Opinion
D040740.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. BAO VU NGUYEN, Defendant and Appellant.
I
INTRODUCTION
A jury convicted Bao Vu Nguyen of the first degree murders (Pen. Code, §§ 187(a)) of his father and sister and found he used a knife to commit the crimes (§ 12022, subd. (b)(1).) The jury found the special circumstance alleged that Nguyen committed multiple murders (§ 190.2, subd. (a)(3)), one of which was perpetrated by lying in wait (id ., subd. (a)(15)). The court sentenced Nguyen to prison for two consecutive life terms, without the possibility of parole, plus two years for the knife use enhancements.
All statutory references are to the Penal Code.
Nguyen asserts reversal is required because the concept of felony murder was erroneously injected into the case when, for purposes of deliberation, the jury received an improperly edited written copy of CALJIC No. 8.10 [Murder—Defined] containing two bracketed references to the phrase "a felony dangerous to human life." We reject Nguyens claim and affirm the judgment.
II
FACTUAL AND PROCEDURAL HISTORY
In August 2001 Nguyen purchased a knife as part of his plan to kill his father Vinh, his mother Thu, and his sister Ngoc. Nguyen wanted to kill his father and sister because they treated him badly. Although Nguyen had a good relationship with his mother, he planned to kill her because she would be a witness to the other killings and would call the police.
About 4:30 a.m. on September 2, 2001, Nguyen awoke and told himself he was going to murder his family. In an attempt to avoid getting caught and to make his family believe a stranger was attacking them, he dressed in dark clothes and covered his head with a hooded jacket. He took the knife he recently purchased and went to Ngocs bedroom. He watched Ngoc sleep for awhile and then stabbed her in the neck. Ngoc screamed and tried to run out of the bedroom. Nguyen followed. When Nguyen caught his sister, he repeatedly stabbed her until she became quiet.
Nguyen, knife in hand, went into the hall where he encountered his 15-year-old brother Tuong. Nguyen grabbed Tuong. He was ready to stab Tuong, but released him. Nguyen turned his attention to his father. As Vinh stood at his bedroom door, Nguyen stabbed him. Because the knife lodged in Vinhs chest, Nguyen ran to the kitchen and got two more knives. Vinh followed. Nguyen again stabbed his father. Vinh screamed, "Bao is killing me."
Nguyen went to find his mother Thu and brother Tuong, who had barricaded themselves in Tuongs bedroom. He returned to the kitchen and stabbed his father several more times.
Nguyen then knocked on Tuongs bedroom door and asked to be let in. He said, "Mom, I just killed two people. Please forgive me. Please open the door. I dont know what to do. Im very scared. I was under pressure because of school." When his mother did not respond, Nguyen slid the two knives under the door and decided to run away. He changed his bloody clothes, packed other clothes and washed his hands. After again apologizing to his mother, Nguyen drove away in the family minivan.
Nguyen turned himself in to the Arizona police that same day. After waiving his Miranda rights, Nguyen confessed to killing his father and sister.
Miranda v. Arizona (l966) 384 U.S. 436.
Nguyen was prosecuted on a theory of premeditated first degree murder with express malice. His defense was that the crime occurred in the heat of passion. He claimed he was under extreme pressure from his father, who was angry with him for changing religions, performing poorly in school and spending too much money. Thu described Vinhs behavior toward their son as "emotionally grinding."
The court orally instructed the jury correctly and cautioned jurors to consider the instructions as a whole, each in light of the others. The court also told the jurors that in arriving at their verdict and any findings they were to make, they were to apply the law "as I now state it to you." A written copy of the instructions read by the court was given to the jury for deliberations. CALJIC No. 8.10 was not edited to exclude two bracketed references to the phrase "a felony dangerous to human life."
One of the references was stricken with a faint pencil line; the other was untouched.
III
DISCUSSION
Nguyen contends that when the court gave the jury the improperly edited written version of CALJIC No. 8.10, it: (1) injected the factually inapplicable felony-murder rule into the case, and (2) effectively permitted jurors to convict Nguyen under an illegal theory of criminal liability, that is, commission of murder during the inherently dangerous felony of assault with a deadly weapon. Nguyen argues the element of malice was removed from the jurys consideration, rendering his trial fundamentally unfair.
A. The Courts Duty to Properly Instruct
In a criminal case, the court must instruct on "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. " (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. Barker (2001) 91 Cal.App.4th 1166, 1172.) Jury instructions must be read together and understood in the context presented to the jurors, who are assumed to be intelligent and capable of understanding and correlating instructions. (People v. Martin (1983) 150 Cal.App.3d 148, 158.) We determine whether a jury is properly instructed from the entire charge of the court, not from consideration of parts of an instruction or from particular instructions. (People v. Hughes (2002) 27 Cal.4th 287, 360.)
B. The Courts Failure To Properly Edit CALJIC No. 8.10 Before
Providing It To The Jury For Deliberation Was Not Prejudicial Error
It is error to give an instruction that, while correctly stating a principle of law, has no application to the facts of a case. (People v. Eggers (1947) 30 Cal.2d 676, 687.) The error is one of state law to be analyzed under the traditional Watson test. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) Under that standard, reversal is required only if a review of the entire record affirmatively demonstrates it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (People v. Brown (1988) 46 Cal.3d 432, 446-447.)
People v. Watson (1956) 46 Cal.2d 818, 836.
In reviewing the record, we must examine the facts and instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. (People v. Hayes (1990) 52 Cal.3d 577, 642.)
Nguyen was prosecuted on a theory of premeditated first degree murder. In closing argument, the prosecutor emphasized the killings occurred with malice aforethought, explaining the jury must find Nguyen had the specific intent to kill to convict him of first degree murder. No reference was made to felony murder or to an assault with a deadly weapon. Defense counsels closing argument conceded Nguyen killed his father and sister, but urged the killings occurred in the heat of passion when Nguyen "snapped." Defense counsel also focused on the first degree murder elements of express malice and premeditation, arguing their absence as applied to his client. He made no mention of felony murder or to an assault with a deadly weapon.
The court correctly instructed on the elements of murder when it told the jury:
"Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder . . . .
"A killing is unlawful it if is neither justifiable nor excusable.
"In order, then, to prove this crime, each of the following elements must be proved:
"1. A human being was killed;
"2. The killing was unlawful; and
"3. The killing was done with malice aforethought.
"Malice is express when there is manifested an intention unlawfully to kill a human being. When it is shown that a killing resulted from the intentional doing of an act with express malice, no other mental state need be shown to establish the mental state of malice aforethought."
The court defined premeditation and deliberation and further told the jury:
"If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree."
"To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill."
The court gave no instruction on murder based on a felony murder theory, nor did it refer to or instruct on assault with a deadly weapon.
The jury received a copy of the instructions read by the court. The written version of CALJIC No. 8.10, setting forth the elements of murder, included
bracketed surplus language referring to a felony inherently dangerous to human life:
"Every person who unlawfully kills a human being with malice aforethought [a felony inherently dangerous to human life] is guilty of the crime of murder . . . .
"[A killing is unlawful, if it [is] [was] [neither] [justifiable] [ nor] [excusable]].
"In order to prove this crime, each of the following elements must be proved:
"1. A human being was killed;
"2. The killing was unlawful; and
"3. The killing was done with malice aforethought [a felony inherently dangerous to human life. _____ is a felony inherently dangerous to human life.]."
The People concede, and we agree, the court erred in failing to strike from the written instruction given to the jury any reference to "a felony inherently dangerous to human life." The felony murder doctrine was not part of this case and the language was surplusage.
However, the brief and inadvertent references to the language "a felony inherently dangerous to human life" could not have possibly confused or misled the jury so as to require reversal. (People v. Bloyd (1987) 43 Cal.3d 333, 352-353 [courts failure to strike reference to felony murder in written jury instruction was harmless under People v. Watson, supra, 46 Cal.2d at p. 836 ]; see also People v. Cain (1995) 10 Cal.4th 1, 37 [no reasonable likelihood "surplus" instruction would have misled a reasonable jury on special circumstances findings]; People v. Barker, supra, 91 Cal.App.4th at p. 1177.) Nguyen admitted to killing his father and sister, and the overwhelming weight of the evidence showed the killings occurred with premeditation and express malice. Both the prosecutor and defense counsel in their closing arguments emphasized the necessity of finding express malice for a first degree murder conviction, and no mention was made of the felony murder doctrine. (See People v. Kelly (1992) 1 Cal.4th 495, 526 [closing arguments correctly explaining relevant law considered in evaluating prejudice from erroneous jury instruction]; People v. Moore (1988) 47 Cal.3d 63, 87-89 [closing arguments show adequacy of challenged jury instruction].) The court read a correct version of CALJIC No. 8.10 and told the jury that in arriving at their verdict and findings they were to apply the law "as I now state it." The court gave no jury instructions on felony murder. Significantly, the jurors asked no questions during their relatively brief deliberations, showing the instructions they received were not confusing.
The editing of the written version of the CALJIC 8.10 sent to the jury room should have been more carefully completed. However, on this record, we do not believe it is reasonably probable a result more favorable to Nguyen would have occurred in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Bloyd, supra, 43 Cal.3d at p. 353.)
C. The Jurys Verdict Rested on a Proper Theory; any Error Caused by Improper Editing of CALJIC No. 8.10 Was Harmless Beyond a Reasonable Doubt
We disagree with Nguyens argument that the jurys receipt of the erroneous written instruction injected an illegal theory of murder into this case in violation of the merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522.
In Ireland, the defendant was convicted of second degree murder after he shot and killed his wife. The trial court instructed the jury it could return a second degree felony murder verdict based on the underlying felony of assault with a deadly weapon. (People v. Ireland, supra, 70 Cal.2d at p. 538.) On appeal, the Supreme Court reversed the conviction based on this erroneous instruction, reasoning that allowing use of the felony-murder rule for the underlying felony of assault with a deadly weapon would effectively preclude the jury from considering the issue of malice aforethought in all cases where homicide has been committed as a result of a felonious assault. (Id. at pp. 539-540.) The court restricted the scope of the felony-murder rule, declaring it inapplicable to those felonies that are "an integral part of" and "included in fact" within the homicide. (Id . at p. 539; see also People v. Hansen (1994) 9 Cal.4th 300, 312 [recognizing Supreme Court has declined to extend Ireland doctrine beyond context of assault].)
Here, the Ireland merger doctrine is inapplicable because the jury did not receive any instruction identifying an underlying felony for purposes of the felony-murder rule, and the written version of CALJIC No. 8.10 left blank the reference to "felony inherently dangerous to human life." (Cf. Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 667-668 [court violated Ireland merger doctrine by instructing on both malice and felony murder where it expressly identified assault with a deadly weapon as underlying felony].) Nguyen speculates the jury might have guessed the underlying felony was assault with a deadly weapon. However, Nguyen was not charged with assault with a deadly weapon, the prosecution did not rely on it as a trial theory, and counsel never mentioned it in their closing arguments. Under any reasonable reading of the entire charge to the jury, no underlying felony was presented to possibly remove the critical element of malice required for a murder conviction.
In reviewing the jury instructions in their entirety, we note the court gave CALJIC No. 17.10: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, that is, in this instance, two counts of murder, you may nevertheless convict him of any lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime." The court explained the crime of second degree murder is lesser to that of first degree murder charged in counts 1 and 2 and the crime of voluntary manslaughter is lesser to that of second degree murder. The court then instructed the jurors they could not convict Nguyen of a lesser crime unless they unanimously acquitted him of the greater crime. Thus, by convicting Nguyen of first degree murder, the jury necessarily found the requisite elements of malice, premeditation and deliberation.
Nguyen asserts the written version of CALJIC No. 8.10 received by the jury deprived him of his right to due process and rendered his trial fundamentally unfair. However, in light of counsels arguments, the correctness of the courts oral instructions that made no mention of felony murder, other proper instructions given and the verdicts returned (including the jurys true finding on the special circumstance of lying in wait), it is clear the jury found the murders were intentional and committed with express malice and premeditation and deliberation. Because the jurys first degree murder verdict rested on a proper theory (People v. Guiton, supra, 4 Cal.4th at pp. 1128-1129; Neder v. United States (1999) 527 U.S. 1, 9-10), we conclude any instructional error caused by improper editing of CALJIC No. 8.10 was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. and AARON, J.