All posts by Julie Anne Ines

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Partial-Acquittal And Double Jeopardy: CSC Adheres To Defense-Favorable Rule

Stone v. Superior Court (1982) 31 Cal.3d 503 recognized the “deceptively simple” yet “complex, rapidly expanding body of law” surrounding the constitutional prohibition against double jeopardy arose from both the Fifth Amendment to the United States Constitution and Article I, section 15 of the California Constitution. However, Blueford v. Arkansas (2012) 566 U.S. 599, 132 S.Ct. 2044 overruled the precedent which provided the federal constitutional basis for Stone’s partial acquittal rule.

People v. Aranda (2019) 6 C5th 1077 upheld Stone’s defense-favorable rule. Aranda was charged with murder in Riverside County in 2009.  He stabbed his girlfriend’s father in a fight, after his girlfriend “feared her father was going to rape her as he had done before.”   The jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter.  They received a guilty verdict form for each offense and a single not-guilty verdict form.

 

On the third day of deliberations, the foreperson reported that “we’ve basically ruled out murder in the first degree” but they were at a stalemate between second-degree and manslaughter.

 

The next day, defense counsel asked that the jury be given a not-guilty verdict form for first-degree.  The prosecutor objected.  The foreperson reported one vote for second-degree, two votes for manslaughter, and nine for acquittal.  The judge refused to send in the additional verdict form.  By the end of the day, no jurors had changed their votes, and the judge declared a mistrial.

 

The defense moved to dismiss on double jeopardy grounds.  The judge dismissed the first-degree allegation but said Aranda could be retried for second-degree murder.  The DA appealed.  The CCA, 4th District, Division 2, affirmed.  219 Cal.App.4th 764 and the CSC granted the DA’s petition for review. (See this post (2/16/2015): Partial Acquittal Rule: Does Stone Survive Blueford?

 

In upholding Stone the CSC held as follows in Aranda:

 

“Stone v. Superior Court (1982) 31 Cal.3d 503 concluded that a court must accept a partial verdict of acquittal as to a charged greater offense when a jury has expressly indicated it has acquitted on that offense but has deadlocked on uncharged lesser included offenses. The question here is whether the Stone rule has been abrogated by the United States Supreme Court’s decision in Blueford v. Arkansas (2012) 566 U.S. 599 which concluded that federal double jeopardy principles do not require a court to accept a partial verdict. We conclude the Stone rule survives as an interpretation of the state Constitution’s double jeopardy clause. The trial court’s failure here to receive a partial acquittal verdict on first degree murder rendered the declaration of a mistrial on that charge without legal necessity. Accordingly, defendant may not be retried on that allegation.” (Aranda at 1081.)

 

Blueford does not call the rationale of Stone into question because Blueford concerned a foreperson’s oral remarks about what “may” have been a tentative acquittal. Stone, on the other hand, provides for partial verdict forms and the acceptance of written partial verdicts.

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Felony Murder: Reckless Indifference” for Tison Finding Must Not Be Based On Defendant’s Actions After The Crime

In re Taylor (2019) 34 Cal. App. 5th 543 held that given the lack of evidence that defendant planned anything more dangerous than a garden-variety armed robbery, reckless disregard to the risk to human life, for purposes of the felony murder special circumstance under PC 190.2 (d), was not established by defendant’s actions after the murder, which included that he made no attempt to help the victim after he knew she was shot and instead helped the shooter flee, and that he made a callous comment about the victim when advising an accomplice not to tell anyone what happened.

“We hold that evidence of a defendant’s actions after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created a grave risk of death.”  [Emphasis original.] Defendant made no attempt to render aid to the victim his co-defendant had shot, and the next day made an offensively callous remark about the victim.   “Because there is no other evidence that Taylor had such an intent when he participated in the attempted robbery, we grant his petition to vacate the special circumstance.” (Taylor at 546-47.)

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CC 373 Improperly Implies That The Dog’s Identification Of The Defendant Or Location Is A “Fact”

CC 373 instructs as follows:

You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant [or a location]. Before you may rely on dog tracking evidence, there must be:

  1. Evidence of the dog’s general reliability as a tracker; AND
  2. Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the

 

The highlighted sentence improperly implies that the dog’s identification of the defendant or location is a “fact.” Compare People v. Westerfield (2019) 6 Cal. 5th 632, 708-09 [CJ 2.16 properly instructs that “[e]vidence of dog tracking has been received for the purpose of showing, if it does, that the defendant is the perpetrator of the crimes of kidnapping and murder.” [Italics in original).].)

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Defense Theory Instruction On Lesser Included Offense Must Be Given Even If Evidence Of Lesser Offense Is “Unconvincing Or Subject To Justifiable Suspicion”

“California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148–149.) The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at pp. 162, 177.)

“In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (Breverman, supra, 19 Cal.4th at p. 177.) Thus, “courts should not evaluate the credibility of witnesses, a task for the jury” (id. at p. 162), and uncertainty about whether the evidence is sufficient to warrant instructions should be resolved in favor of the accused. (People v. Tufunga (1999) 21 Cal.4th 935, 944; see also People v. Vasquez (2018) 30 Cal. App. 5th 786, 792.)

“Even evidence that is unconvincing or subject to justifiable suspicion may constitute substantial evidence and may trigger the lesser-included-offense requirement.” (Ibid; see also People v. Turner (1990) 50 Cal.3d 668, 690.)

The refusal to instruct on a lesser included offense may also violate the federal constitution’s requirement that the courts afford every criminal defendant “‘a meaningful opportunity to present a complete defense.’” (Crane v. Kentucky (1986) 476 U.S. 683, 690; see People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16.) As part of this right, a defendant is “‘entitled to adequate instructions on the defense theory of the case’ if supported by the law and evidence [citation] and ‘“has a constitutional right to have the jury determine every material issue presented by the evidence …”’ [citation].” (People v. Eid (2010) 187 Cal.App.4th 859, 879; see People v. Cash (2002) 28 Cal.4th 703, 736 [“Defendants have a constitutional right to have the jury determine every material issue presented by the evidence, and a trial court’s failure to instruct on lesser included offenses denies them that right.”]; see also People v. Vasquez, supra, 30 Cal. App. at 793.)

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Should Consciousness Of Guilt Instructions Such As Flight Be Limited To The Determination Of Guilt In Death Penalty Case?

People v. Anderson (2018) 5 Cal. 5th 372, 391-93 recognized that evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court’s discretion. Thus, the existence of alternate explanations for the defendant’s behavior does not necessarily defeat the court’s discretion to admit consciousness-of-guilt evidence.

However, when consciousness of guilt is properly admitted at the guilt phase of a death penalty case the jury should not be allowed to consider the evidence in its penalty deliberations “for the reasons it was admitted at the guilt phase.” (5 Cal 4th at 392.) The evidence may be relevant “under [Penal Code] section 190.3, factor (a), to the extent that [it] gives rise to reasonable inferences concerning the circumstances of the crime and defendant’s culpability.” (People v. Riggs (2008) 44 Cal.4th 248, 321–322.) Additionally, consciousness of guilt evidence might be independently admissible as aggravating evidence at the penalty phase. For example, evidence that defendant conspired to commit a forcible escape might have been admissible as evidence of criminal activity involving the threat to use force or violence under Penal Code section 190.3, factor (b).

However, if any of the consciousness of guilt evidence constitutes “aggravating evidence of a type not statutorily authorized” People v. Champion (1995) 9 Cal.4th 879, 947) a counsel may wish to consider requesting a limiting instruction:

“If defendants had requested the trial court to instruct the jury that it could consider this evidence only for the light it shed on  defendants’ guilt, such an instruction would perhaps have been appropriate. Defendants, however, did not request such an instruction, and the trial court was not obligated to give such an instruction on its own initiative. [Citations.]” (Ibid.)

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Implied Malice Murder: Defendant Must Be Subjectively Aware That The Committed Act Was “Inherently Dangerous To Human Life”

Implied malice has both objective and subjective components. The objective test requires “‘“an act, the natural consequences of which are dangerous to life … .”’” (People v. Knoller (2007) 41 Cal.4th 139, 143.) This means the act must carry “‘a high degree of probability that it will result in death.’” (Id. at p. 152.) The subjective test requires that the act be performed “‘“by a person who knows that his conduct endangers the life of another … .”’” (Id. at p. 143.) “In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.” (Ibid; see also People v. Vasquez (2018) 30 Cal. App. 5th 786, 794 n.6; People v. Tseng (2018) 30 Cal.App.5th 117 [substantial evidence supported physician’s three convictions for second degree murder of patients who died from drug overdoses where the physician was aware her prescribing practices posed a risk of death].)

An unlawful killing without malice is involuntary manslaughter. (§ 192; see, e.g., People v. Blakeley (2000) 23 Cal.4th 82, 91; People v. Butler (2010) 187 Cal.App.4th 998, 1008–1009 [addressing the difference between implied malice murder and involuntary manslaughter]; CC 580.) “Generally, involuntary manslaughter is a lesser offense included within the offense of murder.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Accordingly, an instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant acted without conscious disregard for human life and did not form the intent to kill.

For example, in Vasquez the defense conceded that Vasquez administered a beating that killed the victim (Smith) but argued that Vasquez was not subjectively aware his actions could be deadly because Smith had a hidden spinal injury (metal rods had been placed in his neck in a prior surgery), the fatal injury was immediately adjacent to the metal rods, and the victim’s other injuries were relatively minor. The reviewing court concluded that refusal of the Vasquez’s instructional request was reversible error. (30 Cal. App. 5th 786, 789-90.)

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CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte

In People v. Westerfield (2019) 6 Cal. 5th 632 evidence that a cadaver dog had “alerted” to a scent in defendant’s motorhome was admitted before the jury.  The jury was instructed pursuant to CALJIC No. 2.16 that dog tracking evidence is not sufficient by itself to permit an inference that the defendant is guilty of the crimes of murder and kidnapping.  To make such an inference it is necessary that the dog tracking evidence be corroborated by independent evidence which may include facts supporting the accuracy of the dog tracking itself.

 

Westerfield claimed that CJ  2.16 was inadequate because it fails to expressly admonish the jury to view dog-scent evidence “with care and caution.”  He argued that People v. Malgren (1983) 139 Cal.App.3d 234 should be overruled because it allows dog-scent evidence to be treated as any other evidence, when it is more akin to accomplice testimony which requires direct corroboration linking a defendant to a crime.  The CSC rejected the defendant’s argument.  An express cautionary admonition regarding dog-scent evidence is not a general principle of law necessary to the jury’s understanding of the case and therefore there is no sua sponte duty to so instruct the jury.  Furthermore, CALJIC No. 2.16 states “[e]vidence of dog tracking has been received for purposes of showing, if it does, that the defendant is the perpetrator of the crimes of kidnapping and murder.”  [Emphasis added.] The highlighted language alerts the jury to consider the possibility that the evidence does not reflect that the defendant is the perpetrator.  Coupled with the language that dog-scent evidence, standing alone, is not sufficient for an inference of guilt, and that corroborating evidence is required, CJ. 2.16 already contains limitations and safeguards ensuring that the jury will carefully evaluate dog-scent evidence.

 

The CSC also concluded that CJ 2.16 does not lessen the prosecution’s burden of proof because it fails to relate the issue of dog-scent evidence to the standard of proof beyond a reasonable doubt.  While it is true that the CALCRIM committee added such language to the instruction on possession of recently stolen property (CALCRIM No. 376), that additional language does not reflect a legal inaccuracy or deficiency in CALJIC 2.16.  CALJIC 2.16 provided the jury with an inference that the jury might draw from this particular item of circumstantial evidence but it did not alter the court’s other instructions concerning the necessity of proof beyond a reasonable doubt.

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Scales of Justice Metaphor Does Not Accurately Describe Burden of Proof Beyond a Reasonable Doubt Which Requires That Proof That Goes “Substantially” Beyond a State of “Equipoise”

In People v. Daveggio and Michaud (2018) 4 Cal. 5th 790, 838-44 the judge addressed several groups of prospective jurors who had yet to complete juror questionnaires. In each session the judge discussed the presumption of innocence and requirement of proof beyond a reasonable doubt, in concepts such as the following:

The most important concept we deal with in the criminal system is the presumption of innocence. The fact that the defendants have       been charged with the crime I just read to you, the fact that this trial is taking place, is no evidence whatsoever of the truth of those      charges or any evidence of their guilt. [¶] … [¶]

The defendants sit here cloaked in innocence. Because they entered a plea of not guilty, it is up to the prosecution to prove the defendants’ guilt. They must prove each and every element of each and every charge that they have filed against the defendants, and        they must prove it to beyond a reasonable doubt, which I will discuss with you in a moment. [¶] … [¶]

The burden of proof that the prosecution has to meet is what we call beyond a reasonable doubt. And it is the highest burden of proof         provided for in the law. It does not mean beyond all possible or imaginary doubt, because every time you talk about human affairs and human interaction you can always conjure up some imaginary doubt.

Basically, it is an evaluation of the facts and the evidence, based upon common sense and reason, to see if you are left with any        reasonable doubt after you hear the testimony and see the other evidence.

You have all seen the Lady of Justice who has the scales, maybe not all of you, but some of you have. In a criminal case, the scales of            justice start tipped in favor of the defense, because the defendants are presumed to be innocent. The burden the prosecution must          meet is to bring those scales into balance and then substantially tip them in favor of the truth of the charges that were filed against the defendants.

The CSC concluded that this analogy did “not evoke a simple preponderance inquiry” because the judge “also stressed that the prosecutor’s burden of proof was ‘the highest burden [or “standard” or “level”] of proof provided for in the law[,]” and “that, in a criminal case, the scales of justice begin weighted in favor of the defendant…, and must not only be returned to equipoise, but ‘substantially tipped’ in favor of the prosecution, to sustain a conviction.” (4 Cal 4th at 843.)

In so doing the CSC distinguished People v. Garcia (1975) 54 Cal.App.3d 61 and other out of state cases which criticized the scales of justice metaphor. In Garcia the judge did not include the concept that the proof must go substantially beyond a state of equipoise as did the judge in Daveggio.

 

Nevertheless, the CSC made it “clear” that “we do not encourage the use of the [scales of justice] metaphor.” (4 Cal. 4th at 843.)

 

See also this post  Party With Burden of Proof Loses When the Fact Finder is “On the Fence”

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Is Flight Instruction Prejudicial Even Though Defendant Absent by Judge’s Order?

In People v. Johnson (2018) 6 Cal.5th 541 the judge excluded Johnson from the courtroom for the entire trial after he assaulted his lawyer; the jurors never saw or heard him.  At guilt phase, the judge instructed the jury not to consider his absence, but also gave a standard flight instruction that allowed use, with caution, of evidence that the defendant fled after the crime “or after he’s accused of a crime.”

Johnson argued on appeal that this instruction might have led the jury to infer that he was absent because he fled, and they might have used that fact against him.

 

The CSC holds that the flight after accusation language probably should have been deleted. However, the error was held to be harmless:

“[T]he flight instruction was justified by evidence that defendant fled the murder scene. … Moreover, the prosecution in this case never argued that defendant’s absence from the trial constituted flight or reflected a consciousness of guilt, and the jury was instructed not to consider defendant’s absence from trial ‘in any way.’ We therefore see no reasonable likelihood that the jury considered defendant’s absence from trial as evidence of his guilt.” (Id. at 590.)

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Should Burden of Proof Be Illustrated by Examples Based on the Level of Certainty Needed to Make Decisions “In The Ordinary Affairs of Life?”

In People v. Potts (2019) 6 Cal. 5th 1012, 1039-41 the court’s introductory comments to the jury panels illustrated the concept of circumstantial evidence as follows:

Let’s assume that you or your spouse prepared … a raspberry pie and you set that on the counter to cool. There’s nobody home except      you and your nine-year-old child, and you tell the child to stay away from that pie, that you have company coming that evening and   you don’t want the pie to be messed up, keep their fingers out of it. And then you leave and you go about your tasks. Nobody else comes or goes from the house. An[] hour or two later you come back into the kitchen and somebody has stuck their finger in that pie, and you go look for the child, and sure enough, there’s your nine-year-old in the bedroom and he or she has raspberry pie filling on their lower lip. I don’t think you’d have any trouble figuring out what happened to that pie. Now, that’s circumstantial evidence, sure, but I think most moms or dads would arrive at a conclusion beyond any reasonable doubt under those circumstances that that child was the one who got into that pie.” (Italics added.) Two seated jurors heard this version of the illustration. Other versions did not include the “reasonable doubt” language, instead stating, for example, “I don’t think any of you would have a problem figuring out what happened to that pie.”

While not finding error, the CSC did “not condone” use of the court’s illustration (6 Cal. App. 5th 1012, 1040):

We have explained that “jurors should not be instructed to convict based on the level of certainty needed to make decisions ‘in the       ordinary affairs of life.’” (Daveggio, supra, 4 Cal.5th at p. 841, quoting People v. Brannon (1873) 47 Cal. 96, 97; but cf. Victor,    supra, 511 U.S. at p. 19; Holland v. United States (1954) 348 U.S. 121, 140; Hopt v.Utah (1887) 120 U.S. 430, 439.) “Because people often act in important matters notwithstanding substantial uncertainty, the fear is that defining proof beyond a reasonable doubt in relation to a person’s willingness to act,” even “in the weightier affairs of life,” “might understate the government’s burden of proof.” (Ramirez v. Hatcher (9th Cir. 1998) 136 F.3d 1209, 1214.)