Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
Superior Court of Santa Clara County, No. 188651, Paul R. Teilh, Judge.
Retired judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[Reprinted without change for tracking pending review and disposition by the Supreme Court.] [Copyrighted Material Omitted] COUNSEL
Michael A. Willemsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Joan Killeen and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent. OPINION
MIHARA, J.
Defendant was convicted of one count of attempted murder with premeditation (Pen. Code, sections 187, 189, 664) and two counts of assault with a firearm (Pen. Code, section 245, subd. (a) (2)), and the jury found true allegations that he had personally used a handgun in the commission of these crimes (Pen. Code, sections 1203.06, 12022.5, subd. (a) (1)). He admitted that he had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12. Defendant was committed to state prison to serve two consecutive indeterminate life terms and a consecutive nine-year determinate term. On appeal, he claims that (1) the trial court prejudicially erred in failing to give CALJIC No. 8.72 sua sponte, (2) the revised version of CALJIC No. 2.90 given by the trial court violates due process and (3) the trial court's imposition of two consecutive life terms was unauthorized. We modify and affirm the judgment.
Facts
On February 6, 1996, defendant was the victim of a shooting at the Thuy Du Cafe. He suffered one bullet wound to his right forearm and another which went through his abdomen and out his back. Both wounds were "clean through and through" and caused only muscle damage. After being wounded, defendant "could work all the muscles but they were very sore." Defendant was not hospitalized as a result of his injuries. His wounds were bandaged, and he was sent home. The individuals who shot defendant on February 6 escaped in a car owned by Tung Phan. On the afternoon of February 12, Tung Phan was the victim of a shooting at the Nang Cafe. He suffered a bullet wound to his thumb. Phan identified his assailant as the victim of the February 6 shooting, and Phan recalled that the man's name was "Sa."
Defendant was charged by information with one count of attempted murder with premeditation (Pen. Code, sections 187, 189, 664) and two counts of assault with a firearm (Pen. Code, section 245, subd. (a) (2)). It was further alleged that he had personally used a handgun in the commission of these crimes (Pen. Code, sections 1203.06, 12022.5, subd. (a) (1)) and that he had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12. Defendant waived his right to a jury trial on the prior conviction allegations, and these allegations were bifurcated.
The defense offered at trial was that defendant was not Phan's assailant. He presented evidence that he had been incapacitated by the wounds he suffered in the February 6 shooting and a previous injury to his right hand. Defendant claimed that he had been home all day on February 12 before going out to dinner with his wife at 9 p.m. He testified that he had never owned or fired a gun, had never been to the Nang Cafe and did not even know where it was located. In his closing argument, defendant's trial counsel argued that the perpetrator of these offenses had not committed attempted murder because there was inadequate proof of malice or the specific intent to kill. He maintained that the shooter had committed no more than assault with a firearm.
The jury returned guilty verdicts on all counts and found the personal use allegations true. Defendant admitted the prior conviction allegations. Defendant was committed to state prison for two consecutive indeterminate life terms and a consecutive nine-year determinate term. He filed a timely notice of appeal.
Discussion
A. CALJIC No. 8.72
Defendant contends that the trial court prejudicially erred in failing to give CALJIC No. 8.72 sua sponte. CALJIC No. 8.72 states "[i]f 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." Defendant points out that the Second District Court of Appeal stated in People v. Aikin (1971) 19 Cal.App.3d 685 [97 Cal.Rptr. 251] that such an instruction should be given sua sponte whenever instructions are given on a lesser included offense. He asserts that the omission of this instruction was prejudicial because there was "considerable doubt" about both the identity of Phan's assailant and whether the perpetrator harbored the specific intent to kill. The Attorney General argues that the omission of this instruction either was not error or was harmless. We agree with the Attorney General on this point. In Aikin, the Second District found that there had been numerous instructional errors and reversed. One of the errors which the court held had contributed to the cumulative prejudice was the trial court's failure to instruct the jurors sua sponte that "if they had a reasonable doubt whether the offense was manslaughter or murder in the second degree their verdict should be for manslaughter." (People v. Aikin, supra, 19 Cal.App.3d at p. 703.) Relying on Aikin, Division One of the First District concluded in People v. Reeves (1981) 123 Cal.App.3d 65 [176 Cal.Rptr. 182] that a trial court's failure to give such an instruction was erroneous but harmless under People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243] because the trial court's other instructions, including CALJIC No. 17.10, had adequately informed the jury that it had "the option of convicting appellant of only the lesser offense if it entertained such a doubt." (People v. Reeves, supra, 123 Cal.App.3d at p. 70.) Subsequently, Division Four of the First District "decline[d] to adhere" to Reeves and held that a trial court's failure to give such an instruction upon defendant's request was not erroneous because the trial court had instructed the jury pursuant to CALJIC No. 17.10. (People v. St. Germain (1982) 138 Cal.App.3d 507, 521-522, fn. 9 [187 Cal.Rptr. 915].) In Division Four's view, the requested instruction was correctly refused because it would have been "redundant" since "[i]t and CALJIC No. 17.10 both tell the jury that if they find that the prosecution has not proven the elements of robbery (the greater offense) beyond a reasonable doubt then the defendant may be found guilty of the lesser offense (petty theft) if that offense has been proven beyond a reasonable doubt." (138 Cal.App.3d at p. 552.)
Concurring.-I concur in the disposition. I write separately because I do not believe Penal Code section 1170.12, subdivision (c) (1), reflects "an unmistakable drafting error." That subdivision states: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (See also section 667, subd. (e) (1).)
Defendant did not request that the jury be instructed with CALJIC No. 8.72.
This is a curious prejudice argument since a doubt about identity or the existence of the specific intent to kill could not have led the jury to convict defendant of the lesser included offense of attempted voluntary manslaughter. The distinction between the greater and the lesser offenses in this case was solely the issue of malice. Both the greater and the lesser required the jury to find beyond a reasonable doubt on the issues of identity and specific intent to kill.
In determining whether or not instructional error occurred, we must first consider whether there is a "reasonable likelihood" that the jury instructions as a whole failed to adequately inform the jury that it should return an attempted voluntary manslaughter verdict if it had a reasonable doubt about the existence of malice yet agreed beyond a reasonable doubt that defendant had committed attempted voluntary manslaughter. (Boyde v. California (1990) 494 U.S. 370, 381 [110 S.Ct. 1190, 1198-1199, 108 L.Ed.2d 316]; People v. Kelly (1992) 1 Cal.4th 495, 525-526 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Here, the trial court instructed the jury with CALJIC No. 17.10. This instruction told the jury "[i]f you are not satisfied beyond a reasonable doubt the defendant is guilty of the crime of which he is accused in Count 1 [attempted murder] and you unanimously so find, you may convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of that crime. [¶] ... [¶] The crime of Attempted Voluntary Manslaughter, in violation of 664/192(a) of the Penal Code, a felony, is a lesser crime included in the crime of attempted murder as charged in Count 1." "[Y]ou are to determine whether the defendant is guilty or not guilty of the crime charged or of any lesser crime. 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 to be productive to consider and reach tentative conclusions on all charges and lesser crimes before reaching any final verdicts." The court also informed the jury that "[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel."
These instructions adequately informed the jury that, if it unanimously agreed on all of the elements of attempted voluntary manslaughter and it had a reasonable doubt regarding the existence of malice, it must find defendant guilty of attempted voluntary manslaughter. Defendant maintains that CALJIC No. 17.10 does not adequately inform the jury of its options because it only tells the jury "how to proceed if it uses a 'top down' method of reasoning, and examines the issue of attempted manslaughter only after deciding unanimously that the evidence does not prove attempted murder beyond a reasonable doubt." He asserts that CALJIC No. 8.72 would have told the jury "how to proceed if it looks at the charges as a whole ...." The trial court's actual instructions to the jury in this case did not suffer from the malady which defendant claims CALJIC No. 8.72 would cure. The jury was specifically told that it had "discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it" and that it could "consider and reach tentative conclusions on all charges and lesser crimes before reaching any final verdicts." In addition, we believe that the court's instruction that the prosecution had the burden of proving beyond a reasonable doubt "that a killing is murder and not manslaughter" by proving the nonexistence of provocation clearly apprised the jury that it could consider both the greater and the lesser simultaneously. We find no error in the trial court's instructions on this issue. B. Revised Version of CALJIC No. 2.90
The trial court instructed the jury with the revised version of CALJIC No. 2.90. Defendant claims that the omission of the term "moral certainty" from the revised version of CALJIC No. 2.90 resulted in a reasonable doubt instruction which was constitutionally deficient because it failed to specify the "degree of certainty" required for proof beyond a reasonable doubt. We disagree.
A trial court is not required to define "reasonable doubt" so long as the reasonable doubt "concept" is correctly conveyed to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239, 1243, 127 L.Ed.2d 583].) The instruction herein only differed from the previous version of CALJIC No. 2.90 in that the references to "moral certainty" and "moral evidence" had been deleted. The constitutionality of the previous version of CALJIC No. 2.90 was upheld by the California Supreme Court (People v. Jennings (1991) 53 Cal.3d 334, 385-386 [279 Cal.Rptr. 780, 807 P.2d 1009]), and we are bound to respect that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Defendant implicitly claims that the absence of the term "moral certainty" leaves the jury without a measure by which to judge whether it has been persuaded. The problem with this argument is that "moral certainty" was eliminated from the instruction because this term was found to have "lost its historical meaning" and to pose a danger that a jury "would understand it to allow conviction on proof that does not meet the beyond a reasonable doubt standard." (Victor v. Nebraska, supra, 511 U.S. at p. 13 [114 S.Ct. at p. 1247]; People v. Freeman (1994) 8 Cal.4th 450, 504 and fn. 9 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) The use of the term "moral certainty" was found to add nothing to the jury's understanding of the concept of reasonable doubt since " '[p]roof to a "moral certainty" is an equivalent phrase with "beyond a reasonable doubt." ' ..." (Victor v. Nebraska, supra, 511 U.S. at p. 12 [114 S.Ct. at p. 1246], citation omitted; People v. Freeman, supra, 8 Cal.4th at p. 504.) The elimination of a term which added nothing to the instruction but posed a danger of misleading the jury cannot possibly have rendered an otherwise lawful instruction unconstitutional. We reject defendant's contention. C. Imposition of Two Consecutive Life Terms
Penal Code section 667, subdivision (e) (1) and its identical counterpart, Penal Code section 1170.12, subdivision (c) (1), provide that "[i]f a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (Pen. Code, sections 667, subd. (e) (1), 1170.12, subd. (c) (1), italics added.) The punishment for attempted murder with premeditation is "imprisonment in the state prison for life with the possibility of parole." (Pen. Code, section 664, subd. (a).) (3a) Defendant argues that "[t]he law provides only for a doubling of a determinate or minimum term, and does not apply to an indeterminate sentence with no minimum term." The Attorney General argues that defendant's contention, if successful, "would thwart the unambiguous intent of the Legislature and the voters to punish violent recidivists more harshly." He suggests that the statutory language was also intended to apply to indeterminate terms with no minimum term. The Attorney General urges us to hold that the seven-year period that a prisoner sentenced to an indeterminate life term without a minimum term is required to spend in prison before being eligible for parole under Penal Code section 3046 is the "minimum term" for defendant's offense because this seven-year period "appears to substitute for, and be analogous to[,]" a "minimum term."
In construing the language of an initiative statute, "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure." (In re Littlefield (1993) 5 Cal.4th 122, 130 [19 Cal.Rptr.2d 248, 851 P.2d 42].) " 'Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' ..." (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal.Rptr.2d 233, 851 P.2d 27], citation omitted.) The intent underlying the enactment of Penal Code section 667, subdivision (e) (1) and section 1170.12, subdivision (c) (1) was "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (Pen. Code, section 667, subd. (b), italics added.) (3b) Attempted murder with premeditation is a felony, and defendant had previously been convicted of a serious offense. His prior and current offenses brought him within the sentencing provisions of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. The question is what effect these sentencing provisions should have on his sentence for attempted murder with premeditation.
Defendant's solution is that the sentencing provisions of Penal Code sections 667, subdivisions (b) to (i) and section 1170.12 should have no effect on his sentence for attempted murder with premeditation. The Attorney General asserts that a trial court must, without any express statutory authority, treat a crime with no minimum term as if it had a minimum term of seven years and double this seven-year term. None of the alternatives are attractive. We agree with the Attorney General that it would thwart the intent of the Legislature and the voters if we were to hold that Penal Code sections 667, subdivisions (b) to (i) and 1170.12 have no effect on defendant's sentence for a very violent offense even though the enactors of these statutes expressly stated that they intended for these statutes to "ensure" longer prison terms for those individuals, like defendant, who suffer a current felony conviction and have previously suffered a serious felony conviction. Yet, we agree with defendant that the literal language of these statutes does not describe the effect that these statutes are intended to have on an indeterminate term without a minimum term.
In our view, the drafters of these statutes made an unmistakable drafting error by failing to provide for the doubling of the minimum period before parole eligibility where the indeterminate life term has no "minimum term." The enactors of these statutes were demonstrably aware of Penal Code section 3046. The Penal Code section 667, subdivision (e) (2) (A) (iii) calculation, which must be made in order to determine the appropriate minimum term for a defendant with two prior serious felony convictions, describes "[t]he term" as "including ... any period prescribed by Section 190 or 3046." (Pen. Code, sections 667, subd. (e) (2) (A) (iii), 1170.12, subd. (c) (2) (A) (iii), italics added.) Penal Code section 190 describes the "minimum terms" for several types of murder, and it also contains provisions mandating that certain murderers shall not be released on parole prior to their completion of the minimum term. Notwithstanding the fact that the enactors were aware of Penal Code section 3046 and arguably aware of the distinction between a "minimum term" and the minimum "period" before parole eligibility, we are still convinced that the enactors intended to double the period of time spent in prison by an individual who commits a felony offense punishable by an
Any other interpretation of these statutes would produce an absurd inconsistency. An individual who commits attempted murder without premeditation and has suffered a prior serious felony conviction would be subject to a longer minimum period of time in prison than the individual who premeditated if we were to agree with defendant's interpretation of these statutes. The normal punishment for attempted murder without premeditation is five, seven or nine years in state prison. If the doubling provisions of Penal Code sections 667, subdivision (e) (1) and 1170.12, subdivision (c) (1) were applied to this term because the individual had a prior serious felony conviction, an attempted murderer who did not premeditate would receive a state prison term of 10, 14 or 18 years in state prison. Since his or her credits would be limited to 15 percent of the term (Pen. Code, section 2933.1), the individual who did not premeditate would be required to serve no less than eight and one-half years in state prison. If we were to accept defendant's argument, a defendant who did premeditate would be required to serve no less than seven years in state prison. It is impossible to reconcile this result with the intent of the enactors of these statutes.
"We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) No rational legislator or voter could have intended to impose potentially harsher penal consequences for a lesser included offense than for a greater offense. (People v. King, supra, 5 Cal.4th at p. 69.) Yet this would be the result if we credited defendant's claim. (3c) Consequently, we must adhere to the intent of the Legislature and the voters and interpret the statutory language to provide for the doubling of the seven-year minimum period for parole eligibility set forth in Penal Code section 3046.
Defendant maintains that the trial court "has no authority to alter the minimum parole ineligibility period" because "the minimum confinement period of section 3046 is not a matter of sentencing at all; it is imposed by the Board of Prison Terms, not the court." While the Board of Prison Terms is responsible for granting or denying parole, this statutory language, as we construe it, would not stand alone as the only statutory language permitting trial courts to set the minimum parole ineligibility period. Penal Code section 667.7, subdivision (a) (1) provides that "[a] person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court ...." (Pen. Code, section 667.7, subd. (a) (1), italics added.) Thus, where statutory authority exists, a trial court is authorized to set the minimum parole ineligibility period. As we construe Penal Code sections 667, subdivision (e) (1) and 1170.12, subdivision (c) (1), in accord with the intent of the enactors of these statutes, to require a trial court to double the minimum parole ineligibility period under these circumstances, the trial court was authorized to double the minimum parole ineligibility period in this case.
us to remand this case to the trial court for resentencing, since the court's error was purely legal and may be corrected on appeal. The trial court should have imposed a single life term, rather than two consecutive life terms, and ordered that defendant be ineligible for parole until he had served fourteen calendar years of his life term. We modify the court's judgment in this particular.
Disposition
The trial court's judgment is hereby modified to reflect that the sentence imposed on defendant was a single life term rather than two consecutive life terms. The total term imposed is therefore a nine-year determinate term and a consecutive indeterminate life term. The judgment shall also reflect that defendant shall be ineligible for parole until he has served 14 calendar years of his indeterminate life term. The trial court shall prepare an amended abstract of judgment reflecting this modified judgment and forward a certified copy of this abstract to the Department of Corrections. This modified judgment is affirmed.
Cottle, P. J., concurred.
CONCURRING:
BAMATTRE-MANOUKIAN, J.,
In issue is the meaning of the phrase "minimum term." Though this phrase is used in other sections of the Penal Code (e.g., sections 190; 217.1; 667.51, subd. (d); 667.61, subd. (j); 667.71, subd. (b); 667.75), it is not defined in section 1170.12 or elsewhere. The issue arises here because defendant was convicted of one count of attempted murder with premeditation (sections 187, 189, 664), which is "punishable by imprisonment in the state prison for life with the possibility of parole." (section 664, subd. (a).) Section 664, subdivision (a) thus provides for an indeterminate term for this crime without itself providing a minimum term.
Since section 1170.12 was enacted by initiative, our primary objective in interpreting it is to ascertain the intent of the voters. (People v. Dotson (1997) 16 Cal.4th 547, 554 [66 Cal.Rptr.2d 423, 941 P.2d 56].) "[T]he voters' stated intent in enacting section 1170.12 ... was 'to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.' (Ballot Pamp., text of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 64; section 667, subd. (b).)" (Id. at p. 556.)
I do not believe that the voters intended to exempt defendants convicted of attempted willful, deliberate and premeditated murder from the term-doubling provisions of section 1170.12. Section 3046 lends support to my position. Section 3046 states: "No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater." (Italics added.) In my view, the seven-year "minimum period of confinement" of section 3046 is essentially the "minimum term" for defendants convicted of attempted willful, deliberate and premeditated murder.
Harmonization of these statutes (sections 1170.12, 187, 189, 664, 3046) comports with familiar principles of statutory construction. As this court has previously recognized, " '[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose ....' [Citation.] '[S]tatutes must be construed so as to give a reasonable and common-sense construction consistent with the apparent purpose and intention of the lawmakers-a construction that is practical rather than technical, and will lead to wise policy rather than mischief or absurdity. [Citation.]' [Citation.]" (People v. Turner (1993) 15 Cal.App.4th 1690, 1696 [19 Cal.Rptr.2d 736].)
I do not believe that the voters could have intended "minimum term" in section 1170.12, subdivision (c) (1), as a term of art, limiting the term-doubling provisions only to those statutes with express minimum terms. It is more likely the voters intended this phrase to have a broader meaning, broad enough to include the "minimum period" contemplated by section 664, subdivision (a) and section 3046.
Thus, I would conclude, as did the majority, that section 1170.12, subdivision (c) (1) required the trial court to double the seven-year minimum provided in section 3046. Because section 1170.12, subdivision (c) (1) contains no provision for doubling the indeterminate term, I agree with the majority that the trial court erred in imposing two consecutive indeterminate life terms.