Brief Bank # B-526
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF ) No. A052632
CALIFORNIA, )
)
Plaintiff/Appellee, )
)
vs. )
)
JOHN DOE, )
)
Defendant/Appellant. )
_ )
APPELLANT’S OPENING BRIEF
On Appeal From The San Mateo Superior Court
No. C‑24763
Dale A. Hahn, Judge
DENNIS P. RIORDAN, ESQ.
MICHAEL A. LEVY, ESQ.
RIORDAN & ROSENTHAL
523 Octavia Street
San Francisco, CA 94102
Telephone (415) 431‑3472
Attorneys for
Defendant/Appellant
JOHN DOE
ARGUMENT
I. BECAUSE DOE WAS CONVICTED OF MURDER ON THE THEORY THAT HE AIDED AND ABETTED A FELONY OR MISDEMEANOR FROM WHICH A HOMICIDE RESULTED AND BECAUSE THE JURY WAS NEVER INSTRUCTED ON THE ELEMENTS OF THESE “PREDICATE” OFFENSES, APPELLANT’S MURDER CONVICTION MUST BE REVERSED.
A. Statement Of Facts.
At trial, the prosecutor made unmistakably clear in her closing argument that John Doe did not kill Betty J. She told the jury:
[Y]ou all know that John Doe didn’t kill Betty J. He didn’t. And I’m not saying that he did.
(RT 1144).
Likewise, the prosecutor agreed that Doe did not fire a shot.
[A]ll of our witnesses say three shots, and our witnesses say, Raymond J, one, two, three.
(RT 1122).
[T]he shooter [was] Raymond J [ ]
(RT 1122).
Of paramount importance, the prosecutor conceded that Doe did not possess the intent required for murder:
When you look into the minds of Raymond J and John Doe, and Albert R…You may say when I look into their minds, I don’t see their intention of murder, Conroy B. And you would be right. That’s not what they intended, at that point, to murder…
(RT 1148) [Footnote 7]
The prosecutor’s theory of Doe’s liability was clear: Doe had aided and abetted a crime involving a gun, either carrying a concealed weapon, brandishing, or assault with a deadly weapon. The prosecutor argued that as an aider and abettor of these crimes, be they misdemeanors (carrying a concealed weapon and brandishing) or felonies (assault with a deadly weapon), Doe was
responsible for their consequences, of which Betty J’s murder was one, regardless of whether Doe intended her death.
John Doe acted as what the law calls, an aider and abettor.
(RT 1144).
If because of your agreement to commit a crime a second crime is committed, crime B, if crime A is the target crime, and crime B is the ultimate crime, the law says, if you agree to commit the target crime, you are responsible for the ultimate crime and this is how it works in this particular case.
(RT 1147).
If their target crime was to carry a concealed weapon, was to brandish a weapon, to exhibit, to point a weapon, which is also a crime, pointing, assaulting, with a deadly weapon, or even to shoot at the apartment at 140, their conspiracy to commit any one of those crimes was the target.
(RT 1149).
But then look where that target led. Raymond J was an explosive device…Raymond J was a grenade with a pin already pulled out.
(RT 1149).
John Doe brought this grenade with the pin already pulled to the front door, to the step outside Apartment 140, and that shooting was the natural and probable consequence of their plan to make a show of force, to come in with their armed boys to Apartment 140. It happened as night follows day.
(RT 1150).
This Court’s instructions on the vicarious liability of an aider and abettor indeed were broad enough to fully support the prosecutor’s argument that the misdemeanors of brandishing and carrying a concealed weapon or the felony of assault with a deadly weapon could support a conviction of second degree murder, even without a finding of malice aforethought.
One who aided and abetted is not only guilty of the particular crime which he knows his confederates are contemplating committing, but he is liable for the natural and probable consequences of any criminal acts that he knowingly and intentionally aided and abetted.
(RT 1198).
The “particular crime” of the instruction was not limited by any other instruction. Having given that instruction on the vicarious liability of aider and abettor, the trial court proceded to instruct the jury that it could not convict Doe of the charged murder on the theory that it was a “reasonable and probable consequence” of a predicate offense unless it found Doe guilty of the offense from which the homicide resulted.
You must determine whether the defendant is guilty of the crime originally contemplated. And, if so, whether the crime charged in Count One was a natural and probable consequence of such originally contemplated crime.
(RT 1198).
It did not, however, define the elements of the predicate offenses relied on in the prosecutor’s closing argument—assault with a deadly weapon, brandishing, or possession of a firearm. The jury was asked to determine the appellant’s guilt of offenses the elements of which were unknown to it.
On November 5, 1990, Doe was convicted of second degree murder and being an accessory. On February 8, 1991, the trial court, while denying a new trial motion, found that Doe had been tried and convicted solely as an aider and abettor: “[T]he evidence in this trial supported that the defendant was guilty as an aider and abettor, not as the shooter.” (RT 1260).
B. Appellant Doe’s Conviction Of Murder Must Be Reversed Because The Court Never Instructed On The Elements Of The Alleged Predicate Offenses Upon Which The Murder Conviction Was To Be Based
In her closing argument, the prosecutor conceded that, appellant Doe did not go to the crime scene with the mental state required for murder. [Footnote 9] In fact, her theory of liability at trial was not that Doe directly participated in a murder, but that he aided and abetted a lesser offense—either the felony of assault with a deadly weapon or the misdemeanors of possession and brandishing of a weapon—of which murder was a natural and probable consequence. Given this view, the prosecutor asserted that Doe did not need to possess the mental state for murder—malice aforethought—but only the intent needed to aid and abet these lesser offenses. [Footnote 10]
Appellant will establish below that murder liability cannot be vicariously based on these predicate offenses. (See Argument II, infra.) Although the state may choose to cling to its discredited “natural and probable consequence” theory, it surely must concede that, even under its own analysis, Doe could not be found guilty of murder unless he was first found guilty of the lesser offenses from which his murder liability allegedly flowed. Thus, in support of its theory, the state requested, and this court gave an instruction that: “you must determine whether the defendant is guilty of the crime originally contemplated.” (RT 1198).
That being so, reversal is clearly required due to egregious instructional error. When a defendant’s liability for one crime is predicated on his guilt of another, a trial court is plainly required to instruct the jury sua sponte on the elements of the predicate crime, and to direct the jury that they cannot convict the defendant of the greater charge unless the lesser is proven beyond a reasonable doubt. [Footnote 11] Thus the first degree felony murder instruction (CALJIC 8.21) is accompanied by a use note stating: “This instruction must be supplemented by an instruction defining the [Penal Code § 189] felony involved.” CALJIC 8.21 also states that:
“The specific intent to commit—and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.”
See People v. Whitehorn (1963) 60 Cal.2d 256, 264-265. (First degree felony-murder charge requires the court to instruct sua sponte that the commission of the involved felony be proved beyond a reasonable doubt). Similarly, a charge of second-degree felony murder requires instruction on the “felony inherently dangerous to human life” alleged as the predicate for murder liability. CALJIC 8.32 Use Note.
Analogously, since conviction of a burglary requires entry with an intent to commit a separate felony, a court must instruct sua sponte on the elements of that felony.
[T]he court must define “felony” and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculations as to what kinds of criminal conduct are serious enough to warrant punishment…
People v. Failla (1966) 64 Cal.2d 560, 564-565 (emphasis added). (Prejudicial error to fail to instruct sua sponte on elements of felony underlying burglary charge.)
Finally, a defendant cannot be convicted of manslaughter on a misdemeanor-manslaughter theory unless CALJIC 8.45, defining misdemeanor-manslaughter, is “supplemented by an instruction defining the misdemeanor dangerous to human life or misdemeanors involved and by specifying what conduct under the evidence could constitute such misdemeanor or misdemeanors.” CALJIC 8.45 Use Note. In People v. Escarcega (1969) 273 Cal.App.2d 853, the defendant was convicted of manslaughter on a misdemeanor-manslaughter theory, although the trial court, as here, failed to define the elements of the misdemeanor of brandishing (Penal Code § 417). Citing Failla, the Court of Appeal reversed.
That the failure of the court to grant the request to instruct on a definition of misdemeanor was error is now without question. Even in the absence of such request the court should have so instructed sua sponte.
273 Cal.App.2d at 859-860
The prosecutor asked for a murder conviction based on a finding that Doe aided and abetted either an assault with a deadly weapon or misdemeanor gun offenses. The jury, although told “to determine whether the defendant is guilty of the crime originally contemplated” (RT 1198), was given neither the elements of those predicate crimes nor instructed as to the burden of proof beyond a reasonable doubt concerning them. [Footnote 12] Absent these rudimentary instructional tools, it cannot be said that the jury fairly convicted Doe of one or more of the predicate offenses. That error cannot be deemed harmless.
Findings made by a judge cannot cure deficiencies in the jury’s findings as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime.
Cabana V. Bullock (1986) 474 U.S. 376, 384‑385. See also People v. Hedgecock (1990) 51 Cal.3d 395; People v. Figueroa (1986) 41 Cal.3d 714. Doe’s murder conviction must be reversed.
II. EVEN HAD DOE BEEN GUILTY OF AIDING AND ABETTING AN ASSAULT WITH A DEADLY WEAPON OR A MISDEMEANOR GUN CHARGE, THOSE OFFENSES COULD NOT SERVE AS THE PREDICATE FOR A MURDER CONVICTION ON A VICARIOUS LIABILITY THEORY
A. A Defendant Cannot Be Convicted Of Murder Without A Finding Of Malice Merely Because He Aids An Assault With A Deadly Weapon.
Absent a valid theory of liability such as felony murder, the crime of murder requires the mental state element of malice aforethought, be it express or implied. CALJIC 8.10, 8.11. The prosecutor never argued, nor would the evidence have permitted her to argue, that John Doe possessed that mental state element. Rather she argued that, even lacking that mental state, Doe could be guilty of murder because he aided other crimes—assault with, or possession and brandishing of, a firearm—of which Betty J’s death was a natural and probable consequence. In short, Doe was convicted of second degree murder without a finding of malice aforethought because of his alleged participation in a felony assault or misdemeanor gun charge.
The prosecution’s theory of murder via assault has been invalid since the California Supreme Court accepted the merger doctrine more than twenty years ago. That doctrine can be summarized by a lengthy quote from People v. Wilson (1969)
FOOTNOTES:
Betty J, the victim, concededly was not killed intentionally:
Raymond J was a bad shot, lucky for Conroy B. Raymond J was a bad shot and at a distance of about 8 to 10 feet he plum missed. Missed his intended target. By accident; by mistake and shot the woman who stood behind him in the doorway.
(RT 1146).
“That’s not what they intended, at that point, to murder Conroy B.” (RT 1148).
The prosecutor wrote in opposing Doe’s § 995 motion:
Liability of the aider and abettor as the principal’s “agent” extends beyond the “target crime” to the natural and reasonable consequences of the acts which he or she knowingly and intentionally aids and encourages. People v. Rodriguez (1986) 42 Cal.3d 730, People v. Maciel (1987) 199 Cal.App.3d 1042. Therefore, the principal and the aider and abettor need not be shown to have had the identical intent in order to share criminal responsibility for the crime which was ultimately committed. (Clerk’s Transcript, at 140).
“The trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.'” (People v. St. Martin, (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) People v. Wickersham (1982) 32 Cal.3d 307, 323.
The jury instructions given did not define the misdemeanors of brandishing or possession of a weapon. They did, in another context, define simple assault (RT 1201), but not assault with a deadly weapon. The jury was not told, for example, that the requisite intent for the commission of an assault with a deadly weapon is the intent to commit a battery. People v. Lathus (1973) 35 Cal.App.3d 466, 469-470. As a case cited by the prosecutor in her brief on instructions (CT 213) makes plain, a failure to fully instruct on the definition of assault in itself constitutes reversible error. People v. McElheny (1982) 137 Cal.App.3d 396, 403-404.
