All posts by jpadmin

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Jury Should Consider Defendant’s Mental Impairment in Deciding Whether False Statements Showed Consciousness of Guilt

In People v. McGehee (2016) 246 CA4th 1190 the defense argued that McGehee suffered from schizophrenic delusions involving demons and that he killed his mother during such an episode. The jury was instructed that if McGehee made any false or misleading statements related to the crime, that conduct may show consciousness of guilt. (CC 362.) The jury was also instructed that it could not use evidence of his mental illness for any purpose other than to decide if he possessed the required mental state for murder. (CC 3428.)

However, People v. Wiidanen (2011) 201 CA4th 526 held that the jury should have been allowed to consider the defendant’s voluntary intoxication when determining whether false statements he made were knowingly false and therefore evidence of consciousness of guilt. See Consciousness of Guilt: False Statements: Defense Theory of Intoxication

The same logic applies to evidence of mental illness. “Like intoxication, mental illness or impairment has obvious relevance to the question of ability to perceive or recall events.” (246 CA4th at 1204-05.) Thus, the jury should have been allowed to consider the mental state evidence for purposes of assessing consciousness of guilt.

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Chiu Doctrine Not Applicable to Transferred Intent

People v. Chiu (2014) 59 C4th 155 held that an aider and abettor could not be found guilty of premeditated murder under the natural and probable consequences doctrine because the mental state for premeditation and deliberation is “uniquely subjective and personal.” (See The Chiu Doctrine Explained.)

However, People v. Vasquez (2016) 246 CA4th 1019 held that a prosecution theory of transferred intent does not implicate the concerns raised in Chiu because under the transferred intent doctrine, the intent required for the crime at issue is already established with respect to one victim and is transferred to the ultimate victim.

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Was the Maiden Voyage of the Titanic Merely “Incomplete”?

In People v. Cortez (2016) 63 C4th 101 the prosecutor effectively told the jury that a non-imaginary belief is proof beyond a reasonable doubt:

“The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, ‘I believe I know what happened, and my belief is not imaginary. It’s based in the evidence in front of me.’ …That’s proof beyond a reasonable doubt.”

The four-justice majority concluded that the prosecutor’s definition was “incomplete at best.” (63 C4th at 131.)

However, Justice Werdegar, joined by Justices Liu and Cuéllar, concluded that the prosecutor’s definition of reasonable doubt effectively reversed the burden of proof:

The vice in the prosecutor’s explanation was that it reversed the standard of proof beyond a reasonable doubt, telling the jury that their belief in guilt need only be nonimaginary, rather than that the evidence must exclude all reasonable doubts.”  [Emphasis in original.] (Id at 134.)

***

The majority characterizes the prosecutor’s remarks as “correct” but “incomplete.” (Maj. opn., ante, at p. 131.) This is a bit like describing the maiden voyage of the Titanic as “incomplete.” The essence of the proof beyond a reasonable doubt standard is its specification of a particular level of certainty on the fact finder’s part; omitting mention of that level from an explanation of the standard, as the prosecutor did here, makes the explanation not merely incomplete but wrong. “Proof to a nonimaginary degree” is not equivalent to proof beyond a reasonable doubt, and the prosecutor erred in saying it is. [emphasis added.] (Id. at 135.)

The remark could not “reasonably … be understood in an unobjectionable manner.” (Ibid.)

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Instruction Concerning Double-Counting of Aggravating Factor must Be Requested

People v. Salazar (2016) 63 C4th 214, 254 held that the double counting instruction must be requested:

“Defendant claims his prior murder conviction was improperly used both as a special circumstance under section 190.2, subdivision (a) and as an aggravating factor under section 190.3, factors (b) and (c). He contends the jury should have been instructed not to ‘double count’ the conviction in this fashion. He acknowledges that in People v. Proctor (1992) 4 C4th 499, 550, we held such an instruction is only available upon request…. To the extent defendant argues that the same incident may not be considered as a special circumstance and as an aggravating factor, he is incorrect. To the extent he argues that an instruction on double counting an aggravating factor is required in the absence of a request, we are not persuaded to change our settled view.”  [Citations omitted.]

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Lesser Related Offenses: Conflict Between Birks and the Right to Present a Defense

In People v. Salazar (2016) 63 C4th 214, 251 the defendant unsuccessfully sought instruction on accessory after the fact as a lesser related offense. The Court, in reliance on People v. Birks (98) 19 C4th 108 [Birks], held that such an instruction is permissible only on stipulation of the parties. (See also People v. Rangel (2016) 62 C4th 1192, 1230 [same]; People v. Yeoman (2003) 31 C4th 93,129 [same].)

However, both Birks and Hopkins v. Reeves (1998) 524 US 88, upon which it relied, considered uncharged lesser related offenses in the context of traditional lesser offense analysis under standard cases such as Beck v. Alabama (80) 447 US 625 and People v. Sedeno (74) 10 C3d 703.  Thus, the issue was framed in terms of what alternatives may be presented to the jury and whether the process is sufficiently reliable.  This analysis does not expressly consider and address the fact that a lesser offense can be a “defense” (see Delaney v. Superior Court  (90) 50 C3d 785, 809) and, hence, restriction of instruction on a lesser offense may be a restriction of the defendant’s right to present a defense.

While Reeves (in which the lesser offense was requested in reliance upon Beck) may be read to have implicitly held that the state may so restrict the defense, it did not confront the issue head-on.  Reeves did not discuss whether there was a factual basis for such an argument (i.e., strong evidentiary support for the lesser offense and explicit defense reliance upon such evidence as a primary defense theory). Nor did Reeves confront the well-developed body of federal law establishing a federal constitutional basis under the 6th and 14th amendments to instruct the jury on the theory of the defense.

Similarly, Carter v. United States (2000) 530 US 255 reaffirmed the general rule that under FRCP 31(c) the defendant is not entitled to a jury instruction on lesser offense when elements of offense are not a subset of charged offense.  However, in Carter the Court limited its discussion to Rule 31.  It did not address the question of whether the defendant’s constitutional rights require instruction on a non-included lesser offense as a defense theory.

Hence, the cases which have limited lesser offenses to statutorily included offenses should not preclude an argument that instruction on a lesser related offense may be required by the defendant’s right to instruction on the defense theory of the case which is founded on the federal constitutional rights to due process, compulsory process and fair trial by jury.  (5th, 6th and 14th Amendments; Mathews v. United States (1988) 485 US 58, 63 citing Stevenson v. United States (1896) 162 US 313[refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213; People v. Wright (1988) 45 C3d 1126, 1141-43; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.)

For example, in Sanborn v. Commonwealth (1988, Kentucky) 754 SW2d 534, the defendant in a rape case had a right to an instruction on the lesser related offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead.  That was so because reliance on a lesser charge is a defense which the defendant has the right to present to the jury.  (See also U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004 [defendant’s testimony that he only assisted after the crime necessitated instruction on defense theory of accessory after the fact which is not a lesser included].)

Moreover, the U.S. Supreme Court has consistently held that domestic rules of evidence or procedure may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (87) 483 US 44; Green v. Georgia (79) 442 US 95; Davis v. Alaska (74) 415 US 308; Chambers v. Mississippi (73) 410 US 284;Washington v. Texas (67) 388 US 14.) The Supreme Court has applied a balancing test in resolving conflicts between such domestic rules and the federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence.  (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.)

Because Birks is a domestic rule it should not control in a situation where the defendant will be denied the fundamental right to defend against the charge. Thus, in a case where the lesser related offense is a primary focus of the defense theory of the case, there may be a basis for challenging the state rule enunciated in Birks and Reeves as a violation of the defendant’s federal constitutional rights.

See also, FORECITE LRO II Theories For Instruction On Lesser Related Offenses Notwithstanding Birks

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Cautionary Instruction on Defendant’s Statements Not Required Sua Sponte

In People v. Diaz (2015) 60 C4th 1176 the California Supreme Court reconsidered the requirement that the cautionary principle reflected in CALJIC 2.71.7 [now CC 358] must be given sua sponte. The Court decided that “in light of a change in the law that requires the general instructions on witness credibility to be given sua sponte in every case, the cautionary instruction is not one of the general principles of law upon which a court is required to instruct the jury in the absence of a request. The cautionary instruction does not reflect a legal principle with which jurors would be unfamiliar absent the instruction, and the defendant may not always want the instruction to be given.” (60 C4th at 1189.)

However, the Court has still not decided whether this holding applies retroactively, finding no prejudice to Diaz from the court’s failure to give the instruction. (Id. at 1195; see also People v. Salazar (2016) 63 C4th 214, 250 [same].)

See generally FORECITE PG V(A) [trial judge’s sua sponte duties to instruct].

See also, FORECITE F 362.1 Inst 9 Consciousness Of Guilt From False Statements: Defense Objection Precludes Instruction Which Benefits Defendant.

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Self Defense: Escalation of Nondeadly Assault

Where a counter assault to a nondeadly attack is so sudden and perilous that no opportunity is given to “decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.’ [Citations.]” (People v. Salazar (2016) 63 C4th 214, 249.) However, People v. Gleghorn (1987) 193 CA3d 196, 201 and People v. Quatch (2004) 116 CA4th 294, 303 correctly hold that this qualification only applies where the defendant commits a simple assault. (Ibid.)  “[I]f one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.]” [emphasis added in Salazar opinion.] (Ibid.)

For sample instructions and further briefing on this issue see FORECITE F 3471.

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Variance Between Reporter’s Transcript And Written Instructions

—Case By Case Analysis

When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable…”]; People v. Marshall (1990) 50 C3d 907, 931, fn. 3 [Supreme Court quotes the instructions as they appear on the written forms and recorded in the Clerk’s Transcript and not the orally delivered instructions recorded in the Reporter’s Transcript, where there is no substantial variation between the two]; People v. Diaz (1989) 208 CA3d 338, 347, dissenting opinion of Brauer, J.) When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail. (People v. Thompson (2009) 180 CA4th 974; but see People v. Wilson (2008) 44 C4th 758, 803 [“written instructions . . . control”].)

—Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions

In People v. McLain (1988) 46 CA3d 97, 111, fn 2, the court orally instructed the jury and then sent written instructions into the jury room for use during deliberations. With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed “that the jurors were guided by the written version ….” (Ibid.; see also People v. Wilson (2008) 44 CA4th 758, 803; People v. Prieto (2003) 30 CA4th 226, 255 [“the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions”]; People v. Majors (1998) 18 CA4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury]; People v. Osband (1996) 13 C4th 622, 687 [misreading of instructions is at most harmless error when the written instructions received by the jury are correct]; People v. Crittenden (1994) 9 CA4th 83, 138 [written instructions control over misspoken oral instructions]; People v. Rodriguez (2000) 77 CA4th 1101, 1112-13 [as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions]; but see People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

—CC 200 Requires Reliance On Written Instructions

In People v. Mills (2010) 48 CA4th 158, 200-01 the trial court misspoke on three occasions while reading the instruction to the jurors but any error was not prejudicial in light of, inter alia, CC 200: “The trial court committed no reversible error, structural or otherwise. The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. ‘We of course presume “that jurors understand and follow the court’s instructions.” [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.’ [Citation.] Because the jury was given the correctly worded instructions in written form and instructed with [CC 200] . . . [‘ to only consider the final version of the instructions in your deliberations,’] and because on appeal we give precedence to the written instructions, we find no reversible error. [Citations.]”

–Unpublished Decision Defaults To Oral Instructions To Affirm Conviction

In People v. Anguiano UNPUBLISHED (April 23, 2013; F062011) the reviewing court found a way to rely on the oral instructions to cure a defect in the written instructions as follows:

“Although this court gives priority to the written version of an instruction when a conflict exists between the written and oral versions, the jury is not informed of this rule.” (People v. Wilson (2008) 44 C4th 758, 804.) In a criminal trial, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘”whether the ailing instruction … so infected the entire trial that the resulting conviction violates due process.”‘ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Huggins (2006) 38 C4th 175, 192.) “‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional] right ….'” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643, fn. omitted; Estelle v. McGuire, supra, 502 U.S. 62, 72.) Correct oral instructions, the jury’s awareness of differences between the written and oral instructions, and the weight of evidence against the defendant are all factors considered in determining whether or not an erroneous instruction was harmless. (People v. Wilson, supra, 44 C4th 758, 804.)

—Substantial Discrepancies: Oral Instructions Should Control.

As discussed in FORECITE PG V(G)(4), it is only through oral instruction that it “can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (1985) 10 Kan.App.2d 397 [699 P2d 585]; see also State v. Castoreno (1994) 255 Kan. 401, 411-12 [874 P2d 1173, 1180-81]; People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Ibid.; see also People v. Anguiano UNPUBLISHED (discussed above) [relying on oral instead of written instructions when there was “no indication that [the jury] was aware of the difference between the oral and written versions of CC1401 since it did not ask any questions on this point”]; cf. People v. Wilson (2008) 44 CA4th 758, 803-04 [“Written instructions . . . control” but “[i]t is possible the jury followed the oral instruction.”].) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition. (See, e.g., People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

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Improper to Instruct That an “Abiding Conviction” Means A Verdict “You Will Be Comfortable with … a Year from Now”

In People v. Muniz [UNPUBLISHED] (2011) 198 CA4th 1324, at the beginning of voir dire, the judge instructed the jurors that in “plain English” an “abiding conviction” means “when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now.”

The majority opinion on appeal concluded that “there is no reasonable likelihood that the jurors interpreted the trial court’s use of the word ‘comfortable’ to mean that they did not have to have an abiding conviction.”

However, as persuasively explained in the dissenting opinion, the judge’s definition was contrary to the California Supreme Court’s conclusion that the word “abiding,” in “abiding conviction,” means that the conviction is of a “lasting, permanent nature.” (People v. Brigham (1979) 25 C3d 283, 290-91.) Thus, the trial court erred when it instructed the jury that an “abiding conviction” may have a duration of a year or less.

Moreover, “as to depth of feeling, the trial court instructed the jury that it need only be ‘comfortable’ with its verdict. The trial court’s comment devalues the rule that the truth of the charge must be “deeply felt” by the jurors. [Citation to People v. Light (1996) 44 CA4th 879, 885] Mere ‘comfort’ does not convey how strongly the jurors must feel about their findings of fact.”

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Improper to Describe Proof Beyond a Reasonable Doubt in Terms of “Every Day” Decisions

In People v. Nguyen (1995) 40 CA4th 28, 35-37, the prosecutor told the jury that people apply the reasonable doubt standard “every day” and it is the same standard people customarily use in deciding whether to change lanes when driving or whether to get married. The court of appeal held that this argument trivialized the reasonable doubt standard.

As the Supreme Court held in People v. Brannon (1873) 47 C 96: “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required … There must be in the minds of the jury an abiding conviction, to a moral certainty, to the truth of the charge, derived from a comparison and consideration of the evidence.” (See also People v. Johnson (2004) 115 CA4th 1169.)

Accordingly, the Nguyen court concluded: “We strongly disapprove of arguments suggesting the reasonable doubt standard is used in a daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is ‘very high’ and tells the jury to read the instructions.” (Nguyen, 40 CA4th at 36; see also People v. Johnson (2004) 119 CA4th 976, 984-86.)