People v. Allen

• Decision Date: 03 January 1978
• Docket Number: Cr. 8887
• Citation: 76 Cal.App.3d 748,143 Cal.Rptr. 164
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Lee ALLEN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 164

143 Cal.Rptr. 164

76 Cal.App.3d 748

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Lee ALLEN, Defendant and Appellant.

Cr. 8887.

Court of Appeal, Third District, California.

Jan. 3, 1978.

As Modified Jan. 13, 1978.

Rehearing Denied Jan. 23, 1978.

Hearing Denied March 2, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Nelson P. Kempsky, Deputy Attys. Gen., for plaintiff and respondent.

Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, Laurance S. Smith, Deputy State Public Defender, Richard E. Shapiro, Deputy State Public Defender, for defendant and appellant.

PARAS, Associate Justice.

Defendant appeals from a judgment entered after a jury convicted him of assault with a deadly weapon (Pen.Code, § 245), with use of a firearm. (Pen.Code, § 12022.5.)

Since defendant does not challenge the sufficiency of the evidence, it is unnecessary for us to state the facts in detail. It was undisputed that as the victim Steven Mitchell was walking away after a confrontation, defendant shot him in the buttocks. Defendant's claim that Mitchell had a weapon, and that he acted in self-defense, was rejected by the jury. On appeal, defendant makes several arguments:

1. The abstract of judgment must be modified by striking the punishment imposed pursuant to Penal Code section 12022.5, since the court failed to give jury instructions covering that section.

2. The statement in the abstract of judgment that defendant used a firearm within the meaning of section 12022.5 must be stricken because the trial court failed to pronounce judgment and sentence on this charge.

3. The trial court erred when it failed to instruct the jury sua sponte that the prosecution was required to demonstrate beyond a reasonable doubt the absence of any self-defense justification.

4. The trial court erred in admitting incriminating statements made by defendant during an interview at which he was not advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

I

Defendant contends that the jury was not given a sufficient instruction on use of a firearm in the commission of the crime. (Pen.Code, § 12022.5.) We disagree. As part of its instructions to the jury, the court stated that it was charged against defendant: "That during the commission of the above offense, said defendant used a firearm, to wit, an unknown caliber automatic pistol, in violation of section 12022.5 of the Penal Code of the State of California." The jury was given verdict forms which gave it the alternative of finding that defendant did or did not use a firearm during the commission of the offense; it found that he did.

Defendant argues that the court should have given CALJIC 17.19, because such an instruction "was essential to define the statutory term 'uses a firearm.' " (People v. Najera (1972) 8 Cal.3d 504, 510, fn. 5, 105 Cal.Rptr. 345, 350, 503 P.2d 1353, 1358.) This argument has no validity. On the undisputed facts of the case, there was never any question that defendant used a firearm. There was nothing as to which CALJIC 17.19 would have been helpful. That instruction simply states that "The word 'firearm' includes a pistol . . ." and that "That term 'used a firearm' includes . . . an intentional discharge thereof . . . ." Defendant does not and cannot argue on this record that the pistol was not a firearm or that he did not discharge it intentionally. Any conceivable error on this issue was absolutely harmless. ¹

II

Despite the trial judge's oral recitation at the time of sentencing, that the defendant "was found by the jury to have used a firearm, a pistol, in violation of section 12022.5," defendant insists that the judge's failure to repeat the phrase a moment later in his actual sentence must be viewed as an exercise of judicial leniency, or if inadvertent, as an error of jurisdictional significance which cannot now be corrected (citing In re Candelario (1970) 3 Cal.3d 702, 705-706, 91 Cal.Rptr. 497, 477 P.2d 729, and its progeny).

This contention must be rejected. The recent Supreme Court decision in People v. Hunt (1977) 19 Cal.3d 888, 897, 140 Cal.Rptr. 651, 657, 568 P.2d 376, 382, holds that Candelario does not apply to "use" findings under Penal Code section 12022.5 because such findings can only be stricken by an order accompanied by a statement of reasons "set forth in an order upon the minutes," as required by Penal Code section 1385. As stated in Hunt : "It is manifest that because even an express order of dismissal pursuant to section 1385 is ineffective in the absence of a statement of reasons, a use finding cannot be dismissed or struck sub silentio, as defendant claims in this case. There was not, of course, a statement of reasons in support of defendant's claimed striking." (Ibid.)

III

Defendant argues that the court erred in failing to instruct sua sponte that the prosecution was required to prove the absence of self-defense beyond a reasonable doubt. The argument is premised upon the contention that this court's opinion in People v. Sandoval (1970) 9 Cal.App.3d 885, 887, 88 Cal.Rptr. 625, is no longer good law after the United States Supreme Court's decision in Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.

In Sandoval, as in the present case, the trial court gave the standard instruction on reasonable doubt and a group of instructions, requested by defendant, on the elements of self-defense. But in Sandoval, as here, defense counsel did not request a specific instruction combining self-defense and reasonable doubt, such as the one approved in People v. Sanchez (1947) 30 Cal.2d 560, 571, 184 P.2d 673.

Relying on the general rule that a trial court must instruct the jury sua sponte on " 'those principles of law commonly or closely and openly connected with the facts of the case . . . ,' but need not instruct on specific points developed at the trial unless requested," (emphasis added) the Sandoval court held that "(t)he Sanchez instruction is a specific point . . .", and hence need not be given sua sponte. (9 Cal.App.3d at p. 888, 88 Cal.Rptr. 625, 626.) The Sandoval court added that "When, as here, the defendant requests a group of instructions describing a particular theory of defense, he impliedly represents that the request fulfills his need. He would trap the trial court into error were he permitted to expand the request at the appellate stage. Here the judge fulfilled his sua sponte obligations when he instructed the jury on the general principles of reasonable doubt and self-defense. Defendant's failure to request the amplifying Sanchez instruction bars his claim of error on appeal. (People v. Wren (1969) 271 Cal.App.2d 788, 793, 76 Cal.Rptr. 673.)" (9 Cal.App.2d at p. 888, 88 Cal.Rptr. at p. 627.)

In Mullaney v. Wilbur, supra, the United States Supreme Court held that the State of Maine's requirement that a defendant charged with murder prove that he acted "in the heat of passion on sudden provocation" in order to reduce the homicide to manslaughter, violated the due process requirement (as defined in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368), that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Defendant argues that Mullaney has elevated to constitutional status the requirement that the prosecution must prove the absence of any justification beyond a reasonable doubt and that therefore "the assumption in Sandoval that (this) . . . principle is merely a specific application of the (reasonable doubt) . . . rule is no longer tenable."

Defendant's argument ignores the fact that the Mullaney rule (albeit not expressed in constitutional terms) was settled law in California at the time of the Sandoval decision, and had been for decades earlier. (See cases and statutes collected in People v. Tewksbury (1976) 15 Cal.3d 953, 963-964, 127 Cal.Rptr. 135, 544 P.2d 1335.) Mullaney's overt recognition of the constitutional underpinnings of the California rule does not require a Sanchez instruction sua sponte where that instruction is simply particularization of other given instructions.

Accordingly, we reaffirm the holding in Sandoval that an instruction that the prosecution must disprove self-defense beyond a reasonable doubt, need not be given sua sponte.

IV

Defendant's final contention is that the trial court erred in admitting a tape recorded statement given by him to police officers. The statement was made a little over two weeks after the crime, which was committed on December 29, 1975, in an unincorporated part of metropolitan Sacramento. It was thus investigated by the county sheriff's office, not the Sacramento Police Department. Although the record is not totally clear, it indicates that defendant was not arrested for the crime until sometime after January 15, 1976. In the meantime, the Sacramento City Police Department was investigating the murder of a man named Drayton who had been shot and killed near defendant's residence on January 10, 1976. On January 14, a person who knew defendant told police that the killing might have been a case of mistaken identity, with defendant the real target. Defendant was at that time in the county jail on a traffic warrant, and an officer spoke to him there about the desire of City Police Officer Pane to have defendant call him as soon as possible, preferably at 7 a.m. the next morning.

Defendant was released from jail about midnight, and went to a motel. He overslept and did not call Pane. Pane telephoned him about 8 or 8:30 a.m. He explained that defendant might be the real target of the Drayton homicide; defendant responded that he knew about it and that Pane could come to get him so they could discuss it. Pane drove to the motel (the defendant was staying there under an assumed name, to...