P. v. Juarez

Filed 1/29/07 P. v. Juarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Stephen Gildner, Judge.

Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Samuel Piilani Juarez was convicted of voluntary manslaughter and attempted voluntary manslaughter for killing Manuel Lopez and injuring Jose Luna when he drove his truck into them after a party. On appeal, he contends (1) the trial court erred by failing to respond properly to the jurys questions, (2) the trial court erred by instructing the jury with both alternative paragraphs of CALJIC No. 5.16, and (3) CALJIC No. 5.15 was misleading and lightened the prosecutions burden. We affirm.

PROCEDURAL HISTORY

On November 29, 2004, defendant was charged with murder (Pen. Code,  187, subd. (a); count 1)^[1]and attempted murder ( 664, 187, subd. (a); count 2). The information alleged as to both counts that the crimes were willful, deliberate and premeditated ( 189), and alleged as to count 2 that defendant caused great bodily injury ( 12022.7). The jury found defendant not guilty on count 1 and was unable to reach a verdict on count 2. The court declared a mistrial on count 2 and on the lesser offense to count 1.

On May 24, 2005, the district attorney filed an amended information charging appellant with second degree murder ( 187, subd. (a); count 1) and attempted murder ( 664, 187, subd. (a); count 2). The jury found defendant not guilty of these charges, but found him guilty of the lesser included charges of voluntary manslaughter ( 192, subd. (a); count 1) and attempted voluntary manslaughter ( 664, 192, subd. (a); count 2). The trial court sentenced defendant to the midterm of six years on count 1, plus one year on count 2, to be served consecutively.

FACTUAL SUMMARY

Prosecution Evidence

On the evening of July 17, 2004, Miguel Lasalde hosted a party in the backyard of a house on Hazel Street in Bakersfield.^[2] About 100 people attended the party, including Manuel Lopez and his brother, Robert Herrera. Juan Lopez, who lived two houses down the street, also went to the party with some friends. Defendant was there with his best friend, Chris Tune, and an acquaintance, Jason Foster.

As the party broke up at about 2:00 a.m.,^[3]approximately 15 people went down to Juan Lopezs house to gather in the front yard. At 28 years old, Juan was one of the oldest in the group. Also present were Juans younger brother, Alex Montoya, and Jose Luna, who was staying at Juans house.

Defendant got into his white Silverado pickup truck in front of the house. He burned his tires on the pavement, making a loud screeching noise and a big cloud of smoke. People told him to behave, stop doing that, its not cool, too late to be doing that. Defendant responded by burning his tires a second time.

Two brothers, Juan Ramos and Marcos Ramos, ran toward the truck and told defendant to stop burning his tires and to get out of there. Marcos hit the truck with his hand and made a loud noise. Defendant responded with profanity and told them to shut up. One of the Ramos brothers hit defendant through his open window. Juan Lopez and Jose Luna then approached the truck.

Defendant got out of his truck. His lip and nose were bleeding. He was angry and he approached the men in an aggressive manner, trying to engage them in a fight. Ten to 20 people gathered around the drivers side of the truck. Juan Lopez inserted himself into the situation because he was trained in martial arts. He was angry at defendant. He cursed at him and said, [I]ts not cool to be doing that in this neighborhood. Me and my friends live here and we try to take care of the block. In response, defendant called out to Juans brother, Alex, to fight him. Defendant said, I want to fight, I want to fight that guy right there one-on-one. Juan told defendant, No, its not going to happen. He said, Hes a minor and if anything is going to happen, its going to be between me and you. Juan told him to get in his truck, shut up and leave. Everyone was telling defendant to leave and that they did not want any problems. Defendant challenged them to fight one-on-one, saying, [L]ets fight, me and you, lets go at it.

Manuel Lopez and Robert Herrera moved to within several feet of the truck. Jose Luna pulled back his friends, the Ramos brothers, and pushed defendant away with his foot as he came at them. Jose Luna told everyone to calm down and back up. He told defendant to just get in his truck and leave.

When Juan Lopez saw Jose Luna push defendant away, Juan grabbed Jose and Juan Ramos to hold them back. He also grabbed Manuel Lopez, who wanted to speak to defendant but was not close enough to hit him.

At this point, defendants friends, Chris Tune and Jason Foster, came rushing in, pushing through the crowd and telling people to get back. Jason arrived first and shoved Manuel Lopez to the ground. Chris tried to make peace by pushing people back. He tried to hold defendant back and calm him down. He told him, Get in the truck, get out of here, just take off. Jose Luna helped Manuel up and pulled him to the front yard by the driveway and stayed with him.

Someone mentioned a gun, and defendant responded, Oh, you guys want to play with guns? and You want to see heat? Well, youll see heat. He moved toward the open door of his truck and appeared to be looking for something.^[4]

Defendant finally got back into his truck, which was still running. Then suddenly he revved the trucks engine and accelerated. The tires screeched and the truck took off. There was no one in front of the truck, but defendant turned the truck and drove straight toward Jose Luna and Manuel Lopez. Juan Lopez yelled, [W]atch out. Jose saw the truck coming at them. He and Manuel were standing side by side. Jose tried to push Manuel out of the way but the truck struck Manuel. Jose saw Manuels hands hit the top of the hood and his face go directly into the trucks grill. Then the truck hit Jose. He felt a tug on his leg, something hitting his back as he rolled on the ground and then the trucks tire running over the back of his legs.

When the truck jerked up, the screaming onlookers realized the truck was running over someone. After hitting the men, defendant veered back into the road and continued speeding down the street. He did not brake until he reached the intersection and turned. After defendant hit the men, someone fired two or more gunshots.

Manuel received multiple blunt injuries, lacerations, abrasions, and fractures to his head and body. The truck dragged him across the street. A young woman performed CPR on Manuel, but he died from massive head injuries. Jose suffered a fractured hip and broken vertebrae.

Officers responded to 911 calls received at 1:02 a.m. During the calls, the dispatchers believed they heard gunshots fired.

When defendant got home, he woke up his girlfriend and told her that six people had jumped him. He had blood on his face. She asked him what had happened. She thought it was odd that Chris was not with him. He responded that Chris had left him there and he was alone. He said he had been drinking but he was fine. He said people had been fighting with him. His girlfriend called Chris and asked, Whats going on, what happened? Defendant took the phone away from her and went outside. When he came back inside, he said everything was fine.

His girlfriend asked him why he had been fighting and he said someone hit his truck. He said he tried to fight the man one-on-one but he refused, so defendant got in his truck and came home. He never mentioned that he hit anyone with his truck or that anyone had a gun. A few hours after defendant came home, detectives arrived and took him to the police station.

Chris Tunes cell phone, which was seized after the incident, contained the following message left by defendant that night: Hey, dog, tell me how many I got, dog. If I didnt get enough, I am going back, late.

A detective examined defendants truck and determined that it had no mechanical problems and that the accelerator and brake lights functioned properly. There were no major dents in the truck. The crime scene contained two skid acceleration marks on the pavement. The first mark was 48 feet long and the second was 64 feet 6 inches long. Blood and fabric fragments were found under the truck.

The detectives took a photograph of defendant showing that he had a minor scratch above his eye and another red mark under his other eye. His lip was slightly swollen and bruised inside. He had a knot on his forehead.

The prosecution played the recording of defendants interview with the detectives. Defendant stated that he was playing with the white truck, acting like he was going to race the other driver. He burned his tires and someone approached and hit him through his open window. He got out of the truck and other men gathered and began hitting him. Chris Tune told him to get back into his truck because they could not defend themselves. Defendant wanted to fight, but Chris pushed him into his truck. The crowd began rushing his truck. People were hitting his truck. He was damn mad and pissed off. On his left, he saw a group of men who had assaulted him. He wanted to scare the one who had assaulted him and who had refused to fight him. They were about 10 to 15 feet from defendants truck. Defendant turned the wheel and aimed the truck directly at them. He put the accelerator to the floor, punched it, and veered to the left. As defendant accelerated, people scattered and defendant heard people hitting or kicking his truck. He did not think about stopping; he just floored it and kept going. Defendant admitted that he fully intended to drive his truck directly at the men, but he believed they would get out of the way and he had no intention of hitting anyone. He claimed he only wanted to scare them. He agreed with the detective that it was an intentional, reckless and stupid act.

Defense Evidence

Chris Tune testified that he and defendant were best friends. Chris, his girlfriend, Courtney, and Jason Foster went to the party on Hazel Street. Defendant came after Chris called and told him to join them at the party. When the party was ending, defendant and Arnold Lara, who also drove a white truck, were messing around, talking about who ha[d] a better truck or whatever and defendant burned his tires for a few seconds.

Chris Tune heard loud bangs and saw six to eight people running up to defendants truck and throwing things at the truck. He saw defendant get punched while he was still in his truck. Defendant got out of the truck and people were jumping him. Chris and Jason Foster ran down the street toward defendant. Manuel Lopez came at them and Jason hit him. Chris yelled at everyone to get back and he pushed people off of defendant. Chris was scared because he was in a bad neighborhood and eight men were jumping his best friend. Chris saw that Juan Lopez had a gun. Chris tried to convince defendant to get in his truck and leave.

When defendant got back in his truck, Chris turned and walked in the opposite direction toward his truck. He was anxious to get away from the situation as quickly as possible. Defendant immediately hit the gas and took off. After he sped down the street, two shots were fired and when Chris turned around Juan Lopez was pointing a gun in his face. Some of the men said, Shoot that white boy, kill him. Chris gathered Jason and Courtney and went back to his truck. Juan pointed the gun at him again while Juans friends yelled for him to shoot and to kill.

On the way home, Chris got a call from defendant, but their conversation was cut short when Chris was pulled over by the sheriffs deputies, who confiscated his cell phone and took him to headquarters.

Jason Foster testified that he met defendant the night of the party. Jason went to the party with Chris and Courtney. The party was in a neighborhood that was low income with a lot of graffiti.

When the beer ran out, the party started to wind down and people began to leave. Jason, Chris and Courtney were getting into Chriss truck and defendant was getting into his. Defendant burned his tires on the pavement for two or three seconds. People yelled at defendant to stop, but he did it again for eight to ten seconds. Ten or twelve men approached defendants truck. Four or five of them kicked the door of his truck and began to punch him through the open window. Jason and Chris jumped out of their truck and ran toward defendants truck. Manuel Lopez was hitting and swinging at defendant. Jason hit Manuel hard enough to knock him out. Chris grabbed two of the men while Jason fought off the rest of the group. Defendant, who had gotten out of his truck, had blood all over his face and shirt.

Some of the men said defendant and his friends should get out of there because it was their street and defendant was being disrespectful and the men would blast them. One man kept telling his friend to smoke defendant and Jason. Juan Lopez had a revolver and he was telling his friends to make defendant leave because they did not want any problems.

The situation was very volatile and Jason was afraid. He wanted to leave because someone had threatened to use a gun. When defendant finally got back into his truck, Jason and Chris started to leave. Jason hoped the trouble was over. There was no one standing in front of defendants truck, but defendant accelerated, veered hard to the left and drove over two men. One man was dragged for about 30 feet. Defendant then veered hard to the right and drove down the street. He did not let up on the throttle until he reached the intersection.

Courtney ran to Manuel Lopez and tried to resuscitate him. Jason ran to get Courtney but she would not leave. Juan Lopez approached them and put a revolver in Jasons face and chest, screaming at him to leave and threatening to shoot him in the face. Juan fired a shot in the air. As Jason pulled Courtney away, he heard someone say that Manuel was dead and Juan should shoot Jason in the face. Someone said, [S]moke the white boy. Juan Lopez pointed the gun at Jason three or four times. When Chris ran up, Juan pointed the gun at him too.

Jason, Chris and Courtney left. During their drive home, Chris received a call from defendant. Chris said to defendant, Dude, ... what did you Fing do? You Fd up. Chris also said, You need to find the cops, you need to do something, dude, so dont call my phone.

Defendant testified on his own behalf. He said he had been working all day when Chris called and told him to come to a party. Defendant was tired, but Chris convinced him to come and gave him directions. As defendant drove into the neighborhood, he noticed some graffiti on the fences and a bench. When he got to the party, he hung around with Chris and Courtney. As defendant was getting ready to leave, Arnold Lara was in a white truck next to defendants truck. Defendant was playing with the white truck by revving his engine and burning his tires like he was going to race. After a few seconds, he did it a second time.

Someone started banging on defendants truck and someone punched him through his open window. Defendant felt the need to defend himself and he got out of his truck. He was immediately swarmed by several men who were hitting him. The men had shaved heads, tattoos and baggy pants. Most of them were Hispanic and looked like gangsters to defendant. Then Chris Tune pulled the men off of defendant and tried to protect him from getting hit any further. As Chris was doing so, one man hit defendant three or four more times. The men were yelling at him that it was their neighborhood and they were going to beat him up again. Defendant said, How come you guys jumped me, why dont you guys fight me one-on-one, why dont you guys be men. When someone mentioned a gun, defendant went to his truck and acted as though he had something. Chris told him he needed to get out of there or the men would kill them. Defendant got into his truck and the group stepped up. Defendant feared for his life and thought the men would jump him or shoot him, so he took off. When he did, he turned the truck to the left to scare the men so they would not jump him again or shoot him. He put his accelerator to the floor. He did not know that he hit anyone. He did not feel his car rise up as he ran over the men and he did not feel anyone hit his front grill. He drove away and did not brake until the end of the street. He called Chris to make sure he was okay and Chris told him he had hit someone.

Defendant explained that he did not sound afraid on the message he left on Chriss phone because he was trying to act tough and not sound like a sissy to his friend. He did not want Chris to think he was afraid of the men.

When defendant got home, he woke up his girlfriend and started cleaning up his face. They agreed to talk the next day and they went to bed. He woke up when the officers arrived at 3:30 or 4:00 a.m.

Defendant testified that when he was interviewed by the detectives, he agreed with the officers that he had committed an intentional, reckless act because he believed they would let him go home. He testified that he intended to drive the truck toward the group of people because he was in fear for his life.

Juan Ramos testified that he was living at Juan Lopezs house on the night of the party. He smoked marijuana then went to the party with Juan Lopez. Juan Ramos drank at least five beers at the party. When Juan Ramos returned from buying beer, everyone was out of their cars and he joined his brother Marcos at defendants truck. Juan Ramos did not hit or kick defendant, but he did see that defendants face was bloody. People were telling defendant to leave and he was very upset. People were holding him back. When he got back into his truck, he floored the truck and hit two people.

Miguel Lasalde testified that he hosted the party at his aunts house. He and Chris Tune were good friends. Miguel knew defendant through Chris and he met Jason the night of the party. After the party, Miguel saw defendant and Arnold in their white trucks, next to each other. Defendant burned his tires for a few seconds. He moved his truck slightly and burned his tires again. Alex Montoya and Juan Ramos approached defendants truck. They hit the truck, hit defendant, then pulled him out of the truck and started to hit and kick him. Manuel Lopez and Juan Lopez joined in. Juan Lopez had a gun. Defendants face was bloody and he was spitting blood as Miguel, Chris, Jason and Arnold tried to get him back into his truck. Miguel was trying to diffuse the situation and get everyone to leave. Juan Lopez told his younger brother, Alex, to get the gun. Alex ran to the house and returned with the gun.

Eventually, defendant got back into his truck. He punched the accelerator, fishtailed a little, hit the two men and drove down the street. Miguel saw Juan Lopez fire two gunshots into the air.

As Miguel and a friend were helping Jose Luna, Juan Lopez approached Miguel, pointed the gun in his face and accused him of being defendants friend. Miguel feared for his life. He responded, I dont know him, he is not my friend. Earlier, Miguel saw Juan Lopez point the gun at Chris Tune and Jason Foster.

Michael Martinez, defendants uncle, testified that Juan Ramos later explained to him what had happened that night. Martinez did not reveal that he was defendants uncle. Juan Ramos told him that there was a guy driving crazy up and down the street, burning scratch in a truck and that they approached it and pulled the guy out and started beating him up. Juan Ramos, however, did not mention a gun. Lilly Olmos, defendants grandmother, was also present. She asked Juan Ramos if they would have killed defendant had he stayed around that night. Juan looked her straight in the face and said, Yes.

A resident in the neighborhood testified that there was graffiti throughout the neighborhood. She did not consider Hazel Street a peaceful street. There were parties and drinking in the front yards. She explained that the people around Juan Lopezs house had shaved heads and tattoos and they wore baggie pants and undershirt tank tops.

Rebuttal Evidence

A detective testified that Jason Foster told him the men who were fighting walked away from defendants truck after he got in it. Jason thought the incident was over. The detective said Chris Tune never mentioned a gun being placed to his head.

DISCUSSION

I. Trial Courts Response to Jurys Questions

On the second day of deliberations, the jury sent the court a note requesting further definition of (1) with an intent to kill, or with conscious disregard for human life, (2) mental state as it pertains to this case, and (3) sufficiency of circumstantial evidence to prove specific intent or mental state. The court discussed the questions with the attorneys without objection from either. The jurors were brought back into the courtroom and the following took place:

[THE COURT:] Mr. [Foreman], I have your latest question[s]. ... [] Number one reads Can you further define with an intent to kill or with conscious disregard for human life. The answer is no, I cant further define it. All I can do at this point is reread it or direct you to instructions that, by number or by text, whatever you prefer, that deal with that issue.

As to number two, Mental state as it pertains to this case. Same situation, sir.

As to number three, Further define sufficiency of circumstantial evidence to prove specific intent or mental state. No, I cant deviate from the instructions, so I can again, and I will, if you would like, and I have met with counsel and we believe we have isolated the instructions that speak to those three issues that you raise for us and I can refer you to those. You do have them back there. [] I can reread them or I can leave it as it is right now. Its up to you; whatever you prefer.

FOREPERSON: I think you can leave it as it is then.

THE COURT: Okay. All right. Well, we will be here for you then. Okay. We can take them back to the jury deliberation room.

The court then asked whether either attorney wanted to state anything for the record and both again declined.

Defendant contends the trial court violated its statutory obligations and failed to assist the jury in its understanding of the law applicable to the case. He argues that the courts refusal to give additional explanations violated section 1138, which requires the court to provide the jury any desired information on any point of law arising in the case.^[5]

In People v. Beardslee (1991) 53 Cal.3d 68, the jury submitted an inquiry about the definition of premeditation and deliberation. The court responded without reflection and told the jury that it would not explain any of the jury instructions. On appeal, the defendant claimed the trial court violated section 1138. The Supreme Court held that the court erred in failing to consider the jurys question, but it concluded the error was harmless. The court explained that the trial court

has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] [A] court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)

Here, the trial court fully instructed the jury on intent and mental state. The jury was also provided a written copy of the instructions. The court explained that it could not deviate from the definitions in the instructions and advised the jurors to reread the instructions. Defense counsel did not object and the jury submitted no further questions. The court did not throw up its hands, but consulted with counsel and carefully considered how it should respond to the jurys inquiries. Where, as here, the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] [The court] fulfilled that duty, and no error or prejudice appears. (People v. Gonzales (1990) 51 Cal.3d 1179, 1212-1213.)

Defendant also directs us to People v. Thompkins (1987) 195 Cal.App.3d 244 (Thompkins), in which the trial court responded with a terse negative to a deadlocked jurys question about whether heat of passion and premeditation interrelate. (Id. at p. 250.) On appeal, the court held that this response was prejudicially erroneous for several reasons. First, the response itself was incorrect because the two concepts are related in that they are mutually exclusive. Second, the jurys inquiry was less than clear and the court should have asked the jury to clarify it. Third, the trial court failed to thoughtfully consider and respond to the underlying source of the jurys confusion. Finally, the jury was deadlocked, and the evidence could have supported a conclusion that the defendant acted in the heat of passion. (Id. at pp. 250-242.)

Defendant asserts that, as in Thompkins, the trial court in this case failed to consider the motivation behind the jurys questions regarding its fundamental misunderstanding of the legal concepts involving mental state. He further argues the court failed more grievously than the court in Thompkins because it did not provide even a perfunctory answer. Thompkins is distinguishable from this case because the trial court here thoughtfully considered how to respond to unambiguous jury inquiries and gave responses that were neither perfunctory nor misleading.

In sum, we see no error in the trial courts response to the jurys questions. The court reflected on the questions, discussed them with the attorneys, and directed the jurors to instructions that provided complete and accurate definitions.

II. CALJIC No. 5.16

After the court instructed that the killing was justifiable if it was committed to thwart a forcible and atrocious crime by the victim (CALJIC No. 5.13), the court defined a forcible and atrocious crime, as follows:

A forcible and atrocious crime is any felony that by its nature and the manner of its commission threatens or is reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury.

Murder is a forcible and atrocious crime. (CALJIC No. 5.16.)

Defendant contends the trial court erred by instructing the jury with both of these paragraphs of CALJIC No. 5.16. He argues the paragraphs are alternative definitions and only the first paragraph should have been given because the second paragraph suggested to the jury that only murder, and not assault with a deadly weapon, can be a forcible and atrocious crime, thereby limiting defendants defense and lightening the prosecutions burden. Defendant urges that this alleged error requires Chapman review.^[6]

Defendant is correct that the paragraphs of CALJIC No. 5.16 are alternative definitions, but we do not agree that the courts reading of both paragraphs resulted in reversible error. Defendant invokes the maxim of statutory construction expressio unius exclusio alterius est, under which the enumeration of things to which a statute applies is presumed to exclude things not mentioned. (United Farm Workers of America v. Agricultural Labor Relations Bd. (1995) 41 Cal.App.4th 303, 316 [the statutory construction doctrine of expressio unius est exclusio alterius means the expression of certain things in a statute necessarily involves exclusion of other things not expressed].) Under the circumstances here, however, the construction that only murder is a forcible and atrocious crime would be both nonsensical and illogical because the mention of murder immediately followed the plain statement that any felony with certain characteristics is a forcible and atrocious crime. We believe a reasonable juror would have assumed the court was simply giving an example of a forcible and atrocious crime, and we see no probability that a reasonable juror would have interpreted the instruction to mean that onlymurder is a forcible and atrocious crime. The instruction did not include the term only or any other limitation, and such an interpretation would have directly contradict the immediately preceding paragraph.

Furthermore, defendant was free to present evidence and to argue that he feared an assault (or a murder) that was forcible and atrocious and that he drove into Manuel Lopez and Jose Luna to thwart that forcible and atrocious crime.

For all of these reasons, we conclude any error in the trial courts reading of both paragraphs of the CALJIC No. 5.16 was harmless under any standard, including the Chapman harmless-beyond-a-reasonable-doubt standard.

III. CALJIC No. 5.15

The trial court also instructed the jury with CALJIC No. 5.15, as follows:

Upon a trial of a charge of murder, a killing is unlawful if it was not justifiable or excusable. [] The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable or excusable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty.

Defendant contends that under the facts of this case, CALJIC No. 5.15 misled the jury and impermissibly lightened the prosecutions burden of proving the homicide was unlawful because the instruction failed to inform the jury that its principles applied equally to manslaughter cases. Defendant adds that [e]ven if the jurors somehow concluded the principles of justification and self-defense applied to the lesser included offense of manslaughter, [the jurors] were left with the question of what burden of proof they were required to use and who bore that burden.

In People v. Adrian (1982) 135 Cal.App.3d 335 (Adrian), the court held that, upon request, an instruction such as CALJIC No. 5.15 should be given not only for murder but for any assault crime. (Adrian, supra, at pp. 336, 340.) Adriancharacterized CALJIC No. 5.15 as a pinpoint instruction because it embodies an allocation of the burden of proof by telling the jury that the People bear the burden of persuasion on the issue that the instruction pinpoints. It does not pinpoint specific evidence, but pinpoints the theory of the defendants case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) As such, it must be given only on request, not sua sponte. (See People v. Hughes (2002) 27 Cal.4th 287, 361.) Here, because there was no request for a modified form of CALJIC No. 5.15 to refer to manslaughter, the trial court did not err in failing to give it.

Moreover, even when the defense has requested CALJIC No. 5.15 and the court has refused to give it, the failure has been found to be harmless if the jury was otherwise properly instructed on the burden of proof. (See, e.g., People v. Wittig (1984) 158 Cal.App.3d 124, 135-136 [error in failing to give CALJIC No. 5.15 harmless where jury was instructed with CALJIC Nos. 2.90 and 2.01]; Adrian, 135 Cal.App.3d at p. 342 [same].) Here, the trial court instructed with CALJIC No. 2.90,which fully apprised the jury that the prosecution had to prove defendants guilt beyond a reasonable doubt, as well as with CALJIC No. 2.01, which further told the jury that each fact on which an inference essential to establish guilt necessarily rests must be proved beyond a reasonable doubt. The court also instructed that [h]omicide is the killing of one human being by another, either lawfully or unlawfully. Homicide includes murder and manslaughter, which are unlawful, and the acts of excusable and justifiable homicides, which are lawful. (CALJIC No. 8.00.) In addition, the court informed the jury that it could convict defendant of any lesser crime only if it was convinced beyond a reasonable doubt that he was guilty of the lesser crime. (CALJIC No. 17.10.) Together, these instruction were sufficient to apprise the jury of the prosecutions burden of proving beyond a reasonable doubt that the killing was unlawful.^[7]

IV. Cumulative Error

Finally, defendant contends the cumulative impact of the instructional errors requires reversal. We disagree. We have found either no error or no prejudice and therefore defendants case was not prejudiced by an accumulation of error. (See People v. Samayoa (1997) 15 Cal.4th 795, 849.)

DISPOSITION

The judgment is affirmed.

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Kane, J.

WE CONCUR:

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Harris, Acting P.J.

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Dawson, J.

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^[1] All statutory references are to the Penal Code unless otherwise noted.

^[2] When asked about the neighborhood, a detective testified that he would not be out on that street at night unless he was law enforcement. Another detective testified that there had been a number of violent incidents in that neighborhood over the years.

^[3] The 911 call was received at 1:02 a.m.

^[4] Juan Lopez testified that he did not own a gun or possess a gun that evening.

^[5] Section 1138 reads: After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.

^[6]Chapmanv. California (1967) 386 U.S. 18.

Appellant relies on this dictum in People v. Lang (1989) 49 Cal.3d 991: CALJIC No. 5.16 provides alternative definitions of the term forcible and atrocious crime. The jury may be instructed that the term means any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to cause in him a reasonable fear of death or great bodily injury, or that certain felonies are forcible and atrocious crimes as a matter of law. (Id. at p. 1022, fn. 14.)

^[7] Defendant asserts that the only reason the Adrian court found the error harmless was the trial courts instruction with CALJIC Nos. 2.01 (sufficiency of circumstantial evidence), and 5.30 (self-defense against assault). He distinguishes this case from Adrian on two points. First, the jury here apparently had trouble understanding CALJIC No. 2.01 because it asked for further definition of the sufficiency of circumstantial evidence to prove specific intent or mental state. As we have explained, the trial courts direction of the jurors back to the definition in the instructions already given to them was adequate in this situation.

Second, defendant claims the jury here was not adequately instructed with CALJIC No. 5.30 because the trial court misspoke when it read CALJIC No. 5.30. The court stated: It is unlawful for a person who is being assaulted to defend himself or herself from an attack . (Italics added.) The trial courts misreading of an instruction is at most harmless error when the written instruction received by the jury is correct, as it was in this case. (People v. Box (2000) 23 Cal.4th 1153, 1212; People v. Osband (1996) 13 Cal.4th 622, 687 [in case of conflict, written instructions prevail over oral ones]; People v. Flood (1998) 18 Cal.4th 470, 502-503 [instructional error improperly describing or omitting an element of an offense, like other trial errors, is subject to harmless error analysis under Chapman]).

Furthermore, there is no reasonable likelihood the jurors would have been confused by the obvious mistake; common sense and logic would have suggested the court simply made an inadvertent slip. The remainder of the instruction stated the opposite. Any attentive juror would have realized that, as read, the instruction made no sense and would have looked to the written version for clarification. We presume the jury was guided by the written instructions. (People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.) For these reasons, the courts misreading of CALJIC No. 5.30 was harmless beyond a reasonable doubt. (See, e.g., People v. Long (1970) 6 Cal.App.3d 741 [omitted not from may not establish guilt]; People v. DeRango (1981) 115 Cal.App.3d 583, 591 [omitted not at end of limiting instruction]; People v. Ghent (1987) 43 Cal.3d 739, 763 [omitted un from unreasonable].)