Brief Bank # B-982
Duty To Instruct On Accident; Prejudice From Failure To So Instruct
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Date of Brief: June 3, 2010
III.
A NEW TRIAL MUST BE GRANTED UNDER SECTION 1181 (5), WHEN THE TRIAL JUDGE (a)MISDIRECTS THE JURY IN A MATTER OF LAW OR (b) WHEN THE TRIAL JUDGE ERRS IN THE DECISION OF ANY QUESTION OF LAW
A. Penal Code Section 1181 subdivision (5) Requires the Granting of A New Trial As the Court Refused the Defense Requested Instruction on Accident and Misfortune
It is the duty of defense counsel to request appropriate instructions which will advise the jury of the defendant’s theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other points in People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10 and People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Assuming that the instruction proffered by defense counsel is a correct statement of the law, the trial court must give the instruction. (People v. Wright (1988) 45 Cal.3d 1126, 1137.)
In this case, defense counsel requested an instruction on “accident and misfortune”. If the defense requests an instruction on a particular defense that instruction must be given so long as there is substantial evidence in support of the defense. (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on another point in People v. Barton (1995) 12 Cal.4th 186, 200.) Importantly, doubt as to the sufficiency of the evidence must be resolved in favor of the defendant. (People v. Flannel, supra, 25 Cal.3d 668, 684-685.) Moreover, even if the evidence in support of the instruction is “incredible,” the court must proceed on the hypothesis that it is entirely true. (People v. Burnham (1986) 176 Cal.App.3d 1134, 1143, relying on People v. Modesto (1963) 59 Cal.2d 722, 729.)
On this latter point, People v. Lemus (1988) 203 Cal.App.3d 470 is a most illustrative case. There, the government presented witnesses who testified that the defendant had engaged in an unprovoked knife assault on the victim. In contrast, the defendant testified that the victim had tried to stab him and had threatened to kill him. Thus, according to the defendant, he stabbed the victim in self defense. On these facts, the trial court refused to instruct on a self defense theory. In so holding, the trial court apparently relied on the lack of independent proof that the victim possessed a knife. On appeal, the trial court’s ruling was reversed:
We conclude there was evidence worthy of consideration by the jury that [defendant] was acting in self-defense. Regardless of how incredible that evidence may have appeared, it was error for the trial court to determine unilaterally that the jury not be allowed to weigh and assess the credibility of [defendant’s] testimony . . .
(Lemus, supra, 203 Cal.App.3d at p. 478.)
In short, as Lemus demonstrates, the appellate courts are highly solicitous of the defendant’s right to have the jury instructed on his theory of the case. Thus, in many cases, the trial court commits reversible error when it denies a defendant’s requested instruction.
In the instant case, the instruction proposed by Mr. Defense Attorney was CALCRIM 3404. It clearly and properly represented theory of the Mr. Doe’s case without reference to specific evidence.
The defense of accident or misfortune is based on Penal Code section 26, which provides, in relevant part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Five–Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” This defense “is a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
[Section B omitted.]
C. The Court Erroneously Required the Defendant’s Actions to be Involuntary in Order to give an Accident Instruction
As stated above, the doctrine of accident and misfortune is based on Penal Code section 26 which declares non-criminal an act or omission “charged through misfortune or by accident, when it appears that there was no evil design, ]or[ intention …” The court was mistaken when it did not give the accident instruction because Mr. Doe’s act was voluntary and not involuntary. The basis of an accident defense is a showing that there was not the mens rea required for a criminal charge to be made. There was no evil design or intention on the part of Mr. Doe. Accident or the absence of criminal intent refers to the act and not the result. The defense is available only when the alleged crime was the result of an event that happened while the defendant was engaged in a lawful act. ) People v. Gorgol )1953( 122 Cal.App.2d 281, 308.(
Here, the accident defense was available to Mr. Doe as his intent was to go outside his apartment and tell the individual to stop yelling “ Shantele” at such an early hour )5a.m( in the morning. That was clearly a lawful act on the part of Mr. Doe and the argument that Mr. Victim, who was impaired due to alcohol and drug ingestion, back pedaled down several steps had the misfortune to fall over the railing was Mr. Doe’s defense theory in this case. The failure of the judge to grant this requested instruction prejudicially deprived Mr. Doe of his federal constitutional right to present a defense as is set forth below.
An example of a reversal due to failure of the trial judge to give an accident instruction appears in People v. Gonzales (1999) 74 Cal.App.4th 382. In that case a jury convicted Mr. Gonzales of willful infliction of corporal injury on his girlfriend and he was sentenced to prison. The appellate court reversed because there was testimony at trial that the girlfriend’s injuries were caused accidentally when she was struck by a door as Mr. Gonzales entered the bathroom. This was evidence that Gonzales did not have the requisite intent and defense counsel relied on the defense of accident in his argument. (Gonzales at p. 390.) The trial court erred in this case by requiring Mr. Doe’s actions of coming out of his apartment to be involuntary before an accident instruction could be given. That is not the law. All his actions had to be were lawful, and they were.
D. The Failure to Instruct the Jury As Requested On Accident and Misfortune Denied Mr. Doe Due Process of Law and A Fair Jury Trial Under the Sixth and Fourteenth Amendments
A defense theory instruction is an essential part of the right to present a defense. )See e.g., U.S. v. Sayetsitty )9th Cir. 1997( 107 F3d 1405, 1414 ]defendant has a due process right to have the jury consider defenses recognized by state law which negate elements of the offense[.( Indeed, absent an appropriate instruction, the right to present evidence would be entirely meaningless. )U.S. v. Escobar de Bright )9th Cir. 1984( 742 F2d 1196, 1201-1202 ]”]p[ermitting 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 a judgment of acquittal” [; see also Conde v. Henry )9th Cir. 1999( 198 F3d 734, 739-42 ]same[; People v. Cox )1991( 53 C3d 618, 695-96 ]defendant has right to reasoned, considered judgment of the jury[.(
Moreover, “as a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” )Mathews v. United States )1988( 485 US 58, 63. ]T[he principle ]is[ established in American law … that a defendant is entitled to a properly phrased theory of defense instruction if there is some evidence to support that theory … ]citations[.” )Virgilio v. State )Wyoming( )1992( 834 P2d 1125, 1130; U.S. v. Kenny )9th Cir. 1981( 645 F2d 1323, 1337 ]”jury must be instructed as to the defense theory of the case” [; U.S. v. Oreto )1st Cir. 1994( 37 F3d 739, 748; U.S. v. Douglas )7th Cir. 1987( 818 F2d 1317, 1320-21 ]”the failure to include an instruction on the defendant’s theory of the case … would deny the defendant a fair trial” [; U.S. v. Hicks )4th Cir. 1984( 748 F2d 854, 857-858; People v. Wharton )1991( 53 C3d 522, 570-72; United States v. Sarno )9th Cir. 1995( 73 F3d 1470, 1485; United States v. Zuniga )9th Cir. 1993( 6 F3d 569, 571.(
These rights are also implicated by the failure to fully and correctly instruct the jury on any affirmative defense to the charged offense. )See Martin v. Ohio, supra, 480 US 228.
E. Defense Counsel In this Case, Was Forced to Make His Closing Argument Without Support of the Accident Instruction He Requested
Defense counsel in this case argued to the jury that there was no punch at all. (Transcript of Closing Arguments, pp.13-14). Defense counsel argued to the jury “Mr. Victim went over the railing and cracked his head, and it’s a shame. It’s an absolute shame, but the fact that Mr. Doe was in close proximity to Mr. Victim when Mr. Victim staggered, as Ms. D told you, stumbled and fell over that railing is no reason to hold him responsible for Mr. Victim’s intoxication, uncoordination, lack of balance. … Mr. Doe never wanted Mr. Victim to get hurt. Why would he? He’s got no motive.” (Id. at pp. 14-15.)
When the court refuses to give correct instructions and defense counsel is forced to argue the case without the support of an instruction to which the defense is entitled, the force of its argument is seriously undermined. The presentation of an argument which is not supported by the instructions may also cause the jurors to suspect that defense counsel is trying to mislead them on the law, further weakening the credibility of the defense. “When the general charge on an issue appears to exclude the specific defense being argued by counsel, as it did here, that argument, unsupported by an instruction to which the defendant is entitled, may be more harmful than helpful.” (U.S. v. Duncan (6th Cir. 1988) 850 F.2d 1104, 1118; see also, People v. Rivera (1984) 157 Cal.App. 3d 736, 744; Wright v. U.S. (9th Cir. 1964) 339 F2d 578, 580; see also Burr and Feffer, Preparation and Presentation of Case and Argument, Calif. Crim. Law (Cont. Ed. Bar 1986) [counsel should tie argument to key instructions].)
Here, Mr. Doe’s attorney could not tie his argument to the accident instruction because that instruction was erroneously refused. That refusal denied Mr. Doe his constitutional right to present a defense. A new trial must be granted on this issue alone.
