Brief Bank # B-873 (Re: F 17.15 n10 [Firearms Sentencing: 10 / 20 / Life (PC 12022.53) — (D) PC 12022.53 Is Not Intended To Apply Where There’s Been A Finding Of Complete Or Imperfect Self-Defense.])
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Date Of Brief: November, 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, Appeal No. C035402
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________________/
Appeal from the Superior Court of the State of California
Sacramento County No. 99F03710
Hon. James L. Long, Judge
APPELLANT’S OPENING BRIEF
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the appellant
By appointment of the Court
In association with the
Central Calif. Appellate Program
Independent system.
IV.
THE FINDING PURSUANT TO THE SECTION 12022.53, SUBD. (D) FIREARM ENHANCEMENT MUST BE REVERSED BECAUSE THE LEGISLATURE DID NOT INTEND FOR THIS PARTICULAR ENHANCEMENT TO APPLY TO THE CIRCUMSTANCES SUCH AS THOSE PRESENTED IN THIS CASE; ALTERNATIVELY, THE JUDGEMENT WITH RESPECT TO THE FIREARM ENHANCEMENT MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE APPLIED TO THE ENHANCEMENT AS WELL AS TO THE UNDERLYING CHARGES
A. Introduction
Appellant was charged with two firearm enhancements pursuant to section 12022.53(d), one attached to the murder count and the other charged with the section 246 charge. [Footnote 1] Since the jury convicted appellant of manslaughter instead of murder, and because manslaughter is not one of the listed felonies in either subdivision (a) or (d) of section 12022.53, the firearm enhancement could not be imposed as to the manslaughter conviction and therefore stricken at sentencing. (RT 857-858.) The jury, however, convicted appellant of shooting into an inhabited dwelling in violation of section 246, and found the weapon enhancement true. Since shooting into an inhabited dwelling is one of the listed felonies in subdivision (d), appellant received a sentence of twenty-five years to life for the discharge of the firearm.
Apart from the instructional issues discussed above, in this argument appellant presents a two-fold attack on the application of life-term firearm enhancement to this case. First, it is appellant’s contention that the legislature did not intend for the life term firearm enhancement to apply in cases such as this where the shooting was done in self-defense, perfect or imperfect. This argument focuses primarily on the legislative history of the statute and specifically on the application of subdivision (l) of section 12022.53 which specifically states that the enhancement does not apply by in person in lawful use of self-defense. Accordingly, the sentence and conviction for the firearm under this enhancement statute should be stricken for this reason.
Appellant’s alternative argument is that even if the statute does not specifically preclude application of the enhancement under these circumstances, subdivision (l) of the statute clearly provides an affirmative defense to the enhancement for which proper jury instructions must be given. Since no such instructions were given here, the finding must be reversed.
B. The Legislative History of Section 12022.53 Indicates that This Statute was Not Intended to Apply Where There Has Been a Finding of Self-Defense, Reasonable or Unreasonable.
Section 12022.53 was introduced in the legislature in 1996 as Assembly Bill No. 4 [A.B. 4]. The stated purpose of the statute was to provide mandatory prison sentences for gun violence. The bill originally provided a person who either is armed or uses during the commission of the specified felonies the punishment would be 10 years in state prison, if the firearm was discharged, the additional punishment would be 20 years and if a person was injured as a result of the discharge of a firearm, the punishment would be 25 years to life. When the legislation was first introduced, both murder and manslaughter were among the enumerated felonies in subdivision (a). Subdivision (b) provided for a 25 years to life term for anyone who discharged a firearm, intentionally or accidentally, and proximately causes bodily injury during several enumerated felonies, including a violation of section 246. Also, when A.B. 4 was first introduced, it provided no exception for lawful self-defense, perfect or imperfect, or any other defense to the charge of a firearm. (Assembly Bill No. 4, introduced December 4, 1996, Leg. Counsel Digest.) Review of the assembly analysis of the bill indicates that the legislation presented a problem with respect to the issue of self-defense. The Assembly Committee on Public Safety’s report on A.B. 4 noted:
“This bill allows a 25-years-to-life enhancement for voluntary manslaughter committed in “imperfect self defense.” Where one uses deadly force in the honest, yet unreasonable, belief that such force is necessary for self defense, he or she is guilty of voluntary manslaughter. (People v. Flannel [supra].) This could also apply in homicides committed by battered wives, as an intentional killing done in response to non-imminent danger is, at least, manslaughter. In many homicides by battered women, the batterer did not pose an imminent threat to the woman’s life at the time of the killing. This bill could also apply where a shopkeeper uses deadly force in the honest belief that a person has come into his shop to rob and kill him or her.” (Assem. Com. on Pub. Safety, Report on Assem. Bill No. 4, p. 3.)
Later the bill was amended in the assembly to specifically provide, among other things, a defense to the enhancement by stating the “bill would provide that it shall not apply to the use or discharge of a firearm by a police officer or by a person in lawful self-defense or defense of others or property.” (Leg. Counsel Digest, A.B. 4, as amended February 19, 1997.)
The statute was again amended in the assembly to include, inter alia, language which specifically stated that the enhancement “shall not apply to the use or discharge of a firearm by a police officer or by a person in lawful self-defense or defense of others or property or in the actual but unreasonable belief in the necessity to defend against great bodily injury or death .” (Leg. Counsel Digest, Ass. Bill No. 4, April 9, 1997.) [Footnote 2]
Following several other amendments to the bill not relevant here, A.B. 4 was amended in the Senate to delete voluntary manslaughter as one of the enumerated felonies in subdivision (a), as well as the language referring to imperfect self-defense [former subdivision p] (see fn. 12, supra.) This amendment is logically consistent since in most instances imperfect self-defense aries in the context of a charge of murder and a finding that the defendant acted under imperfect self-defense the crime of murder is reduced to manslaughter. Once the legislature omitted manslaughter from the list of list of felonies to which the enhancement applied, then there was no need to specify that enhancement applied to a particular circumstance that results in a conviction of manslaughter. Nevertheless, the provision which is now subdivision (l) of the statute remained and it specifically excludes application of the enhancement in a case involving lawful self-defense. The question appellant raises here is whether by removing the language which specifically referred to imperfect self-defense, the legislative meant to exclude imperfect self-defense entirely as an exception to the application of the enhancement for other enumerated crimes in the statute. Appellant submits this was not the Legislative intent.
In construing a statute, the first of a reviewing court is to determine and give effect to the Legislature’s intent. (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1095; People v. Freeman (1988) 46 Cal.3d 419, 425.) Interpretation of a statute begins with the language used. In order to determine legislative intent of a statute a court must first look to the words of the statute. (People v. Fuhrman (1997) 16 Cal.4th 930, 937.) The ordinary meaning of the words employed is the first place to determine statutory construction. (People v. Broussard (1993) 5 Cal.4th 1067, 1071.) If the language used is clear and unambiguous, there is no need for further construction. (People v. Fuhrman, supra, at p. 937.) However, a “provision must be given a reasonable and common sense interpretation consistent with apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity” (Golden State Homebuilding Association v. City of Modesto (1995) 26 Cal.App.4th 601, 608.) In addition, it is also a rule of statutory construction that significance should be given to every word of a statute, if possible, and an interpretation which renders part of the statute surplusage or nugatory should be avoided. (See, People v. Reyes (1997) 52 Cal.App.4th 975, 987; People v. Hinks (1997) 58 Cal.App.4th 1157, 1164.)
By its express provisions, subdivision (l) states that the firearm enhancement does not apply where the discharge of a firearm was in lawful self-defense or defense of another. While the language of the statute appears to be clear in limiting its application to situations involving only perfect self-defense, and does not specifically refer to imperfect self-defense, appellant submits that must have intended this provision to apply to imperfect self-defense as well since any other construction would render subdivision (l) meaningless, surplusage, and serve no purpose.
Actual self-defense provides a complete defense to a crime. In each instance where a jury has found actual self-defense, the defendant has been acquitted. If the defendant is acquitted of the crime, then any enhancement attached to that charge would require an acquittal as well. For example, the statute provides for the firearm enhancement to apply to a finding of murder. (Pen. Code § 12022.53(a).) Actual self-defense is a complete defense to murder because it provides justification or excuse for the homicide. If the trier of fact finds a defendant to have acted with actual and reasonable, i.e., perfect self-defense, that defendant would necessarily have to be acquitted of the charge including the enhancement. In light of the acquittal, subdivision (l) would be surplusage at best and at worst nugatory.
Also, with respect to the law of homicide, a person who is confronted with the appearance of actual and imminent danger to his or her life is permitted to use deadly force in response to that danger, even if the application of deadly force was reasonable or unreasonable. Whether or not the application of force under the circumstances was reasonable or unreasonable, that person is absolved of all responsibility for murder; if the application of force is unreasonable, that person is guilty of no greater crime than manslaughter, a crime that is specifically excluded from this statute. (See, People v. Blakeley, supra.) Given the state of the law, it would be unreasonable to believe the legislature intended this enhancement to apply to that same person for the commission of another crime, while doing what the law permits, lawfully defending himself. More to the point, it is unreasonable to believe the legislature intended the statute to apply to appellant who, in order to do what the law permits him to do, he had to shoot into an inhabited dwelling and still receive a life term enhancement for doing what the law permits.
The legislative history of this statute indicates that the legislature logically meant to exempt all situations where the enumerated felonies was committed while a person was acting in self-defense, perfect or imperfect. Simply put, the legislature intended to avoid the statute’s application to situations where there is a lawful justification, excuse or mitigation.
Accordingly, appellant submits that the statute does not apply in this instance and should be stricken.
C. Section 12022.53(l) Provides For the Affirmative Defense of Self-Defense. The Jury Here Should Have Been Instructed On the Theory of Self-Defense and that the Prosecution Had the Burden of Proving that Appellant Did Not Discharge the Firearm In Self-Defense
Even if the legislature intended the statute to apply in this instance, it is clear the legislature has provided for an affirmative defense to its application in subdivision (l), for which appellant had a constitutional right to have the jury fully instructed on the law of self-defense with respect to the enhancement. The failure to so instruct mandates a reversal of the finding in this case.
Subdivision (l) of section 12022.53 states, in relevant part, that “the enhancements specified in this section shall not apply to the lawful use or discharge of a firearm. . .by any person in lawful self-defense. . . .” By its express terms, this subdivision creates an affirmative defense to the charge.
Although the case law may not be crystal clear on how one determines whether an exception or a proviso in a criminal statute is an element to be proved by the prosecution or an affirmative defense to be proved by the defendant. Some cases hold that “‘where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. [Citations.]’” (People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045, quoting In re Andre R. (1984) 158 Cal. App. 3d 336, 341.) In People v. Gott (1994) 26 Cal.App.4th 881, this court took a different approach to the question and held that the correct approach is more subtle and turns on the nature of the exception rather than its location in the statute. (Id., at pp. 885-888.) For purposes of this argument, however, appellant does not quarrel with either approach since he clearly met his burden of producing sufficient evidence of self-defense thereby requiring the prosecution to prove the absence of self-defense beyond a reasonable doubt.
As stated previously in this brief, a trial court has sua sponte duty to give correct instructions relating to a recognized defense to elements of a charged offense. (People v. Saille (1991) 54 Cal.3d 1103, 1117. This sua sponte rule explicitly applies to correct instructions on self-defense. (People v. Sedeno, supra.) [Footnote 3] The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness, and on the relationship of these defenses to the elements of the charged offense. (Id., at p. 716.)
As discussed in the previous arguments, appellant had a right to have his jury consider his defense of self-defense to all of the charged offenses, including the firearm enhancement. In fact, section 12022.53(l) so states. Moreover, appellant was entitled to have the jury in this case specifically instructed that it was the prosecution’s burden to prove that the discharge of firearm was not justified by self-defense. Where, as here, the evidence was sufficient to establish appellant’s claim of self-defense, correct instructions thereon should have been given sua sponte.
In this instance, the jury was only instructed that the prosecution had the burden of proving the truth of the firearm allegation, (RT 795-796), but not specifically told that it also had to prove beyond a reasonable doubt that the discharge of the firearm was not unlawful, i.e., not in self-defense. Accordingly, the trial court’s failure to instruct correctly on this point was error.
D. The Failure To Instruct on Self-Defense With Respect to The Firearm Enhancement Mandates a Reversal of that Finding
In People v. Wims (1995) 10 Cal.4th 293, the California Supreme Court held that a defendant is entitled to proper jury instructions regarding the meaning of a weapon use enhancement allegation which is tried to a jury. However in People v. Wims, the Supreme Court concluded that the failure to properly instruct on a weapon use enhancement allegation did not violate the right to trial by jury under the Sixth Amendment as incorporated by the Fourteenth Amendment. (Ibid.) Citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 89-90, the California Supreme Court in Wims concluded:
“The [United States] Supreme Court, moreover, has specifically determined the Sixth Amendment does not require jury fact-finding when a statute–like section 12022(b)–makes weapon possession a sentencing factor rather than an element of a crime. [Citation.]” (People v. Wims, supra, 10 Cal. 4th at p. 305.) As a result, because no federal constitutional right was implicated, the failure to instruct on an element of a firearm enhancement was subject to the harmless error test articulated in People v. Watson [.] “Thus, the trial court’s failure to instruct on the elements of a section 12022(b) sentence enhancement is ‘misdirection of the jury’ for which we are constitutionally forbidden to reverse absent a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (People v. Wims, supra, 10 Cal. 4th at p. 315.)
However, that portion of the Wims decision which held that the federal Constitution does not guarantee the right to trial by jury under the Sixth Amendment of a firearm allegation which can result in the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict has now been abrogated by Apprendi v. New Jersey (2000) U.S. [120 S.Ct. 2348, 2357-2363; 147 L.Ed. 2d 435]. Apprendi unequivocally holds that a defendant has a constitutional right to a jury trial with respect to enhancements which increase the penalty for a crime beyond the prescribed statutory maximum for the offense.
In Apprendi, the United States Supreme Court invalidated a portion of a New Jersey statute which allowed a judge to making findings concerning the purpose of an offense utilizing a preponderance of the evidence standard. If the trial judge found that the offense was committed “‘. . . with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity[,]’” the maximum prison sentence for such an offense was increased from “‘between 10 to 20 years.’” (Id., 120 S.Ct. at p. 2351.) The United States Supreme Court specifically described the issue before it as whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt. The Supreme Court wrote:
“The question whether Apprendi had a constitutional right to have a jury find such [racial] bias [which will increase his sentence for the crime charged] on the basis of proof beyond a reasonable doubt is starkly presented. [¶] Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227 (1999), construing a federal statute. We there noted that ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.” (Apprendi v. New Jersey, supra, U.S. at p. [120 S. Ct. at p. 2355].)
The Court concluded:
“In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: ‘It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Citation.]” (Apprendi v. New Jersey, supra, U.S. at pp. [20 S. Ct. at pp. 2362-2363].)
In Apprendi, the United States Supreme Court discussed its prior ruling in McMillan v. Pennsylvania, supra, 477 U.S. at pages 86-88. As stated above, our Supreme Court in Wims, relied extensively upon McMillan in concluding that the United States Constitution did not guarantee a jury trial on an issue of the validity of a firearm enhancement allegation. (People v. Wims, supra, 10 Cal. 4th at pp. 304-309.) In Apprendi, the United States Supreme Court limited its prior holding in McMillan as follows, “We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict-a limitation identified in the McMillan opinion itself.” (Apprendi v. New Jersey, supra, U.S. at p. , fn. 13 [120 S. Ct. at p. 2361].)
In light of the Supreme Court’s restrictions on McMillan, it is apparent that the decision in Wims has been abrogated to the extent that it is inconsistent with the holding of Apprendi that, under the due process clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
In this instance, appellant’s sentence for shooting into an inhabited dwelling was increased to 25 years to life for the discharge of the firearm. Obviously following Apprendi, the jury trial right under the Fifth, Sixth, and Fourteenth Amendments includes the obligation of a trial court to correctly instruct the jury as to each of the elements of the charged offense. In this instance appellant had a Sixth Amendment right to have the jury instructed on his defense of self-defense with respect to the firearm enhancement and to require instruction on the state’s burden of proof. The failure to so instruct was constitutional error.
D. .1. The Error Is Reversible Per Se
Where an instruction or omission wholly removes all the elements of the charge from the jury’s consideration, thus resulting in the jury’s failure to make a factual determination of an element of the offense, the error is reversible per se notwithstanding defendant’s failure to “dispute the existence of the predicate facts and that the evidence overwhelmingly established all the elements of [the charge] . . . .” (People v. Cummings (1993) 4 Cal.4th 1233, 1316; see also Osborne v. Ohio (1990) 495 U.S. 103, 123-25.) In this instance, the instructions completely omitted the defense of self-defense with respect to the firearm enhancement. Thus, there was a complete failure to have the jury consider his sole defense on any of the issues establishing the basis for application of the section 12022.53 firearm enhancement. Under this analysis, reversal is required as a matter of law.
Appellant is cognizant that the United States Supreme Court has recently held that the failure to instruct on an uncontested element of the charge is not reversible error per se. Rather, the error will be considered reversible if “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (Neder v. United States (1999) 527 U.S. 1.) In other words, “where a defendant did not, and apparently could not, bring forth facts contesting the omitted element,” the error may be considered harmless. On the other hand, Neder implies that the failure to instruct on a contested factual issue is per se reversible error. That is to say that an instructional error that affects the framework within which the trial proceeds or renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Ibid.; see also, People v. Molina (2000) 82 Cal.App.4th 1329, 1335.) This analysis comports with the analysis in People v. Flood, supra, which similarly suggested that the failure to instruct on an element that is factually contested is reversible error. Flood overruled the California reversal per se standard of People v. Modesto (1963) 59 Cal.2d 722, as to the failure to instruct on an element of the charge. Because the omitted instruction in Flood concerned “an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant’s own actions or mental state. . .” (Id. at p. 507), the court held the error to be harmless. In so doing, the court concluded that “no rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element].” (Id., at 491.) However, Flood is not dispositive of the issue when a contested issue is involved or when there is a complete failure to instruct on a defense. [Footnote 4]
The problem here is not simply the failure to give complete instructions on the defense or elements of the enhancement. The problem here is that there was a complete lack of instruction on appellant’s defense to the firearm enhancement. Under these circumstances, there is no doubt that the error affected the very framework within which appellant’s trial proceeded, rendered his trial fundamentally unfair, and an unreliable vehicle for determining guilt or innocence. The lack of any instructions on appellant’s defense to the enhancement rendered the very basis for the enhancement, that it was not committed in lawful self-defense, unreliable. Reversal of this finding is mandatory.
D. .2. The Error Is Reversible Because The Prosecution Cannot Prove Beyond A Reasonable Doubt That The Error Did Not Contribute To the Verdict on the Enhancement
“Trial by jury is an inviolate right. . .secured to all. . .[i]n criminal actions in which a felony [or misdemeanor] is charged.” (Cal. Const., Art I, §16; see also U.S. Const., Amends. VI, XIV.) The United States Supreme Court has written, “[l]est 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, supra, at p. 364.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (People v. Flood, supra, at p. 491; Sullivan v. Louisiana, supra, at pp. 277-278.)
For the same reasons previously discussed with respect to the court’s failure to relate self-defense to the section 246 charge, (See Argument III, at pp. 33-35), it cannot be said the failure to instruct the jury on self-defense, perfect and imperfect, as it applied to the enhancement was harmless beyond a reasonable doubt.
Appellant had a complete defense to this charge which was never presented to the jury. The firearm enhancement specifically states that it does not apply where there is the application of self-defense. In light of the jury’s finding that self-defense applied to the underlying charge of murder, it is reasonably probable the jury would have reached the same conclusion with respect to the enhancement. Thus, it cannot be said the absence of self-defense instructions was harmless beyond a reasonable doubt.
To conclude, appellant submits that the firearm enhancement provided for in section 12022.53(d) was not intended to apply to this case; and even if the legislature so intended, the finding must be reversed so that the jury can make that determination based upon the appropriate self-defense instructions. The judgment must be reversed.
* * * * *
FOOTNOTES:
Footnote 1: Penal Code § 12022.53(d) states in relevant part:
“(a) Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), 246 . . ., and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, . . ., or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, . . . .”
Footnote 2:
At that time, as amended the statute read in relevant part:
……………………………..
(o) The enhancements specified in this section shall not apply to the lawful use or discharge of a firearm by a public officer, as provided in Section 196, or by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5.
(p) The enhancements specified in this section shall not apply to any person who displays or discharges a firearm in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.
Also subdivision (d) was amended to state that the enhancement applied where there was the intentional discharge of a firearm and proximately caused great bodily injury. Thus, the statute was amended to eliminate the accidental discharge of a firearm.
Footnote 3: This aspect of Sedeno was approved by the Supreme Court in People v. Breverman (1998) 19 Cal.4th 142, 157.
Footnote 4: Flood also concluded that the error was harmless under the federal standard. (Id. at 507.) However, it is important to note that Flood limited its federal constitutional analysis to the due process clause without discussing the Sixth Amendment right to trial by jury which is also implicated by removal of the appellant’s defense from the jury’s consideration.
