All posts by jpadmin

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CC 548: Murder Alternative Theories — 2016 Revision

Prior to 2016 CC 548 simply informed the jurors that: “You do not need to agree on the same theory [of murder].” However, in People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 recognized that giving such an instruction may be reversible error if the different theories of guilt result in different degrees of guilt:

Unanimity was required in this case as to the theory of guilt as a result of different theories supporting different degrees of murder. The prosecutor understood the need for      unanimity at the time he requested instructions on natural and probable consequences, specifically telling the trial court the jury could return a verdict of murder in the first or second degree, depending on what theory they unanimously agreed upon.

(Sanchez, 221 CA4th at 1025.)

Accordingly, in 2016 CC 548 was revised as follows:

You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory[, but you must unanimously agree whether the murder is in the first or second degree].

The Committee notes state: “The brackets around the new language indicate that it is optional, to be given in the court’s discretion.”

See https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3

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CC 207: Proof Need Not Show Actual Date: Exception When Evidence Focuses on One Day to Exclusion of Others

“[W]hen the prosecution’s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), [that] it is improper to give the jury an instruction using the ‘on or about’ language.” (People v. Jennings (1991) 53 Cal.3d 334, 358–359; People v. Gavin (1971) 21 Cal.App.3d 408, 416-17; see also, this post “On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense.)

This rule was further discussed in People v. Rojas (2015) 237 CA 4th 1298,1304-06, which held that instructing on CC 207 was not error because the jury “expressed no confusion over the ‘on or about’ language in [CC 207], nor was there any evidence of uncharged criminal acts upon which the Count 1 conviction could have mistakenly been based.” [But see post dated Proof Need Not Show Actual Date: Ex Post Facto Violation]

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Written Jury Instructions: Trial Procedure Note

Often the record below does not establish that the packet of instructions in the Clerk’s Transcript is the actual packet the jurors received (or an exact copy of the jurors’ packet). The Rules of Court do not expressly require that the written instructions be included in the Clerk’s Transcript. (See Rule 8.320; 8.610 for death cases.) However, it could be argued that they are required under Rule 8.320(b)(5) [8.610(a)(E) for death cases] which requires inclusion of “Any written communication between the court and the jury….” Certainly a written jury instruction qualifies as a written communication between the court and jury.

In light of the potential confusion in the appellate record as to what written instructions the jurors actually received, trial counsel may wish to protect the record in some manner; e.g., by offering an exact copy of that packet as a “Court Exhibit” or by specifically requesting on the record that the actual packet be preserved by the Clerk and that the chain of custody of that custody be noted in the record.

In the absence of a clear and certain record as to exactly which instruction packet the jurors received, appellate counsel may be at a disadvantage in evaluating and raising certain jury instruction issues. For example, in People v. Rojas (2015) 237 CA 4th 1298,1305 counsel had reason to believe that an important unanimity instruction had been omitted from the jury’s packet. However, because a supplemental Clerk’s Transcript indicated that the written unanimity instruction was given to the jurors appellate counsel was placed in a position of having to “prove the instruction was left out of the jury’s packet of written instructions.” (Ibid.) Had the actual instruction packet been properly preserved counsel could easily have resolved the conflict regarding whether or not the jury actually did receive the unanimity instruction.

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No Written Instruction? Oral Instruction Not Vitiated

This post “Variance Between Reporter’s Transcript And Written Instructions” discussed which instruction controls – for purposes of appellate review – when the written and oral versions of the instruction are different.

A corollary issue arises when a particular instruction was completely omitted from either the written or oral versions of the instruction. In People v. Rojas (2015) 237 CA4th 1298,1305 the defendant contended that an important instruction on juror unanimity was given orally but not included in the packet of the written instructions given to the jury.

The Court of Appeal resolved the question as follows:

California requires augmentation of oral instructions with written instructions only upon request [citation], and even then, the omission of a written instruction does not vitiate its oral counterpart. [Citation.] Rojas acknowledges  that a unanimity instruction was provided orally as to Count 1, and we presume the jury heard the instruction and followed it accordingly. [Citation.]   (Rojas at 1305-06.)

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The Judge Erroneously Gave the Jury a Supplemental Jury Instructions Without First Consulting with Counsel

In People v. Brown (2016) 247 CA4th 211 the not guilty verdict form for first degree murder had been signed and dated, but the signature and date had been crossed out and the words “withdrawl [sic]” and “void” were written across it. Without consulting counsel or making counsel aware of the situation, the judge sent the jury a note and a new not guilty form asking it to sign and date the appropriate form for the verdict they had reached.

The Court of Appeal concluded that the trial court erred by giving a supplemental jury instruction to the deliberating without consulting with counsel. A court should not entertain communications from the jury except in open court, with prior notification to counsel. A defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. Counsel may have been able to suggest instructions that would amplify, clarify, or modify the court’s instruction.

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FAVORABLE KILL ZONE CASE

In People v. Falaniko, No. B259918, 2016 Cal. App. LEXIS 632, at *14-15 (Ct. App. July 29, 2016) there was evidence that the defendant shot into a building, but no evidence that he intended to kill everyone inside or that two of the victims were in fact inside. The reviewing court held that there must be actual evidence that the defendant’s intent was to kill everyone in the vicinity, such an intent cannot just be assumed:

A conviction for attempted murder under a kill zone theory requires evidence that the defendant created a kill zone; that is, while targeting a specific person he attempted to kill everyone in the victim’s vicinity, or he indiscriminately sought to kill everyone in a particular area without having any primary target. [Citation.] In addition, before a defendant may be convicted of attempted murder under a kill zone theory, the evidence must establish that all the victims were actually in the kill zone. [NF]

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Unintelligible Verdict Forms

When a jury states it has a verdict and submits signed and dated guilty and not guilty verdicts on the same count, the flaw is not merely one of inconsistency in the verdicts; the jury’s verdict on that count is simply unintelligible. (See People v. Carbajal (2013) 56 Cal.4th 521.) The court’s failure to notify counsel of the problem implicates the defendant’s right to counsel. If notified counsel may be able to guide the court to the proper response i.e., informing the jury that it cannot find defendant guilty and not guilty of the same first degree murder. (See People v. Brown (2016) 247 CA4th 211, 233.) The error was prejudicial. However retrial is not precluded because the jury’s unintelligible verdict was not the equivalent of a verdict of acquittal.

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Imperfect SELF DEFENSE AND DELUSIONS

A defendant who acts with the state of mind required for imperfect self-defense does not harbor express malice. “Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense.” (People v. Elmore (2014) 59 Cal.4th 121, 133. California law allows the jury to consider a defendant’s mental disabilities in deciding whether he or she had an actual but unreasonable belief in the need for self-defense.

In People v. Ocegueda (2016) 247 CA4th 1393 the judge instructed the jury it could consider evidence of defendant’s mental disabilities “only for the limited purpose” of deciding whether defendant harbored the “intent to kill.” However, PC 28 expressly makes evidence of mental disabilities admissible to consider whether a defendant harbored express malice. Therefore, by limiting the jury’s consideration of mental disability evidence to the question of whether defendant had an intent to kill—but not whether he harbored express malice—the judge’s instruction violated PC 28.

In Ocegueda the Attorney General contended that the instruction was correct because the standard instructions on attempted murder and attempted voluntary manslaughter “do not require a showing of malice per se, but instead, a showing of the specific intent to kill.” However, the reviewing court rejected this contention:

[CC 604], the pattern instruction on attempted voluntary manslaughter under a  theory of imperfect self-defense, instructs jurors: “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense.” This properly places the burden on the prosecution to prove the existence of malice, not simply the intent to kill. Indeed, one of the requirements of imperfect self-defense as set forth in the pattern instruction is that the “[t]he defendant intended to kill when he acted.”  But this does not make such a defendant guilty of attempted murder. To the contrary, a defendant acting in imperfect self-defense cannot be convicted of attempted murder because murder requires malice, and express malice requires “a deliberate intention  unlawfully to take away the life of a fellow creature.” (Pen. Code, § 188, italics added.) A defendant who intends to kill in imperfect self-defense does not do so “unlawfully” within the meaning of Penal Code section 188. [Citation.] (Ocegueda, supra, at 1409.)

The Attorney General also relied on Elmore to contend that Ocegueda was not entitled to any instruction on imperfect self-defense because that defense can only be supported by a true mistake of fact, not mental disabilities:

“A defendant who makes a factual mistake misperceives the objective circumstances. A delusional defendant holds a belief that is divorced from the circumstances. The line between mere misperception and delusion is drawn at the absence of an objective correlate. A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation is not delusional. One who sees a snake where there is nothing snakelike, however, is deluded. Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant’s mind.” (Elmore, supra, at p. 137.)

However, the reviewing court in Ocegueda rejected the Attorney General’s contention:

We do not read Elmore as precluding imperfect self-defense in any case where mental disabilities affect the defendant’s beliefs or perceptions. The key distinction identified in Elmore is the “absence of an objective correlate.” (Elmore, supra, 59 Cal.4th at p. 137.) Here, defendant claimed he saw Garcia pull a metal object—which defendant believed to be a gun—out of his waistband. The Attorney General suggests that such a belief, even if genuine, must have been purely delusional because no other witness saw Garcia make such a motion, and no gun or gun-like object was found on Garcia. But a single witness, even if not inherently credible, may provide sufficient evidence to establish a fact. [Citations.] (Ocegueda, supra, at  1409-10.)

Accordingly, whether the defendant’s statements were sufficiently credible or his beliefs purely delusional were questions of fact for the jury to decide. There is no “heightened evidentiary standard requiring corroborating evidence independent of defendant’s statements to show his beliefs were not purely delusional.”

For these reasons, the trial court erred by precluding the jury from considering evidence of defendant’s mental disabilities in deciding whether he harbored the state of mind required for imperfect self-defense.

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CC 207: Proof Need Not Show Actual Date: Ex Post Facto Violation

In People v. Rojas (2015) 237 CA4th 1298, 1306-07 the defendant argued that a modified version of CC 207 resulted in an ex post facto violation because the instruction allowed the jurors to convict Rojas of violating PC 288.7(a) based on events which occurred prior to the effective date of the statute.

“It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment.” (People v. Hiscox (2006) 136 CA4th 253, 256.)

Because the record  in Rojas allowed for reasonable doubt over whether Count 2 was based on an act that occurred on or after the effective date of the statute, the conviction was reversed. (People v. Rojas, 237 Cal. App. 4th 1298, 1304-07.)

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“Functional Equivalent” of LWOP and Juvenile Offenders

People v. Franklin (2016) 63 /c4th 261 held that juvenile homicide offenders may not be sentenced to the “functional equivalent” of LWOP without the protections outlined in Miller v. Alabama (2012) 567 U.S. __. Initially the CSC held that Miller’s prohibition on LWOP sentences for juvenile homicide offenders also prohibits sentences that are the “functional equivalent” of LWOP. The CSC notes that a similar question arose in the context of sentencing for juvenile nonhomicide offenders. In Graham v. Florida (2010) 560 U.S. 48, the Court held that no juvenile who commits a nonhomicide offense could be sentenced to LWOP. In People v. Caballero (2012) 55 Cal.4th 262, the CSC held that Graham also prohibited sentencing a juvenile nonhomicide offender to the functional equivalent to LWOP.

 Note: Senate Bill No. 260, which added Penal Code section 3051, moots Miller claims, but remand was nevertheless ordered in Franklin to provide the parties with an opportunity to make an accurate record. The Legislature explicitly passed Senate Bill No. 260 to bring juvenile sentencing into conformity with Graham, Miller, and Caballero.

 The CSC noted that its “mootness holding is limited to circumstances where, as here, PC 3051 entitles an inmate to a youth offender parole hearing against the backdrop of an otherwise lengthy mandatory sentence. The Court expressed no opinion on Miller claims by juvenile offenders who are ineligible for such a hearing under section 3051, subdivision (h), or who are serving lengthy sentences imposed under discretionary rather than mandatory sentencing statutes.”