PEOPLE v. CALDWELL (1992)

Convicted by jury of first degree murder (count I, Pen.Code,1 §§ 187, subd. (a), 12022.5) and possession of a firearm by a felon (count II, § 12021, subd. (a)) appellant contends:  (1) the trial court erred in instructing the jury to view his extrajudicial statements with caution (2) there is insufficient evidence of first degree murder and (3) the trial court erred in failing to give a unanimity instruction (CALJIC No. 17.01) regarding count II.   We find no error and affirm the judgment.

FACTUAL BACKGROUND

We provide this introductory summary and defer a more detailed description of the evidence for our insufficiency of evidence discussion.

On January 3, 1991, 12–year–old Walter David Campbell (David) lived with his 4–year–old sister (Porshay), their mother, and his stepfather (appellant) in a two-story apartment in Hawaiian Gardens, Los Angeles County.   The bedrooms were on the first floor, the kitchen and living room on the second floor.

Sometime around 5:30 p.m. David's mother and stepfather (appellant) began arguing.   The argument continued upstairs and downstairs and lasted about 30 minutes.   It ended when appellant shot his wife once in the stomach while she was on the living room couch.

Appellant called 911.   Deputy sheriffs promptly arrived, recovered the murder weapon and two other handguns outside the apartment and a fourth and fifth handgun inside the apartment, and arrested appellant.   The victim, now lying on the living room floor partly covered by a blanket, was alive but incoherent.   She soon expired.

DISCUSSION

1. Appellant contends the trial court erred in instructing the jury to view his extrajudicial statements with caution.

Because appellant's extrajudicial, unrecorded oral statements were received in evidence the trial court gave CALJIC No. 2.70, defining a confession and admission, including its last paragraph, as follows:

“A confession is a statement made by a defendant other than at his trial in which he has acknowledged his guilt of the crimes for which such defendant is on trial.   In order to constitute a confession, such a statement must acknowledge participation in the crimes as well as the required criminal intent or state of mind.

“An admission is a statement made by the defendant other than at his trial which does not by itself acknowledge his guilt of the crimes for which such defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.

“Evidence of an oral confession or oral admission of the defendant should be viewed with caution.”

Appellant concedes the appropriateness of all but the last paragraph.   Further, he acknowledges “[i]n the usual circumstance” the last paragraph is proper “because it directs the jury to determine whether the admission was actually made and whether it was accurately reported.”  (Emphasis added.)   But, appellant argues, in the instant trial, the last paragraph constituted prejudicial error.

The factual underpinnings of this argument are the following:  Sgt. Royer, a prosecution witness, testified to appellant's post-arrest statements;  those statements were exculpatory (I argued with my wife.   I saw a gun on the love seat next to the couch she was on.   I picked up the gun, turned to go downstairs, my hand hit an audio speaker and the gun went off—striking my wife.), and those statements were the basis of the defense.

In such circumstances, appellant asserts, it is error to give the last paragraph.   The error is prejudicial, appellant maintains, because “[t]he jury is effectively being instructed that the law requires that the defendant's testimony and the defense be viewed with distrust.”  (Original emphasis.)

For several reasons appellant's contention is without merit.

 First, there were other extrajudicial statements by appellant.   Some were highly inculpatory and irreconcilable with appellant's “accident” defense.   For example, David testified that shortly before the shooting appellant said to his wife:  “I'm going to kill you, bitch.”   With such testimony it would have been error to omit the “view with caution” paragraph of the instruction.

 Second, decisional authority requires the trial court, sua sponte, to instruct the jury to view non-recorded oral admissions with caution.  (People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Stankewitz (1990) 51 Cal.3d 72, 93, 270 Cal.Rptr. 817, 793 P.2d 23;  People v. Hudson (1981) 126 Cal.App.3d 733, 742, 179 Cal.Rptr. 95.)   Appellant cites no authority for the proposition, and we are aware of none, that fulfilling this duty becomes error when a defendant adopts rather than contests his “admission.”

 Third, the instruction did not “require[ ] that the defendant's testimony ․ be viewed with distrust.”   Appellant was not a trial witness, did not testify, and thus there was no “defendant testimony ” to view either with trust or distrust.

 Fourth, the instruction did not direct the jury to view “the defense ․ with distrust.”   This point is worth elaborating because there appears to be some confusion about the meaning of this “view with caution” paragraph.  (See e.g. People v. Vega (1990) 220 Cal.App.3d 310, 316–318, 269 Cal.Rptr. 413 and People v. Senior (1992) 3 Cal.App.4th 765, 776–777, 5 Cal.Rptr.2d 14.)   Appellant interprets it to mean the jury must view the content of his statement (as related by Sgt. Royer) with distrust.   To put it more plainly, even if the jury believed that Sgt. Royer recounted appellant's words with perfect 100 percent accuracy, they should still judge the truthfulness of those words by a more demanding standard (“view with caution”) than other evidence.

The attorney general (as does People v. Vega and People v. Senior ) agrees that if a defendant's extrajudicial statement is an “admission ” (i.e., in culpatory) then the jury must view it (i.e., its content ) with caution.²

We believe this interpretation is mistaken.   The subject paragraph states that “Evidence of an oral confession or oral admission of the defendant should be viewed with caution.”  (Emphasis added.)   The evidence of a defendant's oral admission is a witness's testimony.  (Evid.Code, § 140:  “ ‘Evidence’ means testimony ․ offered to prove the existence or nonexistence of a fact.”)   It is that testimony the jury is instructed to view with caution.   Here, because Sgt. Royer did not electronically record appellant's statement, the jury was instructed to view Sgt. Royer's testimony with caution.   In effect, they were to carefully consider whether, as Sgt. Royer testified, appellant made any statements to Sgt. Royer and, if he did, whether Sgt. Royer accurately reported (i.e., testified to) those statements.

This plain meaning, to view the witness's testimony with caution, is consistent with the purpose and history of the instruction.  (People v. Beagle, supra, 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Stankewitz, supra, 51 Cal.3d 72, 94, 270 Cal.Rptr. 817, 793 P.2d 23.)

Contrary to appellant's argument, the instruction does not tell a jury to view with distrust a statement they believe the defendant made and which a witness accurately related.   The penultimate paragraph states they are “the exclusive judges as to whether the defendant made ․ an admission, and if so, whether such statement is true in whole or in part.”   Nothing in this language, or in any other portion of the instruction, suggests that in deciding “whether such statement is true ” the jury should apply a special (“view with caution”) standard.

Appellant's contention is without merit.

2. Appellant contends there is insufficient evidence of first degree murder.

Appellant does not contest that the evidence sufficiently proved he killed his wife or that he intended to do so or that he did so with malice aforethought.   He concedes substantial evidence of second degree murder.

Appellant does contest substantial evidence of premeditation and therefore of first degree murder.

“Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt.”   (People v. Perez (1992) 2 Cal.4th 1117, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

 The record contains the following evidence of premeditation:  (1) Appellant argued with his wife for about 30 minutes (2) during the argument appellant obtained a gun, went upstairs and displayed it to his wife (3) appellant said to his wife:  “I'm going to kill you, bitch” (4) his wife responded, “If you are going to kill me, kill me now” (5) appellant went downstairs and loaded the gun (6) appellant removed his clothes except for his boxer shorts (7) appellant went upstairs and, while his wife lay on the couch, shot her once in the stomach (8) appellant toppled the audio speaker, knocking it to the living room floor (9) appellant lifted his wife from the couch and lay her on the living room floor, covering her with a blanket (10) appellant told David to get rid of the guns (11) appellant, shortly after he shot his wife, falsely told the police he had accidentally struck the audio speaker while holding the gun causing it to discharge and strike his wife who was sitting on the couch and (12) appellant, on evening of the murder, telephoned David and threatened to have him killed if he told the police the truth.

Appellant argues the foregoing evidence fails to satisfy the Anderson (People v. Anderson (1968) 70 Cal.2d 15, 26–27, 73 Cal.Rptr. 550, 447 P.2d 942) standard for premeditation.   The argument need not be addressed.   Anderson, although not overruled by People v. Perez, has been construed to insignificance.

Measured against the evidence of premeditation found sufficient in People v. Perez (the defendant surreptitiously entered the victim's house and when she surprised him he beat and stabbed her to death) and in People v. Wharton (1991) 53 Cal.3d 522, 280 Cal.Rptr. 631, 809 P.2d 290 (the defendant murdered the woman he was living with by striking her three times with a hammer while she slept), approved by Perez, we find sufficient evidence of premeditation to sustain the judgment.

Appellant's contention is not well taken.

3. Appellant contends the trial court erred in failing to give a unanimity instruction (CALJIC No. 17.01) regarding count II.

 Appellant argues that his conviction of count II, a felon in possession of a firearm, might have been based on the fact of his picking up the gun from the love seat moments before it accidentally discharged (as the defense urged) or his earlier possession of the gun (as the prosecution contended).   Because these two acts were substantially different, jury unanimity was required.³  Appellant is mistaken.

 There is no uncertainty about which act of gun possession the jury relied upon.   In finding appellant guilty of premeditated murder (after less than three hours of deliberation) the jury, of necessity, rejected the “fact” that appellant picked up the gun from the love seat.   Accordingly “there was no realistic possibility of disagreement among the jurors․” ⁴

(People v. Dell (1991) 232 Cal.App.3d 248, 265, 283 Cal.Rptr. 361.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise noted all statutory references are to the Penal Code..  FN1. Unless otherwise noted all statutory references are to the Penal Code.

2.   But if ex culpatory then without caution.We discern no useful purpose for including definitions of a confession and an admission in CALJIC No. 2.70.   A more concise, understandable, and useful instruction would refer simply to “statements.”   Such an instruction would eliminate the, too often, metaphysical distinction between an admission and a nonadmission, a distinction which Evidence Code section 1220 does not make, notwithstanding its misleading heading.   (But see Evid.Code, § 5:  “․ headings do not in any manner affect the scope, meaning, or intent of the provisions of this case.”)

3.   CALJIC No. 17.01 provides:“The defendant is accused of having committed the crime of _ [in Count _].  The prosecution has introduced evidence tending to prove that there is more than one [act] [or] [omission] upon which a conviction [on Count _] may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of such [acts] [or] [omissions].   However, in order to return a verdict of guilty [to Count _], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions].   It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”

4.   We need not consider appellant's alternative section 654 argument.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.