People v. Cardenas

Opinion

DUNN, J.

A five-count information charged defendant with (count I) burglary on 13 March 1974 of the residence of Ramona K. Tilly, in violation of Penal Code section 459, a felony; (count II) rape of Ramona K. Tilly the same date, in violation of Penal Code section 261, subdivision 3, a felony; (count III) rape of Ramona K. Tilly the same date, in violation of the same section of the Penal Code, also a felony; (count IV) armed robbery of Ramona K. Tilly the same date, in violation of Penal Code section 211, a felony in the course of which defendant intentionally inflicted great bodily injury upon her; and (count V) grand theft of a firearm the same date, in violation of Penal Code section 487, subdivision 3, a felony. In the first four counts it further was alleged that, at the time of each oifense, defendant was armed with a deadly weapon and used a firearm. Defendant was arraigned and pled not guilty. A juiy found defendant guilty of all five counts, fixing the burglary charge in count I as first degree and the robbery charge in count IV as first degree. The jury also found it true that, as charged in counts I-IV, defendant was “armed” with a deadly weapon and “used” a firearm. The court sentenced defendant to state prison on each count concurrently (Pen. Code, § 669), further finding defendant “used” a firearm as to counts II, III, IV and V.

1

Defendant first contends the trial court erred by refusing to instruct,

sua sponte,

in the language of CALJIC instruction No. 10.22.

2

It is true,

[206]

as defendant recites, that on August 19th (the trial took place on August 14, 15, 16, 19 and 20) the trial judge stated to counsel that he would not give CALJIC instruction No. 10.22

sua sponte.

However, we are not informed by the record if he thereafter changed his mind, inasmuch as the reporter’s transcript does not contain the instructions actually given and the clerk’s transcript contains no mention of the instruction as being either given or refused. We are not here concerned with the trial judge’s statement or reasons, but with what he actually did. This we do not know from the record before us.