on a defendant’s right not to testify and rely on the state of the evidence, as set forth in CALJIC Nos. 2.60 and 2.61—instructions clearly inapplicable in this case.
Viewed in light of the instructions that were properly given defining the applicable mental states, the jury’s true finding on the allegation the attempted murder was willful, deliberate and premeditated, and the compelling state of the evidence of guilt, we hold the errors were harmless under any standard. Our conclusion that the errors were harmless should not be taken as condoning the manner in which the instructions were handled in this case. Jury instructions are a critical portion of a criminal trial, their preparation is a judicial function, and great care should be taken to ensure that instructions are accurate and a complete record is provided for appellate review.
Conduct and Custody Credits
Defendant contends he is entitled to 40 days of presentence conduct credit, which was denied by the trial court. He also argues he is entitled an additional day of presentence custody credit, for a total of 267 days. The Attorney General properly concedes the court erred in denying all presentence conduct credits and that defendant is entitled to 267 days of presentence custody credits.
The trial court orally awarded defendant presentence custody credit of 279 days at sentencing on November 4, 2009, with no conduct credits. The abstract of judgment indicates defendant was awarded 266 days of presentence custody credits, and no conduct credits.
On April 13, 2010, the trial court issued an order “nunc pro tunc” in response to a letter dated March 12, 2010, regarding presentence conduct credits. The court order indicated defendant was not entitled to presentence conduct credits “[i]n accordance with the life sentence imposed” in November 2009. The order increased defendant’s presentence custody credits from 266 to 267 days. However, the amended abstract prepared after the court order continues to show an award of 266 days of custody credits.
The parties agree defendant is entitled to 267 days of presentence custody credits under section 2900.5, subdivision (a).
It is unclear on what basis the trial court denied defendant’s request for presentence conduct credits. Defendant argues, and the Attorney General properly concedes, defendant was entitled to the credits pursuant to section 2933.1, subdivision (a). Defendant’s conviction in count 1 was for a violent felony. (§ 667.5, subds. (c)(7)-(c)(8) & (c)(12).) Defendant is entitled to presentence conduct credits of 40 days, calculated as 15 percent of his presentence custody credits of 267 days.
Section 2933.1, subdivision (a) provides as follows: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of work time credit, as defined in Section 2933.”
Sentence Correction on Count 1
The trial court originally stated defendant was sentenced to a life term on count 1, but then added, “It’s seven years to life.” The abstract of judgment indicates defendant was sentenced to state prison for seven years to life. Defendant contends, and the Attorney General again agrees, that the correct sentence pursuant to section 664, subdivision (a) is “imprisonment in the state prison for life with the possibility of parole.” We order the abstract of judgment corrected to reflect a sentence of life with the possibility of parole.
DISPOSITION
The trial court is ordered to amend the judgment to reflect that defendant receive 267 days of presentence custody credits pursuant to Penal Code section 2900.5 and 40 days of presentence conduct credits pursuant to Penal Code section 2933.1, subdivision (a). The clerk is ordered to correct the abstract of judgment as to count 1 to reflect a sentence of life imprisonment with the possibility of parole. A corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.
“[Malice is express when there is manifested an intention unlawfully to kill a human being.]
“[Malice is implied when:
“1. The killing resulted from an intentional act;
“2. The natural consequences of the act are dangerous to human life; and
“3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]
“[When it is shown that a killing resulted from 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.]
“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 means that the required mental state must precede rather than follow the act.”
“Every person who attempts to murder another human being is guilty of a violation of Penal Code sections 664 and 187.
“Murder is the unlawful killing of a human being with malice aforethought.
“In order to prove attempted murder, each of the following elements must be proved;
“1. A direct but ineffectual act was done by one person towards killing another human being; and
“2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.
“In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.”