COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 13, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TIMOTHY GEORGE PSCHOLKA, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed. (Super. Ct. No. FVI025111)
The opinion of the court was delivered by: Irion, J.
P. v. Pscholka
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Timothy George Pscholka appeals his conviction of the first degree murder of Ronald Stringer, contending the trial court erred by not specifically instructing the jury that if it found Pscholka committed murder but had reasonable doubt whether the murder was first or second degree, it could only find him guilty of second degree murder. We hold the trial court did not err because the instructions actually given to the jury adequately conveyed this point, and therefore we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Pscholka and Stringer had known each other for several years when Pscholka, a handyman, agreed to help Stringer fix up a property Stringer had bought in Lucerne Valley. Stringer promised Pscholka a weekly salary, room and board, a vehicle, a cellular telephone and "a home for the rest of [his] life there." Stringer did not keep all of these promises, however. For example, Stringer stopped paying Pscholka the weekly salary after four months even though Pscholka worked for a year, eventually took the vehicle away and never provided a telephone. These broken promises made Pscholka feel "frustrated" towards Stringer.
The relationship between the two men was further strained when, approximately two weeks before he was killed, Stringer took Pscholka to help out with some construction projects at Stringer's brother's house in Utah. Stringer's brother paid Pscholka $500, and Pscholka gave Stringer $300 of that money to keep for him. After they returned to California, Stringer left Pscholka in Lucerne Valley for several days without adequate money, food, beer or cigars. When Pscholka asked Stringer for return of the $300 about a week later, Stringer did not give it to him. These incidents made Pscholka feel "frustrated," "unhappy" and "very upset" towards Stringer.
Matters became worse when Stringer's son showed up with a friend at the Lucerne Valley property the day before Stringer died. Stringer, his son and his son's friend walked around the property and discussed various projects that needed to be done, but they did not include Pscholka in their conversation. Pscholka viewed Stringer's son as a "threat to [his] life" because the son had once told Pscholka "[t]o fit in and do things his way"; he had "very intimidating tattoos like he's been in a gang or jail"; and "[h]e always brought guns with him" to the Lucerne Valley property. Stringer's son's visit therefore made Pscholka feel "alienated" and "very suspicious."
The next day Pscholka and Stringer's relationship irretrievably broke down. After having worked around the property for a few hours, Pscholka decided to quit working because it was too hot to continue. Stringer was not pleased and kept on "bugging" Pscholka to do more work. Pscholka tried to ignore him but became so "frustrated" that he decided to leave the property to "blow off, any like build up." Pscholka asked Stringer if he could use the motorcycle to take a ride but Stringer refused, so he decided to go for a walk instead. Pscholka had traveled down the road only a short distance when he realized he had no money and turned back. Upon his return, Pscholka noticed Stringer had placed a chair at the entry gate and faced it away from the property, which Pscholka considered "a threat . . . [t]hat somebody's gonna get [him], because they're waiting for [him], [he's] being waited on. Um, [he's] uh, going to [lose] [his] physical health because of this person that can sit here and uh, wait for [him]." Pscholka was so "piss[ed] off" and "frustrated" that he picked up a "pry bar" and searched the property for Stringer so the two of them could "get down to this nitty gritty."
When Pscholka eventually found Stringer seated on a motorized scooter*fn1 near the chicken coop, Pscholka shouted obscenities at him. When Stringer "start[ed] moving forward to get up," Pscholka "whacked him in the arm" with the pry bar. Stringer kept moving towards Pscholka, who "got scared [be]cause [he did not] know if [Stringer]'s . . . got his . . . revolver, or somebody's on the property." Pscholka therefore "hit him in the arms again" and he "went down." Pscholka was "scared" that Stringer might get up, so he kicked him in the head at least 20 times with steel-toed boots. Once Pscholka started doing so, he thought to himself that he "can't let the man up, until he's [obscenity omitted] dead," and so Pscholka "decided to kill him." When Stringer "started getting up again," Pscholka "went and got [a] steel pipe," "came back and . . . beat him in the head, hit him once and then hit him again. And then just threw the pipe down. And you know, it was over. [Pscholka] knew for sure . . . ."
After he killed Stringer, Pscholka searched Stringer's pockets for the $300 he had given to Stringer for safekeeping, but found only $4; removed his bloodied pants and boots and threw them in a trashcan; donned clean clothes; drove one of Stringer's vehicles into town to buy beer and cigars; and then returned home to sleep.
When Pscholka awoke at around 4:00 the next morning, he telephoned the police. The police took Pscholka into custody. After waiving his Miranda*fn2 rights, Pscholka gave a video- and audio-recorded interview in which he confessed to killing Stringer, as recounted above.
The People charged Pscholka with murder and included a special allegation that he had used a deadly and dangerous weapon (a pipe or metal fence pole) in the commission of the murder. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) At trial, the People introduced, among other items of evidence, the recorded interview in which Pscholka admitted killing Stringer and a transcript of that interview; several photographs of the crime scene; the pry bar and fence pole Pscholka used to beat Stringer; and the testimony of a forensic pathologist that Stringer died from multiple blunt force injuries.
Pscholka defended the murder charge on the grounds of self-defense and provocation. He testified at trial that he killed Stringer because he "was in fear for [his] life" and "was sure [Stringer] had his gun on him." According to Pscholka, before he delivered the fatal blows with the pipe, he "was thinking to go ahead and kill [Stringer] because [Stringer] had not stopped his pursuit of [Pscholka's] life, and [Pscholka] still didn't know if there was somebody [who] had [sneaked] up to the property." A clinical psychologist called by Pscholka testified that the human fight-or-flight response causes the thinking process of a person who perceives a serious threat to become "primitive" so that the person may overreact to the situation. Other witnesses called by Pscholka testified that they had seen Stringer with a gun at the Lucerne Valley property when Pscholka was there.
The jury found Pscholka guilty of first degree murder. It also found true the special allegation that he had personally used a deadly and dangerous weapon in killing Stringer. The trial court sentenced Pscholka to prison for a term of 26 years to life.
Pscholka raises a single issue on appeal: the trial court prejudicially erred by failing specifically to instruct the jurors that if they believed Pscholka was guilty of murder but had reasonable doubt whether the murder was first or second degree, they could only find him guilty of second degree murder. Pscholka contends "[a]n instruction setting forth this principle was required to be given by the trial court sua sponte, and was not covered by any other instruction." We agree with the first half of this contention but disagree with the second.
As both parties correctly note in their briefs, whenever the evidence would support a conviction of the charged offense and a lesser included offense, the jury must be instructed that if it has found defendant committed an offense but has reasonable doubt about which offense the defendant committed, it must find the defendant guilty only of the lesser offense. (Pen. Code, § 1097; People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry).) This so-called Dewberry instruction must be given by the trial court sua sponte in any case involving a lesser included offense. (People v. Crone (1997) 54 Cal.App.4th 71, 76 (Crone); People v. Aikin (1971) 19 Cal.App.3d 685, 703, disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 512-514.) Since second degree murder is a lesser included offense of first degree murder (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Cooper (1991) 53 Cal.3d 771, 827), we agree with Pscholka that the trial court had a duty in this case to instruct the jury, in accordance with Dewberry, that if it found Pscholka had murdered Stringer but had reasonable doubt about the degree of the murder, it had to find him guilty of second degree murder.
We do not agree with Pscholka, however, that the trial court failed to perform this duty. A trial court must instruct the jury on the general principles of law applicable to the case but need not use any particular form as long as the instructions are complete and correct. (People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Fiu (2008) 165 Cal.App.4th 360, 370.) On a claim of instructional error, "[w]e must consider whether it is reasonably likely that the trial court's instructions caused the jury to misapply the law." (People v. Carrington (2009) 47 Cal.4th 145, 192 (Carrington).) " 'The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.) We presume jurors have intelligence sufficient to understand, correlate and follow all instructions given. (People v. Butler (2009) 46 Cal.4th 847, 873; People v. Carey (2007) 41 Cal.4th 109, 130; Smith, at p. 13.) We determine whether instructions are correct and adequate by considering the entire charge to the jury, not just one particular instruction or part of an instruction. (Carrington, at p. 192; People v. Smithey (1999) 20 Cal.4th 936, 963-964; Smith, at p. 13.) After review of all of the instructions the trial court gave, we conclude they complied with the requirements of Dewberry.
The trial court instructed the jurors orally and also gave them a set of written instructions. Among the many instructions given were the following:*fn3
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (Italics added; see CALCRIM No. 220.)
"The defendant is charged with murder. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [The instruction then listed and defined the elements of the crime.]" (Italics added; see CALCRIM No. 520.)
"If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [The instruction then defined these terms.] [¶] . . . [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (Italics added; see CALCRIM No. 521.)
"Provocation may reduce a murder from first degree to second degree . . . . The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder." (Italics added; see CALCRIM No. 522.)
"You will be given verdict forms for guilty of first degree murder, guilty of second degree murder, guilty of voluntary manslaughter, and not guilty. [¶] You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of all of the greater crimes. [¶] To return a verdict of guilty or not guilty on a count, you must all agree on that decision. [¶] Follow these directions before you give me any completed and signed, final verdict form. You will complete and sign only one verdict form. Return the unused verdict forms to me, unsigned. [¶] 1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first degree murder, complete and sign that verdict from. Do not complete or sign any other verdict forms. [¶] 2. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of first degree murder but also agree that the defendant is guilty of second degree murder, complete and sign the form for guilty of second degree murder. Do not complete or sign any other verdict forms. You may return a verdict of guilty of second degree murder only if you have found the defendant not guilty of first degree murder . . . ." (Italics added; see CALCRIM No. 641.)
The portions of the instructions italicized above adequately conveyed the Dewberry principle. The jurors were instructed that the People had the burden to prove Pscholka committed murder beyond a reasonable doubt. They were also instructed that if they decided Pscholka had committed murder, they then had to decide whether it was first or second degree murder, and one factor they had to consider in making this decision was provocation. In this regard, the trial court specifically advised the jury that the People had to prove the murder was first degree beyond a reasonable doubt, and that if the People did not sustain this burden, the jury had to find Pscholka not guilty of that offense.
The instruction pertaining to completion of the verdict forms (CALCRIM No. 641) reinforced the above points by telling the jurors they could find Pscholka guilty of a lesser crime (e.g., second degree murder) only if they found him not guilty of a greater crime (e.g., first degree murder); and if they had reasonable doubt about whether the killing was first or second degree murder, they were to complete and sign the verdict form for guilty of second degree murder. As indicated by the Bench Notes accompanying CALCRIM No. 641, this instruction is intended to satisfy the Dewberry requirement. (Cf. People v. St. Germain (1982) 138 Cal.App.3d 507, 522 (St. Germain) [noting specific reference to Dewberry in annotations to CALJIC No. 17.10 in holding the instruction satisfied Dewberry].)
In sum, when we consider all of the instructions given to the jury, as we must, we conclude they properly informed the jury that if it decided Pscholka murdered Stringer but had reasonable doubt about the degree of the crime, the jury had to give him the benefit of that doubt and find him guilty of second degree murder. That is all Dewberry requires. (See Dewberry, supra, 51 Cal.2d at p. 555 ["when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense"].)
Pscholka's contention that Crone, supra, 54 Cal.App.4th 71, requires reversal therefore has no merit. In Crone, the specific instruction complained of (CALJIC No. 17.03) did not "tell the jury what to do if it ha[d] a reasonable doubt as to whether the defendant committed the greater or a lesser offense," and "it [did] not appear that the omission was cured by any other instructions." (Id. at pp. 76-77, italics added.) As we have explained, however, the instructions given here adequately told the jury what to do if it had reasonable doubt as between first and second degree murder.
Our conclusion that the instructions complied with Dewberry also disposes of Pscholka's related contention that the trial court should have given a more specific instruction, such as CALJIC No. 8.71 or No. 17.10.*fn4 "[N]o particular form is required as long as the instructions are complete and correctly state the law." (People v. Andrade (2000) 85 Cal.App.4th 579, 585 (Andrade).) A trial court does not have to give a specific pinpoint instruction that " 'merely duplicates other instructions.' " (People v. Harrison (2005) 35 Cal.4th 208, 253; see also People v. Turner (1994) 8 Cal.4th 137, 203 [trial court may refuse requested instructions that are "repetitive of other instructions already given"].) Indeed, several courts have held a specific Dewberry instruction is not required when another instruction adequately conveys the same benefit-of-the doubt principle. (See, e.g., People v. Barajas (2004) 120 Cal.App.4th 787, 793 [Dewberry instruction "logically equivalent" to another that was given]; People v. Gonzalez (1983) 141 Cal.App.3d 786, 794 [Dewberry instruction "would be merely cumulative" of another that was given], disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330; St. Germain, supra, 138 Cal.App.3d at p. 522 [Dewberry instruction properly refused as "redundant"].)
Furthermore, although a criminal defendant is entitled on request to an instruction that pinpoints the defense theory (People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Wharton (1991) 53 Cal.3d 522, 570), "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024, italics added.) "If [Pscholka] believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court." (People v. Dennis (1998) 17 Cal.4th 468, 514; accord, People v. Young (2005) 34 Cal.4th 1149, 1202 ["a defendant's failure to request a clarification instruction forfeits that claim on appeal"].)
Finally, Pscholka contends the trial court erred in not giving a specific Dewberry instruction because "the jurors considered this a close case between first and second degree murder," and had they received the specific Dewberry instruction, "it is reasonably probable . . . they would have found [Pscholka] guilty of second degree murder only."*fn5 He bases this argument on the facts that (1) one of the jurors underlined or otherwise emphasized portions of the instruction defining the terms "willful," "deliberate" and "premeditated" in the context of first degree murder and a portion of the instruction that provocation may reduce a murder from first to second degree; and (2) the jury asked the court to "clarify the length of time elapsing to consider the act premeditated. Would he have had to plan it from the beginning? Or just before the final blow with the fence pole?"*fn6 We are not persuaded.
Pscholka's interpretation of the jury's deliberations is mere speculation. On appeal, however, the appellant must affirmatively demonstrate error because a judgment is presumed correct and all reasonable inferences are drawn in support of the judgment. (People v. Garza (2005) 35 Cal.4th 866, 881; People v. Wader (1993) 5 Cal.4th 610, 640; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also People v. Roehler (1985) 167 Cal.App.3d 353, 361 ["a jury verdict in a criminal case is presumed to be correct on appeal from the judgment of conviction"].) Here, Pscholka concedes "there was sufficient evidence to support a finding of guilt of both first degree murder, or the lesser included offense of second degree murder," and we have held the trial court properly instructed the jury to return a verdict of guilty of second degree murder if it had reasonable doubt as between first and second degree murder. We therefore must infer that after the trial court answered the jury's question about the length of time required for premeditation, the jury followed the court's instructions, resolved against Pscholka any reasonable doubt it might have had on premeditation and decided he was guilty of first degree murder. (See People v. Burch (2007) 147 Cal.App.4th 862, 869 ["In the absence of a contrary showing in the record, we presume the jury understood and followed the court's instructions."]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 100 ["The jury was fully instructed on first and second degree murder. The existence of deliberation and premeditation is a question of fact for the jury, whose determination must be upheld if there is substantial evidence to support it."].)
The judgment is affirmed.
MCCONNELL, P. J.