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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Charles Edward GRIFFIN, Defendant and Appellant.

No. C016151.

Decided: April 26, 1994

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Shirley A. Nelson, Supervising Deputy Atty. Gen., Harry Joseph Colombo, Deputy Atty. Gen., for plaintiff and respondent. Rodger Paul Curnow, Oakland, under appointment by the Court of Appeal, for defendant and appellant.

A jury convicted defendant of attempted murder (Pen.Code, §§ 187, 664, subd. (1)), possession by a convicted felon of a firearm (Pen.Code, § 12021) and discharge of a firearm at an occupied automobile (Pen.Code, § 246), and found the attempted murder was deliberate and premeditated (see Pen.Code, § 189), defendant inflicted great bodily injury (Pen.Code, § 12022.7) and used a firearm (Pen.Code, § 12022.5;  further statutory references to sections of an undesignated code are to the Penal Code).   The trial court found true an alleged “on bail” enhancement (§ 12022.1), and allegations of a prior serious felony conviction (§ 667, subd. (a)) and service of two prior prison terms (§ 667.5).

On appeal defendant challenges the finding the attempted murder was deliberate and premeditated.   We shall affirm.

Defendant and Arthur Robertson, the victim, had quarreled over a narcotics transaction.   Defendant lay in wait for the victim and as the victim drove by, fired at him twice with a shotgun, severely wounding him.

Section 664, subdivision (1) provides that attempted murder which is willful, deliberate and premeditated, “shall be punishable by imprisonment in the state prison for life with the possibility of parole”;  attempted murder that is not willful, deliberate and premeditated “shall be punishable by imprisonment in the state prison for a term of five, seven, or nine years.   The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and ․ found to be true by the trier of fact.”  (Emphasis added.)

The information charged defendant with a “violation of Section 664/187 of the Penal Code,” in that he “did willfully, unlawfully, and with malice aforethought attempt to murder ARTHUR ROBERTSON, a human being.”   It did not allege that the murder was deliberate and premeditated.

The trial court instructed the jury it must determine whether the attempted murder was of the first or second degree.  (See § 664, subd. (4).)  The court then instructed the jury that an attempt to commit murder which is willful, deliberate and premeditated is of the first degree and all other forms of attempted murder are of the second degree.   The court further instructed on the definitions of willful, deliberate and premeditated in terms of CALJIC No. 8.20.

The jury returned a verdict of guilty fixing “the degree of attempted murder at first degree.”   The court then made the following remarks:

“Before proceeding further, I am concerned about the language in [section 664].   And from the—at least the technical reading of this code section, it may be necessary, since the jurors have found that the attempted murder is of the first degree, that they find that the attempted murder was willful, deliberate and premeditated.  [¶]  In view of that statutory requirement, I'm inclined to prepare a form of verdict to give the option to the jury that it was willful, deliberate and premeditated, or to find that it was not, and send them with that verdict form back to review the matter and determine whether they can make that finding.”

The court sent the jury back to continue deliberations.   The court stated for the record that “at side bar [defense counsel] definitely, strongly objected to this procedure and that the case should not be reopened to permit a further verdict or further finding from the jurors.”   The jury came back with a special verdict finding beyond a reasonable doubt the crime was willful, deliberate and premeditated.1

Prior to pronouncement of judgment, the court stated:

“Now, it seems to me there's one other issue before proceeding to sentencing and that ought to be commented upon.   And the Court noted when the jury's verdict came in that the verdict form did not—while it did require a finding of first degree, did not have certain statutory language on it and the Court then sent the jury back out with a new form and asked them to find whether the attempted murder was in fact willful, deliberate and premeditated.   This was based on a reading of the code section that appears to require that.  [¶]  And the code section also appears to require that the pleadings allege that a first-degree murder—or maybe its attempt be willful, deliberate and premeditated.   Obviously, in this case the pleadings do not—the Information does not contain that specific language, although interestingly enough at the Municipal Court level it did.” 2

After some discussion the court continued:

“Now, the accusatory pleading failed to contain that allegation.   The forms of verdict, of finding the verdict—the jury made a finding of first-degree murder.   They were instructed that murder in the first-degree is willful, deliberate and premeditated and they returned a verdict of first-degree murder.   It was at that point that the Court, having become aware of this code section, directed them to retire and to further consider and specifically address the question of whether the attempted murder was willful, deliberate and premeditated.   They did so and returned not long after being sent out with the finding of willfully, deliberate and premeditated murder in that verdict.   [¶]  Now, what's the People's position about this apparent lack of compliance with Section 664 of the Penal Code?”

The prosecutor stated that an amended felony complaint had contained the appropriate charging language, a predecessor prosecutor who handled the case had orally informed the defense attorney at a pretrial proceeding of the intent to prove that allegation, and the prosecutor had mentioned the theory of premeditation and deliberation in his opening statement.3  Because of this, the prosecutor argued, the defense was not prejudiced by lack of notice.

The defense maintained that the only accusatory pleading relevant to the issue is the information, which did not charge premeditation and deliberation.   The court put the matter over to give counsel an opportunity to brief the issue.

After receiving the briefs the court determined the jury's finding of premeditation and deliberation was valid.

On appeal defendant emphasizes that “no allegation was contained in the charging information that the attempted murder was willful, deliberate, and premeditated.”   The Attorney General acknowledges that “the better practice would have been to include the specific language of the statute.   However, the failure to do so should not preclude the jury's finding that the attempted murder was willful, deliberate and premeditated.” 4

 We think it is not only the “better practice” to plead in conformity with the statute, it is the only practice.   Nevertheless, although the failure to comply with the express pleading requirement of section 664, subdivision (1) was error, the error was harmless.

The rule is that formal defects in a criminal pleading will not result in prejudice to the defendant.  (See § 960.)   We are of the view the failure of the information to allege separately that the crime was deliberate and premeditated is a “formal” defect and that defendant has raised no persuasive claim of derivative prejudice.

 Premeditation is an element of some first-degree murders, but not all first degree murders are premeditated.  (§ 189;  see People v. Saille (1991) 54 Cal.3d 1103, 1114–1115, 2 Cal.Rptr.2d 364, 820 P.2d 588, quoting from People v. Bobo (1990) 229 Cal.App.3d 1417, 3 Cal.Rptr.2d 747.)

 In a murder case, the prosecution may proceed on the theory of premeditation but the accusatory pleading does not expressly have to charge “premeditation.”   California long ago rejected the common-law requirement that the murder be described with particularity.   As stated in People v. King (1865) 27 Cal. 507, 510:  “If the defendant is guilty, he stands in need of no information to be derived from a perusal of the indictment․  If he is not guilty, the information could not aid in the preparation of his defense.”   Recent cases are in agreement.  “[I]t has long been the law in this state that an accusatory pleading charging murder need not specify degree or the manner in which the murder was committed.  [Citations.]  Thus, even where the People intend to rely on a felony-murder theory, the underlying felony need not be pleaded in the information.  [Citation.]  Neither is it necessary to specifically plead the charged murder was willful, deliberate, and premeditated.  [Citation.]  So long as the information adequately alleges murder, the evidence adduced at the preliminary hearing will adequately inform the defendant of the prosecution's theory regarding the manner and degree of killing.  [Citation.]”  (People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5, 239 Cal.Rptr. 307, 740 P.2d 419.   See also People v. Diaz (1992) 3 Cal.4th 495, 557, 11 Cal.Rptr.2d 353, 834 P.2d 1171 [“generally the accused will receive adequate notice of the prosecution's theory of the case from the testimony presented at the preliminary hearing or at the indictment proceedings”];  People v. Scott (1991) 229 Cal.App.3d 707, 712, 280 Cal.Rptr. 274.)

Defendant makes no claim that he was unaware of the theory of the prosecution and a review of the preliminary hearing transcript confirms that the People proceeded on the theory of “lying in wait,” the classic theory of premeditation.   Defendant and the victim argued over money, defendant waited for the victim to drive by, then stepped into the street and fired at the victim's car.

Defendant maintains he stands “convicted” of an “offense” not included within the pleading, that the special verdict finding premeditation must be stricken because that was not alleged or included in the information.  (Cf. People v. Hernandez (1988) 46 Cal.3d 194, 208, 249 Cal.Rptr. 850, 757 P.2d 1013 [sentence enhanced based on fact neither pleaded nor proven to the jury].)   But as we have explained, premeditation is encompassed within attempted murder as charged here.

 The People may charge in the information any offense shown by the evidence adduced at the preliminary hearing.  (§ 739;  4 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) Proceedings Before Trial § 2054, p. 2419.)   Such an offense may be included in the information even if not mentioned in the felony complaint and the defendant cannot complain about lack of notice because the preliminary hearing itself provides the requisite notice.  (People v. Jackson (1978) 88 Cal.App.3d 490, 500–501, 151 Cal.Rptr. 688;  see Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616, fn. 5, 198 Cal.Rptr. 749 [criminal demurrer].)   The proceedings herein represent the converse problem:  an allegation apparently charged in the complaint (see fn. 2) and shown by the preliminary hearing transcript, but not expressly stated in the information.   Were it not for the well-settled rule that a charge of “murder” encompasses all forms of murder, defendant might have a tenable claim that he reasonably believed that the People were no longer pursuing the charge in question.  (See Hernandez, supra, 46 Cal.3d at p. 209, 249 Cal.Rptr. 850, 757 P.2d 1013.)   But even if the rule were otherwise, the record demonstrates defendant was not unaware of or surprised by the prosecutor's theory and he makes no claim that he was.   The prosecutor argued premeditation to the jury without objection.   In his argument, defense counsel briefly acknowledged the prosecution was proceeding on a premeditation theory but did not expressly argue against it because the defense was self-defense, i.e., defendant fired his gun to avoid being run over by the victim, implying a lack of premeditation.5

 To the extent defendant's briefs may be read to contend the procedure of reinstructing the jury was error we disagree.   We need not answer the question whether the special premeditation allegation results in two degrees of attempted murder.  (But see People v. Douglas (1990) 220 Cal.App.3d 544, 548–549, 269 Cal.Rptr. 579 [the answer is “no”].   See also People v. Dominguez (1992) 4 Cal.App.4th 516, 522–523 & fn. 10, 6 Cal.Rptr.2d 55 [not answering question, calling issue “largely one of semantics in this case”];  People v. Jones (1991) 234 Cal.App.3d 1303, 1312, 286 Cal.Rptr. 163 [Douglas is correct].)   Whether the crime of which defendant stands convicted is characterized as “first degree attempted murder” or “attempted murder with premeditation” makes no difference.   What matters is the jury convicted defendant of attempted murder and, under instructions which required a finding of premeditation, returned a “first degree” verdict in the first instance.  (Dominguez, supra, 4 Cal.App.4th at p. 523, 6 Cal.Rptr.2d 55.)   That the jury thereafter reiterated and elaborated its findings could not possibly have prejudiced the defendant.

In the reply brief, for the first time and without citation to pertinent authority, defendant characterizes the court's act of reinstructing the jury as a “dynamite charge”.   Under settled principles of appellate procedure we decline to address this claim.

Pursuant to order of this court, defendant is deemed to have challenged the constitutionality of the reasonable doubt instruction, CALJIC 2.90, the challenge being premised on the granting of certiorari by the United States Supreme Court in Sandoval v. California, No. 92–9049.  (Ct.App., Third App.Dist., Misc.Order No. 93–1.)   On March 22, 1994, the high court held that CALJIC No. 2.90, taken as a whole, correctly conveyed the concept of reasonable doubt and consequently there was no reasonable likelihood that the jurors understood the instruction to allow a conviction on proof insufficient to meet the standards set in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.  (Victorv.Nebraska(1994)511U.S.1, 114S.Ct.1239,127L.Ed.2d583.)   In the words of the court, “in the context of the instructions as a whole we cannot say that the use of the phrase [‘moral certainty’] rendered the instructions given in Sandoval 's case unconstitutional.”  (Id. at p. ––––, 114 S.Ct. at p. 1248.)

The judgment is affirmed.


1.   The special verdict read:  “We, the jury in the above-entitled cause, find that the attempted murder, as charged in count one, was [willful], deliberate, and premeditated, as those terms have been defined in the instructions.  [¶]  We understand that in reaching this finding we have applied the principal that the allegation of [willful], deliberate and premeditated must be proven beyond a reasonable doubt.”

2.   The felony complaint is not in the record on appeal.   In a trial court brief, the People quoted the superseded amended felony complaint:  “ ‘It is further alleged that the defendant in the above offense deliberately and with premeditation and while lying in wait, so that the murder attempt was murder in the first degree.’  (Sic.)”

3.   The court took testimony of the predecessor prosecutor who testified he told the defense attorney “that it was an attempted first-degree murder theory we were proceeding on” but did not recall using the term “premeditated.”Apparently the district attorney's word processor was not programmed with boilerplate language charging premeditation and deliberation.   The predecessor prosecutor testified:  “When I wrote up the Complaint, the amended Complaint in the Municipal Court I had to draft the language myself.”

4.   The People also claim the statute permits the enhanced penalty if it is “charged in the accusatory pleading and admitted” or “found to be true” by the trier of fact.   This interpretation is plainly wrong.   We do not assume the Legislature used the conjunctive “and” haphazardly or with the intent it be accorded any but its ordinary meaning.  (See People v. Anderson (1972) 6 Cal.3d 628, 637, 100 Cal.Rptr. 152, 493 P.2d 880.)

5.   Defendant does not claim prejudice in the selection of the jury.  “In criminal cases, if the offense charged is punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 20 ․ peremptory challenges.”  (Code Civ.Proc., § 231, subd. (a), emphasis added.)   In all other felony cases the defendant is entitled to 10 peremptory challenges.  (Ibid.)  Non-premeditated attempted murder is punishable by a determinate term of 5, 7 or 9 years (Pen.Code, § 664, subd. 1) and a defendant so charged is entitled to 10 peremptory challenges.   However, because premeditated attempted murder is punishable with a life term (ibid.), a defendant so charged is entitled to 20 peremptory challenges.   Defendant exercised nine peremptory challenges.   He did not request additional peremptory challenges.   Defendant did not assert in the trial court nor has he claimed in this court that he was entitled to 20 peremptory challenges.   Nowhere in the record on appeal does defendant indicate he was not satisfied with the jury.  (See People v. Danielson (1992) 3 Cal.4th 691, 713–714, 13 Cal.Rptr.2d 1, 838 P.2d 729;  People v. Caro (1988) 46 Cal.3d 1035, 1047, 251 Cal.Rptr. 757, 761 P.2d 680.)   By failing to raise it, defendant has waived any claim of prejudice arising from the number of peremptory challenges he was allowed.  (See DiamondSpringsLimeCo.v.AmericanRiverCons(1971)16Cal.App.3d581, 609,94Cal.Rptr.200.)

PUGLIA, Presiding Justice.

DAVIS and NICHOLSON, JJ., concur.