Opinion
A151459
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY EVANS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR319582)
Appellant was convicted by a jury of one count of sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a)), and two counts of sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b)). He was sentenced to a prison term of 55 years to life. In this court, appellant contends the judgment must be reversed because the trial court violated People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry) by failing to instruct the jury to resolve any reasonable doubt about the nature of appellant's crimes in favor of lesser offense verdicts. We affirm.
Statutory references are to the Penal Code, unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2015, appellant and his wife, C.W., lived in Suisun with their infant son, and C.W.'s daughters, M., who was 13, and 9-year-old N. Appellant, who was not employed, took care of the children when C.W. was at work. In February 2016, M. told her mother that appellant sexually abused her and N. In a separate conversation, N. told C.W. that appellant would give her Hot Wheels when she complied with his requests to touch him or allow him to sexually assault her.
Appellant was charged with committing multiple sex offenses against both girls between November 2015 and February 2016, but the charges pertaining to M. were dismissed prior to appellant's jury trial. As to N., appellant was tried on four counts: (1) sodomy of a child 10 years old or younger; (2) attempted sodomy of a child 10 years old or younger; (3) penetration of a child 10 years old or younger; and (4) penetration of a child 10 years old or younger.
At appellant's trial, N. testified about an occasion in late 2015 when appellant sodomized her. C.W. testified that N. and M. told her appellant had sexually abused them. C.W. also testified that when she confronted appellant, he denied that he put his penis inside either girl, but admitted that he "mostly" put his finger in their butts.
At trial, the prosecution presented evidence that appellant sent text messages to C.W., and letters to N. and M., seeking forgiveness for what he had done to the girls. The jury also heard a recorded interview appellant gave to police, during which he admitted penetrating N. with his finger on two separate occasions, and committing multiple lewd acts on M.
The jury was instructed regarding the prosecutor's burden of proving the elements of each charged offense, and was also instructed regarding lesser included offenses of all four changes. As noted, the jury returned verdicts finding appellant guilty of sodomy of a child 10 years old or younger (count 1) and two acts of penetration of a child 10 years of age or younger (counts 3 and 4).
II. DISCUSSION
Appellant's sole claim is that the trial court committed reversible error by failing to sua sponte instruct the jury that if they had a reasonable doubt about whether he committed a charged offense or a lesser offense of that charge, they were required to find he committed the lesser offense rather than the greater offense.
At a criminal trial, the court must instruct the jury regarding general principles of law governing the case even absent a request. (People v. Michaels (2002) 28 Cal.4th 486, 529-530; see People v. Whalen (2013) 56 Cal.4th 1, 68.) The instructions must be complete and a correct statement of the law, "but no particular form is required." (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) Further, "[t]he court has no duty to give an instruction if it is repetitious of another instruction also given." (People v. Barajas (2004) 120 Cal.App.4th 787, 791.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]' " (People v. Carrington (2009) 47 Cal.4th 145, 192.)
Appellant's instructional challenge relates to the trial court's alleged failure to give a "Dewberry instruction." In Dewberry, supra, 51 Cal.2d 548, the defendant was convicted of second degree murder for shooting and killing a man during a dispute in a bar. (Id. at pp. 550-553.) At the defendant's trial, the court instructed regarding the elements and degrees of murder and the elements of manslaughter, the presumption of innocence, and the prosecutor's burden of proving guilt beyond a reasonable doubt. (Id. at p. 554.) The court also instructed the jury that (1) if they found the defendant committed murder, but had a reasonable doubt as to the degree, they "should give defendant the benefit of the doubt and find him guilty of second degree murder," and (2) if they had a doubt about whether the killing was manslaughter or justifiable homicide, the "defendant was to be acquitted." (Ibid.) However, the trial court denied a defense request to give an instruction that stated in pertinent part: " 'If you find that defendant was guilty of an offense included within the charge of the indictment, but entertain a reasonable doubt as to the degree of the crime of which he is guilty, it is your duty to convict him only of the lesser offense. [Citation.]' " (Ibid.)
The Dewberry court held that the trial court committed prejudicial error by rejecting the reasonable doubt instruction proposed by the defense. (Dewberry, supra, 51 Cal.2d at pp. 554-555.) The proposed instruction was supported by pertinent case law. (Id. at p. 555.) Furthermore, omitting the defendant's instruction was misleading because "[t]he failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder." (Id. at p. 557.) Ultimately, the court found, the error was prejudicial because "[i]t went directly to the defense of reasonable doubt of defendant's guilt of second degree murder; it was clearly responsive to an issue raised by the evidence [citations]; and it was essential to cure the misleading effect of its absence in light of the other instructions given." (Id. at pp. 557-558.)
Following the 1959 Dewberry decision, several appellate courts concluded that Dewberry imposes a sua sponte duty on trial courts to instruct on the effect of a reasonable doubt as between lesser and greater offenses whenever that issue is raised by the trial evidence. (People v. Crone (1997) 54 Cal.App.4th 71, 76 (Crone) [citing cases].) In Crone, the defendant was charged with two drug possession offenses and convicted by a jury of the greater charge. (Id. at p. 73.) On appeal, the Crone court found that the trial court violated Dewberry by failing to instruct on the significance of a reasonable doubt as to whether the defendant committed the greater or lesser offense, but that the error was harmless. (Ibid.)
The Crone court observed that Dewberry would have been satisfied if the jury had been given a 1989 version of CALJIC No. 17.10, which stated " 'If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime.' " (Crone, supra, 54 Cal.App.4th at p. 76 & fn. 1.) However, the trial court did not give CALJIC No. 17.10 because the defendant had been charged with both the greater and lesser drug crime. Instead, the trial court gave a 1990 version of CALJIC No. 17.03, which addressed several principles applicable to alternative charges, but did not tell "the jury what to do if it ha[d] a reasonable doubt as to whether the defendant committed the greater or a lesser offense." (Id. at pp. 76-77 & fn. 2.) Because this omission was not cured by any other instruction, the Crone court concluded that the instructions given at the defendant's trial "failed to satisfy the requirement of Dewberry." (Id. at p. 78.)
The Supreme Court clarified the Dewberry principle in People v. Musselwhite (1998) 17 Cal.4th 1216, 1262 (Musselwhite), an automatic appeal following the defendant's convictions for capital murder and attempted murder. The Musselwhite court rejected the defendant's claim that his trial court committed Dewberry error by failing to instruct the jury sua sponte that if they had a reasonable doubt as to whether the defendant attempted to murder his surviving victim, but believed that he did assault her with a deadly weapon, they should find him guilty of the lesser assault offense. (Id. at pp. 1261-1263.)
The Musselwhite court explained that Dewberry stands for the proposition that "a criminal defendant is entitled to the benefit of a jury's reasonable doubt with respect to all crimes with lesser degrees or related or included offenses. [Citation.]" (Musselwhite, supra, 17 Cal.4th at p. 1262, italics omitted.) The Dewberry defendant had been denied this benefit because the " 'failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.' [Citation]" (Id. at p. 1262, quoting Dewberry, supra, 51 Cal.2d at p. 557.) However, the Musselwhite defendant's case was "different" because at his trial, the "court did give the jury several generally applicable instructions governing its use of the reasonable doubt standard. All redounded to defendant's benefit in the sense that each required the jury, where it had a reasonable doubt as to any included or related offenses or degrees, to find defendant guilty of the lesser included or related offense or lesser degree, that is, to give defendant the benefit of any reasonable doubts it may have had." (Ibid., italics omitted.)
Applying the authority summarized above, we conclude that the jury instructions given at appellant's trial, when considered as a whole, complied with Dewberry. At the beginning of trial, the court gave CALCRIM No. 103, and after the close of evidence it gave CALCRIM No. 220, both of which conveyed clear and specific instruction regarding the presumption of innocence and the prosecutor's burden of proving every material fact beyond a reasonable doubt. CALCRIM No. 103 stated "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt," and "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." CALCRIM No. 220 instructed the jury again regarding the presumption of innocence and the beyond a reasonable doubt burden of proof, and reminded them that any time they were instructed that "the People must prove something," they had to "prove it beyond a reasonable doubt" unless the court specifically told them otherwise.
The trial court also gave a series of instructions reinforcing the principle that the reasonable doubt requirement applied no matter what type of evidence the prosecutor offered against appellant. For example, CALCRIM No. 224 instructed that a fact could be established with circumstantial evidence only if the fact was established beyond a reasonable doubt, and that "[i]f you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilty, you must accept the one that points to innocence." Also, CALCRIM No. 355 related the reasonable doubt requirement to the defendant's absolute right not to testify. Furthermore, CALCRIM No. 359, which addresses the requirement that a defendant may not be convicted based only on his own admission of guilt, repeated the admonition that appellant could not be convicted of any crime "unless the People have proved his guilt beyond a reasonable doubt."
Crucially, the trial court also gave CALCRIM No. 3517, which addressed the effect of the reasonable doubt requirement on lesser offenses. Specifically, CALCRIM No. 3517 instructed: "If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct." CALCRIM No. 3517 also told the jury that, although they could decide the order in which to consider each crime listed on the verdict form, the court could accept a guilty verdict on a lesser crime only if the jury had found the defendant was not guilty of the corresponding greater crime. And this instruction gave directions for completing the special verdict form, which reinforced the principle that appellant could not be convicted of a lesser offense unless all jurors agreed that (1) he was not guilty of the greater offense and (2) he was guilty of the lesser offense. Finally, the instruction ended with this directive: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."
Appellant contends that CALCRIM No. 3517 does not satisfy Dewberry because it does not explicitly tie the concept of reasonable doubt to the choice between greater and lesser offenses. This argument, unsupported by authority, blurs the distinction between an instruction regarding a general principle of law, which must be given sua sponte, and a pinpoint instruction that must be requested by the defense. Here, as in Musselwhite, the court fulfilled its sua sponte duty by giving "the jury several generally applicable instructions governing its use of the reasonable doubt standard," all of which "redounded to defendant's benefit in the sense that each required the jury, where it had a reasonable doubt as to any included or related offense . . . , to find defendant guilty of the lesser included or related offense . . . , that is, to give the defendant the benefit of any reasonable doubts it may have had." (Musselwhite, supra, 17 Cal.4th at p. 1262, italics omitted.)
Appellant contends that Crone, supra, 54 Cal.App.4th at page 78, establishes that the trial court has a sua sponte duty to give a specific Dewberry instruction that "clearly and explicitly" applies the reasonable doubt standard to the choice between greater and lesser offenses.
As discussed, Dewberry itself did not address the scope of the trial court's sua sponte duty, but rather the denial of proposed defense instruction, which was prejudicial because it misled the jury about how to apply the reasonable doubt doctrine in a case involving lesser offenses. (Dewberry, supra, 51 Cal.2d 548.) By contrast, Crone does hold that trial courts have a sua sponte duty to instruct on the general principle discussed in Dewberry. (Crone, supra, 54 Cal.App.4th at p. 76.) But the Crone court also recognized that this duty would be satisfied by general instruction informing the jury that if it was "not satisfied beyond a reasonable doubt that the defendant [was] guilty of the crime charged," they could nevertheless convict him of a lesser crime if they were "convinced beyond a reasonable doubt that the defendant [was] guilty of the lesser crime." (Id. at p. 76 & fn. 1; see also People v. Barajas, supra, 120 Cal.App.4th at p. 794; People v. St. Germain (1982) 138 Cal.App.3d 507, 520.) Appellant overlooks the fact that CALCRIM No. 3517 uses substantially similar language to the CALJIC instruction that was approved in Crone.
Furthermore, Musselwhite, which was decided after Crone, holds that Dewberry is satisfied when the instructions as a whole advise the jury to give the defendant the benefit of any reasonable doubt they may have with respect to all crimes with lesser offenses. (Musselwhite, supra, 17 Cal.4th at p. 1262.) The Supreme Court recently affirmed Musselwhite's conception of Dewberry and what it requires in People v. Friend (2009) 47 Cal.4th 1, 54-56 (Friend), another capital murder case involving lesser included offenses. The Friend court found that although the trial court omitted a CALJIC instruction that specifically applied the Dewberry principle to second degree murder, other standard instructions that were given assured the jury would understand that the benefit of the doubt principle applied to the choice between greater and lesser homicide offenses. (Id. at p. 56.)
In this case, the combined CALCRIM instructions provided the jury with sufficient information to comply with Dewberry's principles without creating any misleading impressions or restricting the jury's ability to consider the lesser offenses of any charge. Thus, there was no instructional error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------