Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F08630
CANTIL-SAKAUYE, J.
A jury convicted defendant Othell Michael Watkins of attempted murder (Pen. Code, §§ 667/187), assault with a deadly weapon (§ 245, subd. (a)(1)), inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)), and grand theft (§ 487, subd. (c)).
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erroneously refused his request for an instruction on attempted voluntary manslaughter in a heat of passion, “exacerbated” that error by refusing to instruct the jury on Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3429 (reasonable person standard for physically disabled person), and erroneously reduced the prosecution’s burden of proof by instructing the jury on CALCRIM No. 220 (reasonable doubt).
FACTUAL BACKGROUND
Defendant and the victim, Melissa Melger, began dating in July 2005, ultimately living together for five or six months before Melger ended the relationship in September 2006.
Over the two to three weeks following their break-up, defendant sent approximately six e-mails to Melger expressing that he wanted to “get back with [Melger].” When Melger did not respond, defendant called Melger’s friend, asking where Melger was. Melger called defendant and told him to stop calling her friends. Then she had her phone number “blocked.”
Melger nevertheless needed to retrieve her important documents and personal belongings still in defendant’s possession. Thus, via e-mail, defendant told her to meet him at “his” apartment, number 720 at the Tamaron Ranch Apartments, in order to pick up her things. Apartment No. 720, however, was not defendant’s apartment, but it was at the “very back of the apartment complex” and it was vacant.
On the morning of their scheduled meeting, Melger walked to defendant’s apartment complex. As she walked around looking for apartment No. 720, defendant approached Melger from behind and put a blanket over her head, holding her with his arms wrapped around her chest.
After “[a]bout two seconds,” defendant removed the blanket from Melger’s head and she saw he had a butcher knife in the back of his pants. She also saw that defendant was wearing “dark gray sweats[,] a light gray hooded sweatshirt,” a “beanie” on his head with eye holes cut out and blue latex “hospital gloves.” Melger asked defendant what he was doing; “[h]e said nothing.”
Melger asked where her belongings were and defendant pointed in “the opposite direction” from apartment No. 720. Defendant began walking in that direction. As he was walking, defendant asked Melger if she was alone, why she “hated him,” and why she “didn’t love him anymore.” Melger said she was not alone, but did not answer his other questions; she simply asked where her things were and began following him.
Defendant continued walking but Melger turned back “to go on the path [she] came from.” Then defendant grabbed Melger, stabbing her repeatedly while she screamed and tried to fight him off. Defendant ran away, returning briefly to take Melger’s purse and pick up his work vest and shoes before leaving the scene.
Melger suffered multiple stab wounds but survived the attack. Defendant was subsequently arrested and charged with attempted murder, assault with a deadly weapon, corporal injury of a former cohabitant, and felony theft. Defendant pled not guilty, but was convicted on all counts after a jury found him guilty as charged. The court sentenced defendant to life in prison with the possibility of parole, plus five years to be served consecutively. Defendant appeals his conviction.
DISCUSSION
Defendant makes three claims of instructional error. First, defendant claims the trial court committed prejudicial error in refusing to give defendant’s requested instruction on attempted voluntary manslaughter. Defendant contends the court “exacerbated” that error by refusing to instruct the jury pursuant to CALCRIM No. 3429 “in conjunction with instructions on voluntary manslaughter.” Defendant also argues the trial court erred “by instructing the jury on the definition of reasonable doubt pursuant to CALCRIM No. 220.” We shall affirm.
A. Attempted Voluntary Manslaughter
Defendant contends the trial court should have instructed the jury on attempted voluntary manslaughter. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a); People v. Manriquez (2005) 37 Cal.4th 547, 583.) Voluntary manslaughter is the intentional but nonmalicious killing of a human being. (People v. Manriquez, supra, at p. 583; People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Rios (2000) 23 Cal.4th 450, 463 & fn. 10; § 192.) Voluntary manslaughter is a lesser included offense of murder. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Manriquez, supra, at p. 583.) A killing may be reduced from murder to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. (People v. Manriquez, supra, at p. 583; People v. Lee, supra, at pp. 58-59.) The provocation which incites the defendant to homicidal conduct must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez, supra, at p. 583.)
The trial court must instruct on a lesser included offense if substantial evidence exists indicating the defendant is guilty only of the lesser offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is evidence from which a jury composed of reasonable persons could conclude the lesser offense, but not the greater, was committed. (People v. Manriquez, supra, at p. 584; People v. Benavides, supra, 35 Cal.4th at p. 102.) In deciding whether there is substantial evidence of a lesser included offense, we do not evaluate the credibility of the witnesses, a task for the jury. (People v. Manriquez, supra, at p. 585.) We employ a de novo standard of review when determining whether a lesser included offense instruction should have been given. (Id. at p. 584; People v. Waidla (2000) 22 Cal.4th 690, 733.)
Defendant contends that Melger’s conduct in the two-week period preceding the assault was sufficient provocation. Defendant is wrong; nothing that Melger did in the weeks between her break-up with defendant and the assault could accurately be described as provocative. She ignored his repeated pleas to revive the relationship and she asked him not to contact her friends. Such conduct does not even approach provocation. (Cf. People v. Berry (1976) 18 Cal.3d 509, 514 [the victim, defendant’s wife, “continually provoked defendant with sexual taunts and incitements, alternating acceptance and rejection of him. This conduct was accompanied by repeated references to her involvement with another man”].)
Moreover, defendant failed to show sufficient provocation on the day of the assault to warrant an instruction on attempted voluntary manslaughter. (See People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1247 [finding an instruction on voluntary manslaughter was not warranted when the record lacked “substantial evidence of sufficient provocation . . . on the day of the murders”].) (Original italics.)
Indeed, the evidence established that defendant arrived at their meeting prepared to assault Melger. He directed Melger to meet him at a vacant apartment at the back of the complex, wore a beanie with the eye holes cut out (it was not pulled over his face) and latex gloves, brought a butcher knife, and began the encounter by throwing a blanket over Melger’s head. Melger did little more than ask for her belongings before defendant began stabbing her.
Accordingly, we conclude the trial court did not err in refusing defendant’s request to instruct the jury on attempted voluntary manslaughter.
Because we find the court was not required to give defendant’s requested instruction on attempted voluntary manslaughter, we need not address defendant’s claim that the court erred in failing to give CALCRIM No. 3429, thus modifying the “reasonable person” requirement in voluntary manslaughter to that of a “reasonably disabled person.” (See People v. Mathews (1994) 25 Cal.App.4th 89, 99-100 [finding the court should give CALCRIM No. 3429 on request if the defendant has a physical disability and the crimes charged or lesser offenses include a reasonable person standard].)
B. CALCRIM No. 220
Defendant also contends the reasonable doubt instruction embodied in CALCRIM No. 220, negates the presumption of innocence and impermissibly dilutes the prosecution’s burden of proof. Thus, the issue before us is “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385]; People v. Wade (1995) 39 Cal.App.4th 1487, 1493 [appellate court must consider whether a “reasonable juror would apply the instruction in the manner suggested by defendant”].) We conclude it did not.
CALCRIM No. 220 provides, in pertinent part, as follows: “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 . . . .
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.”
Defendant contends that requiring the jury to “impartially compare and consider all the evidence” undermined the presumption of innocence and supplanted it with a lesser standard of impartiality. Defendant urges the phrase “impartially compare” implies a weighing of two opposed sets of evidence, thus imparting to the jury “the incorrect idea of comparing two sets of evidence” such that the prosecution would meet its burden if defendant failed to produce enough evidence on his side of the scale to outweigh the evidence against him. (Coffin v. United States (1895) 156 U.S. 432, 453 [39 L.Ed. 481, 491].) Defendant also objects to inclusion of language requiring an “abiding conviction” without any additional reference to the gravity or weight of proof required. Similar arguments were recently rejected in People v. Stone (2008) 160 Cal.App.4th 323 (Stone), with which we agree.
1. “Compare and Consider”
In Stone, the defendant argued that the phrase “‘impartially compare and consider all the evidence’ renders the instruction constitutionally infirm because it connotes the civil, preponderance standard of proof by implying ‘a weighing of two opposed sets of evidence--the proverbial balancing of the scales.’” (Stone, 160 Cal.App.4th at pp. 330-331, original italics.) The appellate court found the defendant’s “exercise in semantics” not to be persuasive, concluding that “a jury instruction cannot be judged on the basis of one or two phrases plucked out of context: Rather, ‘“‘“‘[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. Young (2005) 34 Cal.4th 1149, 1202 [citations omitted]; see People v. Smithey (1999) 20 Cal.4th 936, 963 [same].” (Stone, at p. 331.)
As in Stone, “we cannot see how a jury would place enough significance on a single word--‘compare’--such that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side.” (Stone, supra, 160 Cal.App.4th at p. 332, original italics.)
Here, as in Stone, the court also instructed the jury that the “fact that a criminal charge has been filed against the defendant is not evidence that the charge is true,” the defendant is presumed innocent, and the defendant has an absolute constitutional right not to testify. (Stone, supra, 160 Cal.App.4th at p. 332.) And in closing argument, counsel for the prosecution and the defense, collectively, mentioned the “beyond a reasonable doubt standard” no less than 12 times.
After reading the instructions as a whole, and considering counsels’ repeated references to the “beyond a reasonable doubt” standard, “we are convinced that there is no likelihood whatsoever that the jury could have interpreted the ‘compare and contrast’ language in the instruction in the manner suggested by defendant.” (Stone, supra, 160 Cal.App.4th at p. 332.)
2. “Abiding Conviction”
The defendant in Stone also challenged the constitutionality of the phrase: “proof that leaves you with an abiding conviction that the charge is true,” making the exact same argument made by defendant here. (Stone, supra, 160 Cal.App.4th at p. 330.) Specifically, the defendant in Stone argued the phrase “renders the burden of proof instruction constitutionally infirm because it conflates the separate concepts of duration and weight. As defendant states it: ‘The phrase “abiding conviction” conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based [on] weighty evidence. The concept of proof beyond a reasonable doubt embodies the requirement of gravity of proof, not simply a decision that is lasting.’” (Id. at p. 332, italics omitted.)
The court noted that the “abiding conviction” language had previously appeared in the predecessor to CALCRIM No. 220, CALJIC No. 2.90. It concluded upon reviewing the relevant discussion in Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583] (Victor), and People v. Freeman (1994) 8 Cal.4th 450 (Freeman), that the “abiding conviction” language in CALCRIM No. 220 “can be traced directly to the instruction approved in Freeman, in which the Supreme Court explicitly sanctioned language defining reasonable doubt as ‘“that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”’ [Citations.]” (Stone, supra, 160 Cal.App.4th at p. 334.) The court continued:
“Moreover, the concept of an ‘abiding conviction’ was also given a stamp of approval in Victor v. Nebraska where the high court stated: ‘Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction . . . lends content to the phrase. The jurors were told that they must have “an abiding conviction, to a moral certainty, of the truth of the charge.” . . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof. [Citations.]’ (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15 [127 L.Ed.2d at pp. 595-597], italics added.) Furthermore, numerous California cases since Freeman have rejected due process challenges mounted against the criminal burden of proof instruction with its ‘abiding conviction’ language. [Citations.]” (Stone, supra, 160 Cal.App.4th at p. 334.)
The court then noted that the appellate court in People v. Haynes (1998) 61 Cal.App.4th 1282, “rejected substantially the same due process argument made by defendant in this case--that the term ‘abiding conviction’ is ‘a standard for “duration” but not the “degree of certitude” jurors must have.’ (Id. at p. 1299.)” (Stone, supra, 160 Cal.App.4th at p. 334.)
Having carefully considered defendant’s claims, we conclude CALCRIM No. 220 accurately states the law. That, coupled with the fact that both counsel repeatedly explained the appropriate burden of proof and the court adequately instructed the jury as to that burden, we conclude it is not reasonably likely the jury misapplied the instruction in CALCRIM No. 220. We reject defendant’s claim that the instruction negates the presumption of innocence and lessens the burden of proof.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., RAYE, J.