Opinion
B158878.
9-30-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES F. CODDIE, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Steven A. McEwen Deputy Attorney General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 21, 2001, the Los Angeles County District Attorneys Office charged appellant with attempted, willful, deliberate premeditated murder (Count 1, Penal Code, §§ 664 and 187, subd. (a)) and assault with a firearm (Count 2, § 245, subd. (a)(2).) As to Count 1, it was alleged that appellant inflicted great bodily injury upon his victim (§ 12022.7, subd. (a)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c) — (d)), personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)) and had two prior felony convictions for which he served a prison term (§ 667.4, subd. (b).) As to Count 2, it was alleged that appellant personally used a firearm (§ 12022.5, subd. (a)(1).) Appellant pled not guilty and denied all allegations.
All further undesignated statutory references are to the Penal Code.
A jury trial commenced on April 12, 2002. On April 16, 2002, during jury deliberations, appellant admitted the two alleged prior convictions and admitted violating terms of his misdemeanor probation.
On April 17, 2002, the jury found appellant guilty on both counts and found all special allegations to be true, except the allegation that appellant acted with premeditation.
On May 16, 2002, the court sentenced appellant to a total term of 30 years to life, as follows: Count 1, the low term of 5 years plus a 25 years to life term for the section 12022.53, subd. (d) allegation. The remaining gun use enhancements on Count 1 and the sentence on Count 2 were stayed pursuant to section 654. The one-year prior prison enhancements were also stricken. The trial court imposed a $1,000 restitution fine and a $1,000 parole revocation fine. The trial court ordered appellant to make restitution to the victim. Appellant received credit for 181 days in actual custody and for 17 days for good behavior.
On May 22, 2002, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
In late September 2001, a 21-year-old woman named Constance informed appellant, her boyfriend, that a long-time family friend named Paul Cooks had molested her in 1990 and 1993. Appellant told Constances mother, Lynne McArthur, about the alleged sexual misconduct. Although Cooks had not had contact with Constances family for a substantial period of time, Constance was afraid of Cooks and did not want to pursue the matter with law enforcement.
Appellant learned of Cookss general whereabouts from McArthur and, on October 11, 2001, went to the home of Vivian Nance in Pomona where Cooks was taking a nap. Cooks was awakened when he heard Nance asking someone, "Why are you looking in my window?" Cooks got up and saw Nance speaking to appellant, whom Cooks recognized, but had never spoken to. Appellant said, "Hi. Do you know Lynn?" Appellant then asked Cooks if he wanted to get something to drink and if he wanted to get some drugs. Cooks told appellant that he no longer did drugs, but that they could go for a beer. Cooks left with appellant. When Cooks entered the car, he noticed two children in the back seat.
Appellant drove around for 25 to 30 minutes, ending up at Lynn McArthurs house. Cooks knew where he was because he had been there before. Destinie Nixon, McArthurs 18-year-old daughter, was at home and spoke to appellant, who told Cooks to get back into the car. Lynn McArthur arrived home shortly thereafter and saw Cooks on the porch and Destinie standing by the garage. McArthur had known Cooks for 11 to 12 years and was shocked to see him at her home because she had been told by appellant and others that Cooks had molested and raped Constance when she was 10 years old and again when she was 13.
The others included McArthurs sister Barbara, Barbaras boyfriend Eric, and Constance herself.
When McArthur got out of her car, she confronted Cooks about what she had been told. At some point, Destinie also confronted Cooks, yelling at him about "messing around" with her sister. McArthur asked Cooks how he could have done that. Cooks asked her, "What?" McArthur said, "You molested my daughter," and began yelling at him. Cooks continued to deny anything happened. McArthur was very upset and emotional. The exchange lasted about 5 to 10 minutes. Cooks kept trying to say that he didnt do it. Cooks said, "Well, if you think I did, why dont you just call the police." McArthur struck Cooks in the face with a closed fist and walked away. McArthur continued to be upset and walked around her driveway. Destinie called Cooks a pervert. Cooks backed away from the driveway, trying not to get surrounded.
Appellant hit Cooks on the side of his head "with something blunt," knocking him to the ground. Cooks returned one punch but was overcome by additional blows from appellant, who was joined by Destinie. Cooks was balled up on the ground; appellant was bending over him, throwing punches, and Destinie kicked him on the right side of his head. The fight lasted about two to five minutes. McArthur yelled at everyone to stop fighting. Cooks got up and again suggested that McArthur call the police.
Sensing that the situation was "getting out of hand," Cooks backed up and walked across someones yard and turned left at the corner. Appellant followed him. Cooks tried to knock on a neighbors door, but appellant told Cooks not to do so. Cooks turned to face appellant and saw that appellant was approximately five feet away and aiming a handgun at Cooks lower torso. Destinie was standing nearby, saying to appellant to shoot Cooks "in the balls." Appellant fired the gun, striking Cooks in the stomach. Cooks fell to the ground on his rear end. Cooks said appellant was still aiming the gun at him and attempting to clear a jam in the gun. Cooks said he kicked appellant in the groin, got up and walked across the grass to the home of a neighbor. He told a woman on her porch that he had been shot and waited there for the paramedics. Appellant returned to the McArthur residence and drove away.
Cooks had surgery, but at the time of trial the bullet remained in his hipbone.
On October 19, 2001, Detective Kono showed Cooks a photographic lineup containing appellants photograph. Cooks tentatively identified another suspects photograph. Cooks did not think any of the remaining suspects, including appellant, resembled the shooter. At trial, Cooks was "darn positive" that appellant was the man who shot him.
The Pomona police detained appellant on November 15, 2001. Appellant was advised of and waived his Miranda rights. Appellant told Detective Kono that he contacted Cooks at Vivians house and asked Cooks where he could get some cocaine. Cooks went with appellant in his car and directed him to a housing tract on the west side of Pomona. On the way, he stopped at McArthurs residence to drop off his nephew and another child. A confrontation ensued over the molestation allegations, and McArthur hit Cooks in the face and knocked his glasses off. Appellant got in between the two and struck Cooks after Cooks began swinging his arms. Appellant knocked Cooks to the ground and continued hitting him. When the fight stopped, Cooks walked around the corner, and appellant entered the McArthur residence to use the restroom and prepare the children to leave. Appellant heard a "firecracker-type sound," assumed it was a firecracker and got into his car and left. At trial, Destinie denied telling appellant to shoot Cooks.
The appellant did not present any evidence in his defense.
CONTENTIONS ON APPEAL
Appellant contends:
1. The court had a sua sponte duty to instruct the jury with attempted voluntary manslaughter.
2. The trial court erroneously failed to instruct the jury with CALJIC No. 17.03 and with an instruction pursuant to People v. Dewberry (1959) 51 Cal.2d 548, in violation of appellants Sixth and Fourteenth Amendment rights.
3. The trial courts special jury instruction, directing the jury to disregard whether the molestation allegations against Cooks were true, was an improper pinpoint instruction and prejudicial to appellant.
4. CALJIC No. 17.41.1 requires reversal because it is unconstitutionally coercive.
STANDARD OF REVIEW
The standard of review for claims of instructional error is de novo. Thus, we review this issue as one of law. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled in part on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017 (Sinclair).)
DISCUSSION
I. The court did not have a sua sponte duty to instruct the jury with attempted voluntary manslaughter.
It is settled law that the trial court must instruct on lesser included offenses even in the absence of a request where the evidence raises a question as to whether all elements of the charged offense are present. (People v. Barton (1995) 12 Cal.4th 186, 195 (Barton); People v. Duncan (1991) 53 Cal.3d 955, 970.) However, there must be evidence the defendant is guilty of the lesser offense that is substantial enough for consideration by the jury. (Barton, supra, at p. 195, fn. 4.) "`Substantial evidence in this specific context is defined as evidence which is `sufficient to "deserve consideration by the jury, i.e., `evidence from which a jury composed of reasonable men could have concluded" that the particular facts underlying the instruction did exist. [Citations.]" (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139-1140.)
Appellant argues that the trial court had a sua sponte duty to instruct the jury with an instruction on attempted voluntary manslaughter. Where the charged offense is attempted murder and there is some evidence worthy of consideration of mitigating factors, such as the heat of passion, a sudden quarrel or an honest but unreasonable belief in the necessity for self-defense, that evidence may reduce an intentional attempt to kill to attempted voluntary manslaughter. The defendant then is entitled to instruction on that offense. (People v. Tucciarone (1982) 137 Cal.App.3d 701, 705; see also People v. Van Ronk (1985) 171 Cal.App.3d 818, 824, review den. Nov. 14, 1985.) To justify an instruction of attempted voluntary manslaughter, there would have to be substantial evidence that appellant was provoked to such a degree "`"as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."" (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on another ground in Barton, supra, 12 Cal.4th at pp. 200-201.) The passion can be "`any "`"[v]iolent, intense, high-wrought or enthusiastic emotion"" citations] other than revenge [citation]. [Citation.]" (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Two of the elements of a "heat of passion" attempted voluntary manslaughter are at issue in this case. First, the provocation, which incites the killer to act in the heat of passion case, must be caused by the victim or reasonably believed by the accused to have been engaged in by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59 (lead opn. of Baxter, J.) (Lee ); In re Thomas C. (1986) 183 Cal.App.3d 786, 798; People v. Spurlin (1984) 156 Cal.App.3d 119, 125-126; e.g., People v. Brooks (1986) 185 Cal.App.3d 687, 693-694.) Second, as noted previously, the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Lee , supra, 20 Cal.4th at p. 59; Barton, supra, 12 Cal. 4th at p. 201.)
Appellant argues that the instruction was required "because the evidence presented at trial supported such a theory notwithstanding the trial tactics or objections by the parties. Here, appellant continues the evidence at trial supported an attempted voluntary manslaughter instruction based on sudden quarrel or heat of passion or provocation. (§ 192, subd. (a); People v. Breverman [(1998)] 19 Cal.4th [142,] 153-154.)" (Emphasis in original.) Appellant suggests that "the evidence showed there was a physical confrontation outside McArthurs house, and a sudden, heated, and potentially violent quarrel arose between McArthur, Destinie, appellant and Cooks over the allegations that Cooks molested Constance McArthur years earlier."
Appellant expands his argument in his reply brief. He argues that the alleged past molestation of Constance is only part of the provocation to be considered and that:
"[S]ubsequent events provided the heat of passion. The actual verbal confrontation against Cooks emanating from McArthur and her daughter Destinie, McArthurs punching Cooks in the jaw, and ultimately the two to five minute physical altercation between appellant and Cooks served as further provocation and certainly provided sufficient evidence to support the theory that appellant was still under the heat of passion when he followed Cooks down the street."
To respondents counter that the passion should have dissipated when Cooks attempted to flee, appellant argues that: "a reasonable person in appellants position would have continued to be under the heat of passion. His following Cooks down the street was not reflective of a thought out, carefully planned act of revenge . . . .
We find that these two necessary elements for heat of passion attempted voluntary manslaughter instruction are not present in this case. First, there was insufficient evidence of provocative conduct by Mr. Cooks, the victim. Nothing Cooks said or did was such as to cause an ordinary person of average disposition to be provoked to violence or to act without due deliberation. Equally as important in this case is that the provocation itself must come from the victim. (People v. Spurlin (1984) 156 Cal.App.3d 119, 125-126.) There is no substantial evidence that Cooks so provoked appellant.
The evidence, as we interpret the record, is that after learning of his girlfriends allegation of molestation by Cooks, appellant learned of Cookss location and went to his home, invited him out for a drink and instead drove him to Lynn McArthurs home.
At the McArthur home, Lynn and her daughter Destinie verbally confronted Cooks for 5 to 10 minutes. McArthur became very distraught and, at the end of the verbal confrontation, hit Cooks in the face with a closed fist. Cooks, who had been denying the allegations, then backed away from the driveway. At that point, appellant hit Cooks and knocked him to the ground. Cooks returned one punch, but continued to be hit and kicked by appellant and Destinie. This fight continued for two to five minutes.
McArthur called for everyone to stop fighting, and Cooks got up and walked across a neighbors yard and turned left at the corner. Cooks tried to knock on a neighbors door then turned to find appellant five feet away, pointing a gun at him. Appellant fired the gun and struck Cooks in the stomach.
Officer Kono testified regarding his interview with appellant. Appellants version of the events differs in that he claims that after Cooks was hit by McArthur, he got in between them and did not hit Cooks until he began swinging his arms. According to appellants version of the events, he continued to hit Cooks on the ground and then stopped and went into the residence.
The giving of a sua sponte instruction was not justified by the evidence in this case nor was it warranted because a lesser included offense instruction is not required if the defendant disclaims all responsibility for harming the victim. (See Sinclair, supra, 64 Cal.App.4th at p. 1020-1022 [lesser included offense instructions need not be given when accused denies any participation in charged offense]; People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006 [defendant not entitled to voluntary manslaughter instructions based on diminished capacity where defendant testified he was not even present when victim was killed]; cf. Barton, supra, 12 Cal.4th at p. 202 [voluntary manslaughter instruction properly given over defendants objection where defendant had testified shooting death was accidental]; People v. Elize (1999) 71 Cal.App.4th 605, 615 ["[A] lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendants own testimony, so long as there is substantial evidence in the entire record to support that premise. Thus, for example, an instruction on heat of passion manslaughter is required even though the defendant testifies that he had no intent to shoot and that the shot was accidental."].) "[N]o Supreme Court decision has held that when the defendant completely denies shooting the victim as in the present case voluntary manslaughter instructions are in order." (Sinclair, supra, 64 Cal.App.4th at p. 1021.) "When defendant denied he shot the decedent, none of the alleged evidence of heat of passion and imperfect self-defense was of the type `that a reasonable jury could find persuasive. [Citation.] Simply stated, the duty to instruct on inconsistent defenses does not extend to cases such as this where the sworn testimony of the accused completely obviates any basis for finding a lesser included offense." (Id. at pp. 1021-1022.)
Appellants only explanation regarding the event, provided in his interview with Detective Kono, was a denial that he was present when the shots were fired. The remaining evidence at trial, standing alone, does not provide a sufficient factual basis for the requested instruction, and appellants denial of participation provides a second equally adequate reason why the judges failure to give this instruction was not error.
II. The trial court properly did not instruct the jury with CALJIC No. 17.03 and with an instruction pursuant to People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), in violation of appellants Sixth and Fourteenth Amendment rights.
Appellant argues further instructional errors occurred when the trial court failed to either instruct with CALJIC No. 17.03 or give an instruction pursuant to Dewberry. He argues that "even though there were two separate counts presented to the jury, there was only one offense during one occasion against only one victim. Since assault with a deadly weapon is a lesser-included offense of attempted murder, the law is extremely well settled that only one conviction is possible. Therefore, the courts failure to instruct the jury with CALIC 17.03 deprived the jury of making that informed choice to decide which crime was committed, attempted murder or assault with a deadly weapon.
CALJIC No. 17.10 provides in pertinent 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. [¶] [The crime of _____ [as charged in Count ___] is lesser to that of ______ [charged in Count ___.] [¶] . . . [¶] 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." Appellant argues that a modified version of CALJIC No. 17.03 should have been given. That version provides: The defendant is accused in count one of having committed the crime of attempted murder and in count two of having committed the crime of assault with a deadly weapon. These charges are made in the alternative and in effect allege that the defendant committed an act or acts which constitutes one of the charged crimes, you must then determine which of the crimes so charged was thereby committed. In order to find the defendant guilty, you must all agree as to the particular crime committed, and, if you find the defendant guilty of one, you must find him not guilty of the other, as well as any lesser crime included therein."
Appellant also argues that he was entitled to a sua sponte instruction under Dewberry, supra, 51 Cal.2d 548, which would have advised the jury that when the evidence is sufficient to support a finding of guilty of both the offense charged an a lesser included offense, the jury must be instructed 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." (Id. at p. 555.)
Appellant argues that the "Dewberry error in the instant case had the same impact as a failure to require proof beyond a reasonable doubt of every element of a crime. The trial courts failure to give the Dewberry instruction in these circumstances `went directly to the defense of reasonable doubt . . . of appellants guilt on the greater charge of attempted murder."
We are in agreement with respondents position that the proposed instructions were unnecessary and inapplicable because: 1) assault with a firearm is not a lesser-included offense of attempted murder, and 2) appellant committed more than one crime. Appellant has cited no authority supporting the proposition that Dewberry applies outside of the context of lesser included offenses. We agree there is no reason why Dewberry should apply outside of the lesser-included offense context since the rule is obviously aimed at preventing improper convictions of both a greater and a lesser-included offense. By contrast, as noted above, conviction of two offenses, with different elements, for the same act is proper.
"CALJIC 17.03 was also inapplicable because appellant committed more than one crime. As noted above, attempted murder and assault with a firearm are distinct crimes with different elements." . . . Here a guilty verdict on either count did not logically preclude a guilty verdict on the other.
III. The trial courts special jury instruction, directing the jury to disregard whether the molestation allegations against Cooks were true, was not an improper pinpoint instruction and prejudicial to appellant.
The trial court drafted and read the following special instruction to the jury:
"In this case it is irrelevant whether Mr. Cooks actually did or did not commit sexual misconduct at some time in the past, and it is not the function of the jury to resolve that issue. It is not a defense to either charge that Mr. Cooks is alleged to have committed acts of sexual misconduct in the past, even if the allegations were true."
Appellants contention on appeal is that the "courts pinpoint instruction improperly directed the jury to ignore the very provocation that would have mitigated the offense from attempted murder to a lesser offense." This instruction "would have been highly misleading to a lay jury. The courts directing the jury to disregard what appeared to be the reason behind the whole situation was improper. In the context in which the court gave the instruction, and also in light of the prosecutors closing argument, a reasonable jury would conclude that it was to ignore the fact that appellant believed Cooks had molested Constance years earlier and that belief was what provoked the entire scenario that night."
Here, appellant argues because the jury was instructed not to consider the truth of the allegations and "because they were not instructed with attempted voluntary manslaughter, they very likely did not consider that to mitigate the offense to a lesser included offense." (Emphasis in original.)
Respondent argues that "appellant not only failed to object to the special instruction, but he expressly approved the instructions language." It is well settled that a failure to make a timely and specific objection at trial will constitute a waiver of the issue on appeal.
Appellants argument on the relevance of the truth (or not) of the molestation allegation carries the seeds of its own destruction. The provocation inquiry deals with assessing whether the provocation in the instant case would have caused the perpetrator to "lose reason." Here, the suggested provocation was the alleged past molestation that precipitated the encounter where the shooting occurred. But the evidence was that appellant was calm and friendly when he picked up Cooks. He invited him out for a drink and then only became "provoked" after McArthur and Destinie started to fight with Cooks. The truth (or not) of the prior molestation was not relevant to the provocation. Therefore, the trial judges instruction was correct.
IV. CALJIC No. 17.41.1 is not unconstitutionally coercive.
Appellant contends that it was error for the trial court to instruct the jury with CALJIC No. 17.41.1. Defendant claims that instructing the jurors with CALJIC No. 17.41.1 violated his constitutional right to a jury trial. Defendant failed to object to this instruction. He consequently has waived his challenge to CALJIC No. 17.41.1 unless the instruction affected any of his substantial rights. (People v. Elam (2001) 91 Cal.App.4th 298, 310-313; see also People v. Guiuan (1998) 18 Cal.4th 558, 570.)
In People v. Engelman (2002) 28 Cal.4th 436, the California Supreme Court disapproved of CALJIC 17.41.1 and forbade trial courts from giving it in future trials. (Id. at p. 449.) The Court expressed concern that the instruction created "a risk of unnecessary intrusion on the deliberative process." (Id . at p. 441.) Nonetheless, the Court concluded that giving the instruction did not infringe upon federal or state constitutional rights and was not error. (Id. at pp. 441, 449.)
Here, as in Engelman, there was no indication the jury encountered any problems during deliberations. It did not deadlock or report that any juror refused to deliberate or follow the law. It did not request further instruction or ask any questions. In short, there was no indication that the potential risk created by CALJIC No. 17.41.1 was realized in this case. Accordingly, appellants claim has no merit.
DISPOSITION
The judgment of the trial court is affirmed.
We concur: RUBIN, J., BOLAND, J.