Brief Bank # B-701 (Re: F 2.52 n4 [Improper Factual Basis For Flight Should Be Stricken]; F 2.52 n5 [Applicability Of Flight Instruction To Escape Charge].)
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Date of Brief: March 1996.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) H00000
)
v. ) Santa Clara County
) Superior Court
JOHN DOE, ) No. 159130
)
Defendant and Appellant. )
________________________________________)
Excerpt From
Appellant’s Opening Brief
C. Elliot Kessler
State Bar Number 111678
220 California Avenue, Suite 106
Palo Alto, CA 94306
(415) 462-9118
Attorney for appellant Doe
II
THE TRIAL COURT ERRED IN FAILING TO MODIFY
THE FLIGHT INSTRUCTION TO PRECLUDE ITS
APPLICATION TO THE ESCAPE CHARGE AND IN INSTRUCTING
THAT THE JURY COULD CONSIDER FLIGHT EVIDENCE
IMMEDIATELY AFTER THE COMMISSION OF A CRIME
The trial court committed prejudicial error by instructing the jury that appellant’s flight was a circumstance which could tend to prove his guilt or innocence on the escape charge. The trial court further erred in instructing that the jury could consider flight evidence “immediately after the commission of a crime.”
The jury was instructed: ‘The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all the other proved facts in deciding the question of his guilt or innocence. The weight to such-the weight to which such circumstance is entitled is a matter for the jury to determine.” [Footnote 1] (RT 1029; see CALJIC No. 2.52.)
The trial court has a duty not only to instruct on the relevant principles of law, but also “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” [Citation.] “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, believed by the jury, will support the suggested inference [citation.].” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
The trial court permissibly gave a flight instruction on the burglary since “escape from jail pending trial is ordinarily admissible as an indication of consciousness of guilt [citations] . . . .” (People v. Terry (1970) 2 Cal.3d 362, 395.) However, the court should have specified that the flight instruction was applicable only to the burglary and not to the escape. The flight instruction did not apply to the escape charge because flight was an element of the offense. The elements of this offense consisted of an arrest for a felony, confinement in a jail and an escape. (§ 4532, subd. (b); CT 116.) The trial court had no need to define the meaning of the term “escape” since it was meant in the everyday sense of the word. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) And this meaning is synonymous with “flight” from a place of confinement.
In the absence of an instruction not to consider flight in regard to the escape offense, the jury would reasonably have believed that the flight instruction applied to both charges. However, since flight was inherent in the escape charge, the flight instruction was tantamount to an instruction that consciousness of guilt on the flight charge could be inferred by the mere fact of appellant’s escape. In other words, the instruction told the jury that the mere fact the jury had found one of the elements present could be, by itself, evidence of appellant’s guilt. The instruction thus undermined the presumption of innocence.
Appellant had located only one case that discusses this situation, the 1937 case of People v. Henry (1937) 23 Cal.App.2d 164. There, defendant was charged with negligent homicide and leaving the scene of an accident. (Id., at p. 156.) He contended the flight instruction was prejudicial because it was an essential element of the latter charge. The appellate court rejected the argument on several grounds. The court’s reasoning, however, was both faulty and distinguishable from this case.
First, the court cited section 1127c which requires that a flight instruction be given where applicable. (See fn. 7, supra.) However, this statute cannot reasonably be read to abrogate the rule that courts not give instructions which are irrelevant, confusing or relieve the jury from making findings on relevant issues. (People v. Saddler, supra, 24 Ca1.3d at p. 681.) “It is settled law that the reason flight is relevant is because it may demonstrate consciousness of guilt. [Citations.] Evidence of flight has no other probative value.” People v. Hill (1967) 67 Cal.2d 105, 120.) The flight implied no consciousness of guilt inference on the escape charge.
The Henry court next noted that the instruction was relevant to the negligent homicide charge. (Henry, supra, at p. 164.) However, this argument amounts to bootstrapping an instruction which was proper as to one charge onto a charge to which it was improper. The Henry court failed to consider the court’s duty to tailor instructions to the facts of a specific case.
Third, Henry noted that the elements of the leaving the scene of an accident charge were carefully explained to the jury, and therefore the flight instruction “was not prejudicial to the defendant when the entire body of the court’s, instructions is taken into consideration.” (Henry, supra, at p. 164-165.)
This reason might be applicable to this case if not for the trial court’s further error in failing to delete the reference to “flight of a person immediately after the commission of a crime.” There was no evidence that appellant fled from the scene of the burglary; he was appellant was apprehended as soon as he stepped outside the house. This part of the instruction, therefore, could only have referred to the escape.”
In People v. Carrera (1989) 49 Cal.3d 291, 314, the flight instruction was based on defendant’s escape from jail. Although it upheld the instruction, the Supreme Court stated “it would have been preferable had the trial court deleted any reference in the instruction to flight ‘immediately after the commission of a crime’ and instructed the jury only as to flight after defendant was ‘accused of a crime’ . . . .” The court noted that “the prosecutor’s argument made clear to the jury that only defendant’s escape from jail was implicated by this instruction.” (Ibid.)
This part of the flight instruction reinforced the mistaken notion that the flight from Elmwood could be considered as consciousness of guilt on the escape charge. By leaving in the phrase “immediately after the crime,” the instruction made it appear that leaving Elmwood was itself evidence of guilt on the escape charge. The jury may well have believed that appellant’s “flight” from Elmwood to Highway 17 and to San Francisco could itself have been considered as evidence of guilt on the escape charge. Had the court deleted the reference to flight following the crime, it would have been clear that the flight was only to be considered as consciousness of guilt evidence vis-a-vis the burglary.
The two instructional errors were of constitutional dimension. In County Court of Ulster Cty. v. Allen (1979) 442 U.S. 155, 60 L.Ed.2d 777, 99 S.Ct. 2213, the Supreme Court discussed instructions which state a permissive inference, that is, allow (but do not require) the jury to infer guilt if it finds the elemental fact to be true. The court stated:
Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond the reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissive inference to a jury, or its use by a jury, has caused the preemptively rational factfinder to make an erroneous factual determination.
(Id., at p. 157; see also Miller v. Norvell (1lth Cir. 1985) 775 F.2d 1572, 1575.)
Since the error is constitutional, the standard of prejudice is whether the error was harmless beyond a reasonable doubt. (California v. Chapman (1967) 386 U.S. 18, 17 L.Ed. 705, 87 S.Ct. 824.)
The giving of the flight instruction was prejudicial under this standard. The errors undermined appellant’s ability to establish his necessity defense to the escape charge. They drew the jury’s attention to the escape itself rather than to appellant’s defense. Even though the inference of guilt was permissive, the instruction suggested that flight was one type of evidence of guilt which could “establish guilt.” The instruction thereby created a risk that the jury would make “an erroneous factual determination.” (County Court of Ulster Cty. v. Allen, supra, 442 U.S. at p. 157.) The errors cannot, therefore, be held harmless beyond a reasonable doubt.
While the jury was instructed to disregard inapplicable instructions (CT 122; RT 1038; see CALJIC No. 17.31), no court has suggested that by giving this instruction, the judgment is insulated from reversal. If this instruction insulated judgments from reversal, then the case law which holds that a trial court may not give instructions for which no factual basis exists would be rendered meaningless. The mere giving of CALJIC No. 17.-31 cannot be decisive of whether or not an error is prejudicial. In light of the evidence of prejudice in this case, the instruction did not excuse the error or cure the prejudice.
In light of the evidence of prejudice, the error must be considered prejudicial even, assuming arguendo, that the Watson standard of whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” is applied. (People v. Watson (1956) 46 Cal.2d 818, 836.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) H00000
)
v. ) Santa Clara County
) Superior Court
JOHN DOE, ) No. 159130
)
Defendant and Appellant. )
________________________________________)
SUPPLEMENTAL LETTER BRIEF
TO THE HONORABLE PRESIDING JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, SIXTH APPELLATE DISTRICT:
Appellant, through counsel, hereby responds to this Court’s request of March 13, 1996, for additional briefing “on the issue of whether defendant’s failure to request the limiting instruction he claims the court should have given, waived any claim based on the failure to give it.”
DATED: March 22, 1996
Respectfully Submitted,
C. Elliot Kessler
Attorney for appellant Doe
State Bar Number 111678
220 California Avenue, Suite 106
Palo Alto, CA 94306
(415) 462-9118
C. Elliot Kessler Attorney at Law
220 California Avenue, Suite 106
Palo Alto, CA 94306
(415) 462-9118
March 22, 1996
Court of Appeal
Sixth Appellate District
333 West Santa Clara, Suite 600
San Jose, CA 95113
To the Presiding Justice and Justices of the Sixth Appellate District, Court of Appeal:
There are two competing principles regarding the court’s duty to give jury instructions. On the one hand, “even in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, . . .” (People v. Flannel (1979) 25 Cal.3d 680-681.) The phrase “general principles of law governing the case” means “’those principles of law commonly or closely and openly connected with the facts of the case before the court.’ [Citations.]” (Id., at p. 681.)
As a corollary, the trial court has a duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
On the other hand, a trial court “need not instruct on specific points developed at trial.” (People v. Flannel supra, at p. 681, footnote omitted.) By extension, “[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. Lanz (1989) 49 Cal.3d 991, 1024.)
As Witkin aptly notes: “There is an obvious contradiction between the rule that a party must request proper instructions and the rule that the judge must instruct the jury without request. [Citation].” (5 Witkin & Epstein, Cal. Crim. Law (2d ed. 1989), § 2925, p. 3586.)
The issue here is whether the necessity of informing the jury that the flight instruction did not apply to the escape charge was an irrelevant principle of law about which the court must not instruct or a modification of an otherwise properly given flight instruction of which it was appellant’s duty to request.
While the line between these two principles is fuzzy, the instruction here falls on the side of the former. The flight instruction was not only irrelevant to the escape charge, but served to undermine the presumption of innocence and lessen the prosecution’s burden of proof. If a court has a sua sponte duty to instruct on the elements of the charged offense (People v. Cummings (1993) 4 Cal.4th 1233, 1311) and the defendant’s theory of the case (People v. Stewart (1976) 16 Cal.3d 133, 140), it follows that a court has a duty not give instructions which undermine the jury’s findings on the elements.
As one court has stated, “At a minimum. it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law. [Citation.]” (People v. Iverson (1972) 26 Cal.App.3d 598, 604-605.)
Thus, the error is closer to an error in failing to properly instruct on the elements than to a failure to request modification of a correct instruction.
To have informed the jury that the flight instruction was applicable only to the burglary charge was not a mere modification of the instruction. Appellant is not contending the court should have modified the words of the instruction or limited it to a particular issues of a single charge, as was the case in People v. Prysock (1982) 127 Cal.App.3d 972, 1002-1003.
Rather, appellant argues only that the court should have limited the instruction to the charge to which it was relevant. The prosecution’s ability to join charges should not deprive the defendant of his right to fair instructions on all of the charges. “Each count in an information stands by itself and should be considered independently by the jury in arriving at its verdict, according to the particular law and evidence which bears on it. [Citations.]” (People v. Brown (1970) 10 Cal.App.3d 169, 176, emphasis added.)
This is not to excuse counsel’s failure to request a limit to the flight instruction’s applicability. Yet just as the court’s sua sponte duty to instruct on the applicable general principles of law is “designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system” (People v. Wade (1959) 53 Cal.2d 322, 334), the court’s duty not to instruct on irrelevant principles cannot be waived by counsel.
The fact that section 1127c requires a flight instruction be given is not relevant to the issue herein. This statute mandates an instruction only “where evidence of flight is relied upon as tending to show guilt, . . . .” The prosecutor did not rely on flight as an inference of consciousness of guilt as to the escape charge.
Further, the statutory provision that “No further instruction on the subject of flight need be given” means only that the court need not amplify on the significance of flight beyond that set forth in section I 127c. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439.) It cannot logically mean that court is prevented from informing the jury as to the charge to which the flight instruction is relevant.
The error which occurred here would be harmless in most cases where offenses are joined and a flight instruction is given which is relevant’ to less than all of the charges. Here, however, the flight instruction was not only irrelevant to the escape charge, but prejudicial to the jury’s determination of this count. Under these circumstances, the trial court had a duty to apprise the jury that the flight instruction had no applicability to the escape count.
Respectfully Submitted,
C. Elliot Kessler
Attorney for appellant Doe
State Bar Number 111678
220 California Avenue, Suite 106
Palo Alto, CA 94306
(415) 462-9118
FOOTNOTES:
Footnote 1: Penal Code section 1127c mandates that this instruction be given where flight evidence is relied upon as tending to show guilt. In closing argument, the prosecutor contended that appellant’s escape from Elmwood indicated his consciousness of guilt. (RT 10 60.)
