Brief Bank # B-841 (Re: F 8.47a [Involuntary Manslaughter: Voluntary Intoxication Short Of Unconsciousness (PC 192)].)
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[Date of Brief: March 20, 1999]
THOMAS LUNDY
Attorney at Law
California State Bar No. 57656
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Petitioner
JOHN DOE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF HUMBOLDT
JOHN DOE,
Petitioner,
vs.
C. W. TERHUNE, In His Capacity As Director of
The California State Department of Corrections.
Respondent.
__________________________________________________/
Excerpt From
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS
ARGUMENT
I
PETITIONER’S JURY WAS NOT REQUIRED TO DECIDE A CRUCIAL MATERIAL ISSUE
BECAUSE THE ONLY INSTRUCTION DEFINING INVOLUNTARY MANSLAUGHTER
WAS CONDITIONED ON A FINDING OF UNCONSCIOUSNESS; APPELLATE COUNSEL
WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM
A. Preliminary Statement
The Court of Appeal previously rejected a request by appellate counsel to file a supplemental brief on a claim which, on the surface, appears to be similar to the claim which petitioner now raises in this petition.
However, the claims are not the same. The rejected supplemental brief contended that the jury instruction discussing involuntary manslaughter based on unconsciousness (CALJIC 8.47) should have been modified notwithstanding People v. Saille (1991) 54 Cal.3d 1103. (Exhibit 3.) Alternatively, the supplemental brief contended that trial counsel was ineffective for failing to request such a modification.
Petitioner’s argument herein advances the more fundamental claim that the trial court failed to fulfill its rudimentary duty to define and specify the elements of involuntary manslaughter. (See, e.g., CALJIC 8.45 (Exhibit 1); People v. Barton (1995) 12 Cal.4th 186.) In other words, unlike in Saille, where CALJIC 8.45 was given, the present claim does not involve the modification of an instruction which related the defense to the elements of the offense (i.e., a pinpoint instruction) — the claim raised in this petition involves the failure to instruct on the elements themselves.
Moreover, because CALJIC 8.47 was the only instruction given in the present case, the only reasonable interpretation of the instructions was that involuntary manslaughter required a finding of unconsciousness.
In turn, this interpretation of the instructions logically and reasonably removed from the jury’s consideration the material issue of whether malice was negated by intoxication short of unconsciousness.
B. The Trial Court Was Obligated To Define Involuntary Manslaughter And Specify Its Elements.
The record contains substantial evidence that petitioner was highly intoxicated on the night of the killings. From this evidence the jury could have concluded either that petitioner was unconscious or, that petitioner, although not unconscious, was so intoxicated that he did not harbor malice. (See, Memorandum of Points and Authorities, Statement of Facts § B, filed herewith and incorporated herein by reference.) A verdict of involuntary manslaughter would have been appropriate based on either of the above conclusions. (See, People v. Ray (1975) 14 Cal.3d 20 [involuntary manslaughter may be based on either intoxication to the point of unconsciousness or intoxication short of unconsciousness].)
The prosecution argued that petitioner was not unconscious (RT 3608-76, 3608-77; Exhibit 18) but did not contest the fact of petitioner’s intoxication. The prosecutor’s theory of the case was that petitioner committed the killings while in a drunken rage. He concluded his argument to the jury as follows: “This is an offense that comes from rage…A rage unleashed…drugs and alcohol let loose the beast that lay within….” (RT 3608-79.)
Due to the evidence of intoxication, the judge was required to instruct on involuntary manslaughter as a lesser included offense of the murder charge. (CJER (2002) Mandatory Criminal Jury Instructions §3.15 [While “voluntary intoxication may be subject of ‘pinpoint’ instruction…a court would still be required to instruct sua sponte on involuntary manslaughter because it is a lesser included offense”]; People v. Sedeno (1974) 10 Cal.3d 703, 716; People v. Ray, supra, People v. Barton (1995) 12 Cal.4th 186, 195-201.)
C. The Court Failed To Instruct The Jury On The Definition And Elements Of Involuntary Manslaughter
The essential definition and elements of involuntary manslaughter are set forth in CALJIC 8.45 as follows:
“Every person who unlawfully kills a human being without malice aforethought and without an intent to kill, is guilty of the crime of involuntary manslaughter.
. . .
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed; and
2. The killing was unlawful.”
(CALJIC 8.45 (6th Ed. 1996) Exhibit 1; see also, People v. Saille, supra, 54 Cal.3d 1103.
In petitioner’s case, the trial judge failed to give CALJIC 8.45 or to otherwise instruct on the definition and elements of involuntary manslaughter as set forth above. (See, Exhibit 23; see also, CT 283-364.)
The failure to give CALJIC 8.45 was the result of a mistaken belief that it dealt only with misdemeanor manslaughter. (RT 3531; Exhibit 23; see also CT 283-364.) While CALJIC 8.45 does include reference to misdemeanor manslaughter, it does so only in describing types of unlawful killings. (See, Exhibit 1.) Regardless of whether the specific unlawful killing theories in CALJIC 8.45 are applicable, the definition of the crime (¶1) and the specification of elements (last ¶) serve the crucial purpose of defining the offense for the jury. (See, e.g., People v. Saille, supra, 54 Cal.3d at 1120-21.)
D. The Omission Of CALJIC 8.45 Was Not Cured By Giving CALJIC 8.47
1. CALJIC 8.47 Conditions Involuntary Manslaughter On A
Finding Of Unconsciousness.
The trial court instructed the jury using the language of CALJIC 8.47 in lieu of CALJIC 8.45. (Exhibit 23.) CALJIC 8.47 instructed the jury that involuntary manslaughter was a killing committed while “intoxicated to the point of unconsciousness.” (Exhibit 2, filed herewith and incorporated herein by reference.)
Because CALJIC 8.47 was the only involuntary manslaughter instruction given, it became the definitional instruction and the jury had no option but to conclude that a verdict of involuntary manslaughter could not be returned unless petitioner was unconscious.
2. The Arguments Of Counsel Did Not Cure The Error
The instructional definition of involuntary manslaughter as an unconscious killing was primarily corroborated by the arguments of both the prosecutor and defense counsel who informed the jury as follows:
“DISTRICT ATTORNEY: A homicide becomes a lesser offense when a person drinks to the point of unconsciousness, because the law implies criminal negligence…You’ve intentionally done something that is so dangerous that if you are unconscious at the time of the murder, and, therefore, found not guilty of either first or second degree murder, the law imputes criminal negligence in the homicide at that juncture is the lesser included offense of involuntary manslaughter….” (RT 3608-13:20-27; Exhibit 20.)
“And then we go down to [in]voluntary manslaughter, down at the bottom, where there is no malice, no intent to kill, no premeditation and deliberation. There is just this criminal negligence. You know, if you’ve drunk yourself into unconsciousness.” (RT 3608-17:1-5; Exhibit 20.)
“DEFENSE COUNSEL: Manslaughter in this case would be if you are not convinced beyond a reasonable doubt that murder occurred but that there was a killing and that you believe that the defendant was unconscious at the time and unable to form any kind of intent because of that unconsciousness.” (RT 3613:17-21; Exhibit 20.) [Footnote 1]
3. The Jury Could Only Have Interpreted The Instructions To Preclude Consideration Of Intoxication Short Of Unconsciousness On The Issue Of Malice.
The jury was generally instructed under CALJIC 4.21 that it could consider whether intoxication negated malice. (CT 317; Exhibit 3A, filed herewith and incorporated herein by reference.) However, with no way to reach involuntary intoxication other than unconsciousness, the only reasonable interpretation of CALJIC 4.21 the jury could make was that it only concerned the determination of whether petitioner was “intoxicated to the point of unconsciousness.” Otherwise, the jurors would have had to interpret the instructions in an illogical and absurd manner; that is, that intoxication resulting in unconsciousness requires a verdict of involuntary manslaughter while intoxication short of unconsciousness which negates malice requires a total acquittal. It would have been unreasonable for the jurors to interpret the instructions in such an absurd manner. (See, e.g., Estelle v. McGuire (1991) 502 U.S. 62.)
4. People v. Saille (1991) 54 Cal.3d 1103 Is Fundamentally Distinguishable From Petitioner’s Case.
In Saille the jury was given CALJIC 8.45 which supplied the necessary definition of and specification of the required elements. (54 Cal.3d at 1120-21.) Therefore, any shortcoming of CALJIC 8.47 was a matter for pinpoint instruction since the elements of involuntary manslaughter had been correctly defined by CALJIC 8.45.
In petitioner’s case, because CALJIC 8.45 was not given, CALJIC 8.47 became the definitional instruction and the jury was bound to abide by its definition of involuntary manslaughter as a killing committed while unconscious as the result of intoxication. Therefore, People v. Saille, supra, supports petitioner’s claim that the trial judge erred by defining involuntary manslaughter solely as an unconscious killing per CALJIC 8.47.
E. The Invited Error Doctrine Does Not Apply
Defense counsel participated in the instructional discussion regarding involuntary manslaughter and acceded to the judges’s decision, at the request of the District Attorney, to withdraw CALJIC 8.45 and only instruct on CALJIC 8.47. However, defense counsel’s failure to object was not invited error because the record clearly establishes that it was the result of mistake and inadvertence rather than a conscious tactical choice.
1. The Law Of Invited Error Requires An On-the-Record Statement Of A Tactical Reason For Acceding To The Error.
It has been held that if defense counsel makes a “conscious, deliberate tactical choice” to accede to a trial error the “invited error” doctrine will preclude review of the error on appeal. (See People v. Cooper (1991) 53 Cal.3d 771, 830-31; see also People v. Duncan (1991) 53 Cal.3d 955, 969 [objection to lesser offense instruction was invited error where “Counsel stated he had considered the matter, discussed it with his client, and that ‘in weighing all of the factors, I am of the opinion, and Mr. Duncan concurs, that this particular case is a situation wherein we would not request any lesser included offenses.’”].)
Hence, for the doctrine of invited error to apply “it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons ….” (People v. Wickersham (1982) 32 Cal.3d 307, 332; People v. Hernandez (1988) 47 Cal.3d 315 at 353 [counsel’s argument indicated a tactical purpose for requesting the instruction].)
“Error is invited only if defense counsel affirmatively causes the error and makes `clear that [he] acted for tactical reasons and not out of ignorance or mistake’ or forgetfulness. [Citation.]” (People v. Tapia (1994) 25 Cal.App.4th 984, 1031.)
In sum, for the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act out of ignorance or mistake. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1127.) When it would have made “no sense” for defense counsel to request a particular instruction it is likely that counsel’s request for the instruction was made out of ignorance or mistake unless the record indicates that defense counsel had his or her eye on an appeal. (Maurer 32 Cal.App.4th at 1128.)
2. The Record in the Present Case Shows That CALJIC 8.45 Was Omitted Due to Inadvertence and Mistake.
In his original request for instructions the prosecutor included CALJIC 8.47 but not CALJIC 8.45. (CT 273; Exhibit 22, filed herewith and incorporated herein by reference.) However, during the instruction conference defense counsel requested CALJIC 8.45 and the judge agreed that it would be given. (RT 3531:10-12; Exhibit 23, filed herewith and incorporated herein by reference). In response to this the prosecutor initiated the following exchange:
“DA: Could we go back to eight point four five because I am — we are not really proceeding on any of those theories.
COURT: Eight four five is the misdemeanor; isn’t it?
DA: Yes, and we are not —
COURT: Okay. That is not in there. That is out. You have not asked for that.
DEFENSE: Correct. No. That is correct. I am just looking — we are going with eight four seven.
COURT: Eight four seven inherently dangerous; isn’t it.
DEFENSE: Eight four seven takes the place of it. We don’t need eight four five.” (RT 3531:20 – 3532:5; Exhibit 23.)
This exchange makes it clear that the omission of CALJIC 8.45 was the product of inadvertence and mistake rather than a tactical decision by counsel. The attorneys and the judge mistakenly concluded that the only function of CALJIC 8.45 was to instruct on a misdemeanor theory of involuntary evidence which had not been presented by the evidence and that CALJIC 8.47 took the place of CALJIC 8.45. There was no apparent awareness on the part of anyone of the fact that CALJIC 8.45 included the basic definition and elements of involuntary and that such elements were not included in CALJIC 8.47. Nor does the record reflect any awareness of the fact that instructing the jury only on CALJIC 8.47 limited involuntary manslaughter to an unconscious killing and effectively precluded the jurors from considering the material issue of whether malice was negated by intoxication short of unconsciousness.
In sum, the invited error doctrine is not applicable and the failure of the instructions to require jury resolution of an essential material issue would have been reviewable on appeal under the general sua sponte obligations of the trial court. (See People v. Sedeno (1974) 10 Cal.3d 703, 716; see also People v. Barton (1995) 12 Cal.4th 186, 195-98.) [Footnote 2]
F. The Error Was Prejudicial
1. The Error Impacted Petitioner’s Fundamental Constitutional Rights.
The effect of the error was to prejudicially abridge petitioner’s state and federal constitutional rights by removing an essential material factual issue from the jury’s consideration. The error also implicated petitioner’s rights as follows:
a. By instructing the jury in such a way that it was logically precluded from considering intoxication short of unconsciousness in its determination of the malice element of the offense, the error was a prejudicial violation of petitioner’s right to present evidence to contest the elements of the charge as required by the rights to compulsory process, due process and effective representation of counsel. (Calif. Const. Art. I, §§7, 15-16; U.S. Const. 6th and 14th Amendments.) [Footnote 3] It does the defendant no good to present evidence if the jury is instructed in such a way that it need not consider the evidence.
b. Since the jury was effectively instructed that intoxication short of unconsciousness need not be considered in determining whether the prosecution met its burden of proving malice, the error lessened the prosecution’s burden in violation of petitioner’s state (Article I §§15-16 and federal (6th and 14th Amendments) constitutional rights to due process and fair trial by jury.
2. The Instructional Error Was Prejudicial
The gravamen of petitioner’s claim is that the failure to instruct on the definition and elements of involuntary manslaughter per CALJIC 8.45, resulted in the limitation of involuntary manslaughter to unconsciousness and the removal from the jury of the crucial material issue of whether petitioner was guilty of involuntary manslaughter based on intoxication short of unconsciousness. When such an error occurs, the evaluation of prejudice must focus on whether the issue was contested, whether it was material, and whether it was resolved under other instructions. (See generally, People v. Flood (1998) 18 Cal.4th 470.)
In the present case, all of the relevant considerations demonstrate that the error should be considered prejudicial.
The omitted issue was not conceded, peripheral, resolved in another context and, hence, none of the bases for finding harmless error discussed in People v. Flood, supra, are applicable. [Footnote 4] Accordingly, because it cannot be said that “no rational juror, properly instructed, could have found petitioner guilty of involuntary manslaughter based on intoxication short of unconsciousness, the error is reversible. (Flood, 18 Cal.4th at 491.)
Moreover, the omitted material issue of whether malice was sufficiently negated by intoxication to require a verdict of involuntary manslaughter rather than murder was a theory of the defense. The failure to require the jury to resolve a material factual issue presented by a theory of the defense is harmless only when the omitted issue is decided adversely to the defendant by the jury in another context. (See, People v. Rivera (1984) 157 Cal.App.3d 736, 743; see also, People v. Anderson (1983) 144 Cal.App.3d 55 at 63 [appellate court cannot cure the error in failing to instruct on a defense by weighing the evidence].)
In the present case the jury did not resolve, in any other context, the issue of whether petitioner should have been convicted of involuntary manslaughter based on intoxication short of unconsciousness. “Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to [the verdict required if the defense is accepted].” (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-02.)
Also, the failure of the instructions to require the jury to resolve the material factual issue presented by the evidence of intoxication rendered the trial fundamentally unfair in violation of due process. (See, Estelle v. McGuire (1991) 502 U.S. 62.)
Error was also prejudicial because the jury was not given any option for returning involuntary manslaughter other than unconsciousness. Unlike in People v. Lee (3/4/99; SO60352) 99 DAR 2094, petitioner’s jury was not generally instructed under CALJIC 8.45, that involuntary manslaughter is an unlawful killing without malice. Hence, because there was no lesser offense option for any crime based on intoxication short of unconsciousness, the error was prejudicial by skewing the verdict in favor of murder. (See, People v. Lee, supra.)
G. The Failure Of Appellate Counsel To Raise The Claim Prejudicially Violated The Petitioner’s Constitutional Rights.
Appellate counsel is obligated to “raise crucial assignments of error that arguably could have resulted in reversal.” (People v. Lang (1974) 11 Cal.3d 134; see also In re Harris (1993) 5 Cal.4th 813, 832-34.) This duty is especially important as to errors in instructing the jury since this is one of the most fertile areas for finding reversible error. (See, People v. Thompkins (1987) 195 Cal.App.3d 244, 252 [ “…[N]othing results in more cases of reversible error than mistakes in jury instructions]; see also, People v. Rhoden (1972) 6 Cal.3d 519, 525-29 [appellate counsel ineffective for failing to raise arguably reversible instructional errors].)
Pre-Strickland v. Washington (1984) 466 U.S. 668, cases such as Lang and Rhoden required the court of appeal to reconsider the appeal based on a determination that the omitted issues “arguably could have resulted in reversal.” (Lang, at 142.) Now, under the two-prong Strickland test the determination will likely focus on whether the omission was sound strategy and whether the error, if raised, was reversible. (See e.g., Miller v. Keeney (9th Cir. 1989) 882 F.2d 1428, 1434.) However, as a practical matter the inquiry shouldn’t change much. Ultimately, the substantive issue must be evaluated to determine if there was “reasonable probability of reversal” from the omitted claim. (Ibid.) If there was, then it is prejudicial under Strickland, and even a strategic decision to omit the claim should not be justified as acceptable strategy. (How is it strategically reasonable to omit a winning argument?)
In sum, “The defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably could have resulted in reversal.” (5 Witkin & Epstein, Calif. Crim. Law (2d ed. 1989) Trial § 2790, pp. 3383-84; see also People v. Mitchell (1/7/99, D028246) 68 Cal.App.4th 1489.)
Accordingly, the failure of appellate counsel to present the claim set forth above requires that petitioner be granted relief.
Dated: March 20, 1999
FOOTNOTES:
Footnote 1: Defense counsel did make one brief reference to a broader definition as follows: “If you believe it is an unlawful killing but you are not convinced it was with malice then you find manslaughter which is a lesser offense in this case and so on and so forth. (RT 3614; Exhibit 20.)
However, it is inconceivable that the jury would have relied on this isolated statement instead of the express instruction of the court. As the court observed in People v. Miller (1996) 46 Cal.App.4th 412, 423 fn 4: “While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given. Logically, this is so, because the jury is informed that there are three components to the trial–evidence presented by both sides, arguments by the attorneys and instructions on the law given by the judge. Jurors are told that their decision must be based on the facts and the law and if counsel says anything that conflicts with the instructions that are given by the judge, they must follow the instructions.” [Emphasis in original.]
In the present case the jury was specifically instructed to reject any statements of counsel which conflict with the instructions. (CT 285.)
Footnote 2: The error would also have been reviewable on appeal under Penal Code §1259. (See People v. White (11/6/98, D028205) 67 Cal.App.4th 828, 98 DAR at 11511, fn. 7 [“The Attorney General’s arguments regarding waiver and invited error are without merit…[PC] 1259 entitles [defendant] to raise the issue on appeal if his substantial rights were affected by the erroneous instruction”].)
Also, apart from the judge’s sua sponte duty, to the extent that the instructions were incomplete or incorrect, the trial court had a duty to correct the error. (See, People v. Fudge (1994) 7 Cal.4th 1075, 1110; see also, People v. Montiel (1993) 5 Cal.4th 877, 942 [when court decides to instruct on an issue, the instructions “should be accurate and complete”].)
Footnote 3: A defendant has an absolute right to present relevant evidence with respect to the elements of the offense charged. (Rock v. Arkansas (1987) 483 U.S. 44, 55-56; see also, Chambers v. Mississippi (1973) 410 U.S. 284; People v. Bobo (1990) 229 Cal.App.3d 1417, 1442.) Indeed, the defendant’s constitutional right to present relevant evidence necessarily triumphs over a state’s contrary rule of exclusion. (Rock, 483 U.S. at 55-56.)
Footnote 4: Petitioner also contends that the error in his case was structural error which requires reversal without any consideration of prejudice. (See, Sullivan v. Louisiana (1893) 508 U.S. 275.) Petitioner was deprived of the right to have the jury determine the omitted material issue and determination of such an issue on appeal is neither feasible nor protective of petitioner’s 6th Amendment right to trial by jury. (See, e.g., People v. Anderson (1983) 144 Cal.App.3d 55, 63 [appellate court cannot cure error in failing to instruct on defense by weighing evidence].)
