All posts by jpadmin

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Judge Has Sua Sponte duty to Give Cautionary Instruction re: Jury Conduct But Standard of Prejudice Not Resolved

In People v. Carter (2010) 182 CA4th 522, 531-534 the reviewing court held that the failure to give CC 101 sua sponte was error. However, the parties disagreed on whether the harmless error analysis should be governed by People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable a more favorable result would have occurred] or Chapman v. California (1985) 386 U.S. 18, 24 [harmless beyond a reasonable doubt].)

The appellate court did not resolve the standard of prejudice dispute, because under either standard there was nothing to suggest any prejudice. The entire trial including opening and closing statements, testimony, instructions and deliberations took three days. The jury deliberated for slightly more than one hour. Thus, the court was convinced beyond a reasonable doubt that the giving of CC 101 would have had no effect on this trial.

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Juror Misconduct: Critical Examination of Evidence vs. Acquisition of New Evidence

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical examination of the evidence admitted at trial is not impermissible. (See People v. Engstrom (2011) 201 CA4th 174, see also People v. Collins (2010) 49 C4th 175.) See also FORECITE F 101 Note 7; F 101 Note 8; F 332 Inst 8.

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Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given

The defendant in People v. Cortez (2016) 63 C4th 101 testified to an exculpatory version of events which conflicted with her recorded statement to the police.

CC 361, stating that a testifying defendant’s failure to explain or deny evidence against her may be considered by the jury, was given over objection.  The CCA majority held that the defendant had adequately explained the evidence against her, so it was error to give the instruction.

In the California Supreme Court, which granted the Attorney General’s petition for review, the defense cited People v. Saddler (1979) 24 C3d 671, for the proposition that the failure-to-explain-or-deny instruction should be given “only where the defendant completely fails to explain a specific, significant piece of evidence,” and is not appropriate merely because “a defendant’s explanation conflicts with other evidence.”  The prosecution cited People v. Belmontes (1988) 45 C3d 744, and People v. Redmond (1981) 29 C3d 904, for the proposition that the instruction should be given anytime “the defendant’s testimony contains logical gaps, creat[es] crucial points of conflict with other trial evidence, or is otherwise bizarre, implausible or nonresponsive.”  [Internal quotation marks omitted.]

The CSC discussed the historical roots of the principle, including the 1934-65 period during which a defendant’s failure to testify at all was a proper subject for comment by the prosecutor and consideration by the jury which was held unconstitutional in Griffin v. California (1965) 380 U.S. 609.) In light of this history the CSC overruled Belmontes and Redmond and held that CC 361 should only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (63 C4th at 117.)

If the defendant offers an explanation of the adverse evidence, the instruction is not warranted, even if the defendant’s testimony is inconsistent with other witnesses or appears improbable. (Ibid.) The general witness credibility instruction, CC 226, adequately covers the situation in which the defendant’s testimony is inconsistent with other evidence and/or intrinsically does not seem credible. (Id. at 117-18.)

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Defense Has No Burden to Prove Any Specific Facts

CC 100, paragraph 3, sentence 4, provides as follows:

“Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.”

CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the context of the ultimate question of whether or not the defendant is guilty. Thus, the instruction fails to assure the jurors will understand that except for affirmative defenses (see e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see e.g., EC 403) the defendant has no burden to present evidence or prove any specific facts at trial. (See FORECITE PG III(D); see also In re Winship (1970) 397 US 358, 363; People v. Hill (1998) 17 C4th 800, 831; People v. Woods (2006) 146 CA4th 106, 112-13; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.)

Nor is this defect insignificant simply because CC 100 is merely a general preliminary instruction. None of the remaining CALCRIM instructions expressly clarify the applicability of the presumption of innocence to specific issues and facts.

First, no other CALCRIM instruction specifically informs the jurors that the defendant has no burden of proving specific issues at trial.

Second, CC 103, which specifically defines the presumption of innocence, does so only in the context of the prosecution’s burden to prove all elements of the charge. It does not discuss how the presumption relates to other essential factual issues. This suggests by implication that the presumption of innocence does not apply to essential facts which are not elements of the charge. (See FORECITE F PG X(D)(5).)

Third, many of the more specific CALCRIM instructions actually suggest that the defendant may have some burden of production or proof. (See e.g., FORECITE F 103.3 Inst 2; F 104.1 Inst 1; F 100.7 Inst 1.)

In sum, when considered in light of all the instructions, as the jurors are required to do (see CC 200, paragraph 5), CC 100 improperly permits the jurors to conclude that the defendant must prove or disprove specific issues and facts at trial.

Moreover, even if the instruction is adequate to survive a challenge on appeal under the appellate standard of review [whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 C4th 629, 663)], trial counsel should be entitled to clarify such ambiguities through modification of the instruction (e.g., People v. Guiuan (98) 18 C4th 558, 570 [defense counsel has duty/right to request appropriate clarifying or amplifying language to correct instructions] or argument to the jury (see e.g., FORECITE F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction.)

For sample instructions and additional briefing on this issue see   FORECITE F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything.

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The Chiu Doctrine Applies to Conspiracy Liability

In Chiu the Supreme Court held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. An aider and abettor’s liability for premeditated first degree murder must be based on direct aiding and abetting principles. See The Chiu Doctrine Explained

In re Lopez (2016) 246 CA4th 350 agreed with People v. Rivera (2015) 234 CA4th 1350, 1356 [Rivera] which held that the reasoning of Chiu applies equally to uncharged conspiracy liability:

The Chiu opinion did not directly address whether a coconspirator may be convicted of first degree premeditated murder under the natural and probable consequences doctrine. In [Rivera], the Court of Appeal addressed that issue and concluded the reasoning of Chiu applied equally to uncharged conspiracy liability because “the operation of the natural and probable consequences doctrines is analogous” for aiding and abetting and uncharged conspiracy liability. The Court of Appeal explained: “This analogy appeared in Chiu itself, when the court was cataloguing examples of the natural and probable consequences doctrine as follows: ‘The natural and probable consequences doctrine was recognized at common law and is firmly entrenched in California law as a theory of criminal liability. [Citations.]’ Thus, when the California Supreme Court in Chiu was explaining the natural and probable consequences doctrine, it understood its applicability to both aiding and abetting and conspiracy theories.” [Citation.] The [Rivera] court held that the trial court erred by instructing the jury it could reach a verdict of first degree murder if it found the defendant conspired to commit the target crime and first degree murder was a natural and probable consequence of the target crime. [Citation.] We agree with the holding and analysis of [Rivera].

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CC 3428 Too Narrowly Limits Jurors’ Use of Mental State Evidence

In People v. Townsel (2016) 63 C4th 25, the jury was instructed with a version of CJ 3.32 which provided as follows: “Evidence has been received regarding a mental defect or mental disorder of the defendant, Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.” [emphasis added.] (63 C4th at 59.)

Because the jury was instructed that evidence of mental illness may be used only to determine whether the defendant actually formed the mental state which is an element of murder (CJ 3.32).  The witness-killing special circumstance finding, and a conviction for the separate offense of attempting to dissuade a witness, both of which had specific-intent elements, were reversed.

The CALCRIM version of this instruction, CC 3428, para.1, sentence 2, has a similar defect because it states:

You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.

Accordingly, CC 3428 should be modified in light of the decision in Townsel.

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The Chiu Doctrine Explained

People v. Chiu (2014) 59 C4th 155 created an important exception to the natural and probable consequences doctrine with respect to premeditated malice murder and attempted murder.

As Chiu explained, “[t]here are two distinct forms of culpability for aiders and abettors. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also for any other offense that was a ‘natural and probable consequence of the crime aided and abetted.” [internal quote marks omitted.] (Chiu, supra, 59 C4th at 158.)

In Chiu, the prosecution relied on both theories of aiding and abetting liability: (1) Chiu was guilty of murder because he directly aided and abetted the shooter, or (2) Chiu was guilty of murder because he aided and abetted the shooter in the target offense of assault or of disturbing the peace, the natural and probable consequence of which was murder. (Ibid.) The jury found Chiu guilty of first degree murder without specifying upon which aiding and abetting theory they relied. (Id. at 168.)

The Chiu court held that “where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine.” (Chiu, supra, 59 C4th at 166.)

This holding was based on a recognition that the mental state for willfulness, premeditation, and deliberation is “uniquely subjective and personal.” (Id. at p. 166.) “That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death.” (Ibid.)  “[T]he connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence.” (Ibid.)

However, “[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles.” (Ibid.) “An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder.” (Id. at p. 167; compare In re Johnson (2016) 246 CA4th 1396 [conviction reversed because record did not demonstrate whether the jury found first degree murder based on direct aiding and abetting or natural and probable consequences].)

Chiu reversed the first degree murder conviction because the record did not demonstrate that all jurors relied solely on the direct aiding and abetting theory. (59 C4th at 168 [“…we cannot conclude beyond a reasonable doubt that the jury ultimately based its first degree murder verdict on … the legally valid theory that defendant directly aided and abetted the murder.”].)

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Kill Zone Theory Only Applies When Defendant Tried to Kill Everyone in the “Kill Zone” -– Correlation Between Number of Victims and Shots Fired or Existence of A Primary Target — Is Not Alone Determinative

The kill zone theory applies where the defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim’s vicinity he is guilty of attempted murder of each member of the group. (See FORECITE F 600.2 Inst 2 [link] and F 600.2 Inst 3 [link].)

However, the “kill zone” theory does not apply, and the instruction should not be given, when there is no evidence of an intent to kill an entire group of people. (People v. Stone (2009) 46 C4th 131; see also People v. Perez (2010) 50 C4th 222, 232; People v. McCloud (2012) 211 CA 4th 788.) The number of shots fired or fact the defendant had a primary target are relevant factors for whether an instruction is appropriate, but are not dispositive.

For example, in People v. Cardona (2016) 246 CA4th 608 all of the evidence indicated that Cardona’s primary motivation in shooting the alleged victim was self-defense and there was no evidence that Cardona sprayed everyone near the alleged victim with gunfire. Because there was no evidence of an attempt to kill everyone in a particular area in order to kill the alleged victim, it was error to give the kill zone instruction.

The Attorney General argues that McCloud, Perez, and Stone are distinguishable because, in each case, the defendant did not fire enough shots to kill all of the victims for whom he was convicted of attempted murder. Here, however, Cardona was charged with only one count of murder and one count of attempted murder, and he fired at least five shots, including one that struck and seriously wounded Carrillo. But the defining test of the kill zone theory is whether “the evidence supports a reasonable inference that, as a means of killing the primary target, the defendant specifically intended to kill every single person in the area in which the primary target was located.” [Citation to McCloud.] A correlation between the number of shots fired and the number of victims in the alleged kill zone is merely one relevant factor. The Attorney General also points out that, unlike the defendants in McCloud and Stone, Cardona had a primary target, namely Jauregui. In McCloud [citation]we held that a kill zone instruction was inappropriate in part because there was no evidence that the attacker had a primary target. But the existence of a primary target, although relevant, is not sufficient for the application of the kill zone theory. Again, without evidence that the defendant intended to kill everyone in an area in order to kill the primary target, the kill zone theory is inapplicable. [Citation.] (246 CA4th at 615-16.)

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Propriety of Juror and Factual Finding Re: Aggravating Circumstance

The California Supreme Court has expressly ruled that the determination of whether there were aggravating circumstances to permit an enhanced sentence is not an issue which should be presented to a jury. (People v. Sandoval (2007) 41 Cal. 4th 825.) The Court of Appeal has ruled that the prosecution is not permitted to allege aggravating circumstances in an accusatory pleading. (People v. Superior Court (2007) 159 Cal. App. 4th 1.) Thus, CC 3250 should never be given.

 

Although not discussed by the CC’s Bench Notes, assuming that the defendant has the right to a jury trial on the factual finding at issue, the court would have a sua sponte duty to instruct on the finding, just as it has a sua sponte duty to instruct on any necessary element of a crime. (See e.g. CC 2541, Bench Notes; People v. Reynolds (1988) 205 Cal. App. 3d 776, overruled in part by People v. Flood (2008) 18 Cal. 4th 470.)