B-500a

Brief Bank # B-500a

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA, )

)

Plaintiff and Respondent, ) Appeal #FO16350

)

v. ) Stanislaus County

) Superior Court

JOHN DOE, ) No. 265364

)

_ Defendant and Appellant. )

APPEAL FROM THE JUDGMENT OF THE SUPERIOR

COURT OF THE STATE OF CALIFORNIA FOR THE

COUNTY OF STANISLAUS

Honorable Hugh Rose, III, Judge

APPELLANT’S REPLY BRIEF

JIM FAHEY

P.O. Box 1324

Davis, CA 95617‑1324

Telephone: (916) 758‑5776

Attorney for Appellant by

Appointment of the Court of

Appeal under the Central

California Appellate Program’s

Independent Case System

E. Respondent’s fourth contention

Respondent next contends that “the jury was given all of the instructions that were necessary for their understanding of the case.” (RB 10.) In so arguing, respondent refers to several of the instructions given in this case, especially CALJIC No. 2.90, and cites People v. Richardson (1978) 83 Cal.App.3d 853, 860‑862, for the proposition that “when the statutory definition of reasonable doubt is given…, no other instruction need be given defining reasonable doubt.” (RB 9-10, including n. 6; emphasis added.)

Respondent’s assertion fails for four reasons. First, CALJIC Nos. 2.91 and 2.92 are manifestly not instructions which define reasonable doubt, so the above‑referenced portion of Richardson is irrelevant even assuming Richardson has any vitality. Second, Richardson was wrongly decided and was probably overruled by People v. Hall (1980) 28 Cal.3d 143, 158‑160. (See AOB 19‑20; see also discussion post at pp. 9-11.) Third, the instructions referred to by respondent‑‑CALJIC Nos. 2.90, 2.20, 2.21.1, 2.21.2, 2.22 and 2.27 (see RB 9, n. 6)‑‑clearly do not cover the same ground covered by CALJIC Nos. 2.91 and 2.92, and respondent has made no real effort to explain her contention that they do. (See also discussion at AOB 23‑24 and 26‑30.) Finally, if the six instructions listed above were truly adequate to cover the ground covered by CALJIC Nos. 2.91 and 2.92, there would be no reason for the existence of CALJIC Nos. 2.91 and 2.92, since the six instructions listed above are given in almost every criminal trial. Hence, respondent’s reliance on the six instructions in question is misplaced.

F. Respondent’s fifth contention

Respondent next appears to contend that appellant and his twin brother are not that difficult to tell apart. In so contending, respondent relies entirely on a remark by the trial judge. (RB 10.)

In light of the appellate record, respondent’s contention can only be characterized as remarkable‑‑and a little unfair. The prosecutor acknowledged that the defendants are identical twins. (Supp. RT 53.) Howard C admitted he could not tell the defendants apart, and further admitted he had no idea which defendant was the one he saw cut Michael C’s neck. (RT 20‑21, 63‑64.) Nadine C, having known appellant for 15 or 16 years, said she could tell the twins apart, but admitted she could not say what facial feature(s) enabled her to do so. (RT 128‑130.) Indeed, the trial judge, while making the statement upon which respondent places sole reliance, freely admitted he was not certain he could distinguish the twins if he encountered them on the street. (RB 170.)

In spite of all of these things, respondent now intimates that the record suggests a significant physiological difference between the Doe twins. Appellant submits it is manifest from the above portions of the record that this is not true. Moreover, what is really important here is not how distinguishable the trial judge thought the defendants were, but rather how well Michael C could tell them apart. As explained in AOB, Michael C failed utterly when asked to identify a feature which enabled him to distinguish the twins, whom he admittedly had never seen before. (RT 92‑93; see AOB 14.) As also explained in AOB, the magistrate who presided over the preliminary hearing explicitly stated that he did not think Michael C knew which defendant did what to him. (CT 123; see AOB 15.) Under the circumstances, it is difficult to see how respondent can suggest that Michael C’s purported ability to tell the defendants apart was unremarkable.

G. Respondent’s sixth contention

Respondent next contends that in People v. Blair (1979) 25 Cal.3d 640, the California Supreme Court approved the holding of People v. Richardson, supra, 83 Cal.App.3d 853, that CALJIC No. 2.91 need never be given absent a request from defense counsel. (RB 11.) As will appear, respondent has misread the Blair decision.

In Blair, the primary defense was one of alibi. (Id., at 649.) Notwithstanding the defendant’s claimed alibi, however, an eyewitness identified the defendant as the person he had observed near the scene of the crime. (Id., at 658‑662.) At trial, the jury was not given CALJIC No. 2.91, but was given the standard instruction on the alibi defense, CALJIC No. 4.50. (Id., at 663.) CALJIC No. 4.50 specifically informed the jury that they must acquit the defendant if they had a reasonable doubt whether he was present at the time the crimes were committed. (Ibid.)

On appeal, the defendant claimed the court committed reversible error by failing to give CALJIC No. 2.91. (Id., at 662.) The Supreme Court noted that the jury was given CALJIC Nos. 2.20, 2.21, 2.22, 2.27, 2.90 and 4.50. (Id., at 663, including n. 22.) The Supreme Court then stated as follows:

It was unmistakable to the jury that defendant was challenging the reliability of Stroud’s identification, and these instructions were sufficient to inform them that the prosecution had the burden of proof on that issue and that defendant should be

acquitted if they had a reasonable doubt on the matter. (Id., at 663.)

As explained in AOB, it is readily evident that the holding in Blair was based on the fact the trial court gave CALJIC No. 4.50‑‑an instruction which, by telling the jury they must acquit the defendant if they had a reasonable doubt he was present at the time of the crime, effectively provided the same advisement CALJIC No. 2.91 would have provided. (See discussion at AOB 19‑20.) Respondent’s Brief fails to address this reality, but it is a reality nonetheless. Hence, while Blair is both sound and controlling in cases where CALJIC No. 4.50 (in addition to the aforementioned standard instructions) has been given, it is irrelevant in any case where CALJIC No. 4.50 has not been given.

As for respondent’s claim that Blair “affirmed” the holding in Richardson (RB 11), that claim is false. The Blair Court, as shown by the quotation in Respondent’s Brief, merely acknowledged the holding in Richardson, but did not in any way pass judgment on the soundness of that holding. (Id., at 663; see quote at RB 10‑11.) It is black‑letter law, of course, that “[c]ases are not authority for propositions not considered therein.” (Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 73.) Hence, the Blair decision does nothing to validate the sweeping holding of Richardson, and respondent’s conclusory assertion to the contrary must be rejected.

Respondent’s Blair/Richardson argument also fails for other reasons. First, as explained in AOB but never addressed in Respondent’s Brief, the Richardson decision was flawed from its inception by a patent misapplication of prior case law. (See discussion at AOB 17‑20.) By failing to address this point‑‑indeed, by failing to say anything at all in favor of the Richardson court’s analysis‑‑respondent tacitly concedes that appellant’s criticism of Richardson is well‑taken.

Finally, most importantly, respondent’s argument falls because it completely disregards People v. Hall, supra, 28 Cal.3d at 158‑160, in which our Supreme Court stated, “In the future, the trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification.” (Id., at 159‑160; see also People v. Levingston (1982) 136 Cal.App.3d 724, 727; see also Use Note to CALJIC No. 2.91, 1988 Edition; see discussion at AOB 19‑20.) Appellant submits it is very doubtful Richardson survived this pronouncement, especially in view of the apparent non‑existence of any post‑Hall authority which affirms Richardson.

Accordingly, respondent’s reliance on Blair is flawed by respondent’s misreading of Blair and by respondent’s failure to acknowledge the subsequent holding of the Supreme Court in Hall. Respondent’s reliance on Richardson is flawed by that decision’s misapplication of prior case law, by respondent’s failure to reply to appellant’s criticism of that decision, and by respondent’s failure to address the Hall decision.

H. Respondent’s seventh contention

Respondent next argues that any need for CALJIC No. 2.91 was obviated by the giving of CALJIC No. 2.01, an instruction which concerns circumstantial evidence and reasonable doubt. (RB 11.) This argument fails for the glaringly obvious reason that neither Michael C’s eyewitness testimony nor appellant’s self‑defense testimony constituted circumstantial evidence.

I. Respondent’s eighth contention

Respondent next contends the giving of CALJIC Nos. 2.20 and 2.90 obviated the need for CALJIC No. 2.91. (RB 11.) This argument fails for two reasons. First, it fails because CALJIC Nos. 2.20 and 2.90 manifestly do not link the subject of reasonable doubt to identification testimony (nor has respondent made any effort to suggest how they do). Second, and more dispositively, respondent’s argument fails because it again overlooks the Supreme Court’s mandate in Hall that “[i]n the future, the trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification.” (People v. Hall, supra, 28 Cal.3d at 159‑160; see also People v. Levingston (1982) 136 Cal.App.3d 724, 727; see also Use Note to CALJIC No. 2.91, 1988 Edition; see discussion at AOB 19‑20.)

J. Respondent’s ninth contention

Respondent finally contends that the trial court had no duty to give CALJIC No. 2.92 in light of People v. Sanchez (1990) 221 Cal.App.3d 74. (RB 11‑12.) In so contending, respondent merely quotes at length from the holding in Sanchez. (RB 12.) In AOB, however, appellant explained that the Sanchez decision is flawed because the appellate court painted with an overly broad brush. (See AOB 29, n. 8, and other portions of AOB referenced therein.) Appellant submits that respondent’s inability to say anything in defense of the Sanchez decision signifies an acknowledgment that appellant’s criticism of that decision is well taken.

Accordingly, respondent’s argument concerning the Sanchez decision adds nothing to the Sanchez decision itself. This Court should reject Sanchez for the reasons set forth in AOB.

K. Summary

In replying to appellant’s arguments concerning CALJIC Nos. 2.91 and 2.92, respondent has advanced a series of brief contentions. Some of those contentions are obviously meritless; all of them are ultimately meritless. For that reason and for all of the reasons set forth in AOB, this Court should hold that the trial court erred by failing to give CALJIC Nos. 2.91 and 2.92 sua sponte.

Finally, appellant notes that respondent has not argued the failure to give CALJIC Nos. 2.91 and 2.92, if error, was harmless. This “must be viewed as a concession that if error occurred, reversal is required.” (People v. Adams (1983) 143 Cal.App.3d 970, 992.) For all the reasons set forth in AOB, such a concession is well taken. (See AOB 22‑24 and 29‑30, and other portions of AOB referenced therein.)

CONCLUSION

Accordingly, for all of the reasons set forth herein, respondent’s arguments concerning CALJIC Nos. 2.91 and 2.92 must be rejected. For all of the reasons set forth in AOB, the judgment against appellant must be reversed.

DATE: March 14, 1992

Respectfully submitted,