Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FSB052838, Arthur Harrison, Judge.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
We appointed counsel to represent defendant Joseph Jeffrey Patterson on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from him.
Pursuant to Anders v. California (1967) 386 U.S. 738, counsel listed six issues to assist the court in conducting its independent review of the record. Each of those issues is discussed below.
I
FACTS
On October 28, 2005, defendant was getting into discussions about a woman he called his girlfriend to the point that he was raising his voice and intimidating others. Defendant “attacked” one person and was “tussling” with the victim and then hitting him. A witness said defendant had a knife in his hand and a baton in his back, and described him as “really angry.” Someone heard defendant say, “These fools are messing with my girl.” At first, a witness who saw defendant “punching” the victim did not comprehend he was stabbing him with a knife at the time, but almost immediately realized what had happened. Defendant admitted he had stabbed the victim.
One of the four knife wounds penetrated the victim’s aorta and he suffered rapid and massive blood loss. He died shortly thereafter.
A felony complaint was filed on November 1, 2005. On November 9, 2005, defense counsel informed the court he had “a doubt as to [defendant’s] present competency to proceed at this point in time.” The court ordered criminal proceedings suspended and competency reports from two doctors. One report, dated December 7, 2005, concluded defendant was incompetent to stand trial. The second report, dated December 28, 2005, stated that he was not capable of cooperating rationally with counsel. A third supplemental report, dated June 22, 2006, said defendant was competent to stand trial. On June 23, 2005, defense counsel reported the defense received its supplemental report which also said defendant was then competent to stand trial. Counsel stipulated that if one or both psychologists were called to testify, they would state defendant was competent to stand trial. The court reinstated criminal proceedings.
The first jury found defendant not guilty of both first and second degree murder. When the court first questioned the jury, it had taken five ballots. The court asked the jury to deliberate further. After that, they were still unable to reach a verdict on the lesser charge, and the court said the jury was “hopelessly deadlocked” and declared a mistrial.
In the second trial, the court instructed the jury that the crime of involuntary manslaughter is a lesser included offense of voluntary manslaughter. The second jury found defendant guilty of voluntary manslaughter as charged in count one, and found that he personally used a knife within the meaning of Penal Code section 12022, subdivision (b)(1) in committing count one. The court sentenced defendant to prison for a total of 27 years.
II
DISCUSSION
Counsel’s First Issue: Whether Youth are a Cognizable Class for Purposes of a WHEELER/BATSON MOTION
In Batston v. Kentucky (1986) 476 U.S. 79, “[t]he prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor’s removal of the black veniremen violated petitioner’s rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to ‘strike anybody they want to.’ The judge then denied petitioner’s motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit jury itself. (Id. at p. 83.) The United States Supreme Court said: “In this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed. [Citations.]” (Id. at p. 100.)
A defendant must initially make out a prima facie case of discrimination. “First... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (People v. Wheeler (1978) 22 Cal.3d 258, 280, fn. omitted.)
“[Y]oung persons are not a cognizable group.” (People v. Lewis (2008) 43 Cal.4th 415, 482.) “We also find no merit in defendant’s argument that young people were improperly excluded. Youth is not recognized as a cognizable class for purposes of a Wheeler motion. [Citation.]” (People v. McGhee (1987) 193 Cal.App.3d 1333, 1351-1352.)
Counsel’s Second Issue: Whether Double Jeopardy Attached after Acquittals of First and Second Degree Murder in First Trial
The double jeopardy clause of the Fifth Amendment applies to the states through the general provisions of the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794-796.) “The early cases interpreting the double jeopardy clause established the fundamental principle that no criminal defendant can be retried for an offense of which he has once been acquitted. [Citations.] This basic protection was long ago codified in Penal Code sections 687 and 1023, enacted in 1872. It is plain, then, that if we recognize the jury’s actions to be the equivalent of an acquittal of murder, defendant cannot be retried for either degree of that offense.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 510, fn. omitted.)
“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.” (Pen. Code, § 687.) “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.” (Pen. Code, § 1023.)
“We hold that when a jury acquits a defendant of an offense, section 1023 does not bar a retrial for an offense necessarily included therein on which the jury is unable to agree, regardless of whether the lesser included offense is charged in a separate count. Defendant herein has no constitutional interest in preventing his retrial for manslaughter; in contrast, there is an important public interest in finally determining whether he committed that offense.” (Stone v. Superior Court, supra, 31 Cal.3d at p. 522.)
Counsel’s Third Issue: Whether the Competency Proceedings were Conducted Correctly
“The criminal trial of a mentally incompetent person violates due process. [Citation.] However, a defendant is not incompetent if he can understand the nature of the legal proceedings and assist counsel in conducting a defense in a rational manner. [Citations.] Only when the accused presents ‘substantial evidence’ of incompetence does due process require a full competency hearing. [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.)
“Although there is a constitutional right to a jury trial in criminal and civil actions (Cal. Const., art. I, § 16), there is no such right in a competency proceeding. There is indeed a right to a jury trial in a competency proceeding, but it is statutory, not constitutional. [Citations.]” (People v. Masterson (1994) 8 Cal.4th 965, 969.)
“As an officer of the court the lawyer should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses and jurors. [Citation.]” (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 123.) Here the lawyers were honest and forthright to the court, as well they should have been. We find nothing inappropriate with counsel’s stipulation the doctors were expected to testify defendant was competent to stand trial. The court did not err when it did not conduct a competency trial in light of an absence of substantial evidence of incompetence of defendant.
Counsel’s Fourth Issue: Whether There is Sufficient Evidence to Support the Conviction for Voluntary Manslaughter
In addressing challenges to the sufficiency of the evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Here defendant admitted he stabbed the victim, and witnesses saw him with a knife prior to the incident. While a witness thought defendant was punching the victim as he made thrusting movements, the witness quickly realized the victim was being stabbed when he started bleeding. Under the circumstances in the record before us, we must conclude there is sufficient evidence to support defendant’s conviction.
Counsel’s Fifth Issue: Whether the Trial Court Erred by Instructing on Involuntary Manslaughter as a Lesser Offense of Voluntary Manslaughter
A trial court must instruct on lesser included offenses “whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citations.] ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Lewis (2001)25 Cal.4th 610, 645.)
“The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]” (People v. Kraft, supra, 23 Cal.4th at p. 1063.) “The obligation to instruct [sua sponte] on lesser included offenses [as opposed to defenses] exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
“Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶]... [¶] (b) Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection....” (Pen. Code, § 192.)
“[I]n order to convict a person of voluntary manslaughter, the jury must find that the killing was intended and was unlawful in that it was neither justifiable, that is, did not constitute lawful defense of self, others, or property, prevention of a felony, or preservation of the peace [citation]; nor excusable, that is, the killing did not result from a lawful act done by lawful means with ordinary caution and a lawful intent, and did not result from accident and misfortune under very specific circumstances, including that no dangerous weapon was used [citation]. In order to convict a person of involuntary manslaughter, the jury must find that the killing was unlawful in that it occurred in the commission of an ordinarily lawful act which inherently involved a high degree of risk of death or great bodily harm and was accomplished in a criminally negligent manner. The definition of unlawful as an element of involuntary manslaughter differs significantly from that of voluntary manslaughter and requires the trier of fact to make substantially different findings. Voluntary manslaughter can be committed without committing involuntary manslaughter, and thus the latter is not a lesser included offense of voluntary manslaughter.” (People v. Orr (1994) 22 Cal.App.4th 780, 784.)
Before testimony had concluded, the prosecutor informed the court he intended to have a verdict form only on voluntary manslaughter. The court said: “Involuntary is not necessarily included of voluntary.” Defense counsel said: “My request would be to have an involuntary instruction, as well.”
The California Constitution dictates that “[n]o judgment shall be set aside,... in any cause,... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Our Supreme Court has explained that “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
The doctrine of invited error bars a challenge to an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request it. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) Regardless of whether or not it was error to give the invited instruction, we find no indication in the record before us that defendant suffered any prejudice by the court’s instructing the jury regarding involuntary manslaughter. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Counsel’s Sixth Issue: Whether the Trial Court Erred by Instructing that Appellant was in Custody
The court stated during trial: “The reason we are having this discussion outside the presence of the jury, is a mechanism we utilized for keeping the jurors from seeing the defendant being seen in a restrained manner, at least handcuffed if not more, is to bring the jurors in and then in their presence in the courtroom the defendant is brought in through a second door to the chambers library where he has been unchained and he walks in the courtroom unrestrained. [¶] And the jury has been in the hallway since we came back in this lunch break. And to keep from bringing the jurors in for the mere purpose of getting the defendant down, you waive your client’s presence for this hearing, so we’ll bring him down as soon as the jury is brought back in the courtroom to maintain that mechanism we’ve been engaging in.”
Defense counsel then told the court he “elicited testimony” that defendant was in custody because he “observed... two jurors exiting the men’s bathroom and walking down the hall in advance of [defendant].” Counsel asked the court to address the issue: “[M]y request is to be in advance of instructing the jury before it is submitted to the jury to raise that issue and address those points.” The court asked counsel if he wanted the court to address the issue when counsel finished with direct examination, and defense counsel said, “That would be fine.”
The court informed the jury: “I do want to caution you, during testimony today we learned that Mr. Patterson is currently incarcerated. And I want to let you know that you should not imply anything regarding this. When we are charged with an offense and arrested in California, a bail amount is set, if we are able to financially afford to post bail, we are released from custody on bond or bail. And if we can’t afford it, then we are usually kept in custody pending resolution of the case. [¶] The circumstance that Mr. Patterson may be in custody is just like the instruction I read you previously, do not infer or assume that merely because someone has been arrested, charged with an offense, is standing trial, or may be in custody, that any of those or all of them together are any indication or you can infer from any of them that the defendant was more likely to be guilty than not guilty. [¶] Some of you may have observed the defendant being transported to and from the courtroom. And, if so, you may have noticed restraints. That’s simply how the sheriff’s office transports anyone to a courtroom appearance in these courtrooms on this floor. It doesn’t matter if they are charged with petty theft or something more serious. Again, you do not infer or assume from that circumstance anything about the guilt or innocence of the defendant in this case.”
We see nothing in the record before us to indicate the jury did not follow the court’s instructions. We presume jurors faithfully followed the court’s instructions. (People v. Cruz (2001) 93 Cal.App.4th 69, 73; Evidence Code § 664.)
III
DISPOSITION
We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR, RYLAARSDAM, ACTING P. J., O’LEARY, J.