Brief Bank # B-515
COURT OF APPEAL OF THE STATE OF CALIFORNIA
In and For the Third Appellate District
PEOPLE OF THE STATE OF CALIFORNIA, )
) 3 Crim. C011324
Plaintiff and Respondent, )
) Superior Court
v. ) No.SLT7176
) El Dorado County
JOHN DOE, )
)
Defendant and Appellant. )
_ )
APPELLANT’S OPENING BRIEF
On Appeal From the Judgment of the Superior
Court of the State of California
In and For the County of El Dorado
HONORABLE T. FINNEY, JUDGE
THOMAS LUNDY
Attorney at Law
115 Fourth Street, 2nd Floor
Santa Rosa, CA 95401
(707) 544-6942
Attorney for Appellant
JOHN DOE
By Appointment of Court of Appeal
Under the Central CA Appellate Program’s
Independent Case System
VII
THE PREPONDERANCE OF EVIDENCE
INSTRUCTION UNCONSTITUTIONALLY REDUCED
THE PROSECUTION’S BURDEN OF PROOF
Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) It requires the state to prove “‘every ingredient of the offense beyond a reasonable doubt….'” (Sandstrom v. Montana (1979) 442 U.S. 510, 524, quoting Patterson v. New York (1977) 432 U.S. 197, 215.) “[A] jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, [citation].” (Cabana v. Bullock (1986) 474 U.S. 376, 384, 88 L.Ed.2d 704, 715.)
In the present case, the jury was generally instructed on the presumption of innocence and the prosecution’s burden to prove guilt beyond a reasonable doubt. [Footnote 14] Furthermore, the jury was generally instructed on the prosecution’s burden to prove beyond a reasonable doubt that the defendant was the person who committed the crime. [Footnote 15]
However, whether a jury has been correctly instructed is not to be determined from consideration of part of an instruction or one particular instruction, but from the entire charge of the court. (People v. Stewart (1983) 145 Cal.App.3d 967, 975.) When the instructions in the present case are viewed as a whole, there is a “reasonable likelihood” that the jury applied the instructions in a way that violated the above stated 14th Amendment federal constitutional principles. (See, Estelle v. McGuire (1991) __ U.S. __, 60 U.S.L.W. 4015, 4018, fn. 4: Supreme Court reaffirms standard set forth in Boyde v. California (1990) 494 U.S. 370, 380.)
Before discussing the specific instructions at issue here, it is important to consider the evidentiary context in which they were given. A primary thrust of the prosecution’s case was centered upon the uncharged offenses. The prosecution presented a simple two-step process to the jury: (1) Defendant committed the uncharged offenses, and (2) since the expert testified that the same person committed the charged and uncharged offenses, defendant committed the charged offense. Hence, if the jurors accepted the prosecutor’s two premises, it could have returned a verdict of guilt without consideration of any other evidence. In this context, the instructions, when considered as a whole, violated defendant’s due process rights because they allowed the jury to determine the first essential premise—that defendant committed the uncharged offenses–by a preponderance of the evidence.
In addition to CALJIC 2.50 and 2.50.1, the jury was instructed as follows:
CALJIC 2.50: “Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] Such evidence, if believed, was not received and may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes.” [¶] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show:… [¶] The identity of the person who committed the crime, if any, of which the defendant is accused… [¶] Or the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
CALJIC 2.50.1: “Within the meaning of the preceding instruction, such other crime or crimes purportedly committed by the defendant must be proved by a preponderance of the evidence. You must not consider such evidence for any purpose unless you are satisfied that the defendant committed such other crime or crimes. [¶] The prosecution has the burden of proving these facts by a preponderance of the evidence.” (CT 2403-2405.)
These instructions told the jury that the defendant’s guilt of the uncharged offenses need only be proven by a preponderance of evidence and that once proven such evidence could be utilized to prove identity. Thus, under this instruction the first prosecution premise—that appellant committed the uncharged offenses–could be satisfied by a preponderance of the evidence.
Moreover, the court also instructed the jury in the language of CALJIC 2.80 [Footnote 16] which invited the jury to give the expert testimony whatever weight it deserves. (The court also preinstructed the jury in the language of CALJIC 2.80 before the presentation of evidence. (RT 77-78.)) Hence, this instruction permitted the jury to give conclusive weight to Detective B’s testimony that the same person committed all of the offenses. Pursuant to this instruction the jury could have found the second prosecution premise to be true based entirely upon Detective B’s opinion.
In sum, under these instructions, there is no guarantee that the jury did any more than determine that (1) it was more probable than not that defendant committed the uncharged offenses, and (2) the expert was correct that whoever committed the uncharged offenses also committed the charged offense. [Footnote 17] Accordingly, the jury was permitted to return a verdict of guilt without finding appellant guilty beyond a reasonable doubt thus reducing the prosecution’s burden of proof in violation of settled due process principles. (5th and 14th Amendments; People v. Figueroa (1986) 41 Cal.3d 714; Sandstrom v. Montana (1979) 442 U.S. 510.) And, because it cannot be said that the evidence which the jury actually considered and the facts which the jury necessarily found overwhelming establish proof beyond a reasonable doubt, the judgment should be reversed. (Carella v. California (1989) 491 U.S. 263; People v. Roder (1983) 33 Cal.3d 491, 498-499; People v. Reyes (1992) 2 Cal.App.4th 1598, 1604.) [Footnote 18]
FOOTNOTES:
Footnote 14: The jury was instructed in the language of CALJIC 2.90 as follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” (CT 2416.)
Footnote 15: The jury was instructed in the language of CALJIC 2.91 as follows: “The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty. (CT 2417.)
Footnote 16: CALJIC 2.80 provided as follows:
“A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. [¶] A duly qualified expert may give an opinion on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert. [¶] You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.” (CT 2412.)
Footnote 17: Misled by the trial court’s instruction on the use of the prior offense evidence, the jury could have reasoned as follows:
“The evidence as to appellant’s identity as the killer of Mr. F is insufficient given that the trace evidence was not definitive and given the lack of any eye-witness testimony that defendant and Mr. F had contact on the night of Mr. F’s abduction. But, one thing I am certain of is this, if the defendant committed the prior uncharged murders of Mr. H, Mr. B and Mr. S, then he also committed the murder of Mr. F. While the evidence as to the three prior murders does not establish defendant’s guilt as to those crimes beyond a reasonable doubt (given the uncertainty of the trace evidence and the problems with the eye witness identification), I am persuaded that defendant more probably than not committed those murders. The judge said we could use the prior murders on the question of identity as long as it was proved by a preponderance of the evidence. The judge also told us that we should weigh the evidence of the other murders in the same fashion as any other evidence. Accordingly, because I conclude that defendant did commit the prior murders by a preponderance of the evidence, I have no reasonable doubt that he committed the Mr. F murder.”
And, the jury’s quick verdict–approximately 3 1/2 hours (RT 1684-1690)–may well have used such an evidentiary shortcut to reach its verdict.
Footnote 18: Even if the instructions are simply determined to be inconsistent rather than erroneous, it is more likely that the jury used the preponderance standard in determining the import of the uncharged offenses. Jury instructions of a specific nature control over instructions containing general provisions and CALJIC 2.50 and 2.50.1 were the only instructions which specifically discussed the prior uncharged offenses. (People v. Stewart, supra, 145 Cal.App.3d at 975.)
