PG VII(C)

PG VII(C) Substantive Federal Constitutional Issues.

As a general proposition, when the judge fails in his or her duty to assure the jury’s proper conduct and determination of questions of law involving “constitutional requirements,” the due process clause of the 14th amendment is implicated. (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833 at 839 [referring to Estelle v. McGuire (91) 502 US 62 [116 LEd2d 385; 112 SCt 475].)

[Additional materials regarding the types of federal constitutional issues which may be raised in state court are available to FORECITE subscribers. Ask for Article Bank # A-59 a/b/c.]

PG VII(C)(1) Failure To Instruct Or Directed Verdict On Element Of Charge:

“Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation].” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) Failure to instruct on an element of the offense or an instruction directing the jury to find an element against the defendant violates 6th Amendment right to trial by jury (applied to the States through the 14th Amendment) (see U.S. v. Caldwell(9th Cir. 1993) 989 F2d 1056, 1060-61) and 14th Amendment right to due process. (See Fiore v. White (2001) 531 US 225, 228-29 [148 LEd2d 629; 121 SCt 712]; Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419];Osborne v. Ohio (90) 495 US 103, 123-24 [109 LEd2d 98; 110 SCt 1691]; Cabana v. Bullock (86) 474 US 376, 384-86 [88 LEd2d 704; 704 SCt 689]; People v. Cummings (93) 4 C4th 1233, 1312-14 [18 CR2d 796]; People v. Hernandez (88) 46 C3d 194, 211 [249 CR 850]; People v. Figueroa (86) 41 C3d 714, 725 [224 CR 719]; see also Rael v. Sullivan (10th Cir. 1990) 918 F2d 874, 875; Cole v. Young (7th Cir. 1987) 817 F2d 412, 423-426 [instruction in a state criminal trial which omits an element of a crime violates the due process clause of the 14th Amendment].) These provisions are also implicated by situations where the jury is not given an opportunity to decide a relevant factual question. (Figueroa at 724; U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.)

A directed verdict is also precluded as to sentencing factors or enhancements which under Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] are considered elements of the charge. (People v. Sengpadychith(2001) 26 C4th 316, 325-330 [109 CR2d 851]; see also PG VII(C)(32).)

The applicability of the reversible per se rule for the failure to instruct on an element has been questioned in two situations: (1) when the issue is raised on federal habeas (see FORECITE PG VII(C)) and (2) when the omitted issue goes to a special circumstance or other sentencing enhancement (see FORECITE EA V(L)).

In Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1322), neither of these factors precluded relief. The 9th Circuit held that the failure to instruct upon an element of a special circumstance is reversible error on federal habeas if the jury has not been required to make a finding on the omitted element. In Wade, torture (as required for the special circumstance) was defined for the jury in terms that did not include the necessary element of intent to inflict extreme pain. The court concluded that because the jury was permitted to find the special circumstance to be true without making any finding of the defendant’s intent to torture, the error necessarily “influenced the jury’s verdict.” (Wade, 29 F3d at 1320.)

Lewis v. U.S. (96) 518 US 322 [135 LEd2d 590; 116 SCt 2163] held that there is no Federal Constitutional right to a jury trial for petty offenses, even when severed offenses are tried together and the defendant faces a potential aggregate prison term that exceeds six months. California law, however, provides for a jury trial for misdemeanors. (Mills v. Municipal Court (73) 10 C3d 288, 298, fn. 8 [110 CR 329]; see also People v. Foster (2001) 89 CA4th Supp 1 [107 CR2d 612] [defendant had right to jury trial on new charge of failure to appear (VC 40508(a)) following earlier failure to appear after being cited for traffic violation]; Cal. Const., Article I, § 16.)

PG VII(C)(2) Elimination Of Factual Considerations:

The prohibition against directed verdicts “includes perforce situations in which the judge’s instructions fall short of directing a verdict but which nevertheless have the effect of so doing by eliminating other relevant factual considerations if the jury finds one fact to be true.” (People v. Figueroa, supra 41 C3d at 724; see also U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398 [“When the jury is not given an opportunity to decide a relevant factual question,” the defendant is deprived of his right to a jury trial]; U.S. v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses … [were] sufficiently misleading to deprive Rockwell of a fair trial”]; U.S. v. McClain (5th Cir. 1977) 545 F2d 988, 1003.)

PG VII(C)(3) Failure To Properly Define The Prosecution’s Burden:

In Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182; 113 SCt 2078], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment) and is reversible per se. The court’s reasoning was as follows: Because it is the prosecution’s burden to show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]) certain errors, “whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function [citation]” (Sullivan, 124 LEd2d at 191) are reversible per se. Thus, an instructional error which misdescribes the burden of proof, and thus “vitiates all the jury’s findings,” can never be shown to be harmless. In short, the consequences of such an error “are necessarily unquantifiable and indeterminate” (Id. at 191) and thus the prosecution can never meet its burden of proving that such an error is harmless. (See also, Lanigan v. Maloney (1st Cir. 1988) 853 F2d 40 [instruction equating proof beyond a reasonable doubt with “proof to a degree of moral certainty, coupled with confusing contract to civil standard of preponderance, created a significant risk that jury would find guilt based on a level of proof below that required by the Due Process Clause]; see also People v. Roder (83) 33 C3d 191, 498-99 [189 CR 501]; People v. Wandick (91) 227 CA3d 918 [278 CR 274].)

“If the jury is not properly instructed that a defendant is presumed innocent until proven guilty beyond a reasonable doubt, the defendant has been deprived of due process.” (Gibson v. Ortiz (9th Cir. 2004) 387 F3d 812, 820; see alsoMiddleton v. McNeil (2004) 541 US 433 [158 LEd2d 701; 124 SCt 1830, 1832].) Any jury instruction that “reduce[s] the level of proof necessary for the government to carry its burden . . . is plainly inconsistent with the constitutionally rooted presumption of innocence.” (Cool v. US (72) 409 US 100, 104 [34 LEd2d 335; 93 SCt 354].)

PG VII(C)(4) Instructions Which Impact the Burden of Proof As Federal Constitutional Error:

(See People v. Rivers (93) 20 CA4th 1040, 1047 [25 CR2d 602] [evaluating “probability of truth” standard of CJ 2.21.2 under federal standard of prejudice].)

PG VII(C)(5) Misinstruction On Element Of Charge:

Erroneous or contradictory instructions defining the elements of a crime may violate the due process clause of the 14th Amendment. ([NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333, 349-50; People v. Lee (1987) 43 CA3d 666, 673-74.) The failure to adequately instruct upon an element of the offense violates the 6th Amendment right to trial by jury as applied to the states through the 14th Amendment and the 14th Amendment right to due process. (See Rose v. Clark (1986) 478 US 570, 580-81 [92 LEd2d 460; 106 SCt 3101]; People v. Hernandez (1988) 46 CA3d 194, 211; see also People v. Macedo (1989) 213 CA3d 554, 561 [“Conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury’s consideration…they constitute federal constitutional error [citation].”].)

In People v. Davison (1995) 32 CA4th 206, 215-17, the court relied on People v. Harris (1994) 9 CA4th 407, 424-29 to conclude that misinstruction upon the fear element of a robbery charge was harmless because the jury “would have considered all of the evidence before it … and … the record overwhelmingly established that [the victim] stepped back from the ATM because appellant’s conduct induced fear in her.” (Davison 32 CA4th at 217.)

PG VII(C)(6) Presumption Which Lessens The Prosecution’s Burden:

Instructions which lessen the state’s burden of proof or shift that burden to the defendant violate the 6th Amendment right to trial by jury and the due process clause of the 14th Amendment. (Yates v. Evatt (91) 500 US 391 [114 LEd2d 432, 446-50; 111 SCt 1884] [instruction that “malice is implied or presumed” from the “wilful, deliberate, and intentional doing of an unlawful act,” or from the “use of a deadly weapon” violated due process; Martinez v. Borg (9th Cir. 1991) 937 F2d 422, 423 [“Beeman error is constitutional error because the jury did not have the opportunity to find each element of the crime beyond a reasonable doubt”]; Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419] [instructing jury as to mandatory presumptions concerning elements of offense violate due process because they “directly foreclosed independent jury consideration of whether the facts provided established certain elements” of the charged offense, and relieved the state of its burden of proof]; Franklin v. Francis (85) 471 US 307, 313-15 [85 LEd2d 344]; People v. McCall (2004) 32 C4th 175; People v. Roder (83) 33 C3d 491, 496 [189 CR 501]; People v. Dyer (88) 45 C3d 26, 62 [246 CR 209] [Beeman error]; Batiste v. Blackburn (5th Cir. 1986) 786 F2d 704, 705; County Court of Ulster County v. Allen (79) 442 US 140, 157 [60 LEd2d 777] [instruction embodying a permissive inference may be unconstitutional “if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference”]; Dickey v. Lewis (9th Cir. 1988) 859 F2d 1365, 1368-70 [reasonable juror could have construed instruction (“intent to kill may be presumed from use of a deadly weapon”) in an unconstitutional burden-shifting manner]; Miller v. Norvell (11th Cir. 1985) 775 F2d 1572, 1574-76 [instruction in language of statute (that proof of a specified fact “shall constitute prima facie evidence” of intent) created unconstitutional mandatory rebuttable presumption]; Patterson v. Gomez (9th Cir. No. 2000) 223 F3d 959, 964-67 [presumption of sanity improperly shifts burden as to mental state elements of murder charge].) (See generally, Annotation, Supreme Court’s views as to prejudicial effect in criminal case of erroneous instructions to jury involving burden of proof or presumptions, 23 LEd2d 812.)

PG VII(C)(7) Permissive Inference Instructions Discouraged:

While it is not reversible error to give a permissive inference instruction, “inference instructions in general are a bad idea. There is normally no need for the court to pick out one of several inferences that may be drawn from circumstantial evidence in order for that possible inference to be considered by the jury. Inferences can be argued without benefit of an instruction; indeed, inferences are more appropriately argued by counsel than accentuated by the court. Further, because they are a detour from the law which applies to the case, inference instructions tend to take the focus away from the elements that must be proved. In this way they do a disservice to the goal of clear, concise and comprehensible statements of the law for lay persons on the jury. Balanced inference instructions are also difficult to craft.” (U.S. v. Warren (9th Circuit 1994) 25 F3d 890, 900, Rymer, concurring.)

PG VII(C)(7.1) Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.

“It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” (People v. Hannon(77) 19 C3d 588, 597, citing People v. Carmen (51) 36 C2d 768, 773; see also People v. Valdez (2004) 32 C4th 73, 137.)

PG VII(C)(8) Improper Shifting Of The Burden Of Proof:

The federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) require that the prosecution bear the burden of proving the defendant guilty beyond a reasonable doubt. (In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also Speiser v. Randall (58) 357 US 513, 526 [2 LEd2d 1460; 78 SCt 1332].) “…[T]he 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.” (Winship, 397 US at 364.)

These rights are implicated by jury instructions which shift the burden of disproving the existence of an element of the offense to the defendant. (See Sandstrom v. Montana (79) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; but see Martin v. Ohio (87) 480 US 228 [94 LEd2d 267; 107 SCt 1098] [burden of persuasion may be legislatively shifted to the defendant as to an affirmative defense].)

Hence, the jury should not be misled into believing that the defendant is obligated to produce any particular evidence or call any particular witness. (See, e.g., People v. Branch (NY 1996) 637 NYS2d 892 [instruction that jurors had to find defendant not guilty if alibi testimony created reasonable doubt in their minds as to whether defendant was the person who committed the crime charged shifted burden to the defendant to prove that he did not commit the crime];People v. Hill (1998) 17 C4th 800, 832 [prosecutor’s comment that there “has to be some evidence upon which to base a doubt” was likely to be understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt]; People v. Woods (2006) 146 CA4th 106, 112-13 [A prosecutor may not suggest that “a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.”]; State v. Mains (OR 1983) 669 P2d 1112, 1117 [less satisfactory evidence instruction should be limited to prosecution]; Federal Judicial Center, Pattern Criminal Jury Instructions (1988) Inst. No. # 39, Commentary [missing witness instruction may “severely undercut” the presumption of innocence”].)

General instructions on this point which have been approved include the following:

You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

[Source: United States v. Mahone (7th Cir. 1976) 537 F2d 922.]

The law does not require a defendant to prove his innocence or to produce any evidence. There is no burden on the defendant to produce any evidence.

[Source: U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843.]

You will always bear in mind… that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

[Source: 5th Circuit Pattern Jury Instructions, Criminal (1997) 1.09, ¶ 3.]

PG VII(C)(9) Substantive Federal Constitutional Issues: Irrational Use Of Permissive Inference:

People v. Black (2005 ) 35 C4th 1238 [“[T]he judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial”]; but see New Jersey v. Natale (2005) 878 A2d 724 [“We reject the California approach because it appears to be in direct conflict with Blakely“].

PG VII(C)(9.1) Permissive Inference Instruction Improper As Duplicative Of Circumstantial Evidence Instruction.

The California Supreme Court has consistently held that specific instructions relating to the consideration of evidence which merely reiterate a general principle upon which the jury has already been instructed need not be given. (SeePeople v. Lewis (2001) 26 C4th 334, 362-63 [110 CR2d 272]; see also People v. Ochoa (2001) 26 C4th 398, 445-47 [110 CR2d 324]; People v. Berryman (93) 6 C4th 1048, 1079-80 [25 CR2d 867].)

This established rule may be used to object to or challenge standard CALJIC instructions which merely reiterate general principles in the guise of permissive inferences. For example, permissive inference instructions such as the inference that a person in possession of recently stolen property is the thief (CJ 2.15); that a person who flees the scene of a crime has a consciousness of guilt (CJ 2.52) or that a consciousness of guilt may be inferred from the making of a false statement or the fabrication of evidence (CJ 2.03, 2.04), and the like merely restate principles already set forth in the general instructions on circumstantial evidence. (See CJ 2.01; 2.02.) In other words, the general circumstantial evidence instructions explain to the jury that it may draw inferences from circumstantial evidence and, hence, under the reasoning of Lewis, et al., there is no need to specifically instruct the jury on any particular inferences.

Furthermore, if the defendant is not permitted to obtain instruction on specific aspects of a general principle then it would implicate the Due Process and Equal Protection clauses of the federal constitution (5th and 14th Amendments) to allow the prosecution to do so. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208] [unfair advantage to prosecution violates due process]; Lindsay v. Normet (72) 405 US 56, 77 [31 LEd2d 36; 92 SCt 862] [arbitrary preference to particular litigants violates equal protection]; Shortridge v. State (IA 1991) 478 NW2d 613, 615 [permitting prosecution but not criminal defendants to appeal violated equal protection].)

PG VII(C)(10) Contradictory Instructions On Element:

Erroneous and contradictory instructions defining the elements of a crime may violate the due process clause. (People v. Lee (87) 43 C3d 666, 673-74 [238 CR 406], and cases cited therein; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].)

PG VII(C)(11) Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process:

Instructions on a theory of liability of which defendant was not given notice violate due process. (See Cole v. Arkansas (48) 333 US 196, 201-202 [92 LEd2d 644; 68 SCt 514]; Stirone v. United States (60) 361 US 212 [4 LEd2d 252; 80 SCt 270]; People v. Pond (55) 44 C2d 665 [284 P2d 793]; People v. Burnett (99) 71 CA4th 151 [83 CR2d 629]; U.S. v. Shipsey (9th Cir. 1999) 190 F3d 1081) [improper to instruct on theft by any wrongful taking when charging document was limited to theft by false pretenses]; Lucas v. O’Dea (6th Cir. 1999) 179 F3d 412 [fatal variance between indictment and jury instruction violated Fourteenth Amendment notice requirement]; U.S. v. Ford (6th Cir. 1989) 872 F2d 1231 [constructive amendment is per se prejudicial error]; Givens v. Housewright (9th Cir. 1986) 786 F2d 1378, 1381; Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236-37; U.S. v. Sloan (10th Cir. 1987) 811 F2d 1359, 1363 [a jury instruction that quoted the language of a kidnapping statute and included means of committing the offense that were not charged in the indictment, violated the Due Process Clause of the 5th Amendment; see also People v. Butte (2004) 117 CA4th 956 [notice comes from the preliminary hearing].) In addition to violating due process notice principles (5th and 14th Amendments), instruction upon an uncharged theory violates the 6th Amendment which “guarantees a criminal defendant a fundamental right to be clearly informed of the nature and the cause of the accusation against him.” (Nevius v. Sumner (9th Cir. 1988) 852 F2d 463, 471.)

Also implicated is the right to effective assistance of counsel (6th and 14th Amendments). (People v. Bishop (96) 44 CA4th 220, 231 [51 CR2d 629] [“to effectuate the constitutional rights to counsel and due process of law, an accused must be informed of the crimes with which he is charged in order to have a reasonable opportunity to prepare a defense and respond to the charges.” [Citations.].)

Rule 228.1(a)(3) requires the prosecution to disclose its “theory of culpability” prior to voir dire. The content of any instructions and questions at voir dire may depend on the DA’s theory of culpability.

[See Brief Bank # B-810 for additional briefing on this issue.]

Preliminary Hearing Is Touchstone Of Due Process: In terms of notice it is normally the preliminary hearing that controls. “‘[T]he time, place, and circumstances of charged offenses are left to the preliminary hearing transcript’ which represents ‘the touchstone of due process.’ [Citations.]” [Emphasis added.] (People v. Jones (90) 51 C3d 294, 311 [270 CR 611]; see also, People v. Lucas (97) 55 CA4th 721, 737 [64 CR2d 282]; People v. Jeff (1988) 204 CA3d 309, 342 [251 CR 135]; see generally Hamling v. U.S. (74) 418 US 87, 117-118 [41 LEd2d 590; 94 SCt 2887].)

PG VII(C)(11.1) Due Process Notice: Variance Between Information And Proof At Trial.

Jones v. Smith (9th Cir. 2000) 231 F3d 1227, in dictum, stated that after Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362], a due process violation must be found when the prosecutor presents facts regarding penalty which were not alleged in the charging document. (See also Stirone v. U.S. (60) 361 US 212, 218-19 [4 LEd2d 252; 80 SCt 270] [where defendant is convicted of crime, and where information or indictment fails to charge defendant with essential element of that crime, a constructive amendment has occurred, and reversal is warranted]; People v. Seaton (2001) 26 C4th 598, 640-641; Lankford v. Idaho (91) 500 US 110, 126 [114 LEd2d 173; 111 SCt 1723] [“notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure”].)

USE NOTE: Before trial, counsel should review the information to make sure it doesn’t contain any charges that weren’t either (a) in the complaint, or (b) supported by the evidence at the preliminary hearing. 14th Amendment and state due process should prohibit such new charges from turning up in the information. (See e.g., People v. Jones (90) 51 C3d 294, 311-312 [270 CR 611].) Between that and ensuring there are no instructions on uncharged offenses, the defense attorney best protects the defendant from being convicted of an uncharged offense, in derogation of the Due Process Clauses.

During trial, counsel should make sure that no essential elements of the crime or enhancements to punishment are presented to the jury that were not listed in the information.

PG VII(C)(11.2) Due Process Notice: No Reconsideration Of Pre-Verdict Acquittal.

“The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence.” (Smith v. Massachusetts (2005) 543 US 462 [160 LEd2d 914; 125 SCt 1129, 1137] .)

PG VII(C)(12) Failure To Instruct On Lesser Included In Capital Case:

In a capital trial, failure to instruct on a noncapital lesser included offense may violate the due process clause and the Eighth Amendment. (Vickers v. Ricketts (9th Cir. 1986) 798 F2d 369; Beck v. Alabama (80) 447 US 625, 633-38 [65 LEd2d 392; 100 SCt 2382]; see also Hopper v. Evans (82) 456 US 605 [72 LEd2d 367; 102 SCt 2049; People v. Dennis (98) 17 C4th 468, 502-508 [71 CR2d 680]; Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 574-76; 111 SCt 2491] [under the circumstances of this case, instruction on second degree murder provided a sufficient “third option” to withstand a Beck challenge to the trial court’s refusal to instruct on other lesser offenses].) For purposes of review, a capital trial is one in which the defendant was actually sentenced to death. (See Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 818-19 [discussing split in circuits as to whether failure to instruct on a lesser included offense in a noncapital case violates due process under Beck v. Alabama (80) 447 US 625 [65 LEd2d 392; 100 SCt 2382]; see also Hooks v. Ward (10th Cir. 1999) 184 F3d 1206 [where petitioner’s claim concerning the trial court’s refusal to instruct the jury on a lesser included offense was adjudicated only on state law grounds by the state court, de novo review of the federal claim was required].)

PG VII(C)(12.1) Federal Constitutional Right To Instruction On Lesser Included Offense In Capital Case: Defendant’s Duty To Request.

(See Hooks v. Ward (10th Cir. 1999) 184 F3d 1206 [federal court was precluded from considering error in failure to instruct on lesser included offense absent objection; ineffective assistance of counsel claim may be utilized if appropriate].)

PG VII(C)(13) Failure To Instruct On Lesser Included Offenses In Noncapital Case:

The failure to instruct sua sponte upon a lesser included offense where supported by the evidence has been held to violate the due process clause of the 14th Amendment. (Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027-28; see also Ferazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968; Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 818-19 [discussing split in circuits on this issue].) However, other courts, including the Ninth Circuit, have held that the failure of the state court to instruct, sua sponte, upon a lesser offense “fails to present a federal constitutional question ….” (James v. Reese (9th Cir. 1976) 546 F2d 325, 327; see also Woratzeck v. Ricketts (9th Cir. 1987) 820 F2d 1450, 1457; People v. Turner (90) 50 C3d 668, 720 [268 CR 706].)

Failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734; Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240; James v. Reese (9th Cir. 1976) 546 F2d 325, 327.)

In People v. Lagunas (94) 8 C4th 1030, 1037 [36 CR2d 67], the court explained the due process underpinnings of the rule requiring instruction upon lesser related offenses when requested. The court observed that a procedure which affords the trier of fact no option other than conviction or acquittal when the evidence shows that the defendant is guilty of some crime compromises the reliability of the fact-finding process and thus implicates due process. The same can be said for the failure to instruct upon lesser included offenses and, hence, it may be argued that the failure to instruct on lesser included offenses also implicates federal due process.

“[A] criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in proof, no matter how tenuous the defense may appear to the trial.” (United States v. Dove (2nd Cir. 1990) 916 F2d 41, 47; see also, 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; Keeble v. U.S. (73) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; see FORECITE PG VII(C)(14).)

[RESEARCH NOTES: See Mascolo, Procedural Due Process and the Lesser Included Offense Doctrine (1986) 50 Albany L. Rev. 263. A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-29.]

PG VII(C)(14) Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation.

The due process, compulsory process, confrontation, and trial by jury clauses of the 5th, 6th and 14th amendments to the federal constitution mandate that “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 (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (73) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02; see also PG VII(C)(15).) “…[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) (92) 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”]; see also Taylor v. Withrow (6th Cir. 2002) 288 F3d 846, 851 [failure to instruct on self-defense when there is sufficient evidence violates defendant’s fundamental due process rights, even though never explicitly stated by the Supreme Court]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748.) This is so because “a defendant’s right to submit a defense for which he has an evidentiary foundation is fundamental to a fair trial….” (Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423 overruled on other grounds in Eaglin v. Welborn (7th Cir. 1995) 57 F3d 496; U.S. v. Douglas (7th Cir. 1987) 818 F3d 1317, 1320-21 [“the failure to include an instruction on the defendant’s theory of the case … would deny the defendant a fair trial. [Citation.]”]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858; People v. Gurule (2002) 28 C4th 557, 660 [123 CR2d 345] [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”]; cf., Crawford v. Washington (2004) 541 U.S. 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)

For example, failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case. (See Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240; James v. Reese (9th Cir. 1976) 546 F2d 325, 327.)

Moreover, “a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor….” (People v. Marshall (96) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (67) 388 US 14, 19 [18 LEd2d 1019; 87 SCt 1920]; Davis v. Alaska (74) 415 US 308 [39 LEd2d 347; 94 SCt 1105].) The failure to instruct on the defense theory encompassed by the defendant’s evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., U.S. v. Hicks, supra, [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury’s consideration of the issues and directs a verdict against the defendant].)

Furthermore, the denial of instruction and argument on a lesser included offense denies the defendant’s right to present his defense theory of the case to the jury and implicates the federal constitutional rights to due process, trial by jury and representation of counsel. (Conde v. Henry (9th Cir 1999) 198 F3d 734, 741 [reversal required without harmless error analysis because errors affected the “very framework within which the trial proceeded…[and] prevented the defendant from presenting his theory of the defense and prevented the jury from determining whether all elements of [the charge] had been proved beyond a reasonable doubt”].)

(See also FORECITE PG X(C)(3.2); FORECITE PG VII(C)(15).)

PG VII(C)(14.1) Precluding Defendant From Arguing Theory Of Case Is Structural Error.

(See FORECITE PG X(B)(2.1).)

PG VII(C)(15) Right To Present A Defense: Guaranteed By Constitutional Rights To Compulsory Process, Confrontation, Due Process And Trial By Jury.

The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate the 5th Amendment due process right to a fair trial and the 6th Amendment right to present a defense. (Chambers v. Mississippi (73) 410 US 284, 294 [35 LEd2d 297; 93 SCt 1038]; Washington v. Texas (67) 388 US 14, 18-19 [18 LEd2d 1019; 87 SCt 1920]; DePetris v. Kuykendall (9th Cir. 2000) 239 F3d 1057, 1061-63; Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273.)

The constitutional right to present a defense is also specifically embodied in the Compulsory Process, Confrontation and Due Process Clauses of the federal constitution. (5th, 6th and 14th Amendments.) (See People v. Cudjo (93) 6 C4th 585, 637-43 [25 CR2d 390], Kennard, J. dissenting, for a discussion of the defendant’s constitutional right to present a defense under the compulsory process and due process clauses of the federal constitution]; see also Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871 [“…the right to present defense witness testimony…is a right arising not under the 6th Amendment’s confrontation clause but is instead one arising under the 5th and 14th Amendment right to due process and the 6th Amendment right to compulsory process”]; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory process clause and the due process clause of the federal constitution]; cf. Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation]; see also Imwinkelried and Garland Exculpatory Evidence(2d Ed. 1996) § 2-2(d) [6th Amendment right to confrontation]; Id. at § 2-2(e) [6th Amendment right to compulsory process].)

PG VII(C)(16) Juror Unanimity:

Failure to instruct on the requirement of unanimity regarding the facts underlying the offense may violate the 6th Amendment right to trial by jury and 14th Amendment right to due process. (U.S. v. Payseno (9th Cir. 1986) 782 F2d 832, and cases cited at 835-36; but see Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 564-74] [where felony murder and premeditated murder constitute alternative forms of first degree murder under a single statute, neither due process nor the right to a unanimous jury are violated by permitting the jury to return a verdict without unanimity on the theory of first degree murder]; see also FORECITE F 17.01, et al.)

PG VII(C)(17) Due Process Violation For Arbitrary Denial Of State Created Right:

14th Amendment due process principles may be implicated by the state’s arbitrary denial of its own domestic rules. (Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175]; see also, People v. Sutton (93) 19 CA4th 795, 804 [23 CR2d 632]; Hernandez v. Ylst (9th Cir. 1991) 930 F2d 714, 716.)

People v. Marshall (96) 13 C4th 799, 850-51 [55 CR2d 347] 96 DAR 9599, 9613, 96 CDOS 5894 held that the failure to instruct on an element of a special circumstance (PC 190.4) is a violation of state law which implicates the defendant’s federal due process rights under the doctrine of Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227] [arbitrary denial of state-created right as denial of due process.]

PG VII(C)(18) Cumulative Effect Of State Errors As Violation Of Due Process:

State law errors “that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.” (Cooper v. Sowders (6th Cir. 1988) 837 F2d 284, 286-88; Lincoln v. Sunn (9th Cir. 1987) 807 F2d 805, 814, fn 6; Menzies v. Procunier (5th Cir. 1984) 743 F2d 281, 288-89; Greer v. Miller (87) 483 US 756, 764 [97 LEd2d 618; 107 SCt 3102]; Rose v. Lundy (82) 455 US 509, 531 fn 8 [71 LEd2d 379; 102 SCt 1198], concurring opinion; Taylor v. Kentucky (78) 436 US 478, 488 [56 LEd2d 468; 98 SCt 1930]; Donnelly v. DeChristoforo (74) 416 US 637, 642-43 [40 LEd2d 431; 94 SCt 1868]; Walker v. Engle (6th Cir. 1983) 703 F2d 959, 963; FORECITE PG X(E)(3).)

PG VII(C)(19) Impairing Jury’s Assessment Of Witness Credibility As Violation Of Right To Trial By Jury:

Jury instructions which impair the jury’s central function of assessing the credibility of witnesses may implicate the defendant’s federal constitutional right to trial by jury. (6th/14th Amendments.) (See People v. Cudjo (93) 6 C4th 585, 637-43, fn 1 [25 CR2d 390], Kennard, J. dissenting [suggesting that the right to trial by jury is implicated when the trial judge usurps the jury’s function of assessing the credibility of witnesses].)

Franklin v. Henry (97) 122 F3d 1270 held that an error in excluding a statement relating to the credibility of a child witness was of constitutional magnitude based on Crane v. Kentucky (86) 476 US 683, 690-91 [90 LEd2d 636; 106 SCt 2142]. Hence, jury instructions which impact the jury’s assessment of a witness’ credibility may also be of constitutional magnitude.

PG VII(C)(20) Jury Consideration Of Highly Prejudicial Uncharged Act Evidence As Violation Of Due Process:

Admission of highly prejudicial gang evidence, without proper legal guidance to the jury on how it could use that information, violates the longstanding principle of American jurisprudence that the accused should be convicted for what they do, not who they are. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-1385.) The Ninth Circuit in McKinney held that it is improper to use bad character evidence to show that the accused has a criminal propensity. The court explained that the rule against using character evidence to show propensity has been in existence since 1684 and is followed in all 50 states by statute or case law. (Id. at p. 1381, fn. 2.) The court held that the only inference the jury could have drawn from the other crimes evidence was an improper propensity inference which violated the defendant’s federal constitutional right to due process. (Ibid.; see also Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 773-74 [admission of uncharged crimes for purpose of showing conduct in conformity therewith violates due process; however, USSC has never expressly decided this issue]; Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337, 340-341 [evidence of bad character in a criminal trial violates the defendant’s federal constitutional right to due process]; Henry v. Estelle VACATED 52 F3d 809 (9th Cir. 1993) 993 F2d 1423, 1427-28 [evidence of remote uncharged conduct of child molest by defendant violates due process]; c.f. People v. Cardenas (82) 31 C3d 897 [184 CR 165] [prejudicial impact of gang evidence].)

In People v. Garceau (93) 6 C4th 140 [24 CR2d 664], the majority opinion assumed, without deciding, that an instruction which allowed the jury to utilize other-crimes evidence to show criminal propensity violated federal due process principles. (Garceau, 6 C4th at 185-87.) The concurring opinion of Justice Mosk, without reference to McKinney v. Rees, concluded that the federal constitution was violated by the instruction because it lightened the state’s burden. (Garceau, 6 C4th at 209-10.) On the other hand, Justice Kennard, in her concurring opinion (which also did not discuss McKinney v. Rees) concluded that the instruction did not violate the federal constitution because the error did not influence the jury’s understanding of either the elements of the charged offenses or the prosecution’s burden of proof. (Garceau, 6 C4th at 212.) Nor did Justice Kennard believe that the propensity evidence violated the federal constitution’s implied proscription (assuming there is one) against jury consideration of irrelevant evidence because the propensity evidence was relevant to guilt. (Ibid.)

PG VII(C)(21) Due Process Requires Balanced Instructions That Do Not Unduly Favor The Prosecution:

In Wardius v. Oregon (73) 412 US 470, 473 fn 6 [37 LEd2d 82; 93 SCt 2208], the U.S. Supreme Court warned that “state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas (67) 388 US 14, 22 [18 LEd2d 1019; 87 SCt 1920]; Gideon v. Wainwright (63) 372 US 335, 344 [9 LEd2d 799; 83 SCt 792]; Izazaga v. Superior Court (91) 54 C3d 356, 372-77 [285 CR 231]; Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that “in the absence of a strong showing of state interests to the contrary” … there “must be a two-way street” as between the prosecution and the defense. (Wardius 412 US at 474.)

Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485].) [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610]; see also U.S. v. James (9th Cir. 1999) 169 F3d 1210 [with regard to corroboration of a key witness by the introduction of criminal records, there should not be one rule for the prosecution and another rule for the defense]; People v. Santana (2000) 80 CA4th 1194, 1208-09 [96 CR2d 158] [“the cavalier manner in which relevant jury instructions were deleted because they assertedly would only confuse the jury, reveals the extent to which the trial court had aligned itself with the prosecution…”].) Therefore, instructions which give an unfair advantage to the prosecution violate the ‘balance’ required by Wardius and implicate due process. (U.S. Const. 14th Amendment.) For instance, since the prosecution is allowed consciousness of guilt instructions, due process may be implicated if the defendant is not allowed reciprocal ‘consciousness of innocence’ instructions where supported by the evidence. (See e.g., F 2.52h.)

[See Brief Bank # B-838 for additional briefing on this issue.]

PG VII(C)(22) Exercise Of One Constitutional Right Cannot Be Conditioned Upon The Denial Of Another:

It is axiomatic that the exercise of one constitutional right cannot be conditioned upon the denial of another. (In re Hannie (70) 3 C3d 520, 527 [90 CR 742]; see also, In re Ali (66) 230 CA2d 585, 591 [41 CR 108]; Crandell v. Bunnell (98) 144 F3d 1213 [the defendant does not make a voluntary choice of self-representation when forced to choose between incompetent counsel or no counsel at all]; compare Stuard v. Stewart (9th Cir. 2005) 401 F3d 1064 [forcing defendant to choose between right to a speedy trial and right to effective assistance of counsel does not deprive him of due process].)

See also United States v. Saechao (9th Cir. 2005) 418 F3d 1073 [If an individual’s refusal to answer incriminating questions subjects him to a penalty, then the Fifth Amendment is self-executing and any statements made under threat of such penalty are inadmissible]; see also Lefkowitz v. Cunningham (77) 431 US 801 [53 LEd2d 1; 97 SCt 2132] [finding attorney’s 5th Amendment immunity violated when the State divested him of his state political party office for refusing to waive his constitutional immunity before a grand jury]; Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation (68) 392 US 280 [20 LEd2d 1089; 88 SCt 1917] [finding Fifth Amendment violation when city employees were discharged for invoking 5th Amendment privilege against self-incrimination]; Gardner v. Broderick (68) 392 US 273 [20 LEd2d 1082; 88 SCt 1913] [finding 5th Amendment violation when police officer was threatened with and subsequently discharged from employment if he did not waive his 5th Amendment immunity in conjunction with a grand jury investigation]; Garrity v. New Jersey (67) 385 US 493 [17 LEd2d 562; 87 SCt 616] [finding 5th Amendment violation when police officers gave coerced confessions under threat of discharge].

PG VII(C)(22.1) Retaliation For Exercising A Right: Due Process Violation.

“It is well settled that to punish a person for exercising a constitutional right is `a due process violation of the most basic sort.’ [Citation.]” (In re Lewallen (79) 23 C3d 274, 278-279; see also In re Edy D. (2004) 120 CA4th 1199, 1202.)

PG VII(C)(23) Disparate Treatment Of Identical Claims.

Disparate treatment of identical claims advanced in different cases by state appellate courts may violate the Equal Protection Clause of the federal constitution (14th Amendment). (Myers v. Ylst (9th Cir. 1990) 897 F2d 417.)

PG VII(C)(24) Misapplication Of A State Law.

Misapplication of a state law that leads to a deprivation of a liberty interest may violate the Due Process Clause of the 14th Amendment to the federal constitution. (Ballard v. Estelle (9th Cir. 1991) 937 F2d 453, 456.)

PG VII(C)(25) Substantive Federal Constitutional Issues: Vagueness And Overbreadth. Vagueness.

The vagueness doctrine under the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution requires that all persons be given fair notice of what conduct is against the law and may subject them to criminal liability. This doctrine provides that a statute is void if the conduct forbidden by it is so poorly defined that persons of “common intelligence must necessarily guess at its meaning and differ as to its application.” (Connolly v. General Construction Co. (26) 269 US 385, 391 [70 LEd 322; 46 SCt 126].) Not only do vague statutes fail to provide adequate notice but they also result in arbitrary enforcement of statutes. “‘A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant danger of arbitrary and discriminatory application.’ [Citation.]” (People v. Superior Court (Caswell) (88) 46 C3d 381, 390 [250 CR 515]; see also City of Chicago v. Morales (99) 527 US 21 [144 LEd2d 67; 119 SCt 1849].) Additionally, a vague statute offends fundamental notion of fairness by failing to give adequate warning to persons of ordinary intelligence of what is prohibited, and by giving impermissible discretion to governmental authorities to enforce the law arbitrarily and subjectively. (Kolender v. Lawson (83) 461 US 352 [75 LEd2d 903; 103 SCt 1855].)

In determining a vagueness challenge, a court will look to whether the terms of the statute, although undefined or uncertain in the statute, have established canons of construction that provide sufficient guidance as to their meaning. (See e.g. Connolly, 269 US at 394.) In particular, the courts look for well-established common law definitions of questionable terms or other state case law demonstrating that the judiciary has sufficiently interpreted the questionable language. (Lanzetta v. New Jersey (39) 306 US 451, 454-55 [83 LEd 888; 59 SCt 618]; Grayned v. City of Rockford (72) 408 US 104, 111 [33 LEd2d 222; 92 SCt 2294].) In Tobe v. City of Santa Ana (94) 9 C4th 1069, 1084 [40 CR2d 402], the Supreme Court explained the two different types of vagueness challenges: a challenge to a statute on its face (so vague that it’s unconstitutional as to everyone, irrespective of facts), and a challenge to a statute as applied (vague to this particular defendant on these facts.)

Overbreadth. A concept which is similar to vagueness but distinct is overbreadth. The doctrine of overbreadth states that the government may not pursue satisfaction of a proper governmental purpose by means that sweep unnecessarily broadly and thereby invade protected individual freedoms. (NAACP v. Alabama (64) 377 US 288, 307 [12 LEd2d 325; 84 SCt 1302]; see discussion in People v. Rodriguez (98) 66 CA4th 157 [77 CR2d 676] [setting forth general rule that a statute must be incapable of constitutional application in any circumstance unless exceptions to the rule apply].) The danger of an overly broad statute is twofold: “that it may deter citizens from engaging in constitutionally privileged activity — ‘the chilling effect’ — [and], perhaps more ominously, that it gives enforcement officials the power to select certain citizens, from all of those exercising a particular right, and punish them.” (Scott v. District Attorney (E.D. La 1970), 309 FSupp 833 at 838.)

One useful thing about this doctrine is that it allows anyone at all to attack an arguably overbroad statute dealing with First Amendment-protected activity, even people who clearly don’t fall under its provisions. That is a form of standing which doesn’t exist in most situations. (See, e.g., People v. Fogelson (78) 21 C3d 158, 163-64 [145 CR 542].)

In sum, even though vagueness and overbreadth are often discussed together, the distinction between them is significant. Vagueness deals with the due process concerns of fairness, specifically, whether a statute is clearly defined. (Grayned v. City of Rockford, 408 US at 107.) On the other hand, “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” (Id. at 114.)

Under both the vagueness and the overbreadth theories, the judiciary applies a higher level of scrutiny to statutes affecting the exercise of First Amendment rights. (See e.g., Virginia v. Black (2003) 538 US 343 [155 LEd2d 535; 123 SCt 1536] [cross burning crime invalid if done with intent to make a political statement rather than to intimidate]; Ashton v. Kentucky (66) 384 US 195, 200 [16 LEd2d 469; 86 SCt 1407; Broadrick v. Oklahoma (73) 413 US 601, 612 [37 LEd2d 830; 93 SCt 2908] [analyzing challenge to state statute on grounds of overbreadth].)

PG VII(C)(26) Substantive Federal Constitutional Issues: Trial By Jury.

“The Constitution is a solemn promise that the people of this nation have made to each other that neither life nor liberty shall be taken by our government without faithful adherence to certain basic principles. As Justice Scalia observed in Carella, ‘The constitutional right to a jury trial embodies … a structural guarantee that reflects a fundamental decision about the exercise of official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the state.’ [Citations.] Our fundamental principles are subject to refinement and reinterpretation as we live and learn from experience. As distasteful as it may be for both the government and the defendant to start over, the fate of a single trial pales in comparison to the imperative of keeping faith with the charter of our collective existence.” [Internal quotation marks omitted.] (U.S. v. Keys (9th Cir. 1996) 95 F3d 874.)

PG VII(C)(27) Substantive Federal Constitutional Issues:

Retroactivity: “New rules of procedure … generally do not apply retroactively” to final cases because, in contrast to new substantive rules, “[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” (Schriro v. Summerlin (2004) 542 US 348, 352 [159 LEd2d 442; 124 SCt 2519] ; see also In re Consiglio(2005) 128 CA4th 511; People v. Walsh (96) 49 CA4th 1096, 1106 [57 CR2d 214] [resolution of conflict between appellate court interpretations of statute isn’t new law and can be applied to non-final cases]; In re Evans (96) 49 CA4th 1263, 1272-74 [57 CR2d 314] [defendant convicted of qualifying misdemeanor can pursue equal protection challenge to firearm prohibition statute (PC 12021(c)].

Abatement: See FORECITE F 6.50 n14 [Gang Offense: PC 186.22(c) Convictions Cannot Stand] and FORECITE F 17.24.1e [Drug Sale Offenses: School Proximity Enhancement]; see also People v. Nasalga (96) 12 C4th 784, 797 [50 CR2d 88] [defendant entitled to ameliorative effect of amendments to PC 12022.6 enacted subsequent to the offense with no savings clause]; see also In re Chavez (2004) 114 CA4th 989 [change from indeterminate to determinate sentence favored defendants and was applied retroactively].

Ex Post Facto/Due Process: The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull (1798) 3 US 386 [1 LEd 648], and does not of its own force apply to the Judicial Branch of government. (SeeRogers v. Tennessee (2001) 532 US 451 [149 LEd2d 697, 707; 121 SCt 1693] [only due process applies to judicial decisions]; see also Marks v. U.S. (77) 430 US 188, 191 [51 LEd2d 260; 97 SCt 990].) It is the Due Process Clause which protects criminal defendants against novel developments in judicial doctrine. (See, e.g., Bouie v. City of Columbia (64) 378 US 347 [12 LEd2d 894; 84 SCt 1697] [“An unforeseeable and unsupported state court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s review of a federal question”]; see also U.S. v. Ruiz (9th Cir. 1991) 935 F2d 1033, 1035.)

A statute which makes more burdensome the punishment for a crime, after its commission, violates article I, § 9, clause 3, of the U.S. Constitution as an ex post facto determination of criminal liability. (Collins v. Youngblood (90) 497 US 37, 42 [111 LEd2d 30; 110 SCt 2715], quoting Beazell v. Ohio (1925) 269 US 167, 169-70 [70 LEd2d 216; 46 SCt 68], as well as its California counterpart, article I, § 9 of the state Constitution (Tapia v. Superior Court (91) 53 C3d 282 [279 CR 592]). Correspondingly, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates as a violation of due process. (People v. Davis (94) 7 C4th 797 [30 CR2d 50].) An unforeseeable judicial construction of a statute may run afoul of the Due Process Clause because of the same policy underlying the Ex Post Facto Clause–lack of “fair warning of that conduct which will give rise to criminal penalties.” (Marks, supra, 430 US at 191.)

Ex Post Facto: General Rules. Under Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620] the following constitute ex post facto laws: (1) every law that makes an action criminal which was done before the passing of the law, and which was innocent when done; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed; (4) every law that alters the legal rules of evidence, and requires less, or different, evidence than the law required at the time of the commission of the offense, in order to convict the offender.

Ex Post Facto/Due Process: Where Criminal Conduct Begins Before Enactment Of Statute And Continues After Its Effective Date. People v. Grant (99) 20 C4th 150 [83 CR2d 295] concluded that where criminal conduct begins before enactment of the statute (PC 288.5) but continues after the effective date of the statute, conviction does not violate ex post facto principles.

Ex Post Facto: Statute That Changes The Rules Of Evidence. Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620] held that ex post facto principles were implicated by the failure to apply a Texas witness-corroboration rule which was repealed after commission of the crime. The corroboration requirement altered the rules of evidence so that less or different evidence was required to convict. Carmell distinguished rules changing the admissibility of evidence (which apply to both sides), from rules which impact the sufficiency of evidence to convict.

Ex Post Facto/Due Process: Due Process Is More Limited. The due process prohibition against retroactive changes in the law by courts (see Bouie v. City of Columbia (64) 378 US 347 [12 LEd2d 894; 84 SCt 1697]) is restricted to due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. (Rogers v. Tennessee (2001) 532 US 451 [149 LEd2d 697, 707; 121 SCt 1693].) Hence, the due process analysis does not incorporate the specific prohibitions of the Ex Post Facto Clause. (Id. at 4683.)

Ex Post Facto: Removal Of Discretion. A change in the law that removes discretion from the sentencer violates the ex post facto clause even if the sentence the defendant actually received is no more onerous than the sentence he could have received under the law prior to the contested change. (Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 965; see also Lindsey v. Washington (37) 301 US 397 [81 LEd2d 1182; 57 SCt 797].)

Right On Direct Appeal To Benefit Of Intervening Decision. See U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1059 [citing Griffith v. Kentucky (87) 479 US 314, 328 [93 LEd2d 649; 107 SCt 708]].

PG VII(C)(27.1) Changing The Rules In The Middle Of The Game.

It is well settled that where a new rule is adopted by a court that changes a previously settled rule, the new rule should not be given retroactive application when to do so would be fundamentally unfair. (See, e.g., Ponce v. Felker (9th Cir. 2010) 606 F3d 596 [U.S. Supreme Court decision in Giles v. California (2008) 554 US ____ [171 LEd2d 488; 128 SCt 2678] articulated a new rule of law that does not apply retroactively]; see also Coleman v. McCormick (9th Cir. 1989) 874 F2d 1280, 1286-88; U.S. v. Givens (9th Cir. 1985) 767 F2d 574, 578; People v. Scott (94) 9 C4th 331, 357-58 [36 CR2d 627]; People v. Welch (93) 5 C4th 228, 237-38; People v. Collins (86) 42 C3d 378, 388.) [Additional briefing on this issue is available to FORECITE Subscribers.]

PG VII(C)(28) Domestic Rules Of Evidence May Not Be Invoked To Abridge A Criminal Defendant’s Right To A Fair Trial.

Even correct applications of state law by state courts may violate the Due Process Clause, or some other federal constitutional guarantee:

“While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural rules and evidentiary rules may countenance processes that do not comport with fundamental fairness. The issue … is whether the state proceedings satisfied due process.” (Jamal v. VanDeKamp (9th 1991) 926 F2d 918, 919.)

State court procedural or evidentiary rulings can violate federal law “either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.” (Walters v. Maass (9th Cir. 1995) 45 F3d 1355, 1357; see also People v. Wood (2002) 103 CA4th 803 [prosecution witness’s testimony that defendant refused to allow him to enter his property without a warrant violated defendant’s Fourth and Fifth Amendment rights].)

Due Process Balancing. The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas(87) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Green v. Georgia (79) 442 US 95 [60 LEd2d 738; 99 SCt 2150]; Davis v. Alaska (74) 415 US 308 [39 LEd2d 347; 94 SCt 1105]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038];Washington v. Texas (67) 388 US 14 [18 LEd2d 1019; 87 SCt 1920].)

The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486.)

Exclusion of evidence has been found to be arbitrary or disproportionate “where it has infringed upon a weighty interest of the accused.” (U.S. v. Scheffer (98) 523 US 303 [140 LEd2d 413; 118 SCt 1261].) A domestic rule of evidence may not be used to exclude evidence if it “significantly undermined fundamental elements of the accused’s defense.” (Scheffer, 118 SCt at 1267.) However, rules excluding evidence from criminal trials “do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.'” (Id. at 1264.)

This balancing principle has also been recognized in California. (See People v. Babbitt (88) 45 C3d 660, 684 [248 CR 69]; People v. Reeder (78) 82 CA3d 543, 553 [147 CR 275].)

“[A] rule of evidence may not be enforced if it would infringe the right to a fair trial.” (People v. Corona (89) 211 CA3d 529, 544 [259 CR 524]; Hammarley v. Superior Court of Sacramento Co. (79) 89 CA3d 388, 401-402 [153 CR 608].)

Balancing Required On A Case-By-Case Basis. Whether evidentiary preclusion is an unconstitutional sanction must be evaluated on a case-by-case basis. (See Michigan v. Lucas (91) 500 US 145 [114 LEd2d 205; 111 SCt 1743];Taylor v. Illinois (88) 484 US 400, 414-15 [98 LEd 2d 798; 108 SCt 646] [embracing a balancing approach for determining whether preclusion of evidence as a sanction for violating discovery notice requirements violated a criminal defendant’s Sixth Amendment rights].) Numerous courts have read Lucas as requiring case-by-case balancing. (See e.g., LaJoie v. Thompson (9th Cir. 2000) 217 F3d 663, 669 and state and federal cases cited therein.)

Right To Proof Beyond A Reasonable Doubt And Trial By Jury. It has been suggested that the exclusion of relevant defense evidence on the basis of such reliability concerns as the rationale for the hearsay rule, violates two other constitutional guarantees besides the defendant’s right to present a defense: the requirement for proof beyond a reasonable doubt and trial by jury. (See Katherine Goldwasser, Vindicating the Right to Trial By Jury and the Requirement of Proof Beyond a Reasonable Doubt: A Critique of the Conventional Wisdom About Excluding Defense Evidence (1998) 82 Geo.L.J., 621; see also Imwinkelried and Garland, Exculpatory Evidence (2d Ed. 1996) § 6-4, 1998 cum.supp.) In the above article Professor Goldwasser contends that, “when viewed through the lens of the reasonable doubt rule, to exclude defense evidence (and thereby increase the risk of an erroneous conviction) solely out of concern about the risk of an erroneous acquittal is flatly unacceptable.” (Goldwasser, 82 Geo.L.J. at 635-36.) As to the right to trial by jury, Professor Goldwasser concludes that, “unreliability-based rules sacrifice precisely the thing we purport to care about in guaranteeing the right to trial by jury — namely, providing for the kind of decision maker who is most likely to listen to, actually hear, and be open to full and separate consideration of, each and every item of evidence an accused may offer in support of his or her case.” (Id. at 639.)

Applicability of Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013]. In light of the concurrence of Justice Kennedy, signed by three other members of the court, which declined to adopt a per se exclusion rule, and the dissent of Justice Stevens, the as-applied balancing test should still be utilized on a case-by-case basis. (See Imwinkelried and Garland Exculpatory Evidence (2d Ed. 1996) § 2-3(a) fn 183.1 and § 2-4(c) fn 197.1.)

Additionally, the failure of U.S. v. Scheffer (98) 523 US 303 [140 LEd2d 413; 118 SCt 1261] to cite Eglehoff “is confirmation that Eglehoff governs only when the legislature redefines the substantive mens rea element of a crime. Schefferimplicitly assumes that the Washington-Chambers evidence line of authority survived Eglehoff.” (Imwinkelried and Garland Exculpatory Evidence (2d Ed. 1996) § 2-5, fn 312.1 (1998 cum.supp.).)

RESEARCH NOTE: See Imwinkelried and Garland, Exculpatory Evidence (2d ed. 1996)

PG VII(C)(29) Substantive Due Process.

The term “substantive due process” refers to a line of disparate cases which generally conclude that the guarantee of due process in the 5th and 14th amendments includes a “substantive” component that restricts infringement upon certain fundamental “liberty interests.” (See e.g., Reno v. Flores (93) 507 US 292, 302 [123 LEd2d 1; 113 SCt 1439] [substantive due process analysis must begin with a “careful description of the assertive right,” for the doctrine of judicial restraint requires care in breaking new ground]; see also Gray v. Whitmore (71) 17 CA3d 1, [94 CR 904] U.S. ex rel. Reed v. Lane (7th Cir. 1985) 759 F2d 618, 622-23; People v. Beachem (63) 223 CA2d 383, 387 [35 CR 673].) Hence, the substantive due process doctrine acts as a limitation on unreasonable and arbitrary legislation. (7 Witkin Summary of Cal. Law (9th Ed. 1988) Const. Law, sec. 481; People v. Kilborn (96) 41 CA4th 1325, 1328 [49 CR2d 152] [“‘deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantive relation to the object sought to be attained'”].) “The rather nebulous and elastic ‘notions of fairness’ which form the concept of substantive due process provide fertile opportunity for argumentation….” (People v. Rodriguez (98) 66 CA4th 157, 180 [77 CR2d 676].)

PG VII(C)(30) Misconduct Of Co-Counsel As An Abridgement Of Defendant’s Constitutional Rights.

While there may be a tendency in some situations to view co-counsel as an ally, co-counsel may intentionally or unintentionally impact the rights of the other defendant(s). The law is clear that the conduct of counsel for a co-defendant can violate a defendant’s constitutional rights. (People v. Estrada (98) 63 CA4th 1090, 1096 [75 CR2d 17]; see also People v. Hardy (92) 2 C4th 86, 157 [5 CR2d 796].) “[T]he direction of a blow is less important than the wound inflicted” and, therefore, the analysis applicable to prosecutorial misconduct is at least a useful guideline for the review of misconduct committed by counsel for a co-defendant. (People v. Estrada, 63 CA4th at 1096.)

PG VII(C)(31) Due Process On Appeal: Federal Constitutional Issues: Generally:

A convicted state defendant has no federal constitutional right to appeal. However, “it is undisputed that once appellate review is provided, due process requires that it remain unfettered.” (Castle v. U.S. (5th Cir. 1968) 399 F2d 642, 650; see also Douglas v. California (63) 372 US 353 [9 LEd2d 811; 83 SCt 814]; Griffin v. Illinois (56) 351 US 12 [100 LEd 891; 76 SCt 585].) “[T]he proceedings in the appellate tribunal are to be regarded as part of the process of law under which [the defendant] is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the Fourteenth Amendment.” (Frank v. Mangum (1915) 237 US 309, 327 [59 LEd 969; 35 SCt 582]; see also Cole v. Arkansas (48) 333 US 196, 201-202 [92 LEd 644; 68 SCt 514].)

(See FORECITE PG VII(C)(40.1).)

Delay of Appeal As Denial of Due Process. In re Christopher S. (92) 10 CA4th 1337 [13 CR2d 215] recognized that the defendant does have a due process right “to a speedy determination of his appeal.”

Several federal cases have also recognized that excessive delay in the appellate process may violate due process rights. “[W]hen a state provides a right to appeal, it must meet the requirements of due process and equal protection . . . [D]ue process can be denied by any substantial retardation of the appellate process . . . .” (Rheuark v. Shaw (5th Cir. 1980) 628 F2d 297, 302.) On the other hand, “not every delay in the appeal of a case, even an inordinate one, violates due process.” (Id. at 303.) Such claims are tested in the federal courts by applying four factors set forth in Barker v. Wingo (72) 407 US 514, 530-532 [33 LEd2d 101; 92 SCt 2182], for evaluating the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the degree to which the defendant asserted his or her right; and (4) the degree of prejudice to the defendant. All four factors are to be considered together in light of the circumstances of the case, as part of a “difficult and sensitive balancing process.” (Id. at 533; see also, Coe v. Thurman (9th Cir. 1991) 922 F2d 528, 532.)

Inadequate Record As Denial of Due Process on Appeal. Failure to instruct orally on the elements of the offense violates the defendant’s due process right to a record sufficient for appeal because it makes it impossible for the reviewing court to determine whether each juror read the written instructions and was aware of the elements thereof. (People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311; see also FORECITE PG V(G)(4).)

Ineffective Counsel on Appeal. (See FORECITE PG X(K).)

Strategy Note. “Counsel in state court must make a full record of all impediments to meaningful appellate review, including denial of adequate briefing time and unfair page limitations. This will provide federal counsel with an argument that any procedural bars are not adequate to preclude federal review of the claims, and that the standard of review contained in section 2254(d) should not apply.” (“RECAP” 130 (July 1998) p. 24, published by the California Appellate Project, San Francisco.)

PG VII(C)(32) Applicability Of Constitutional Rights To Sentencing Decisions.

[See Brief Bank # B-811 for additional briefing on this issue.]

1. Non-Recidivist Sentencing Factor Which Increases The Defendant’s Sentencing Exposure. McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411] concluded that the Winship standard did not apply to a judge’s finding by a preponderance of the evidence of firearm possession which subjected the defendant to a mandatory term within the sentencing ranges otherwise prescribed. The Court observed that the result might have been different if the firearm possession had exposed the defendant to a sentence beyond the maximum that the statute otherwise set without the firearm possession. (477 US at 88; see also People v. Wims (95) 10 C4th 293, 324 [41 CR2d 241], Kennard, J., dissenting.)

Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215], addressed, in dicta, the question left unresolved in McMillan. Jones concluded that a sentencing factor which exposes a defendant to a significantly greater range of punishment would “raise serious constitutional questions” if imposed without “the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” (119 SCt at 1228.)

In so doing, the Court distinguished Almendarez-Torres v. U.S. (98) 523 US 224 [140 LEd2d 350; 118 SCt 1219] , because it involved only the issue of whether the sentencing factor must be charged and because it dealt with recidivist statutes. Jones also distinguished Spaziano and Walton, which dealt with choosing punishment between existing choices in death penalty cases rather than “raising the ceiling of the sentencing range available.” (119 SCt at 1228.)

Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] expressly adopted the view foreshadowed in Jones: any fact (other than a prior conviction) that increases the penalty beyond the statutory maximum is an element of the charge to which federal constitutional protections, including trial by jury and proof beyond a reasonable doubt, apply. This rule is grounded upon the 14th Amendment right to due process and the 6th Amendment right to trial by jury: “[P]ractice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt.” (Apprendi, 120 SCt 2359.) “‘[I]t 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, 120 SCt at 2363; see also Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; U.S. v. Booker (1005) 543 US 220 [160 LEd2d 621; 125 SCt 738] [making federal sentencing guidelines discretionary to comply with Blakely, but leaving the impact on California unclear].)

The California Supreme Court has held that Apprendi applies to sentencing enhancements in California. (See e.g., People v. Sengpadychith (2001) 26 C4th 316, 325-330 [109 CR2d 851].) Sengpadychith held that Apprendi v. New Jerseytreats an enhancement which increases the statutorily prescribed maximum penalty as an element of the offense which is subject to the federal constitutional rights to due process and trial by jury (5th, 6th and 14th Amendments).

[See Brief Bank # B-786, # B-811 and B-877 for additional briefing on these issues.]

2. Non-Recidivist Sentencing Factor Resulting In Great Sentencing Disparity (“Tail Wagging The Dog”).

ALERT: In light of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] there is no longer any need for the “great disparity” analysis as to non-recidivist sentencing factors which increase sentencing exposure. (But see FORECITE PG VII(C)(32)(3) for discussion of “great disparity” as to prior convictions.)

In fact, Apprendi actually incorporated the “tail wagging” doctrine into its rejection of the prosecution’s argument: “[I]t can hardly be said that the potential doubling of one’s sentence–from 10 to 20–has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as ‘a tail which wags the dog of the substantive offense.’ [Citation.].” (Apprendi, 120 SCt at 2365.)

For reference purposes the previous McMillan analysis is provided below.

McMillan recognized that legislatures do not have “unbridled power to redefine crimes to the detriment of criminal defendants….” (477 US at 86.) McMillan suggested that the legislature might lack power to remove a factual issue from the jury’s consideration by defining the issue as a mere “sentencing consideration” if a finding on that issue would expose the defendant to substantially “greater or additional punishment.” (Id. at 88.) That is, the sentencing enhancement cannot become “a tail that wags the dog of the substantive offense.” (Ibid.)

Hence, any statute which imposes an enormous sentence increase — even one based on recidivism — may be subject to constitutional limitations. (Cf., Castillo v. U.S. (2000) 530 US 120 [147 LEd2d 94; 120 SCt 2090, 2096] [federal enhancement construed as element of the crime]; U.S. v. DeJesus (9th Cir. 2000) 217 F3d 638, 642 [“‘when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction a higher standard of proof may be required.’ [Citation.]”]; U.S. v. Gigante (2nd Cir. 1996) 94 F3d 53, 56 [preponderance of evidence is threshold basis for sentencing but courts may require higher standards to be met where the factor leads to a “substantially enhanced sentencing range”]; U.S. v. Restrepo (9th Cir. 1991) 946 F2d 654, 659 [when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction,” the government may have to meet a “clear and convincing evidence” standard]; see U.S. v. Lombard (1st Cir. 1995) 72 F3d 170, 186-87 [where sentence enhancement is “enormous,” downward departure was allowed because enhancing a sentence in such a manner based on a preponderance of the evidence may have “exceeded” constitutional limits]; U.S. v. Townley (8th Cir. 1991) 929 F2d 365, 369 [“preponderance standard the [McMillan] Court approved in the garden variety sentencing determination may fail to comport with due process whereas here a sentencing enhancement becomes ‘a tail which wags the dog of the substantive offense.'” (quoting, McMillan, 477 US at 88].)

3. Federal Right To Trial By Jury As To Prior Conviction. Under California law, most determinations regarding the proof of prior convictions have been removed from the jury. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also People v. Wiley (95) 9 C4th 580 [38 CR2d 347].)

However, Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] provides a basis upon which these cases may be challenged. Apprendi hinted that its rule may also be applied to prior convictions by observing that the logic of McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411] and Almendarez-Torres v. U.S. (98) 523 US 224 [140 LEd2d 350; 118 SCt 1219] may no longer be viable.

The court indicated that McMillan may be ripe for reconsideration: “[W]e reserve for another day the question whether stare decisis considerations preclude reconsideration of [McMillan]. (Apprendi, 120 SCt at 2361, fn 13.)

Moreover, both the majority and concurring opinions suggested that a prior conviction which triggers increased punishment should be considered an element of the charge and that Almendarez-Torres is incorrect in this regard. Majority opinion: “Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today ….” [Emphasis added.] (Apprendi, 120 SCt at 2362, majority opinion.)

Concurring opinion: “[O]ne of the chief errors of Almendarez-Torres–an error to which I succumbed–was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender’s sentence. [Citation.] For the reasons I have given, it should be clear that this approach just defines away the real issue. What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishment–for establishing or increasing the prosecution’s entitlement–it is an element. (To put the point differently, I am aware of no historical basis for treating as a nonelement a fact that by law sets or increases punishment.) When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute. Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime.” (Apprendi, 120 SCt at 2371 [Thomas, J. concurring.]

Additionally, an argument may still be available regarding the right to trial by jury as to prior convictions based on McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411] in cases involving substantial enhancement of punishment such as Three Strikes cases. In such cases it is often not the conviction of the principal offense but the finding of the prior convictions that predicates extreme punishment. (For example, in California, the punishment in Three Strikes cases is 25 years to life–the same sentence given for first degree murder without special circumstances.) Hence, the rationale of McMillan should apply since the Three Strikes law has become “the tail that wags the dog of the substantive offense.” (McMillan, 477 US at 88; see also FORECITE PG VII(C)(32)(2); Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2365] [“tail wagging the dog” applies to sentencing factor which increases the term from 10 to 20 years].) Simply stated, it is irrational to provide a jury trial for the substantive offense–which alone might only expose the defendant to a few years in prison, if that–and deny the right as to the prior convictions which, if proven, will imprison the defendant for the rest of his life.

So far the California courts have refused to hold that Apprendi applies to prior convictions used as sentencing enhancements. (See People v. Sengpadychith (2001) 26 C4th 316 [109 CR2d 851]; see also People v. Epps (2001) 25 C4th 19, 28 [104 CR2d 572]; People v. Thomas (2001) 91 CA4th 212 [110 CR2d 571] [no aspect of a prior, other than where it is an element (such as ex-felon in possession of a firearm), triggers a constitutional right to trial by jury].) However, this result is questionable in light of light of the collective views of the majority of justices in Apprendi. (See Sengpadychith, 26 C4th 332, concurring opinion of Brown, J.) Furthermore, the view that McMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411] ultimately must fall is further supported by the persuasive opinion of the New Jersey Supreme Court in State v. Johnson (2001) 766 A2d 1126, which involved an enhancement increasing the defendant’s mandatory minimum sentence.

Drawing on the views of a collective majority of the United States Supreme Court Justices expressed in separate opinions, the New Jersey court suggested “that the continuing vitality of McMillan itself may be in question….[B]oth the principal concurrence and dissent in Apprendi…construed the majority opinion as mandating reversal of McMillan and invalidation of the mandatory minimum statutes in the mold of the Pennsylvania law. [Citations.]” (Johnson, 766 A2d at 1136-37.)

“The [Apprendi] majority noted specifically that its reasoning did not necessarily conflict with the narrow holding [ ] of McMillan…, because the statute in McMillan did not increase the overall maximum prison term, [citation]….However an undeniable tension, explicitly recognized in Justice O’Connors dissent, [citation] exists between the formal distinctions drawn between the cases and the language of the Apprendi majority indicating that ‘the relevant inquiry is not one of form, but of effect – does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’ [Citation.] Recognizing that tension, the majority made explicit its reservations about the future application of McMillan, although it specifically avoided reconsideration of McMillan’s holding….” (Johnson, 766 A2d at 1134; see Apprendi, 530 US 487, fn. 13 [147 LEd2d 435; 120 Sct 2348].)

As the Johnson court noted, Justice Thomas’s concurrence evinced no such reserve. (Johnson, 766 A2d at 1135; Apprendi, 530 US at 521.)

In sum, “[t]he rationale of Apprendi – as well as the express views of a majority of the justices – effectively eviscerates the holding in McMillan….” (People v. Sengpadychith (2001) 26 C4th 316, 332 [109 CR2d 851], Brown, J., concurring.)

[See Brief Bank # B-852 for additional briefing on the applicability of Apprendi to Kelii.]

4. Applicability Of Double Jeopardy To Sentencing Factors. The rationale of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] directly contradicts People v. Hernandez (98) 19 C4th 835 [80 CR2d 754] which held that federal double jeopardy principles do not apply to sentencing determinations. If a sentencing factor is an element to which the federal constitutional rights of due process and trial by jury apply, then double jeopardy principles should apply as well.

Additionally, since Apprendi suggests that there is no logical distinction between recidivist and non-recidivist sentencing factors (see FORECITE PG VII(C)(32)(3)), Apprendi provides a basis for challenging Monge v. California (98) 524 US 721 [141 LEd2d 615; 118 SCt 2246] and People v. Monge (97) 16 C4th 826 [66 CR2d 853], which held that double jeopardy principles do not apply to prior convictions which increase the defendant’s sentence.

5. Apprendi: Additional Issues. See “An Apprendi Primer: On The Virtues Of A ‘Doubting Thomas’,” The Champion, NACDL, October 2000, pp. 18-71.

6. Constitutional Argument That Apprendi Applies To The Intent/Objective Requirement Of PC 654 / Jury Determination Of Sentencing Factors. In order to avoid the multiple sentencing prohibition of PC 654, the sentencing court must determine whether there was a separate criminal intent or objective for each of the multiple offenses. In People v. Cleveland (2001) 87 CA4th 263, 270-71 [104 CR2d 641] the defendant argued that Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] requires that the jury make this determination beyond a reasonable doubt. The argument was rejected in a 2-1 opinion but the constitutional argument remains viable for use in the California Supreme Court or on federal habeas.

7. Whether Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or Five Year Enhancement.

ALERT: But see People v. Bowden (2002) 102 CA4th 387 [declining to follow Tighe [U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187] majority]; see also People v. Lee (2003) 111 CA4th 1310 [procedural safeguards provided in juvenile adjudications are sufficient to allow such adjudications to be used as sentencing strikes]; People v. Superior Court (Andrades) (2003) 113 CA4th 817 [prior juvenile adjudication may constitutionally be used as a strike even though there is no right to a jury trial in juvenile proceedings].

U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187 held that a juvenile prior could not be used to enhance a sentence because the juvenile was not afforded the constitutional right to a full and fair trial by jury. It has been suggested that the implication of Tighe is simply that the jury must find beyond a reasonable doubt that the defendant suffered the prior conviction. (See California Criminal Defense Practice Reporter, November 2001, p. 555, Matthew Bender [CCDPR].) However, this analysis may be selling the impact of Tighe short.

Tighe held that the prior conviction exception to Apprendi‘s general rule [i.e., “any fact that increases the penalty … must be submitted to a jury”] is limited to prior convictions obtained through proceedings “that included the right to a jury trial…” (United States v. Tighe, supra, 266 F3d at 1194.) Tighe arrived at this holding through an analysis of the Supreme Court’s decisions in Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], Jones v. United States (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215], and Almendarez-Torres (98) 523 US 224 [140 LEd2d 350; 118 SCt 1219]. (U.S. v. Tighe, supra, 266 F3d at 1192-1194.)

Tighe did not explicitly state the function of the jury–i.e., whether the jury simply determines that a prior juvenile adjudication is true (as CCDPR suggests) or whether the jury determines that the defendant committed the conduct adjudicated in the prior juvenile adjudication. However, the logic of Tighe favors the latter.

Tighe reasoned that the prior conviction exception to Apprendi is based on the assumption that the “‘prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.’ [Citation to Jones v. United States (99) 526 US at 249].]” (Tighe, 266 F3d at 1193.) That is why Tighe held that juvenile priors don’t count. When the Government’s current accusatory pleading charges a prior conviction as a “sentencing factor” to seek an increase in sentencing range beyond what would otherwise be the maximum for the charged offense, and the charged prior conviction is a juvenile prior which didn’t at that time offer all of the basic constitutional trial rights, the premise of Apprendi is never satisfied: The proceeding in which the prior conviction was suffered didn’t provide the basic constitutional trial rights; and, the Government doesn’t want to provide them in the current case because it is charging the prior as a statutory “sentencing factor.”

Under those circumstances, Tighe holds, the juvenile prior cannot constitutionally be used to augment the current sentence. The Government might have a way around that, if it wanted to offer all of the constitutional trial rights to the current trial on the prior conviction allegation. However, that would raise potential speedy trial and double-jeopardy type concerns, as recognized in People v. Guerrero (88) 44 C3d 343 [243 CR 688].

In sum, it should be argued that Tighe precludes the use of any prior for which a full and fair trial by jury was omitted. (But see People v. Bowden (2002) 102 CA4th 387 [125 CR2d 513] [declining to follow Tighe [U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187] majority]; see also Boyd v. Newland (9th Cir. 2004) 393 F3d 1008, 1016-17 [discussing California and federal cases disagreeing with Tighe].)

[Thank you to Stephen M. Lathrop and S. Michelle May for contributing to the above analysis.]

8. Applicability Of Constitutional Rights To Sentencing Decisions — Apprendi: Mandatory Minimums. Apprendi is not applicable to a sentencing factor which subjects the defendant to a minimum sentence. (Harris v. U.S. (2002) 536 US 545 [153 LEd2d 524; 122 SCt 2406].) Read together, MacMillan v. Pennsylvania (86) 477 US 79 [91 LEd2d 67; 106 SCt 2411], and Apprendi (Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]) mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of constitutional analysis. However, within the range authorized by the jury=s verdict, it is constitutional to require defendants to serve minimum terms after judges make certain factual finding

NOTE: Potential Expansion Of Apprendi Reasoning. Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] was also careful to distinguish between recidivist and non-recidivist sentencing factors to avoid any direct conflict withAlmendarez-Torres v. U.S. (98) 523 US 224 [140 LEd2d 350; 118 SCt 1219] which held that federal constitutional guarantees do not apply to prior convictions.

However, Apprendi suggested that both McMillan v. Pennsylvania (86) 477 US 79, 85 [91 LEd2d 67; 106 SCt 2411] and Almendarez-Torres may be subject to challenge. (See FORECITE PG VII(C)(32)(2); see also Blakely v. Washington(2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].) [See Brief Bank # B-786 and # B-852 for additional briefing on Jones and Apprendi.]

9. Applicability Of Constitutional Rights To Sentencing Decisions. See People v. Black (2005) 35 C4th 1238.

10. Apprendi/Ring/Blakely Update.

Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]. Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] held that the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) apply to any non-recidivist sentencing enhancement which increases the defendant’s sentencing exposure. These constitutional rights are violated by imposition of a sentencing enhancement which significantly raises the sentencing range to which the defendant is exposed without requiring the necessary elements of the enhancement to be found beyond a reasonable doubt by a jury.

Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]. Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] applied the rationale of Apprendi to require that the factual findings necessary for death eligibility be determined by the jury.

Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]. The issue in Blakely was what was the statutory maximum penalty for Apprendi purposes? The court concluded that the “statutory maximum for Apprendipurposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely (124 SCt at 2537.) Since the judge had relied on a fact not found by the jury or admitted by the defendant, the sentence in Blakely was invalid. (124 SCt at 2538.)

PG VII(C)(33) Federal Constitutional Rights: Interference With Attorney-Client Relationship As Violation Of Federal Constitution.

“Although the attorney-client privilege has been termed merely a rule of evidence and not a constitutional right, government interference with the attorney-client relationship may implicate Sixth Amendment rights.” (Manley v. State(NV 1999) 979 P2d 703, 707; see also Morrow v. Superior Court (94) 30 CA4th 1252 [36 CR2d 210].)

PG VII(C)(34) Substantive Federal Constitutional Issues: Impairment Of Right To Exercise Peremptory Challenges As Federal Constitutional Violation.

“It has been said that [the right to peremptory challenges] is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the legislature….The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury.” (People v. Diaz(51) 105 CA2d 690, 696 [234 P2d 300] cited with approval in People v. Bittaker (89) 48 C3d 1046, 1088 [259 CR 630]; see also McDonough Power Equip. v. Greenwood (84) 464 US 548, 554, [78 LEd2d 663; 104 SCt 845] [truthful answers by prospective jurors on voir dire are necessary to “assist parties in exercising their peremptory challenges” and thus protects the defendant’s right to a fair trial by jury].

However, in Ross v. Oklahoma (88) 487 US 81, 88 [101 LEd2d 80; 108 SCt 2273] the court held that erroneous denial of a challenge for cause that required defense counsel to use a peremptory challenge did not violate the Sixth Amendment. The court concluded that peremptory challenges are a creature of statute, not required by the constitution and “[a]s such the ‘right’ to peremptory challenges is ‘denied or impaired’ only if the defendant does not receive that which state law provides.” (Id. at 89; see also U.S. v. Martinez-Salazar (2000) 528 US 304 [145 LEd2d 792; 120 SCt 774].)

Nevertheless, Ross should not be an impediment to a Fifth Amendment challenge to wrongful denial or impairment of peremptory challenges based on the arbitrary denial of a state created right. “[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protecting the Fourteenth Amendment against arbitrary deprivation by a state.” [Citations.] (Vansickel v. White (9th Cir. 1999) 166 F3d 953.)

As to the showing of prejudice, it has been held that denial of a peremptory challenge requires automatic reversal in direct appeal cases in which the defendant has timely objected in the trial court regarding the erroneous limitation of his peremptory challenge. (See U.S. v. Annigoni (9th Cir. 1996) 96 F3d 1132; State v. Short (SC 1999) 511 SE2d 358 [333 SC 473] [no prejudice showing required because there was no way to determine with any degree of certainty whether the defendant’s right to a fair trial by an impartial jury had been abridged]; see also Batson v. Kentucky (86) 476 US 79, 91 [90 LEd2d 69; 106 SCt 1712]; but see U.S. v. Martinez-Salazar (2000) 528 US 304 [145 LEd2d 792; 120 SCt 774].) [See Brief Bank # B-825 for additional briefing on this issue.]

PG VII(C)(35) Substantive Federal Constitutional Issues: Public Trials.

(See English v. Artuz (2nd Cir. 1998) 164 F3d 105 [trial court violated Waller v. Georgia (84) 467 US 39 [81 LEd2d 31; 104 SCt 2210], by closing courtroom to all spectators, including defendant’s family, during the testimony of a prosecution witness].)

[See Brief Bank # B-843 for additional briefing on this issue.]

PG VII(C)(36) Privilege Against Self-Incrimination.

The federal constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” (5th Amendment.) This prohibition is applicable to both the federal government and the states. (See Malloy v. Hogan (64) 378 US 1 [12 LEd2d 653; 84 SCt 1489].) This provision, as well as the due process clauses of the federal constitution (5th and 14th Amendments), are implicated by procedures and/or jury instructions (or the lack of jury instruction) which permit or encourage the jury to rely on the defendant’s silence. (Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229]; Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; U.S. v. Olvera (9th Cir. 1994) 30 F3d 1195; Brown v. State (GA 1993) 426 SE2d 559 [requiring a defendant to give a handwriting exemplar violated the defendant’s privilege against self-incrimination]; People v. Wallace (IL 1991) 568 NE2d 1332 [requiring co-defendant to stand in court, before eyewitness to crime had identified either defendant or co-defendant as connected to the crime, was unduly suggestive and undermined probative value of the witness’s identification].)

These rights are also implicated by procedures and/or jury instructions which permit or encourage the jury to rely on evidence which was obtained in violation of the defendant’s privilege against self-incrimination. “Compelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory. [Citation.] It is the Fifth Amendment’s protection against the prosecutor’s use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case.” (U.S. v. Hubbell (2000) 530 US 27 [147 LEd2d 24; 120 SCt 2037, 2044].)

(See also FORECITE F 2.26 n3.)

Violation Of Fifth Amendment: Implied Comment Improper. Griffin error is not limited to express comments on a defendant’s failure to testify. (In re Dalton DEPUBLISHED (2002) 98 CA4th 958, 961-63 [120 CR2d 266].) A mere suggestion that the jury may view a defendant’s silence as evidence of guilt is sufficient. (See U.S. v. Robinson (88) 485 US 25, 32 [99 LEd2d 23; 108 SCt 864].) As noted by People v. Medina (95) 11 C4th 694, 755 [47 CR2d 165],”comments, either directly or indirectly, upon defendant’s failure to testify in his defense” constitute Griffin error. In fact, even simple undue emphasis on the willingness of a prosecution witness to testify may constitute an implied comment on the defendant’s failure to testify. (See People v. Guzman (2000) 80 CA4th 1282 [92 CR2d 87].) Likewise, when a defendant has made it clear that he or she does not wish to testify, it is improper for the court to “put [him or her] on the stand to claim the 5th Amendment in the presence of the jury….” (People v. Lopez (99) 71 CA4th 1550, 1554 [84 CR2d 655]; see also People v. Mincey (92) 2 C4th 408, 440-42 [6 CR2d 822].)

It is equally repugnant to the protections afforded by the 5th Amendment to require a defendant to state, in the presence of the jury, whether he or she plans to testify. Public inquiry into these intentions places the defendant in a quandary: refuse to do so and permit the jury to draw adverse inferences or consent and relinquish a constitutional right. (See State v. Gray (MO 1973) 503 SW2d 457, 462 [judge’s question to defendant in jury’s presence about his intent to testify focused attention on the fact that the defendant was not going to testify and “transgressed … defendant’s constitutional right against self-incrimination.”].)

RESEARCH NOTE: Violation of federal constitutional rule (Griffin v California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093, supp sec. 10.

PG VII(C)(37) Whenever Possible, Defense Counsel Should Categorize An Evidentiary Error As Being One Of Federal Constitutional Stature.

See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.

PG VII(C)(38) Absence Of Defendant: Structural Error -– Proceeding Regarding Counsel’s Conflict Or Ineffectiveness.

When counsel for an accused has a conflict of interest the integrity of the adversary system is cast into doubt because counsel cannot “play [] the role necessary to ensure that the trial is fair.” (Strickland v. Washington (84) 466 US 668, 685 [80 LEd2d 674; 104 SCt 2052]; but see Campbell v. Rice (9th Cir. 2005) 408 F3d 1166.) Such a conflict may be created by any number of circumstances such as counsel’s representation of co-defendants or witnesses. (See generally Mickens v. Taylor (2002) 535 US 162 [122 SCt 1237, 1244; 152 LEd2d 291].) Or, the conflict may be created by counsel’s ineffectiveness at trial which may place counsel’s interests at odds with those of the defendant.

Accordingly, the due process rights of the defendant are violated by his or her exclusion from any hearing at which the conflict is discussed. (Kentucky v. Stincer (87) 482 US 735, 745 [96 LEd2d 631; 107 SCt 2658; Campbell v. Rice, 302 F3d at 899.)

The absence of anyone to represent the defendant’s interests at such a hearing should be considered structural error. The gauge of whether an error is structural is whether the error affected the trial mechanism such that the trial did not “`reliably serve its function as a vehicle for determination of guilt or innocence. . . .'” (Arizona v. Fulminante (91) 499 US 279, 310 [113 LEd2d 302, 331; 111 SCt 1246].) When the accused’s interests have not been represented and there has been inadequate inquiry into the nature and extent of the potential conflict, it necessarily follows that the impact of the error cannot be evaluated on the record and therefore, the error defies analysis by harmless error standards.

Thus, exclusion of the defendant from a conflict hearing “amounts to structural error” if the defendant would have been able to “influence the process.” (See Hegler v. Borg (9th Cir. 1995) 50 F3d 1472, 1476-77 [holding that the”determinative factor: as to whether the defendant’s absence constituted a structural error was whether the defendant’s ability to “influence the process was negligible”]; but see Campbell v. Rice (9th Cir. 2005) 408 F3d 1166.) In addition, the erroneous exclusion of the defendant must, “like the denial of an impartial judge or the assistance of counsel, affect the trial from beginning to end.” (Rice v. Wood (9th Cir. 1996) 77 F3d 1138, 1141.)

PG VII(C)(38.1) Waiver Of Conflict.

(See Lewis v. Mayle (9th Cir. 2004) 391 F3d 989 [waiver of conflict re: counsel is insufficient where there is no evidence the defendant understood the consequences: the defendant did not seek outside counsel’s advice and had a “cursory discussion” with the trial judge].)

(See also FORECITE PG VI(A)(1.18).)

PG VII(C)(39) Due Process Fair Opportunity To Litigate Trial Motions.

In Reece v. Georgia (55) 350 US 85, 89 [100 LEd 77; 76 SCt 167] the United States Supreme Court held that “the right to object to a grand jury presupposed an opportunity to exercise that right.” In Holt v. Virginia (65) 381 US 131, 136 [14 LEd2d 290; 85 SCt 1375], the United States Supreme Court concluded that “[t]he right to be heard must necessarily embody a right to file motions and pleadings essential to present claims and raise relevant issues.” Implicit within these decisions is the right to an evidentiary hearing to resolve disputed material issues of fact. The right to object and the right to file motions would be useless if the accused is arbitrarily precluded from introducing evidence in support of those motions.

Due process guarantees the accused the right to access to the courts and the right to a meaningful opportunity to be heard. (See e.g., In re William F. (74) 11 C3d 249, 255 [113 CR 170] [due process requires fundamental fairness in the fact finding process]; Payne v. Superior Court (76) 17 C3d 908, 914 [132 CR 405]; see also People v. Braxton (2002) 103 CA4th 471 [126 CR2d 699] [“justice” requires remand where defendant improperly denied an opportunity to make motion for new trial]; see also People v. Armstead (2002) 102 CA4th 784, 793-94 [125 CR2d 651] [due process is violated if the trial court expands the scope of the evidence in response to a jury inquiry during deliberations].)

Moreover, the federal constitution (6th and 14th Amendments) gives the defense the right to compel the attendance of witnesses and confront the prosecution witnesses. (See Chambers v. Mississippi (73) 410 US 284, 294 [35 LEd2d 297; 93 SCt 1038]; Webb v. Texas (72) 409 US 95 [34 LEd2d 330; 93 SCt 351]; Washington v. Texas (67) 388 US 14, 17-19 [18 LEd2d 1019; 87 SCt 1920].) The right to call witnesses is expressly guaranteed under the California Constitution. (See People v. Chavez (80) 26 C3d 334, 353 [161 CR 762].) These fundamental constitutional rights to be heard and to call witnesses apply to motion hearings as well as to the jury trial itself. (See Holt v. Virginia, supra, 381 US 131, 136;Bell v. Burson (71) 402 US 535, 541-42 [29 LEd2d 90; 91 SCt 1586].)

In short, both the California Constitution and federal Constitution guarantee the defendant a right to his day in court (In re Oliver (48) 333 US 257, 273 [92 LEd2d 682; 68 SCt 499]), free from arbitrary adjudicative procedures. (Truax v. Corrigan (21) 257 US 312, 332 [66 LEd2d 254; 42 SCt 124] [due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry]; Powell v. Alabama (32) 287 US 45 [77 LEd 158; 53 SCt 55] [the opportunity to be heard is one of the immutable principles of justice which inhere in the very idea of free government and is a central component of procedural due process, see also People v. Ramirez (79) 25 C3d 260, 268 [158 CR 316] [California Due Process Clause protects against arbitrary adjudications].)

PG VII(C)(40) Substantial Federal Constitutional Rights: Argument On Summation To Jury.

(See Herring v. New York (75) 422 US 853 [45 LEd2d 593; 95 SCt 2550]; see also Gentry v. Roe (9th Cir. 2003) 320 F3d 891 [defendant received ineffective assistance where counsel’s closing argument ignored evidence favorable to defendant and highlighted evidence unfavorable to him].)

PG VII(C)(40.1) Right To Open-Minded Court During Oral Argument On Appeal.

(See People v. Pena (2004) 32 C4th 389 [based on supervisory powers not federal constitution].)

PG VII(C)(41) Equal Protection: Liberty Interest.

“… [P]ersonal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (People v. Olivas (76) 17 C3d 236, 250-251; see also People v. Jacobs (84) 157 CA3d 797, 800-801 [following Olivas and applying strict scrutiny to an equal protection challenge to a prior-prison-term enhancement statute]; People v. Gonzalez (78) 81 CA3d 274, 277 [citing Olivas for the proposition that “[c]lassifications which deal with restraints upon personal liberty are subject to the strict scrutiny test applicable to equal protection of fundamental interests”]; Pederson v. Superior Court (2003) 105 CA4th 931 [PC 1367.1 deprives misdemeanor defendants suspected of being incompetent to stand trial of equal protection and is unconstitutional]; but see People v. Wilkinson (2004) 33 C4th 821, 837-38 [Olivas should be read narrowly].)

[See generally People v. Rhodes (2005) 126 CA4th 1374 re: equal protection under the 14th Amendment and Article 1 section 7 of the California Constitution.]

PG VII(C)(42) Right To “Face-To-Face“ Confrontation: Finding As To Necessity Required Before Using Procedures To Avoid Direct Confrontation Between Victim And Defendant.

The United States Supreme Court has permitted procedures to avoid direct confrontation between the victim and the defendant but only on a showing of necessity. (Maryland v. Craig (90) 497 US 836 [111 LEd2d 66; 110 SCt 3157]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].) In People v. Murphy (2003) 107 CA4th 1150 [132 CR2d 688] there was no evidentiary hearing about why the victim was upset, whether it was seeing the defendant or the victim’s emotional fragility or something else. A representation by the prosecution is not enough; there must be actual evidence and findings based on that evidence by the court.

RESEARCH NOTE: Feature: Wrestling with Crawford v. Washington and the New Constitutional Law of Confrontation, 78 Fla. Bar J. 26 (2004).

PG VII(C)(43) Right To Confrontation: Hearsay Testimony—Crawford Update:

Overview: FORECITE will be tracking specific developments with Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] in future updates.

Crawford could impact most issues related to testimonial hearsay. (See Davis v. Washington (2006) 547 US 813 [165 LEd2d 224; 126 SCt 2266] [defining “testimonial”].)

Among the hearsay/confrontation issues in FORECITE which Crawford could impact are the following:

Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation (PG VII(C)(14)).
Right To Present A Defense: Guaranteed By Constitutional Rights To Compulsory Process, Confrontation, Due Process And Trial By Jury (PG VII(C)(15)).
Right To “Face-To-Face” Confrontation: Finding As To Necessity Required Before Using Procedures To Avoid Direct Confrontation Between Victim And Defendant (PG VII(C)(42)).
Failure Of Prosecution To Have Informant Witness Available (F 2.11e).
Witness Bias: Test For Violation Of Sixth Amendment Right To Confrontation (F 2.20 n6).
Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements (F 2.20f).
Inculpatory Statement Of One Defendant In Multi-Defendant Trial / Applicability Of Aranda/Bruton To Declarations Against Penal Interest (F 2.70g).
Adoptive Admissions: Applicability To Group Interview Situation (F 2.71.5 n6).
Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs (F 2.92j).
Defendant’s Right To An Instruction That The Jury Is Entitled To Disregard Certain Evidence When A Sufficient Foundation Has Not Been Shown (F 2.001a).
Presence Of Accused At Jury View (F 2.004 n5).
When Prosecution Loses Or Destroys Evidence: Bad Faith Destruction Of Known Exculpatory Evidence (F 2.014 n1).
Sexually Violent Predator: Use Of Hearsay To Prove Details Underlying Prior Sex Offenses (F 4.19 n15).
Co-Conspirators: Hearsay Exception (F 6.24 n1).
Gangs: Expert’s Testimony Must Be Based On Personal Knowledge Or Actual Evidence (F 6.50 n10).
Use Of Documentary Evidence To Prove Gang Offense (F 6.50 n16).
Prior Statement Of Deceased Declarant In Gang Case (F 6.50d).
Sexual Offenses Against Minors: Defense Counsel Should Be Vigilant In Protecting The Confrontation Clause Against The Constant Erosion Which Is Occurring In Child Molest Cases (F 10.41 n14).
Partition Ratios: Evidence Admissible As To Urine Test (F 12.61 n6).
Petty Theft With Prior Conviction–Prior Admitted: Prejudicial Reference To Prior (PC 666) (F 14.41a).
Bifurcation, Jury Waivers And Jeopardy: Proof Of Prior By Hearsay (EA II(C)(3)).
Special Issues Surrounding Enhancement Priors: Guerrero Evidentiary Issues (EA V(E)(6)).

The most vulnerable hearsay exceptions after Crawford will be the recently enacted exceptions relying on Ohio v. Roberts to spell out “indicia of reliability.” In California these include:

1. The exception for deceased declarants regarding gang-related crimes EC 1231.

2. The exception for minors describing acts of child abuse, EC 1360.

3. The exception for statements describing the infliction of physical injury (the “C.J” exception), EC 1370.

4. The exception for elderly victims of abuse, EC 1380.

ong the hearsay/confrontation issues in FORECITE which Crawford could impact are the following:The exception for declarants whose unavailability was caused by the defendant, EC 1350, may be saved by the prosecutorial argument that it is based upon a principle of forfeiture, upon which a similar exception in the Federal Rules of Evidence is based. (F.R. Evid., Rule 804(b)(6).)

Summary Of Crawford Decision: Crawford held as follows: “Where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” For witnesses who do not testify at trial, the prosecutor can’t present “testimonial” hearsay evidence from that declarant unless that declarant is both unavailable AND there was an opportunity for cross-examination. Hence, as to testimonial hearsay, Crawford overruled the previous rule, predicated on Ohio v. Roberts (80) 448 US 56 [65 LEd2d 597; 106 SCt 1121], that the 6th Amendment is satisfied if the hearsay was “reliable.”

Furthermore, it appears that Roberts was also overruled as to other forms of hearsay as well. (See People v. Cage (2007) [40 C4th 965, 981 fn. 10] [U.S. Supreme Court “has made clear that Roberts . . . and its progeny are overruled for all purposes. . .”] see also Davis v. Washington (2006) 547 US 813 [165 LEd2d 224; 126 SCt 2266, 2275, fn. 4]; compare People v. Smith (2005) 135 CA4th 914, 924.)

What Is Testimonial Under Crawford? A key factor which will affect the scope of Crawford is the meaning of “testimonial hearsay.” In Crawford, the hearsay was obtained as a result of police questioning, so that is clearly hearsay. However, beyond that, the Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial’ … [which] will cause interim uncertainty.” (Crawford, 124 SCt 1374 and n. 10; see People v. Sisavath (2004) 118 CA4th 1396 [a statement is testimonial if the statement was given under circumstances in which its use in a prosecution is reasonably foreseeable by an objective observer]; but see People v. Morgan (2005) 125 CA4th 935 [informal statements made in an unstructured setting do not resemble police interrogation and are not testimonial].)

The Crawford court emphasized that the term “testimonial” applies “at a minimum” to prior testimony and to police interrogations. (Crawford v. Washington (2004) 541 US 36, 68 [158 LEd2d 177; 124 SCt 1354].) The court left undecided what other “modern practices” produce testimonial statements. (Ibid.)

Testimonial Defined. See Davis v. Washington (2006)547 US 813 [165 LEd2d 224; 126 SCt 2266] [statements obtained to deal with an ongoing emergency are not “testimonial,” but are testimonial to “establish or prove past events relevant to later criminal prosecution”].

Forfeiture By Wrongdoing. Giles v. California (2008) 554 US 353 [171 LEd2d 488; 128 SCt 2678]: In Crawford (541 US 36), the U.S. Supreme Court held that admission of testimonial hearsay violates the confrontation clause unless there was a previous opportunity to cross-examine. However, California’s forfeiture by wrongdoing rule said that making the witness unavailable was enough to trigger this exception. The U.S.S.C. disagreed. The prosecutor has to show that the defendant engaged in conduct designed to prevent the witness from testifying, not just conduct that resulted in the witness not testifying. Also, Crawford applies against the prosecution but not the defense.

EC 403 Alert. Because the question of whether the defendant engaged in conduct designed to prevent the witness from testifying is preliminary facts necessary for admissibility under Giles, the jurors must make the ultimate finding as to these preliminary facts pursuant to EC 403. (See e.g., FORECITE F 319 Inst 1 [on request per EC 403(c) jury must be instructed to disregard evidence based on a preliminary fact unless they first find the preliminary fact by a preponderance of evidence].)

Applicability To 911 Calls. See Davis v. Washington (2006) 547 US 813 [165 LEd2d 224; 126 SCt 2266] [once the 911 operator obtains the information necessary to deal with the ongoing emergency, the conversation may become “testimonial”].

Hearsay Declaration In Support Of Restraint Order. See People v. Pantoja (2004) 122 CA4th 1 [declaration of victim in prior application for restraining order was inadmissible hearsay per EC 1370; court suggested that Crawford would apply].

Laboratory Report At Probation Violation Hearing. See People v. Johnson (2004) 121 CA4th 1409 [Crawford not applicable because probation revocations are not criminal prosecutions to which the 6th Amendment applies].

Opportunity To Cross-Examine. See People v. Ochoa REV GTD/REV DIS’D (2004) 121 CA4th 1551 [Crawford not applicable because defendant had opportunity to cross-examine the victim at the preliminary hearing].

Tape Recorded Statements Of Available Witnesses—Crawford Applies. People v. Lee REV GTD/REV DIS’D (2005) 124 CA4th 483 [court erred in light of Crawford by admitting tape recordings of witness interviews conducted by police of witnesses who were available.]

Crawford Not Applicable To Diary Entries. See Parle v. Runnels (9th Cir. 2004) 387 F3d 1030.

Retroactivity. See Whorton v. Bockting (2007) ____ US ____ [167 LEd2d 1; 127 SCt 1173] [Crawford is a “new rule of criminal procedure” and, thus, not retroactive to cases on collateral review].

RESEARCH NOTE: Feature: Wrestling with Crawford v. Washington and the New Constitutional Law of Confrontation, 78 Fla. Bar J. 26 (2004).

PG VII(C)(43.1) Hearsay May Violate Due Process In Addition To Confrontation.

The “Confrontation Clause is not the only bar to admissibility of hearsay statements at trial.” The “Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence.” ([NF] Michigan v. Bryant (2/28/2011, No. 09-150) ____ US ____ [179 LEd2d 93; 131 SCt 1143, 1162, fn 13], citing Montana v. Egelhoff (1996) 518 US 37, 53 [135 LEd2d 361; 116 SCt 2013] [‘[E]rroneous evidentiary rulings can, in combination, rise to the level of a due process violation’]; Dutton v. Evans (1970) 400 US 74, 96-97 [27 LEd2d 213; 91 SCt 210] (Harlan, J., concurring in result) [‘[T]he Fifth and Fourteenth Amendments’ commands that federal and state trials, respectively, must be conducted in accordance with due process of law’ is the ‘standard’ by which to ‘test federal and state rules of evidence’].”

PG VII(C)(44) Right To Fair And Open-Minded Judicial Rulings.

It is axiomatic that basic fairness requires a trial judge to have an open mind prior to the litigation of any substantial issue. (Bracy v. Gramley (97) 520 US 899, 904-05 [due process requires a fair trial before a judge without actual bias against the defendant or an interest in the outcome of his particular case]; see also Withrow v. Larkin (75) 421 US 35, 46 [due process requires a “fair trial in a fair tribunal,” before a judge with no actual bias against the defendant or interest in the outcome of his particular case]; Duncan v. Louisiana (68) 391 US 145, 156 [6th Amendment serves as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge”].)

Due process under the Fourteenth Amendment to the United States Constitution requires a fair and impartial trier of fact. (Tumey v. Ohio (72) 273 US 510, 522, 523; Irvin v. Dowd (61) 366 US 717, 722; In re Murchinson (55) 349 US 133, 136.) Not only must trial judges be fair and impartial, they must also “satisfy the appearance of justice.” (Offutt v. United States (54) 358 US 11, 14.)

These principles have been consistently embraced by the California Supreme Court. Above all else, a judge must remain impartial. (Cooper v. Superior Court (61) 55 C2d 291, 301.) Public confidence in the judiciary requires that judges be impartial. (People v. Thomas (72) 8 C3d 518, 520.) There should be no appearance of partiality. (See People v. Rhodes (74) 12 C3d 180, 185; see also Solberg v. Superior Court (77) 9 C3d 182, 193 fn. 10.) The Legislature embraced the constitutional right to a fair and impartial judge when it adopted Code of Civil Procedure sections 170 et seq.

“The right to exercise a peremptory challenge under Section 170.6 is a substantial right and an important part of California’s system of due process that promotes fair and impartial trials and competence in the judiciary. [Citation.] The courts must refrain from any tactic or maneuver that has the practical effect of diminishing this important right.” (Hemingway v. Superior Court (2004) 122 CA4th 1148; see also Stephens v. Superior Court (2002) 96 CA4th 54, 61.)