P. v. Woodfork

Filed 9/28/06 P. v. Woodfork CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Ray Charles Woodfork of first degree felony murder (robbery), with a special circumstance that the murder was committed during an attempted robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17).)^[1]

On appeal, defendant contends the trial court erred (1) in instructing with CALJIC No. 2.51 on motive; (2) in instructing with CALJIC No. 2.61 that a defendant may simply rely on the prosecution’s evidence (after defendant had testified); (3) in imposing a parole revocation restitution fine when defendant was sentenced to life without the possibility of parole; and (4) in calculating defendant’s presentence custody credit. Defendant further contends that the first two alleged errors were cumulatively prejudicial. We find no prejudicial error regarding the first two contentions, and therefore find no cumulative error. We agree with the second two contentions, and modify the judgment accordingly. As modified, we affirm the judgment.

Background

On December 20, 2001, defendant fatally shot Roberto Granados-Arguello in the head. The victim had just cashed a check in a convenience store. The jury found that defendant was attempting to rob Arguello when he fired the gun.

At trial, defendant maintained that he was panhandling and that he fired the gun accidentally when Arguello suddenly reached for him. However, in a taped, pretext telephone conversation that defendant had with his ex-girlfriend--a tape the jury heard--defendant admitted that the shooting was neither self-defense nor an accident, that he had committed the crime because he needed the money, that he had melted down the pistol to dispose of the evidence, and that he felt remorse. The court sentenced defendant to life without the possibility of parole.

Discussion

1. CALJIC No. 2.51

Defendant contends the trial court erred in instructing the jury with CALJIC No. 2.51. We disagree.

As given, CALJIC No. 2.51 stated: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”

Defendant contends this instruction was erroneous in two respects: first, it suggested motive alone could establish guilt, thereby reducing the prosecution’s burden of proof; and second, it impermissibly invited the jury to find an intent to rob from his poverty alone (see People v. Wilson (1992) 3 Cal.4th 926, 939). Defendant notes that CALJIC No. 2.51 is unique among instructions on individual evidentiary circumstances in that it does not explicitly admonish that such a circumstance alone is insufficient to establish guilt.^[2]

Defendant acknowledges that the California Supreme Court has twice approved of the CALJIC No. 2.51 instruction--in People v. Snow (2003) 30 Cal.4th 43, 97-98 (Snow), and in People v. Prieto (2003) 30 Cal.4th 226, 254 (Prieto). However, defendant contends that neither Snow nor Prieto addresses his precise point.

In Snow, the Supreme Court noted that CALJIC No. 2.51 explicitly instructs that motive is not an element of the crime. (Snow, supra, 30 Cal.4th at pp. 97-98.) From this, Snow reasoned that it is highly unlikely that a jury would conclude that motive could establish all the elements of the crime. (Ibid.) Furthermore, said Snow, when CALJIC No. 2.51 is given with CALJIC No. 3.31 on the concurrence of act and intent, and with the instructions detailing the specific elements of the charged crime, it is even more unlikely that a jury would interpret CALJIC No. 2.51 as allowing motive alone to establish guilt. (Id at p. 98.) Here, the court instructed the jury on both CALJIC No. 3.31 and the specific elements of the crime.

In Prieto, the high court explained that a reasonable juror would not misconstrue a nearly identical former version of CALJIC No. 2.51 as shifting the burden of proof from the prosecution to a defendant. (Prieto, supra, 30 Cal.4th at p. 254.) Quoting from this court’s decision in People v. Estep (1996) 42 Cal.App.4th 733, Prieto stated, “‘CALJIC No. 2.51 [does] not concern the standard of proof . . . but merely one circumstance in the proof puzzle--motive,’” and “no reasonable juror would misconstrue CALJIC No. 2.51 as ‘a standard of proof instruction apart from the reasonable doubt standard set forth clearly in CALJIC No. 2.90.’” (Prieto, supra, 30 Cal.4th at p. 254, quoting Estep, supra, 42 Cal.App.4th at pp. 738-739.) The trial court here instructed with CALJIC No. 2.90.

We agree that neither Snow nor Prieto discusses how CALJIC No. 2.51 is unique among individual evidentiary circumstance instructions in that it does not expressly prohibit finding guilt based on motive alone. However, in light of the instructions mentioned above, a reasonable jury would not infer from this difference the permission to convict on motive alone. Thus we find that defendant’s insight does not sufficiently distinguish this case from Snow or Prieto.

We further find it unlikely that a reasonable jury would infer defendant’s guilt from his poverty alone, given the inculpatory evidence aside from defendant’s poverty, most prominently defendant’s admissions in his taped conversation with his ex-girlfriend. Furthermore, defendant used evidence of his poverty as his defense--i.e., that he was merely panhandling from the victim.

For the above reasons, we find the trial court properly instructed the jury with CALJIC No. 2.51.

2. CALJIC No. 2.61

Defendant contends the trial court erred prejudicially in instructing the jury with CALJIC No. 2.61, after defendant had testified. We disagree.

As given, CALJIC No. 2.61 stated: “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, [of the People] to prove beyond a reasonable doubt every essential element of the charge against him.

No lack of testimony on defendant’s part will make up for failure of proof by the People so as to support a finding against him on any essential element.”

Defendant argues that the jury may have inferred from this instruction that defendant deemed it necessary to testify to counter the strength of the prosecution’s evidence. We are not persuaded.

An “abstract” instruction is one which is legally correct but irrelevant to the case. (People v. Rowland (1992) 4 Cal.4th 238, 282.) Such instructions are usually harmless, given this context. (Ibid.) An abstract instruction may be prejudicial if it actually misleads the jury. (Ibid.)

Assuming for the sake of argument that the trial court erred in instructing with CALJIC No. 2.61, the error was at worst harmless surplusage. (See Use Note and Com. to CALJIC No. 2.61.) We see nothing in the record to suggest that the jury was misled by the instruction. It is just as likely that defendant benefited from the inclusion of CALJIC No. 2.61, as it reinforced to the jury that the prosecution has the burden to prove beyond a reasonable doubt every element of the crime charged against defendant. We further note that defense counsel did not object to this nonsubstantive instruction. (See § 1259.) Moreover, in closing argument, defense counsel argued along the lines of CALJIC No. 2.61, reminding the jury that the prosecution had the burden to prove the case, but that defendant wanted to testify--he wanted his chance to say what had happened.

Finally, we assume the jurors are “‘intelligent persons and capable of understanding and correlating all jury instructions which are given.’” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Thus, we assume the jury saw the instruction as irrelevant or surplusage and drew no conclusions prejudicing the defendant from it.

Assuming the instruction was error, we see no prejudice.

Finding that neither CALJIC No. 2.51 nor No. 2.61 was prejudicial, we reject the contention that, taken together, the two instructions were cumulatively prejudicial.

3. Parole Revocation Restitution Fine

The People and defendant agree that the trial court improperly imposed a $10,000 parole revocation restitution fine. Section 1202.45 specifies that such a fine applies only if the “sentence includes a period of parole.” The trial court sentenced defendant to life without the possibility of parole. Therefore, a parole revocation restitution fine should not have been imposed and we will order it stricken.

4. Presentence Custody Credit

The parties also agree that defendant should have been awarded 577 days of presentence custody credit rather than the 576 days specified in the abstract of judgment.

Disposition

We direct the trial court to amend the abstract of judgment by striking the section 1202.45 parole revocation restitution fine and by specifying that defendant is entitled to 577 days of presentence custody credit. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

DAVIS , Acting P.J.

We concur:

RAYE , J.

HULL , J.

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^[1] Undesignated section references are to the Penal Code.

^[2] Defendant cites CALJIC Nos. 2.03 (defendant makes false statement concerning the crime), 2.23 (believability of witness with felony conviction), and 2.52 (flight after crime) as examples of instructions foreclosing the use of the evidentiary circumstance by itself to establish guilt.