Opinion
G044193
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JULIAN SANTIAGO SERMANO, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 07SF0626)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan Barrett McNerney, Judge. Affirmed.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant Julian Santiago Sermano of second degree murder (Pen. Code, §§ 187, subd. (a), 189) and assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced defendant to 16 years to life in state prison. Defendant claims it is reasonably probable the jury would have convicted him of voluntary manslaughter rather than second degree murder had the court instructed the jury in a different manner. This appeal raises a single issue: Do the relevant CALCRIM jury instructions given in this case (including CALCRIM Nos. 220, 505, 521, 570, 571, and 640) adequately instruct the jury "that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense"? (People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry).) Defendant contends the court was required under Dewberry to instruct the jury, sua sponte, with CALJIC No. 8.72. We disagree and conclude the CALCRIM instructions utilized in this case adequately instructed the jury. We therefore affirm the judgment.
All statutory references are to the Penal Code.
Defendant's sentence consists of: 15 years to life for second degree murder (§ 190, subd. (a)); a consecutive one-year enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)); and a concurrent three year sentence for assault with a deadly weapon (§ 245, subd. (a)(1)).
FACTS
The nature of defendant's appeal and our determination of the legal issue presented make it unnecessary to set forth a lengthy recitation of facts. Defendant, Jose Molina, and Blas Gutierrez were drinking beer together on the evening of June 6, 2007. An argument arose when Gutierrez told defendant that defendant was a bad singer. Defendant and Molina started to leave, but Gutierrez started a physical altercation with defendant. At some point, Gutierrez "threw himself at" Molina, striking Molina in the face. Molina pulled out a small pocket knife and stabbed Gutierrez twice. Defendant, trying to attack Gutierrez, stabbed Molina in the right flank with a larger knife. When Gutierrez ran away, defendant chased him. Gutierrez subsequently bled to death from nine stab wounds in his torso.
Although defendant argued he did not kill Gutierrez, defendant argued in the alternative that the jury should convict him, at most, of voluntary manslaughter because: (1) defendant was acting in the heat of passion based upon adequate provocation by Gutierrez; (2) defendant was intoxicated and did not form the intent to kill; and/or (3) defendant was acting in self-defense/defense of another or imperfect self-defense/defense of another.
DISCUSSION
In Dewberry, supra, 51 Cal.2d at page 555, defendant claimed the trial court erred by refusing his request to give an instruction "that in the case of a reasonable doubt as between second degree murder and manslaughter, defendant was to be found guilty of manslaughter . . . ." The Dewberry trial court had given three relevant instructions to the jury: (1) a general instruction pertaining to the presumption of innocence and the requirement of proof beyond a reasonable doubt; (2) an instruction that if the jury "entertained a reasonable doubt as to the degree [of murder], they should give defendant the benefit of the doubt and find him guilty of second degree murder"; and (3) an instruction "that if they were in doubt as to whether the killing was manslaughter or justifiable homicide, defendant was to be acquitted." (Id. at p. 554.)
Our Supreme Court held: "The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses [first and second degree murder], and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder." (Dewberry, supra, 51 Cal.2d at p. 557.) "The proposed instruction should have been given. It went directly to the defense of reasonable doubt of defendant's guilt of second degree murder; it was clearly responsive to an issue raised by the evidence [Citations]; and it was essential to cure the misleading effect of its absence in the light of the other instructions given." (Id. at pp. 557-558.)
"[I]n any case involving a lesser included offense, the trial court has a duty to give a Dewberry instruction sua sponte." (People v. Crone (1997) 54 Cal.App.4th 71, 76 (Crone).)
Defendant claims the court should have instructed the jury with CALJIC No. 8.72, which specifically addresses the holding of Dewberry: "'If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder.'" (See People v. Friend (2009) 47 Cal.4th 1, 55, fn. 29 ["CALJIC Nos. 8.71 and 8.72 apply the Dewberry benefit of the doubt principle to deciding between first and second degree murder and between murder and manslaughter, respectively"].)
CALJIC No. 8.71 states: "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of the doubt and return a verdict fixing the murder as of the second degree [as well as a verdict of not guilty of murder in the first degree]."
The court did not instruct the jury with any of the CALJIC instructions pertaining to Dewberry issues, such as CALJIC Nos. 8.71, 8.72, or 17.11. Instead, the court instructed the jury solely with CALCRIM instructions, as requested by the parties. The parties did not request any special instructions.
CALJIC No. 17.11 provides: "If you find the defendant guilty of the crime of _____, but have a reasonable doubt as to whether it is of the first or second degree, you must find [him] [her] guilty of that crime in the second degree."
The question presented is whether the CALCRIM instructions provided in this case comply with Dewberry.
Instructions Provided by the Trial Court
CALCRIM No. 220, as given, provided in relevant part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] . . . [¶] . . . Unless the evidence proves the defendants guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
CALCRIM No. 505, as given, provided in relevant part: "The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of (murder/ or manslaughter/ attempt murder/ or attempted voluntary manslaughter)."
CALCRIM No. 521, as given, provided in relevant part: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
CALCRIM No. 570, as given, provided in relevant part: "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
CALCRIM No. 571, as given, provided in relevant part: "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect defense of another). If the People have not met this burden, you must find the defendant not guilty of murder."
CALCRIM No. 640, as given, provided in relevant part: "[You will be] given verdict forms for guilty and not guilty of [first degree murder, second degree murder, voluntary manslaughter, attempt murder, and attempt voluntary manslaughter]. [¶] You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s]. [¶] [As with all the charges in this case,] (To/to) return a verdict of guilty or not guilty on a count, you must all agree on that decision. [¶] Follow these directions before you give me any completed and signed, final verdict form(s). . . . [¶] 1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of [1st degree murder], complete and sign that verdict form. Do not complete or sign any other verdict forms [for that count]. [¶] 2. If all of you cannot agree whether the defendant is guilty of [1st degree murder], inform me only that you cannot reach an agreement and do not complete or sign any verdict forms [for that count]. [¶] 3. If all of you agree that the defendant is not guilty of [1st degree murder] but also agree that the defendant is guilty of [2nd degree murder], complete and sign the form for not guilty of [1st degree murder] and the form for guilty of [2nd degree murder]. Do not complete or sign any other verdict forms [for that count]. [¶] . . . [¶] [5. If all of you agree that the defendant is not guilty of 1st [degree] murder and not guilty of [2nd degree murder], but also agree that the defendant is guilty of voluntary manslaughter, complete and sign the forms for not guilty of [1st degree murder] and not guilty of [2nd degree murder] and the form for guilty of [voluntary manslaughter]. Do not complete or sign any other verdict forms [for that count]."
The CALCRIM Instructions Correctly Instructed the Jury as to Reasonable Doubt
"A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law." (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) On a claim of instructional error, "[w]e must consider whether it is reasonably likely that the trial court's instructions caused the jury to misapply the law. [Citations.] '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Carrington (2009) 47 Cal.4th 145, 192.) "The court has no duty to give an instruction if it is repetitious of another instruction also given." (People v. Barajas (2004) 120 Cal.App.4th 787, 791 (Barajas).)
None of the CALCRIM instructions provided to the jury in this case stated the law in the same manner as CALJIC Nos. 8.71, 8.72, or 17.11. Defendant suggests the CALCRIM instructions therefore violate Dewberry, supra, 51 Cal.2d 548. But this assertion misconstrues the actual holding of Dewberry and ignores subsequent case law applying Dewberry.
First, mechanically applying the holding of Dewberry to the instant case ignores the facts in Dewberry. The court in this case did not provide a specific instruction to the jury about a circumstance in which they had a reasonable doubt as between first degree murder and second degree murder (such as CALJIC No. 8.71). The holding in Dewberry was premised in part on the jury being misled by the contrast between including a specific instruction about reasonable doubt between first and second degree murder, without a corresponding instruction pertaining to a reasonable doubt as to second degree murder and manslaughter (such as CALJIC No. 8.72). It might be posited that an instruction in the mold of CALJIC No. 8.72 is only necessary if an instruction similar to CALJIC No. 8.71 is provided to the jury. (But see Crone, supra, 54 Cal.App.4th at p. 78 [suggesting Dewberry applies in the same manner regardless of whether similar additional instructions were provided as in Dewberry itself].)
Second, courts subsequent to Dewberry have endorsed jury instructions that do not specifically describe the circumstance of a jury having a reasonable doubt between greater and lesser offenses. CALJIC No. 17.10 is similar in this regard to CALCRIM No. 640 (which was provided in this case, as set forth above). In Barajas, supra, 120 Cal.App.4th at page 793, it was held: "The People argue that CALJIC No. 17.10 satisfies the requirements of Dewberry. We agree. CALJIC No. 17.10, when its blanks are filled in for murder and manslaughter, is logically equivalent to CALJIC No. 8.72. If a jury is convinced beyond a reasonable doubt that a defendant is guilty of either a greater or a lesser offense, this can only be because it has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser. Under these circumstances, CALJIC No. 17.10 instructs the jury to convict of the lesser offense. CALJIC No. 8.72 does the same." Other courts are in accord. (See People v. Gonzalez (1983) 141 Cal.App.3d 786, 793-794, disapproved on another ground in People v. Kurtzman (1988) 46 Cal.3d 322, 330; People v. St. Germain (1982) 138 Cal.App.3d 507, 521-522 ["additional requested instruction . . . redundant"]; Hodge v. Scribner (C.D. Cal. Feb. 2, 2010, No. 09-01025) 2010 U.S. District Lexis 9353 ["instructing the jury with CALCRIM No. 3517 adequately set forth the requirements laid down by the California Supreme Court in Dewberry"].)
CALJIC No. 17.10 states in relevant part: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] . . . [¶] Thus, you are to determine whether [a] [the] defendant[s] [is] [are] guilty or not guilty of the crime[s] charged [in Count[s] _____ ] or of any lesser crime[s]. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict[s]. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the [charged] [greater] crime."
CALCRIM No. 3517, an instruction designed for use in non-homicide cases when lesser included offenses are not separately charged, is very similar to CALCRIM No. 641, which is used when a defendant is charged with first degree murder and certain lesser charges.
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Third, cases finding Dewberry error are either unpersuasive or inapplicable to the circumstances of this case. (Crone, supra, 54 Cal.App.4th at pp. 76-79 [holding "CALJIC 17.03 fails to satisfy the requirement of Dewberry" but finding such error was harmless]; People v. Reeves (1981) 123 Cal.App.3d 65, 69-70, disapproved on a different point in People v. Sumstine (1984) 36 Cal.3d 909, 919, fn. 6 [holding CALJIC No. 17.10 was not sufficient under Dewberry but finding such error was harmless].) Subsequent courts have rejected Reeves as unpersuasive. (See, e.g., Barajas, supra, 120 Cal.App.4th at p. 794.) Moreover, the instructions provided in Crone, supra, 54 Cal.App.4th at pages 76-77, differ from the CALCRIM instructions utilized in the instant case in that CALJIC No. 17.03 did not "tell[] the jury what to do if it ha[d] a reasonable doubt as to whether the defendant committed the greater or a lesser offense" (Crone, at pp. 76-77), and "it [did] not appear that the omission was cured by any other instructions" (id. at p. 77).
We conclude the court did not err by instructing the jury in this case with standard CALCRIM instructions pertaining to reasonable doubt, murder, manslaughter, and the completion of verdict forms.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.