People v. Adrian

• Decision Date: 25 August 1982
• Docket Number: Cr. 10654
• Citation: 185 Cal.Rptr. 506,135 Cal.App.3d 335
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leo Henry ADRIAN, Defendant and Appellant.

Page 506

185 Cal.Rptr. 506

135 Cal.App.3d 335

PEOPLE of the State of California, Plaintiff and Respondent, v. Leo Henry ADRIAN, Defendant and Appellant.

Cr. 10654.

Court of Appeal, Third District, California.

Aug. 25, 1982.

Quin Denver, State Public Defender, and Marjorie C. Swartz, Deputy State Public Defender, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Div., Arnold O. Overoye, Asst. Atty. Gen., and Joel E. Carey and Raymond L. Brosterhous, Deputy Attys. Gen., for plaintiff and respondent.

OPINION ON REHEARING

BLEASE, Associate Justice.

Defendant was convicted by a jury of assault with a deadly weapon. (Pen.Code, § 245, subd. (a).) He seeks reversal for refusal of the trial court to give a requested Sanchez instruction that the defendant is entitled to an acquittal if the evidence raises a reasonable doubt of self defense. (People v. Sanchez (1947) 30 Cal.2d 560, 184 P.2d 673.) We hold that such an instruction must be given upon request whenever the claim of self defense has been properly tendered and the evidence warrants submitting the issue to the jury. We also hold that, in light of the other instructions, the failure to give the requested instruction was harmless.

I

In the early morning of February 3, 1979, defendant became embroiled in a dispute with the driver of a van parked in front of the Electric Disco in Lodi, during which he inflicted a knife wound on the driver's right wrist. Defendant's theory of defense was self defense and the jury was instructed on the substantive law of the defense. (CALJIC Nos. 5.30, 5.31, 5.50, 5.51, 5.52, 5.53, 5.54, 5.55, 9.07.) ¹ The court gave the standard instruction on the prosecution's burden of persuasion (CALJIC No. 2.90), but denied defendant's request for an instruction derived from the homicide case of People v. Sanchez, supra, 30 Cal.2d at p. 571, 1184 P.2d 673. ² The requested instruction states "It is not necessary for defendant to establish self-defense by evidence sufficient to satisfy the jury that the self-defense was true, but if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified, then he is entitled to an acquittal." (Id., at pp. 570-571, 184 P.2d 673.)

Defendant claims a right to the requested instruction as pinpointing the crux of his case. He relies on this passage in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885, 123 Cal.Rptr. 119, 538 P.2d 247: "[T]he defendant is entitled upon request to an instruction 'relating particular facts to any legal issue.' (People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847].) Such a requested instruction may, in appropriate circumstances, relate the reasonable doubt standard for proof of guilt to particular elements of the crime charged (id.) or may 'pinpoint' the crux of a defendant's case, such as mistaken identification or alibi (People v. Roberts (1967) 256 Cal.App.2d 488, 492-494 ; People v. Gomez (1972) 24 Cal.App.3d 486, 490 )." (Emphasis added.)

The People respond by saying that the Sears decision, upon which Rincon-Pineda is based, requires that the instruction relate "particular facts to any legal issue." They also rely on language in People v. Pierce (1979) 24 Cal.3d 199, 211, 155 Cal.Rptr. 657, 595 P.2d 91: "[Defendant] requested an instruction on reasonable doubt that focused on identification of the defendant as the person responsible for the crime. The trial court refused the instruction and instead gave CALJIC No. 2.90, derived from Penal Code section 1096.... Notwithstanding section 1096a, a defendant upon proper request has a right to an instruction that directs attention to specific evidence from which the jury could infer a reasonable doubt. [Citations.] The instruction requested here did not focus on specific evidence, however, but simply restated the presumption of innocence; accordingly, the court did not err in refusing it. (Cf. People v. Gomez (1972) 24 Cal.App.3d 486, 490 ....)" (Emphasis added.) ³

Extracting the italicized language from its context in case law, the People say that the requested instruction does not focus on specific evidence but only restates the burden of proof in negative terms.

The People misconceive the nature of a pinpoint instruction. What is pinpointed is not specific evidence as such, but the theory of the defendant's case. It is the specific evidence on which the theory of defense "focuses" which is related to reasonable doubt. This relationship between theory and evidence can be seen in People v. Granados (1957) 49 Cal.2d 490, 319 P.2d 346, upon which both Sears and Pierce expressly rely. At issue was a requested instruction "[t]hat if the jurors had a reasonable doubt that the defendant committed a violation of section 288 of the Penal Code or attempted violation of said section on the date of October 1, 1956, then they could not return a verdict of guilty of first degree murder based upon the theory that there was an unlawful killing of a human being with malice aforethought in the perpetration or attempted perpetration of a violation of section 288 of the Penal Code." (Fn. omitted.) (Granados, at pp. 495-496, 319 P.2d 346.) The court said: "It was error to refuse this instruction. It accurately stated the law and pinpointed the theory of the defense. [p] Section 1096a of the Penal Code declares that when the statutory definition of reasonable doubt is given (see Pen.Code, § 1096), no other instruction need be given defining reasonable doubt. Despite this section, a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered. (People v. Kane, 27 Cal.2d 693, 699 et seq. ; People v. Wilson, 100 Cal.App. 428, 431 [280 P. ]; People v. Plywood Mfrs. of Calif., 137 Cal.App.2d Supp. 859, 872 .)" (Fns. omitted.) (Emphasis added.) (People v. Granados, supra, 49 Cal.2d at p. 496, 319 P.2d 346.)

The Granados instruction "direct[ed] attention to evidence" of the felony upon which the felony murder theory of the case was predicated by focusing attention on the specific felony and relating it to reasonable doubt. It " 'pinpoint[ed]' the crux of ... defendant's case ...." (People v. Rincon-Pineda, supra, 14 Cal.3d at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247; see also People v. Castellano (1978) 79 Cal.App.3d 844, 145 Cal.Rptr. 264; People v. Sandoval (1970) 9 Cal.App.3d 885, 88 Cal.Rptr. 625.) Yet it "focus[ed] on specific evidence" no more concretely than does the instruction requested in this case. The Sanchez case implicitly characterized its instruction as a pinpoint instruction by founding it upon People v. Kane (1946) 27 Cal.2d 693, 166 P.2d 285, a pinpoint instruction case, relied upon in Granados and Sears. (See People v. Sanchez, supra, 30 Cal.2d at p. 571, 184 P.2d 673.) Other cases have said as much. "The Sanchez instruction is a specific point, actually a pinpointing or amplification of two general principles--the rule of reasonable doubt and the defense of justification." (People v. Sandoval, supra, 9 Cal.App.3d at p. 888, 88 Cal.Rptr. 625.)

A pinpoint instruction does embody an allocation of the ultimate burden of proof since it tells the jury that the People bear the burden of persuasion on the issue which the instruction pinpoints. The Sanchez instruction accomplishes this task for the issue of self defense. It says that the defendant need not produce "evidence sufficient to notify the jury that the self defense was true," but is instead entitled to an acquittal "if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified [by self defense]." It derives from cases interpreting Penal Code section 1105, which in murder cases imposes upon the defendant the "burden of proving circumstances of mitigation ...." ⁴ These authorities conclude that the "burden" of section 1105 is the burden of producing evidence ⁵ of mitigation and not the burden of persuasion, which remains with the state. ⁶

Although the Sanchez instruction grew out of a statutory provision governing murder cases, we can find no reason to distinguish non-homicidal from homicidal assault cases. Self defense negates culpability for assaultive crimes, whether or not the assault results in death. (See People v. Enriquez (1977) 19 Cal.3d 221, 228, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Martin (1980) 101 Cal.App.3d 1000, 1010-1011, 162 Cal.Rptr. 133; People v. Garcia (1969) 275 Cal.App.2d 517, 79 Cal.Rptr. 833; People v. Jackson (1965) 233 Cal.App.2d 639, 43 Cal.Rptr. 817; 1 Witkin, Cal.Crimes, §§ 159-164.) In either event self defense goes directly to guilt or innocence. (Compare People v. Roe (1922) 189 Cal. 548, 564-565, 209 P. 560, with People v. Garcia, supra, 275 Cal.App.2d 517, 79 Cal.Rptr. 833.) On matters directly going to guilt or innocence, the burden of persuasion is on the state. (Pen.Code, § 1096; People v. Tewksbury (1976) 15 Cal.3d 953, 963-965, 127 Cal.Rptr. 97, 544 P.2d 1335; see also 2 Jefferson, Evidence Benchbook (2d ed. 1982) § 45.1); see also Evid.Code, § 501 and comment thereto.)

The People have confused the pinpoint instruction with commenting upon the evidence, a responsibility which our constitution and statutes confine to the court. (Cal.Const., art. VI, § 10; Pen.Code, §§ 1093, 1127; see People v. Castellano, supra, 79 Cal.App.3d at p. 857, 145 Cal.Rptr. 264; cf. People v. Rincon-Pineda, supra, 14 Cal.3d at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247.) The pinpoint instruction highlights the burden of persuasion applicable to a decisive element of the case. It does not cast doubt upon the credibility of the prosecution evidence but stresses the burden which the prosecution bears in the jury's evaluation of the evidence. " 'It is not for the trial judge to say that certain testimony should raise a reasonable doubt in the minds of the jurors as to an...