SERIES 3500 POST-TRIAL: CONCLUDING
F 3500.4.2 Unanimity: Murder
TABLE OF CONTENTS
F 3500.4.2 Note 1 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
F 3500.4.2 Note 2 Juror Unanimity: Felony Murder
F 3500.4.2 Note 3 Juror Unanimity: No Agreement Necessary As To Act Constituting Lying In Wait
F 3500.4.2 Note 4 Unanimity As To Act Constituting Murder
Return to Series 3500 Table of Contents.
F 3500.4.2 Note 1 Murder: Alternative Theories—Acts Requiring Unanimity Distinguished
See FORECITE F 3500.1 Note 7; see also F 17.01 n3 and F 17.01 n36.
F 3500.4.2 Note 2 Juror Unanimity: Felony Murder
ALERT 1: This argument was rejected in People v. Carpenter (1997) 15 C4th 312, 394-95 but may still be viable in federal court, especially in light of Apprendi and Ring. (See ALERT # 2, below.)
ALERT 2: Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] provide a basis for arguing that unanimity of theory is required. (See generally FORECITE PG VII(C)(32).) This argument was rejected in People v. Nakahara (2003) 30 C4th 705. However, the argument may still be viable in federal court on habeas corpus or certiorari.
The California Supreme Court has held that juror unanimity is not required as to a particular theory of first degree murder. (People v. Milan (1973) 9 C3d 185; People v. Guerra (1985) 40 C3d 377, 386.) However, the United States Supreme Court’s decision in Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 110 SCt 1227] provides a basis for arguing that juror unanimity is required when felony murder and another alternate theory of first degree murder are presented to the jury. In Schad, the court analyzed the issue as a question of whether or not felony murder and premeditation/deliberation in Arizona are “separate offenses” or simply different means of committing the same offense. The court observed that if a state’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, “we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. [Citation.]” (Schad, 501 US at 636 [115 LEd2d at 568].)
In Arizona, as a matter of state law, premeditation and the commission of a felony are not independent elements of the crime but rather are means of satisfying a single mens rea element. Hence, because the state legislature’s definition of the elements of the offense is “usually dispositive” and, because there is no due process violation in so defining the elements of first degree murder, Schad held that no constitutional requirement of juror unanimity was required. (The court did note, however, that increased verdict specificity would be desirable in such cases. (Schad, 501 US at 639 [115 LEd2d at 574].)
A different analysis should be applied in California because malice murder under PC 187 and felony murder under PC 189 are not the “same crimes.” (People v. Dillon (1983) 34 C3d 441, 476, fn 2, 3; but see People v. Carpenter (1997) 15 C4th 312, 394-95.) Malice is an element of murder under PC 187 but not an element under PC 189. Hence, PC 187 and PC 189 describe two separate crimes rather than different means to the commission of the same crime. (See also FORECITE F 8.21 n5, discussing Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234.) Note that the California cases which have declined to follow Sheppard have not discussed the impact of Dillon. (See e.g., People v. McPeters (1992) 2 C4th 1148, 1185 [unanimity argument rejected without meaningful consideration of Dillon/Schad argument].)
In sum, the analysis in Schad, while not requiring unanimity in states such as Arizona where felony murder is not a distinct crime, does require unanimity in California in light of Dillon’s construction of the statutory elements.
In People v. Edwards (1991) 54 C3d 787, 824 and People v. Beardslee (1991) 53 C3d 68, 92, the court recited the Milan rule that no unanimity as to the theory of first degree murder is required. However, neither Beardslee nor Edwards were felony murder cases. Instead, the issue addressed was whether the jury has to unanimously agree which acts support a single theory of first degree murder. Therefore, neither Beardslee nor Edwards is authority for rejection of the Dillon/Schad argument advanced herein. (See also People v. Pride (1992) 3 C4th 195, 249 [restating rule without analysis of Dillon].)
In Sullivan v. Borg (9th Cir. 1993) 1 F3d 926, 928-29, the court rejected an argument that felony murder has been interpreted to be a separate crime in California, and therefore, the court concluded that juror unanimity is not required as between felony murder and other theories of 1st degree murder.
PRACTICE NOTE: Right To Juror Unanimity Instruction As To Felony Murder Or Alternatively Instruction That Felony Murder Requires A Finding Of Malice—The California Supreme Court has taken conceptually contrary positions regarding the questions of whether jury unanimity applies to felony murder and whether felony murder requires malice. In light of these contrary positions, the following is a suggested format for raising the constitutional rights which are implicated by these issues. (But see People v. Carpenter (1997) 15 C4th 312, 394-95.)
In People v. Dillon (1983) 34 C3d 441, 474-76, the California Supreme Court held that malice is not an element of felony murder. The court reached this decision based on its conclusion that the felony murder rule as a matter of “substantive law” eliminates malice as an element of the crime of felony murder. (Ibid.) Hence, according to Dillon, felony murder is not the “same crime” as malice murder because malice is not an element of felony murder. (Id. at 476 fn 23; see also People v. Saille (1991) 54 C3d 1103, 1116 [recognizing that Dillon deleted malice as an element of “the crime of felony murder” .)
Under this construction of the felony murder statute, the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) require juror unanimity upon felony murder. In Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 110 SCt 1227], the Supreme Court held that juror unanimity is required if felony murder has been construed as a separate offense with independent elements. (115 LEd2d 568-69.) Because Dillon’s construction of the felony murder statute holds that felony murder is a separate offense in California with independent elements, unanimity as to felony murder is required under Dillon.
However, the California Supreme Court has held that unanimity is not required as to felony murder under Schad. (People v. McPeters (1992) 2 C4th 1148, 1185.) Actually McPeters did not purport to discuss the Schad analysis presented herein, but merely cited Schad in support of its conclusion that the right to a unanimous verdict as to felony murder is “contrary to established law …”
Hence, McPeters suggests that, contrary to Dillon, the California Supreme Court is no longer construing felony murder as a separate offense with independent elements. (See also, People v. Johnson (1991) 233 CA3d 425, 453-57 [felony murder and malice murder are not “two kinds of first degree murder” ].) But if the Dillon construction is no longer valid and felony murder is not a separate substantive crime, then the felony murder rule must be construed as imputing the element of malice rather than creating a separate crime. Therefore, defendant alternatively requests that the jury be instructed that it must find malice as an element of felony murder. The failure to instruct upon malice would create an improper conclusive presumption of malice in violation of the defendant’s federal constitutional rights to trial by jury, due process and equal protection (6th and 14th Amendments.) (People v. Figueroa (1986) 41 C3d 714, 724-33; Carella v. California (1989) 491 US 263, 265 [105 LEd2d 218; 109 SCt 2419].)
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n5.
F 3500.4.2 Note 3 Juror Unanimity: No Agreement Necessary As To Act Constituting Lying In Wait
People v. Edwards (1991) 54 C3d 787, 824.
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n8.
F 3500.4.2 Note 4 Unanimity As To Act Constituting Murder
The courts have held in a variety of contexts that juror unanimity is not required as to “theories” of legal liability. (See People v. Milan (1973) 9 C3d 185 [theories of first degree murder]; People v. Brown (1995) 35 CA4th 708, 714 [theories of malice]; People v. Davis (1992) 8 CA4th 28; People v. Sutherland (1993) 17 CA4th 602; People v. Gonzales (1995) 31 CA4th 1248, 1255.) Under this analysis, unanimity is not required for multiple theories or acts upon which a “discrete criminal event” is predicated. However, a unanimity instruction is required where a single count is based on two or more “discrete criminal events.” (People v. Hernandez (1995) 34 CA4th 73, 80.)
Accordingly, when the defendant is charged with a single offense and the prosecution presents evidence of several separate acts—any one of which could support conviction—then the jury must unanimously agree on the same act upon which the finding of guilt is based. (See People v. Alva (1979) 90 CA3d 418, 424-426; see also Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707, 1712] [improper to impose punishment “on a defendant for the underlying crimes without any factfinder having found that the defendant committed those crimes” ].) Otherwise, there is a danger that the defendant will be convicted of an offense where part of the jury might think one act has been proven and part might think another act proven. (People v. Creighton (1976) 57 CA3d 314, 319; People v. Gavin (1971) 21 CA3d 408, 419.) Such a result violates the fundamental judicial principle that a defendant must not be found guilty unless the charged act has been proven beyond a reasonable doubt to the satisfaction of all twelve jurors. (People v. Diedrich (1982) 31 C3d 263; People v. Williams (1901) 133 C 165; People v. Castro (1901) 133 C 11; People v. Madden (1981) 116 CA3d 212.) For example, in People v. Dellinger (1984) 163 CA3d 284, the prosecution presented multiple factual bases for a charge of murder. The court held that juror unanimity as to the actus reus was required:
“Characteristically, a defendant could have been charged with several different counts but was charged only once. [Citation.] Here there was only one offense and one victim but there were several hypotheses as to which act or acts caused Jaclyn’s death. As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity.” (Dellinger, 163 CA3d at 301.)
Because the failure to require juror unanimity has the effect of reversing or lightening the burden of proof, it constitutes an infringement of the defendant’s constitutional rights to due process under the state and federal constitutions. (People v. Delletto (1983) 147 CA3d 458, 472.)
The constitutional implications of a criminal conviction based upon acts which are not found by a majority of the jurors are momentous.
First, such a conviction violates the state and federal constitutional rights to trial by jury. (See FORECITE F 17.01 n4.) The failure to instruct the jury upon unanimity in the appropriate case is clear error which “goes to the defendant’s fundamental right to a jury trial and due process.” (People v. Metheney (1984) 154 CA3d 555, 563, fn 5.)
Second, lack of unanimity as to the act which constitutes the crime violates 14th Amendment federal due process principles. Agreement as to “just what a defendant did [is] a step preliminary to determining whether the defendant is guilty of the crime charged.” (U.S. v. Gipson (5th Cir. 1977) 553 F2d 453, 457-458; Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707, 1711] [the federal constitution “itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition” ]; United States v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819.)
Third, lack of jury consensus upon the act committed by the defendant lightens the prosecution’s burden of proof and, thus, violates the defendant’s constitutional right to due process. (See People v. Delletto (1983) 147 CA3d 458, 472.) Fourth, arbitrary denial of the state constitutional right to juror unanimity would violate federal 14th Amendment due process. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227]; see also FORECITE PG VII(C)(17).)
Hence, if there are several acts presented to the jury in a murder case which could constitute the charged offense and if there is a basis for juror divergence as to which act was committed, the jury must unanimously agree upon a single act.
[See Opinion Bank # O-262 for an unpublished opinion finding prejudicial error for failure to require juror unanimity.]
NOTE: Regarding termination of a felony see FORECITE F 8.21 n6.
CALJIC NOTE: See FORECITE F 17.01 n26.
