ARGUMENT
I. THE TRIAL COURT’S INSTRUCTIONS WRONGLY AND PREJUDICIALLY PERMITTED THE JURY TO FIND APPELLANT GUILTY OF ROBBERY-MURDER UNDER FACTS THAT WOULD NOT CONSTITUTE ROBBERY-MURDER, AND FAILED TO INSTRUCT ON A KEY LEGAL ISSUE RESPONSIVE TO THE EVIDENCE IN THIS CASE
A. Background
The error here involves the issue discussed in People v. Esquivel (1994) 28 Cal.App.4th 1386, and People v. Pulido (1997) 15 Cal.4th 713: Unless there is proof beyond a reasonable doubt that a person formed the intent to rob before a killing, that person cannot be convicted as an aider and abettor of a robbery-murder committed by a confederate, though he can be convicted of robbery.
In Esquivel, Division Two of this Court found the failure to give proper instructions on this principle sua sponte to be reversible error. The principles of Esquivel apply here. In this case, the audiotape of the events was incomprehensible, and the events portrayed by the audiotape and videotape could easily have been found inconclusive. As a result, a properly instructed jury could have found there was at least a reasonable doubt on when appellant formed the intent to rob, and thus acquitted appellant of murder. This jury, however, was never given proper instructions no that issue, based on the type of error addressed in Esquivel and Pulido. (Appellant assumes his identity as a participant in the robbery arguendo, for purposes of this discussion only.)
Not only did the trial court fail to instruct the jury sua sponte on the Esquivel/Pulido issue, but the instructions the court gave would have affirmatively misled the jury into believing appellant was automatically guilty as an aider and abettor of the murder, merely because at some point he formed the intent to rob. That is not a correct statement of the law.
The trial court’s error was prejudicial, because a properly instructed jury could reasonably have concluded that the evidence did not establish appellant’s guilt of murder beyond a reasonable doubt, even if it established his guilt of robbery. The judgment as to Count 1 should be reversed.
B. Legal Discussion
1. Esquivel
In Esquivel, the defendant had been an acquaintance of 18-year-old Jenny Cotanche. Jenny’s father arrived home one day and found his daughter dead, the house ransacked, and several firearms and other valuable items taken. Esquivel told friends he was at Jenny’s house with co-defendants Wilson and Brown, and Wilson and Jenny got into an argument. Esquivel said Wilson beat Jenny over the head with a gun, and shot her in the head. Jenny died of a gunshot wound and blows to the head which broke her skull. Four of the stolen firearms were found in Esquivel’s house.
The prosecutor argued that Jenny was already dead when the property was taken, but Esquivel was guilty of murder on a robbery-murder theory because he participated in taking property. His argument was that Esquivel was guilty of robbery-murder even if he did not form the plan to rob until after the murder, as long as the killer (Wilson) formed the plan to rob before the murder. The trial court’s robbery-murder instructions did not distinguish between Esquivel forming the intent to rob before the killing, and his forming the intent to rob after the killing.
Division Two held that Esquivel would not be guilty of robbery-murder if he formed the intent to rob after Wilson fired the fatal shot. (Esquivel, supra, 28 Cal.App.4th at pp. 1393-1397.) It further held that the jury could have concluded the People failed to prove Esquivel formed the intent to rob before the murder, i.e., the jury could have found some of Esquivel’s statements were true, and he only formed the intent to rob after the murder. (Id. at pp. 1397-1398.)
As a result, the legal issue of when Esquivel formed the intent to rob, for purposes of felony-murder, was a general principle of law raised by the evidence; and as such, instruction on the timing of Esquivel’s intent to rob was required sua sponte. (Esquivel, supra, 28 Cal.App.4th at pp. 1398-1399 [quoting People v. Marks (1988) 45 Cal.3d 1335, 1345] [instruction on timing of defendant’s joinder of conspiracy to murder required sua sponte, because “[a] trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence”].)
Finally, the Court held the error prejudicial, because the inadequate instructions removed the issue of intent from the jury’s consideration, and there was no way to determine whether Esquivel was convicted of murder on a legally permissible theory. (Id at pp. 1399-1400 [citing Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281 [113 S.Ct. 2078, 124 L.Ed.2d 182]].) Thus, Esquivel’s first-degree murder conviction could not stand; and because he was charged only with murder and not with robbery (Esquivel, supra, 28 Cal.App.4th at p. 1394), the entire judgment was reversed (id. at p. 1401.) [Footnote 1]
2. Pulido
The Supreme Court granted review in People v. Pulido, supra, 15 Cal.4th 713, to consider the substantive legal issue raised by Esquivel; whether a person (not the actual killer) who joined a robbery in progress, but only formed the intent to join the robbery after a killing was committed during the robbery, could be found guilty of robbery-murder.
The Supreme Court agreed with the result and reasoning of Esquivel, and added further reasoning of its own to conclude that the non-killer defendant who joins the robbery after the killing cannot be found guilty of robbery-murder. (Pulido, supra, 15 Cal.4th at pp. ___-___ [63 Cal.Rptr.2d at pp. 628-633].) The Court did not reach the issue of whether an instruction on this principle was required sua sponte. (Id. at p. ___ [63 Cal.Rptr. at p. 633].) In another case since Pulido, the Court again declined to reach the issue of whether such an instruction is required sua sponte. (People v. Hines (1997) 15 Cal.4th 997, 1049, as modified (Aug. 20, 1997) 97 Daily Journal D.A.R. 10852, Item 2.)
In Pulido, the Supreme Court held that on the facts of the case, the error was not prejudicial. The jury was instructed that the robbery-murder special circumstance required the murder to have been committed while Pulido was involved in the robbery. Since the jury found that special circumstance true, it necessarily found Pulido’s involvement in the robbery began during or before the killing. Thus, the jury actually determined the issue which was affected by the instructional error under other, proper instructions. As a result, the error was necessarily harmless. (See People v. Sedeno (1974) 10 Cal.3d 703, 721 [quoted in Pulido, supra, 15 Cal.4th at p. ___ [63 Cal.Rptr.2d at p. 633]; accord Carella v. California (1989) 491 U.S. 263, 271 [109 S.Ct. 2419, 105 L.Ed.2d 218] [conc. opn. of Scalia, J.] [if jury necessarily found facts required for conviction based on entirety of evidence and instructions, including correct instructions, error in misdefining elements of offense could be harmless] [cited in Sullivan v. Louisiana, supra, 508 U.S. at p. 281].)
The Supreme Court reached the same conclusion for the same reasons, in the later case of People v. Hines, supra, 15 Cal.4th at p. 1049 (as modified, 97 Daily Journal D.A.R. at p. 10852).)
3. This Case
This case contains the same type of error found in Pulido, Hines and Esquivel. However, it lacks what was present in Pulido and Hines to make the error harmless, another verdict to show the jury actually found the facts proving the defendant’s guilt of murder—including intent to rob formed before the killing—under other proper instructions.
Here, unlike Pulido and Hines, there was no special circumstance allegation against appellant. The other verdict in this case, guilty of robbery in Count 2, also didn’t resolve the issue of the timing of appellant’s intent for felony-murder purposes. For under the instructions given, appellant would have been found guilty of robbery whether or not the jury found he formed the intent to rob before the killing. Thus again, what existed in Pulido and Hines to make the error harmless does not exist in this case.
In this case, the trial court gave most of the instructions given in Esquivel; particularly, instructions on felony-murder and aider and abettor liability (CALJIC Nos. 8.10, 8.21 and 8.27), concurrence of act and specific intent (CALJIC No. 3.31), and the definition of robbery (CALJIC No. 9.40). (Esquivel, supra, 28 Cal.App.4th at p. 1393 & fns. 3-7; see RT 169-173.) [Footnote 2] The trial court also gave the standard aider and abettor instructions, CALJIC Nos. 3.00 and 3.01. (RT 168-169.)
As in Esquivel and Pulido, no instructions were requested or given on the timing of the aider and abettor’s intent for purposes of felony-murder. As noted above, Esquivel held such instructions are required sua sponte when warranted by the evidence. (Id., 28 Cal.App.4th at p. 1399.)
That holding was clearly correct. As noted above, Esquivel relied on the Supreme Court’s opinion in People v. Marks, supra, that a trial court is required to instruct sua sponte on the timing of defendant’s joinder of conspiracy to murder, “[a] trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence.” (Id., 45 Cal.3d at p. 1345.) Both Esquivel (28 Cal.App.4th at pp. 1396, 1398-1399) and Pulido (15 Cal.4th at pp. ___-___ [63 Cal.Rptr.2d at pp. 628-633] premised their holdings on analogy to the timing of a conspirator’s entry into a conspiracy. (See also Esquivel, supra, 28 Cal.App.4th at p. 1396 [“[c]onspiracy and aiding and abetting have been described as subspecies of the same general theory of complicity”].) Thus, Marks is controlling, and instruction on the felony-murder timing issue is required sua sponte as held by Esquivel.
The trial court’s failure to give a felony-murder timing instruction sua sponte was itself error under Esquivel and Marks, if the evidence warranted the instruction. As appellant will show in the next section, it did.
However, this Court does not need to reach the issue of whether a felony-murder timing instruction was required sua sponte, because the instructions given would have affirmatively misled the jury into convicting appellant of robbery-murder, irrespective of whether he formed the specific intent to rob before or after the killing.
Appellant returns to CALJIC No. 8.27, given as follows:
If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery, all persons who either directly and actively commit the act constituting such a crime [robbery] or who, with knowledge of the unlawful purpose of the perpetrator of the crime [robbery] and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense [robbery] aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree . . . .
(RT 172:19-173:5 [emphasis added].)
Thus the jury was told that if multiple people committed a robbery and any one of them killed a human being, all persons who either committed or aided and abetted the robbery were guilty of first-degree murder. The jury undoubtedly concluded appellant’s companion committed a robbery and always intended to do so; his act of going into the store and shooting the clerk would seem to have no other purpose. The jury also would have concluded appellant was involved in the robbery, since appellant jumped over the counter and pulled out the cash drawer after his companion fired the fatal shot.
However, the “all persons” language was in error. Based on the principles of Esquivel and Pulido, it is not true that “all persons” who commit or aid and abet a robbery are automatically guilty of first-degree murder if someone is killed during the robbery. But the “all persons” language affirmatively misled the jury into believing otherwise, a possibility the Supreme Court recognized in Pulido. (15 Cal.4th at p. ___ [63 Cal.Rptr.2d at p. 635].)
In like manner, the trial court gave CALJIC No. 8.21:
The unlawful killing of a human being . . . which occurs during the commission or attempted commission of the crime as a direct causal result of robbery, a felony, is murder of the first degree when the perpetrator had the specific intent to commit such crime.
(RT 171:7-14.) While that instruction also indicates any killing during a robbery is first-degree murder when the killer had the specific intent to commit robbery, that simply isn’t true for an aider and abettor whose intent to rob was not shown to have been formed before the killing.
In short, not only was the jury not steered in the right direction with a proper sua sponte instruction, it was steered in the wrong direction with the instructions that were actually given.
The Supreme Court’s Pulido opinion gives two examples of how the problem addressed in this Part could be solved. First, CALJIC No. 8.27 could be modified by adding after the words “such a crime or who” the phrase “at or before the time of the killing.” Second, a separate instruction could be given telling the jury that the rule of felony-murder liability in the instruction does not apply to a person who aids and abets the perpetrator of the underlying crime only after the killing has been completed. (See Pulido, supra, 15 Cal.4th at p. ___ [63 Cal.Rptr.2d at p. 635].) However, the trial in this case was well before the Supreme Court decided Pulido (though well after Division Two decided Esquivel), and neither modification was given.
Finally, an extra instruction was given here that was not given in Esquivel or Pulido, at the request of defense counsel and with the consent of the People. (RT 115:3-8.) That instruction was not erroneous, but it didn’t affect the issue in this Part. The instruction was CALJIC No. 9.40.2:
To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of his property before or at the time that the act of taking the property occurred. If such an intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of robbery has not been committed. (RT 173:16-24.)
This instruction did not solve the Esquivel/Pulido problem. It only made clear that to be guilty of robbery, a person who takes property by force or fear must form the specific intent to deprive the owner permanently of property either before or during the taking. Thus based on this instruction, appellant would be guilty of robbery if (1) he took property by force or fear, and (2) he formed the specific intent to deprive the owner permanently of the property either before or during the taking—i.e., before or during the time he pulled the cash drawer out of the register.
No one would dispute that, and appellant does not here challenge his robbery conviction. But this robbery instruction (CALJIC No. 9.40.2) didn’t tell the jury anything about the principles underlying culpability for murder. To solve the Esquivel problem—in this trial which was held long after Esquivel was decided—the jury should have been instructed that if it didn’t find beyond a reasonable doubt that appellant formed the intent to steal before the killing, there could be no murder conviction. No such instruction was ever given, and CALJIC No. 9.40.2 didn’t address that issue. [Footnote 3]
In short, if the jury could have found the evidence didn’t prove beyond a reasonable doubt that appellant formed the required intent to rob before the killing, then the trial court erred by failing to give an instruction on the principles in this section, and by giving the instructions it did give.
That leaves only the issue of whether the evidence supported an Esquivel/Pulido instruction, to which appellant now turns.
C. Application Of The Law To The Facts
1. Legal Principles Underlying Review Of Instructional Error Claims
Appellant first restates two legal principles central to this case that, though long established, are sometimes overlooked.
First. In evaluating a claim of instructional error, a reviewing court must take the evidence in a light most favorable to the party claiming error, i.e., assume the jury might have believed all of the evidence affected by the error.
Our Supreme Court has repeatedly made this clear. (E.g., Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15.) This Court has recognized the same principle. (Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 489-490 [disappr’d o.g. in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580].) This standard is much different from the standard of review of an insufficiency of evidence claim, which is essentially the opposite; namely, that the evidence is taken in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) As our Supreme Court and this Court have made clear, one cannot be confused with the other.
Thus in instructional error cases, “We must assume . . . that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party. [Citations.] Our problem in the case at bench . . . [involves] not the sufficiency of the evidence, but rather the effect on the jury of an improper instruction.” (Williams, supra, 182 Cal.App.3d at pp. 489-490 [quoting Henderson, supra, 12 Cal.3d at p. 674].) Here, appellant claims only instructional error, and not insufficiency of evidence.
Second. The defense was not required to prove that appellant had after-acquired intent to avoid a felony-murder conviction. Esquivel held that the felony-murder timing instruction was required because there was evidence that the defendant only formed the intent to rob after the killing, (Id., 28 Cal.App.4th at pp. 1397-1398.) However, the instructional requirement does not arise solely when there is an affirmative defense showing of post-killing intent.
Under the Sixth and Fourteenth Amendments, the People have the burden of proving each element of an offense, as defined by law, beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) Here, the law was Penal Code section 189, which states that murder committed in the perpetration of a robbery is first-degree murder. (See Pulido, supra, 15 Cal.4th at pp. ___-___ [63 Cal.Rptr.2d at pp. 629-631].)
Thus under the Sixth and Fourteenth Amendments, appellant could only be guilty of “murder in the perpetration of a robbery” if the evidence proved beyond a reasonable doubt that at the time of the murder, appellant was knowingly involved in perpetrating a robbery. That would require proof beyond a reasonable doubt that appellant was either a principal or an aider and abettor in the robbery at the time of the murder, which in turn would require proof beyond a reasonable doubt of the necessary intent—that at the time of the murder, appellant either had the intent to rob, or the intent to facilitate someone else’s commission of a robbery. (See People v. Beeman (1984) 35 Cal.3d 547, 559.)
The result is that had a properly instructed jury concluded the People did not prove beyond a reasonable doubt that appellant was a perpetrator or aider and abettor of the robbery at the time of the murder, i.e., did not prove beyond a reasonable doubt that appellant either had the intent to rob or the intent to facilitate a robbery when the fatal shot was fired, that jury would have been duty-bound to acquit appellant of murder.
As a result, the rule of Esquivel and Pulido is not limited to situations where the jury could affirmatively find the defendant only formed the intent to rob after the murder. It applies in all situations where the jury could determine the evidence did not prove beyond a reasonable doubt that the defendant’s intent to rob was formed before or during the murder. If the jury comes away with the conclusion that it simply doesn’t know, or even if the jury concludes it is likely the intent to rob was formed before or during the murder but its level of conviction does not rise to “beyond a reasonable doubt,” then the jury is obligated to acquit the defendant of robbery-murder. And if a jury could come to such a conclusion, that there was a reasonable doubt on the issue of before-acquired intent, then the trial court is obligated to instruct on the timing issue. [Footnote 4]
The point should be self-evident. If the jury could have concluded there was reasonable doubt on the issue of whether appellant formed the intent to rob before or after the killing, then the principles of Esquivel were applicable, and a felony-murder timing instruction should have been given.
2. Analysis Of The Facts
Appellant turns to the evidence, in a discussion which would require the reader to have viewed and listened to the tape. (He will file a Rule 10(d) request for early transmission of exhibits when he files his reply brief.)
Appellant assumes for the sake of this argument, and this entire discussion, that he was one of the two people who participated in the robbery. He is required to do so under settled principles of appellate review; since the instructional error in this Part did not affect the jury’s finding that appellant participated in the robbery, evidence on that issue would have to be taken in a light favorable to the People. (People v. Johnson, supra, 26 Cal.3d at pp. 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 61 L.Ed.2d 560].)
Central to the legal discussion is, of course, the concept of reasonable doubt: A defendant is never required to prove anything to a jury. If a jury believes a scenario supporting conviction is possible, or probable, or even very probable, it still can’t convict. Only a “subjective state of near certitude of the guilt of the accused,” guilt beyond a reasonable doubt, can suffice for conviction under the Fourteenth Amendment. (Jackson v. Virginia, supra, 443 U.S. at p. 315.)
An audiotape as poor as this one is by itself reasonable doubt. On that basis alone, a Esquivel/Pulido instruction should have been given, and the failure to do so was error.
While that alone is dispositive, appellant would be doing a disservice to his own case if he didn’t set forth in detail what he sees in the evidence. (Actual events, of course, would have occurred far more quickly, and without all of the pauses for discussion.) It is difficult to put together a clear scenario, because the audio quality makes any scenario at all far from clear. But the following is what appellant sees and hears in the tape.
The videotape, in conjunction with the record of this trial, shows appellant was not the shooter. The evidence is that three fingerprints identified to appellant were found on the glass insert in front of the register, and one fingerprint identified to appellant was found on the register drawer. (RT 61-72, 75, 79, 85, 100.) There is no evidence of any other fingerprints found on the glass insert or the register drawer, and no evidence any prints were matched to anyone other than appellant. The videotape shows that the person who was not the shooter was the person who put his hands on the glass counter insert, and ultimately jumped over the counter. Since the only evidence is that appellant was the one who put his hands on the glass insert, he was the one who jumped over the counter, and thus was not the shooter.
Appellant was not charged with a personal use enhancement; the co-defendant was. (CT 233-234.) Thus the pleadings match the videotape: The only evidence is that the person identified as appellant was not the shooter.
With that in mind, the videotape shows that appellant and one other person walked into the counter area. Appellant went to the counter and asked for something which sounded like “Marlboro Lights.” At that time, the other person was to appellant’s right and slightly behind him, out of his line of sight. The clerk said something which sounded like a request for I.D., and appellant pulled out his wallet and gave something to the clerk.
As the clerk looked at whatever appellant gave him, the other person pulled out a gun. For reasons that cannot be determined from this tape, because the audio is so bad, appellant turned in the other person’s direction, and obviously saw the gun. Appellant then uttered something; the prosecutor claimed appellant said “Pop him, pop him” (RT 134), while defense counsel argued appellant grunted. (RT 144.) Whatever appellant uttered, there is no question that the other person then fired one shot which struck the clerk in the chest, which was stipulated to be the fatal shot. (RT 106.) Immediately after the sound of the gunshot, appellant recoiled as if startled by the shot.
At that point, the next act shown by the video is appellant’s first attempt to jump over the counter, which was unsuccessful. However, between the time of the gunshot and this first attempt to jump over the counter, someone—it is not clear who—can be heard saying something, and it is not clear what. The voice is faint on the audio, and appellate counsel didn’t hear it the first time (or two) that he played the tape, but it is there. It appears the voice came from either appellant or the other person who was with him; the voice sounded coherent, and there was nobody else in the store at the time. [Footnote 5]
Appellant’s efforts to jump over the counter came after the voice appeared on the audio. Appellant’s first effort was clumsy and off-balance, as if it were unprepared and spontaneous, and appellant ended up back where he started. His next effort was successful, and he ended up on the clerk’s side of the counter at the cash register. Eventually, appellant pulled the cash drawer out of the register, before he and the other person fled.
The question is thus presented: Could a rational juror have concluded the evidence did not prove beyond a reasonable doubt that appellant formed the intent to rob before or during the shooting?
The answer is yes. Although it seems from the tape that the other person formed the intent to rob before the shooting, the evidence as to appellant is far from clear.
First of all, appellant disagrees vigorously that what he uttered before the gunshot was “Pop him, pop him,” as the People argued. (RT 134.) Appellate counsel hears two utterances of one syllable, and “pop him” is not one syllable. Defense counsel argued appellant grunted (RT 144); appellate counsel isn’t sure of that either. After several viewings, appellate counsel isn’t sure of anything except that there were two utterances of one syllable. (Appellate counsel watched and listened to the videotape that came from the exhibit room, on the VCR in the exhibit room, so what he heard and saw would correspond to what the jurors heard and saw.)
Furthermore, defense counsel was correct in arguing that the prosecutor never talked about what appellant did when the other person fired the gunshot: Appellant leaped back as if he was very surprised, and he looked surprised as he did so. (RT 143.) The prosecutor’s argument was that appellant and the other person entered the store with a deliberate plan to execute the clerk, but if that was so, appellant would not likely have had such a strong spontaneous reaction when an expected gunshot was fired. More likely is that appellant’s two one-syllable utterances when he saw the gun reflected surprise, and so did his reaction at the gunshots. [Footnote 6]
Of course, appellant did jump over the counter. However, his first effort was clumsy, as if he hadn’t planned on doing so. Appellant was small (the presentence report lists him at 5’6″, 130 pounds (CT 376)), and apparently not agile enough to get over the counter without some preparation. [Footnote 7] By the time of his second effort, appellant had figured out that he was going to jump over the counter, and was better able to do so. After he did, he pulled the cash drawer out of the register, and was guilty of robbery for so doing.
But the relevant question is: Why did appellant jump over the counter to the register? Would any rational juror automatically have found the evidence proved beyond a reasonable doubt that appellant was part of a preexisting plan to kill the clerk and rob the store? Or could a rational juror have found reasonable doubt on that issue?
On that score, the faint voice on the exhibit after the gunshot—but before appellant made any effort to jump over the counter—appears to have uttered something of about three, and maybe four, syllables. There is certainly reasonable doubt as to what the faint voice said, since it is impossible to tell.
Because the voice was so faint, however, the likelihood is that it belonged to the other person. That voice was much weaker than the voices which appear to have been appellant’s, suggesting its source was farther away from the camera/microphone (assuming those were part of the same unit), and the other person was in fact farther away from the microphone than appellant had been. Furthermore, since the faint voice was in all likelihood a command, one would expect it to have been stronger if it came from appellant.
If the faint voice was that of the other person, it was in all likelihood a command to appellant to get the money (it is impossible to tell what was being said, or even what language the command would have been in). Nothing else would have made sense at that stage. The only other possibility appellate counsel can dream up would have been a command to leave immediately, but that would make no sense in light of the fact that (1) the other person did come in with an intent to rob the store, executed the clerk in order to do it, and knew that was exactly what was going to happen; and (2) at the time the other person made this statement, no effort had been made to get the money which was the whole purpose of the execution.
Certainly, there is no way to say that the People disproved, beyond a reasonable doubt, that the voice was a command to appellant to get the money from the register. At best for the People, it simply can’t be determined what this voice said. That is not proof of anything beyond a reasonable doubt.
The People had their own arguments as to what was on the videotape and audiotape, reflected in the prosecutor’s closing. (RT 132-140.) Some of the prosecutor’s arguments do not correspond to anything appellate counsel sees or hears. In particular, nothing in this audio indicates that appellant said “Come on, man, shoot him down,” as the prosecutor argued. (RT 135.) Even if these interpretations were possible, however, there is at least reasonable doubt as to them. In appellant’s view, there is enormous doubt, but the Fourteenth Amendment doesn’t require so much for acquittal. [Footnote 8]
The only remaining question would then be the Esquivel/Pulido question: Based on the above, could a properly instructed juror have found that the People did not prove beyond a reasonable appellant had a preexisting intent to rob, one which was formed before or during the murder?
The answer again is yes. Appellant’s first point is one he made earlier (ante, p. ); that with the audio quality as poor as was true of the tape exhibit, there is reasonable doubt, and then some, as to what really happened. But again, in order to provide this Court with his best effort at interpreting the tape—beyond “you just can’t tell”—appellant will also analyze the issue based on the interpretation of the facts he set forth above.
Based on that interpretation, a properly instructed juror could have concluded that one reasonably possible scenario was: Appellant was surprised when he saw the gun, and surprised when he heard the gunshot, because he was not expecting either. Nor was he expecting to jump over the counter, particularly since his initial effort was the awkward effort of someone who hadn’t yet thought out what he was doing. However, he ended up jumping over the counter anyway, in reaction to a voice which uttered something that was incomprehensible on the audiotape.
That something, logically—and in fact most likely—was a command to appellant, by the other person, to get the money. Having just seen a clerk assassinated, appellant did as he was told. If in fact these events were a surprise to appellant, then one can imagine what would have been going through the mind of a 15-year-old boy: His older friend had just unexpectedly pulled out a gun and killed a man, and now the friend was demanding that appellant grab the clerk’s money. In that instant under those circumstances, many—if not most—15-year-old children would not be thinking with detailed logic, and their instinct (whether out of excitement, opportunity, loyalty to an older friend, or self-preservation) would be to do as the person with the gun commanded.
Certainly, it cannot be said that any juror would automatically have concluded the prosecution disproved that scenario beyond a reasonable doubt. Indeed in appellant’s view, this entire exhibit, and thus the People’s case for felony-murder, is fraught with reasonable doubt.
On whatever basis that reasonable doubt existed, a Esquivel/Pulido instruction was required.
D. Prejudice
Appellant draws his discussion of prejudice directly from Esquivel:
Effect of Error. “Conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury’s consideration, and, as such, they constitute federal constitutional error. [Citation.]” (People v. Macedo (1989) 213 Cal.App.3d 554, 561, disapproved on another ground in [People v.] Montoya [1994] 7 Cal.4th [1027], 1040.) Thus, we determine whether the instructional ambiguity is harmless beyond a reasonable doubt under the Chapman standard. (Ibid. [footnote to Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]].)
The United States Supreme Court explained the Chapman test as follows: “Harmless-error review looks … to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered–no matter how inescapable the findings to support that verdict might be–would violate the jury-trial guarantee. [Citations.]” (Sullivan v. Louisiana [, supra, 508 U.S. at pp. 280-281].)
(Esquivel, supra, 28 Cal.App.4th at pp. 1399-1400.)
The same error exists here, under the Sixth and Fourteenth Amendments. Here, the jury could have convicted appellant of felony-murder whether or not it found the evidence showed beyond a reasonable doubt that appellant formed the intent to rob before the fatal shot. Indeed, the jury would have made no finding at all on the felony-murder timing issue, because the instructions never told it to make any such finding. If the jury had been instructed on the felony-murder timing issue, it could have determined the evidence raised at least a reasonable doubt that appellant formed the intent to rob before the shooting. As it stood, the jury was not required to decide this issue at all.
Thus based on the instructional omission, the jury failed to decide a legal issue which it had to decide in order to return a proper conviction. The jury’s actual verdict was consequently affected by the instructional error. As is shown by Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-281 [cited with approval in Esquivel, supra, 28 Cal.App.4th at pp. 1399-1400], it doesn’t matter what the relative strength of the evidence was, or what a hypothetical jury might have done. This jury’s actual verdict was affected by the instructional error, and that is the essence of prejudice under Chapman. (See Chapman, supra, 386 U.S. at pp. 23-24; People v. Kobrin (1995) 11 Cal.4th 416, 423-424, 428-430.) Similar reasoning was used by the Court of Appeal to find prejudice from a similar instructional error, in People v. Cortez (1994) 30 Cal.App.4th 143, 167-168. [Footnote 9]
Accordingly, the judgment should be reversed as to Count 1. The conviction and armed enhancement in Count 2 are unaffected by this Part.
OPENING BRIEF FOOTNOTES:
Footnote 1: Based on this reversal, none of the three defendants ended up being convicted of first-degree murder in Jenny’s death. Brown pled guilty to voluntary manslaughter, while Wilson went to trial and was convicted of a violation of Penal Code section 32. (Id. at p. 1389, fn. 1.) According to the Riverside County Clerk’s Office, Esquivel was eventually convicted of second-degree murder.
Footnote 2: Based on stipulations of counsel (RT 112-113), the trial court here did not give either of CALJIC Nos. 9.40.1 or 9.44, the former of which was given in Esquivel (28 Cal.App.4th at p. 1393 & fn. 8). Those instructions would have been unnecessary on the facts of this case, because the duration of the robbery was not at issue.
The trial court also gave no instruction that a person who only forms the intent to steal after force has been applied is not guilty of robbery. Nor would it have been justified in doing so, because that wasn’t an issue raised by the evidence in this case. If a person forms the intent to assist a second person in a robbery after the second person has used force to take money, but before the second person has carried the money to a place of temporary safety, the first person is still guilty of aiding and abetting the robbery. (People v. Cooper (1991) 53 Cal.3d 1158, 1169-1170.) Here, whether appellant formed the intent to participate in the robbery before or after the other person shot the clerk, there is no question appellant formed that intent long before the money reached a place of temporary safety. That suffices for aiding and abetting liability, and an aider and abettor is equally guilty with a perpetrator. (Pen. Code, § 31.) Thus, appellant would have been legally guilty of robbery in either case, whether he formed the intent to join the robbery before or after the clerk was shot.
Footnote 3: Defense counsel appears to have thought that either this instruction addressed whether the intent to steal was formed before or after the killing, or at least that it was a necessary instruction in order to get to that felony-murder timing issue. (See RT 115:3-8.) The latter conclusion would have been correct if another instruction had been given which actually addressed the felony-murder timing issue; however, none was. The former conclusion would not have been correct at all.
Footnote 4: Similar principles can be found in analogous areas of the law. For example, a lesser-included offense instruction must be given whenever a jury could have a reasonable doubt on the greater offense but find the lesser proved beyond a reasonable doubt. (People v. Dewberry (1959) 51 Cal.2d 548, 555.) The defendant is thus not required to disprove the greater offense to be entitled to the instruction; reasonable doubt on the greater is sufficient. (People v. Saldana (1984) 157 Cal.App.3d 443, 457; People v. Mooney (1983) 145 Cal.App.3d 502, 506.) In like manner, a defendant’s burden with respect to a statutory exemption or defense that merely negates an element of an offense is only to raise a reasonable doubt as to the nonexistence of the exemption or defense; the defendant need not affirmatively prove the exemption or defense. (People v. Simon (1995) 9 Cal.4th 493, 506; People v. Costello (1943) 21 Cal.2d 760, 765.)
Footnote 5: The tape shows no customer activity for several minutes prior to the shooting, indicating there was nobody else in the store at that time.
Footnote 6: The prosecution argued that appellant said “shoot him down” or “shoot him” when he was on top of the counter. (RT 135, 139.) Appellate counsel respectfully disagrees; he hears nothing of the kind in the audio, particularly when appellant was going over the counter.
Footnote 7: Given appellant’s size and the height of the counters, if he as well as the other person had come into the store with a joint plan to kill the clerk and rob the register, it would have made far more sense for appellant (and perhaps also the other person) to have stayed near the door into the register area. As events transpired, appellant’s earliest actions in the robbery effort look haphazard and ill-conceived.
Footnote 8: There are other arguments made by the prosecutor as to the contents of the video and audio, with which appellant simply doesn’t agree. For example, appellant doesn’t know the basis on which the prosecutor argued that the clerk himself was speaking after he was shot. (RT 135.) This doesn’t appear relevant to the issue appellant has raised in any event. Other arguments by the prosecutor also aren’t relevant to the issue appellant has raised. In particular, whatever appellant might have said while he was trying to get the register open (RT 136), well after the fatal shot, would be irrelevant to the issue raised in this Part, since it wouldn’t bear on the issue of whether appellant formed the intent to rob before or after the gunshot.
Footnote 9: This category of errors is also shown to be reversible under People v. Guiton (1993) 4 Cal.4th 1116: When the jury is permitted to find guilt based on either a legally correct theory or a legally incorrect theory, and there is evidence from which the jury could have found guilt based on the legally incorrect theory, the reviewing court does not examine the strength of the evidence; it simply reverses. (Id., 4 Cal.4th at pp. 1128-1129; see People v. Farley (1996) 45 Cal.App.4th 1697, 1709-1710 [reversing under this standard].) An error of that nature also falls under the Fourteenth Amendment. (Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670.)
APPELLANT’S REPLY BRIEF (G021203 [Orange County Superior Court No. 95NF2262])
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
APPELLANT’S REPLY BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable Francisco Briseno
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
STATEMENT OF FACTS
Respondent’s Statement of Facts contains material which amounts to the People’s speculation or beliefs as to what is on the videotape, or as to what appellant was supposedly thinking. (See RB 3.) Appellant does not at all agree with the People’s characterizations of the tape or what is on it. Appellant sought to avoid describing his views of the videotape in his own “Statement of Facts” because what is in the videotape is so vigorously disputed that it seemed more appropriate for an “Argument” section than for a “Statement of Facts.” (See AOB 3-4.)
Appellant has made his own arguments on the contents of the videotape in AOB 17-23, and will take issue with the People’s arguments post, pp. -. Beyond that, appellant would note his disagreement with most of the second paragraph of page 3 of the Respondent’s Brief, because
(1) He has a far different view of what is on the tape; and
(2) The People’s purported “facts” are in clear violation of the established law that the facts must be taken in a light most favorable to a claim of instructional error, as our Supreme Court, this Court, and other courts have held. (Post, pp. -.)
II. THE TRIAL COURT’S INSTRUCTIONS WRONGLY AND PREJUDICIALLY PERMITTED THE JURY TO FIND APPELLANT GUILTY OF ROBBERY-MURDER UNDER FACTS THAT WOULD NOT CONSTITUTE ROBBERY-MURDER, AND FAILED TO INSTRUCT ON A KEY LEGAL ISSUE RESPONSIVE TO THE EVIDENCE IN THIS CASE [AOB, Part I, Pages 5-25]
A. Reviewability
The People’s claim of waiver (RB 9) fails for at least two separate reasons.
First, the instructions given were legally erroneous, irrespective of whether an omitted instruction was required sua sponte. Appellant argued that the instructions actually given were misleading, because they told the jury that all persons who either committed or aided and abetted the robbery were automatically guilty of first-degree murder, with no qualification. (AOB 11-12.) That was simply not true; a person who aids and abets a robbery, but only forms the intent to do so after a homicide committed by another person in the course of the robbery, is not guilty of robbery-murder despite aiding and abetting the robbery. (People v. Pulido (1997) 15 Cal.4th 713, 716; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1397.)
Thus, the trial court’s instructions were legally erroneous, because they gave the jury an erroneous legal standard for determining whether appellant aided and abetted a felony-murder. Under California law, legally erroneous instructions which affect a substantial legal issue are reviewable without objection below. (Pen. Code, § 1259; People v. Hannon (1977) 19 Cal.3d 588, 600.) Thus, the People’s claim of waiver fails on that ground alone. (Accord, e.g., People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; People v. Roehler (1985) 167 Cal.App.3d 353, 394-395 [“Appellate courts review the instructions to a jury regardless of objection because to do otherwise would reduce litigation to a hypertechnical game of some sort.”].)
Second, appellant also argued an Esquivel/Pulido instruction was required sua sponte, based on Esquivel itself as well as Supreme Court auth- ority. (AOB 5, 7, 10.) The People do not claim that argument was incorrect.
Since an Esquivel/Pulido instruction was required sua sponte, the failure to give the instruction is not waived for appeal. Instructions required sua sponte can only be waived for review by an objection for a tactical reason expressed in the record (“invited error”). (People v. Bradford (1997) 14 Cal.4th 1005, 1057; People v. Wickersham (1982) 32 Cal.3d 307, 330-335.) No such objection or tactical basis exists in this record.
The record not only fails to show “invited error,” it appears from the record that defense counsel failed to request an Esquivel/Pulido instruction based on a mistake, which is the antithesis of “invited error.” (People v. Tidwell (1970) 3 Cal.3d 82, 87; People v. Graham (1969) 71 Cal.2d 303, 319-320; see, e.g., People v. Bradford, supra, 14 Cal.4th at p. 1057 [defense counsel’s failure to request sua sponte instruction, based on mistaken belief instruction not supported, held not to be “invited error”].)
Defense counsel intended to request a jury instruction on timing of intent to kill, for the reason appellant has been arguing—“the jurors should know that if the intent to steal was formed after the killing, that that would not constitute felony murder.” (RT 115:5-7.) That was the legal issue under Esquivel and Pulido which appellant has discussed.
Unfortunately, though trial counsel was on target with the right legal issue, the instruction she requested—CALJIC No. 9.40.2 (RT 115:7-8)—was a robbery instruction, not a murder instruction, and it was not the instruction which would have put the Esquivel/Pulido issue before the jury. (See AOB 12-13 & fn. 5.) The jurors were instructed they were required to follow the judge’s instructions (CALJIC No. 1.00, given at RT 152:23-153:1), so jurors would have had no basis to acquit appellant of murder even if they con- cluded that appellant participated in the robbery, but there was a reasonable doubt of whether he formed the intent to do so before the homicide.
Thus, counsel’s failure to request the instruction that would have put the Esquivel/Pulido issue before the jury was not “invited error” barring review of an instruction that was required sua sponte. [Footnote 10]
The case cited by the People, People v. Daya (1994) 29 Cal.App.4th 697, 714 [cited in RB 9] may have had expressive language, but none of the instructions it held waived were sua sponte instructions. Appellant will quote a case more applicable here:
The People make their oft-repeated, but only occasionally applicable, contention the issue was waived, or alternatively that any error was invited, because defendants failed to object to, or request modification of, the challenged instruction. As appellate courts have explained time and again, merely acceding to an erroneous instruction does not constitute invited error. (See, e.g., People v. Wickersham (1982) 32 Cal.3d 307, 332; People v. Cole (1988) 202 Cal.App.3d 1439, 1446.) Nor must a defendant request amplification or modification in order to preserve the issue for appeal where, as here, the error consists of a breach of the trial court’s fundamental instructional duty.
(People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.)
“[T]he felony-murder doctrine is disfavored and ‘should not be extended beyond any rational function that it is designed to serve.’ [Citations.]” (People v. Esquivel, supra, 28 Cal.App.4th at p. 1396.) The trial court’s instructions did exactly that, by permitting the jury to convict appellant of felony-murder based on intent to participate in the felony formed after the homicide, an erroneous legal theory that fails to serve the proper purposes of the felony-murder doctrine. (See id.) The trial court should not have given such instructions, and they are reviewable.
B. The Merits
1. The Law
The People do not contest appellant’s showing that an Esquivel/Pulido instruction is required sua sponte when the evidence warrants it.
The People appear to believe that the legal issues in this case would arise only when there is direct evidence that the intent to kill was formed after the robbery. (See RB 10 [“[Esquivel and Pulido] involved situations where there was some evidence supporting that the defendant had joined the crime of robbery after the murders had occurred.”].)
If so, the People overlook the fact that they have the burden of proving each element of a charged criminal offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) Because the People have that burden, when the evidence raises a reasonable doubt on an element of an offense, an acquittal is required just as much as when evidence affirmatively disproves the offense.
For that reason, the existence of evidence pointing to reasonable doubt has the same effect as the existence of affirmative evidence, on an issue of whether substantial evidence supports a jury instruction. Appellant has already made that argument, with specific examples in other areas which support his point. (AOB 16 & fn. 6.) The point should be self-evident.
It should be especially self-evident by reference to evidence such as that here. If as appellant argues, a rational and properly instructed jury could have concluded the videotape was of such poor quality that it was impossible to determine when appellant formed the intent to steal, then the same rational and properly instructed jury could have found the evidence did not show beyond a reasonable doubt that appellant formed the intent to steal before the homicide. There might also be other rational inferences, but one rational inference would be that the evidence does not show with the required “near certitude” (Jackson v. Virginia (1979) 443 U.S. 307, 315 [99 S.Ct. 2781, 61 L.Ed.2d 560]) what appellant was thinking, and when.
If a rational and properly instructed jury could have reached that conclusion of reasonable doubt, then such a jury was entitled to instructions on the law which permitted it to carry that conclusion to its proper legal end—acquittal—and should not have been given instructions which would have diverted it toward an erroneous legal end. That is appellant’s point: When the evidence permits a rational inference of reasonable doubt, that can support a jury instruction just as much as a rational inference of affirmative disproof. (See cases cited in AOB 16, fn. 6; see also, e.g., People v. Geiger (1984) 35 Cal.3d 510, 532 [jury instruction on lesser offense required because rational jury could have had a reasonable doubt of greater offenses; “[t]here was a basis for claiming an arguable defect of proof as to the intent necessary” for greater offenses].)
That is particularly so because under CALJIC No. 2.01, given at RT 157:18-26, jurors are told that if any interpretation of circumstantial evidence favorable to the defendant is reasonable, that is the interpretation which must be adopted. Intent, of course, is inherently an issue of circumstantial evidence. (E.g., People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380; People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) Thus if there was a reasonable interpretation of the evidence by which jurors could have had a reasonable doubt as to appellant’s intent, the jurors were required to adopt it. That legal requirement could only be fulfilled if a rational inference of reasonable doubt is deemed to be substantial evidence, just as much as affirmative evidence on a point.
In short, Esquivel and Pulido apply not only when the defendant testifies he didn’t form the intent to steal until after a killing, but also when a rational jury could have a reasonable doubt that the defendant formed the intent to steal before or at the time of the killing. The latter is this case.
Next, the People argue, “[T]he jury was instructed that appellant was guilty of murder only if the murder was committed ‘during the commission or attempted commission of robbery . . . .’” (RB 11-12 [citing RT 170:26, emphasis added].)
That is exactly appellant’s point. Since the jury didn’t get a “timing” instruction to the effect that appellant could only be guilty of robbery-murder if he formed the intent to steal before the killing, the jury would have concluded from the instruction quoted above that appellant would be guilty of robbery-murder if a homicide was committed at any time during the commission of a robbery. Furthermore, the jury was instructed that all persons (RT 171:22) who either committed or aided and abetted a robbery were guilty of first-degree murder, whenever a homicide was committed during the robbery. (RT 171:19-172:7.)
Thus, the jury would have found appellant guilty of robbery-murder if it found the following scenario, which was a very reasonable conclusion—and probably the most reasonable conclusion—from the evidence:
(1) Appellant’s companion, the shooter, entered the store with the intent to rob;
(2) The evidence didn’t establish beyond a reasonable doubt that appellant entered the store with the same intent;
(3) When appellant’s companion pulled the trigger, he did so with the intent to further the robbery that he had already decided to engage in, and the act of shooting the clerk was thus a homicide committed during the commission of a robbery;
(4) When appellant jumped over the counter to get the register drawer, there was a reasonable doubt as to whether his intent to rob was formed before the homicide as opposed to making his initial decision to steal after the homicide and just before he jumped over the counter (see (2) above), probably because of something appellant’s companion uttered at that moment. (See AOB 19-21.)
Under the scenario above, appellant should have been found not guilty of robbery-murder, because the jury would have found that the essential element of intent to rob formed before the killing was not proved beyond a reasonable doubt. But as appellant noted above, with the instructions actually given, appellant would have been erroneously found guilty of robbery-murder under the scenario above. That divergence underlies the instructional error in this case.
The People, however, argue that trial counsel requested an instruction on grand theft as a lesser-included offense instruction of robbery. (RB 9.) Appellant agrees; trial counsel did request that instruction. (RT 116-118.) But it has nothing to do with the issue raised here. The issue raised here deals with the essential elements of Count 1, murder, not lesser-included offenses in Count 2, robbery.
The fact that appellant was found guilty of robbery and not grand theft in Count 2 doesn’t affect the instructional error on felony-murder in Count 1. The elements of robbery and of robbery-murder are very different. If properly given here, they could have led to very different results.
Here, the jury would have found appellant’s companion (the shooter) was clearly guilty of robbery, a theft by force, when the shooter supplied the force by killing the clerk. Under its instructions (CALJIC Nos. 3.00 and 3.01, given at RT 168:22-169:10), the jury would have found appellant aided and abetted that robbery by taking the cash drawer. The jury was not given an instruction under People v. Cooper (1991) 53 Cal.3d 1158, 1169-1170; had such an instruction been given, the result would have been the same. (See AOB 8-9, fn. 4.) Appellant is unaware of any evidence to sup- port a conclusion that robbery was not proved beyond a reasonable doubt, but a lesser theft offense was so proved. The conviction in Count 2, assu- ming arguendo appellant’s identity, would have been a foregone conclusion.
This brief, however, discusses the error in the Count 1 instructions, and Count 2 is irrelevant to that error. Count 2 legally required only an intent to steal formed during the robbery, either before or after the homicide (the force required for this robbery). Count 1, by contrast, legally required an intent to steal that was formed before the homicide; after-formed intent should not have sufficed for Count 1 as it did for Count 2. These are two very different legal standards, which could have had two very different results before a properly instructed jury.
Thus while it is true that a verdict of guilty of grand theft in Count 2 would have precluded a verdict of guilty of felony-murder in Count 1 (RB 13), that doesn’t mean a guilty verdict of robbery in Count 2 necessarily required a guilty verdict of robbery-murder in Count 1. The correct legal standards for Counts 1 and 2 are very different.
Similarly, it makes no difference that as to Count 2, “this jury was afforded the opportunity to find appellant guilty of a lesser crime, although that was not supported by the evidence. . . .” (RB 13-14.) Appellant doesn’t challenge the People’s contention that the lesser offense in Count 2 was not supported by evidence. But that has no effect on the legal error in the Count 1 instructions.
Nor do trial counsel’s arguments (see RB 9) have any effect on the instructional error. The issue here is the trial court’s failure to provide the jury with proper legal guidance, and giving instructions that sent the jury in the wrong direction, on a central legal issue underlying Count 1. Jurors were required to follow the law set forth by the trial court, and were told that the trial court’s instructions necessarily prevailed over any arguments of counsel. (CALJIC No. 1.00 [given at RT 152:23-153:8].)
The law set forth by the trial court broadened the elements of Count 1, beyond what is permitted by law. That is reversible error, because it is impossible to determine the legal basis on which the jury actually rested its verdict of conviction. (People v. Esquivel, supra, 28 Cal.App.4th at pp. 1399-1400; accord, e.g., People v. Cortez (1994) 30 Cal.App.4th 143, 167-168; People v. Farley (1996) 45 Cal.App.4th 1697, 1709-1710; People v. Llamas (1997) 51 Cal.App.4th 1729, 1740-1741; see generally People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)
“The trial court has the primary duty to help the jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) That duty was not properly discharged here.
2. The Facts, And Other Issues Relating To The Facts
Beyond that, appellant disagrees vigorously with the People’s interpretation of the evidence. He would respectfully submit the People are straining to try to get this Court to determine as a matter of law what should have been factual questions for a properly instructed jury.
Moreover, the People’s argument is in clear violation of the law established by our Supreme Court, this Court and other courts for reviewing claims of instructional error.
Our Supreme Court has repeatedly made clear that in reviewing claims of instructional error, the reviewing court must take the evidence in a light most favorable to the correct instruction, i.e., favorably to the party that sought an omitted instruction or against whom an erroneous instruction operated. (E.g., Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15; Williams v. Carl Karcher Enterprises (1986) 182 Cal.App.3d 479, 489-490 [disapr’d o.g. in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580]; Barber v. Rancho Mtge. & Invt. Co. (1994) 26 Cal.App.4th 1819, 1833; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 322.) Moreover, all doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. (People v. Ramirez (1990) 50 Cal.3d 1158, 1180; People v. Flannel (1979) 25 Cal.3d 668, 685; People v. Wilson (1967) 66 Cal.2d 749, 762-763.)
Appellant discussed these principles in his opening brief, supported by authority from the Supreme Court and this Court. (AOB 14-15.) The People cite no cases on this issue, and do not try to refute appellant’s dis- cussion or distinguish his cases. They simply make factual claims as if these principles—or appellant’s discussion—didn’t exist. The law requires otherwise.
If this had been a trial of appellant’s companion (the shooter), the People could certainly argue there was no reasonable doubt as to the companion’s intent. But the record is far different as to appellant. As in most other cases where intent is controverted, jurors would have had to deduce appellant’s intent from circumstantial evidence. (E.g., People v. Gilbert, supra, 5 Cal.App.4th at p. 1380; People v. Buckley, supra, 183 Cal.App.3d at pp. 494-495.)
Here, the circumstantial evidence sheds very little if any light on appellant’s intent, because one would have to know what was being said to make vital factual determinations on intent, such as whether appellant’s act of jumping over the counter was in response to something his companion said, which would be probative of the issue of when the required intent was formed. The sound quality of this tape is so poor that it is simply impossible to make any determinations at all on that issue, and other issues which would require hearing what the parties are saying. [Footnote 11]
A properly instructed jury would not have been permitted to presume guilt unless the defendant proves innocence, as the People seem to. A jury must always decide that the People have proved guilt beyond a reasonable doubt, based on affirmative evidence proving guilt and not an assumption that a defendant must be guilty merely because his companion was clearly guilty. (See, e.g., Elfbrandt v. Russell (1966) 384 U.S. 11, 17 [86 S.Ct. 1238, 16 L.Ed.2d 321]; Konigsberg v. State Bar (1957) 353 U.S. 252, 267 [77 S.Ct. 722, 1 L.Ed.2d 810]; Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 23 [guilt by association impermissible in our system of justice]. A properly instructed jury in this case would also have to decide these issues in light of CALJIC No. 2.01 [given at RT 157:18-26], which states that if the circumstantial evidence as to any count is susceptible to two interpretations, one of which points to guilt and one to innocence, the jury must adopt the one pointing to innocence. Thus only if a properly instructed jury had concluded the only rational interpretation of the tape was that appellant could not possibly have formed the intent to kill after the shooting, would the error in this case be harmless. Needless to say, there are many other rational interpretations of the tape, such as the most obvious one—that it is simply impossible to resolve the central issue of the timing of appellant’s intent, with a tape of such poor quality.
Appellant has his own view of what the videotape shows, but he recognizes one thing is clearer than any view he might have: The tape shown to the jury is of such poor quality that it is impossible to figure out precisely what happened and what appellant would have been thinking. The tape itself is reasonable doubt, simply because it is impossible to discern from the tape what was done and said, with any degree of confidence. To the extent one can surmise what might have transpired from watching and listening to the tape, appellant would submit his interpretation is far more consistent with the sights and sounds of the tape than the People’s.
The People argue appellant slouched and had his head down at a store counter. (RB 13.) Millions of other teenage boys do the same. To the People, however, bad posture is indicative of a murder conspiracy, conclusive evidence that appellant was trying to “conceal his identity from the clerk and the surveillance camera.” (RB 12.) That is a tenuous argument indeed, and appellant isn’t sure where the People are getting it from, other than their desire for an affirmance. It certainly fails the established legal standard, which requires interpreting the evidence in a light favorable to the claim of instructional error. (Ante, pp. -.)
Appellant also disagrees with the People’s claim of a “surreptitious glance” or “sidelong glance.” (RB 3, 13.) The phrases are the People’s value judgments, not an objective characterization of the tape. The tape shows an underage boy trying to buy cigarettes, and appears to provide no indication that he knew his companion was about to commit the unbelievable crime of assassinating the clerk in cold blood. At the very least, if one takes the evidence in a light favorable to appellant, as one must (ante, pp. -), it is again fully reasonable to infer that the tape does not prove People’s theory beyond a reasonable doubt.
Although the People believe that what they call appellant’s “flinching” was a reaction to the loudness of the gunshot (RB 13), it is at least as likely—and undoubtedly more so—that appellant’s reaction was to the unexpectedness of the gunshot on top of its loudness. Appellant didn’t just “flinch”; he visibly jumped back. (AOB 20.) His behavior was fully consistent with someone who had no idea the gunshot was coming.
Furthermore, appellant absolutely disagrees with the People’s claim that “[a]s Vargas tried to unjam his gun, appellant leapt onto the countertop and ordered Vargas to ‘shoot him, shoot him.’” (RB 13.) As appellant has already argued, there is nothing of the kind in the audio, particularly when appellant was going over the counter. (AOB 20, fn. 8.) (Appellant is also unaware of anything in the video which showed appellant’s companion was trying to unjam his gun.) The description given by the People seems to imply that appellant was the mastermind of this affair, even though only the co-defendant, not appellant, had a special circumstance alleged against him. (CT 234.) The People’s description is an exercise in hyperbole.
So too is the phrase “As appellant started to vault over the counter, he looked down at the clerk, and saw him moving.” (RB 13; see also RB 3.) That effort to suggest that appellant got on the counter, saw the clerk moving and then ordered the clerk’s final execution is simply not supported by the tape. Moreover, contrary to the People’s suggestion, appellant didn’t just “hesitate” the first time he tried to go over the counter (RB 3); he failed to get onto the counter at all. His clumsy effort was fully consistent with a youth who hadn’t expected to leap over the counter, and whose decision to do so was based on the horrible execution he had just seen, and in all likelihood a direction from the person who had committed that murder and still had a gun. (AOB 19, 20-21 & fn. 9.)
Finally, the audio is inconsistent with the People’s alternate claim that appellant said “pop him, pop him” (RB 13), as appellant discussed at pages 19-20 of his opening brief. And it is not true that appellant’s first effort to jump over the counter “immediately followed the shot from [the companion’s] gun.” (RB 13.) There was a delay between the two, and appellant’s companion uttered some sort of directive in between. (AOB 19, 21-22.)
In short, characterizations such as “appellant and his cohort are cold-blooded killers and thieves” (RB 13) make for great prose, but are unfaithful to the requirement that the evidence be taken in a light most favorable to a claim of instructional error. (Ante, pp. -.) The People take a piece of evidence which is inconclusive at best and unintelligible at worst, and from it profess that the only rational conclusion is that appellant knew what the shooter would do from the moment he walked in the store. That is not so. The evidence admits to multiple rational conclusions, the most compelling of which is that it isn’t possible to determine what appellant was thinking solely from watching and listening to the tape played for the jury.
Whether or not it is the most compelling conclusion, however, it is certainly a rational one. Accordingly, a properly instructed jury could have concluded that under one reasonable interpretation of both the circumstantial and direct evidence, the evidence did not establish beyond a reasonable doubt that appellant entered the store with intent either to murder or rob. The jury instructions were legally erroneous in permitting the jury to convict appellant of murder even if it drew the above conclusion, and there is no way to know whether the jury’s verdict of first-degree murder is grounded on a legally permissible theory, or a legally impermissible one in violation of Esquivel and Pulido. That is reversible error.
C. Prejudice
The People do not challenge appellant’s showing that if the instructions were erroneous, the error was prejudicial. (AOB 24-25.) Accordingly, they should be taken to have conceded that issue. Appellant’s showing correctly reflects the law in any event.
REPLY BRIEF FOOTNOTES:
Footnote 10: There is nothing particularly wrong with the instruction counsel did request. It simply didn’t address the Esquivel/Pulido issue. In fact, it didn’t deal with felony-murder at all; it addressed whether appellant should be convicted of robbery, not murder. Moreover, the issue it dealt with as regards the crime of robbery wasn’t contested; and on appeal, appellant doesn’t challenge his robbery conviction. (See AOB 12-13; post, p. .)
Footnote 11: That the People are making unwarranted inferences and attempting to stretch the evidence in this case is also supported by the portions of their brief where they argue that “Vargas” pulled a gun, “Vargas” fired the gun and “Vargas” took various other actions. (RB 3, 12, 13.) Presumably, the People are referring to appellant’s co-defendant, Noel Vargas, whose capital case was severed from this case for trial.
However, appellant can find no evidence in this record that Vargas was the shooter or went into the 7-11. It appears Vargas’s name was never mentioned in the evidence in this trial. The People are again making unwarranted assertions based on their belief of what happened, rather than based on the evidence in this case—let alone based on the evidence as taken in a light most favorable to appellant, as is required by law. (Ante, p. .)
