Brief Bank # B-510c
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FIVE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) Appeal #AO54828
)
v. ) Solano County
) Superior Court
JOHN DOE, ) Case #VC29784
)
_ Defendant and Appellant. )
APPELLANT’S REPLY BRIEF
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF SOLANO
Honorable Michael McInnis, Presiding
JIM FAHEY
P.O. Box 433
Dixon, CA 95620-0433
Telephone: (916) 758-5776
Attorney for Appellant by
Appointment of the Court of
Appeal under the First
District Appellate Project’s
Independent Case System
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FIVE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) Appeal #AO54828
)
v. ) Solano County
) Superior Court
JOHN DOE, ) Case #VC29784
)
_ Defendant and Appellant.)
APPELLANT’S REPLY BRIEF
ARGUMENT
I
CALJIC No. 4.45 IS SERIOUSLY DEFECTIVE, AS IT FAILS TO ADVISE THE JURY OF THE PROSECUTOR’S BURDEN OF PROOF CONCERNING THE ACCIDENT DEFENSE. ON THE FACTS OF THIS CASE, THE GIVING OF SAID DEFECTIVE INSTRUCTION WAS REVERSIBLE ERROR
A. Introduction
In Appellant’s Opening Brief (“AOB”), appellant asserted that the court committed reversible error by giving the current version of CALJIC No. 4.45, an instruction on the accident defense which fails to advise the jury that the prosecutor must disprove accident beyond a reasonable doubt. (AOB 9-23.) In so arguing, appellant pointed out that the CALJIC instructions on other defenses–such as alibi (CALJIC No. 4.50), unconsciousness (CALJIC No. 4.30), justifiable homicide (CALJIC No. 5.15) and intoxication (CALJIC No. 4.21) –do contain language concerning reasonable doubt. (AOB 9-12, 17-18.) Appellant asserted that there is no rational reason why CALJIC No. 4.45 should not contain similar language, and that the giving of current CALJIC No. 4.45, without more, is thus error. (AOB 14-15.) Finally, appellant explained that the erroneous giving of CALJIC No. 4.45 in the present case was prejudicial under any standard. (AOB 16-23.)
In Respondent’s Brief (“RB”), respondent mischaracterizes some aspects of appellant’s argument and disregards others. Respondent’s overall argument, however, appears to be as follows: (1) Appellant complains of current CALJIC No. 4.45 because it can be “interpreted” to lesson the prosecutor’s burden of proof (RB 9); (2) where an “ambiguity” in the jury instructions is complained of on appeal, the issue is waived if it has not been raised in the trial court (RB 9-10); (3) in any event, nothing in CALJIC No. 4.45 is “confusing” or “misleading” (RB 10); (4) while CALJIC No. 4.45 does not discuss the concept of reasonable doubt, CALJIC Nos. 2.90 and 2.01 do contain such discussion, and those instructions were given here (RB 11); (5) any error was harmless because defense counsel used her closing argument to link the accident defense to the concept of reasonable doubt (RB 11); (6) any error was harmless because there is no indication the jury was misled or confused (RB 12); and (7) any error was harmless because the evidence adduced at trial supports the verdict (RB 12).
As will be explained in sections B through H, post, respondent’s contentions are without merit. Before so explaining, however, appellant would like to note two important points which respondent has failed to address.
First, respondent has failed to address the fact that the CALJIC instructions on the other aforementioned defenses contain reasonable doubt language. (See AOB 9-12.) Appellant can think of no reason, and respondent has suggested no reason, why those instructions should contain such language, but CALJIC No. 4.45 should not. Appellant submits respondent’s failure to address this point signifies a sub silentio concession that there is no valid reason for this anomaly.
Second, respondent has failed to address the fact that a jury instruction linking the accident defense to reasonable doubt was long ago approved by one appellate court. (People v. Black (1951) 103 Cal.App.2d 69, 79; see AOB 14.) Appellant submits that respondent’s failure to address this point signifies a recognition that such an instruction is proper–at least when requested by trial counsel.
B. Respondent’s characterization of appellant’s argument as an assertion that CALJIC No. 4.45 is objectionable because it is subject to misinterpretation
As noted above, respondent claims appellant objects to CALJIC No. 4.45 because it “could be interpreted to ‘lesson the prosecutor’s burden of proof’.” (RB 8.) This is not true. Appellant is not challenging CALJIC No. 4.45 on the ground that it contains misleading or confusing language which is subject to misinterpretation concerning the prosecutor’s burden of proof re the accident defense. Rather, as explained throughout Argument I of AOB, appellant contends that CALJIC No. 4.45 lessons the prosecutor’s burden of proof because it contains no language advising the jury of the prosecutor’s heavy burden re the accident defense. (AOB 12-15, 19-20.)
Appellant realizes that the above distinction may seem somewhat picayune. As will be explained post in section C of this argument, however, the distinction is a significant one.
C. Respondent’s waiver contention
Respondent argues that the propriety of current CALJIC No. 4.45 is waived as an appellate issue because trial counsel did not object to said instruction. In so arguing, respondent cites five cases requiring counsel to object to ambiguous instructions and four cases requiring counsel to request amplifying instructions. (RB 10.)
Respondent’s waiver argument is wholly without merit. As set forth in section B, ante, appellant is not challenging CALJIC No. 4.45 on the ground that it contains confusing, misleading or ambiguous language. Rather, appellant challenges CALJIC No. 4.45 on the ground that it contains no language at all concerning the prosecutor’s burden of proof re the accident defense. Respondent’s first five cases are thus inapposite. [Footnote 1]
Respondent’s argument concerning “amplifying” instructions fares no better. As noted above, People v. Bell, ante, 49 Cal.3d at 550, cited at RB 10, involved a failure to explain the distinction between a “mental disease” and a “mental defect.” People v. Duran (1983) 140 Cal.App.3d 485, 493, cited at RB 10, involved a failure to request a limiting instruction. People v. Goodall (1982) 131 Cal.App.3d 129, 143, cited at RB 10, involved a purported lack of clarity in instructions on other-crimes evidence. People v. Cortez (1981) 115 Cal.App.3d 395, 407, cited at RB 10, involved a failure to request clarification of the instructions pertaining to accomplice testimony. All four of these cases are plainly irrelevant to the issue at bar, which involves a failure to instruct as to the applicable burden of proof concerning an affirmative defense.
Accordingly, respondent’s waiver argument is without support in the law. Instead, for all the reasons set forth at AOB 23, n. 2, it is immaterial that trial counsel did not object to the current form of CALJIC No. 4.45. Moreover, for reasons also set forth at AOB 23, n. 2, even if trial counsel had been required to object to the giving of current CALJIC No. 4.45, her failure to fulfill that duty would have constituted ineffective assistance of counsel for which no tactical reason could have existed. Respondent’s failure to reply to this portion of appellant’s argument can only be construed as a tacit acknowledgment that appellant is correct about this point.
D. Respondent’s contention that CALJIC No. 4.45 is not misleading, confusing or ambiguous
Respondent next defends current CALJIC No. 4.45 by asserting that it is “not misleading, confusing, or ambiguous.” (RB 10.) As explained in section B, ante, appellant does not argue otherwise. Rather, appellant asserts that the instruction fails to inform the jury of the prosecutor’s burden of proof concerning an affirmative defense. This much cannot be denied.
E. Respondent’s CALJIC Nos. 2.90 and 2.01 contention
Respondent contends there was no need for “reasonable doubt” language in CALJIC No. 4.45, since CALJIC Nos. 2.90 and 2.01 adequately “covered those points.” (RB 11.) This contention is also devoid of merit, since neither of those instructions in any way linked the subject of reasonable doubt to the affirmative defense of accident. Indeed, if respondent’s argument were valid, there would be no need for “reasonable doubt” language in CALJIC Nos. 4.30, 4.50, 5.15 or 4.21, either, since CALJIC Nos. 2.90 and 2.01 are routinely given in almost every criminal case–including those involving the affirmative defenses of unconsciousness, alibi, justifiable homicide and intoxication. CALJIC Nos. 2.90 and 2.01 do not link reasonable doubt to affirmative defenses, however, and it is doubtless for that reason that CALJIC Nos. 4.30, 4.50, 5.15 and 4.21 contain “reasonable doubt” language. As stated above, appellant has thought of no reason, nor has respondent suggested a reason, why CALJIC No. 4.45 should be different from those instructions.
F. Respondent’s contention concerning counsel’s closing argument
Respondent next contends that any error in current CALJIC No. 4.45 was harmless because defense counsel used her closing argument to link (albeit rather abstrusely) the accident defense to the prosecutor’s burden of proof. (RB 11.)
Respondent’s contention fails for a fundamental reason. Specifically, it is well-settled that defense counsel’s argument can never be an acceptable substitute for proper jury instructions. (Carter v. Kentucky (1981) 450 U.S. 288, 302 [67 L.Ed.2d 241]; People v. Reynolds (1988) 205 Cal.App.3d 776, 781; Parker v. Atchinson, T and S.F.Ry.Co. (1968) 263 Cal.App.2d 675, 680; Goodwin v. Balkcom (11th Cir. 1982) 684 F.2d 794, 803; United States v. Bernard (9th Cir. 1980) 625 F.2d 854, 857; United States v. Wolfson (5th Cir. 1978) 573 F.2d 216, 221; United States v. Heyman (4th Cir. 1977) 562 F.2d 316, 318.) Respondent’s argument to the contrary, which is made without citation to a single authority, must fail.
G. Respondent’s contention concerning jury confusion
Respondent further contends any error was harmless because there is no indication the jury was “confused or misled.” (RB 12.)
Initially, appellant notes that if respondent’s contention were valid, it would mean a failure to instruct on the prosecutor’s burden of proof concerning an affirmative defense could never be prejudicial absent some manifestation of jury confusion. Such certainly cannot be the law, and respondent has cited no authority to suggest that such is the law.
Moreover, respondent’s argument fails because it misses the significance of the verdict in this case. As set forth in AOB, the jurors received proper instructions concerning the prosecutor’s burden of proof re voluntary intoxication and specific intent, and they thereupon proceeded to find Mr. Doe not guilty of the specific intent charges. (AOB 17-19.) By contrast, the jurors did not receive proper instructions concerning the prosecutor’s burden of proof re the accident defense, and they thereupon proceeded to find that the shooting was not an accident. (AOB 17-19.) Under the circumstances, appellant submits the significance of the instructional omission is undeniable.
Moreover, as explained in AOB, the jury refused to convict on the main count and declared itself deadlocked–by a vote of 7 to 5, no less–on the ultimate count of conviction. (AOB 21.) Under the authorities cited in AOB, these things are clear indicia that this was a close case and that the instructional error was prejudicial. (See AOB 21.)
H. Respondent’s assessment of the evidence
Finally, respondent contends that any error was harmless because “the evidence supports the verdicts.” (RB 12.) Appellant agrees there is sufficient evidence to sustain the verdict, but that scarcely means the evidence supports respondent’s position in the question of prejudice. Rather, as set forth at length at AOB 5-8 and 16-17, there was abundant evidence from which the jury could have found the shooting was an accident. Respondent’s failure to discuss these various pieces of evidence fatally undermines respondent’s harmless error argument.
I. Conclusion
In sum, each of respondent’s contentions lacks merit. For all the reasons set forth in AOB, the giving of current CALJIC No. 4.45 was prejudicial error, regardless of what standard of prejudice applies. (See discussion of applicable standard at AOB 19-20.)
People v. Bell (1989) 49 Cal.3d 502, 550, cited at RB 10, involved a failure to explain the distinction between mental diseases and mental defects. People v. Hernandez (1988) 46 Cal.3d 315, 353, cited at RB 10, involves invited error in the giving of CALJIC No. 8.75 (the Stone/Kurtzman instruction). People V. McNeill (1980) 112 Cal.App.3d 330, 340, cited at RB 10, involved an attack on an alleged ambiguity in CALJIC No. 2.52 (concerning flight). People v. Martinez (1978) 81 Cal.App.3d 1, 19, cited at RB 10, involved a scattershot attack on the alleged ambiguity of various instructions concerning flight, adoptive admissions, other-crimes evidence and efforts to suppress evidence. People v. Anderson (1966) 64 Cal.2d 633, 639, cited at RB 10, involved an assertion that the trial court should have more fully explained what sort of “force” or “fear” is needed for the crime of robbery. Clearly none of these cases is remotely analogous to the case at bar, wherein the trial court failed to instruct the jury on the prosecutor’s burden of proof concerning an affirmative defense.
