Opinion
JOHNSON, J. Facts and Proceedings Below*
I.-IV.*
V. Although the Trial Court Erred in Instructing the Jury on the Attempted Murder Count, the Error Was Harmless
1. The Trial Court Erred by Giving Conflicting Instructions to the Jury.
Bounds argues the trial court erred in instructing the jury regarding proof of the crime of attempted murder since these instructions included [806]reference to the concept of implied malice. Bounds argues this error was prejudicial.
“In instructing upon the crime of attempt to commit murder, there should never be any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder, and the instructions in this respect should be lean and unequivocal in explaining to the jury that only a specific intent to kill will do.” (People v. Santascoy (1984) 153 Cal.App.3d 909, 918 [200 Cal.Rptr. 709]; accord People v. Murtishaw (1981) 29 Cal.3d 733, 762-764 [175 Cal.Rptr. 738, 631 P.2d 446], cert. den. (1982) 455 U.S. 922 [71 L.Ed.2d 464, 102 S.Ct. 1280]; People v. Collie (1981) 30 Cal.3d 43, 61-62 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776].)
In the case at bar, in instructing the jury relevant to this count, the court first correctly gave CALJIC No. 3.31 as follows; “In each of the crimes charged in counts I [attempted murder], II, III, and IX, of the information, . . ., 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 that specific intent exists, the crime to which it relates is not committed. The specific intent required is included in definitions of the crimes charged. The crime of attempted murder requires the specific intent to kill another human being . . . .” The court then gave modified versions of CALJIC Nos. 8.10, 8.11, 8.20, 8.21, 8.71, and 6.00. As the court stated in part: “The defendant is charged in count I of the information with commission of the crime of attempted murder .... The crime of murder is the unlawful killing of a human being with malice aforethought. In order to prove the commission of the crime of murder, each of the following elements must be proved: One, that a human being was killed, that the killing was unlawful, and that the killing was done with malice aforethought . . . . [¶] Malice is implied when the killing is the direct cause and result of the perpetration or attempt to perpetrate a felony, inherently dangerous to human life. Robbery and burglary are felonies which are inherently dangerous to human life .... [¶] If you find that the attempted killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of a deliberation and premeditation, so that it must have been formed on pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder in the first degree . . . . [¶] The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a result of the commission of or attempt to commit the crime of burglary or robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime is murder of the first degree .... [¶] If you are convinced beyond a reasonable doubt that the crime of attempted murder has been committed by a [807]defendant, but you have a reasonable doubt whether such attempted murder was of the first or second degree, you must give the defendant the benefit of that doubt and return the verdict fixing the attempted murder as of the second degree, [¶] Attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime and a direct but ineffectual act done toward its commission.” (Italics added.)
Taken as a whole, the instructions on attempted murder were confusing and may have been interpreted in such a way that the jury did not believe it necessary to reach the issue whether Bounds had the specific intent to kill. It was error for the court to instruct on implied malice in this setting. The People argue, however, the instructions made it clear the charged crime was attempted murder and required a finding of the specific intent to commit murder. The People argue the instructions on felony murder were not given as a substitute for the intent to kill requirement but were given as a means for the jury to determine the degree of the murder Bounds attempted to commit, such determination coming after they found he committed the crime of attempted murder. Although this may have been the intended purpose in giving these instructions, this purpose is not at all clear from a reading of the instructions as a whole.9 The court erred in so instructing the jury.
2. Standard of Prejudice
In People v. Murtishaw, supra, 29 Cal.3d at pp. 763-764, the Supreme Court applied, without discussion, the Watson test in determining whether misinstruction on the intent requirement for attempted murder was prejudicial error. Subsequent Supreme Court decisions also applied this standard, again without any discussion concerning why it applied this standard or rejected alternative standards. (See People v. Ramos (1982) 30 Cal.3d 555, 584 [180 Cal.Rptr. 266, 639 P.2d 908], revd. on other grounds in California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446]; People v. Johnson (1981) 30 Cal.3d 444, 448-449 [179 Cal.Rptr. 209, 637 P.2d 676].) In another Supreme Court case, People v. Collie, supra, 30 Cal.3d 43, 62, it is unclear whether the court was applying a Watson or Chapman standard in reversing the decision for Murtishaw error. (See People v. Acero (1984) 161 Cal.App.3d 217, 229 [208 Cal.Rptr. 565].) In light of recent United States Supreme Court and California Supreme Court de[808]cisions, however, it is highly questionable whether Watson continues to be the appropriate standard.
In People v. Garcia (1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826], cert. den. (1985) — U.S. — [84 L.Ed.2d 366, 105 S.Ct. 1229], the California Supreme Court addressed, in part, the test of prejudice applicable when a trial court fails to instruct a jury that proof of intent to kill or to aid a killing is essential to a finding of felony-murder special circumstance under the 1978 death penalty initiative. In addressing this issue the court looked solely to federal precedent. The key federal case examined by the court was Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450]. In that case, the defendant was found guilty of deliberate homicide-criminal homicide that is committed purposely or knowingly. In instructing the jury, the trial court gave the jury the following instruction: “The law presumes that a person intends the ordinary consequences of his voluntary acts.” The Supreme Court held this instruction violated the defendant’s due process rights since it operated either as a conclusive presumption on the issue of the defendant’s intent or as a burden-shifting presumption, shifting the burden of persuasion to the defendant to prove he did not have the requisite intent. (Id., 442 U.S. at p. 524 [61 L.Ed.2d at p. 51].) As such, the instruction improperly relieved the state of the burden of proving beyond a reasonable doubt that the defendant had the requisite intent.
The Garcia court in discussing Sandstrom recognized the reasoning of that case, and other Supreme Court decisions which have addressed the same issue, extends beyond the factual context of these cases. As the court stated: “That reasoning 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.” (Italics added.) (People v. Garcia, supra, 36 Cal.3d at p. 551.) Under this interpretation, the instructional error committed in the case at bar would certainly also appear to fall within the Sandstrom rationale and as such constitute a violation of the defendant’s federal due process rights.
This becomes even more apparent after examining a very recent United States Supreme Court case, Francis v. Franklin (1985) — U.S. — [85 L.Ed.2d 344, 105 S.Ct. 1965]. In this case, the Supreme Court reaffirmed the principles established in Sandstrom—an instruction which could be interpreted by a juror to create a mandatory presumption shifting to the defendant the burden of persuasion on the element of intent is constitutionally infirm. Importantly, the court reached the result even though other proper instructions on the issue of intent were given. As the court stated: “The Court today holds that contradictory instructions as to intent—one of [809]which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion—create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate this possibility. If such a reasonable possibility of an unconstitutional understanding exists, ‘we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.’ Sandstrom, 442 U.S., at 526.” (Francis v. Franklin, supra, — U.S. at pp.---, fn. 8 [85 L.Ed.2d at pp. 358-359, 105 S.Ct. at pp. 1075-1076].)
Although the challenged instructions given in the case at bar are factually dissimilar to those in Sandstrom and Franklin, there can be little doubt, especially in light of Garcia, the California Supreme Court would find the reasoning of these cases directly applicable in the current context. As such, we conclude the contradictory instructions given in the case at bar violated the defendant’s due process rights under the Fourteenth Amendment.
Since the error in the case at bar is of federal constitutional dimensions, the standard of error is governed by federal law. (Chapman v. California (1967) 386 U.S. 18, 21 [17 L.Ed.2d 705, 708, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Taylor (1982) 31 Cal.3d 488, 499 [183 Cal.Rptr. 64, 645 P.2d 115]; People v. Coffey (1967) 67 Cal.2d 204, 219 [60 Cal.Rptr. 457, 430 P.2d 15].) As such, the Watson standard is not the appropriate standard to use in assessing the nature of the error. (Ibid.)
The Supreme Court in Sandstrom and Franklin did not resolve the issue of whether the erroneous instruction given in those cases could ever be harmless, i.e., whether the error was prejudicial per se or whether Chapman was the applicable test.10 Although we believe per se reversal may well be the appropriate standard, we are unwilling to adopt this standard in the case at bar since the United State Supreme Court has not as of yet determined [810]the appropriate standard and the California Supreme Court has not recently addressed this issue in this context.11
Pursuant to Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) Thus, we must determine, reviewing the evidence in its entirety, whether the jury, beyond a reasonable doubt, would have found Bounds had the specific intent to kill Mr. C. if the erroneous instructions had not been given and the correct ones had. (See People v. Townsend (1971) 20 Cal.App.3d 919, 925 [98 Cal.Rptr. 8]; People v. Turner (1971) 22 Cal.App.3d 174, 184 [99 Cal.Rptr. 186]; People v. Robinson (1970) 6 Cal.App.3d 448, 453 [86 Cal.Rptr. 56], cert. den. (1970) 400 U.S. 907 [27 L.Ed.2d 145, 91 S.Ct. 149].) In effect, this means we must ask two questions: first, given the instructions the jurors actually heard, could a reasonable juror have convicted the defendant of attempted murder without finding he had a specific intent to kill. If the answer to this question is affirmative, we must ask whether a reasonable juror, properly instructed on the issue of intent and construing the evidence on this issue most favorably to the defendant, could entertain a reasonable doubt about whether the defendant had a specific intent to kill. We already have explained why the answer to the first question is yes and thus move on to the second. Based on our review of the evidence explained below, we conclude the answer is no and thus find the error to be harmless even under the Chapman standard.
In the case at bar, the intruder from the outset repeatedly threatened to kill Mr. C. and Ms. H., initially with a gun and later also with a knife. After the intruder had been in the condominium for about an hour, he forced Mr. C. to go into a spare bedroom. He forced him to lie face down on the bed and bound his hands to his feet. He then slit Mr. C.’s throat with a knife and left him in that position while he committed the sexual offenses with Ms. H. Later, upon realizing Ms. H. had escaped, the intruder returned to the room where Mr. C. was bound, and with a different knife in [811]his hand, plunged the knife into Mr. C.’s neck. Mr. C.’s left vertebral artery was severed and his jugular vein was lacerated. After he plunged the knife into Mr. C.’s neck, the intruder picked Mr. C. up by the shoulders and threw him across the room, leaving the knife implanted in Mr. C.’s neck. It is hard to think of a more compelling set of facts establishing the requisite intent. As such, we are forced to conclude had the jury been properly instructed, no reasonable juror could have reasonably doubted the defendant possessed the specific intent to kill.12 Therefore, the trial court’s error in misinstructing the jury does not require reversal.13
VI.-XI.*
Disposition
The judgment of conviction is modified in that: (1) Bounds shall serve only two additional periods of imprisonment pursuant to section 12022.5; and (2) the true findings on the allegations of two prior separate prison terms having been set aside, Bounds’ sentence is reduced by an additional two years. In all other respects, the judgment is affirmed.
Thompson, J., concurred.
See footnote, ante, page 802.
The trial court also gave a second degree murder instruction stating it is “the unlawful killing of a human being as the direct cause and result of an intentional act involving a high degree of probability that it will result in death, which act is done for a base and anti-social purpose, and with wanton disregard for human life.” This instruction served no purpose but to potentially confuse the jury. Since the jury had to find a specific intent to kill in order to find Bounds guilty of attempted murder, this instruction had no relevancy either to jury deliberations in assessing whether Bounds was guilty on this charge or to jury deliberations when subsequently affixing the degree of the attempt.
The Supreme Court split on this issue in Connecticut v. Johnson (1983) 460 U.S. 73 [74 L.Ed.2d 823, 103 S.Ct. 969]. Four justices found such error was prejudicial per se with two minor exceptions. Four justices adopted Chapman as the appropriate standard since the presumption did not remove the issue of intent from the jury’s consideration. One justice did not reach this issue. It should also be noted, in Franklin, the court also discussed a third possible test for assessing error, a test which was used by the Court of Appeals in the Franklin case—whether the evidence of guilt was so overwhelming the error could not have contributed to the jury’s decision to convict. (Francis v. Franklin, supra, — U.S. at p. — [85 L.Ed.2d at pp. 360-361, 105 S.Ct. at p. 1977].)
In Garcia, the court concluded, after analyzing Connecticut v. Johnson, all eight United States Supreme Court justices who addressed the issue of prejudice in that case would agree a jury instruction which takes an issue completely from the jury is reversible per se with minor exceptions. (People v. Garcia, supra, 36 Cal.3d at p. 554.) As such, the Garcia court concluded the United States Supreme Court would apply this standard in the case before it since the issue of intent was removed from the jury, i.e., the jury had not been instructed that proof of intent to kill or to aid a killing was required. The Garcia court thus found this error reversible per se with limited exceptions. As a matter of logic, we cannot see why the error committed in the case at bar should be treated differently. Although in the case at bar, conflicting instructions were given, only some of which had the effect of taking the issue of intent from the jury, a reasonable possibility certainly exists that the issue of intent was not addressed by some of the jurors.
Although we recognize Bounds in his confession denied any intent to kill Mr. C., we do not believe this self-serving statement, so inconsistent with the defendant’s other statements and actions, is worthy of consideration. It certainly is not enough to cause a reasonable juror to entertain a reasonable doubt on the intent issue.
Bounds also argues the trial court erred in imposing punishment for attempted murder and robbery since the latter might have been the underlying felony used in applying the felony-murder rule to the alleged attempted murder of Mr. C. Multiple punishment would violate section 654. Although members of the jury may have found Bounds guilty of attempted murder while relying on the felony-murder instructions erroneously given by the court, as stated above, the evidence was such that had the jury been properly instructed it would have found Bounds had the specific intent to kill. Thus, the robbery plays no role in Bounds’ punishment for attempted murder and section 654 is not implicated.
See footnote, ante, page 802.