People v. Mayo

• Citation: 44 Cal.Rptr.3d 497,140 Cal.App.4th 535
• Decision Date: 14 June 2006
• Docket Number: No. B180282.,B180282.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Quentin MAYO, Defendant and Appellant.

44 Cal.Rptr.3d 497

140 Cal.App.4th 535

The PEOPLE, Plaintiff and Respondent, v. Quentin MAYO, Defendant and Appellant.

No. B180282.

Court of Appeal, Second District, Division 7.

June 14, 2006.

Sharon Fleming, under appointment by the California Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P.J.

The jury in this first degree murder case was instructed the People have the burden to prove beyond a reasonable doubt each of the elements of murder; the defendant Quentin Mayo must be found not guilty of murder in the first degree unless the jury concludes beyond a reasonable doubt the murder was deliberate and premeditated; and resolution of Mayo's guilt must be based on the evidence presented and not on facts outside the evidence or inferences derived from the fact of Mayo's arrest or resulting trial. Apparently through an oversight, however, the trial court failed to instruct the jury with CALJIC No. 2.90,¹ defining reasonable doubt as the absence of "an abiding conviction of the truth of the charge" and admonishing the jury the defendant is presumed innocent until the contrary is proved. Was that omission federal constitutional error requiring reversal?

The United States Supreme Court has held unequivocally the federal Constitution does not require the trial court to define reasonable doubt or to instruct specifically on the presumption of innocence, provided the jury is adequately informed of the reasonable doubt standard and the corollary due process requirement that guilt be determined only from the evidence presented at trial. Consistent with that authority, we hold the instructions given adequately apprised the jury of both the reasonable doubt standard and the due process requirement that guilt be adjudged solely on the evidence presented. Thus, the omission of CALJIC No. 2.90 in this case was not federal constitutional error; and any error in omitting the instruction was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.

We also hold the trial court did not err in admitting the victim's hearsay statements as dying declarations or in failing sua sponte to instruct the jury in accordance with CALJIC No. 8.73 that provocation may be considered in determining whether the homicide in this case was a first degree or second degree murder. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An amended information charged Mayo with a single count of murder, identifying the victim as Gregory McHenry, and specially alleged that Mayo personally used and discharged a firearm in committing the offense. (Pen.Code, § 12022.53, subd. (b), (c), & (d).)² It further alleged Mayo had one prior serious or violent felony conviction within the meaning of the "Three Strikes" Law. (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d).) Mayo pleaded not guilty and requested a jury trial.

According to the evidence presented at trial, McHenry was shot 11 times as he sat on the couch in the living room of Carl Combs's apartment. Immediately after the shooting and while McHenry lay bleeding from his mortal wounds, McHenry screamed at Combs, "`Why did you let `Q' [Mayo's nickname] blast me?'" Combs, who was in the kitchen at the time of the shooting and did not see McHenry's assailant, reported McHenry's outburst to police during a taped interview. At trial, however, Combs denied that McHenry had identified Mayo and testified McHenry had actually said (and Combs had accurately reported to police), "`Why did you let him blast me?'"³

Khristie Chong was outside the apartment, heard the shots and saw Mayo leave the apartment soon after the shots were fired. Reginald Carter, Combs's neighbor, told police he was at home at the time of the shooting and saw Mayo, a regular visitor to Combs's apartment, fleeing Combs's apartment following the gun shots. At trial Carter denied he was at home when McHenry was shot. Brian Jarukadruta, who was at the apartment at the time of the shooting, told Chong (his sister) and others "Q" was the shooter, although Jarukadruta denied at trial he had seen McHenry's assailant or had said "Q" was the shooter. There was also testimony Mayo and McHenry had been engaged in a feud for weeks over McHenry's boasting that he had slept with Mayo's wife in exchange for providing her with drugs and that the two men had resumed their quarrel the day of the shooting. McHenry and Mayo were both members of the "By Yourself Hustlers Gang." Several witnesses expressed fears about testifying in this case involving gang members. After the shooting, Mayo fled to Arizona and then to Georgia.

Mayo did not testify. Defense counsel advanced the theory that someone else had shot McHenry. Witnesses testified that as many as 30 people went into and out of Combs's residence the day of the shooting. One witness testified he had heard shots and later saw four Black males in their mid-20's run out of the apartment and into a black truck. Los Angeles County Police Department Detective William Dunn, who interviewed Combs the day of the shooting, testified Combs had told him McHenry had many enemies.

The jury found Mayo guilty of first degree murder and found the firearm allegation to be true. After Mayo waived his right to jury trial on the prior strike allegation, the trial court found the allegation to be true, but exercised its discretion to dismiss the strike under section 1385. The trial court sentenced Mayo to an aggregate state prison term of 50 years to life, consisting of 25 years to life for the base offense plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).⁴

DISCUSSION

Mayo contends the trial court's inadvertent omission of CALJIC No. 2.90's definition of reasonable doubt and explanation of the presumption of innocence is federal constitutional error that is either structural in nature and therefore reversible per se (Sullivan v. Louisiana (1993) 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (Sullivan)) or, at minimum, is not harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman)). Although the omission of CALJIC No. 2.90 may amount to federal constitutional error when a jury is not adequately instructed as to both the constitutional burden of proof and the requirement that guilt be determined solely on the evidence presented, as we explain below, those circumstances do not exist in this case.⁵

1. Governing Law: Due Process, Beyond a Reasonable Doubt and the Presumption of Innocence

a. The reasonable doubt standard

The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution protect a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. (Sullivan, supra, 508 U.S. at p. 278, 113 S.Ct. 2078; see also In re Winship (1970) 397 U.S. 358, 363-364, 90 S.Ct. 1068, 25 L.Ed.2d 368 ["The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt."].)

Although the reasonable doubt standard is an integral part of the criminal defendant's due process guarantee, there is no federal constitutional requirement that trial courts define reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 ["The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course."]; United States v. Nolasco (9th Cir.1991) 926 F.2d 869, 872; United States v. Garza (9th Cir.1992) 980 F.2d 546, 555; see also Holland v. United States (1954) 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 ["`Attempts to explain the term `reasonable doubt' do not usually result in making it any clearer to the minds of the jury.'"].) Thus, while an instruction that lowers the People's burden of proof or detracts from the heavy burden suggested by use of the term "reasonable doubt" is federal constitutional error requiring reversal per se (see Sullivan, supra, 508 U.S. at p. 279, 113 S.Ct. 2078 [when there is no conviction beyond a reasonable doubt because of a constitutionally deficient definition of reasonable doubt, error not amenable to harmless error analysis]), omission of a constitutionally acceptable definition of reasonable doubt is federal constitutional error only when the instructions given to the jury, taken as a whole, fail to otherwise adequately convey the concept of reasonable doubt. (Victor, at p. 5, 114 S.Ct. 1239["[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. [Citation.] Rather, `taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.' [Citation.]"].)

b. The presumption of innocence

The "presumption of innocence" — a "shorthand description of the right of the accused to `remain inactive and secure'" until the People have met their burden of proof — is inherent in the reasonable doubt standard. (Taylor v. Kentucky (1978) 436 U.S. 478, 483, 98 S.Ct. 1930, 56...