Brief Bank # B-778 (Re: FORECITE PG X(A)(1.3) [Rules For Determining Whether The Evidence Justifies an Instruction: Evidence Must Be Viewed In Favor Of The Instruction])
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable Francisco Briseno
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
C. Application Of The Law To The Facts
1. Legal Principles Underlying Review Of Instructional Error Claims
Appellant first restates two legal principles central to this case that, though long established, are sometimes overlooked.
First. In evaluating a claim of instructional error, a reviewing court must take the evidence in a light most favorable to the party claiming error, i.e., assume the jury might have believed all of the evidence affected by the error.
Our Supreme Court has repeatedly made this clear. (E.g., Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15.) This Court has recognized the same principle. (Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 489-490 [disappr’d o.g. in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580].) This standard is much different from the standard of review of an insufficiency of evidence claim, which is essentially the opposite; namely, that the evidence is taken in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) As our Supreme Court and this Court have made clear, one cannot be confused with the other.
Thus in instructional error cases, “We must assume . . . that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party. [Citations.] Our problem in the case at bench . . . [involves] not the sufficiency of the evidence, but rather the effect on the jury of an improper instruction.” (Williams, supra, 182 Cal.App.3d at pp. 489-490 [quoting Henderson, supra, 12 Cal.3d at p. 674].) Here, appellant claims only instructional error, and not insufficiency of evidence.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
APPELLANT’S REPLY BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable Francisco Briseno
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
Moreover, the People’s argument is in clear violation of the law established by our Supreme Court, this Court and other courts for reviewing claims of instructional error.
Our Supreme Court has repeatedly made clear that in reviewing claims of instructional error, the reviewing court must take the evidence in a light most favorable to the correct instruction, i.e., favorably to the party that sought an omitted instruction or against whom an erroneous instruction operated. (E.g., Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; O’Meara v. Swortfiguer (1923) 191 Cal. 12, 15; Williams v. Carl Karcher Enterprises (1986) 182 Cal.App.3d 479, 489-490 [disapr’d o.g. in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580]; Barber v. Rancho Mtge. & Invt. Co. (1994) 26 Cal.App.4th 1819, 1833; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 322.) Moreover, all doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. (People v. Ramirez (1990) 50 Cal.3d 1158, 1180; People v. Flannel (1979) 25 Cal.3d 668, 685; People v. Wilson (1967) 66 Cal.2d 749, 762-763.)
Appellant discussed these principles in his opening brief, supported by authority from the Supreme Court and this Court. (AOB 14-15.) The People cite no cases on this issue, and do not try to refute appellant’s dis- cussion or distinguish his cases. They simply make factual claims as if these principles—or appellant’s discussion—didn’t exist. The law requires otherwise.
