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Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?

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In People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220 the trial judge failed to correctly instruct the jury on the defense theory of mistake of fact. On appeal the defendant cited three federal circuit court cases holding that the failure to instruct on a defense constituted federal constitutional error which, under the Chapman test, requires reversal unless the prosecution shows beyond a reasonable doubt that it was harmless. (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091; Davis v. Strack (2d Cir. 2001) 270 F.3d 111; Barker v. Yukins (6th Cir. 1999) 199 F.3d 867.)

 

However, the Watt Court distinguished the cited cases because in each of those the failure to instruct deprived the defendant of his right to present a defense and so infected the entire trial that it violated due process and the right to a fair trial. (Bradley v. Duncan, supra, 315 F.3d at p. 1094; Davis v. Strack, supra, 270 F.3d at p. 131; Barker v. Yukins, supra, 199 F.3d at p. 876.)

 

The California Supreme Court has not yet determined the test of prejudice for failure to instruct on an affirmative defense. (See People v. Salas (2006) 37 Cal.4th 967, 984; Watt at 1218.) However, the Watt Court could not find any published opinion that embraces the Chapman standard for either the failure to instruct, or, as here, error in the instruction that was given. “Rather, published opinions have concluded that the Watson test applies. [Citations.]” (Watt at 1219.)

 

Nevertheless, the Court avoided directly ruling the issue by concluding that “under either test, the error does not require reversal of defendant’s conviction.” (Ibid.)

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“On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense

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Ordinarily, the state need not prove the precise date on which an alleged offense occurs. (See PC 955.) CC 207 is the CALCRIM instruction on this point.

 

However, where the state charges a defendant with a criminal offense on occurring during particular dates — and when the dates form the basis of the defense (e.g., alibi — it is fundamentally improper to instruct the jury it may nevertheless convict the defendant if it finds the crime was committed reasonably close to the date(s) alleged. (See, e.g., People v. Jennings (1991) 53 Cal.3d 334, 358-359; People v. Jones (1973) 9 Cal.3d 546; People v. Barney, (1983), 143 Cal.App.3d at p. 490. See also generally People v. Gavin (1971) 21 Cal.App.3d 408, 415-420; People v. Whitacre (1926) 79 Cal.App. 27, 31-32.)

 

For briefing alleging ineffectiveness assistance of counsel for not objecting to CC 207 in light of the defendant’s alibi defense see People v. Scott 2014 WL 4655859 (Cal.), 7-13.

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Is Misdemeanor Sexual Battery a Lesser Included of Sexual Battery by Fraud?

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There is a split of authority among the Courts of Appeal on the question of whether or not misdemeanor sexual battery (PC 243.4(e)(1)) is a lesser included offense of sexual battery by fraud (PC 243.4 (c)(3).) (See, People v. Babaali (2009) 171 Cal.App.4th 982 and People v. Smith (2010) 191 Cal.App.4th 199.)
 
In People v. Robinson, DEPUBLISHED, S220247(G048155) 227 Cal. App. 4th 387, 399 [nf] the California Supreme Court granted review to resolve this conflict.

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Mistake of Fact – Role of Reasonableness

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Mistake of Fact – Jury May Consider Reasonableness of Belief on the Issue of Good Faith
 
It is well established that a good faith mistake of fact can negate specific mental state elements of a charge such as knowledge. (See People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220; People v. Lawson (2013) 215 Cal.App.4th 108, 115. Thus, the Bench Notes to CC  3406 read, in pertinent part, “If the mental state … at issue is … knowledge, do not use the … language requiring the belief to be reasonable.”
 
However, the issue of reasonableness may still be relevant on the question of good faith:
 

In determining if a mistake of fact has negated a specific mental state, the jury may consider reasonableness in deciding if the belief was in good faith—a highly unreasonable belief can support an inference of bad faith, so while objective reasonableness is not a requirement of the defense of mistake, subjective reasonableness can be a relevant consideration on the subject of good faith. [Citations.] (Watt at 1218.)

 
And, if a highly unreasonable belief can support an inference of bad faith it follows that a highly reasonable belief can support an inference of good faith.

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Does Implausible or Illogical Testimony Warrant Instructing Per CC 361 on Defendant’s Failure to Explain or Deny Evidence?

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In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows:
 

1. May a court instruct the jury with CALCRIM No. 361 on the failure to explain or deny evidence where a defendant’s testimony is implausible or contains logical gaps?

 

2. Did the Court of Appeal err by reversing the conviction of defendant Cortez due to error in admitting a statement made by defendant Bernal to his nephew, error in instructing the jury with CALCRIM No. 361, and prosecutorial misconduct.

 

3. Is a statement that implicates a non-testifying codefendant admissible where it is against the declarant’s interest, inextricably tied to and part of the statement against interest, and made under circumstances that this Court and the Court of Appeal have repeatedly deemed to demonstrate trustworthiness?

 

4. Did the prosecutor commit prejudicial error in rebuttal argument by making a brief and isolated statement regarding reasonable doubt that the jury’s “belief” must not be “imaginary” but rather be “based in the evidence in front of me” after the jury was properly instructed on the standard of proof and to follow the trial court’s instructions

 
With respect to the CC 361 issue the defendant’s briefing in the California Supreme Court argued that CC 361 “is justified by an “implausible” explanation only if the explanation fails to account for undisputed physical evidence or long gaps of time-in other words, if it is not really an ‘explanation’ at all. No case holds CALCRIM No. 361 is warranted merely because the defendant’s explanation involves an arguably less likely interpretation of the evidence.” (See PEOPLE v. CORTEZ, 2014 CA S. Ct. Briefs LEXIS 1857; see also (People v. Kondor (1988) 200 CA3d 52, 57; see also People v. Saddler (1979) 24 C3d 671, 682; People v. Lamer (2003) 110 CA4th 1463, 1469

 

 

 

 

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What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)?

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Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment did not prohibit capital punishment for an accomplice to a felony murder if the accomplice acted as a major participant in the underlying felony and his or her mental state was one of “reckless indifference to human life.” (Estrada, at p. 575.) Section 190(d) requires both elements but no court has explained how the term “major participant” should be defined.
 
The California Supreme Court has granted review to consider this question:
 
See, People v. Banks, S213819. (B236152; nonpublished opinion; Los Angeles County Superior Court; BA347305 Petition for review after the Court of Appeal amended and affirmed judgments of conviction of criminal offenses.
 
The court limited review to the following issues:
 

(1)        Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2 subdivision (d)?

(2)        Does the true finding of the special circumstance violate due process? (U.S.Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)

 
It has been held that the term “major participant” as used in PC 190.2(d) is commonly understood by those familiar with the English language and, therefore, an instruction as to its meaning will only be given upon request. (See Estrada (95) 11 C4th at 574  see also People v. Proby (98) 60 CA4th 922, 933.) However, the fact that the California Supreme Court has deemed it necessary to address the meaning of the term provides a renewed basis upon which to request a definitional instruction. Here are some sample definitions which might be might be appropriate to request:
 
Sample # 1:

A major participant is one whose role is notable or conspicuous and who is one of the more important participants.

Sample # 2:

A major participant is one such as the ringleader, triggerman or the one who planned the crime, whose role is notable or conspicuous and who is one of the more important participants.

Sample # 3:

A major participant must do more than merely aid and abet in the crime; he or she must be directly involved in the commission of the felony as an active participant in planning or carrying out the crime.

 
The definition of “major” in Alternative # 1 above was suggested by Proby. Proby criticized the use of the “ringleader” and “triggerman” examples in Alternative # 2 above because it “would require… a finding that defendant was a “ringleader” `whose participation was greater in importance than that of other participants.’” (Proby, 60 CA4th at 929.) However, this instruction does not “require” a finding that the defendant was a “ringleader” etc., it merely provides examples of one who may be a major participant. (See e.g., Parker v. Womack (51) 37 C2d 116, 120; People v. Marshall (90) 50 C3d 907, 938; People v. Keenan (88) 46 C3d 478, 504; People v. Mora (95) 39 CA4th 607, 617.)

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Court Of Appeal Reverses For Failure To Instruct On Lesser Offense

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The two subdivisions of Vehicle Code section 23110 state:

 

“(a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor.
“(b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison.” (Italics added.)

 

People v. Mullendore (2014) 230 Cal. App. 4th 848, 856-857 concluded that VC 23110(a) as a lesser included of VC 23110(b) because a violation of subdivision (b) necessarily constitutes a violation of subdivision (a).

 

Moving on to harmless error analysis focused on the need to avoid forcing the jury into an “unwarranted all-or-nothing choice” which creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because “the defendant is plainly guilty of some offense … .” (Ibid; internal citation and punctuation omitted.)

 

For example, if the jury in Mullendore found that the defendant acted intentionally and not accidentally, it would have concluded that he committed the vehicle-related conduct prohibited by the statute and “may have been inclined to return a guilty verdict for this count even if one or more of them had doubts whether he had the specific intent to inflict great bodily injury… . Had the jury been given the option of convicting defendant of the [lesser] vehicle-related offense … it may well have selected this lesser offense.” (Ibid.) Hence, the error was not harmless.

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Rejection or Disbelief of Alibi or Third Party Guilt Evidence

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This post [0003 Centeno] discusses the problem of juror confusion regarding whether rejection or disbelief of defense evidence can supply proof that is missing from the prosecution’s evidence. This risk is particularly high with defenses such as alibi and third party guilt. The greatest danger of diluting the burden of proof in such cases is acute because the jurors are likely to simply assume the defendant is guilty if they do not believe the defense theory that someone else committed the alleged offense. For example, as observed by the 6th Circuit:

 

“The [alibi] defense can easily backfire, resulting in a conviction because the jury didn’t believe the alibi rather than because the government has satisfied the jury of the defendant’s guilt beyond a reasonable doubt, and it is the trial judge’s responsibility to avoid this possibility.” (U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 762; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 6.02, commentary [Alibi] p. 129 (1991).)

 

Thus, the trial court errs in failing to tell the jury that a contrary finding regarding the alibi testimony does not automatically authorize a guilty verdict. (See People v. Leasure (NY 1970) 312 NYS2d 563, 564 [error to instruct jury that it could draw an inference of guilt from disbelief of the alibi witness]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses: Alibi–Commentary] pp. 242-43 (West, 1999).)

 

Similarly special instructions may be appropriate with third party guilt defenses. The sample alibi instructions below may be adapted to a third party guilt situation.

 

Sample Instructions Regarding Rejection or Disbelief of Alibi* Evidence:

 

CAVEAT: re: use of the term “alibi” see FORECITE F 3400.1 Inst 3 Delete The Term “Alibi” From Title Of Instruction   [link***]

 

Alibi Alternative a:

 

Disbelief of the alibi testimony is not evidence of guilt. There has to be other testimony sufficient to persuade you beyond a reasonable doubt of the defendant’s guilt.

 

[See U.S. v. Fortes (1st Cir. 1980) 619 F2d 108, 123.]

 

Alibi Alternative b:

 

Even if the jury should choose to disbelieve alibi evidence, the government retains the burden of proof and must meet the reasonable doubt standard concerning the defendant’s presence at the time and place charged.

 

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 6.03 [Alibi] p. 95 (1999).]

 

SAMPLE ALIBI INSTRUCTION # 3:

 

If you disbelieve the defendant’s alibi evidence, such disbelief does not create an inference that the defendant was present when the [alleged] offense was committed.

 

[See OHIO JURY INSTRUCTIONS, VOLUME 4 – CRIMINAL, 4 OJI 411.03 [Alibi] p. 70 (Anderson, 2000).]

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Synonymous Terminology Used to Designate a Person Who Committed a Crime

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PC 31 and PC 971 use the use the word “principal” to designate a person who may be liable to be convicted for committing a crime. However, some cases use descriptive words such as “participant” or “confederate.” And, some jury instructions (e.g., CC 373, CC 402, CC 415, CC 540C, CC 541C, and CC 563) refer to a “coparticipant” which is defined as including the “perpetrator or anyone who aided and abetted the perpetrator.” In this context, “these terms are synonymous.” (People v. Smith (2014) 60 Cal. 4th 603, 620, fn. 2.) They “refer to any principal in the crime, whether a direct perpetrator or aider and abettor.” (Ibid.)

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Partial Acquittal Rule: Does Stone Survive Blueford?

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In Stone v. Superior Court (1982) 31 Cal.3d 503 the court recognized that 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. ___, 132 S.Ct. 2044 overruled the precedent which provided the federal constitutional basis for the partial acquittal rule.

 

Meanwhile, relying on People v. Fields (1996) 13 Cal.4th 289 – which suggested an independent California Constitutional basis for the Stone rule – the 4th District Court of Appeal held that Stone survived Blueford:

 

[Fields] does not directly resolve the question presented here, i.e., whether the Stone partial acquittal rule survives Blueford. However, because Fields makes it abundantly clear that California’s Constitution is the independent source of its double jeopardy jurisprudence to the extent that it may provide protection greater than is mandated by the federal Constitution, we conclude that we are compelled to hold that the Stone rule arises independently of the federal Constitution and that it retains its validity under the California Constitution until such time as our Supreme Court holds otherwise. We emphasize that in Blueford, the court did not hold that a partial acquittal rule is impermissible under the federal Constitution; on the contrary, it held only that such a rule is not compelled by the Fifth Amendment. (Blueford, supra, 132 S.Ct. at pp. 2050–2053.) Because Blueford does not mandate the abrogation of Stone, we do not believe it is our prerogative to disregard a rule enunciated by the California Supreme Court simply because the court did not explicitly hold that the rule arises under both the state and federal Constitutions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, we hold that Blueford abrogates Stone only to the extent that Stone held that the partial acquittal rule arises under the federal Constitution, and that the partial acquittal rule continues to apply in prosecutions in California state courts. (People v. Aranda (2013) 219 Cal. App. 4th 764, 162 Cal. Rptr. 3d 169, 174 review granted and opinion superseded, 314 P.3d 487.)

 

In December 2013 the California Supreme Court granted review in Aranda to presumably decide once and for all whether Stone survived Blueford.

 

In May 2014 Amicus Brief filed by the LA County Public Defender in April 2014 succinctly explains the issue as follows:

 

The prosecution, as expected, argues that this court relied upon Blueford v. Arkansas (2012) 566 U.S. ___, 132 S.Ct. 2044. The defense, as expected, argues that Stone was based upon California’s Constitution and California precedent. The majority opinion in Stone discusses both state and federal law without expressing a leaning toward one predominating over the other. (2014 WL 3373348 (Cal.), p. 3.)

 

The amicus brief also does an excellent job of laying out the argument and authority in favor of finding an independent California constitutional basis for the acquittal first rule including the following:

 

This court has recognized that the United States Constitution sets forth the minimum standards of double jeopardy for criminal defendants. Importantly, and perhaps critically, this court also recognized that “[o]f course, we remain free to delineate a higher level of protection under article I, section 15 … of the California Constitution.” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 71, fn. 13 citing Stone, supra.) For almost 150 years, this court has accorded criminal defendants more protections under California’s double jeopardy clause than the minimum decreed by the United States Constitution…[T]his court has historically given California’s Constitutional double jeopardy clause independent significance and priority, despite United States Constitutional law to the contrary. (Id. At p. 5.)

 

Oral argument has not yet been calendared in Aranda.