P. v. Young

Filed 3/23/06 P. v. Young CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.

A jury convicted Cleotha Young III of five offenses: (1) possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 (count 1 of the amended information); (2) possession of a controlled substance while armed with a loaded firearm in violation of Health and Safety Code section 11370.1, subdivision (a) (count 2); (3) simple possession of marijuana in violation of Health and Safety Code section 11357, subdivision (b) (a lesser included offense of count 3); (4) possession of a firearm by a felon in violation of Penal Code^[1] section 12021, subdivision (a)(1) (count 4); and (5) misdemeanor child endangerment in violation of section 273a, subdivision (b) (a lesser included offense of count 5). The jury also found true the enhancement allegation that Young was armed with a firearm within the meaning of section 12022, subdivision (a)(1) when he committed the crime charged in count 1.

Following a bifurcated bench trial, the court found true the allegations that Young had (1) a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668; and (2) a prison prior within the meaning of sections 667.5, subdivision (b), and 668. The court sentenced Young to an aggregate term of 10 years 4 months in state prison.

Appealing the judgment of conviction, Young contends (1) the court prejudicially erred by adding its own colloquial "gloss" to standard jury instructions pertaining to circumstantial evidence (CALJIC No. 2.01), willfully false statements by a witness (CALJIC No. 2.21.2), credibility (CALJIC No. 2.27), and reasonable doubt (CALJIC No. 2.90), causing the jury to be misinformed about the law; (2) his convictions of counts 2 and 4, and the jury's true finding on the count 1 gun enhancement allegation, must be vacated because the court erroneously instructed the jury that Young had stipulated that he possessed the firearm and knew of its presence, and the court thereby effectively gave a directed verdict; and (3) the jury's true finding on that enhancement allegation must be set aside under People v. Pitto (2005) 133 Cal.App.4th 1544 (Pitto), review granted February 8, 2006, S139609, because the court prejudicially erred by using CALJIC No. 17.15, which Pitto held is an incorrect statement of the law because it eliminates the "facilitative nexus" aspect of the "in the commission of" element of CALJIC No. 17.15.^[2]

We conclude the court's error in orally instructing the jury about a nonexistent stipulation requires reversal of Young's convictions of counts 2 and 4, and of the jury's true finding with respect to the count 1 gun enhancement allegation. Accordingly, we reverse those portions of the judgment and remand the matter for further proceedings.

FACTUAL BACKGROUND

A. The People's Case

In August 2004 the police searched the residence of Sheril Walsh. At the time of the search, Young had been living with Walsh and her children for at least two weeks. Walsh's children were present in the house. In the kitchen, the police found two "cookies" of cocaine weighing a total of 5.89 grams, cocaine residue on the counter, some marijuana, a digital scale, and a small manual scale. On an upper shelf in the bathroom, the officers found a loaded revolver and a box of ammunition. When questioned by the police who had advised him of his Miranda^[3] rights, Young admitted the cocaine was his and said he was not selling it. Young also admitted that the gun and ammunition belonged to him and Walsh.

B. The Defense

Walsh testified on Young's behalf. Young was the father of her two youngest children. Walsh claimed that Young did not live with her, but only came over to watch her children during the day. She stated that the cocaine and gun belonged to her, and she had recently begun selling drugs. She claimed that Young did not know about the presence of the gun and drugs in the house.

Young testified on his own behalf. He stated that he did not know about the presence of the gun in the home, and it did not belong to him. He stated he was unaware of the presence of the cocaine base in the house. He also stated that the backpack containing the marijuana belonged to a friend, and he (Young) did not know that the backpack contained marijuana.

DISCUSSION

I

THE COURT'S INSTRUCTIONAL "GLOSS"

Young contends the court prejudicially erred by adding its own colloquial gloss to standard jury instructions pertaining to circumstantial evidence (CALJIC No. 2.01), willfully false statements by a witness (CALJIC No. 2.21.2), credibility (CALJIC No. 2.27), and reasonable doubt (CALJIC No. 2.90), causing the jury to be misinformed about the law. We reject this contention.

A. Forfeiture

The People assert that because he failed to object to the court's jury instructions, Young waived his claims of instructional error. Section 1259, however, provides: "Upon an appeal taken by the defendant, the appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (Italics added.) Here, we conclude Young may properly raise these claims on appeal despite his failure to object at trial.

B. CALJIC No. 2.01

Young maintains the court prejudicially erred by elaborating on CALJIC No. 2.01, the standard jury instruction that pertains to the issue of the sufficiency of circumstantial evidence. We conclude the court did not err.

1. Background

CALJIC No. 2.01 provides in part:

"[I]f 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." (Italics added.)

When it instructed the jury, the court did not read verbatim this portion of CALJIC No. 2.01. Instead, the court gave the following modified version of CALJIC No. 2.01:

"So we observe that if the circumstantial evidence as it relates to a particular crime, an element of the crime or an allegation, if that circumstantial evidence permits of two reasonable interpretations, one which would lead to a finding of guilt or a finding of true, but another reasonable interpretation which would lead you to a finding of not guilty or not true, of course you have to accept that interpretation which--that reasonable interpretation which leads you to a finding of not guilty or not true. After all, that's the classic definition of reasonable doubt. But that's if both interpretations are reasonable." (Italics added.)

2. Analysis

Young asserts that the foregoing italicized language in the modified version of CALJIC No. 2.01 given by the court illustrates that the court was "indulging in an unnecessary, if not misleading, gloss on the instructions." He maintains that a comparison of the standardized language in CALJIC No. 2.01 with the language of the court's modified version of that instruction shows that the court substituted "crime" for "count," substituted "not guilty" or "not true" for "innocence" and added a "tag line" concerning the "classic definition" of reasonable doubt. He complains that "[w]hile one may quibble about the tag line, it is clear that 'not guilty' is not the same as 'innocence.' 'Not guilty' merely means that the prosecution did not meet its very high burden of proof; 'innocence' means that the defendant did not commit the crime regardless of what standard of proof is used."

We conclude the court did not err. CALJIC No. 2.01 informs the jury it must adopt any reasonable interpretation of the evidence that tends to prove innocence. In practical effect, the court's modified version of CALJIC No. 2.01 correctly directed the jury that if circumstantial evidence gave rise to two reasonable inferences, one of which pointed to the defendant's guilt and the other to his innocence, the jury was required to adopt the inference favoring innocence. Young's contention that the court confused the jury by using the term "not guilty," rather than the term "innocence," elevates form over substance. We are not persuaded that the court's instruction confused the jury as to how it should evaluate the circumstantial evidence presented at trial. C. CALJIC No. 2.21.2

Young also contends the court's modified version of CALJIC No. 2.21.2, which relates to how the jury is to evaluate the testimony of a witness who has willfully given false testimony, is another example of the court's prejudicial gloss on the instructions. We reject this contention.

1. Background

CALJIC No. 2.21.2 provides:

"A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." (Italics added.)

The court gave the following modified version of this instruction:

"Another rule which I would suppose comes under the heading 'common sense' suggests that if you find, if you're persuaded that a witness has willfully, knowingly been false in some material part of his or her testimony, of course we expect that you'll be distrustful of such a witness and approach the testimony of that witness with understandable caution. [¶] You may reject the whole testimony of a witness who you think has knowingly, intentionally given you false testimony on some material point, unless from all of the evidence you believe that the probability of truth favors the testimony of that witness in other particulars. So I don't necessarily suggest that you just out of hand reject the testimony, even though you may do so, if you feel that it's reasonable, but we understand that you'd viewed the testimony with understandable caution." (Italics added.)

2. Analysis

Young maintains that the court's modified version of CALJIC No. 2.21.2 "comes dangerously close to telling the jury to disregard the entire testimony of a witness who has been willfully false in one area," and "can only mislead the jury in this area." However, the modified instruction correctly informed the jury how to approach the task of assessing the testimony of a witness who has lied about some material point of his testimony. Like CALJIC No. 2.21.2, the modified version informed the jurors they should be distrustful of a witness who has given willfully false testimony and that they could reject that witness's entire testimony unless the probability of truth favored the testimony of that witness in other particulars. Unlike CALJIC No. 2.21.2, the modified version informed the jury that the court did not "necessarily suggest that you just out of hand reject the testimony" and urged the jurors to view the testimony of such a witness with "understandable caution." We conclude the court did not err.

D. CALJIC No. 2.27

Young also contends the court's modified version of CALJIC No. 2.27 is "[a]nother example of an overly suggestive gloss on a credibility instruction." We reject this contention.

1. Background

CALJIC No. 2.27 provides:

"You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." (Italics added.)

The court gave the following modified version of this instruction:

"So as we observed, the testimony of a single witness, if found by you to be believable, to be persuasive, to be worthy of your trust and confidence, [whose testimony about that fact does not require corroboration] is sufficient to prove any particular fact of the case. Before you find the testimony -- a fact to be proved solely by the testimony of a single witness, I suggest that you carefully review all of the testimony upon which the proof of that fact depends." (Italics added.)

2. Analysis

Evidence Code section 411 provides: "Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Italics added.) By informing the jury that the testimony of a single witness "if found by you to be believable, to be persuasive, to be worthy of your trust and confidence" is sufficient to prove any fact, the court's modified version of CALJIC No. 2.27 clearly and correctly stated the law set forth in that standard instruction and codified in Evidence Code section 411.

We reject Young's additional claim that the modified instruction "diminishe[d] the jury's obligation to carefully review [the] testimony by making it a mere suggestion rather than the duty that the actual instruction requires." The court in effect advised the jury to "carefully review all the testimony" upon which the proof of facts depended.

E. CALJIC No. 2.90

1. Background

CALJIC No. 2.90 provides:

"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." (Italics added.)

The court gave the following modified version of this instruction:

"Let's remind ourselves again of the standard of proof which the law places solely on the prosecution[,] the proof beyond a reasonable doubt. [Young] is presumed innocent until the contrary is proved. And in the case of any reasonable doubt whether his guilt of a particular crime or the truth of an accompanying allegation has been proved to you, he must be found not guilty of the crime, or you must find the allegation not true. [¶] So the effect of the presumption is proof of guilt or truth beyond a reasonable doubt. The standard is beyond a reasonable doubt, not beyond all possible or imaginary doubt. After all, everything relating to human affairs is open to some possible or imaginary doubt. [¶] Reasonable doubt, we define as that state of the case, that state of the proof, that state of facts, where after an entire thoughtful, critical, searching, objective comparison and consideration of all the evidence, the applicable law which relates to all the evidence as relates to that crime, if your mind is left in that condition that you cannot say you feel an abiding conviction of the truth of the charge or the allegation. [¶] If you ever [have] a reasonable doubt of [Young's] guilt, it's that lack of an abiding conviction we define as reasonable doubt." (Italics added.)

2. Analysis

Young contends the court "put an unnecessary and confusing gloss on the reasonable doubt instruction." He complains that the "court effectively defined a reasonable doubt as a negative─a lack of an abiding conviction[─]rather than a positive, i.e., the possession of an abiding conviction." He asserts that "the court was suggesting that the positive, i.e., possession of an abiding conviction[,] is the norm until the negative has been proven," and thus "the court's gloss on the 'reasonable doubt' instruction had the effect of diluting the prosecution's burden of proof." We reject these contentions.

The term " reasonable doubt" is codified in section 1096, which provides: "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 or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or 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 jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.'" (Italics added.)

By informing the jury that reasonable doubt is "that state of the case . . . where after an entire thoughtful, critical, searching, objective comparison and consideration of all the evidence . . . your mind is left in that condition that you cannot say you feel an abiding conviction of the truth of the charge or the allegation" (italics added), the court's modified version of CALJIC No. 2.90 correctly stated the law set forth in that standard instruction and codified in section 1096. Specifically, CALJIC No. 2.90 (discussed, ante), like the court's modified instruction, defines 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." (Italics added.) Likewise, section 1096 defines reasonable doubt as "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.)

When the court orally instructed the jury immediately before the parties gave their closing arguments, the court told the jurors that it would provide all of the instructions to them in written form in a three-ring binder, and they would have the instructions during their deliberations. The court also informed the jury that the "body" of each written instruction, and not the title, is the "statement of the law." On appeal, Young does not dispute that the jury received all of the foregoing CALJIC instructions (Nos. 2.01, 2.21.2, 2.27 & 2.90). The record shows that each of these written instructions was based on the text of the corresponding CALJIC instruction, rather than the court's modified versions it orally gave to the jury. In sum, the court did not err and, even if it did, any such error was harmless under any standard of review.

II

NONEXISTENT GUN STIPULATION

Young also contends his convictions of counts 2 and 4, and the jury's true finding on the count 1 gun enhancement allegation, must be vacated because the court erred in orally instructing the jury that Young had stipulated that he possessed the firearm and had knowledge of its presence, and the court thereby effectively gave a directed verdict.^[4] For reasons we shall explain, we conclude the court's error in orally instructing the jury about a nonexistent stipulation requires reversal of those portions of the judgment.

A. Background

In instructing the jury with respect to count 4, which charged Young with possession of a firearm by a felon (§ 12021, subd. (a)(1)), the court orally informed the jurors, without any objection by the defense, that the parties had stipulated that Young had possession of a firearm and knew of its presence:

"Every person who has been convicted of a felony and who owns, purchases, receives or has in his possession or under his custody or control an[y] pistol, revolver or other firearm, is guilty of a violation of [section 12021, subdivision (a)(1)], a crime. [¶] In this case, [Young's] status as a person who had previously been convicted of a felony has been established by the stipulation of the parties so that no further [proof] of that fact is required. You must accept as true the existence of this previous felony conviction. [¶] . . . [¶] One person may have possession [alone] or two or more persons together may share actual or constructive possession. Two elements have already been proved by the stipulation, those are that the accused had possession of a firearm, and that he had knowledge of the presence of the firearm." (Italics added.)

During closing arguments, defense counsel argued that "[y]ou can't be guilty of possession of a gun . . . if you have no knowledge. Knowledge isn't enough by itself, but if you don't know about it, and that's the defense in this case, [Young] did not know then he cannot be guilty." During his closing arguments, defense counsel did not directly challenge the court's erroneous instruction about the alleged stipulation.

B. Analysis

On appeal, the parties agree that Young never stipulated that he had possession of the gun or that he had knowledge of its presence. Young asserts the court was "flat out wrong" when it told the jury that the parties had stipulated that he had possession of the gun and that he knew of the gun's presence. Stating that he had "testified to the precise opposite,"^[5] Young also contends that "[p]rejudice is also patently obvious," and the error was prejudicial per se because the court "directed [a] verdict with respect to all charges and enhancements involving the gun," and "deprived [him] of his right to a jury trial on key elements of his case."

"[A]n instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution." (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Such an error is reviewed under the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18, 24. (Flood, supra, 18 Cal.4th at p. 503.) Under the Chapman standard, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681, italics added.)

Here, the People claim that the trial court's error was harmless beyond a reasonable doubt because the record shows that the jury specifically considered whether Young possessed or knew of the gun, and it did not use the court's oral statement about the nonexistent stipulation during its deliberations. We cannot confidently say, however, that the court's clear instructional error with respect to the nonexistent stipulation was harmless beyond a reasonable doubt.

As the People point out, the record does show that during its deliberations, the jury sent a note to the court stating, "We would like to hear Det[ective Sarah] Johnson's testimony regarding [Young's] statement regarding [the] gun. We would also like to see [Young's] testimony pertaining to the gun." The court directed the court reporter to read back the pertinent portions of the testimony given by Detective Johnson and Young. Detective Johnson testified that after she advised Young of his Miranda^[6] rights, he admitted that the gun and ammunition belonged to him and Walsh, and that they kept it out of the reach of the children.

Young, however, disputed this testimony. During direct examination, defense counsel asked him, "Did you tell the officer that the gun is ours plural referring to you and Ms. Walsh, but you keep it out of the reach of the children?" Young replied, "I didn't."

The record also shows that the jury sent another note to the court seeking clarification of the terms "personally armed" and "armed." Specifically, the jury's note stated: "We would like to receive clarification on the 'Defendant Armed In Commission of Crime.' 'Personally Armed' and 'Armed' are ambiguous. 'Personally' is not defined on the CALJIC [No.] 17.16.1 page." The People maintain that "the jury found that because [Young] had at least constructive possession of the firearm, he was generally armed within the meaning of [section 12022, subdivision (a)(1)]," and "[t]his shows that the jury did not accept the 'stipulation,' but rather deliberated over the issue of whether [he] possessed the gun or had knowledge of it."

However, the court orally informed the jury about a nonexistent stipulation and, as Young points out, "there was no 'correct' version for the jury to consult." Furthermore, the jury's first note does not reveal what the jurors were thinking with respect to the gun, and the second jury note suggests they were concerned about whether Young was "armed" or "personally armed." As already noted, Young testified at trial and disputed that he knew about the gun and had possession of it.

Appellate courts must be vigilant in protecting a defendant's right to a jury trial on all elements of the crimes and enhancements alleged against him. Because we cannot confidently say that the trial court's instructional error with respect to the nonexistent stipulation was harmless beyond a reasonable doubt, we must reverse the portions of the judgment finding Young guilty of counts 2 and 4 and finding true the count 1 gun enhancement allegation.

III

CALJIC No. 7.15

Last, Young contends the jury's true finding on the count 1 enhancement allegation that he was armed with a firearm (§ 12022, subd. (a)(1)) must be set aside because the court prejudicially erred by using CALJIC No. 17.15. We need not, and do not, reach the merits of this contention because we have determined that this true finding must be set aside for reasons discussed, ante.

DISPOSITION

The judgment is affirmed in part and reversed in part. Young's convictions of counts 2 and 4, and the jury's true finding with respect to the count 1 gun enhancement allegation, are reversed. The judgment is affirmed with respect to the remaining counts and enhancement allegations. The matter is remanded for further proceedings.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Apartment Manager Lawyers.

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

^[2] On November 18, 2005, before the California Supreme Court granted review in Pitto, Young filed a request for leave to file supplemental briefing based on Pitto. On November 21, this court granted Young's request and deemed the supplemental letter brief incorporated with the request as filed on that date. The Supreme Court granted review in Pitto after the People filed their respondent's brief. In light of the grant of review in Pitto, we shall not further discuss that case.

^[3] Miranda v. Arizona (1966) 384 U.S. 436, 479.

^[4] In the interest of clarity, we reiterate that the jury convicted Young of possession of a controlled substance while armed with a loaded firearm in violation of Health and Safety Code section 11370.1, subdivision (a) as alleged in count 2 of the amended information; and of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1), as alleged in count 4. The jury found true the enhancement allegation that Young was armed with a firearm within the meaning of section 12022, subdivision (a)(1) when he committed the offense charged in count 1.

^[5] Young testified as follows on direct examination: "Q. Now, did you learn during the time that you were seated in the living room that a gun had also been recovered? [¶] A. Yes. [¶] Q. Did you know about the gun prior to that time? [¶] A. No, I didn't."

^[6] See footnote 3, ante.