Brief Bank # B-959 (Re: F 2.91 n3 [Failure To Give CJ 2.91 As Reversible Error].)
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NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: January, 2003
EXCERPT FROM BRIEF
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
____________________________________/
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SAN BENITO, STATE OF CALIFORNIA,
THE HONORABLE ALAN HEDEGARD, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorneys for Appellant,
JOHN DOE
IV.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GIVE CALJIC NO. 2.91.
Before the jury was instructed, appellant requested that CALJIC No. 2.91 be given. [Footnote 1] (CT 283.) The trial court declined to give the instruction. (CT 283, RT 756.) This omission constitutes reversible error.
There was a substantial factual question at trial as to whether the SUV stopped by Officer Vining was the same vehicle as had been seen outside Tri-County Rentals. In this regard, Officer Olson testified that he broadcast the vehicle as being a Blazer based upon the information which Ms. C and Mr. D gave him. (RT 384, 424.) Nonetheless, the SUV stopped by Officer Vining was a Jimmy. (RT 449.)
In addition, the Jimmy had a different appearance than the description given by Ms. C. She recalled that the SUV had four doors. (RT 397.) However, the Jimmy had two doors. (RT 457-458.)
Given these discrepancies, defense counsel for co-defendant Roe argued to the jury that there was a doubt as to whether the SUV stopped by Officer Vining was the same one seen by Ms. C and Mr. D. (RT 808-809.) Defense counsel for appellant made the same point. (RT 811-812.) However, due to the court’s refusal to give No. 2.91, appellant’s counsel was precluded from pointing to a jury instruction to support her argument. On this record, reversal is required.
As is well settled, a defendant is entitled to an instruction which specifically advises the jury of the defense theory of the case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Thus, when, as here, there is substantial evidence of a misidentification of the defendant, the court is required to give CALJIC No. 2.91 upon the defendant’s request. (Id., at p. 1138.) Moreover, the error must be deemed reversible per se.
In this regard, United States v. Zuniga (9th Cir. 1993) 989 F.2d 1109 is dispositive authority. There, the defendant requested a jury instruction which related the defense of alibi to the reasonable doubt standard. (Id., at p. 1110.) Finding that the instruction was supported by substantial evidence, the Court of Appeals applied a standard of reversal per se since the defendant had been deprived of his right to have the jury consider his theory of the case. (Id., at pp. 1110-1111.)
As is readily apparent, Zuniga is directly applicable to the instant case. Here, appellant requested an instruction which would have related the defense of misidentification to the reasonable doubt standard. Insofar as the defendant was deprived of the right to have his theory of the case put before the jury, reversal is mandated. (United States v. Zuniga, supra, 989 F.2d 1109, 1110-1111.)
Aside from the holding in Zuniga, it is essential to note that per se reversal is required under the reasoning of the United States Supreme Court. As has been discussed above (see pp. 16-17, supra), the court has held that there are certain “‘structural defects in the constitution of the trial mechanism’” that are so fundamental that an appellate court may not engage in harmless error review. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281.) Without doubt, the defendant’s right to a jury instruction on his theory of the case falls neatly within this definition. (Conde v. Henry, supra, 198 F.3d 734, 740-741; standard of per se reversal applied where the defense was precluded from presenting its “theory of the case.”)
Notwithstanding the foregoing analysis, appellant notes that a series of older Court of Appeal opinions have held that the failure to give No. 2.91 may be deemed harmless error under the Watson standard. (People v. Stone (1981) 121 Cal.App.3d 830, 835-837, and cases cited therein.) According to these cases, the omission of No. 2.91 can be cured when the court gives general instructions regarding the credibility of witnesses (No. 2.20), the presumption of innocence (No. 2.90) and alibi (No. 4.50). [Footnote 2] (Ibid.) With all due respect for these earlier Court of Appeal opinions, they are no longer good law in light of the recent pronouncements which have been discussed above.
In this regard, the essential point is that general instructions cannot serve as an adequate substitute for the defendant’s right to have his specific theory of the case put before the jury. Here, the jury received absolutely no instruction on the defense of misidentification. Under these circumstances, reversal per se is required. (United States v. Zuniga, supra, 989 F.2d 1109, 1110-1111.)
FOOTNOTES:
CALJIC No. 2.91 provides:
“The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which [he] [she] is charged.
“If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.”
In the case at bar, Nos. 2.20 and 2.90 were given. However, No. 4.50 was not given.
