P. v. Gomez

Filed 5/1/06 P. v. Gomez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Manuel Gomez appeals the judgment entered after a jury convicted him of attempted murder (Pen. Code^[1], §§ 187, 664). The jury also found true the allegations that in the commission of that offense Gomez personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). He was sentenced to 32 years to life in state prison. He contends the trial court committed reversible error in responding to the jury's questions seeking clarification of the written instructions on circumstantial evidence (CALJIC No. 2.01) and reasonable doubt (CALJIC No. 2.90). We affirm.

FACTS AND PROCEDURAL HISTORY

Because the facts underlying the conviction are irrelevant to the appeal, we need not cite them in detail. In the early morning of January 1, 2004, Gomez got into a fistfight with Thomas Perry in the parking lot of a Paso Robles bar. Later that morning, Perry was shot several times as he was leaving a friend's house. Perry subsequently identified Gomez as the shooter. Bullets and shell casings recovered from the scene were later determined to match the model of a firearm that Gomez purchased in 1993. Gomez denied that he shot Perry or possessed a gun.

At the conclusion of the trial, the jury was given instructions that included the standard instructions on circumstantial evidence (CALJIC No. 2.01)^[2] and reasonable doubt (CALJIC No. 2.90).^[3] During deliberations, the jury submitted a note to the court stating: "Please clarify the weight attached to circumstantial evidence. [¶] Please clarify 'Reasonable Doubt' in layman's terms."

After the jury was called into the courtroom, the court stated: "I got your question which is, 'Please clarify the weight attached to circumstantial evidence.' [¶] And I know you have the instructions in the room with you. You have undoubtedly read them a number of times. The same is true of reasonable doubt. So those are the instructions that the law requires that you be given. [¶] Is it something where you want me to explain the language? I mean, I don't want you to tell me exactly what you want yet. I am trying to figure out what it is you do want, because those instructions are just - - they have been in effect for a long time." The jury foreman asked the court if it could provide "practical examples" of reasonable doubt, and the court responded that it could not. The foreman then asked the court if it could "expand upon" the instructions it had been given regarding circumstantial evidence, to which the court responded, "I can't. You know, the attorneys argued those instructions. They told you that there are two aspects of it, and it relates to circumstantial evidence, and that if there are two reasonable interpretations, one pointing to the defendant's guilt, one to his innocence, you adopt that which points to his innocence, reject that one that points to his guilt. But if the reasonable - - if there is one reasonable interpretation, then you adopt that. [¶] And I can't really go any further than what the instruction says. I can reread it to you, but that is not going to do you any good, because you have already read them. I want to try to help you, if I can, but I am really restricted."

When the foreman asked the other jurors whether any of them could "articulate it any better, either one of those, circumstantial evidence or reasonable doubt," the court told him, "I don't want you to deliberate and talk about it in here. I am just addressing you right now, Mr. [jury foreman]. . . . I can't have you deliberate in here. . . . [¶] . . . Another option is you could hold the jurors and be more specific on here and write it down for me, and then I might be able to . . . help you. If I can legally, I certainly will, but the problem is I need to talk to the attorneys before I really answer your questions, especially if I go outside what instructions say. I need to talk to them first. . . . [¶] . . . What we will do is, I will give you this back and you can ask -- some of them I think wanted to say something to you. So write down what they are saying in terms of the instruction, . . . and then I will try to see if I can answer it. I mean, it is going to be hard for me to do that, to be honest with you, because . . . these instructions . . . have been given for a long time." The foreman indicated that he understood the court's position, and the jury returned to the deliberation room. Approximately 15 minutes later, the jury submitted a note stating, "Your honor, you answered our questions. Thank you."

The following afternoon, the jury reached its verdict finding Gomez guilty of attempted murder and finding true the special allegations.

DISCUSSION

Gomez does not dispute that the California Supreme Court has repeatedly rejected the claim that CALJIC No. 2.01 creates an unconstitutional mandatory presumption of the defendant's guilt to the extent it directs the jury to choose a reasonable conclusion over an unreasonable one in evaluating circumstantial evidence. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 637, and cases cited therein.) He nevertheless contends that the trial court created such an impermissible presumption in this case in attempting to respond to the jury's request for clarification of the instruction. Gomez argues that "[s]ince the jury's questions asked for clarification of the weight to be given circumstantial evidence, the court's abbreviated response--that if they found a single reasonable interpretation of the circumstances they had to adopt it--resulted in wrongfully suggesting to the jury a shortcut to a guilty verdict by skipping mention of their responsibility to also measure the prosecution's evidence against the requirement of proof beyond a reasonable doubt."

We reject Gomez's claim that the jury was misled by the court's comments. It is well settled that the correctness of jury instructions must be determined from the entire charge of the court, and not merely a consideration of a particular instruction or parts thereof. (See, e.g., People v. Wilson (1992) 3 Cal.4th 926, 943.) Moreover, the jury was also instructed "not [to] single out any particular sentence or any individual point or instruction and ignore the others" in its deliberations. (CALJIC No. 1.01.) Accordingly, a reasonable juror would not have construed the court's failure to expressly refer to the reasonable doubt burden of proof as an indication that it did not apply to the jury's consideration of the weight to be given to circumstantial evidence in the case.^[4]

In any event, any error in failing to expressly refer to the reasonable doubt burden of proof as it relates to the consideration of circumstantial evidence would have been harmless. Indeed, that claim was essentially rejected in People v. Watson (1956) 46 Cal.2d 818. In addition to its seminal definition of harmless error, the Watson court also applied that definition to conclude that the failure to give former CALJIC No. 28, which provided in pertinent part that "'each fact which is essential to complete a chain of circumstances that will establish the defendant's guilt'" must be proved beyond a reasonable doubt, was harmless. (Id., at p. 831.) The court reasoned that "the jury here was correctly instructed on the doctrine of reasonable doubt [citations], the law applicable where evidence is susceptible of different constructions [citation], the principle that circumstantial evidence of defendant's guilt must be inconsistent with any other rational hypothesis [citation], and other related matters . . . . Under these circumstances, it does not appear here that the court's failure to give a further instruction substantially in the language of CALJIC No. 28 has 'resulted in a miscarriage of justice'

. . . . [Citation.]" (Id., at pp. 831-832.) It is because of Watson that the language of former CALJIC No. 28 was incorporated into the modern standard circumstantial evidence instruction embodied in CALJIC No. 2.01. Because the court in that case concluded that the failure to give any instruction pinpointing the burden of proof as it relates to circumstantial evidence was harmless error, it necessarily follows that any error in failing to reread an instruction that has already been given would also be harmless. (Ibid.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Susan Pochter Stone, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, Ryan B. McCarroll, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code.

^[2] That instruction states: "[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

^[3] That instruction provides that "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined 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 the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

^[4] The People's contention that Gomez forfeited his claim because he did not ask the court to repeat the entire instruction to the jury fails to account for the fact that neither Gomez nor his attorney was present when the court made its comments.