Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05SF0407, John Conley, Judge. Sentence vacated and remanded for retrial on strike prior allegation and for resentencing.
Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Prince Edward Maryland beat, burned, raped, tortured, and sexually assaulted his wife V. in a relentless attack lasting over four days. A jury convicted Maryland of attempted murder, torture, forcible spousal rape, and a host of other crimes. The trial court found true a strike prior allegation under Penal Code section § 667, subdivision (a)(1) and sentenced Maryland to a total prison sentence of 130 years eight months to life with the possibility of parole, with two consecutive life terms.
Specifically, the jury found Maryland guilty of attempted murder (Pen. Code, §§ 187, subd. (a), 664); torture (id., § 206); forcible spousal rape (id., § 262, subd. (a)(1)); sexual penetration by a foreign object (id., § 289, subd. (a)(1)); forcible sodomy (id., § 286, subd. (c)(2)); forcible oral copulation (id., § 288a, subd. (c)(2)); kidnapping (two counts) (id., § 207, subd. (a)); felony false imprisonment by violence (id., §§ 236, 237, subd. (a)); aggravated mayhem (id., § 205); criminal threats (two counts) (id., § 422); aggravated assault (five counts) (id., § 245, subd. (a)(1)); and felony evading (Veh. Code, § 2800.2). The jury found true the infliction of great bodily injury allegation (Pen. Code, § 12022.7) on the counts of attempted murder, forcible spousal rape, sexual penetration by a foreign object, forcible sodomy, and three counts of aggravated assault. On one count of kidnapping, the jury found true the allegation of personal use of a deadly weapon (id., § 12022, subd. (b)). On the count of sexual penetration by a foreign object, the jury found true the allegation that Maryland tied and bound V., and, on the count of sodomy, found true the allegation that Maryland tortured her (id., § 667.61, subds. (a), (b), (d)(3), (e)(3) & (6)).
Maryland contends (1) the trial court erred by instructing the jury with CALCRIM No. 220 because it erroneously defines the reasonable doubt standard of proof; (2) the prosecutor committed misconduct in closing argument by misstating the law of attempted murder; (3) the jury instruction on motive erroneously lightened the prosecution’s burden of proving torture and the one-strike torture allegation; and (4) the evidence was insufficient to support the true finding on the strike prior allegation for battery with serious bodily injury. The Attorney Generally agrees with Maryland on the fourth contention. None of Maryland’s other contentions has merit. We therefore vacate the sentence, and remand for a retrial on the strike prior allegation and for resentencing, but in all other respects affirm.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
Maryland and V. were married in May 2004. They lived in a two-bedroom apartment in Lake Forest.
Maryland and V. smoked cocaine, drank alcohol, and engaged in various sexual acts almost continually from Friday night, April 8, 2005, through Saturday night, April 9. On Sunday, April 10, Maryland accused V. of having an affair. After she denied the accusation, Maryland hit V. with an open hand, and later with his fist.
On Monday, April 11, 2005, V. called in sick to work. Her eyes were blackened and her face was bruised. Maryland made her transfer money from her credit cards into a checking account and write him two checks totaling $3,300. That evening, Maryland drove to Van Nuys to purchase more cocaine. He took V. with him and made her withdraw $500 from an ATM.
Maryland and V. smoked more cocaine when they returned home. Maryland again accused V. of infidelity and pummeled her face with his fist. Maryland continued to beat V. into the morning hours of Tuesday, April 12, when the violence intensified. Maryland continued attacking V. until he left the apartment on the morning of Thursday, April 14.
At trial, V. recounted the horrible acts of cruelty inflicted on her, but, having been traumatized, had difficulty recalling their sequence. During the unrelenting attack, Maryland hit and kicked V., and, with a portion of a wire coat hanger used to clean cocaine pipes, struck her on the head, neck, and face. He would not let her use the bathroom, and urinated in her mouth. He ordered her to remove her clothing, dragged her around the apartment by her hair, then pulled out much of her hair and ultimately cut it off. He burned her thighs, back, and arms with a hot cocaine pipe, tied her hands to a futon, and burned the inside of her vagina. Maryland told V. he was going to make it so that no other man would want her.
Maryland strangled V. into unconsciousness three times, and, during one strangulation, threatened to kill her. He held a butcher knife to her throat, threatened to kill her, threatened to place a knife in her vagina, and forced her to orally copulate him after he sodomized her. He threatened to kill her mother and son.
Maryland twice used scissors to force V. into his car, threatening to kill her if she screamed. On both occasions, he drove to Van Nuys to buy more cocaine, with V. bleeding the entire way. During the drives, he continued hitting her face, and she tried to block his punches with her forearms. On the way home from the second trip to buy cocaine, Maryland stopped at a motel to get a room. He removed V.’s pajama bottoms before going to the office, but she tried to escape nonetheless. Maryland chased her and dragged her back to the car. On the drive back to the apartment, he hit her more and threatened to kill her.
Maryland wanted to destroy things that gave V. pleasure. He cut her credit cards, driver’s license, and purse. He made her say she wanted to be humiliated, and forced her to admit to having an affair, which was not true. He brutalized her until she begged to be killed, and then told her he would bring her to within an inch of her life without killing her.
V. dialed 911 after Maryland left the apartment sometime in the morning on Thursday, April 14. Soon thereafter, a sheriff’s deputy arrived. At trial, he offered this description of V.: “Her face was purple. . . . [O]ne of her eyes was red. The other one was swollen. Almost shut. Her ears were black. Her hair was—had looked like it had been cut off close to her scalp. I could see her scalp. . . . [S]he was grotesquely beaten.” A paramedic described V. as “horrendously beaten,” and her injuries as the worst he had seen on a surviving victim in his 14-year career.
V. was taken to a hospital, where she stayed for six days, the first four in the intensive care unit. A sexual assault nurse examined V. at the hospital and noted multiple burns on her legs, scalp, labia, and clitoral hood. V. had multiple bruises on her lips, face, forearms, hands, upper chest, and abdomen; her eyes were swollen shut; her tongue was swollen with lacerations on both sides. V. had a fractured larynx and blood on her vocal cords, requiring a tracheotomy. The surgeon who performed the tracheotomy testified substantial force was necessary to cause the fracture. The damage to V.’s vocal cords altered the range of her voice. V. also underwent surgery to repair a damaged ear. She was on disability for six months after her ordeal. At the time of trial, she was badly scarred, the muscles of the left side of her forehead were paralyzed, and she still felt pain from the burns to her vagina.
During the afternoon of April 14, 2005, Kern County Sheriff’s deputies spotted Maryland driving north on Highway 99 and pursued him. The chase lasted 20 to 25 minutes, and reached speeds of up to 120 miles per hour. The deputies apprehended Maryland when he lost control of his car and crashed into a railroad embankment.
At trial, two other women (including Maryland’s ex-wife) testified Maryland had inflicted on them acts of cruelty, violence, and sexual assault similar to those he inflicted on V.
Maryland represented himself at trial and testified in his own defense. During the course of his testimony, Maryland essentially admitted inflicting most of V.’s injuries. He contended that V. was “disrespect[ing]” him by lying about an alleged affair and by insinuating she might be HIV positive, and that V. agreed to let Maryland brutalize her if she lied to him again. He claimed he was just holding her to her agreement.
Discussion
I. CALCRIM No. 220 Correctly Defines Reasonable Doubt.
The trial court instructed the jury with CALCRIM No. 220, which defines proof beyond a reasonable doubt as “proof that leaves you with an abiding conviction that the charge is true.” Maryland argues that definition erroneously conveys the impression that proof beyond a reasonable doubt “is merely a very high degree of objective probability” and causes “obfuscation of the scope properly given to the jurors’ individual subjectivity required for the reasonable doubt standard.” We conclude CALCRIM No. 220 correctly instructs on the reasonable doubt standard.
The court instructed the jury with CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendant is not evidence the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. The presumption—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 I specifically tell you otherwise. [¶] 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 guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.” (Italics added.)
“The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’” (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
Courts have repeatedly rejected the argument that use of the phrase “abiding conviction” in CALCRIM No. 220 and in CALJIC No. 2.90 diminishes the prosecution’s burden of proof. (E.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1119 [Sixth Appellate District]; People v. Stone (2008) 160 Cal.App.4th 323, 334 [First Appellate District, Division Three]; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269 [Third Appellate District]; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287 [Third Appellate District]; People v. Miller (1999) 69 Cal.App.4th 190, 213-214 [Fifth Appellate District]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1299-1300 [First Appellate District, Division Two]; People v. Light (1996) 44 Cal.App.4th 879, 884-889 [Fifth Appellate District].)
As explained in People v. Stone: “[T]he ‘abiding conviction’ language criticized in CALCRIM No. 220 by defendant in this case can be traced directly to the instruction approved in [People v.] Freeman [(1994) 8 Cal.4th 450, 504, footnote 9], 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.] Even if dictum, the Supreme Court’s approval of the instruction is highly persuasive. [Citation.] 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.]’ [Citation.]” (People v. Stone, supra, 160 Cal.App.4th at p. 334, fn. omitted.)
Maryland argues his challenge to CALCRIM No. 220 is different from the one rejected in those cases: He contends CALCRIM No. 220 is unconstitutional because it eliminates the element of subjective certainty from the reasonable doubt standard.
The United States Supreme Court has described the reasonable doubt standard as “‘impress[ing] on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’” (In re Winship (1970) 397 U.S. 358, 364.) “[B]y impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” (Jackson v. Virginia (1979) 443 U.S. 307, 315.)
Maryland’s argument is premised on the word “feel,” which is used in Penal Code section 1096 and CALJIC No. 2.90, but not in CALCRIM No. 220. Penal Code section 1096 defines reasonable doubt as follows: “‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” (Italics added.) Maryland argues CALCRIM No. 220 removes the subjective element by omitting the word “feel” to state, “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” (Italics added.) According to Maryland, “feel[s] an abiding conviction” conveys the requisite subjective certainty; “leaves you with an abiding conviction” does not.
CALJIC No. 2.90 similarly describes 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.”
We disagree. CALCRIM No. 220 conveys the same thing as Penal Code section 1096 and CALJIC No. 2.90 (which Maryland accepts as a correct statement of law) but compresses the idea of subjective certainty into fewer words. Both CALCRIM No. 220 and CALJIC No. 2.90 tell the jury it must have an abiding conviction of the truth of the charge to find the defendant guilty. (See Victor v. Nebraska, supra, 511 U.S. at pp. 14-15 [“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”].) The term “abiding conviction,” which has been approved many times, itself conveys the sense of subjective certainty, whether used in connection with “feel” or “leaves.” The word “conviction,” both in its dictionary definition and common understanding, means a strong persuasion, belief, or view. (Webster’s 3d New Internat. Dict. (1993) p. 499.) “Abiding,” when modifying “conviction,” has been held to mean both duration and degree of certainty. (People v. Haynes, supra, 61 Cal.App.4th at p. 1299.) Thus, whether the juror feels an abiding conviction or is left with an abiding conviction, the result is the same: The juror must have a strong and lasting belief, to a subjective certainty, in the truth of the charges.
To the extent CALCRIM No. 220 is ambiguous, we do not think it is reasonably probable the jury would have understood the words “leaves you with an abiding conviction that the charge is true” (CALCRIM No. 220) any differently from “leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge” (CALJIC No. 2.90). (People v. Rogers (2006) 39 Cal.4th 826, 873 [“When reviewing ambiguous instructions, we inquire whether the jury was ‘reasonably likely’ to have construed them in a manner that violates the defendant’s rights”].)
II. The Prosecutor Did Not Commit Misconduct.
Maryland argues his conviction for attempted murder must be reversed because the prosecutor committed misconduct by misstating the law during closing argument. We conclude the prosecutor did not commit misconduct.
During closing argument, the prosecutor stated: “So, what evidence do we have of attempted murder in this case? Well, one direct step is that the defendant choked V[.] to the point of unconsciousness on at least three occasions, possibly more. She, in her interview at the hospital, she remembered five or six times. She testified to three specific times that she remembered. That is a direct step towards killing someone. [¶] Now, how do we know that at the time that he is taking that direct step, that he intends to kill her? Well, first, the defendant used such strength that he broke her larynx and her hyoid bone in her neck, and permanently damaged her voice box. That—and the defendant also, he bragged about his level of strength. That he broke a metal frame on the boxing bag. That he’s been trained to kill. That essentially his hands are lethal force. Knowing that he chose to use that force on his wife. Grabbing her by the neck and choking her. [¶] The defendant has demonstrated an extreme indifference to V[.]’s life in this case throughout the several days of beating, and without any regard for her pain and suffering.” (Italics added.)
Maryland argued the italicized portion of the above quote is a misstatement of the law of attempted murder. He waived any claim of prosecutorial misconduct, however, by not objecting to or moving to strike the challenged portion of closing argument, or requesting an admonition to the jury. (People v. Panah (2005) 35 Cal.4th 395, 462; People v. Hill (1998) 17 Cal.4th 800, 820.) Maryland has not met his burden of showing either exception to the waiver rule pertains: An objection or request for admonition would not have been futile, and an admonition would have been sufficient to cure any harm. (People v. Panah, supra, 35 Cal.4th at p. 462.) As a defendant representing himself, Maryland is held to the same standard of knowledge of law and procedure as is an attorney. (People v. Clark (1990) 50 Cal.3d 583, 625.)
If Maryland’s claim of prosecutorial misconduct were not waived, it would lack merit. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
There was no reasonable likelihood the jury in this case would have construed or applied the prosecutor’s comment that Maryland had demonstrated extreme indifference as a statement of the law on attempted murder. In context, the prosecutor’s challenged comment was part of the summation of evidence supporting that charge. The prosecutor identified the elements the prosecution had to prove beyond a reasonable doubt to convict Maryland of attempted murder, including intent to kill. After explaining the elements of attempted murder, the prosecutor reviewed the evidence supporting the charge. The prosecutor first mentioned that Maryland choked V. at least three times, breaking her larynx and hyoid bone, and then mentioned Maryland’s physical strength and ability to kill. Rather than recite the evidence of each and every cruel and inhuman act Maryland inflicted on V., the prosecutor summarized the evidence, drawing reasonable inferences from it, by saying Maryland demonstrated extreme indifference to V.’s life. (People v. Morales, supra, 25 Cal.4th at p. 44 [“At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom”].)
In addition, the trial court’s instructions made clear the prosecution had to prove specific intent as an element of attempted murder. (See People v. Schmeck (2005) 37 Cal.4th 240, 286.) “[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” (Boyde v. California (1990) 494 U.S. 370, 384.) Here, the trial court instructed the jury on the elements of attempted murder, and instructed the jury that attempted murder, and all crimes alleged in counts 1, 2, 4, 10, 11, 12, and 18, “require a specific intent or mental state.”
In sum, the prosecutor’s comment in closing argument that Maryland demonstrated an extreme indifference to V.’s life neither denied Maryland due process nor involved deceptive or reprehensible methods. “Defendant’s claim, that the prosecutor improperly stated that [Maryland demonstrated an extreme indifference to V.’s life], isolates a single statement which in context was clearly a statement of the prosecutor’s opinion of what the evidence established.” (People v. Clark, supra, 50 Cal.3d at p. 630.)
III. The Trial Court Did Not Err by Instructing the Jury the Prosecution Was Not Required to Prove Motive.
The trial court instructed the jury pursuant to CALCRIM No. 370 that the prosecution was not required to prove motive to commit any of the charged crimes. Maryland argues that instruction improperly lessened the prosecution’s burden of proof on the torture count and on the one-strike torture allegation because the crime of torture requires “the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (Pen. Code, § 206.)
In his reply brief, Maryland acknowledges that, after filing his opening brief, the California Supreme Court issued People v. Whisenhunt (2008) 44 Cal.4th 174. In People v. Whisenhunt, the court concluded a trial court does not err by instructing a jury that motive is not an element of murder by torture. (Id. at p. 218.) Thus, the trial court here did not err by instructing the jury pursuant to CALCRIM No. 370.
IV. The Evidence Did Not Support the Strike Prior Allegation.
The trial court found that Maryland had a prior strike conviction for battery with serious bodily injury. The only admissible evidence in support of that finding was a minute order showing that, on January 3, 1996, in the Municipal Court for the Los Angeles Judicial District, Maryland pleaded nolo contendere to violating Penal Code section 243, subdivision (d). Maryland argues, and the Attorney General concedes, the minute order was insufficient to prove a strike prior conviction because it did not prove that Maryland personally inflicted great bodily injury.
In People v. Barragan (2004) 32 Cal.4th 236, 239, the court held a retrial is permissible when an appellate court reverses a prior strike finding for insufficient evidence. Accordingly, we vacate sentence, and remand solely for the purpose of retrying the prior strike allegation and resentencing.
Disposition
The sentence is vacated and the matter remanded for retrial of the strike prior allegation and for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.