PEOPLE v. ABBOTT (1995)

In the first part of a bifurcated trial, a jury found Jack R. Abbott, Jr., guilty of assault with a deadly weapon (Pen.Code,2 § 245, subd. (a)(1)) and found true the allegation he had personally used a deadly weapon (§ 1192.7, subd. (c)(23)) while committing the assault November 8, 1992, in the Piccadilly Room of the Pickwick Hotel in downtown San Diego during a “barroom brawl.” ³

The trial court thereafter found true Abbott had suffered three prior serious felony convictions.  (§ 667, subd. (a).)  It sentenced him to an eighteen-year total prison term, consisting of a three-year midterm for the current offense plus three five-year consecutive terms for his serious priors.   The court also imposed a $500 restitution fine under Government Code section 13967, payable “forthwith or as provided in section 2085.5․”

Abbott has timely appealed, raising several instructional and sentencing errors.   He specifically challenges the constitutionality of the trial court's modified instruction on the standard reasonable doubt standard, claims the court's instructions and comments regarding the request of trial testimony readbacks were improper and prejudicial to his right to a fair trial, argues the court erred in refusing his request to instruct the jury on “mere recklessness or the intent to frighten,” asserts the court erred in enhancing his sentence with his 1957 Texas conviction for robbery because the evidence was insufficient to show it qualified as a serious California prior, and contends the court improperly imposed a $500 restitution fine without first determining whether he had the ability to pay that amount.   We conclude only his contention regarding the Texas prior has merit.

DISCUSSION

IModification of CALJIC No. 2.90

 In instructing the jury on the law to be applied to the facts of this case, the court read without objection the following definition of reasonable doubt:

“Reasonable doubt is a state of the case in which the jurors, after comparison and consideration of all the evidence, do not feel an abiding conviction, to a moral certainty, of the truth of the charge.   It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.”

In so doing, the court modified CALJIC No. 2.90's definition of reasonable doubt ⁴ in three ways.   First, it omitted the words “and depending on moral evidence.”   Second, it abbreviated the phrase “leaves the minds of the jurors in that condition that they cannot say they feel” to “do not feel.”   Third, it reversed the order of the last two sentences in the instruction.

While acknowledging the United States Supreme Court has upheld the constitutionality of CALJIC No. 2.90's definition of reasonable doubt (Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583) and the California Supreme Court has consistently approved such instruction (People v. Sims (1993) 5 Cal.4th 405, 456–457, 20 Cal.Rptr.2d 537, 853 P.2d 992), and has recently upheld a slightly modified version of the instruction (People v. Freeman (1994) 8 Cal.4th 450, 501, 505, 34 Cal.Rptr.2d 558, 882 P.2d 249), Abbott contends the trial court's first two modifications to the standard reasonable doubt standard in this case rendered it unconstitutional.⁵  He specifically argues the deletion of the words “and depending on moral evidence” invited the jury to convict him on less than the constitutionally required proof and the shortened phrase “do not feel” permitted the jury to convict him on factors other than the government's proof.⁶  In essence, Abbott argues the modifications to the standard reasonable doubt instruction here went beyond those permissible “narrow and specific” changes suggested in Freeman as passing constitutional muster, leaving the possibility the jury understood “moral certainty” to be disassociated from the evidence in the case, and thus impermissibly lessened the prosecution's burden of proof in violation of his rights to due process.   We conclude there was no constitutional error.

In Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583, which considered the Nebraska reasonable doubt standard as well as the California standard instruction via the consolidated case of Sandoval v. California, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583, the defendant there asserted CALJIC No. 2.90's use of the abstract terms “moral evidence” and “moral certainty” rendered the instruction unconstitutional.   Although criticizing use of the term “moral,” and expressing concern with the phrase “moral certainty,” the high court concluded the instruction was constitutional because, taken as a whole, it conveyed the concept of reasonable doubt.  (Victor v. Nebraska, supra, 511 U.S. at p. ––––, 114 S.Ct. at p. 1251, 127 L.Ed.2d at p. 601.)   The court indicated that reference to “moral certainty,” in conjunction with the “abiding conviction” language, properly conveyed to the jury they needed “a subjective state of near certitude” to make a finding of guilt, which properly stated the government's burden of proof.   (Id. at p. ––––, 114 S.Ct. at p. 1247, 127 L.Ed.2d at pp. 596, 597.)   This, coupled with language in the instruction requiring the jury to make a decision “after the entire comparison and consideration of all the evidence,” in addition to other jury instructions reinforcing this message, was sufficient to show there was “no reasonable likelihood the jury would have understood moral certainty to be disassociated from the evidence of the case.”  (Id. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 597.)   Therefore, the high court held the government's burden of proof was not changed by the questionable terms.  (Ibid.)

Based on Victor, our Supreme Court in People v. Freeman, supra, 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249, held a slightly modified rendition of CALJIC No. 2.90 which, in essence, “told the jury the phrase ‘moral evidence’ meant mortal evidence, or evidence from people or from the mouths of people” (id. at p. 502, 34 Cal.Rptr.2d 558, 882 P.2d 249), passed constitutional muster.  (Id. at p. 505, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   Recognizing modification of the standard instruction is “perilous, and generally should not be done,” the court stated the holding in Victor demonstrated “the [questioned] terms ‘moral evidence’ and ‘moral certainty’ add nothing to the jury's understanding of reasonable doubt” and held trial courts could safely delete the phrases “and depending on moral evidence,” and “to a moral certainty” from CALJIC No. 2.90.⁷  (Id. at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   While concluding the particular modifications by the trial court there had the effect of improving the standard reasonable doubt instruction and did not diminish the prosecution's burden, the court in Freeman stressed future modifications by trial courts should be limited to those narrow and specific modifications it suggested in that opinion.⁸  (Id. at pp. 504–505, 34 Cal.Rptr.2d 558, 882 P.2d 249.)

 Together the holdings of Victor and Freeman tell us that minor modifications of CALJIC No. 2.90 may survive constitutional scrutiny where a modified instruction, taken as a whole, correctly conveys to the jury the concept of reasonable doubt.  (See Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 595;  People v. Freeman, supra, 8 Cal.4th at pp. 504–505, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   Although Victor and Freeman additionally state the terms “moral certainty” and “moral evidence” add nothing to the jury's understanding of what exactly is “reasonable doubt”, and Freeman further advises us that trial courts may safely delete these phrases from CALJIC No. 2.90 and still pass constitutional muster (People v. Freeman, supra, 8 Cal.4th at pp. 504–505, 34 Cal.Rptr.2d 558, 882 P.2d 249), we can appreciate that a trial court might misinterpret the suggestions in Freeman as allowing the omission of one or both of the phrases when modifying CALJIC No. 2.90.   However, after careful review, we conclude Freeman, including its footnote exemplifying a proper “suggested” modified instruction, taken in context with the analysis of Victor, indicates both phrases should be deleted where a modification is made.   If both terms are deleted, as suggested in Freeman, the problem associated with the abstract meaning of “moral” is eliminated.  (See Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. at p. 1246, 127 L.Ed.2d at pp. 595–596.)⁹  However, if a judge omits only one of the two terms, the problem is exacerbated beyond that noted by the high court in Victor, since the omitted phrase will no longer give context to the remaining one.   (Ibid.)

Here, the trial court only deleted the phrase “and depending upon the moral evidence.”   The question thus becomes whether the failure to also delete “moral certainty” from CALJIC No. 2.90 was fatal to the jury's understanding of the required constitutional standard for determining Abbott's guilt as he contends.   Although the phrase “moral certainty,” alone, might not be interpreted by modern jurors as a synonym for “proof beyond a reasonable doubt,” it does not necessarily mean the instruction is unconstitutional.   (Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 595.)

Abbott, however, argues the jurors might have been convinced to a moral certainty of his guilt even though the government failed to prove guilt beyond a reasonable doubt because the modified instruction also deleted crucial words requiring them to look only at the evidence of the case to make their determination.   He asserts the trial court's changing of the phrase in the instruction from “leaves the minds of the jurors in that condition that they cannot say they feel” to “do not feel” allows the jurors to look beyond the empirical evidence offered at trial to what they are persuaded or convinced of emotionally rather than intellectually.

 To answer these concerns, we must review, in light of Victor and Freeman, the remaining language of the modified instruction, as well as the other instructions given, to determine whether, taken as a whole, the instruction correctly conveyed the concept of reasonable doubt to the jury.   Having done so, we conclude the modified instruction given here properly conveyed the reasonable doubt concept and thus did not lessen the prosecution's burden.¹⁰

Although the rendition of CALJIC No. 2.90 given in this case omitted the term “depending on moral evidence,” it still required the jury to have “an abiding conviction, to a moral certainty of the truth of the charge.”   As the reasoning of Victor teaches, such phrase gives sufficient context to the meaning of “moral certainty,” correctly states the government's burden of proof and “does much to alleviate any concerns that the phrase moral certainty might be misunderstood in the abstract.”  (Victor v. Nebraska, supra, 511 U.S. at p. ––––, 114 S.Ct. at p. 1250, 127 L.Ed.2d at pp. 595–596.)

Further, even though the term “moral certainty” could be defined as a “strong likelihood or firm conviction, rather than on the actual evidence,” Victor cautions that the language of an instruction must not be sequestered from its surroundings.  (Victor v. Nebraska, supra, 511 U.S. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 596.)   In Victor, the court looked to language in CALJIC No. 2.90 that requires, “the entire comparison and consideration of all the evidence,” and to other instructions reinforcing this message, to conclude there was no reasonable likelihood the jury would have understood moral certainty to be disassociated from the evidence of the case.  (Id. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 597.)   So too here, the modified instruction required the jury to base its decision on the “comparison and consideration of all the evidence.”   Moreover, other instructions were given which required the jury to “determine the facts of the case from the evidence received in the trial” and to “apply the rules of law ․ to the facts․”

Thus, contrary to Abbott's assertion the trial court's omission of the phrase “the minds of the jurors in that condition that they cannot say they feel” tempted the jury to abandon reasoning and rely solely on emotions or “gut instinct,” the court's abbreviation of that awkward phrase to “do not feel,” did not undermine CALJIC No. 2.90's requirement that jurors look to the empirical evidence offered at trial in making their decision.   In addition to the modified instruction, the court also told the jury it was not to be “influenced by sentiment, conjecture, passion, prejudice, public opinion or public feeling,” and that it “must not be biased against the defendant because he has been arrested ․ or charged with a crime.”   Although the omitted “mind” phrase indicates the source from which a juror may develop the “feeling” of an abiding conviction, the totality of the instructions and specific reference in the modified instruction to “a comparison and consideration of all the evidence,” accomplishes the same thing by inherently directing the jurors to base their decision on an exercise of the mind;  a reasoned analysis of the totality of the evidence, rather than on unfounded emotions.

Hence, on this record, we cannot find the modified instruction misled the jury as to the prosecution's burden of proof.   Nor do we believe it was reasonably likely the jurors understood the modified instruction allowed them to convict Abbott based on factors “disassociated from the evidence” provided at trial.   No constitutional due process violation is shown.

II

Readbacks of Trial Testimony

 Pointing to three instances during the trial where the court discouraged the jurors from asking for a reread of trial testimony, Abbott next contends the trial court improperly dissuaded the jury from submitting requests to have various testimonies reread in violation of section 1138,¹¹ and contrary to CALJIC No. 17.48, thereby depriving him of a fair trial.   A review of the record and pertinent law show no prejudicial error occurred.

During the court's opening remarks to the jury, before the start of arguments and testimony, it encouraged the jury to pay attention to the witnesses and cautioned the jury about note taking.¹²  In doing so, it also told the jurors it would be possible to have the court reporter read back testimony, but discouraged such because a reread usually does not capture the demeanor of the witnesses.

At the close of all evidence, the court instructed the jury with a modified version of CALJIC No. 17.48,¹³ which provided in pertinent part:

“Jurors should rely on their own recollection of the evidence after discussion with their fellow jurors and not upon the notes of other jurors.   If after full discussion of the evidence by the jury you are unable to resolve a disagreement or uncertainty as to what a certain witness may have said on a particular subject, and the dispute must be resolved in order to reach a just verdict, you may request that the court reporter read back the relevant testimony.”  (Italics added.)

Finally, after closing arguments, the court again commented about a readback of testimony:

“If you need testimony reread, the way you ask is by writing a note, telling us as specifically as you can what it is you need reread.   I hope that you won't need to do that.   This has been a short case.   You've heard it.   You heard the attorneys argue about perceived differences in the testimony of various witnesses.   You're going to have to figure out what, if any, significance those differences have, and hearing them once again is not going to help you.   You heard it the first time, and I'm quite sure you can remember it.  [¶]  So I would think that you probably wouldn't need anything of that sort in this case, and it does present problems, and including problems of time as to when to do it.   So you should expect that there will be more delay with regard to rereading of testimony than there would be with regard to any other question.   We have to go through and look at the record and find out what we have to do about it and talk about it.   And it takes even more time to do that.   So I hope it won't happen.  [¶]  But, again, as I said before, if in order to reach a just result you do need that, then of course we'll do it, and you shouldn't hesitate to do it if you really need it.   What I'm urging upon you is that you decide for sure that you do really need it before you do it.”

The record here shows the jury did not request rereading of any testimony nor did the court refuse any such request.   Moreover, Abbott did not object to the court's various admonitions concerning the readback of trial testimony.¹⁴

The court's first mention about requests for testimony readbacks merely told the jurors information about the process, encouraged them to rely on their memories and invited them to come back to court to request such a readback “if there be any disagreement between them as to the testimony․”  (§ 1138.)   As such, the court's comments were a legitimate effort to help the jurors focus on the evidence.  (People v. Sprinkle (1962) 201 Cal.App.2d 277, 19 Cal.Rptr. 804.)

The second instance occurred when the court instructed the jury similarly to CALJIC No. 17.48, admonishing it to only request a readback if there were a material disagreement as to the evidence necessary to its resolution of an issue in the case.   Contrary to Abbott's assertion the instruction given by the court impermissibly conflicted with CALJIC No. 17.48 because it failed to advise the jurors they had a statutory right to request a readback and such readback would prevail over their notes, section 1138 only provides such a right if the jurors disagree as to the testimony.¹⁵  (See People v. Whitt (1984) 36 Cal.3d 724, 746–747, 205 Cal.Rptr. 810, 685 P.2d 1161.)   Moreover, the instruction read to the jury was a proper admonition to help it focus on what was actually required to assist it in its deliberation, without unnecessarily using court time.  (People v. Sprinkle, supra, 201 Cal.App.2d at p. 282, 19 Cal.Rptr. 804.)

The court's final remarks concerning the readback of testimony contain the strongest language discouraging such practice.   Although we do not approve of such emphatic judicial discouragement, we conclude the court's final admonishment, when read in context with other instructions, simply does not rise to the level of coercion or prejudicial interference with a juror's statutory right to have testimony reread that is required for reversal.  (See People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669, disapproved on another point in People v. Mason (1991) 52 Cal.3d 909, 943, fn. 13, 277 Cal.Rptr. 166, 802 P.2d 950.)   Although the court's comments discouraged the readback of testimony, telling the jury about the burdens of such rereading, it qualified its remarks by informing the jury it should not hesitate to request readbacks where such were really needed.

Nor do we find the cumulative effect of the three admonishments requires reversal in this case.   The court's comments were made during a trial which lasted only three days with a presentation of evidence lasting less than two full days.¹⁶  As noted above, here there was neither an indication the jury either desired or indicated it needed rereading of testimony, nor an outright refusal.   In this context, a fair reading of the court's comments shows no violation of Abbott's rights.   Thus the trial court did not prejudicially err in its admonitions to the jury.

III–V **

DISPOSITION

Abbott's conviction is affirmed.   The true finding on the section 667, subdivision (a) serious felony prior based on his 1957 Texas robbery by assault conviction is reversed and the punishment for that enhancement is stricken.   The other true findings on his prior serious felony convictions are affirmed.

The trial court is directed to prepare an amended abstract of judgment to reflect the sentence as modified by this opinion and to forward it to the State Department of Corrections.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   Apparently, during a quarrel about money between Abbott and a woman he had been drinking with that evening, Abbott lunged at the woman with a knife, missed her and struck a “glancing blow to the sternum” of another bar patron.

4.   The first paragraph of CALJIC No. 2.90, the standard California instruction, states:  “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] guilt is satisfactorily shown, [he] is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving [him] guilty beyond a reasonable doubt.”   (Italics added.)CALJIC No. 2.90 then goes on to define reasonable doubt as follows:  “It is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, 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, to a moral certainty, of the truth of the charge.”  (Italics added.)

5.   Abbott has not raised any arguments concerning the rearrangement of the last two sentences.   Nor would such arguments have merit.   Such rearrangement neither changed the content of the instruction nor caused the jury to convict Abbott based on proof less than that constitutionally required.

6.   Because the court altered the phrase “leaves the minds of the jurors in that condition that they cannot say they feel,” Abbott argues the modified instruction allowed the jurors to look beyond the empirical evidence offered at trial to their own emotions.

7.   In so concluding, the court in Freeman suggested that making these changes, i.e., deletions, in the standard reasonable doubt instruction might very well be appropriate in light of the high court's statement in Victor that the instruction's “ ‘common meaning ․ may continue to [change] to the point that it’ becomes unconstitutional.   [Citation.]”  (People v. Freeman, supra, 8 Cal.4th at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   To that end, it also urged the “Legislature or the Committee on Standard Jury Instructions—Criminal of the Los Angeles Superior Court (the CALJIC committee) to examine this matter comprehensively so that California may have the best possible instruction.”  (Ibid.)

8.   The court in Freeman stated an instruction modified according to its suggestions would read 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.”  (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9, 34 Cal.Rptr.2d 558, 882 P.2d 249.)

9.   The court in Victor explained the ambiguity caused by the use of the term “moral certainty” in CALJIC No. 2.90 was mitigated, in part, because of the context provided by the “moral evidence” phrase.  (Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. at p. 1246, 127 L.Ed.2d at pp. 595–596.)

10.   In making this decision, we emphasize that trial courts should not modify CALJIC No. 2.90 as the trial court did here, but should limit any modification to omitting both the phrases “and depending on the moral evidence” and “to a moral certainty” as discussed in Freeman.

11.   Section 1138 provides that:  “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.”

12.   The court specifically stated:  “It's desirable to write down things that you think you can't remember.   It's not desirable to get into trying to make a court reporter's record of all the proceedings.   You can't write as fast as she can, and you will get distracted from the evidence if you try to do that․  Make sure that you're paying attention to what's going on and that you write down those things that you really think you need to.  [¶]  However, don't assume that just because the court reporter's writing it down that that's going to do you any good.   It normally doesn't.   The problem is that if the court reporter's notes are translated into plain English, it happens after you're all through with your work, and so that transcript is normally of no help to you.  [¶]  “It is possible to have the court reporter read back testimony, and sometimes we do that.   I try to discourage it because it usually isn't helpful.   The thing is that it's better to hear it the first time.   You can that way listen to the witness's intonation, watch body language and all that.   The court reporter won't be able to imitate these things for you.  [¶]  And it's been my experience that when juries do want testimony reread, it doesn't seem to be that it's—the 12 of them can't remember what it was;  it's that they do remember what it was, and there's some problem with it.   It's ambiguous or it's self-contradictory, or—there's something about it that is worrying the jurors, and they hope that if they hear it again, it will be better.  [¶]  But it isn't.   It stays just the same except for what it loses by not being able to have it repeated by the witness.   So what I'm trying to do now is to encourage you to write down what you need and to discourage you from relying on the court reporter, but at the same time to fix your attention on the actual evidence.”

13.   The first portion of CALJIC No. 17.48 states the jury instructions concerning jurors use of notes:  “You have been given notebooks and pencils for such use as you wish to make of them.   Please leave them in the jury room and use them when you deliberate.   Notes are only an aid to memory and should not take precedence over independent recollection.   They are for the note-taker's own personal use in refreshing his or her own recollection of the evidence.”The last paragraph of the instruction states:  “Finally, should any discrepancy exist between a juror's recollection of the evidence and his or her notes, he or she may request that the reporter read back the relevant proceedings and the trial transcript must prevail over the notes.”

14.   We note this issue is being raised for the first time on appeal and, although recognizing it is not waived by a failure to object at trial, we are mindful that defense counsel had the benefit of considering whether to object based on the entire context of the trial, including the intonations and demeanor of the judge giving the instructions, whereas we are left only with the trial record.

15.   The modified language used by the court merely stated an implied element of CALJIC No. 17.48, i.e., that readbacks are available for resolving disagreements which are relevant to the jury's decision as opposed to mere disagreements or lapses of recollection which have no bearing on the outcome.

16.   Had the trial been of more substantial complexity and longer duration, our analysis of the third admonishment, and consequently the outcome of this issue, may have been different.

FOOTNOTE.   See footnote 1, ante.

HUFFMAN, Associate Justice.

KREMER, P.J., and HOFFMAN, J.*** concur.