Opinion
B221712
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN C. SANCHEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA347246
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
It is ordered that the opinion filed July 11, 2011, and not certified for publication be modified as follows:
1. On page 24 of the opinion, after "jury deliberations." on the fifth line, delete the sentence "There is no cumulative error." and replace with the following:
"The cases Sanchez discusses in his reply brief, in which he emphasizes the alleged violations of his (and Trinidad's) Sixth Amendment right to be informed of the nature of the charges in order to permit adequate preparation of a defense, are distinguishable. Three of the cases Sanchez cites, Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 (Sheppard), U.S. v. Gaskins (9th Cir. 1988) 849 F.2d 454(Gaskins), and Gray v. Raines (9th Cir. 1981) 662 F.2d 569 (Gray), are lower federal court decisions and are not binding on this court. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Moreover, unlike the instant case, those cases involved the trial court's giving instruction on new theories of culpability—in two cases, different crimes—after the close of evidence, which did not occur in the instant case. In fact, the jury instruction on resisting in this case did not name a particular deputy. Changing the verdict form to name "a deputy" instead of Deputy Demooy did not equate to an instruction on a completely different offense against which Sanchez and Trinidad had not prepared a defense. (See In re Man J. (1983) 149 Cal.App.3d 475, 479-480.) Indeed, Sheppard recognized that an accused could receive adequate notice of the nature of the accusation during the course of the preliminary hearing, as occurred here. (Sheppard, supra, 909 F.2d at p. 1236, fn. 2.) Moreover, the holding in Sheppard addressed only the harmless-error rule, since the State had conceded the Sixth Amendment violation. Also, unlike Gaskins, defense counsel in this case did not request to reopen argument when the trial court changed the verdict form. (See People v. Bishop (1996) 44 Cal.App.4th 220, 231, 235 [no denial of due process or effective assistance of counsel when defense counsel did not request to reopen argument after trial court stated its intention to instruct the jury on aiding and abetting with respect to the special circumstance allegation after commencement of deliberations].)
In Sheppard, the entire trial had proceeded on a theory of premeditated murder. At the close of trial, the trial court acceded to the prosecution's request to instruct on felony murder. (Sheppard, supra, 909 F.2d at pp. 1235-1236.) In Gaskins, the trial court violated Rule 30 of the Federal Rules of Criminal Procedure by giving an aiding and abetting instruction after deliberations began, which was prejudicial because the trial court refused defense counsel's request to reopen argument. (Gaskins, supra, 849 F.2d at pp. 455, 456-457, 460.) In Gray, the trial court instructed on statutory rape at the close of evidence. The defendant, who had been charged with forcible rape, was prejudiced because he had been misled into convicting himself of statutory rape by testifying he had had consensual sex with the 17-year-old victim. (Gray, supra, 662 F.2d at pp. 570, 573-574.)
People v. Sanchez (1978 Supp. 1) 83 Cal.App.3d (Sanchez)and People v. Stouter (1904) 142 Cal. 146 (Stouter), are also distinguishable. In Stouter, the trial court instructed the jury on the attempt to commit the charged offense after prolonged jury deliberations and indications from the jury that the jury members might be able to agree on attempt to commit the crime. (Stouter, supra, 142 Cal. at pp. 148-149.) In the instant case, the trial court altered the verdict form very shortly after deliberations began and only after the jury expressed confusion. Moreover, in Stouter, evidence of the substantive crime was lacking whereas here, the fact that Sanchez (and Trinidad) resisted was supported by ample evidence, as the trial court stated. (See Stouter at pp. 150-151.) In Sanchez, the court found fault with the trial court interrupting defense counsel's argument on a disputed element only because the interruption harmed defense counsel's credibility in front of the jury. The trial court's changing of the verdict form did not harm defense counsel's credibility in the instant case, since both counsel argued (without naming a particular deputy) that the charge of resisting stemmed from Sanchez's (and Trinidad's) encounter with the extraction team. ~(RT 333-335, 340, 342)~ The court in People v. Crawford (1990) 224 Cal.App.3d 1, also cited by Sanchez, concluded that pretrial discussions (such as occurred in the instant case both pretrial and mid-trial) gave the defense notice that the prosecutor believed there had been a rape or attempted rape of the murder victim, thus precluding any surprise to the defense when the trial court instructed on felony murder. Although Sanchez insists that the discussions that occurred before and during trial regarding the flaws in the charging documents misled the defense, we believe the opposite occurred—these discussions gave the defense notice of how the prosecutor intended to argue.
As we have stated, under the circumstances of this case, we believe that Sanchez (and Trinidad, to the extent the arguments apply to him) was not denied his Sixth Amendment right to the effective assistance of counsel, his opportunity to defend, or his right to a fair trial, by the prosecutor's suggestions and argument and by the trial court's modification of the verdict forms. There was no cumulative error requiring reversal of the assault with a deadly weapon and resisting counts."
There is no change in the judgment.
Appellant Juan C. Sanchez's and Juan Trinidad's petitions for rehearing are denied.