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Reversible Chiu Error: Not Clear Beyond A Reasonable Doubt That Jurors Rejected Natural and Probable Consequences Theory

People v. Brown (2016) 247 CA4th 211 reversed Brown’s first degree murder conviction in light of People v. Chiu (2014) 59 Cal.4th 155.

The jury was instructed on three first degree murder theories: (1) Brown was the actual killer, (2) he aided and abetted the actual killer with the intent to kill, and (3) he aided and abetted fighting and a first degree murder was the natural and probable consequence of the fight. However, the the third theory — based on the natural and probable consequences doctrine — was invalid.

When the judge instructs a jury on multiple theories of guilt, one of which was legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.]” (People v. Chiu, supra, 59 Cal.4th at p. 167.) Because the defendant in Chiu was prosecuted on a direct aiding and abetting theory—the permissible theory—and as an aider and abettor under the natural and probable consequences theory—the legally impermissible theory—(id. at p. 158), and the court could not “conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory,” reversal was required (id. at p. 167).

An instruction that relieves the prosecution of the obligation to establish a necessary element violates a defendant’s right to due process under the state and federal Constitutions, and is subject to harmless error analysis under [Chapman.] (People v. Cox (2000) 23 Cal.4th 665, 676–677.)

Accordingly, because the reviewing court in Brown could not conclude beyond a reasonable doubt that jury rejected natural and probable consequences doctrine as basis for first degree murder conviction the Chui error warranted reversal of the first degree murder conviction.

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Mens Rea and PTSD

People v. Herrera (2016) 247 CA4th 467 held that exclusion of psychiatric testimony regarding the defendant’s post-traumatic stress disorder (PTSD) required reversal of his murder conviction. PC 28 and 29 limit the use of mental disorder evidence to negate a defendant’s capacity to form any mental state is prohibited, but may be offered on the issue of whether defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought (PC 28). Thus, an expert may not testify that the defendant had or did not have the required mental states for the charged crime (PC  29). However, the expert may permissibly testify regarding the defendant’s mental state at the time of the offense. Hence, the judge in Herrera erred by refusing to permit the defense expert to testify regarding defendant’s particular diagnoses and mental condition and their effect on him at the time of the homicide.

Moreover, the error was prejudicial because defendant admitted killing the deceased. The only trial issue was defendant’s mental state at the time of the homicide. The trial court’s evidentiary ruling vitiated the claim that defendant had lapsed into a dissociated stated in which he did not deliberately premeditate the stabbing. It also precluded the jury from effectively evaluating the doctor’s testimony regarding defendant’s PTSD and its relation to the issues of self-defense, imperfect self-defense, and heat of passion.

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Chun Error: 9th Circuit overturns CSC Finding of harmless error

Chun was convicted of second-degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abetter. He appealed, arguing that felony murder was inapplicable under the merger doctrine. He also contended that improperly giving the jury the felony murder instruction allowed the jury to convict him of second-degree murder without finding malice, an element of the crime. The California Court of Appeal agreed and reversed Chun’s murder conviction. People v. Chun, UNPUBLISHED, 155 Cal. App. 4th 170, 65 Cal. Rptr. 3d 738 (Ct. App. 2007). Ultimately the CSC agreed that giving the felony murder instruction was error but held the error harmless. (People v. Chun (2009) 45 C4th 1172, 1199 [when underlying felony is assaultive in nature, felony merges with homicide and cannot be basis of a felony-murder instruction]; see also CC 541A “inserting appropriate “nonassaultive” felon(y/ies).)

Chun sought a writ of habeas corpus from the district court, which denied it. However, the 9th Circuit reversed under the harmless error standard for federal habeas corpus review established in O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995) and Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)) holding that the CSC’s finding that the error was harmless beyond a reasonable doubt was objectively unreasonable. (See Davis v. Ayala (2015) 135 S. Ct. 2187, 2198-99.)

The jury  almost certainly based its conviction on Chun having aided and abetted the shooting because it found that Chun was a gang member present at the scene of a gang shooting who did not fire a weapon. The jury acquitted Chun of the felonies of shooting at a vehicle and firing from a vehicle (or aiding or abetting those acts). Both acquittals were inconsistent with the second-degree murder conviction.

When faced with inconsistent verdicts, the courts cannot know which one—the conviction or the acquittal—”the jury ‘really meant.'” United States v. Powell, 469 U.S. 57, 68, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). In such cases the jury may have convicted Chun through “mistake [or] compromise,” in which case proper instructions could easily have swayed the outcome. See Powell, 469 U.S. at 65; see also Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680 (1942) see also Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[A] verdict . . . only weakly supported by the record is more likely to have been affected by errors . . . “];  Parle v. Runnels, 505 F.3d 922, 928 & n.7 (9th Cir. 2007) [the Supreme Court’s analysis in Glasser and Strickland binds all fair-minded jurists].)

Hence the 9th Circuit concluded:

This is precisely the kind of case to which O’Neal’s “grave doubt” holding is meant to apply. We also find the state court’s harmlessness decision objectively unreasonable within the meaning of section 2254(d)(1). No fair minded jurist would conclude that it was correct to find the error harmless beyond a reasonable doubt, given the total absence of evidence of what Chun did to aid and abet and our resulting inability to assess the effect of the instructional error which permitted the jury to convict Chun absent a showing of malice.

Chun v. Lopez, No. 13-16466, 2016 U.S. App. LEXIS 10457, at *1-6 (9th Cir. June 9, 2016)

***Note:  On June 24, the state filed a petition for panel rehearing and rehearing en banc.

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Chiu Error: Review Granted to Reconsider People v. Favor (2012) 54 Cal.4th 868

The CSC has granted review in several cases to consider whether to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) ___ U.S. ___ [113 S.Ct. 2151] and People v. Chiu (2014) 59 Cal.4th 155?

See People v. Mateo (Feb. 10, 2015, B258333) [nonpub. opn.], review granted 5/11/2016 (S232674); see also People v. Gutierrez (Mar. 3, 2016, B250333) [nonpub. opn.], review granted 5/25/2016 (S233295); People v. Morales (Feb. 17, 2016, B253249) [nonpub. opn.], review granted 5/25/2016 (S233255).) Briefing in Gutierrez and Morales was deferred pending decision in Mateo. [NF]

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CSC Review Granted: Lesser Included Offenses and Proposition 47

The CSC has granted review in three cases to consider whether Proposition 47 (“the Safe Neighborhoods and Schools Act”) applies to the offense of unlawful taking or driving a vehicle (Veh. Code,  10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18.

See People v. Page (2015) 241 Cal.App.4th 714, review granted 1/27/2016 (S230793/E062760), see also People v. Casias (Mar. 22, 2016, H042065) [nonpub. opn.], review granted 5/25/2016 (S233979); People v. Gomez (Mar. 15, 2016, E062867) [nonpub. opn.], review granted 5/25/2016 (S233849)

Briefing in Casias and Gomez was deferred pending decision in Page.[NF]

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Chiu Applies Retroactively to Convictions That Were Final on Appeal When Chiu Was Decided

In re Lopez (2016) 246 CA4th 350 concerned a conviction which was final on appeal when People v. Chiu (2014) 59 C4th 155 was decided. See The Chiu Doctrine Explained.  The Chiu opinion did not state whether it applied retroactively to convictions that were final on appeal when it was decided.

Lopez concluded that Chiu applies retroactively based on the reasoning in People v. Mutch (1971) 4 C3d 389, 392.

A court’s new interpretation of a criminal statute, which had previously been misconstrued, is not a change in the law but a declaration of what the intent of the Legislature had been. “Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim.” (Woosley v. State of California (1992) 3 C4th 758, 794 [citations omitted].)

Murder, aider and abettor liability, and coconspirator liability are all statutory. “By limiting the scope of aider and abettor liability in the commission of murder, the court in Chiu was, in effect, engaging in statutory interpretation and declaring the Legislature’s intent . . . .” (246 CA4th at 359-60.) Accordingly, Chiu must be applied retroactively. (Ibid.)

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Error to Instruct on Felony Murder, but Not Malice Murder, its Lesser Included Offenses, or the Defenses of Accident and Self-defense

In People v. Gonzalez , District: 2 DCA , Division: 4 , Case #: B255375 the prosecutor charged appellants with malice murder but tried the case solely on a felony murder theory. The trial court did not instruct the jury on malice murder, its LIOs, or the defenses of accident and self-defense. “[U]nder the accusatory pleadings test, appellants were entitled to instructions on malice murder and the lesser included offenses to murder, if warranted by substantial evidence.”

See also Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder?

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Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder?

People v. Campbell (2015) 233 CA4th 148, suggested that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson:

While in the present case we are not dealing with the failure to give a lesser included on the underlying felony charge, the analysis is substantially the same. In Ramkeesoon [People v. Ramkeesoon (1985) 39 C3d 346] and here, there was substantial evidence that the underlying felony was not committed. In Ramkeesoon, it was the after-formed intent; here, it is whether Fort had the intent to aid and abet the robbery. In both cases, it is clear that the defendant killed another person. Because the Ramkeesoon court assumed for purposes of the appeal that the murder conviction was based on felony murder, the only way the jury in that case and in the present case could convict the defendant of the homicide was to find that the underlying felony had been committed by the defendant. As in Ramkeesoon, the jury here was left with an “‘unwarranted all-or-nothing choice.’” (People v. Ramkeesoon, supra, 39 C3d at p. 352.)

However, People v. Gonzalez (2016) 246 CA4th 1358, disagreed with Campbell.

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CC 105 Is Correctly Given When Evidence Is Conflicting as to Whether a Witness’s Character for Untruthfulness Was Discussed

In People v. Jimenez (2016) 246 CA4th 726 the trial court properly instructed jury that it could conclude the character for truthfulness of a witness (the alleged victim) was good based on lack of discussion of character in community where one witness (Hoffman) testified regarding lack of discussion, but other witnesses testified that the witness was known to lie.

The optional language in CC 105 states that “if the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.” This optional language is not legally erroneous because it reiterates the principle articulated in People v. Adams (1902) 137 Cal. 580, and a number of subsequent decisions, that the lack of discussion in the community regarding a person’s character trait may be used by the trier of fact to infer that the person’s character for that trait is good.

Hoffman’s testimony provided evidence which, if believed by the jurors, would have allowed them to conclude that the witness’s character had not been discussed in the community.

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Self Defense: Presumption of Reasonableness Applies Even If Judge Finds That Defendant Was Not Legally Subletting the Residence

People v. Grays (2016) 246 CA4th 679 held that the trial court erred when it refused to instruct the jury that a person using force within his residence against a person who forcibly enters shall be presumed to have held a reasonable fear of injury to self or another member of the household (PC 198.5). The court refused the instruction on the ground that the presumption does not apply to a person who is not a lawful resident of the home.

The reviewing court concluded that PC 198.5 was intended to give residential occupants additional protection where they are confronted by unlawful intruders in their home. The Legislature did not intend to restrict the application of section 198.5 to those who actually own their homes. If the jury believed Grays’ testimony that he was living in the residence, it could have found he had a reasonable expectation of protection against unwanted intruders. Although the trial court found that Grays was not legally subletting the unit, the evidence showed he had been living in the home for months, paid rent, kept his belongings there, and had access to a key to the home. The trial court therefore erred in refusing to instruct pursuant to section 198.5.