Brief Bank # B-923 (Re: F 2.22 n1 / F 2.22 n2 [Failure To Give CJ 2.22: Prejudicial Error].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA, B000000
Plaintiff and Respondent, (Los Angeles County
Superior Court
v. No. KA000000)
JOHN DOE,
Defendant and Appellant.
______________________________________/
APPELLANT’S OPENING BRIEF
On Appeal From the Judgment of the
Superior Court of the State of California
Los Angeles County
HONORABLE DAVID S. MILTON, JUDGE
SANDRA URIBE
State Bar No. 183369
Law Offices of Sandra Uribe
11664 National Blvd., PMB #400
Los Angeles, CA 90064
(310) 477-4669
Attorney for Appellant
JOHN DOE
By Appointment of the Court Under
The California Appellate Project’s Assisted Case System.
STATEMENT OF APPEALABILITY
This appeal is from a final judgment of conviction following jury trial, and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF THE CASE
An information charged appellant with three counts of terrorist threats (Pen. Code, § 422; counts I, II, and VIII); two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts III and VII); vandalism of religious property (Pen. Code, § 594.3, subd. (a); count IV); felony vandalism (Pen. Code, § 594, subd. (a); count V); resisting arrest (Pen. Code, § 148, subd. (a)(1); count VI); exhibiting a deadly weapon (Pen. Code, § 417, subd. (a)(1); count IX); and battery (Pen. Code, § 242; count X). (CT 70-75.) The information alleged that appellant personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) in the commission of the count VIII terrorist threat. (CT 74, 90.)
Jury trial began on April 13, 2000, at which time the court granted the prosecutor’s motion to dismiss counts V (felony vandalism) and X (battery). (CT 88.) After the presentation of the evidence, the court granted appellant’s motion to dismiss count III (Pen. Code, § 1118), while allowing a deadly weapon use allegation to be added to count II. (CT 90.) The jury acquitted appellant on count I, finding that the initial argument on November 16, 1999, did not amount to a terrorist threat. (CT 151.) The jury found appellant guilty of the remaining charges committed two days later: that he threatened one victim while armed with an axe, threatened and assaulted another with the axe, exhibited the axe in the presence of a third, vandalized the property and resisted arrest when the officer arrived. (CT 151-152.)
The court sentenced appellant to three years in prison consisting of the two-year mid term on count VIII plus an additional year for the weapon use enhancement, with the remaining sentences to run concurrently. (CT 171.) The court credited appellant with 273 days of presentence custody. (CT 169.)
Appellant filed a timely notice of appeal. (CT 113.)
STATEMENT OF FACTS
Prosecution’s Case
On November 16, 1999, Mr. L, a monk at the Wapta Buddhist Temple, was meditating when he heard a loud noise. (RT 69, 72-73.) When he went to the monks’ quarters to investigate, Mr. L saw appellant arguing with other monks. (RT 74.) Appellant confronted him when he tried to intervene. (RT 75.) Mr. L called the police and appellant was arrested. (RT 77.)
When he was released from jail two days later, appellant returned to the temple. (RT 181.) Mr. M, another monk at the temple, saw appellant start breaking windows. (RT 121-122.) He saw appellant swinging an axe while daring others to fight him. (RT 123.) The monk locked his door and kept watching through the window as appellant broke more windows. (RT 124-125.)
Ms. P, a nun at the temple, was in the laundry room when she heard the sound of breaking glass. (RT 132.) She went to investigate and saw appellant standing near the broken window holding an axe. (RT 133-134.) Fearfully, the nun ran to the kitchen and locked the door. (RT 135, 141.) She observed appellant break more windows. (RT 141.) Appellant then came to the kitchen window and yelled at her. (RT 142-143.) He proceeded to break the kitchen window. (RT 142.) Although there was a counter between the nun and the window, she ducked because she feared getting hit. (RT 143-144.)
Meanwhile, Mr. L arrived at the temple and saw the damage and appellant holding an axe. (RT 82-83.) Appellant walked toward Mr. L and began to threaten him. (RT 85.) The monk got into his car and drove away. (RT 86.) Appellant pursued him. (RT 88.) The monk called the police on his cell phone. (RT 88.)
Deputy Cariaga was on patrol when Mr. L flagged him down. (RT 151.) As Cariaga followed the monk to the temple compound, they saw appellant. (RT 152.) Appellant was yelling and seemed aggressive. (RT 153.) Appellant did not comply when the officer ordered him to stop. (RT 154.) Cariaga pepper-sprayed appellant and subsequently arrested him. (RT 156-157.)
Defense Case
Appellant had been the caretaker and handy-man at the Wapta temple for about three years. (RT 179.) He lived in a separate cabin on the premises. (RT 181-182.) On November 16, 1999, he was arrested after he got in an argument with some of the monks. Upon his release two days later, appellant returned to the temple. (RT 181.) During his absence, his cabin had been ransacked and all of his personal belongings thrown in a field. (RT 182.) Out of anger, appellant broke some windows and a garage door he had installed at the temple compound. (RT 185.) Appellant denied threatening or chasing anyone with an axe. (RT 186-187.) Appellant also denied seeing the nun in the kitchen when he broke the window there. (RT 188.)
I.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO
INSTRUCT THE JURY PURSUANT TO CALJIC
2.22 REGARDING WEIGHING CONFLICTING TESTIMONY.
The trial court instructed the jury pursuant to CALJIC No. 2.20 (believability of witnesses), 2.21.1 (discrepancies in testimony), and 2.27 (sufficiency of testimony of one witness). (RT 227-229; CT 107-109.) However, the trial court failed to give CALJIC No. 2.22 [Footnote 1], dealing with weighing conflicting testimony among witnesses. (CT 94-142.) The trial court was required to give CALJIC No. 2.22 sua sponte, and the failure to give this instruction was prejudicial error.
In People v. Rincon-Pineda (1975) 14 Cal.3d 864, the court considered an earlier version of CALJIC No. 2.22, which contained the instruction regarding how the jury could weigh conflicting testimony, but also included the instruction about the sufficiency of one witness. The court suggested that the latter instruction be made a separate instruction (now CALJIC No. 2.27). (Id. at p. 884.) The court also held that CALJIC No. 2.22, the instruction on weighing conflicting testimony, “should henceforth be given in every criminal case in which conflicting testimony has been presented.” (Ibid.)
Since there was conflicting testimony in the case at bar presented on whether appellant threatened anyone with an axe, it was error not to give CALJIC No. 2.22 sua sponte. Witness Ms. P stated that appellant threatened her and swung an axe at her while she was in the kitchen. (RT 142-143.) Appellant denied threatening the nun and testified that he did not see her in the kitchen when he broke the window. (RT 187-188.) There was obviously conflicting testimony by the nun, on the one hand, and by appellant on the other hand. They disagreed about whether any threats were made against her. These discrepancies went to a crucial issue in the case: the commission of one of the charged terrorist threats.
Similarly, witness Mr. L claimed that appellant threatened him with an axe. (RT 85.) Again, appellant denied committing such a threat. (RT 185-187.) Here again, this conflict in testimony went to the crucial issue of whether appellant committed a second terrorist threat. Thus, this was a classic example of a case in which CALJIC No. 2.22 should have been given.
An error in failing to instruct sua sponte on this general principle of law requires reversal if it is reasonably probable that it affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) For example, in People v. Snead (1993) 20 Cal.App.4th 1088, the defendant complained that CALJIC No. 2.22 should have been given sua sponte, but was not. Citing Rincon-Pineda, the court responded that “[a]ssuming there was conflicting evidence, appellant is correct.” (Id. at p. 1097.) However, the court concluded that considering all the instructions that were given, there was no reasonable likelihood that the jury had any misunderstanding as a result of the omission. (Ibid.)
Unlike in Snead, the other instructions given in this case did not render such failure harmless. CALJIC No. 2.22 was not covered by any other instructions given by the trial court. CALJIC No. 2.22 instructs the jury that where there was conflicting testimony, they were not to believe the side that had more witnesses simply because there were more witnesses telling that version. This instruction tells the jury that it is not the number of witnesses that is important, but the convincing force of their testimony. No other instruction imparted this critical information to the jury.
CALJIC No. 2.20 simply told the jury that they could use certain criteria for judging the credibility of witnesses. However this told them nothing about judging the relative believability as between two witnesses who gave conflicting testimony. CALJIC No. 2.21.1 just told the jury that it is not uncommon for different witnesses to have different memories of the same event, and simply because there were some conflicts did not necessarily mean that one witness was lying. CALJIC No. 2.27 informed the jury that the they court give the testimony of a single witness whatever weight they deemed it deserved. Therefore, it appears that no other instruction took the place, either individually or in combination, of CALJIC No. 2.22. Consequently, the failure to give the jury an instruction warning them not to count the number of witnesses was very likely to result in the jury favoring the prosecution since it had the majority of witnesses on its side.
Moreover, there were various indications that this was a close case. The first indication that the case had weaknesses was the jury’s request for a read-back of testimony. (CT 93, 93-1.) (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [juror questions and requests to have testimony reread are indications the deliberations were close.”]; People v. Williams (1971) 22 Cal.App.3d 34, 38-40 [request for read-back of critical testimony].) The jurors wanted to hear the testimony of Mr. L and of Ms. Ms. P again. (RT 286-287; RT 292.) As noted above, these were the testimonies that directly conflicted with appellant’s and that formed the basis for the terrorist threat convictions. As such, they were critical. That the jury requested a read-back of both of these witnesses’ testimonies suggests they had some reservations about the case.
In fact, juror number 7 wrote a note to the judge informing him that he wanted to change his verdict on count II, the terrorist threat allegedly committed against Mr. L. (CT 93-2; RT 292.) This note is an obvious indication that at least one juror in particular grappled with this count.
Additionally, the fact that the government’s case was weak is evident from the jury’s acquittal on one count in which Mr. L was alleged to be the victim. In such a circumstance, an error relating to the count of conviction should be deemed prejudicial. (People v. Epps (1981) 122 Cal.App.3d 691, 698; People v. Washington (1958) 163 Cal.App.2d 833, 846.)
Finally, the length of the jury deliberations indicate that the jury considered the case to be a close one. (See People v. Cardenas (1982) 31 Cal.3d 897, 907 [six hours of jury deliberations is evidence of a close case]; Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612 [nine hours of deliberations “deemed protracted”].) When the jury is troubled by the case, the appellate court is required to take heed. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [harmless error analysis requires the court to look at the impact of an error on the jury].) In the case at bar, the jury began deliberating the morning of April 17, 2000. (CT 92.) A verdict was not returned until 3:30 p.m. the following day. (CT 151.) These lengthy deliberations can only mean that the jurors found some deficiency in the government’s case. Accordingly, the failure to instruct pursuant to CALJIC No. 2.22 was prejudicial. The judgement of conviction for terrorists threats and assault with a deadly weapon must be reversed.
II.
THE TRIAL COURT ERRED IN FAILING TO STAY THE SENTENCE ON
COUNT SEVEN PURSUANT TO PENAL CODE SECTION 654.
The jury found that appellant both committed a terrorist threat against Ms. P (count 8) and assaulted her with the axe (count 7). (Aug. RT 11-12.) At sentencing, the judge imposed a two-year sentence for the terrorist threat, with an additional year for the arming allegation, and a concurrent three-year term on the assault with a deadly weapon. (RT 302; CT 171.) Appellant contends the court erred in imposing a concurrent sentence for the assault with a deadly weapon charge because the imposition violated section 654 in that appellant’s acts in counts 7 and 8 involved an indivisible course of conduct with a single victim.
Penal Code section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” This section ensures that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
“Although section 654 literally applies only where multiple statutory violations arise out of a single ‘act or omission,’ it has also been applied to cases where a ‘course of conduct’ violates several statutes.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253 [citations omitted]; People v. Latimer, supra, 5 Cal.4th 1203, 1211.) “Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court.” (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.) The trial court’s findings will not be disturbed on appeal if they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) A challenge to a sentence based on a violation of Penal Code section 654 may be raised for the first time on appeal because it is an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.)
In People v. Kane (1985) 165 Cal.App.3d 480, the court held that the imposition of concurrent terms for discharging a firearm at an occupied vehicle, possession of a firearm by a convicted felon and assault with a deadly weapon were prohibited by section 654. In Kane, defendant and the victim were involved in a bar fight. As the victim was leaving the bar in his car, he heard an object hit his car and thought that the defendant had thrown a rock at him. When the victim backed up to confront the defendant, he saw defendant pointing a gun at him. (Id. at p. 484.) A jury found guilty of assault with a deadly weapon, discharging a firearm at an occupied vehicle, and possession of a firearm as an ex-felon. (Id. at p. 483.) On appeal, the defendant alleged that the concurrent terms imposed on the weapon possession and the discharge of the firearm were barred by section 654 since he was punished for assault with a deadly weapon involving the same firearm. (Id. at p. 488.) The Court of Appeal agreed, noting that “defendant possessed the firearm, fired it at Grigsby, and hit the Ford Granada in an indivisible course of conduct. (Ibid.)
As in Kane, appellant’s actions were all part of one course of conduct. According to Ms.P, appellant verbally threatened her and immediately thereafter swung an axe at her. (RT 142-143.) Both counts stemmed from the same incident and there was no appreciable interval of time between the two acts. In other words, the threat culminated in the assault. As such, it was incidental to the assault. Accordingly, appellant may be punished for only one offense pursuant to section 654.
Application of section 654 to appellant’s sentence does not require a remand. Where multiple punishment has erroneously been imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248; People v. Adams (1993) 19 Cal.App.4th 412, 447.) Section 654 required the court to stay the three-year term it imposed concurrently. The sentence must be modified accordingly.
CONCLUSION
For the reasons stated in Argument I, the both of the terrorist threats and the assault with a deadly weapon conviction must be reversed. Alternatively, the concurrent sentence imposed on the assault with a deadly weapon conviction must be stayed.
Dated: December 20, 2000 Respectfully Submitted,
SANDRA URIBE
Attorney for Appellant
John Doe
FOOTNOTES:
Footnote 1: CALJIC No. 2.22 provides: “You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA, B000000
Plaintiff and Respondent, (Los Angeles County
Superior Court
v. No. KA000000)
JOHN DOE,
Defendant and Appellant.
______________________________________/
APPELLANT’S REPLY BRIEF
On Appeal From the Judgment of the
Superior Court of the State of California
Los Angeles County
HONORABLE DAVID S. MILTON, JUDGE
SANDRA URIBE
State Bar No. 183369
Law Offices of Sandra Uribe
11664 National Blvd., PMB #400
Los Angeles, CA 90064
(310) 477-4669
Attorney for Appellant
JOHN DOE
By Appointment of the Court Under
The California Appellate Project’s Assisted Case System.
INTRODUCTION
By this reply brief, no attempt is made to set forth a response to each of respondent’s contentions. Appellant’s opening brief by and large anticipated and refuted most of respondent’s arguments. Appellant stands by his opening brief, and only those points advanced by respondent which appellant believes require correction or additional comment will be addressed.
I.
THE COURT’S FAILURE TO INSTRUCT THE JURY PURSUANT TO CALJIC
NO. 2.22 REQUIRES REVERSAL OF THE TERRORIST THREATS AND
ASSAULT WITH A DEADLY WEAPON CONVICTIONS.
Appellant has argued that the trial court should have given CALJIC No. 2.22 because there was conflicting testimony presented at trial. (AOB 6-7.) Respondent concedes that the court should have given this instruction. (RB 7.) Nevertheless, respondent argues that the error was not prejudicial.
As predicted, respondent asserts that the instructions, considered in their entirety, adequately instructed the jury on the applicable law. (RB 8-10.) This point was amply addressed in Appellant’s Opening Brief at pages 8-9: none of the other instructions specifically covered this aspect of the law.
Next respondent urges that the failure to provide CALJIC No. 2.22 could not have been prejudicial because appellant’s testimony was “inherently weak.” (RB 9.) Respondent states, “Immediately prior to denying he threatened Ms. P and Mr. L, appellant testified he simply did not recall threatening to kill anyone or using a weapon to threaten anyone.” (Ibid.) Respondent misreads the record. Appellant did not state “I don’t recall threatening anyone.” Rather, trial counsel initially asked appellant if had any recollection about these facts, and he replied, “No sir.” (RT 185-186.) This testimony should not be deemed contradictory simply because of the vague way the introductory question was posed.
Respondent also states that the jury’s behavior during deliberations does not support a finding a prejudice. (RB 9-10.) Respondent claims that “one-and-a-half days” of jury deliberations are not indicative of the fact that the jury was troubled with the case given the number of charges involved. (RB 9.)
While “one-and-a-half days” of deliberations might be an appropriate length in some cases with many charged offenses, where, as here, the evidentiary phase of the trial lasted less than one entire day it is clearly a sign that the jury was troubled with the case. In this case, the evidentiary phase began sometime after 1:30 p.m. on April 13, 2000 (at 1:30 p.m. the court was still conducting voir dire). (RT 51.) The proceedings lasted until 4:35 p.m. that day. (RT 139.) The testimony continued at 9:55 the following morning. (RT 140.) Both sides had rested by noon. (RT 207-208.) Thus, the evidentiary phase lasted five hours at most. In comparison, the jury deliberations lasted over nine hours. (CT 92, 150-151.) Accordingly, the length of deliberations indicates a close case, despite the fact that the jury was required to deliberate on seven counts.
Finally, respondent suggests that the fact that the jury convicted appellant of six charges and acquitted him on only one “is not consistent with an overall weak prosecution case.” (RB 10.) Wisely, respondent does not attempt to argue that the evidence was “overwhelming,” as seems to be the prevailing standard for gauging the harmfulness of trial errors. (See, e.g., People v. Bittaker (1989) 48 Cal.3d 1046, 1099-1100; see also People v. Breverman (1998) 19 Cal.4th 142, 175.) Moreover, if the evidence was as strong as respondent would wish it to appear, the trial court would not have dismissed one count based on insufficient evidence. (RT 174-175.) Additionally, the fact that one juror wrote the judge a note stating that he or she wanted to change their verdict on count II clearly shows that at least one juror wavered on whether the evidence was sufficient on another one of the charges. (See RT 292.)
For all these reasons, the court’s failure to instruct pursuant to CALJIC No. 2.22 cannot be deemed harmless. Reversal is required.
II.
THE SENTENCE ON COUNT VII MUST BE STAYED.
As detailed in Appellant’s Opening Brief, the concurrent sentences on counts 7 and 8 committed against Ms. P violated Penal Code section 654 because the two crimes comprised an indivisible course of conduct.
Respondent accepts that the evidence showed appellant threatened to kill Ms. P and immediately thereafter swung an axe at her (RB 4.), but then insists that the two convictions arising from those facts were not part of an indivisible course of conduct. (RB 12.) Such a fine parsing is inconsistent with section 654.
The prosecutor himself argued that both counts stemmed from an indivisible course of conduct:
“… And this goes to counts 7 and 8.
She testifies that as the defendant is walking towards the kitchen, specifically the window, he’s looking at her, telling her that he’s going to kill her. And immediately after making that statement, he uses his axe and put (sic) it through this window. …
Now lets go back and analyze what you just heard for a second, because, you see, that one action actually consists of two crimes.
You see, I could walk up to either one of you right now, not say a word, use this axe and try to strike one of you. Now if you duck and I miss you, I have just committed the crime of assault with a deadly weapon.
But if, as in this case, before I can walk up to you, I don’t remain silent, I tell you what I fully intend on do (sic), that is, I make these threatening statements, ‘I am going to kill you,’ then I use the axe to attempt to strike you, I have now committed two crimes.” (RT 253-254, emphasis added.)
As the prosecutor aptly pointed out, it is difficult to conceive of two convictions more intimately intertwined.
By respondent’s interpretation of section 654, that section would not apply as long a defendant’s multiple convictions were not entirely identical in act and intent. That interpretation is incompatible with the large body of case law that has arisen under section 654. (See e.g., People v. Latimer, (1993) 5 Cal.4th 1203 [separate punishment precluded for kidnapping and subsequent rape of single victim]; People v. Wiley (1994) 25 Cal.App.4th 159 [separate punishment precluded for kidnap for ransom and robbery]; People v. Brown (1989) 212 Cal.App.3d 1409, disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577 [separate punishment precluded for assault with a firearm and robbery] .)
Respondent also argues that consecutive sentences were warranted because “the offenses involved distinct intents and objectives.” (RB 12.) Respondent states that the crimes of assault and terrorist threats each require evidence of a distinct intent because an assault requires immediate harm whereas threats indicate future harm. (RB 12-14.)
It is true that one looks to intent and objective in determining whether separate crimes comprises an indivisible course of conduct. However, the test is not whether the two crimes require the same intent, but whether the actor possessed a single intent and objective. (See People v. Latimer, supra, 5 Cal.4th 1203, 1208.) Despite respondent’s assertion to the contrary, the record in this case supports a finding that appellant acted pursuant to a single intent and objective. Appellant saw the nun while on a rampage. Appellant tried to hurt her and he told her that he was going to do so. These facts show appellant acted with a single intent, to cause harm to a single person, at a single time and place. His intent was not changed merely because he verbally expressed it.
Respondent’s reliance on People v. Nichols (1994) 29 Cal.App.4th 1651, is unavailing. In Nichols, the defendant hijacked a truck and then threatened to kill the driver if he reported the crime. (Id. at p. 1654.) He was convicted of kidnapping and attempting to dissuade a witness by threat of violence. (Ibid.) The defendant argued that punishment for both crimes violated section 654. The court found that the defendant had two separate objectives: “(1) to hijack the truck by kidnapping and robbing the victim and (2) to avoid detection and conviction by dissuading and intimidating the victim.” (Id. at p. 1658.) The defendant in Nichols, made the threat substantially after the robbery and kidnapping had occurred. In contrast, the threat here immediately preceded the assault. Thus, Nichols does not help respondent’s argument.
In sum, since appellant’s intent and objective show that his actions constituted a continuous course of conduct, section 654 requires that the sentence on one of them be stayed.
CONCLUSION
For the foregoing reasons, counts II, VII and VIII should be reversed. Alternatively, the sentence on count VII should be ordered stayed.
Dated: February 7, 2001 Respectfully Submitted,
SANDRA URIBE
Attorney for Appellant
