People v. Partner

479 ]; People v. King (1970) 1 Cal.3d 791 , 795-796 [ 83 Cal.Rptr. 401 , 463 P.2d 753 ]; see also People v. Sims (1982) 32 Cal.3d 468 , 483-484, fn. 13 [ 186 Cal.Rptr. 77 , 651 P.2d 321 ].) The defendant’s constitutional right to a jury trial does not give him a correlative right to demand a trial without a jury. (People v. Washington, supra, 71 Cal.2d at pp. 1086-1087; Singer v. United States (1965) 380 U.S. 24 , 34 [ 13 L.Ed.2d 630 , 637-638, 85 S.Ct. 783 ].)

Appellant contends that the trial court’s denial of appellant’s motion to compel a nonjury trial resulted in a different standard being applied to a motion for acquittal at the close of the prosecution case, and that this difference invades his fundamental rights and denies him equal protection of the law. His contention is utterly without merit.

In a jury trial, under Penal Code section 1118.1, a defense motion for acquittal at the close of the prosecution case could be granted only if the evidence is insufficient to sustain a conviction on appeal.^[1] The trial judge does not weigh the credibility of the prosecution evidence, for that would invade the province of the jury which is the trier of fact. (See People v. Wong (1973) 35 Cal.App.3d 812 , 827, 828 [ 111 Cal.Rptr. 314 ].) In a court trial, on the other hand, for reasons of judicial economy Penal Code section 1118 permits the trial judge to grant a defense motion for acquittal at the close of the prosecution case “if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses.”^[2] Appellant argues, “A defendant in a court trial gains the benefit of having the trier of fact evaluate the credibility of the witnesses and of having the case against him proved beyond a reasonable doubt before he is required to put on a defense. Thus, if the prosecution has not proved its case at that point, the defendant need not worry about proving up part of the prosecution case during the defense.”

Although this distinction exists, it is a reasonable accommodation between judicial efficiency and preservation of the factfinding function of the jury in a case where one of the parties has demanded a jury trial. There is no merit to appellant’s contention that this distinction invades any fundamental rights of the defendant so as to require “strict scrutiny” for purposes of equal protection analysis and a “compelling” justification by the People. (Citing Serrano v. Priest (1971) 5 Cal.3d 584 , 597 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ].) Appellant never successfully identifies a fundamental right which is violated by the statutory distinction. The basic difference between the two statutes is that in a court trial the defendant gets a peek at the tentative thinking of the trier of fact before he puts on a defense. While this might be the fulfillment of a defense attorney’s fondest dreams, it is hardly a fundamental right. It bears no resemblance to the fundamental rights directly affected in cases cited by appellant.^[3] Appellant’s assertion that his “right to present a defense as well as his right to testify were significantly diminished” is simply without foundation. The statutes are identical in preserving the defendant’s right to present evidence. (See fns. 1, 2, ante.) Appellant and his counsel had full opportunity to hear and evaluate all the evidence before presenting whatever defense they wished. Appellant was not subjected to different standards of proof, as intimated by his citation of cases involving civil commitment. Whether by court trial or jury trial, appellant could not be convicted except by evidence sufficient to prove guilt beyond a reasonable doubt.

Appellant also requested in the alternative that if there were a jury trial, the jury should be instructed to bring in a tentative verdict at the close of the prosecution case. This suggestion, which involves practical considerations not present in a court trial, should be addressed to the Legislature. Appellant has cited no authority which would require such a departure from established procedure.

Jail Law Library

Appellant next contends the trial court erred in refusing to order jail custodians to grant jail law library privileges to appellant. Appellant was represented by counsel, but requested a court order allowing him to use the jail library in order “to assist counsel and to better follow the proceedings.” The court looked into the matter and then denied the request. The court learned that it was not the policy of the jail custodians to grant library privileges unless the defendant is in propria persona status.

In re Harrell (1970) 2 Cal.3d 675 , 695 [ 87 Cal.Rptr. 504 , 470 P.2d 640 ], holds that an inmate has no right to use of a law library except as necessary to insure access to the courts. Since appellant was adequately “represented by counsel, and no showing was made that counsel needed his assistance in researching the law, the trial court did not abuse its discretion in denying [appellant] permission to use the law library.” (People v. Rhinehart (1973) 9 Cal.3d 139 , 150 [ 107 Cal.Rptr. 34 , 507 P.2d 642 ].)

Appellant argues the court did not exercise discretion individual to the case but rather “blind adherence to the jail’s established policy.” This adds nothing to the force of appellant’s argument. Since appellant was represented by counsel and there was no showing that counsel needed his assistance in researching the law, there was nothing wrong with the jail’s established policy nor does the record establish any error.

Jury Nullification

During jury deliberations the jury inquired of the court, “Can we have robbery and murder in the second degree.” The trial court answered the question simply and directly, in effect stating that the answer is yes if the killing did not occur as a result of the commission or the attempt to commit the crime of robbery.^[4]

Citing Justice Kaus’s concurring opinion in People v. Dillon (1983) 34 Cal.3d 441 , 490-493 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ], appellant contends the court should have interpreted this question as an attempt by the jury to avoid the felony-murder rule and should have instructed the jury on “the power of a jury to nullify what it considers an unjust law.” (Id., at p. 491.) There is no merit to this contention. Justice Kaus’s view was not joined by any other of the justices of the court, and was expressly rejected in the lead

opinion. (Id., 34 Cal.3d at pp. 487-488, fn. 39.) Moreover, as is apparent from the authorities cited in footnote 3 of Justice Kaus’s opinion (id., at p. 491, fn. 3), the courts which have recently considered the question have uniformly concluded that although a jury may occasionally exercise a raw power to return a verdict more favorable to the defendant than warranted by the evidence and the law, this power should not be legitimized in instructions to the jury.

We agree that the jury should not be instructed on so-called jury nullification. “‘[A] jury, in rendering a general verdict in a criminal case, necessarily has the naked power to decide all the questions arising on the general issue of not guilty; but it only has the right to find the facts, and apply them to the law as given by the court.”’ (People v. Powell (1949) 34 Cal.2d 196 , 205, fn. 2 [ 208 P.2d 974 ], first italics in original, second italics ours.)

The jury should not be instructed that it may disregard the law. (See People v. Gottman (1976) 64 Cal.App.3d 775 , 781-782 [ 134 Cal.Rptr. 834 ].) “An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.” (United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113 , 1137.)^[5]

Impeachment for Prior Felony Conviction

Finally, appellant contends the trial court erred in allowing appellant to be impeached with a prior felony conviction for voluntary manslaughter. The trial court denied appellant’s motion to exclude impeachment with the prior, apparently believing that Proposition 8 left it no discretion to do so. After appellant’s trial the state Supreme Court decided in People v. Castro

(1985) 38 Cal.3d 301 [ 211 Cal.Rptr. 719 , 696 P.2d 111 ], that Proposition 8 did not fully abrogate a trial court’s discretion to exclude evidence under Evidence Code section 352. Under Castro, Proposition 8 broadened the category of felony convictions relevant to impeachment, to include not only those which reflect directly on honesty and integrity but also those which involve “moral turpitude.” (Id., 38 Cal.3d at pp. 313-316.) Voluntary manslaughter is a crime involving moral turpitude. (People v. Parrish (1985) 170 Cal.App.3d 336 , 349-350 [ 217 Cal.Rptr. 700 ].)

Appellant contends the prejudicial effect of admitting the prior conviction for impeachment outweighed its probative value on the issue of credibility, but the record does not support his argument. In this case, notwithstanding the trial court’s ruling, appellant elected to testify. Thus, the jury was not deprived of evidence of appellant’s defense.^[6] Nothing in the record remotely suggests, as appellant contends, that the admission of the prior “virtually foreclosed [the ability of the jury to engage in a] relatively dispassionate analysis of the evidence ... by injecting extraneous and inflammatory considerations into the jury deliberations.” The prior was referred to by the prosecutor in the course of cross-examination only in passing and not at all during closing arguments. The jury was instructed that “[t]he fact that a witness has been convicted of a felony . . . may be considered by you only for the purpose of determining the credibility of that witness.” That appellant’s testimony was unconvincing was not the fault of the trial court’s ruling but of the weakness of appellant’s story. (People v. Rollo (1977) 20 Cal.3d 109 , 120-121 [ 141 Cal.Rptr. 177 , 569 P.2d 771 ].) Appellant’s story was less consistent with the physical evidence than the prosecution version. Several witnesses saw appellant remove what they described as a wallet from the victim’s body. Appellant’s claim that they must have been referring to the knife sheath was contradicted by the fact that the knife sheath was still snapped closed and attached to the victim’s belt when the crime was investigated. The contact wound and the trajectory of the bullet were more consistent with the description of appellant holding the gun to the victim’s