Brief Bank # B-718 (Re: F 6.10.5a [Specification Of Conspiracy’s Objective (PC 182)].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
_________________________________________
PEOPLE OF THE STATE OF CALIFORNIA, 3 Crim. C000000
Plaintiff and Respondent, Yolo County
Superior Court
v. No. 00000
JOHN DOE and
RICHARD ROE,
Defendants and Appellants.
_________________________________________)
Appeal from the Judgment of the Yolo County Superior Court
Honorable Stephen L. Mock, Judge
APPELLANT DOE’S OPENING BRIEF
STEPHEN GREENBERG
Attorney at Law
P.O. Box 2190
Nevada City, CA 95959
Telephone: (916) 265-3696
State Bar No. 88495
Appointed by the Court of
Appeal, In Conjunction With the
Central California Appellate
Program–Independent Case
Attorney for Appellant
VIII.
THE TRIAL COURT’S ERRONEOUS INSTRUCTIONS IN
CONNECTION WITH THE PROSECUTION’S CONSPIRACY
THEORY, INCLUDING THE FAILURE TO IDENTIFY AND
DESCRIBE THE TARGET CRIMES, REQUIRES REVERSAL
OF THE TORTURE AND MURDER BY TORTURE COUNTS.
A. Background
Based on the evidence at trial, as well as the midtrial dismissal of the kidnapping charge as against Roe, it is clear that Doe was charged as the perpetrator of that offense in Count 2. With respect to the torture and torture murder counts, however, the jury was permitted to find Doe guilty even if Roe were the perpetrator. As noted in section I-C-3,supra, the trial court at the prosecution’s request instructed the jury on uncharged conspiracy as a theory of vicarious liability. (CALJIC Nos. 6.10.5, 6.11, 6.12, 6.13, 6. 17, 6.20, 6. 21 , 6 . 22 ; CT 415-422 ; RT 1489-1493. ) In that context, the court gave the following instruction on the “natural and probable consequences” doctrine:
Each member of a conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy, if such act or such declaration is in furtherance of the object of the conspiracy. The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of the conspiracy, even though such crime was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of such crime.
You must determine whether . . . each defendant is guilty as a member of a conspiracy to commit the originally agreed uponcrime or crimes, and if so, whether the crimes alleged in Counts One, Two or Three were perpetrated by a coconspirator in furtherance of such conspiracy and was a natural and possible [sic] sequence [sic] of the agreed upon criminal objective of such conspiracy. (RT 1490-1491, emphasis added; CT 416 [using correct phrase, “probable consequence,]; CA-LJIC No. 6.11.)
Obviously, application of this instruction is dependent on a determination as to what was (or were) the criminal objectives) of the conspiracy. And in the previous instruction, the court defined conspiracy in terms purporting to guide such a determination: “A conspiracy is an agreement between two or more persons with the specific intent to commit a public offense, such as torture, and with the further specific intent to commit such offense . . . .” (RT 1489, emphasis added; cf. CT 415 [including specific intent “to agree”]; CALJIC No. 6.10.5 [same].) But the court’s reference to “a public offense” left this crucial element of conspiracy theory up to the jury’s imagination; exacerbated by the court’s errors in reading the printed instructions, the error requires reversal. [Footnote 1]
B. Nature Of The Error
In People v. Prettyman, supra, 14 Cal.4th 248, the Supreme Court recently resolved the issue here with respect to the law of aiding and abetting:
[W]hen the prosecutor relies on the “natural and probable consequences” doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal. (Id. at 254, emphasis in original.)
The trial. court must provide these instructions “on its own initiative . . . . “ (Id. at 268, emphasis in original.)
Again, Prettyman’s context was aiding and abetting theory; the jury in that case presumably was not instructed on conspiracy law. [Footnote 2] But the Supreme Court noted that the “natural and probable consequences” doctrine is applied equally to aiders and conspirators. (Id. at 260-261.) Indeed, “[t]he first California decision to embrace this doctrine”–People v. Kauffman (1907) 152 Cal. 331-“involved the liability of conspirators for substantive crimes in the course of a conspiracy, not the liability of aiders and abettors, as does this case.” (Ibid., emphasis added.) Moreover, Prettyman’s policy concern with “minimiz[ing] the risk that the jury, generally unversed in the intricacies of criminal law, will indulge in unguided speculation'” is equally applicable to aiding and conspiracy theories. (Id. at 267; cf. People v. Fenenbock, supra, 46 Cal.App.4th at 1706 [charged conspiracy; jury must determine which felony was target, instruction required on elements].)
The court’s instruction did refer to “torture,” but the context was clearly an example of a possible target of conspiracy (“such as torture”). The requisite element was described only as “a public offense.” But “a conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified nefarious, conduct.” (Prettyman, at 268.) Because the court’s instruction permitted such generalized beliefs, it was erroneous, and the other instructions did not correct the erroneous information. (Cf. People v. Liu (1996) 46 Cal.App.4th 1119, 1134 [charged conspiracy; instruction expressly cross-referenced allegations in information, identifying target offenses].)
Appellant notes two additional significant errors in the court’s reading of the conspiracy instructions. As indicated above, the court initially referred to the “natural- and probable consequences” rule, but identified the necessary finding as whether a charged crime was “a natural and possible sequence of the agreed upon criminal objective of such conspiracy.” (RT 1491, emphasis added.) This was more than a minor misreading; it transformed the proper test for derivative liability in a grossly overbroad manner, making it much easier to convict based on conspiracy theory.
And in defining conspiracy itself, the court skipped over two words, shown here in brackets: “an agreement between two or more persons with the specific intent [to agree] to commit a public offense, such as torture, and with the further specific intent to commit such offense . . . . “ (RT 1489.) As read by the court, the instruction effectively removed the first of the two intent findings upon which the conspiracy theory should have been based. “The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. [Citations.]” People v. Horn (1974) 12 Cal.3d 290, 296, emphasis added; People v. Austin (1994) 23 Cal.App.4th 1596, 1606-1607: “The intent to agree to commit a crime . . . is the essential element of conspiracy . . . . “)
In connection with the latter two errors, appellant concedes that the written instructions submitted to the jury were accurate. (CT 415-416; RT 1632, 1634.) And in case of conflict, the reviewing court generally presumes that the jury followed the written version. (People v. McLain (1988) 4 6 Cal.3d 97, 111, fn. 2; People v. Garceau (1993) 6 Cal.4th 140, 189 [harmless error].) Appellant submits, however, that the initial errors were significant enough that they likely enhanced the prejudicial effect of the omission regarding target offenses.
C. The Error Requires Reversal.
The failure to identify and describe target offenses makes the derivative liability instruction “somewhat ambiguous, because [it leaves] open the possibility that the jury might engage in unguided speculation.” (People v. Prettyman, supra, 14 Cal.4th 272.) This court’s task is to determine whether there is a “reasonable likelihood” that the jury has applied the instruction in a way that violates the federal constitution; if not, the error is one of state law. (Id. at 272-274.) In Prettyman, the Supreme Court found the latter: “Because the parties made no reference to the ‘natural and probable consequences’ doctrine in their arguments to the jury, it is highly unlikely that the jury relied on that rule when it convicted Bray.” (Id. at 273.) The court explained the prosecution’s theory, supported by ample evidence, as requiring only a finding that Bray aided the murder itself, not a different target offense. (Id. at 273-274.)
In closing argument neither the prosecutor nor Doe’s counsel expressly referred to conspiracy theory. The prosecutor essentially argued that both defendants were perpetrators of the torture and murder. (RT 1535, 1537-1538, 1616, 1618.) on the subject of derivative liability, she argued that by “saying, Where’s my money, where’s my money, while the other guy tortures him is guilty of first degree murder on an aiding and abetting theory. He’s encouraging.” (RT 1618.) Defense counsel argued that Doe did not aid and abet Roe in the torture, while conceding Doe took responsibility for the beating and eventual death. (RT 1605, 1607-1609.)
Argument or not, the record makes it reasonably clear that the jury did find a conspiracy here. Along with aiding, it was the subject of the jury’s five questions for the court, after splitting over Roe’s guilt in Count 1. (See argument I-D-1, supra.) More specifically the jury wondered about the “conclusion” of and “withdrawal” from a “continuing” conspiracy.” Thus, despite the absence of argument from counsel, it appears that the jury treated the offenses as part of a continuing conspiracy. The factual issue presumably was whether Roe effectively withdrew soon enough to avoid responsibility for Doe’s actions after Roe left the house.
But even if the jury found Doe a perpetrator because of his failure to seek help for Mr. W–a theory unsupported by the evidence, as appellant argued at issue I-D, supra)–its apparent basis in a continuing conspiracy merits examination. The jury could not have found a necessary element, the target offense(s), without some “unguided speculation.” (People v. Prettyman, supra, 14 Cal.4th at 272.) Not only were the conspiracy instructions themselves unhelpful, but the jury must have noticed that the aiding instructions differed on that issue, by referring only to one specific, charged target crime. (CALJIC No. 3.02; CT 413: torture as target, murder as consequence.) To logical minds, the conspiracy theory’s counterpart instruction would have appeared to include an intentional omission: If a particular target offense were needed, the instruction obviously would say so.
Thus, from the jury’s perspective, it could start from the very beginning, with the defendants, admitted conspiracy to buy and sell drugs. Or more specifically, a conspiracy beginning in early March 1996, to get either drugs or a refund from Mr. W. This approach certainly would have been reinforced by the prosecutor’s argument linking the original deal through the furniture possession to the events of March 28, 1996. (See RT 1520-1521, 1535, 1537-1538 [“I agree [Doe] did it, but Mr. Roe did it, also. These are men that are in business together. They sell drugs together. I’m sure — there’s a possibility they’ve collected money from other people in the past together.”], 1618-9.)
Roe’s counsel also linked the starting point of drug dealing with the events of March 28, 1996: “It’ s a drug-dealing neighborhood, it’s a drug-dealing time, these are drug-dealing people. There’s pressure. Everybody wants their money, everybody wants to get on with it. (RT 1555, & 1563; see also RT 1556-1557, re influence of Doe’s drug use (another virtually conceded conspiracy, as the two defendants admitted smoking marijuana together).) Counsel went further, firs t arguing that “conspiracy is a plan, and there’s no plan[,]” then saying: “Aiding and abetting what, the torture of Mr. W? If there was a conspiracy or an aiding and abetting, it is to get money from Mr. W.” Counsel then proceeded to discuss the terms of the original drug deal. (RT 1584-1585; see also RT 1593 [Roe “was someone who invested in this business, who was more of a follower”].)
Based on this argument and the record, there is a strong likelihood that the court’s failure to identify and describe potential target offenses “caused the jury to misapply the doctrine.” (People v. Prettyman, supra, 14 Cal.4th at 273, emphasis in original.) The jury’s analysis easily could have proceeded along the following lines: By investing money, Doe and Roe. were conspirators with the intent to commit drug offenses. Or: When the Mr. W deal first fell through, and the defendants wanted their money back or drugs, this was a conspiracy to commit a public drug offense. Or: By sharing two joints, they conspired to commit a public drug offense. (And pursuant to the instruction the jury had heard from the court (RT 1489), no intent to agree was necessary.)
Next, assuming any of these conspiracies, Doe’s sudden attack on Mr. W furthered it and was a natural and probable consequence, because “these are drug-dealing people. There’s pressure.” Doe was then responsible for Roe burning Mr. W, as that was also natural and probable in this drug-crazed world. (Once again, having initially heard that only a “possible sequence” need link the target to the charged crime (RT 1491), this sort of unjustified speculation would have made sense.) Then, while Doe stayed responsible for Mr. W’s death, Roe left, suggesting an issue as to whether he withdrew from the conspiracy and terminated his liability.
That this sort of analysis proceeded in the jury room is not certain, but given the record and instructions, it is reasonably likely. As a result, the error violated appellant’s federal constitutional right to due process of law. (People v. Prettyman, supra, 14 Cal.4th at 273.) The judgment must be reversed unless the errors are shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)
As noted earlier, the jury could have convicted Doe in Counts 1 and 3 as a perpetrator, aider or conspirator. “‘[W]hen the alternate theory is legally erroneous,’ that is, when one of the theories is infected by prejudicial error such as inadmissible evidence or incorrect instructions[,]” review is governed by “this general rule: ‘[W]hen . . . the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’ [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1122.) On this record, it is impossible to determine whether the jury found torture and torture murder on the basis of one theory as opposed to another; indeed, it is impossible to determine whether the jury even agreed as to one theory. Given the relative ease of making its findings according to the erroneous conspiracy instructions, however, that theory was all too likely an influence. Reversal is required.
FOOTNOTES:
Footnote 1: The new version of CALJIC No. 6.10.5 (6th ed. 1996) replaced “commit a public offense such as __________” with “commit the crime of __________”.
Footnote 2: Consistent with although preceding Prettyman, the trial court’s version of CALJIC No. 3.02 identified the target crime of torture, defined separately in the instructions for Count 3. (RT 1488-1489; CT 413.)
