Brief Bank # B-880 (Re: F 8.25.1 n3 [Drive-By Murder: By Failing To Define Premeditation And Deliberation, CJ 8.25.1 Improperly Directs Verdict On First Degree Murder].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appear at the end of the document.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
No. B000000
Plaintiff and Respondent,
SCN: PA00000
v. (Los Angeles County)
JOHN DOE,
Defendant and Appellant.
_____________________________________/
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the Superior Court of the State of California
for the County of Los Angeles
THE HONORABLE MEREDITH C. TAYLOR, JUDGE
KIM MALCHESKI #98181
Attorney at Law
P.O. Box 40105
San Francisco, CA 94140
(415) 647-2797
Attorney for Appellant
JOHN DOE
Under appointment by the Court of Appeal through the
California Appellate Project on an independent case basis
II.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GIVING
CALJIC No. 8.25.1 WHICH DEFINES DRIVE-BY MURDER AS
FIRST DEGREE MURDER AS A MATTER OF LAW; THEREBY DEPRIVING
APPELLANT OF HIS FEDERAL CONSTITUTIONAL RIGHT TO HAVE THE JURY
DECIDEHIS GUILT BEYOND A REASONABLE DOUBT.
Appellant was convicted in count 2 of first degree murder with two special circumstances, as a result of the shooting on Cayuga Street. The murder charge in count 2 was presented to the jury under the theories of first degree premeditated malice murder and first degree drive-by murder. (Penal Code §§ 187, 189; CALJIC Nos. 8.10, 8.20, 8.25.1.) (CT 357-361.)
The trial court defined drive-by murder by giving CALJIC No. 8.25.1 (6th ed.), which read as follows:
“Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree.” (CT 361, RT 4621-4622.)
The trial court’s giving of that instruction, and the district attorney’s argument that count 2 was first degree murder as a matter of law because it was a drive-by shooting (RT 4533-4534), resulted in the jury returning a first degree murder verdict on that count. Given that instruction, the district attorney’s closing argument, and the jury’s true finding on the drive-by murder special circumstance (Penal Code § 190.2(a)(21)), it must be presumed that the jury based its first degree murder verdict in count 2 on the trial court’s erroneous instruction and the district attorney’s legally incorrect argument.
The giving of CALJIC No. 8.25.1 was reversible error because it defined drive-by murder as first degree murder as a matter of law; thereby unconstitutionally removing the issue of premeditation and deliberation from the jury’s decision-making power and thus exposing appellant to the substantially greater sentence of life without the possibility of parole.
The court’s instructional error violated appellant’s state and federal constitutional right to due process, a fair trial, a jury trial, and equal protection under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution by depriving appellant of his fundamental constitutional right to have the jury decide all of the legal elements of and essential facts for first degree murder. That instructional error is reversible error per se.
A. Instructional errors are reviewable on appeal without objection.
California courts have consistently held that instructional errors may be raised on appeal and considered by an appellate court without objection at trial. (People v. Carpenter (1997) 15 Cal.4th 312, 380-381 [defendant may challenge on appeal the preponderance of the evidence standard for other crimes evidence without objection]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291 [court may review lying in wait murder instruction without objection at trial]; see also People v. Godwin (1995) 31 Cal.App.4th 1112, 1116; People v. Hall (1989) 208 Cal.App.3d 34, 47; and People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [various instructions reviewed on appeal without objection].
Instructions which affect the “substantial rights of the defendant” may be reviewed on appeal without objection. (Penal Code § 1259.)
California courts have also held that federal constitutional claims may be raised for the first time on appeal. In People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173, the court decided a constitutional claim which had not been raised at trial and noted that “our Supreme Court and other appellate courts have sometimes addressed such constitutional questions in the absence of proper objection below.” (Id. at p. 1172.) Other courts have reached the same conclusion. (People v. Allen (1974) 41 Cal.App.3d 196, 201, fn. 1; People v. Norwood (1972) 26 Cal.App.3d 148, 153.)
If this court decides that this issue has been waived on appeal, then trial counsel’s failure to object on these grounds to this instruction constitutes ineffective assistance of counsel under the state and federal constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668.) Counsel was clearly ineffective in failing to object to CALJIC No. 8.25.1 on constitutional grounds because nothing could be gained by not objecting to that instruction which was relied upon by the district attorney in count 2. Given that there could be no conceivable reason for counsel’s failure to object, his omission could not have been the result of an informed tactical decision. (People v. Pope (1979) 23 Cal.3d 412, 425-426.)
B. First degree murder law in California.
Appellant was charged in count 2 with the crime of murder (Penal Code § 187(a)), which requires the mental state of malice aforethought. Malice may be express or implied. (Penal Code § 188.) Express malice is when there is manifested a deliberate intent to unlawfully take away the life of another. (Ibid.) Implied malice is defined by CALJIC No. 8.11, which was given here. (CT 358.)
Except for first degree felony murder, first degree murder is defined as murder perpetrated by any kind of willful, deliberate and premeditated killing with express malice. (Penal Code § 189, CALJIC No. 8.20; CT 359-360.) Second degree murder is a killing with malice but without premeditation or deliberation. (Penal Code §§ 187, 189.) The jury was instructed on second degree murder here. (CT 362-363.)
In 1998, Penal Code section 189 stated in relevant part:
“All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, …, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.” (Emphasis added.) [Footnote 1]
Section 189 has been interpreted by California courts to define two basic types of first degree murder. The first type, which is not applicable here, is first degree felony murder, which is a killing committed during the perpetration of felonies defined in section 189. The second type of first degree murder is willful, deliberate, and premeditated murder, which is also defined by section 189 as murder by means of destructive device, poison, lying in wait, and torture. (People v. Dillon (1983) 34 Cal.3d 441, 477.) A common sense reading of section 189 tells us that murder by means of a destructive device, torture, poison, etc., is another “kind of willful, deliberate, and premeditated killing.”
By making drive-by killings first degree murder, a defendant will receive a minimum sentence of 25 years to life; while someone convicted of second degree murder may receive a sentence of 15 or 25 years to life depending on whether the victim was a peace officer. (Penal Code § 190.) By making drive-by murder first degree murder, a defendant may also face a sentence of life without the possibility of parole, and even the death penalty, if a special circumstance is also found true. (Penal Code § 190.2.) Therefore, the inclusion of drive-by murders in section 189 substantially increases the potential sentence for defendants convicted of drive-by murder.
C. CALJIC No. 8.25.1 unconstitutionally defines drive-by murder as first degree murder as a matter of law.
A defendant’s right to a jury trial under the Sixth Amendment includes the obligation of a trial court to correctly instruct the jury as to all of the elements of the charged offense. (People v. Flood (1998) 18 Cal.4th 470, 491; Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) The due process clause requires the prosecution to prove beyond a reasonable doubt all of the facts necessary to establish all elements of the charged offense. (Ibid.) Jury instructions cannot relieve the State of the burden of proving each element of the offense beyond a reasonable doubt. (Carella v. California (1989) 491 U.S. 263, 265.)
In a challenge to the constitutionality of a federal carjacking statute, the United States Supreme Court explained 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.” (Jones v. United States (1999) 526 U.S. 227, 243, fn. 6, emphasis added.)
More recently in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 2362-2363, the United States Supreme Court held, “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.” The court further explained that 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.” (Id. at p. 2363, internal quotations and citations omitted, emphasis added.)
In Apprendi, the Supreme Court invalidated a portion of New
Jersey’s hate crime statute. The State attempted to justify the hate crime enhancement statute by arguing that the required finding of biased purpose by the defendant is not an “element” of a distinct hate crime offense. The court rejected that argument by explaining that the defendant’s intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense “element.” (120 S.Ct. at p. 2364.) In other words, the defendant’s mens rea is an element of a crime.
The Supreme Court further explained that it does not matter what label is placed on the fact, element, or sentencing factor in question. The relevant question is not one of “form, but of effect.” (Id. at p. 2365.) The state statute was unconstitutional because it unquestionably turned a second degree offense into a first degree offense without the required jury finding of proof beyond a reasonable doubt. (Ibid.)
In Mullaney v. Wilbur (1975) 421 U.S. 684, the United States Supreme Court found unconstitutional a Maine law requiring a defendant to establish by a preponderance of evidence that he acted in the heat of passion in order to reduce murder to manslaughter. The court held that, by affirmatively shifting the burden of proof to the defendant, the State violated the defendant’s due process right of proof beyond a reasonable doubt. The court rejected the State’s argument that there was not a due process violation because regardless of whether the defendant was convicted of murder or manslaughter, he would lose his liberty and face societal stigma just the same.
The Supreme Court in Mullaney rejected that argument, reasoning that criminal law “is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability” assessed. (Id. at pp. 697-698.) Because the consequences of a guilty verdict for murder and manslaughter differ substantially, the court dismissed the State’s argument that it could circumvent the due process clause by “redefining the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” (Id. at p. 698.)
Appellant was charged here in count 2 with murder; accordingly, he could have been convicted of second or first degree murder. If he had only been convicted of second degree murder, he would have faced a sentence of 15 or 20 years to life. Given the court’s unconstitutional instruction on drive-by murder, the jury found appellant guilty of first degree murder, which made him eligible for a sentence of at least 25 years to life, or life without parole given the jury found two special circumstances to be true. By redefining the elements of first degree murder, the State of California has substantially increased appellant’s sentence from 15 years to life to life without parole.
The prosecution here had the burden of proving every element of the charged offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358.) Unless a defendant is charged with first degree felony murder, premeditation and deliberation is an element of first degree malice murder in California. The Legislature’s amendment of section 189 in regard to drive-by murder “unquestionably turn[ed] a second-degree offense into a first degree offense, under the State’s own criminal code.” (Apprendi v. New Jersey, supra, 120 S.Ct. at p. 2365.)
Respondent here will no doubt argue that premeditation and deliberation are not elements of first degree murder. The Supreme Court in Apprendi and Mullaney rejected similar arguments by those States which tried to redefine elements of the crime as nonessential elements or sentencing factors. (Apprendi, 120 S.Ct. at p. 2364; Mullaney, 421 U.S. at p. 698.)
Premeditation is an element of first degree murder because it bears directly upon the defendant’s state of mind or mens rea. A defendant’s intent in committing a crime is as close as one may come to a core criminal offense element. (Apprendi, 120 S.Ct. at 2364.) That is especially true in a murder prosecution where the defendant’s degree of criminal culpability defines not only the offense he is guilty of, but the penalty which is substantially different depending on whether the defendant is guilty of manslaughter, second degree murder, or first degree murder. (Mullaney, supra, 421 U.S. at pp. 697-699.)
When it comes to fundamental constitutional rights, courts should be more concerned with the substance or effect of those rights rather than their form. (Apprendi, supra, 120 S.Ct. at p. 2365; Mullaney, supra, 421 U.S. at p. 699.) The key question here is not whether premeditation and deliberation is defined as an element, fact, or sentencing factor. But rather, the key question is whether the giving of CALJIC No. 8.25.1 violated appellant’s federal constitutional right to have the jury decide whether the prosecution proved beyond a reasonable doubt that he committed a drive-by murder with malice, intent to kill, and premeditation.
That instruction effectively removed the key legal element from the jury’s constitutionally mandated decision-making power. By removing that issue from the jury, the court effectively deprived appellant of his Fifth and Sixth Amendment rights to have the jury find him guilty of first degree murder upon proof by reasonable doubt. (In re Winship, supra, 397 U.S. 358, 361.)
Other California courts have addressed other legal challenges to other kinds of first degree murder under section 189. (See e.g. People v. Ruiz (1988) 44 Cal.3d 589, 613 [proof of lying in wait acts as the functional equivalent of proof of premeditation and deliberation, and intent to kill]; People v. Wiley (1976) 18 Cal.3d 162, 168-169 [first degree torture murder requires premeditated intent to torture].)
In People v. Steger (1976) 16 Cal.3d 539, 544-546, the Supreme Court held that it is not the amount of pain inflicted which distinguishes torture murder from another kind of murder, but rather it is the state of mind of the torturer which makes torture murder first degree murder under section 189. For torture murder to constitute first degree murder under section 189, it must be committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain. (16 Cal.3d at p. 546; see also People v. Wiley, supra, 18 Cal.3d at p. 173.)
In compliance with the Supreme Court’s decisions in Steger and Wiley, the CALJIC Committee promulgated CALJIC No. 8.24 (6th ed.) which defined one of the three essential elements of murder by torture as follows:
“The perpetrator committed the murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose …” (Emphasis added.)
What is legally significant about CALJIC No. 8.24 is that it defines as an “essential element” of first degree torture murder the requirement that the defendant have a specific mental state which includes a “willful, deliberate, and premeditated intent” to inflict extreme and prolonged pain for a sadistic purpose. In a torture murder case, the jury still has to find that the prosecution has proved beyond a reasonable doubt that the defendant premeditated and deliberated within the meaning of that instruction.
CALJIC No. 8.25.1 defining drive-by murder does not contain language similar to that in CALJIC No. 8.24. There is no requirement in CALJIC No. 8.25.1 that the perpetrator of a drive-by murder have the willful, deliberate, and premeditated intent to inflict death while intentionally firing at another person outside of the vehicle. It is possible that, even if someone in a vehicle intentionally fires at someone outside, the shooter may not act with sufficient deliberation and premeditation to make the shooting first degree murder.
For these reasons, the trial court’s instructional error in giving CALJIC No. 8.25.1 violated appellant’s federal constitutional right to have the jury decide whether the prosecution proved beyond a reasonable doubt that appellant committed a drive-by murder with premeditation and deliberation as required by section 189.
D. The trial court’s instructional error is reversible error per se.
The trial court’s instructional error here requires reversal of appellant’s conviction in count 2 because it falls within the narrow class of structural errors which “affect the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310; Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-281.) Misinstruction on the burden of proof necessary to find the defendant guilty is reversible error per se. (Sullivan, supra, 508 U.S. at p. 279.)
The harmless error test should not apply here because there has been no reliable jury verdict within the meaning of the Sixth Amendment, because the jury verdict on count 2 was not based on a guilty beyond a reasonable doubt finding. Given that there was no jury verdict of guilty beyond a reasonable doubt, the question whether the same verdict of guilty beyond a reasonable doubt would have been rendered is utterly meaningless. (Sullivan, supra, 508 U.S. at p. 280; People v. Kobrin (1995) 11 Cal.4th 416, 429.)
The trial court’s error in giving this instruction was compounded by the district attorney’s closing argument when he told the jury repeatedly that count 2 was first degree murder as a matter of law because it was a drive-by shooting. (RT 4533-4536.)
For these reasons, appellant’s conviction for first degree murder in count 2, along with the attendant special circumstances thereon, must be reversed because the trial court’s instructional error violated appellant’s state and federal constitutional right to due process, a fair trial, and a jury trial.
CONCLUSION
For the above-stated reasons, appellant’s convictions and special circumstances findings should be reversed or stricken for the reasons stated in Arguments I, II, III, IV, V, and VI. If not reversed for those reasons, the gun use enhancements on all three counts must be stricken for the reasons stated in Arguments VII, VIII, and IX. Otherwise, appellant’s sentence should be modified for the reasons stated in Arguments X, XI, and XII.
Dated: March __, 2001.
Respectfully submitted,
________________________
KIM MALCHESKI
Attorney for Appellant
JOHN DOE
FOOTNOTES:
Footnote 1: Section 189 was amended in 1993, operative on January 1, 1994, to include the language “or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death.” (Stats. 1993, c. 609, (S.B. 310), § 1.)
