People v. Bounds

¶1I concur in all portions of the majority opinion affirming the judgment except that portion in paragraph V holding that the Chapman standard of prejudice (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]) applies to the instructional error in relation to count I (attempted first degree murder), from which I respectfully dissent. While I agree that error occurred because of conflicting jury instructions (People v. Ramos (1982) *81230 Cal.3d 553, 582 [180 Cal.Rptr. 266, 639 P.2d 908]; People v. Johnson (1981) 30 Cal.3d 444, 448-449 [179 Cal.Rptr. 209, 637 P.2d 676]; People v. Collie (1981) 30 Cal.3d 43, 63 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776]; People v. Murtishaw (1981) 29 Cal.3d 733, 763 [175 Cal.Rptr. 738, 631 P.2d 446]), I would hold that the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]) is the appropriate standard in reviewing this kind of error. However, I would affirm the conviction of attempted first degree murder under either the Chapman or the Watsontest.

¶2None of the California Supreme Court cases dealing with Murtishawerror (People v. Murtishaw, supra, 29 Cal.3d 733) suggests that other than the Watsontest of prejudice applies. Murtishawis the first in a series of such cases dealing with error arising out of instructions defining implied malice (CALJIC No. 8.11) and felony murder, there in the context of a charge of assault with intent to commit murder. The court held that the concept of felony murder is inapplicable to such crime, as is “the concept of implied malice, insofar as it permits a conviction without proof of intent to kill . . . .” (p. 764), but that the erroneous instructions were not prejudicial, for “in light of the evidence presented it is virtually certain that the jury found defendant intended to kill these victims”; and applied the test of prejudice established in People v. Watson, supra,46 Cal.2d 818, 836, concluding it was not “reasonably probable that a result more favorable to defendant would have been reached in the absence of error . . . .” (P. 765.)

¶3In People v. Collie, supra,30 Cal.3d 43, defendant assaulted his estranged wife, bound, gagged and locked her in her bedroom, then left turning on the gas burner and leaving a lighted candle surrounded by combustibles; his daughter was asleep in her bedroom. The court found error in that the jury was instructed that it need not find a specific intent to kill in order to convict of attempted murder, and held “The instructional error was harmless regarding the conviction for the attempted first degree murder of Mrs. Collie, because the jury was properly instructed that the verdict required findings of premeditation and deliberation, which entail a specific intent to kill. But the verdict of guilt on the attempted second degree murder charge was not insulated from error. Although the jury was properly instructed that a specific intent to kill would satisfy the intent requirement of an attempted second degree murder charge, it is impossible to determine whether the verdict rested on that ground, for which there was little evidence, or on the impermissible basis of defendant’s wanton conduct, which was more clearly supported by the record. Because we cannot know on which instruction the jury relied, the conviction for attempted second degree murder of defendant’s daughter must be reversed. [Citations.]” (P. 62.)

¶4*813It is true, as pointed out by the majority opinion, that the court in Colliedid not discuss the standard of prejudice it employed; but contrary to the view of my colleagues that it is “unclear” whether the Colliecourt applied the Watsonor the Chapman standard, I find no such lack of clarity in Collie. First, absence of discussion concerning the standard being used in Colliesuggests to me, in light of the court’s reliance on Murtishawto point up the instructional error, that there was no necessity for such discussion for, as in Murtishaw, it adopted the Watsonstandard. Second, it seems to me that had the Chapman standard been used in Collie, the court would have discussed the constitutional dimensions of the error, instead, it merely found the error to be harmless in the one conviction and reversible in the other. Third, had the Colliecourt employed any standard other than Watson, surely it would have surfaced in the next like case of People v. Johnson, supra,30 Cal.3d 444, decided two months later, but it did not; and the court in Johnson, although reversing the conviction of attempted murder, quoted from Murtishaw, held it was error to instruct on implied malice (CALJIC No. 8.11) and expressly applied the Watsontest of prejudice. (Pp. 448-449.)

¶5One month later, the court decided People v. Ramos, supra,30 Cal.3d 553, which also applied the Watsontest. After robbing a fast food restaurant, defendant shot and killed one employee and wounded another; he was convicted of robbery, murder and attempted murder. Although the jury was instructed on the elements of attempt to commit a crime, it was also instructed on implied malice and felony murder; but the court neglected to instruct that the crime of attempted murder requires a specific intent to kill. Even so, following Murtishaw, the court found the error not to be prejudicial and, applying Watson, affirmed the conviction. “The prosecution case at the guilt phase strongly indicated that appellant attempted to kill the two witnesses to the robbery. Intent was inferable from the circumstances of the crime. Since appellant presented no evidence at the guilt phase, there was no substantial basis from which the jury would conclude otherwise.” (P. 584, fn. 13.)

¶6Likewise applying Watsonare Court of Appeal decisions, People v. Santascoy (1984) 153 Cal.App.3d 909, 919 [200 Cal.Rptr. 709] and People v. Young (1981) 120 Cal.App.3d 683, 693 [175 Cal.Rptr. 1]. A divided court in People v. Acero (1984) 161 Cal.App.3d 217 [208 Cal.Rptr. 565], relied upon by appellant herein, after holding Beeman (People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318]) error compelled a mandatory reversal, proceeded to hold the error in defining implied malice for the jury and failing to instruct on specific intent to kill in an attempted murder charge, to be reversible per se. The court relied upon People v. Garcia (1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826], which *814held the error for failure to instruct on the intent required for a finding of a felony-murder special circumstance, to be reversible per se. Said the Acerocourt, “Even assuming the Watsonor Chapman standard is the appropriate test of prejudice, reversal of Acero’s conviction is nonetheless required. Acero’s jury was instructed on both express malice, for which there was a paucity of evidence in the record, and implied malice, which was more clearly supported in the record. We cannot know whether the jury convicted him of attempted murder under the former correct instruction or the latter, incorrect instruction. [Citation.]” (P. 229.) Said the dissenting Justice, after concluding the case was not subject to the Garcia-Carlos standard (reversible per se), “As to the Murtishawerror, the same general analysis applies to the absence of a specific intent to kill instruction, since the jury was properly instructed on express malice and there was no reasonable basis for concluding the jury found otherwise than that Acero had the specific intent to kill as he pummeled and stabbed the victim with the rifle butt,” citing Ramosand Murtishaw, and that he would affirm the judgment. (P. 234.)

¶7Relying upon People v. Garcia, supra,36 Cal.3d 539 and United States Supreme Court cases cited therein, and adopting the Acerorationale, my colleagues depart from the line of California Supreme Court cases applying the Watsonstandard of prejudice to Murtishawinstructional error in favor of the Chapman standard applicable to errors of federal constitutional dimensions. In my view, the majority herein having relied upon Garciaand the Acerorationale is bound to hold such error to be no less than reversible per se. Further, I am unable to equate the error in the instant case, in which the jury was properly and fully instructed on the necessity for a finding of specific intent to kill in an attempted murder conviction, with the error in Garciaand Aceroinvolving a total failure to instruct on the element of intent to kill, or the giving of any instruction which completely removes the issue of intent from the jury. I find no similarity whatever between the instant case and those relied upon by the majority.

¶8Because People v. Garcia, supra,36 Cal.3d 539, was a pre-Carlos (Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862]) case, the court did not instruct that a felony-murder special circumstance requires an intent to kill or to aid in a killing. Thus, applying Carlos retroactively (p. 550), the Supreme Court then dealt with the appropriate standard of prejudice and held the error to be reversible per se because the failure to instruct on specific intent to kill removed the issue of intent from the trier of fact and deprived defendant of due process of law in violation of the Fourteenth Amendment. (P. 551.) Relying on a series of United States Supreme Court decisions concluding with Sands from v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450] involving the consti*815tutionality of state practices relating to presumptions and burdens of proof, the Garciacourt held the reasoning in those cases would invalidate any instruction or failure to instruct which would permit the state to circumvent the requirement that it prove every fact necessary for conviction beyond a reasonable doubt, and the same consequence should attend failure to instruct on an element of a special circumstance. (P. 551.) It concluded that, absent exceptional considerations not therein found, the error in failing to instruct that proof of intent to kill or aid a killing is essential to a finding of a felony-murder special circumstance, was reversible per se for it completely eliminated the issue of intent to kill from the consideration of the jury.1 (Pp. 556-557.)

¶9There is in the instant case no failure to instruct on the requisite intent, as in Garciaand Acero, in fact, the jury was fully instructed that a specific intent to kill is a necessary element of attempted murder and, as in Collie(which affirmed the attempted first degree murder of Mrs. Collie), was additionally instructed that the verdict required findings of premeditation and deliberation, which entail a specific intent to kill. Although instructional error occurred here, it is virtually certain in light of the evidence, the instructions, the defenses and counsels’ closing jury arguments, that the issue of specific intent to kill in no manner was removed from the jury’s consideration. The jury simply could not have convicted Bounds of attempted first degree murder without finding that he possessed the specific intent to kill Mr. C.

¶10Bounds sought an acquittal on the defenses of mistaken identity, arguing the weight to be given the identification testimony, and alibi, relying on his three alibi witnesses; and asked the jury to reject his confession on his own testimony that he did not confess and did not say any of the things about the crime attributed to him by Detective Gallon. The record establishes that the prosecutor presented to the jury the issue of intent, told the jurors that specific intent to kill was an essential element of the charge of attempted murder which the prosecution had to prove beyond a reasonable doubt, and argued the evidence showing defendant had a specific intent to kill Mr. C. However, the defense relied solely on mistaken identity and alibi, and neither relied upon nor argued lack of intent to kill. Defendant chose to ignore the issue inasmuch as he claimed he was not the assailant and was elsewhere *816at the time the crimes were committed. The only time defense counsel even alluded to the issue of intent to kill was a passing reference made solely in the context of what the assailant had said to one of the victims,2 “It is also very interesting about the statements that the assailant made. Now, I had Mr. Bounds testify to you about some of his background in jail and so forth, because I think that it really repudiates what this assailant said. Now, obviously, when this assailant came in, I don’t think that he had any intent on getting caught period. May be [he] did intend to murder both of these people before he left, I don’t know. But it would make no sense for the assailant, with his lackadaisical attitude about hiding his identity, to just make up stories about how long he had been in jail and all that sort of thing.”3; (italics added).

¶11In addition to CALJIC Nos. 8.11, 8.21 and 8.31, the court gave the following instructions under which the jury simply could not have found Bounds guilty of attempted murder without finding he had the intent to kill Mr. C. The jury was first informed that one of the charged crimes (count I) was attempted murder (CALJIC Nos. 3.31, 8.10). Inasmuch as the validity of the confession was in issue, the court gave CALJIC No. 2.70, and instructed on the defenses of mistaken identity (CALJIC No. 2.91) and alibi (CALJIC No. 4.50). Then the court instructed that in the crime charged in count I, attempted murder, “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed” (CALJIC No. 3.31); that an attempt to commit a crime consists of two elements, one of which is “a specific intent to commit the crime ....'” (CALJIC No. 6.00); that “The crime of attempted murder requires the specific intent to kill another human being” (CALJIC No. 3.31); that the intent with which an act is done is shown by a statement of his intent made by the defendant and by the circumstances attending the act (CALJIC No. 3.34); that defendant is charged with the crime of attempted murder, and one of the elements of murder which must be proved is “3. That the killing was done with malice aforethought” (CALJIC No. 8.10); that “Malice is express when there is manifested an intention unlawfully to kill a human being” (CALJIC No. 8.11); and that murder in the first degree is a deliberate and premeditated killing, and “If you find that the attempted killing was preceded and accompanied by a clear, deliberate intent on the *817part of the defendant to kill ... it is murder of the first degree.” (CALJIC No. 8.20.)

¶12The foregoing instructions made it very clear to the jury that the crime charged in count I was attempted murder, and that to convict defendant it had to find that he had the specific intent to kill. I cannot agree with the majority opinion that the instructions given violated defendant’s due process rights under the Fourteenth Amendment. The instructions taken as a whole, the evidence, the defenses raised and counsel’s closing jury arguments compel my conclusion that the issue of specific intent to kill was not removed from the consideration of the jury—that the state was required to, and did, prove beyond a reasonable doubt every fact necessary to convict of attempted first degree murder; there was no failure to instruct on the requisite intent, as in People v. Garcia, supra,36 Cal.3d 539 and People v. Acero, supra,161 Cal.App.3d 217, in fact, the court repeatedly instructed the jury it had to find specific intent to kill before it could convict defendant of attempted murder; the instructions did not permit the jury to find guilt on count I (attempted murder) without proof beyond a reasonable doubt of intent to kill; the jury was instructed on every element of attempted murder; no element of the crime of attempted murder was removed from the consideration of the jury; and no one was misled that it was unnecessary to prove specific intent to kill. I am convinced beyond any doubt at all that the jury, after rejecting Bound’s defenses of mistaken identity and alibi, could not have convicted him of attempted murder without finding he intended to kill Mr. C. before leaving the premises. Following California Supreme Court precedent dealing with Murtishawinstructional error, it is my conclusion that the standard established in People v. Watson, supra,46 Cal.2d 818, 836 is the appropriate standard to use in reviewing the nature of the error.

¶13I find the error to be harmless under whatever standard is employed—the Chapman test or the Watsontest—and would affirm the conviction of attempted first degree murder (count I) under either standard. In all other respects I concur in the majority opinion.