Brief Bank # B-759 (Re: F 2.03d [Falsehood — Application To Third Party].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF Court of Appeal
CALIFORNIA, No. B000000
Plaintiff and Respondent,
v. (San Luis Obispo County
Superior Court)
JOHN DOE and
RICHARD ROE,
Defendants and Appellants
__________________________________________/
Excerpt from
APPELLANT DOE’S OPENING BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of San Luis Obispo
The Honorable Roger T. Picquet
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
II.
THE TRIAL COURT ERRED PREJUDICIALLY BY REFUSING DOE’S
REQUESTED INSTRUCTIONS ON THIRD-PARTY CONSCIOUSNESS OF GUILT
The defense requested an instruction on third-party culpability, which is a method of a defendant raising a reasonable doubt which is recognized and approved by our Supreme Court. The requested instruction was based on foundational evidence that the third party, Mr. C, was the one who murdered Mr. K, including evidence that Mr. C admitted exactly that. The defense’s requested instruction dealt with the numerous false statements Mr. C made, including statements that everyone agreed were false in the first part of his police interview, as evidence of his guilt. False statements are a long-recognized form of evidence of guilt.
The trial court refused the instruction on the ground it couldn’t be found in CALJIC. This was legally erroneous-numerous cases, and even CALJIC, make clear it is wrong. The defense instruction was a correct statement of law, properly tendered based on evidence of record supporting the defense case. The trial court erred prejudicially in refusing it.
A. Third-Party Culpability As A Valid Defense Theory
It is well established that the defendant may rely on the theory that a third party committed the charged offense, also known as “third-party culpability evidence.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1017; People v. Hall (1986) 41 Cal.3d 826, 833.) In so doing, the defendant’s third-party evidence need not show “‘substantial proof of a probability’ that the third person committed the act, it need only be capable of raising a reasonable doubt of defendant’s guilt.” (Hall, supra, 41 Cal.3d at p, 833; see also People v. Madison (1935) 3 Cal.2d 668, 677 [prosecution must present evidence that no other person committed the crime charged].)
It is also well settled that the defendant has a right to pinpoint instructions on his theory of the defense and on the applicability of the burden of proof to that theory. (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120; People v. Wright (1985) 45 Cal.3d 1126, 1136-1137- People v. Adrian (1982) 135 Cal.App.3d 335, 342; see Evid. Code, § 502.)
It is not the defendant’s burden to prove that the third party is guilty, but only to raise a reasonable doubt as to his own guilt. (People v. Hall, supra, 41 Cal.3d at pp. 829, 833; see People v. Figueroa (1986) 41 Cal.3d 714, 722.) Therefore, when evidence of third-party culpability has been presented, the defense has a right to an instruction on third-party culpability which incorporates the principles set forth above.
Here, there was evidence of third-party culpability. Mr. S, a longtime friend of Mr. C who had also known his brother Mr. J for many years, testified that Mr. J said “his brother was involved in the incident, and he was pointing the finger at the defendants in order to clear his name . . . [H]e had to do what he had to do.” (RT 1463.) Mr. J said his brother Mr. C was putting the blame on Mr. Roe and Doe so nothing would happen to him, and he didn’t care what happened to Mr. Roe and Doe because they weren’t his “homeboys.” (RT 14661467.) All of this was what Mr. C had told Mr. J. (RT 1468.)
Furthermore, defense investigator Sandra Sullivan testified that Mr. S had earlier recounted an additional detail related by Mr. J, namely that Mr. C admitted committing the murder, but he said he wasn’t going to prison and the defendants could do the time. (RT 1696.) Mr. S also said he was concerned about testifying because Mr. C had been his friend for many years. (RT 1696.) That would be an excellent reason why Mr. S, though a cousin of the mother of Doe’s child (RT 1525-1526, 1697), would stop short of the ultimate testimony that Mr. C admitted the murder that Mr. Roe and Doe were being tried for, despite having told a defense investigator Mr. C did exactly that.
All of this was evidence that Mr. C committed this murder, which is third-party culpability, and further that Mr. C was deliberately blaming someone else despite his own culpability. Third-party culpability was thus a major issue in this case. As one would expect, Mr. C denied killing Mr. K, and he and his brother denied he admitted the murder to his brother. (RT 738-739, 892.) That didn’t make third-party culpability any less a proper jury issue in the case.
Since there was evidence of third-party culpability, the defense was entitled to instructions setting forth an appropriate theory of law, by which the jury could draw proper inferences of third-party culpability if it found the facts to correspond with the defense’s legal theory. That is the defense’s undisputable right to proper “pinpoint” instructions. (Ante, p. 37.)
For example, a Court of Appeal recently reversed a conviction because the trial court refused a defense “pinpoint” instruction. It did so because the trial court’s refusal prejudicially denied the defendant his right to an instruction directing the jury’s attention to evidence from which a reasonable doubt of guilt could be inferred, based on a legal theory which the jury could have properly used in the determination of reasonable doubt. (People v. Jeffers (1996) 41 Cal.App.4th 917, 920-921.)
B. The Defense Instruction, And The Trial Court’s Error In Refusing it
Doe’s counsel requested the following third-party culpability instruction:
If you find that before this trial Mr. C willfully made a false or misleading statement concerning the crime for which defendant is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt on the part of Mr. C. Such conduct may be sufficient by itself to raise reasonable doubt as to the guilt of the defendant. However, its weight and significance, if any, are matters for your determination.
(CT 750.) The trial court refused to give the instruction on the ground that it wasn’t found in CALJIC. (RT 1796.)
When there is evidence a defendant made a false statement, or did something else evincing “consciousness of guilt,” the prosecution routinely obtains a standard jury instruction that the jury can consider it as a circumstance tending to prove consciousness of guilt. Such instructions can be found in CALJIC 2.03, 2.06 and 2.52, among others. Each of these instructions was given against the defendants in this case. (RT 1805, 181 1.)
In other cases, defendants have challenged consciousness of guilt instructions, such as CALJIC No. 2.03, as being improperly argumentative. Our Supreme Court has rejected such challenges, and held the instructions proper. (E.g., People v. Kelly (1991) 1 Cal.4th 495, 531-532; People v. Arias (1996) 13 Cal.4th 92, 141.) The instruction refused here was patterned after CALJIC No. 2.03, which the Supreme Court held proper in cases such as People v. Kelly, and it had the cautionary language that makes instructions like CALJIC No. 2.03 proper. (Accord, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1223; People v. Cain (1995) 10 Cal.4th 1, 34; People v. Harris (1992) 10 Cal.App.4th 672, 675, fn, 3.)
Since “consciousness of guilt” evidence is relevant and usable against a defendant, it can be no less relevant and usable for a defendant, when the defendant wishes to use it as evidence of the culpability of a third party, and there is already foundational evidence linking the third party to the crime. If a defendant’s false statements in a police interview are evidence the defendant is guilty of the crime, then a third party’s false statements in a police interview are equally evidence the third party is guilty of the crime, especially where–as here–there is already evidence that the third party committed the crime for which the defendant was charged.
The defense was thus entitled to third-party consciousness of guilt instructions on request, to permit the jury to draw inferences relating to whether Mr. C was culpable for the killing of Mr. K, just as the prosecution was entitled to consciousness of guilt instructions to permit the jury to draw inferences relating to whether John Doe was culpable for the killing of Mr. K. It is not a fair trial when only the prosecution, and not the defense, is permitted to have the jury consider its legal theories based on exactly the same type of evidence.
The trial court refused the defense instruction on the ground that consciousness of guilt evidence as third-party culpability evidence was “a concept not found by this Court to have support in CALJIC.” (RT 1796: 1823.) That refusal, like the trial court refusals in cases such as People v. Jeffers, supra, improperly denied the defense its right to direct the jury to evidence which could underlie a reasonable doubt of guilt, and its right to present a legal theory on which the jury could find such reasonable doubt.
In other words, as discussed above, the defendant has a right to pinpoint instructions on his theory of the defense and on the applicability of the burden of proof to that theory. (Ante, p. 37, and cases cited.) It doesn’t matter that the instruction setting forth the defense theory isn’t found in CALJIC. To limit the defense to CALJIC instructions is to deprive it of its entitlement to proper instructions on a defense theory.
The trial judge’s rationale that a judge shouldn’t give defense instructions that aren’t in CALJIC is rejected by CALJIC itself:
A trial judge in considering instructions to the jury shall give no less consideration to those. submitted by the attorneys for the respective parties than to those contained in the latest edition of . . . [CALJIC].
(California Jury Instructions, Criminal (6th ed. 1996), p. xiii [quoting Standards of Judicial Administration Recommended By The Judicial Council, Section 5] [also reprinted in Appendix to California Rules of Court {at p. 428 of 1998 paperbound edition}] [emphasis added].)
More generally, the rote recitation of form instructions will not always fulfill the court’s instructional obligations. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250; see also United States v. Lofton (10th Cir. 1985) 776 F.2d 918, 922; Wright v. United States (D.C. Cir. 1957) 250 F.2d 918, 922.) Such rote reliance is inappropriate, and “pattern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case.” (ABA Standards for Criminal Justice, Discovery and Trial by Jury (3d ed. 1996), Standard 15-4.4, pp. 236-237.)
Thus, “[t]he so-called CALJIC stereotyped instructions are no more sacrosanct than any others.” (People v. Mata (1955) 133 Cal.App.2d 18, 21.) “Although the CALJIC pattern instructions perform an invaluable service to the bench and bar, that those instructions are not sacrosanct is apparent from their treatment by the appellate courts.” (People v. Vargas (1988) 204 Cal.App.3d 1455.) Like any other pattern instruction, CALJIC instructions are merely an attempt to state law. They are not themselves the law. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
As it was stated recently by a well-known [conservative] jurist:
Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words and terms comprehensible to the layperson. The texts of “standard” jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong.
(McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 840.) Or, as Justice Gardner wrote, “[W]e are not aware of any rule that if an instruction is not authorized by CALJIC it is somehow suspect.” (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1006.)
A court “should not require a party to rely on abstract generalities . but should instruct the jury In terms that relate to the particular case before it.” (Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 642; see also People v. Rollo (1977) 20 Cal.3d 109, 123, fn. 6.) That is what the defense sought. The trial court’s refusal to grant the defense request for a non-CALJIC instruction on a proper theory is perhaps common, and unfortunately so. If common, that does not make it correct.
It would be a service to the bench and bar if this Court were to reiterate that CALJIC is not the alpha and omega of jury instructions in a criminal case, and that parties–including the defense–can still propose proper instructions to the case. In the meantime, the trial court’s contrary ruling here was legally erroneous.
C. The Error Was Prejudicial
The error was prejudicial under any standard, including, People v. Watson (1956) 46 Cal.2d 818, 836. Mr. C was the heart and soul of the prosecution’s case. His testimony was essential to convict Doe.
Mr. C clearly lied to police investigators in the first hour or so of his interview. He admitted that, and it was clear anyway, since he left out everything pertaining to Mr. K, but claimed he was telling the whole truth. (RT 517, 692; see CT 1102-1103, 1105.) The prosecution, of course, sought to explain away Mr. C’s admitted fabrications in closing argument. (RT 1879-1887, 1900-1904, 1908.) It is entirely possible the jury accepted the prosecutor’s explanations, at least to some extent.
With the erroneously omitted instruction, however, the jury would have recognized that it was just as much permitted to consider Mr. C’s false statements to police as evidence of Mr. C’s own culpability, and therefore as evidence of Doe’s innocence, as it was permitted to consider Doe’s false statements to police as evidence of his culpability. That alone may have sufficient to create reasonable doubt, since the jury was properly instructed that evidence of third-party culpability could be considered as evidence raising a reasonable doubt of each defendant’s guilt. (RT 181 1.)
The jury would also have recognized it could consider testimony of Mr. C that it found false, as further evidence of consciousness of his own guilt. Some of that testimony is discussed ante, pp. 31-34. The jury would have been able to conclude that further falsehoods, on top of the Mr. C’s original false account, was evidence of Mr. C’s culpability.
In short, there was a great deal of evidence from which a properly instructed jury could have drawn a reasonable conclusion that Mr. C had originally lied to police, and was continuing to lie, to cover up his own involvement in Mr. K’s murder. Refusal of a proper instruction, which put a defense theory before the jury that was tied to such an important issue, can only be prejudicial. This was especially so in light of the fact that there was little or no evidence against Doe other than Mr. C’s testimony. (See ante, pp. 31-32) The error was prejudicial under any standard.
Refusal of this instruction also violated Doe’s Fourteenth Amendment right to due process of law. The Fourteenth Amendment requires that a defendant be allowed to put his theory of the case to the jury. (E.g., United States v. Douglas (7th Cir. 1983) 818 F.2d 1317, 1322; United States v. Hicks (4th Cir. 1984) 748 F.2d 854, 857-858.) A defendant has as much right to have the jury consider his theories supported by evidence, as the prosecution has to have the jury consider its theories supported by evidence. Reciprocity and “a balance of forces between the accused and his accuser” are essential; when they are denied, so is a fair trial. (See Wardius v. Oregon, supra, 412 U.S. at pp. 474-476 & fn. 6.)
Here, the jury was told that false statements by a non-party witness could be used to evaluate credibility (RT 1808), but was never told they could be substantive evidence which could raise a reasonable doubt as to Doe’s guilt. It was unfair to keep this important principle from the jury.
Refusal of this instruction also violated Doe’s Fourteenth Amendment right to equal protection of the law. There is neither a compelling interest nor a rational basis for giving prosecuting authorities the right to have a jury consider their theories, while denying that right–here, for the same a jury consider their theories–to people defending themselves against accusation of crime. (Cf. People v. Olivas (1976) 17 Cal.3d 236, 248-251 [compelling state interest test for classifications related to liberty].) The trial court’s refusal to give a defense instruction which it gave for the State denied Doe that right.
Finally, this error should be considered in conjunction with others, as cumulative errors combining to create reversible error under both state law and the Fourteenth Amendment. (See People v. Buffum (1956) 40 Cal.2d 709, 726; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622.)
OPENING BRIEF FOOTNOTES:
Footnote 1: CALJIC has few specific instructions which would be useful for attorneys defending clients accused of crime. For that reason, defense attorneys must often look to other sources for proper pinpoint instructions. One leading source is FORECITE, a California publication which serves that function, and from which the instructions at issue here were taken. CALJIC instructions have at times been later modified to meet concerns raised by FORECITE. (See People v. White (95) 35 Cal.App.4th 758, 768, fn. 2.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF Court of Appeal
CALIFORNIA, No. B000000
Plaintiff and Respondent,
(San Luis Obispo County
v. Superior Court)
JOHN DOE and
RICHARD ROE,
Defendants and Appellants
____________________________________/
Excerpt From
APPELLANT DOE’S REPLY BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of San Luis Obispo
The Honorable Roger T. Picquet
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
II.
THE TRIAL COURT ERRED PREJUDICIALLY BY REFUSING DOE’S REQUESTED INSTRUCTIONS ON THIRD-PARTY CONSCIOUSNESS OF GUILT [AOB, Part II, Pages 36-44]
The People say the only evidence suggestive of Mr. C’s guilt was what they call “triple hearsay,” i.e., investigator Sandra Sullivan’s testimony of Mr. S relating Mr. C’s admissions to his brother. That is not so; but if it had been, that would only be because the trial court excluded the evidence of Mr. C admitting his culpability to Mr. M the very issue addressed in Part I above. (See ante, p. 2.) This attempt to capitalize on the trial court’s exclusion of evidence, to make a claim based directly on the absence of the excluded evidence, is inappropriate and not conducive to proper argument of the issues. (See, e.g., People v. Contreras (1998) 66 Cal.App.4th 842, 848, 851.)
None of it should matter. The People only say Mrs. Sullivan’s testimony did not support a jury instruction because it was “devoid of credibility,” and because Mr. S at trial denied making the statements inculpating his longtime friend, to which Mrs. Sullivan testified. (RB 34.) The latter is obviously a non-issue, because Mrs. Sullivan’s testimony of the prior inconsistent statements of Mr. S was admissible as substantive evidence as well as for impeachment. (Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149,164 [90 S.Ct. 1930,26 L.Ed.2d 489]; People v. Brown (1995) 35 Cal.App.4th 1585, 1596.) The People do not and cannot claim her testimony was improperly admitted.
The former claim, that the evidence was properly excluded because it was “devoid of credibility,” is not a legal basis for refusing an instruction. It also is not the basis the trial court actually used in refusing the instruction. The trial court refused the instruction because it couldn’t be found in CALJIC. (RT 1796.) That was a legally erroneous ruling (see AOB 40-42, and authority cited), and the People never claim otherwise.
As appellant Doe discussed in Part 1, the People cannot make no claim such as “no abuse of discretion,” or any other claim subject to an abuse of discretion standard, when the trial court didn’t base its ruling on a discretionary ground. This is so for three separate reasons: (1) The People’s failure to obtain a ruling on a discretionary ground waives the issue on appeal; (2) An appellate court cannot be asked to exercise discretion in the first instance, when the trial court never exercised such discretion; and (3) A ruling cannot be sustained by a reviewing court using a “discretionary” ground, or one based on conflicting evidence, that the trial court never used. (See ante, p. 3, and Supreme Court, Witkin, and other authorities cited.)
Even if the trial court had refused the instruction on a discretionary ground rather than by making a pure legal error, the People’s claim once again tries to substitute the judge for the jury in deciding questions of fact. That is legally impermissible. (U.S. Const., 6th Amend.; Cal. Const., Art. 1, § 16; Pen. Code, §§ 1042, 1126; Davis v. Alaska, supra, 415 U.S. at p. 318; Olivia N. v. Superior Court, supra, 74 Cal.App.3d at p. 389.) The recent case of Vorse v. Sarasy, supra, 53 Cal.App.4th at pp. 1009- 1011, and Supreme Court cases such as People v. Cudjo (1993) 6 Cal.4th 585, 608-609, amply show the impermissibility of such an approach.
In addition, the result sought by the People, refusal of an otherwise proper jury instruction on the ground the People don’t consider the evidence supporting it to be credible, would have violated the California Supreme Court’s settled standards for evaluating instructional error claims. As appellant has already shown (and the People have never taken issue with the showing), for arguments of instructional error, the evidence must be taken most favorably to the appellant. (AOB 51-52, and numerous Supreme Court cases cited.) This is the “customary rule of appellate review.” (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 298.) Thus, although the People claim a requested instruction shouldn’t have been given because the evidence underlying it was allegedly “devoid of credibility” (RB 34), that would clearly violate the “customary rule of appellate review” above (Krotin v. Porsche, supra), as well as the rule that only a jury can decide credibility.
The People’s claim of harmless error rests on the theory that “the jury expressly rejected appellants’ theory that Mr. C was responsible for the death of Mr. K.” (RB 37.) Once again, the People cannot show “harmless error” by means of the very same evidence affected by the error. (See ante, p. 7.)
And if the jury rejected anything at all, it was Mr. C’s various stories. If the jury had accepted any one of those stories, then the defendants would both have been convicted of first-degree murder. They weren’t; they were acquitted. The People want this Court to interpret the facts contrary to the judgment of acquittal, but a reviewing court can’t do that. (See post, p. 21.) The People also want this Court to assume the jury disregarded its instructions, but a reviewing court can’t do that either. (People v. Delgado, supra, 5 Cal.4th at p. 331.)
If the jury had “rejected appellants’ theory that Mr. C was responsible for the death of Mr. K” (RB 37), it may well have been because the trial court excluded the key evidence inculpating Mr. C, and failed to give the jury proper instructions that would have enabled it to evaluate Mr. C’s various accounts according to the law relevant to Mr. Doe’s defense.
It doesn’t matter anyway, because Mr. Doe didn’t have to prove Mr. C was “responsible for the death of Mr. K.” It was the People’s burden to prove Mr. Doe guilty beyond a reasonable doubt. The evidence and instructions pertaining to Mr. C’s culpability, like any other third party culpability evidence or instructions, were offered only for the purpose of raising a reasonable doubt of the guilt of the person on trial. (People v. Hall (1986) 41 Cal.3d 826, 829.) The guilt or innocence of Mr. C could only be proved in a trial of Mr. C, but the People gave Mr. C a “Get Out Of Jail Free” card. That fact should not have damaged Mr. Doe’s ability to defend against an accusation of a crime of which a properly instructed jury may well have found him not guilty.
The People also overlook the cumulative nature of the various errors in this trial. The trial court effectively gutted the defense by excluding evidence and refusing instructions which would have strengthened the defense effort to raise a reasonable doubt as to Mr. Doe’s guilt. (Even without these key components of a defense, Mr. Doe was acquitted of premeditated, deliberated murder and felony-murder.) A party cannot claim “harmless error” by isolating individual errors and labeling each “harmless,” when the total effect of the errors taken together is prejudicial. (See, e.g., People v. Hernandez (1977) 70 Cal.App.3d 271, 281.)
The People also claim the proposed instruction was duplicative of others. (RB 36-37.) The claim is without merit. None of the People’s proffered instructions (RB 36) gave the jury the same information, the same legal standard with respect to the testimony of Mr. C, as the refused defense instruction. A defendant has a right to an instruction that pinpoints the theory of the defense. (AOB 37, and cases cited.)
No court would refuse prosecution instructions on “consciousness of guilt,” such as CALJIC No. 2.03 or 2.06, on the ground that they were “duplicative” of other instructions such as CALJIC No. 2.20 or 2.21.2. The claim is equally meritless when made against a defendant who seeks similar consciousness of guilt” instructions.
Finally, in an apparent throwaway argument, the People “refute” an equal protection argument that Mr. Doe never made, equating a defendant with a witness/informant. (RB 37, fn. 26.) In the equal protection argument Mr. Doe did make (AOB 44), the parties who are similarly situated are the two parties to the litigation, the defendant and the prosecution, not the defendant and a witness/informant. The disparate treatment of the only two parties to the litigation, allowing one a “consciousness of guilt” instruction but not the other, is the equal protection violation.
Appellant does agree with the People, though, that he was not similarly situated to Mr. C. Mr. Doe had a right to counsel, confrontation and cross-examination. (See RB 37, fn. 26.) Mr. C had something even better–he had a free pass. He also had the full-fledged support of the prosecution for whatever he wanted to say, as long as it was inculpatory of the defendants. If anything, that only makes the trial court’s errors more damaging, because Mr. Doe was denied rudimentary tools for presenting his theory of the case that are granted routinely to prosecutors, and were granted to the prosecutor in this case as well.