CG 12.1 Deliberation And Verdict.
[Use FORECITE CG 7.9.]
CG 12.2 Duplicity/Unanimity.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to require the jurors to agree on “a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation].” (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; U.S. v. Hess (1888) 124 US 483, 487 [8 SCt 571; 31 LEd2d 516]; U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 642.)
One doctrinal basis for the 6th Amendment right to jury unanimity is protection of the reasonable doubt standard. “The requirement that all twelve jurors be in agreement as to the defendant’s guilt is employed to give substance to the reasonable-doubt standard; if a verdict is less than unanimous the dissention tends to show that a reasonable doubt exists as to the criminal activity charged.” (U.S. v. Correa-Ventura (5th Cir. 1993) 6 F3d 1070, 1077.)
As a matter of due process, a defendant in a felony criminal case is entitled to a unanimous jury verdict, one “in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.” (People v. Jones (1990) 51 C3d 294, 305.)
The unanimity requirement codifies this constitutional mandate. (People v. Jones, supra, 51 C3d at p. 321; accord, e.g., People v. Ferguson (1982) 129 CA3d 1014, 1020.) It is grounded in the fundamental principle that a person can only be held criminally culpable for specific acts he committed that constitute a violation of the criminal law. (See, e.g., People v. Williams (1901) 133 C 165, 168-69, cited in People v. Davis (1992) 8 CA4th 28, 41; People v. Pitts (1990) 233 CA3d 606, 902; People v. Salvato (1991) 234 CA3d 870, 880; Hamling v. United States (1974) 418 US 87, 117-18 [94 SCt 2887, 41 LEd2d 590].) It is also grounded in the constitutional standard of proof beyond a reasonable doubt (People v. DeLetto (1983) 147 CA3d 458, 471-72), which is a fundamental element of due process of law. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068, 25 LEd2d 368].) As a result, “[w]hen a jury is given more than one factual basis which might constitute the crime charged, it must be instructed along the lines of CALJIC No. 17.01. The jury must unanimously convict for the same act or actions.” (People v. Metheney (1984) 154 CA3d 555, 562.)
It has been recognized that the erroneous omission of a unanimity instruction violates federal due process rights. (People v. Melhado (1998) 60 CA4th 1529, 1534; People v. Brown (1996) 42CA4th 1493, 1501-02; People v. Thompson (1995) 36 CA4th 843, 853; People v. Deletto (1983) 147 CA3d 458, 471-72; State v. Arceo (HI 1996) 928 P2d 843, 869-870; State v. Furutani (HI 1994) 873 P2d 51, 58.) This is so because “[s]ubstantial agreement on a discrete set of actions is essential to insure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct.” (U.S. v. Edmonds (3d Cir. 1996) 80 F3d 810, 819; see also Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; U.S. v. Hess (1888) 124 US 483, 487 [8 SCt 571; 31 LEd2d 516]; U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 642.)
The jury unanimity rule’s common-law underpinnings are another basis for including the rule within due process provisions of the 14th Amendment. As recognized by the United States Supreme Court, courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (Montana v. Egelhoff (1996) 518 US 37, 47 [116 SCt 2013; 135 LEd2d 361] [plurality opinion]; Schad v. Arizona (1991) 501 US 624, 640 [111 SCt 2491; 115 LEd2d 555]; Edmonds, 80 F3d at 810 [“[D]ue process is defined in part by historical practice” ].) [See also FORECITE CG 6.17.]
Because the preliminary/predicate fact at issue in the present case is a necessary element of the charged offense the above constitutional provisions apply to it. (Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707]; see also McKoy v. North Carolina (1990) 494 US 433, 445 [110 SCt 1227; 108 LEd2d 369] (Blackmun, concurring) [there is no general requirement that the jury reach unanimous agreement on the preliminary factual issues but there is a general consensus among the federal circuits that there must be substantial agreement as to the principle factual elements underlying a specified offense]; U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104; U.S. v. Fawley (7th Cir. 1998) 137 F3d 458 [due process requires juror unanimity as to every element of the charge].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 12.3 Multiplicity.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by convicting the defendant more than once for the same crime or criminal act. The Double Jeopardy Clause of the 5th Amendment bans multiple convictions for a single crime. (Ball v. U.S. (1985) 470 US 856, 865; see also FORECITE 4.007 n2; F 17.02 n1 et al.)
See also FORECITE CG 1.6.
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE CG 13, [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
