People v. Huggins

KENNARD, J., Dissenting.

In affirming defendant’s capital murder conviction, the majority may be right. Or it may be wrong. At this point, however, it is impossible to tell, because of an ambiguity in the appellate record. On its face, the record shows that at the competency phase of trial the court read to the jury an instruction that was wrong and would necessitate reversal of the entire judgment. But there is the possibility that the court gave a correct instruction, which the court reporter then inaccurately transcribed. (The trial court gave no written instructions to the jury.) In holding that this court is better able than the trial court to decide what the trial court did say to the jury, this court, an appellate tribunal, has annointed itself the arbiter of fact. Unlike the majority, I would have the trial court conduct a hearing to decide, based on its own recollection of the matter and that of the parties’ trial attorneys, what the oral instruction said.

I also disagree with the majority’s holding that the trial court’s erroneous response to a question by the jury at the guilt phase of defendant’s capital trial was harmless. That error, in my view, requires reversal of the special circumstance findings and the judgment of death.

*256 I

At the jury trial to determine defendant’s competence to stand trial for capital murder, Psychologist James Palmer expressed his opinion that defendant suffered from brain damage and was incompetent to stand trial, both because he did not understand the nature of the proceedings and because he was unable to cooperate with counsel. Psychiatrist John Peschau reached a similar conclusion, diagnosing defendant as suffering from paranoid schizophrenia. But testifying for the prosecution, two psychologists and a psychiatrist were of the view that defendant was malingering and that he was competent to stand trial. The prosecution also called three sheriff’s deputies, who testified that defendant’s behavior while in custody awaiting trial was normal most of the time.

The reporter’s transcript shows that the court gave this oral instruction: “[A] person charged with a criminal offense is deemed mentally competent to be charged with the crime against him, if he is capable of understanding the nature and purpose of the proceedings against him; second, if he comprehends his own status and condition in reference to such proceedings, [f] If he is able to assist his attorney in conducting his defense in a rational manner, the defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent, as a result of mental defect, or disorder.” The words of this instruction are similar to the standard CALJIC instruction defining competence to stand trial, but its meaning is not. 1

The reported instruction is wrong. Under California law, a defendant is incompetent to stand trial if “the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner” (Pen. Code, § 1367, subd. (a), italics added.) But under the instruction that, according to the reporter’s transcript, the trial court gave in this case, the jury did not have to decide whether defendant was able to assist his attorney in a rational manner in order to find him competent; that *257 instruction told the jury defendant was competent if he understood the proceedings and his own status in relation to those proceedings. Thus, if the court reporter accurately transcribed the trial court’s spoken instruction to the jury, the instruction removed from the jury’s consideration a crucial element of the competency determination from the jury’s consideration, namely, whether defendant was able “to assist counsel in the conduct of a defense in a rational manner.”

From this cold record the majority makes a factual determination that the trial court actually instructed the jury correctly, but that the court reporter inaccurately transcribed the instruction. The majority asserts: “Because the court clearly was reading a standard instruction, it is far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court’s oral instructions than that the court misread the standard instruction.” (Maj. opn., ante, at p. 191.) How does it know? This court has seldom, if ever, been faced with a party’s allegation that a reporter’s transcript contained incorrect punctuation. So far as this court knows, misreading by the trial court is just as likely as mispunctuation by the reporter.

The majority claims, without citation of authority, that this court is “not bound by the punctuation supplied by the court reporter.” 2 (Maj. opn., ante, at p. 191.) I disagree.

There are three possible explanations for the differences between the reporter’s transcript and the standard CALJIC instruction: (1) The trial court deliberately altered the instruction; (2) the court inadvertently misread the instruction to the jury; or (3) the court read the instruction correctly to the jury, but the court reporter inaccurately transcribed what the court said. The factual determination as to which of these three events occurred at trial is to be made by the trial court, not by this court on review of a cold record.

Although the Attorney General now claims the reporter’s transcript is inaccurate, the proper time for him to have raised this point was during record correction proceedings. But at that time the Attorney General made no mention of the matter. Thereafter, defendant’s opening brief on appeal argued *258 that the trial court’s competency instruction required reversal of the judgment; that argument was based on the premise that the court reporter had accurately transcribed the trial court’s oral instruction. At that time, the Attorney General had another chance to bring the matter before the trial court by moving to correct the record on the ground that the instruction was inaccurately transcribed. (Cal. Rules of Court, rule 12(c).) Again, he failed to do so.

At the conclusion of the record correction proceedings, the trial court certified the record of the trial proceedings, including the reporter’s transcript, as “complete and accurate.” (Cal. Rules of Court, rule 35.3(d).) That was a factual finding by the trial court that the court reporter had accurately transcribed the court’s oral instruction at issue here. An appellate tribunal such as this court cannot second-guess that factual finding, regardless of whether the finding pertains to punctuation or to the words that the trial court spoke. In the words of this court more than a century ago: “[W]hen an exception to a particular ruling has been allowed this court has no authority to strike out any evidence or other matters stated in connection with such ruling upon the ground that such evidence was not given, or that such matters are untruly or incorrectly stated .... If the judge has put in incorrect statements of evidence, or other matters bearing upon his rulings, or has omitted evidence or other matters claimed to be material, the evil is not remediable here.” (Estate of Dolbeer (1905) 147 Cal. 359, 361 [ 81 P. 1098 ], italics added; see also Marks v. Superior Court (2002) 27 Cal.4th 176, 196 [ 115 Cal.Rptr.2d 674 , 38 P.3d 512 ]; Burns v. Brown (1946) 27 Cal.2d 631, 636 [ 166 P.2d 1 ].)

I also disagree with the majority that any instructional error was harmless. The majority declines to decide whether the error violates the federal Constitution or is merely a violation of state law. In my view, it is the former. As the United States Supreme Court has explained: “We have repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ . . . The test for incompetence is also well settled. A defendant may not be put to trial unless he ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.” ’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [ 134 L.Ed.2d 498 , 116 S.Ct. 1373 ], italics added.) Thus, the due process clause of the federal Constitution requires that both requirements of California’s statutory test for incompetency be satisfied: Not only must the defendant understand the nature of the charges, but he also must be able to rationally assist defense counsel. Here, if the reporter’s transcript is accurate, the trial court’s instruction allowed the jury to find defendant competent without deciding whether he was able to assist his attorney. Therefore, the instructional error violated the federal Constitution, in which case the prejudicial effect must be measured under the test the high court established in Chapman v. California (1967) 386 U.S. 18 *259 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ], which requires reversal unless the prosecution can show that the error was harmless beyond a reasonable doubt.

When, as here, the federal constitutional error involves the trial court’s failure to instruct on a necessary element, reversal is required under the Chapman test when “the defendant contested the omitted element and raised evidence sufficient to support a contrary finding” (Neder v. United States (1999) 527 U.S. 1, 19 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ]); but the error is not prejudicial when it is clear “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence” (id. at p. 17).

At the competency proceeding here, defendant contested the omitted element—his ability to assist his attorney in presenting a defense—by calling a psychologist and a psychiatrist, both of whom testified that he was incompetent because of his inability to cooperate with his counsel. Although the majority stresses the strength of the prosecution’s evidence that petitioner was competent (maj. opn., ante, at p. 193), the high court in Neder has said that the prosecution’s evidence is irrelevant, so long as the defense has presented evidence “sufficient to support a contrary finding.” (Neder v. United States, supra, 527 U.S. at p. 19 .) Here, the testimony by defendant’s expert witnesses was sufficient to support a jury finding that he was unable to cooperate with his attorneys. Thus, if the trial court’s instruction did remove from the jury’s consideration the issue of defendant’s ability to cooperate with his counsel, reversal is required.

To reverse the judgment based on instructional error at the competency phase is, however, premature, because it is not at all clear whether the trial court did erroneously instruct the jury, or whether the court reporter inaccurately transcribed the court’s oral instruction to the jury. When a reviewing court becomes aware that the appellate record may be inaccurate, it “may order the superior court to settle disputes about omissions or errors in the record.” (Cal. Rules of Court, rule 12(c)(2).) I would therefore vacate submission of this matter and direct the superior court to conduct additional record correction proceedings to determine the true state of the record. In those proceedings the trial court would hear from the attorneys who tried the case and, based on the court’s own recollection and that of the attorneys, would determine what the court said in instructing the competency jury. Thereafter, this court should recalendar the case for oral argument, and only then should it decide whether instructional error occurred and, if so, whether that error was prejudicial.

One final note. If the trial court had provided the jury with written instructions, it would not have mattered whether the court reporter accurately *260 transcribed the court’s oral instructions to the jury, because when there is an inconsistency between the trial court’s oral and written instructions, it is assumed that the jury followed the written instructions. (People v. Osband (1996) 13 Cal.4th 622, 717 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ].) Especially in cases involving the death penalty, it is important that the trial court “should generally give the jury written instructions to cure the inadvertent errors that may occur when the instructions are read aloud.” (People v. Seaton (2001) 26 Cal.4th 598, 673 [ 110 Cal.Rptr.2d 441 , 28 P.3d 175 ].) This case illustrates the wisdom of providing juries with written instructions.

II

Defendant was charged with murdering Sarah Lees, and the prosecution alleged as special circumstances that the killing occurred during a burglary, a robbery, and an attempted or completed rape. At the time of the murder, the special circumstances required proof that the defendant intended to kill the victim. (People v. Johnson (1993) 6 Cal.4th 1, 44 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].)

At the guilt phase of defendant’s capital trial, the prosecution presented strong evidence that defendant acted with the intent to kill Lees, who came home while defendant was burglarizing her house and was shot to death with her own shotgun. Expert witnesses testified that the fatal shot was fired into the middle of her back at a range of between six and 18 inches, and that the shotgun required between six and seven pounds of force on the trigger to discharge. The prosecution also presented evidence that Lees had been sexually assaulted.

Testifying on his own behalf, defendant denied that he had intended to kill Lees. He claimed that he grabbed the shotgun off a counter when Lees ran from her bedroom toward the front door, and that the gun accidentally discharged. Criminalist Richard Fox testified that the shotgun could have accidentally discharged if it had been handled in the manner described in defendant’s testimony.

The case was submitted to the jury on August 2, 1990. That same day, the jury signed verdict forms convicting defendant of first degree murder, burglary, and robbery, leaving only the special circumstance allegations still to be decided. The jury was still deliberating on the special circumstances on August 8, the third day of deliberations. On that day, the jury submitted to the trial court three questions, one of which is pertinent here: “Is intent only in the act itself, or with the end result, (ex: Knowing someone is shot but not *261 tending to the persons best interest) [if shot & let her die ... is itself killing][ 3 ] Is intent before, during, or after the act of crime.”

The trial court answered: “[Y]ou can’t X-ray a person’s mind. So how do you find out the intent with which an act is done? [][] You look at a statement of the intent made by the defendant, by the circumstances attending the act, the manner in which it is done, and the means used. So you look to what he said, what really happened, how did the killing occur, what did he use to kill, what kind of an instrument; and from all those things you then decide what is it that he had in his mind, [f] In other words, you can infer the intent from the nature of the act. You can infer the intent from the nature of the act. [f] In other words, if you act in a certain way, knowing that a result, death, is likely to follow, whether you want to kill or not, you still have the intent to kill because if you act in a certain way, knowing that the result, death, is likely to happen, whether you desire to kill or not doesn’t make any difference. You still have the intent to kill. [|] You got it?” (Italics added.)

The jury’s question shows that it was deadlocked on whether the shooting of Lees was accidental or intentional, and it wanted to know whether it could find an intent to kill based on defendant’s conduct after shooting Lees, when instead of “tending to [her] best interest,” such as summoning assistance, he simply let her die. When, as in this case, the jury asks a question about the meaning of an element of the crime, Penal Code section 1138 imposes on the trial court “a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 [275 Cal..Rptr. 729, 800 P.2d 1159 ].) But here, the trial court’s response did not directly answer the jury’s question. It told the jury that in deciding whether defendant intended to kill Lees, it “doesn’t make any difference” whether he wanted Lees to die, so long as he knew she was “likely” to die if he “act[ed] in a certain way.” Based on that answer, a reasonable jury could conclude that defendant’s actions in accidentally shooting Lees (as he testified) and then fleeing the scene without treating her shotgun injury or calling for help would justify a finding of intent to kill if, at the time of flight, he knew she was “likely” to die if he did not help her.

That theory of intent to kill is simply wrong, as this court held in People v. Balderas (1985) 41 Cal.3d 144 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ], There, two witnesses testified that the defendant left the murder victim, Neil Wanner, “at the isolated scene of the shooting despite the bleeding victim’s pleas for help.” (Id. at p. 199.) We said that this conduct did not satisfy the special circumstance requirement that the defendant act with intent to kill: “[E]ven if *262 it was apparent to defendant that the wound might be fatal unless he helped Wanner obtain treatment, a jury could reasonably conclude that defendant’s behavior suggests only the ‘implied malice’ arising from ‘an abandoned and malignant heart.’ (§ 188.) We have made clear that this form of ‘implied malice’—a base, antisocial indifference to the probability that one is causing death—does not satisfy the . . . standard of intent to kill, which means the specific intent to take another’s life.” (Ibid.)

The trial court’s instruction here is also inconsistent with People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ]. There, the lead opinion of this court stated, in dictum, that to act with intent to kill, “ ‘the actor must either desire the result or know, to a substantial certainty, that the result will occur.’ ” (Id. at p. 434 (lead opn. of Tobriner, J.), italics added.) Whether or not the Velasquez lead opinion’s definition is correct, 4 here the trial court’s definition of intent to kill was considerably broader than that of Velasquez , because it told the jury that defendant acted with intent to kill not only if death was “substantially certain,” but also if it was only “likely” to follow from his actions.

An inaccurate instruction on an element of a special circumstance allegation is prejudicial unless the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Osband, supra, 13 Cal.4th at p. 681 ; Chapman v. California, supra, 386 U.S. 18, 24 .) In applying that test, a reviewing court must not consider “what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [ 124 L.Ed.2d 182 , 113 S.Ct. 2078 ], italics added.) Here, based on the trial court’s erroneous answer to the jury’s question on intent to kill, the jury may well have concluded that defendant intended to kill Lees because he failed to treat her shotgun injury or to seek help after he shot her, realizing that Lees was likely to die if he acted in the manner just described. This theory of the jury was legally unsound. (People v. Balderas, supra, 41 Cal.3d 144 .) Because the Attorney General has failed to show beyond a reasonable doubt that the trial court’s answer to the jury’s question was harmless, I would reverse the jury’s special circumstance findings and the judgment of death.

*263 The majority reasons that the error was harmless because, given that Lees was shot in the back at close range, “the jury would have had to conclude that defendant knew Lees was substantially certain to die unless medical help arrived promptly.” (Maj. opn., ante, at p. 212.) Defendant, however, testified that he did not know the shot had hit Lees in the back. Even if the jury did not credit this testimony, it could have concluded that defendant knew Lees was shot but was unaware of how seriously she was hurt, and thus he did not realize she was substantially certain to die without treatment. Because there was conflicting evidence at trial about defendant’s knowledge of the extent of Lees’s shotgun injury, the majority is wrong when it concludes that, beyond a reasonable doubt, the jury would inevitably have found that defendant knew Lees’s shotgun injury was substantially certain to result in her death.

Conclusion

For the reasons explained in part I, ante, I would vacate submission in this case and direct the trial court to determine the accuracy of the reporter’s transcription of the court’s oral instruction to the jury defining competency to stand trial. (Cal. Rules of Court, rules 12(c)(2), 36.1(c).) Under that approach, the resolution of this appeal would depend on the trial court’s determination. (See p. 190, ante.) The majority’s refusal to vacate submission, however, has compelled me to consider defendant’s claims of error other than the one pertaining to the trial court’s oral instruction at the competency trial. For the reasons expressed in part II, ante, I would reverse the jury’s special circumstance finding and the judgment of death.

Werdegar, 1, concurred.

Appellant’s petition for a rehearing was denied May 24, 2006, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.

The corresponding portion of the CALJIC instruction states: “[A] person charged with a criminal offense is deemed mentally competent to be charged with the crime against him: 1. If he is capable of understanding the nature and purpose of the proceedings against him; and H] 2. If he comprehends his own status and condition in reference to such proceedings; and [][] 3. If he is able [to assist his attorney in conducting his defense] [to conduct his own defense] in a rational manner, [ft) The defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of a mental defect or disorder [or developmental disability].” (CALJIC No. 4.10 (4th ed. 1984 rev.).) The most significant differences between this instruction and the instruction appearing in the reporter’s transcript are these: (1) The CALJIC instruction has a semicolon and the words “and 3.” after “such proceedings,” but the reporter’s transcript has a period and a new sentence; (2) the CALJIC instruction has a period and a new sentence after the words “rational manner,” but the reporter’s transcript has a comma.

The majority goes on to acknowledge that the instruction in the reporter’s transcript does not merely differ in punctuation from the CALJIC instruction, but that certain words are also omitted. I will not discuss the majority’s laborious and complicated attempt to explain why the omission of these words would not have confused the jury, other than to note that the explanation is based on the premise that this court may decide that the trial court did not read the instruction with the punctuation noted in the reporter’s transcript. As I explain in the text, this premise is false: It is the trial court, not this appellate tribunal, that must decide not only what the trial court said to the jury, but how the court said it, and thus whether the punctuation accurately represents the court’s spoken instruction.

The bracketed words were written in cursive, while the rest of the note was printed. It is unclear whether the bracketed words were written by the same person who wrote the rest of the note.

The majority here declines to decide whether, as the lead opinion stated in People v. Velasquez, supra, 26 Cal.3d at page 434 , a person who does not desire the victim’s death, but knows to a substantial certainty that death with result from the defendant’s actions, acts with intent to kill. The majority explains that it need not decide this issue because the trial court’s answer to the jury was harmless regardless of whether Velasquez is correct. Like the majority, I see no reason to decide the issue, but for a different reason: In my view, the trial court’s answer to the jury was prejudicial regardless of whether Velasquez is correct.