Brief Bank # B-787a (Re: FORECITE 3.02 n19 [Natural And Probable Consequences Must Not Be Based On Target Offense In The Abstract].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
___________________________________/
OPENING BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable H. Dennis Myers
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)
II. THE COURT’S INSTRUCTIONS WERE PREJUDICIALLY ERRONEOUS IN ALLOWING THE JURY TO CONSIDER WHETHER THE CRIME OF MURDER IN THE ABSTRACT IS A “NATURAL AND PROBABLE CONSEQUENCE” OF THE CRIME OF ASSAULT IN THE ABSTRACT, WHICH IS A LEGALLY INCORRECT FORMULATION OF THIS THEORY OF LIABILITY
A. Introduction
The trial court’s aiding and abetting instructions erroneously permitted the jury to make its “natural and probable consequences” determination based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of assault in the abstract. The error was especially prejudicial because the People’s expert testified homicide is a foreseeable consequence of an assault, and the defense case to the contrary rested solely on the specific circumstances of this case. The court’s error diverted the jury from a full consideration of those specific circumstances.
B. Discussion
Vicarious liability under the natural and probable consequences doctrine requires that the “act committed” be the natural and probable consequence of “any act [the defendant] knowingly aided and encouraged.” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; accord People v. Durham (1969) 70 Cal.2d 171, 181; People v. Luparello (1986) 187 Cal.App.3d 410, 441.) Since this is the finding the jury is required to make, the trial court must instruct the jury in accordance with this rule. Otherwise, there can be no assurance the jury has convicted the defendant on a proper legal theory.
“The determination of whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
However, the trial court instructed the jury as follows:
One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
In order to find the defendant guilty of the crime of murder as charged in Count I, you must be satisfied beyond a reasonable doubt that:
(1) The crime of assault was committed,
(2) The defendant aided and abetted such crime,
(3) A co-principal in such crime committed the crime of murder, and
(4) The crime of murder was a natural and probable consequence of the commission of the crime of assault.
(RT 1070-1071 [emphasis added].)
The trial court’s instruction spoke solely about whether the charged offense was the natural and probable consequence of another crime aided and abetted by appellant. The phrase of the instruction challenged here, the last one [numbered paragraph (4)], told the jury it was supposed to determine whether “the crime of murder” was a natural and probable consequence of “the crime of assault.” The instruction did not tell the jury to consider whether the perpetrator’s act of murder was a natural and probable consequence of the defendant’s act of battery—i.e., whether the “act committed” was the natural and probable consequence of the “act [the defendant] knowingly aided and abetted.” (Compare People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
A juror may have concluded from common use of language that the word “crime” in this instruction referred generically to the “crime” of assault, in the abstract, and not to the particular act constituting an assault.
The plain-English meaning of the court’s instructions would have pointed to that conclusion. The court referred in the instructions to “the crime of assault,” and “the crime of murder.” (RT 1072-1073.) The phrase “the crime” means there is only one crime, here, only one crime of assault or one crime of murder. That could only be one the crime of assault or murder that is made punishable by law (Pen. Code §§ 187, 245), taken in the abstract, rather than one specific murder. (See 1072:23, 1073:6, 1073:11, 1073:22, 1073:25.)
A closer analysis of the instruction yields the same result. The phrase “the crime of murder” in paragraph (4) comes immediately after the phrase “the crime of murder” in paragraph (3), and the one in paragraph (3) clearly does refer to the crime of murder in the abstract. Thus logically, the same phrase immediately after in the same sentence, in paragraph (4), would also do so. Noscitur a sociis. (Orloff v. Los Angeles Turf Club, Inc. (1951) 36 Cal.2d 734, 745.) Equally logically, the phrase “the crime of assault” in paragraph (4) comes in the same sentence as the phrase “the crime of assault” in paragraph (1); again, one would conclude they mean the same thing in both places. Moreover, the phrases “the crime of murder” and “the crime of assault” in paragraph (4) are phrased exactly the same way, leading to the conclusion they mean the same thing—the crime of murder in the abstract, therefore the crime of assault in the abstract.
Furthermore, if the court wanted to instruct the jury that it was to consider these criminal acts of murder and assault in this particular case, it had plenty of ways of saying so. It could, for example, have referred to “the act constituting the crime.” (RT 1069:25-26.) It didn’t.
The above is not merely appellant’s reading. It is also the reading given the trial court’s instruction, the 1992 revision of CALJIC No. 3.02, in People v. Mouton (1993) 15 Cal.App.4th 1313, 1320. In approving of the 1992 revision, Mouton held that the trial court was required to set forth the essential elements of the originally contemplated crime, and the jury was required to find those elements. Thus, Mouton held that the jury first had to find the existence of some crime as defined by statute—“the crime of assault”—before it could determine whether the charged crime was a “natural and probable consequence” of the originally intended crime. (Accord People v. Prettyman (Dec. 9, 1996) ___ Cal.4th ___ [96 Daily Journal D.A.R. 14698, 14702].)
In this case, the trial court didn’t even define the crime of assault by giving its essential elements, leaving it to the jury to figure out whether “[t]he crime of assault was committed” and then whether “the crime of murder” was a natural and probable consequence of “the crime of assault.” It wasn’t difficult to figure out whether “the crime of assault” was committed; obviously it was. But the ultimate issue was not supposed to be whether “the” crime of murder was a natural and probable consequence of “the” crime of assault. Rather, it was supposed to be whether this crime of murder was a natural and probable consequence of this crime of assault.
Moreover, an instruction that focuses on the specific acts constituting the target crime and charged offense properly conveys the essence of the “natural and probable consequences” doctrine, by informing the jury that if the perpetrator’s act is “a fresh and independent product of the mind of [the perpetrator]” (People v. Durham, supra, 70 Cal.2d at p. 183), then the defendant cannot be found guilty as an aider and abettor. By contrast, an instruction that can be interpreted to refer to offenses in the abstract does not give such guidance to the jury.
Even if the instruction were merely ambiguous, jurors could still have been confused. As is shown by People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, the trial court was required to direct the jury to consider whether the murder in this case was a natural and probable consequence of the particular act appellant aided and abetted. However, not once did the court’s instruction refer to a “criminal act” or an “act.”
The instructional problem was exacerbated by the People’s evidence and argument. The People put on a gang expert, who testified murder is often a consequence of an assault. (RT 773-774, 798-799.) Whether murder is a consequence of assault in other cases, however, doesn’t necessarily answer the question of whether it was a natural and probable consequence in this case. Similarly, the prosecutor argued that as a matter of “reality,” “murder is a natural and probable consequence of assault.” (RT 1046.) What may be “reality” in other cases, however, is not necessarily dispositive as to this one.
As a result, this instruction, as given in this case, was incorrect and created a substantial probability jurors would be misled into determining appellant’s criminal liability under the natural and probable consequences doctrine based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of assault in the abstract, and not, as is required, based on whether this crime of murder was a natural and probable consequence of this crime of assault.
The error falls under both state law and the Sixth and Fourteenth Amendments, because any juror who voted to convict appellant but did not find he was the shooter would have convicted him under a legally invalid theory based on “natural and probable consequences” as applied to crimes in the abstract. (See People v. Guiton (1992) 4 Cal.4th 1116, 1128-1129; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670; see generally Sullivan v. Louisiana (1993) 508 U.S. 275, 278-280 [without actual jury verdict on legally valid theory, there can be no conviction under Sixth and Fourteenth Amendments].) In this case, it is known that some of the jurors did not find appellant was the shooter, because the personal firearm use enhancement allegation resulted in deadlock and a mistrial (CT 346; RT 1095-1096), which means not all of the jurors found appellant was the shooter. Appellant may thus have been convicted under a legally invalid theory.
Furthermore, rational jurors could easily have found appellant guilty under the incorrect instructions, while they might have found him not guilty under correct ones. The evidence from the People’s gang expert and the prosecutor’s closing argument may have convinced jurors that in the abstract, murder is a natural and probable consequence of assault, and particularly of a gang assault.
However, jurors who focused on this gang assault may have thought differently because of the specific and unusual circumstances of this case, including (inter alia) the lack of evidence anyone anticipated a shooting, the evidence that appellant would not have known P was carrying a weapon, the unique factual context of the embarrassment to P by both the Crips and his fellow gang members, and the other particular facts. Appellant has discussed them at length ante, Part I(C)(3)(b), and incorporates that discussion by reference here.
As a result, the error was prejudicial. If appellant is to be convicted based on a finding by one or more jurors that he is liable under the “natural and probable consequences doctrine,” jurors must first be instructed in a manner that would ensure they have found what they are required to find.
Accordingly, the judgment should be reversed, and the cause remanded for a new trial.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
_________________________________/
REPLY BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable H. Dennis Myers
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)
II. THE COURT’S INSTRUCTIONS WERE PREJUDICIALLY ERRONEOUS IN ALLOWING THE JURY TO CONSIDER WHETHER THE CRIME OF MURDER IN THE ABSTRACT IS A “NATURAL AND PROBABLE CONSEQUENCE” OF THE CRIME OF ASSAULT IN THE ABSTRACT, WHICH IS A LEGALLY INCORRECT FORMULATION OF THIS THEORY OF LIABILITY [AOB, Part II, Pages 41-46]
The People’s contentions err in both of their major premises.
If the instruction given by the court was incorrect, as appellant contends, there can have been no waiver. The trial court is under a sua sponte obligation to instruct the jury correctly as to the elements of the charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) This comports with a Fourteenth Amendment requirement as well. (United States v. Mendoza (9th Cir. 1993) 11 F.3d 126, 128; Carella v. California (1989) 491 U.S. 263, 265 [109 S.Ct. 2419, 105 L.Ed.2d 218].) Errors in jury instructions affecting the substantial rights of the defendant are reviewable in any event. (Pen. Code, § 1259.)
If the court’s instructions permit the jury to convict the defendant of a charged offense based on conduct which would not constitute the charged offense as a matter of law, then the court has committed reversible error under both state law and the Fourteenth Amendment. (See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129; People v. Brady (1987) 190 Cal.App.3d 124, 138 [disapr’d o.g. in People v. Montoya (1994) 7 Cal.4th 1027, 1040]; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670.) That is appellant’s point of error. The trial court’s instructions were not “accurate” if they permitted this; they were legally erroneous.
A reviewing court does not speculate on whether it believes the jury might actually have misinterpreted instructions. Nor does a reviewing court demand evidence of what occurred during deliberations. Thus, appellant is not required to “indicate any juror actually misapplied the law.” (RB 22 [emphasis added].)
Instead, a legal standard is used to determine whether instructions were sufficiently subject to misinterpretation so as to render them erroneous. The legal test is whether there is a reasonable likelihood the jury understood and misapplied the instruction. (E.g., People v. Avena (1996) 13 Cal.4th 394, 417; Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [112 S.Ct. 475, 116 L.Ed.2d 385].) The issue of whether the “reasonable likelihood” legal standard is satisfied is one of law for this Court; appellant argues it is satisfied. But certainly, neither appellant nor this Court are obligated (or permitted) to speculate on what jurors might actually have been discussing.
The People seem to be claiming appellant’s point of error is that the trial court failed to define the elements of assault. (RB 24.) That is not appellant’s point of error; such an argument would be silly in this case. Any juror could and would readily conclude that everyone involved in beating the victim committed an assault. No definition of assault was needed.
Possibly, the People are confused by appellant’s citation of People v. Mouton (1993) 15 Cal.App.4th 1313, 1320, a case which did stand for the proposition that the elements of the target offense should be defined. But that is not why appellant cited Mouton. He cited that case at AOB 44 solely for the argument in which it appears in the AOB—that a reasonable juror could and likely would have construed the phrases “the crime of assault” and “the crime of murder” to refer to the crimes of assault and murder in the abstract, rather than to a specific act at issue in the case at bar.
The People also claim appellant’s argument makes no sense because “[i]f CALJIC No. 3.02 and the trial court had wanted to refer to crimes in the abstract, they would have used the indefinite article ‘a’—as in ‘a crime of murder’ or ‘a crime of assault.’” (RB 24.) That is the argument that makes no sense. If the phrase “a crime of murder” or “a crime of assault” had been used, that would raise the question for a juror: Which crime of murder? Which crime of assault? That would greatly confuse for jurors an area of the law that is difficult enough as it is.
By using the definite article “the,” the trial court (and the revised CALJIC No. 3.02) point to the existence of only one “crime of murder” or one “crime of assault.” The context of the instruction yields the same result, as appellant has argued. (AOB 43.) At the very least, there is a reasonable likelihood a jury would have construed it this way, and that is all that is required for error.
Finally, the People’s reliance on specific testimony favorable to them (RB 25) is contrary to the settled law that evidence is taken in a light favorable to the party against whom an instructional error was committed. (Henderson v. Harnischfeger Corp., supra; 12 Cal.3d at pp.673-674; Clement v. State Reclamation Board, supra, 35 Cal.2d at pp. 643-644; O’Meara v. Swortfiguer, supra, 191 Cal. at p. 15.)
