PEOPLE v. WIMS (1993)

Clifton Wims and Wilbert Ford appeal their convictions by jury trial of second degree robbery.  (Pen.Code, § 212.5, subd. (b).) ¹  Deadly weapon use allegations were found true as to both appellants (§ 12022, subd. (b)), and the court found that Ford had a prior serious felony conviction.  (§§ 667, 1192.7.)   They raise Wheeler ² and instructional error.   Wims additionally contends the court erred in failing to reread testimony requested by the jury.

FACTS

On the evening of November 12, 1991, Paige D'Agostino and his fiancee Elizabeth Gebhardt were walking home when they noticed Wims and a woman involved in an altercation.   Someone asked D'Agostino and Gebhardt for spare change, and they said they had none.   Suddenly, Ford grabbed D'Agostino around the neck from behind and pulled him backward.   Wims hit D'Agostino twice in the head with a crutch, and struck him with his fists in the face and chest.   Ford then swung D'Agostino into the crosswalk where he landed on his knees.   Ford and Wims began pulling on D'Agostino's black leather jacket. Gebhardt screamed at them to let go of D'Agostino when codefendant Carolyn Gipson ³ pushed her and hit her in the head.   Ford continued to pull on D'Agostino's jacket and then held a knife eight inches from his face and threatened to “cut [him] up” if he didn't let go of the jacket.   D'Agostino relinquished the jacket and Ford left with it.   D'Agostino and Gebhardt continued walking.   D'Agostino was bleeding profusely from his nose, mouth and cheek.   Tom McCoy, a passing motorist, spoke with them and contacted the police.

According to Gebhardt, as Wims hit D'Agostino with the crutch, Ford held him and said, “Give us your money.”   After Wims beat D'Agostino with the crutch he threw it down, and Gebhardt saw him holding a knife.   Gipson displayed another knife and threatened her with it.   Gebhardt testified that Ford also had a knife, but on cross-examination stated she told police she was not sure if Ford or Wims had a knife.   After the incident Gebhardt accompanied police to the scene and identified Wims, Ford and Gipson as the perpetrators.   As police approached, Wims threw down a set of keys identified by Gebhardt as belonging to her and D'Agostino.   Ford and Wims each possessed a knife when arrested.

McCoy testified that he saw Wims hitting a White man and Ford pulling at the man's jacket.   Both Wims and Ford were holding knives.

DISCUSSION

I **

II

Appellants claim the court erred in failing to instruct the jury, sua sponte, on the deadly weapon use enhancement pursuant to CALJIC 17.16.   The People contend any error is harmless.   The jury found that both appellants used a deadly weapon in commission of the robbery, and thus were subject to a one-year enhancement under section 12022, subdivision (b).⁴

CALJIC 17.16 states:  “It is alleged in [Count[s] _] that in the [attempted] commission of the crime charged, the defendant[s] _ personally used a deadly or dangerous weapon.  [¶] If you find such defendant [s] guilty of the crime[s] thus charged [or an attempt to commit such crime] [or lesser included crime], you must determine whether or not such defendant[s] personally used a deadly or dangerous weapon in the [attempted] commission of such crime[s].  [¶] A deadly or dangerous weapon means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death.  [¶] The term ‘used a deadly or dangerous weapon,’ as used in this instruction, means to display such a weapon in a[n intentionally] menacing manner or intentionally to strike or hit a human being with it.  [¶] The People have the burden of proving the truth of this allegation.   If you have a reasonable doubt that it is true, you must find it to be not true.  [¶] You will include a special finding on that question in your verdict, using a form that will be supplied for that purpose.”

The only instruction given to the jury regarding deadly weapon use stated:  “This [robbery] instruction has a further requirement on you.   We further find that the use of the deadly weapon allegation, violation of Penal Code Section 12022 [subdivision] (b) to be, there's another blank, true or not true.   If and when you reach a verdict as to this particular allegation, then your foreperson is to write in the correct true or not true, date it and sign it.”   The jury was never instructed on the elements of the section 12022, subdivision (b) allegation, i.e., that it had to find that appellants personally used the weapon in committing the robbery.

 The court must instruct sua sponte on “the general principles of law relevant to the issues raised by the evidence.”  (People v. Wickersham (1982) 32 Cal.3d 307, 323–324, 185 Cal.Rptr. 436, 650 P.2d 311, citations and internal quotation marks omitted;  accord, People v. Cummings (1993) 4 Cal.4th 1233, 1312, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   The People argue that any error was harmless because the jury's verdicts finding appellants guilty of robbery established their identity as the persons who assaulted the victims, and the evidence that they each personally used deadly weapons in committing the robbery was overwhelming.

 In Cummings, the Supreme Court recently held that the trial court's failure to instruct on four of the five elements of robbery was reversible.   (People v. Cummings, supra, 4 Cal.4th at pp. 1312–1316, 18 Cal.Rptr.2d 796, 850 P.2d 1.)  Cummings distinguished numerous prior cases applying the harmless error standard in instructional error cases, stating:  “These decisions make a clear distinction between instructional error that entirely precludes jury consideration of an element of an offense and that which affects only an aspect of an element.   Moreover, none suggests that a harmless error analysis may be applied to instructional error which withdraws from jury consideration substantially all of the elements of an offense and did not require by other instructions that the jury find the existence of the facts necessary to a conclusion that the omitted element had been proved.”  (Id., at p. 1316, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   Where such instructional error exists, the case must be reversed regardless of whether the evidence overwhelmingly established all the elements of the offense.

Appellants argue that Cummings compels a similar result in the instant case due to the court's failure to instruct the jury on the elements of the dangerous or deadly weapon use enhancement.   Whether the judge's failure to instruct the jury on the elements of an enhancement is reversible per se or may be found harmless appears to be a question of first impression.

The People rely on People v. Odle (1988) 45 Cal.3d 386, 247 Cal.Rptr. 137, 754 P.2d 184, which applied a harmless error standard of review to the trial court's omission of instructions on the elements of the special circumstance of intentionally killing a peace officer engaged in the performance of his duty (§ 190.2, subd. (a)(7)) alleged in conjunction with a murder charge.   Cummings explained that the instructional error in Odle was subject to harmless error analysis in part because of “the unique status of a special circumstance allegation.”  (People v. Cummings, supra, 4 Cal.4th at p. 1313, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   Although by statute special circumstance allegations must be charged in the information and found by the jury, there is no constitutional right to a jury trial on that issue.   Consequently, “but for the statutory mandate, [the special circumstance allegation] would be a sentencing issue.  [Citation.]”  (Ibid.) Odle also applied a harmless error standard because, pursuant to Rose v. Clark (1986) 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, it determined that the instructional error did not necessarily render the trial fundamentally unfair, abort the basic trial process, or deny it altogether.  (People v. Odle, supra, at p. 413, 247 Cal.Rptr. 137, 754 P.2d 184.)

Cummings determined that Odle does not apply when jury instructions fail to advise the jury of the elements of a charged “offense.”   (People v. Cummings, supra, 4 Cal.4th at p. 1313, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   When the error precludes the jury from considering an element of an “offense,” the error necessarily renders the trial unfair and is prejudicial.

In People v. Hernandez (1988) 46 Cal.3d 194, 210–211, 249 Cal.Rptr. 850, 757 P.2d 1013, the Supreme Court reversed a true finding on an enhancement because the defendant had not been given notice that the section 667.8 enhancement (kidnapping for purposes of rape) required pleading and proof of its specific mental state, and because the court failed to instruct the jury that it had to find the specific mental state.   The defendant had been charged with general intent crimes.   After trial, the probation report mentioned for the first time the possible application of section 667.8.   The court noted that despite substantial evidence regarding the defendant's intent in kidnapping his victim, the belated addition of the sentence enhancement raised the issue of the defendant's specific intent, where he had been charged only with general intent crimes.   Under such circumstances the defendant had no incentive to present evidence on the issue of his specific intent necessary for the enhancement.   As a matter of due process the error could not be deemed harmless.

In discussing the instructional error, Hernandez noted that misinstruction of a special circumstance or an enhancement may be subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705.   However, it distinguished misinstruction from the circumstance where the issue of intent is removed from the jury's consideration.   In such a case the error cannot be deemed harmless.   (People v. Hernandez, supra, 46 Cal.3d at pp. 210–211, 249 Cal.Rptr. 850, 757 P.2d 1013.)

 An enhancement is “an additional term of imprisonment added to the base term.”  (Cal.Rules of Court, rule 405(c);  People v. Hernandez, supra, 46 Cal.3d at p. 207, 249 Cal.Rptr. 850, 757 P.2d 1013.)   A weapon use or firearm enhancement, like a special circumstance, does not define a substantive crime.  (People v. Morris (1988) 46 Cal.3d 1, 16, 249 Cal.Rptr. 119, 756 P.2d 843.)   Instead, an enhancement imposes an added penalty when the crime is committed under specified circumstances (People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 512–513, 148 Cal.Rptr. 740), although an enhanced term requires proof of each of its requisite elements.  (People v. Hernandez, supra, at p. 208, 249 Cal.Rptr. 850, 757 P.2d 1013.)

 As we previously stated, the jury was not instructed that section 12022, subdivision (b), requires that the defendant personally use a deadly weapon.   However, the jury was instructed on aiding and abetting, which would allow a positive finding on the enhancement based on a codefendant's use of a weapon.   Consequently, it cannot be said beyond a reasonable doubt that the jury's finding on the enhancement was not affected by the court's erroneous instruction.

III ***

DISPOSITION

The imposition of the one-year enhancements for use of a deadly weapon is reversed.   The judgments are otherwise affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

3.   Gipson does not appeal.

FOOTNOTE.   See footnote *, ante.

4.   Section 12022, subdivision (b) provides, in relevant part:  “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted.”

FOOTNOTE.   See footnote *, ante.

HANING, Associate Justice.

PETERSON, P.J., and KING, J., concur.