Brief Bank # B-806 (Re: F 8.55 n2 [Instruction Required Sua Sponte Where Causation Is At Issue].)
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ARGUMENT
I
THE COURT HAD THE SUA SPONTE DUTY TO INSTRUCT THE
JURY WITH CALJIC 8.55, REGARDING AN UNLAWFUL ACT
WHICH IS THE CAUSE OF DEATH
A. Facts/Introduction
The prosecution’s theory of the case was that appellant walked through the front door of Brownie’s Bar, armed with a revolver, and fired at victim. He left the bar after firing the first shot at victim’s leg area. (RT 373.) The victim was lying on the floor; a strike mark was located between the victim’s legs on the tile floor. (RT 335, 336.) The prosecution presented conflicting evidence on the number of shots fired, all of which it attributed to appellant. Ms. H heard two shots. ( RT 373, 393.) Mr. M believed that three or four shots were fired. (RT 415.) This witness was drunk at the time of the shooting. (RT 423.) Mr. F heard two or three shots. (RT 437.)
The shooting occurred during the course of seconds, and possibly up to three minutes. (RT 373, 379-381.) There was no evidence that appellant ever reloaded his gun or had the opportunity to do so.
The prosecution’s forensic evidence suggested that a revolver was used during the shooting, because there were no shell casings left at the scene. (RT 339.) Other forensic evidence produced at trial, by the prosecution was the recovery of seven bullets and/or fragments on the floor in the general area of the victims body. (RT 326-331.) The parties stipulated that seven bullets and/or fragments were removed from the victim’s body during his autopsy. (RT 529-531.) There was no conclusive evidence that these fragments were part of a single bullet, or if they had been fired from different guns. Thus there were a total of 14 bullets and/or fragments to account for removed from the crime scene. The prosecution’s forensic expert did not conclude what caliber of bullets were removed from the victim. The expert did not compare all of the bullets and/or fragments among each other to ascertain whether they were shot from one or more guns. (RT 469-471.) Thus, the forensics evidence was unable to establish whether the bullets were fired from more than one gun. Forensics did establish that as to bullets removed from the floor of the crime scene that had the adequate comparison characteristics that those bullets had not been fired from the gun seized from appellant’s residence when arrested in 1998, some three years after the incident. (RT 466.) A number of the bullets found on the floor at the crime scene where determined to be “nominal” .38 caliber bullets. (RT 469.)
Appellant admitted to shooting two bullets from an old .32 caliber gun that he had thrown away shortly after the incident. (RT 550, 557, 558.) Appellant described a previous assault by the victim, Mr. A, and three of his cohorts, who were subsequently present at the bar when appellant entered for the ostensible purpose of buying beer. The victim, sitting near the door, stood up and pulled a gun from within his clothing. A third-party, sitting next to the victim also stood up and started firing at appellant. Appellant fired his two shots toward the side of the victim, who was in between the third-party shooter and appellant. He left after firing the two shots, which he claimed were in self-defense in response to the third-party shooter firing shots. (RT 550-558.
The autopsy report, which was admitted into evidence without benefit of the doctor’s testimony, is inconclusive regarding the number of actual gunshot wounds, when read in detail. At least one bullet entered the victim through his back side, supporting appellant’s claim that there was a third-party shooter who was firing at appellant from behind the victim, who was essentially standing in the cross-fire. (Ex. 36, p. 3..) The record suggests, that both the victim and appellant were facing each other, inasmuch as the victim stood up when appellant walked in the door. (RT 415.) It belies logic that the victim, confronted with appellant’s unexpected arrival at the bar would stand up and turn his back to appellant.
The fatal wound entered through the side of the victim’s face, and exited out the other side of his neck. (Ex. 36, p.3.) The fact that the bullet entered through the victim’s side lends credence to the possibility that he was shot by either someone firing from in back of him or in front of him, depending on which side was turned toward the person firing the fatal shot.
There is also evidence of other injuries caused b)- separate bullets. The autopsy also concludes that the grazed gunshot wound on the top of the victim’s left shoulder could be the beginning of the fatal neck wound, or a separate gunshot wound. (Ex 36, pp. 2., 4.) The autopsy report also refers to two rows of small superficial lacerations over the back of the victim’s right shoulder, in which a tiny fragment of a lead bullet was recovered, thus suggesting the presence of at least one additional gunshot wound. (Ex. 36, pp. 3-4.)
Appellant contends that reversal of his murder conviction is required because the trial court neglected to instruct the jury with CALJIC 8.55. This instruction provides: To constitute [murder] or (manslaughter] there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.” Where cause is an issue, this instruction must be given sua sponte. (People v. Bernhardt 1963) 222 Cal.App.2d 567,591. Such instruction was necessary because the physical evidence gathered at the scene of the crime and from the autopsy supports the notion that at least two guns were fired, inasmuch as a revolver is known to usually hold six shots. Inasmuch as there is no evidence or prosecution theory suggesting that the third-party shooter described by appellant was aiding and abetting appellant, there exists an genuine controversy regarding the cause of the victim’s death. In fact, the contrary was true, the third-party shooter described by appellant was accompanied by the victim, and both of them responded to appellants presence by drawing firearms.
B. Instruction’s with CALJIC 855 Was Required Sua Sponte
“…[I]n a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. “[Citations.]” People v. Stewart (1976) 16 Cal.3d 134 140; quoting People v. St. Martin (1970) 1 Cal.3d 534, 531; see also People v. Kimble (1988) 44 Cal.3d 480, 503.
“It is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence; and (2) to give explanatory instructions when terms used an instruction have a technical meaning peculiar to the law.” (People v. Reynolds (1983) 205 Cal.App.3d 770 779.) The state high court has recently revisited the issue of sua sponte, instruction:
People v. Modesto(1963) 59 Cal.2d 722, 730 held that “the defendant has a constitutional right to have the jury determine every material issue presented by the evidence.” Modesto’s holding [citation] that the California Constitution requires the trial court to instruct on “every material issue presented by the evidence” (in that case, a lesser included offense) has been extended to require instructions on every material element of an offense. (E.g., People v. Phillips (1966) 64 Cal.2d 574 584-585 [erroneous instruction rendering it unnecessary for jury to find malice]; People v. Reynolds… [supra,] 205 Cal.App.3d. . . [at pp.] 779-780 [failure to instruct on knowledge required for crime of possession of an illegal weapon]; People v. Valenzuela (1985) 175 Cal.App.3d 381 392-393 [failure to instruct on all elements of assault); see also People v. Sheffield (1985) 168 Cal.App.3d 158, 162-164 [instruction given on crime different from that charged]; cf. People v. Odle (1988) 45 Cal. 3d 3 So 415 [failure to instruct on all elements of special circumstance]; People v. Garcia, supra, [1984] 36 Cal.3d [5391 at pp. 535-556 [no instruction on the intent to kill then required for felony murder special circumstance].)
…
As discussed below, the existence of evidence from which the jury could find for the defendant is relevant in determining whether the instructional error is prejudicial, but the due process requirement under article I, section 15, of the California Constitution that the trial court give instructions regarding-and the jury determine-all essential elements of the offense does not depend upon the existence of evidence affirmatively favoring the defendant. (People v. Flood (1998) 18 Cal.4th 470, 481.)
It is well-established that sua sponte instruction with CALJIC 8.55 is required where there is a question as to the cause of death. People v. Bernhardt, supra 222 Cal.App.2d at p. 591.) The Bernhardt court wrote:
As stated by Perkins, in discussing the subject of the causal relation between unlawful act and death: “For conviction of manslaughter in such a case the state must do more than establish mere coincidence between such an act and the fact of death. It must establish the causal connection’ between the violation and the loss of life.” (Perkins, Criminal Law (1957) p. 59.)
In an involuntary manslaughter case of the nature of that presently before this court, such duty encompasses the giving of an instruction defining an element of the offense which the jury must find to exist before a conviction is justified. Such an instruction was necessary in the present case because it was vital to a proper consideration of the evidence by the jury. (See People v. Holt (1944) 25 Cal.2d 59, 64-65.) (Id. at pp. 590-591.)
While there is no question that the victim died by a gunshot wound, there is a conflict in the evidence as to whether appellant caused the fatal wound. The sheer number of bullet fragments and/or bullets at the scene, and inside the victim suggest that more than one gun was fired. The physical evidence taken from the victim supports appellant’s claim that the victim was caught in cross-fire that was instigated by the victim’s bar room companion. The victim had at least three or four wounds, while the prosecution’s star witness, Ms. H, was certain appellant only shot twice. (RT 373, 393.) There is no basis to necessarily assume that appellant was responsible for the fatal wound, or any wound, for that matter.
C. The Instructions As Given Violates Due Process of Law
The United States Supreme Court has written, “Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 35 364, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (See Francis v. Franklin (1985) 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct. 1965; Sandstrom v. Montana (1979) 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.)
The incomplete instructions lessened the government’s burden of proof. It eliminated the necessity of the jury examining the physical evidence to determine if appellant had in fact caused the death of the victim. Since the jury was not informed of the pertinent requirements of causation, the prosecution’s burden of proof on this crucial issue was significantly reduced.
D. The Failure to Instruct the Jury on This Significant Element Is Reversible Error Under An Standard of Review
The error impacts the appellant’s constitutional due process rights therefore such error is reversible, unless the state shows beyond a reasonable doubt that the error was harmless. (Chapman v. California (1976) 386 U.S. 13, 17 L.Ed.2d 705, 87 S.Ct. 824.)
However, even if the court applies the lesser standard that the error is reversible only if it is reasonable, probable that a more favorable result would have been reached absent the error, the error is nevertheless prejudicial. (People v. Watson (1956) 46 Cal.2d 818) While defendant’s story was ridiculed by the prosecution as being highly improbable, the physical evidence produced by the prosecution lends support to appellant Is claim that he was fired upon y the victim’s apparent companion. It is hard to overlook the number of bullets found at the scene, along with the uncertainty of prosecution evidence regarding the caliber of bullets found in the victim’s body. The fact that thestate’s forensic expert did not examine the bullets and/or fragments to determine if the various projectiles had been shot from different guns creates the additional credence to appellant’s claim that there were more guns at the bar. The instructions, as given, allowed the jury to simply assume that if appellant shot a gun, he is necessarily responsible for killing the victim, even though there is a significant question regarding who was actually responsible for this victim’s demise.
Significant contradictions from several of the government’s witnesses, also suggest the presence of prejudice. For example, Ms. H claims that Mr. A was shot while he was munching on some chips. (RT 370, 371.) However, when pressed for details, Ms. H did not see the initial shot fired, because her back was turned while working her cash register. She turned her back again, immediately after turning around to call for help. (RT 372, 373.) She did not even know if Mr. A was armed or had any weapons. (RT 378.) She initially said she checked Mr. A’s pulse to see if he was dead, then, as if realizing the significance of having touched the body, retracted her I statement and said she just looked at him to see if he was breathing. (RT 377.)
Another example is the testimony of Mr. M. He claimed the group left the bar to buy some tacos, but were unsuccessful in doing so and returned to the bar. (RT 411, 412.) However, the autopsy specifically refers to the presence of recently consumed tacos in the victim’s stomach, and incidentally, did not mention the presence of potato chips. (Ex. 36.) Mr. M could not remember a previously reported argument the evening of the shooting, explaining that he had been drunk that evening and his memory of the events had actually improved in the intervening three plus years since his evening of drunken activity. (RT 423, 428.) Another witness, Mr. F, had his back to the door, and was sitting near a barrier between the front door and the booth where was located. He claims he saw the shooting, even though admitting that he had relied on an accounting given to him by Ms. H, because she had a better view. (RT 439, 440, 442,443.) He also claimed that while he could describe the shooting he had run out of the door after the first shot, but at the same time did not see the shooter as he left. This is impossible, since all witnesses agree that appellant fired twice. (RT 447.) Thus, the prosecution’s case for first degree murder was not overwhelming.
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
