Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, Super. Ct. No. FSB048940, Brian S. McCarville, Judge.
IRION, J.
A jury convicted James Edward Newman of second degree murder (Pen. Code, § 187, subd. (a)) and found that he personally discharged a firearm in committing the crime (§ 12022.53, subd. (d)). The trial court sentenced Newman to 40 years to life in prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Newman asserts numerous claims of instructional error. First, he claims the trial court erred in instructing the jury on willfully false or deliberately misleading statements (CALJIC No. 2.03), efforts to suppress evidence (CALJIC No. 2.06) and flight (CALJIC No. 2.52) because the inferences supported by these instructions (i.e., a consciousness of guilt) were irrelevant to the case. Second, Newman contends the trial court erred by giving an extemporaneous instruction of the different mental states required for murder and voluntary manslaughter. As discussed below, we conclude that the trial court's consciousness of guilt instructions were proper under controlling California Supreme Court case law. With respect to the trial's court extemporaneous instruction regarding the intent requirement for voluntary manslaughter, we conclude that the statement was legally incorrect, but not sufficiently prejudicial to warrant reversal in light of subsequent instructions that cured the court's misstatement. Consequently, we affirm the judgment.
FACTS
On August 7, 2004, Newman and Steve Martinez walked to Terry's Liquor in San Bernardino. As they approached the liquor store, they passed Jamaal Macon, who was with two other males. Newman and Macon briefly exchanged words as Martinez continued walking. Newman caught up to Martinez, and they continued to the liquor store.
After purchasing items at the liquor store, Newman and Martinez started walking back to apartments east of the liquor store location. As they were crossing a field, they heard gunfire and ran. Martinez ran directly to the apartments, but did not see where Newman ran.
When Newman arrived back at the apartments, he and Martinez agreed to return to the liquor store. Martinez went inside an apartment for a few minutes, but Newman was gone when he returned. Martinez saw Newman on the street heading toward the liquor store, and hurried to catch up.
As Martinez caught up to Newman, he saw Newman standing close to Macon, reach out with his left hand and grab Macon by the left shoulder. Macon glanced up but made no other movement. Newman pulled a handgun from his clothing and shot Macon in the shoulder. Martinez turned and ran and, as he did so, heard two more shots. When he looked back, Martinez saw Newman running away and Macon run a short distance before collapsing.
After arriving back at the apartments, Martinez received a call from Newman. Newman told Martinez not to say anything about what happened. Martinez told Newman he saw him shoot Macon and that he would testify if need be. Newman threatened to kill Martinez if he testified against him.
In an interview with Detective Gary Schuelke following his arrest, Newman repeatedly claimed he knew nothing about the shooting. He said he left California after he met with his parole officer on the first Tuesday of August, and was in New Mexico at the time the shooting occurred.
Later in the interview, Newman admitted shooting Macon. Newman said when he and Martinez were walking to the liquor store he was verbally accosted by Macon. Newman said he ignored the challenge. On the return trip, Newman claimed he was shot at, which made him angry, and although he did not see who did the shooting, he assumed it was Macon. Newman said he then retrieved a handgun he had hidden in the area and returned to confront Macon. Newman said that when he asked Macon why he shot at him earlier, Macon jumped back and looked like he was "about to grab something," so Newman got scared, pulled out his gun and fired.
DISCUSSION
On appeal, Newman contends the trial court committed instructional error. We address his claims below, applying the de novo standard of review applicable to challenges to the trial court's instruction of the jury. (See People v. Guiuan (1998) 18 Cal.4th 558, 569.)
I
The Trial Court Properly Instructed the Jury on Consciousness of Guilt
At trial, the court relied on three standard instructions (CALJIC Nos. 2.03, 2.06 & 2.52) to inform the jury that if it found Newman had made willfully false or deliberately misleading statements about the charged crime, attempted to suppress evidence and/or fled, it could consider such statements or efforts as tending to show consciousness of guilt. All three instructions also included the cautionary advisement that such "conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide." (CALJIC Nos. 2.03, 2.06; see also CALJIC No. 2.52.)
Pursuant to CALJIC Nos. 2.03, 2.06 and 2.52, the trial court instructed the jury as follows:
Newman does not dispute that there was sufficient evidence to support the instructions given, but contends it was error to give them because the identity of the shooter was not at issue, and his "subjective mental state after the shooting [i.e., consciousness of guilt] was not probative of any disputed material issue in the case." We disagree.
The consciousness of guilt instructions given here were relevant to the prosecution's theory that Newman's postoffense conduct was more consistent with murder than with self-defense. Consequently, the trial court was required to give the instructions upon request by the prosecution. (People v. Thornton (2007) 41 Cal.4th 391, 438 (Thornton) ["whenever the prosecution properly relies on evidence of consciousness of guilt, relevant instructions must be given"]; People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 (Turner) ["The prosecution theorized that defendant intended to murder and rob the victim. Defendant claimed an unintentional killing in self-defense . . . . Under these circumstances, the prosecution was entitled to use evidence of guilty flight to help prove defendant's criminal state of mind"].) Newman's specific contention that the instructions should not have been given because only his mental state at the time of the shooting, not the identity of the shooter, was at issue, has been repeatedly rejected by our Supreme Court. (See, e.g., Thornton, at p. 438 ["Instructions on consciousness of guilt are proper not only when identity is at issue, but also when 'the accused admits some or all of the charged conduct, merely disputing its criminal implications' "]; Turner, at p. 693.)
Newman's reliance on People v. Bolin (1998) 18 Cal.4th 297, 327 (Bolin) and People v. Crandell (1988) 46 Cal.3d 833, 871 (Crandell), for the proposition that a consciousness of guilt instruction is not relevant to a defendant's mental state during a charged crime, is based on an erroneous reading of isolated statements in those opinions. In both Bolin and Crandell, our Supreme Court, in rejecting challenges to consciousness of guilt instructions, explained the instructions would be understood by reasonable jurors as merely addressing the defendant's " 'consciousness of some wrongdoing,' " as opposed to a " 'consciousness of having committed the specific offense charged.' " (Crandell, at p. 871.) In reaching this conclusion, the court emphasized that the instructions related to the criminal's consciousness of guilt at the time of his suppressing evidence, making false statements or flight, and did " 'not address the defendant's mental state at the time of the offense.' " (Bolin, at p. 327, quoting Crandell, at p. 871.) This statement cannot be read, as Newman contends, to suggest that the consciousness of guilt instruction is improper when mental state is at issue; it means only that a reasonable juror could believe the defendant to have possessed a "consciousness of guilt," without also concluding that the defendant had the precise mental state required for conviction of a charged crime.
Similarly, Newman's reliance on People v. Anderson (1968) 70 Cal.2d 15, 32 — a case in which our Supreme Court reduced a first degree murder conviction to second degree murder due to the absence of evidence of the defendant's actions prior to the killing, and thus, the requisite proof of premeditation and deliberation — is unavailing. While in Anderson, our Supreme Court stated that evidence of a cover-up after a crime is "irrelevant to ascertaining defendant's state of mind immediately prior to, or during, the killing," it made this statement in a wholly different context. (Ibid. ["Evasive conduct shows fear: it cannot support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation"]; see Ortiz-Sandoval v. Gomez (9th Cir. 1996) 81 F.3d 891, 897 [recognizing that despite the statement in Anderson, as a whole, "California cases agree" with federal law that postoffense "threats are relevant to consciousness of guilt"].) Anderson does not address the propriety of the jury instructions at issue here, and later Supreme Court cases considering these very instructions make clear that the instructions are appropriate even where the sole issue at trial is the defendant's mental state at the time of a charged offense. (See People v. Kipp (1998) 18 Cal.4th 349, 375 [rejecting contention that consciousness of guilt instruction "improperly permitted the jury to consider defendant's false statements as a circumstance in deciding his mental state at the time of the charged offenses" on the ground that "we have rejected the same arguments in prior cases" and citing cases]; People v. Jackson (1996) 13 Cal.4th 1164, 1224 (Jackson) [rejecting contention that "the trial court should have modified [consciousness of guilt] instructions . . . to clarify to the jury that a defendant's deceptive or evasive behavior, while it may indicate consciousness of guilt, is not probative of the defendant's state of mind at the time the crime was committed"]; Thornton, supra, 41 Cal.4th at p. 438; Turner, supra, 50 Cal.3d at p. 693.)
Newman also argues that the instructions themselves were flawed because they told the jurors, in Newman's words, "to give the evidence whatever weight they deemed appropriate." He contends that this "gave the jury carte blanche to use the evidence in any way they wished [and] permitted the jury to short-circuit their decision-making process, by reasoning that if the defendant believed he was guilty, then he surely must be guilty." This argument is not persuasive. The trial court's reliance on the standard instructions on consciousness of guilt, which instruct the jury that the weight to afford such evidence is for the jury to decide, was not only proper, but generally required. (See, e.g., Turner, supra, 50 Cal.3d at p. 694 ["An instruction in substantially this form must be given whenever the prosecution relies on evidence of flight to show consciousness of guilt"].) Moreover, the instructions have been repeatedly recognized to give the jury sufficient guidance in assessing evidence reflecting consciousness of guilt. (Crandell, supra, 46 Cal.3d at p. 871 [rejecting contention that: consciousness of guilt instructions allow the jury to "view 'consciousness of guilt' as equivalent to a confession, establishing all elements of the charged murder offenses, including premeditation and deliberation, though defendant might be conscious only of having committed some form of unlawful homicide"]; Jackson, supra, 13 Cal.4th at p. 1224 [reviewing standard consciousness of guilt instructions and concluding that they do "not improperly endorse the prosecution's theory or lessen its burden of proof"].) In sum, the trial court's reliance on the standard instructions regarding consciousness of guilt was amply supported by controlling Supreme Court case law and did not constitute error.
II
The Trial Court's Extemporaneous Instruction Was Erroneous but the Error Did Not Prejudice Newman
Newman challenges the trial court's extemporaneous instruction regarding the requisite intent for voluntary manslaughter (a lesser included offense of the charged crime of murder) and, specifically, the trial court's statement that voluntary manslaughter requires "specific intent to kill." Newman contends that the court's instruction "violated [his] right to proper instructions on all elements of the offenses and was prejudicial." To evaluate this claim we first set forth the relevant jury instructions given by the court.
The trial court first read CALJIC No. 2.02 to the jury regarding sufficiency of circumstantial evidence to prove specific intent or mental state:
"The specific intent and mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged, which is murder, or the lesser crime of voluntary manslaughter, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent and mental state or mental state but (2) cannot be reconciled with any other rational conclusion . . . ."
The court then gave an extemporaneous explanation of the different mental states for murder and manslaughter:
"The reason I talk about both those things in the same instruction [is] the crime of murder and the crime of voluntary manslaughter each require a specific intent to kill when you are talking about what's called 'express malice' in murder. And I'll talk about that later, but there are two kinds of malice: express and implied. 'Express malice' is an intent to kill. Voluntary manslaughter also has some intent to kill. Murder also has a mental state in addition to a specific intent called 'malice aforethought.' The crime of voluntary manslaughter does not have a mental state. It requires only a specific intent to kill." (Italics added.)
The court later instructed the jury using CALJIC No. 8.40, which defines voluntary manslaughter:
"Every person who unlawfully kills another human being without malice aforethought either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter . . . . [¶] There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. [¶] The phrase 'conscious disregard for life,' as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . ." (Italics added.)
Immediately after reading CALJIC No. 8.40 to the jury, the trial court gave CALJIC No. 8.50, distinguishing the mental states required for murder and voluntary manslaughter:
"The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent."
In a final statement, the trial court explained to the jury that the instructions would "be made available in written form during your deliberations . . . . You are to be governed only by the instruction in its final wording." CALJIC Nos. 2.20, 8.40 and 8.50 were provided to the jury in written form; the contested extemporaneous instruction was not.
Newman is correct that the trial court's extemporaneous instruction misstated the law. The final sentence of the extemporaneous explanation, that voluntary manslaughter "requires an intent to kill," is clearly incorrect. (Lasko, supra, 23 Cal.4th at p. 111 ["the trial court here erred when it told the jury that voluntary manslaughter requires a finding that '[t]he killing was done with the intent to kill' " (italics added)]; see also People v. Blakeley (2000) 23 Cal.4th 82, 89 (Blakeley) ["nothing in the language of subdivision (a) of section 192, which defines voluntary manslaughter, limits its applicability to cases in which the killer harbors an intent to kill"].)
The trial court's confusion on this point may have stemmed from the fact that until our Supreme Court's decision in People v. Lasko (2000) 23 Cal.4th 101 (Lasko), the standard instruction for voluntary manslaughter (CALJIC No. 8.40) stated that the offense required an "intent to kill." (Lasko, at p. 107.)
Newman contends the trial court's instruction was erroneous in three separate ways. First, he asserts, and we agree, that the improvised instruction incorrectly stated that the mental state required for both murder and manslaughter was an intent to kill. Additionally, Newman claims that the court's instructions: (i) "failed to explain fully the concept of malice and simply equated malice with an intent to kill"; and (ii) "wholly failed to explain to the jury that, even where there is an intent to kill, either the heat of passion or imperfect self-defense negates malice, making the crime voluntary manslaughter, not murder." We do not agree with these characterizations of the court's instructions. As noted above, both the concept of malice and the significance of heat of passion and/or imperfect self-defense were fully and correctly explained to the jury in standard instructions designed for that purpose, that were then provided to the jurors in written form.
Given the instructional error, we necessarily turn to the question of prejudice. Our Supreme Court has ruled that an erroneous instruction that voluntary manslaughter requires an intent to kill is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Lasko, supra, 23 Cal.4th at p. 113 [where "court erred only in telling the jury that to convict defendant of voluntary manslaughter, the jury had to find that defendant intended to kill the victim," review for prejudice was under Watson standard]; Blakeley, supra, 23 Cal.4th at p. 94 [applying Watson standard to trial court's error in instructing jury on intent required for involuntary manslaughter].) Newman's conviction can be reversed on this ground " 'only if, "after an examination of the entire cause, including the evidence" (Cal. Const., art. VI, § 13), it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred.' " (Blakeley, at p. 93.) In reviewing a challenge to the trial court's instructions, we must examine the instructions in their entirety. (People v. Mayfield (1997) 14 Cal.4th 668, 777.) The giving of an erroneous instruction "may be cured if the essential material is covered by other correct instructions properly given." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277 (Dieguez).)
Newman argues that the court's instructional error violated his constitutional rights and thus must be evaluated under the Chapman standard for harmless error. (See Chapman v. California (1967) 386 U.S. 18.) While we agree that there was error (as noted above), our Supreme Court has held that Watson is the proper standard of review in this situation, and rejected the contention that the error was of a constitutional dimension. (Lasko, supra, 23 Cal.4th at pp. 111, 113 [ruling that virtually identical instructional error "did not violate defendant's federal constitutional rights to trial by jury or to due process of law" and review for prejudice is "exclusively under . . . Watson"].) Consequently, we follow Lasko and apply Watson in the instant case.
Applying the above standards, we conclude that reversal is not warranted. During its improper extemporaneous instruction, the trial judge foreshadowed that a controlling instruction would follow ("I'll talk about that later"). Proper instructions did, in fact, follow: the court correctly instructed the jurors on the precise mental states required for murder and manslaughter with the standard instructions, CALJIC Nos. 8.40 and 8.50. These instructions cured the court's incorrect instruction as they covered the "essential material" needed for the jury to decide between murder and manslaughter and did so in much greater detail, and with more precision, than the isolated erroneous instruction that preceded them. (Dieguez, supra, 89 Cal.App.4th at p. 277.) Additionally, unlike the erroneous instruction, both CALJIC Nos. 8.40 and 8.50 were provided to the jury in written form for its reference during deliberations and the jury was specifically instructed to follow the written instructions. (People v. Yoder (1979) 100 Cal.App.3d 333, 338 [court must " 'assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given' "].)
Of particular significance, the court instructed the jury with CALJIC No. 8.40, which states that "[e]very person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter . . . ." CALJIC No. 8.50 further discusses how heat of passion or imperfect self-defense negates malice and reduces the offense to manslaughter.
Further, the trial court's error could not have prejudiced Newman because the jury convicted Newman of murder, implicitly finding that he possessed the more culpable mental state required for that offense ("malice aforethought"). (§ 187.) This finding necessitates the conclusion that the jury rejected, as a factual matter, the defense contention that Newman acted with the less culpable mental state — "conscious disregard for human life" — that was omitted from the court's erroneous, extemporaneous definition of the intent required for voluntary manslaughter. (See CALJIC No. 8.40.)
Under the Watson standard, then, we cannot conclude that there is a reasonable probability of a different outcome absent the trial court's error. (Blakeley, supra, 23 Cal.4th at p. 94 ["Watson, supra, 46 Cal.2d at page 836, requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial"].) In view of the instructions in their entirety, and the jury's findings, it is not reasonably probable that the outcome was influenced by the trial court's erroneous statement of the mental intent required for voluntary manslaughter, particularly in light of the correct, detailed oral and written instructions (CALJIC Nos. 8.40 & 8.50) that it received on that question. (Lasko, supra, 23 Cal.4th at p. 113; cf. People v. Burgener (1986) 41 Cal.3d 505, 538 [Instructions are considered "from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction], disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-754.)
DISPOSITION
Affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.
"If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
"If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
"The flight of a person after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."