Brief Bank # B-500b
II
THE COURT ERRED BY FAILING TO GIVE
CALJIC No. 2.91 SUA SPONTE.
A. Summary of relevant testimony
The information charged appellant and his twin brother not only with the attempted murder of Michael C, but also with personally using a knife and with personally inflicting great bodily injury during the commission of said crime. (CT 4-6.) At trial, the prosecutor produced a good deal of evidence, both testimonial and photographic, to establish that Michael C did in fact suffer great bodily injury from a knife cut to his neck. As will appear, however, the evidence concerning which of the Doe brothers inflicted said knife cut was de minimis–quantitatively and qualitatively.
Appellant and his brother testified that they did not use or possess knives at all during the altercation. (RT 189-190, 193, 205.) Nadine C testified that she saw appellant and his brother approach the C house with knives in their hands, but that the only portion of the altercation she actually witnessed was a wrestling match between appellant and Patrick C, during which appellant did not have a knife. (RT 140-142, 155-158.) Howard C initially averred that he did not see Michael C get cut. (RT 20-21, 62.) When impeached with prior inconsistent testimony from the preliminary hearing, Howard C averred that he did see one of the Doe brothers cut Michael C, but that he had no idea which Doe brother it was. (RT 63-64.)
Michael C’s testimony was more specific. He explicitly testified that appellant’s brother held him back while appellant cut his neck twice. (RT 84-85.) As a result of appellant’s actions, Michael C suffered a six-inch wound in his neck and a permanently impaired sense of feeling in that area (i.e., great bodily injury). (RT 87-88.)
Accordingly, it is beyond dispute that the prosecutor relied greatly on the eyewitness identification testimony of Michael C to show that it was appellant, as opposed to appellant’s twin brother, who inflicted Michael C’s knife wound. A review of the record shows it is also beyond dispute that the eyewitness identification testimony of Michael C was exceedingly problematic–in three ways.
The first major problem with Michael C’s eyewitness identification testimony was that the evidence showed him to be a Grade-A dipsomaniac. Indeed, Michael C admitted, and Nadine C verified, that a doctor at the hospital deemed him a “fifteen” on a one-to-ten scale of intoxication on the day in question. (RT 95, 145.) Nadine C confirmed the doctor’s assessment, stating that Michael C was “real drunk” that day. (RT 133.) She further testified, and Howard C confirmed, that this was no aberration, as Michael C had been a chronic drunkard for a long time. (RT 77, 134-138.)
Hence, the evidence showed Michael C to be an alcoholic of the first magnitude. Indeed, the prosecutor acknowledged in his closing argument that if Michael C “were on trial for being a… card carrying juicer from way back, who drinks a lot and may be drinking almost all the time to one extent or another,” it would probably take the jury “longer to pick a foreman than it would to decide guilt or innocence in a case like that.” (RT 256; see also concession in prosecutor’s opening statement in Supplemental RT at p. 55.)
The second major problem with Michael C’s eyewitness testimony was that appellant and his brother are identical twins. (RT 20-21, 129-130; Suppl. RT 53; CT 121.) Indeed, Howard C readily admitted that he could not tell the two apart. (RT 20-21, 63-64.) Nadine C, after having known appellant for 15 or 16 years, testified that she could tell him and his brother apart, but that she could not say what it was that enabled her to do so. (RT 128-130.)
In spite of these things, Michael C testified that he could distinguish appellant from his brother, and thus that he could identify appellant as the one who had cut him. (RT 92.) When asked how he was able to distinguish the two brothers–whom he admittedly had never seen before—Michael C stated, “One’s one and one’s the other.” (RT 93.) When asked what specific feature enabled him to differentiate between the two brothers, Michael C answered, “No, no, no, no. I told you I can see, and that’s the way it is.” (RT 93.)
It cannot be denied, based on the above testimony, that Michael C’s purported ability to distinguish the Doe brothers was very suspect. Indeed, at the preliminary hearing, Michael C identified appellant’s brother as the one who initially came to the C house. (CT 50-51.) Also, at the conclusion of the preliminary hearing, the magistrate noted that Michael C had given several versions of the incident, and added that he, the magistrate, did not think Michael C “knows to this day” which defendant did what to him. [Footnote 2] (CT 123.) Accordingly, the great physical similarity between appellant and his brother posed a second major problem for the credibility of Michael C’s eyewitness testimony.
Finally, the third major problem with Michael C’s eyewitness testimony was that racial considerations weakened his credibility. Specifically, appellant testified—and Michael C admitted–that after Patrick C struck appellant during appellant’s initial visit to the C house, Michael C shouted, “Let’s get this Mexican.” (RT 96, 187.)
Appellant concedes that racism is often in the eye of the beholder. There can be no dispute, however, that “let’s get this Mexican” constitutes a vicious racist remark. Hence, Michael C’s racial animus–like his drunkenness and the fact that appellant and his brother are identical twins–greatly diminished the credibility of his identification testimony.
B. The jury instructions, given and not given
The trial court instructed the jury on witness credibility generally (CALJIC No. 2.20), on testimonial discrepancies and willful falsehoods (CALJIC Nos. 2.21.1 and 2.21.2), on weighing conflicting testimony (CALJIC No. 2.22), on the sufficiency of a single witness’ testimony (CALJIC No. 2.27), and on the concept of reasonable doubt in general (CALJIC No. 2.90). The trial court did not, however, give CALJIC No. 2.91, which would have instructed the jury as follows concerning
eyewitness identification and reasonable doubt:
The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he…is charged.
If, after considering the circumstances of the identification…, you have a reasonable doubt whether defendant was the person who committed the crime, you
must give the defendant the benefit of the doubt and find him…not guilty. (1988 Ed.)
The jury began its deliberations at 1:21 p.m. on May 22, 1991. (CT 158; RT 328.) At 3:45 that afternoon, they requested a rereading of, inter alia, Nadine C’s testimony concerning the knives. (CT 328.)
The jury resumed its deliberations on the following morning at 9:30 a.m.. (RT 329.) At 2:28 p.m., they requested a rereading of Howard C’s testimony about the initial contact between Michael C and the defendants, and of John Doe’s testimony about the fight. (RT 330.)
At 3:40 that afternoon, the jury returned its verdict. The jury found John Doe not guilty of all charges, but found appellant guilty of attempted manslaughter and further found that appellant had personally used a deadly weapon and had personally inflicted great bodily injury in the commission of this offense. (RT 333-336.)
For reasons that will be explained in section C. post, the peculiar facts of this case required the trial court to give CALJIC No. 2.91 sua sponte. For reasons that will be explained in section D, post, the court’s failure to fulfill that requirement was prejudicial.
C. The court’s duty to give CALJIC No. 2.91 in this case
Case law concerning CALJIC No. 2.91 is minimal. Appellant has found no case imposing a general sua sponte to give CALJIC No. 2.91, and only one case holding CALJIC No. 2.91 need never be given sua sponte. As will appear, said case is outdated, poorly reasoned and should not be followed. As will also appear, regardless of whether there should be a general sua sponte duty to give CALJIC No. 2.91, the trial court in the present case did have a duty to so instruct.
In People v. Hoffman (1970) 7 Cal.App.3d 39, 46-47, the appellant argued that the trial court had committed reversible error by failing to instruct sua sponte on the defense of alibi. The Second District disagreed, holding that the trial court had no duty to instruct on the alibi defense absent a request from defense counsel. (Id., at 47.)
In People v. Richardson (1978) 83 Cal.App.3d 853, the appellant argued that on the facts of that case, the trial court had a sua sponte duty to give CALJIC No. 2.91 because it was an instruction “on the general principles of law relevant to the issues raised by the evidence.” (Id., at 861, citing People V. Stewart (1976) 16 Cal.3d 133.) The Second District rejected appellant’s argument, holding that CALJIC No. 2.91 was not necessary for the jury’s understanding of the relevant legal principles. (Ibid.) The Second District based this holding on the fact that the trial court had instructed the jury on reasonable doubt in general (CALJIC No. 2.90), on circumstantial evidence (CALJIC No. 2.01), on witness credibility (CALJIC No. 2.20) and on accomplice testimony (CALJIC Nos. 3.10-3.14 and 3.18). (Id., at 862.) The Second District concluded, “Therefore, in the absence of a request for a specific instruction relating reasonable doubt to identification, it is sufficient that the jury be instructed generally to consider all the evidence in the case. [Citation to People v. Hoffman, supra, and People v. Rubio (1977) 71 Cal. App.3d 757, 770, another case dealing with failure to instruct on the alibi defense.]” (Id., at 862.)
In People v. Blair (1979) 25 Cal.3d 640, 662-663, the defendant argued that the trial court was obligated to give CALJIC No. 2.91 sua sponte. The Supreme Court ruled that any need for CALJIC No. 2.91 had been obviated in that case by, among other things, the giving of CALJIC No. 4.50 concerning the alibi defense. The Supreme Court concluded as follows:
Here the court gave…general instructions [footnote], and it also told the jury that if they had a reasonable doubt that defendant was present when the crimes were committed, they should find him not guilty. (CALJIC No. 4.50.) 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.)
In People v. Hall (1980) 28 Cal.3d 143, 158-160, the Supreme Court found harmless a trial court’s failure to give an instruction akin to CALJIC No. 2.92, since said trial court did give CALJIC Nos. 2.91 and 2.20. The Supreme Court concluded, “In the future, the trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification.” (Id., at 159-160, emphasis added; see also People v. Levingston (1982) 136 Cal.App.3d 724, 727.)
Of the above authorities, only Richardson provides that trial courts need never give CALJIC No. 2.91 absent a request from defense counsel. As for Blair, the Supreme Court’s decision in that case was plainly based on the Court’s conclusion that CALJIC No. 4.50, in conjunction with the other instructions, had served adequately to inform the jury of the requirement that the prosecution prove identity beyond a reasonable doubt. (People v. Blair, supra, 25 Cal.3d at 663; see discussion ante at p. 18.) [Footnote 3] While this was clearly the correct holding, it is just as clearly inapplicable to a case wherein the trial court does not give CALJIC No. 4.50. [Footnote 4]
As for Richardson, it should be rejected by this Court for several reasons. For one thing, Richardson may have been overruled sub silentio by our Supreme Court’s later pronouncement that “trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification.” (People v. Hall, supra, 28 Cal.3d at 159-160.) For another thing, Richardson relies on Hoffman and Rubio for its conclusion that there is no sua sponte duty to give CALJIC No. 2.91, but that reliance is clearly misplaced, as those cases concern not eyewitness identification and reasonable doubt, but rather the defense of alibi. [Footnote 5] (See discussion ante at p. 18.)
The main reason why Richardson should be rejected, however, is that its reasoning simply is not persuasive when applied to the facts at bar. To wit: In the case at bar, the jury was asked to find (and did in fact find), on the sole basis of Michael C’s trouble-laden eyewitness testimony, that it was appellant, as opposed to his identical twin, who used a knife to inflict Michael C’s great bodily injury. On these unique facts, the prosecutor’s burden of proof regarding identity was obviously of paramount importance. Hence, on the unique facts of this case, CALJIC No. 2.91 was an instruction on the general principles of law relevant to the issues raised by the evidence–i.e., an instruction on those principles of law which were “closely and openly connected with the facts before the court, and which [were) necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The trial court, of course, has a duty to instruct on such principles sua sponte. (Ibid.) For that reason, on the unique facts of this case, the trial court had a sua sponte duty to give CALJIC No. 2.91. It bears emphasizing that appellant is not arguing that there should be a general sua sponte duty to give CALJIC No. 2.91. Rather, appellant is only arguing that, on the extraordinary facts of this case, this trial court had a sua sponte duty to give CALJIC No. 2.91. Appellant notes that his argument is supported by numerous California Supreme Court cases recognizing that, while there is generally no sua sponte duty to give limiting instructions concerning past offenses, there are occasional cases wherein evidence of past misconduct plays so pivotal a role that a sua sponte duty to give such an instruction does exist. (People v. Kaurish (1990) 52 Cal.3d 648, 678; People v. Lang (1989) 49 Cal.3d 991, 1020; People v. Milner (1988) 45 Cal.3d 277, 251-252; People v. Collie (1981) 30 Cal.3d 43, 63-64.) The same rule should rightfully apply to the giving of CALJIC No. 2.91–i.e., there is generally no sua sponte duty to give the instruction, but there are extraordinary cases wherein eyewitness identification testimony is so pivotal, and so problematic, that a sua sponte duty to instruct does exist. Clearly the case at bar is such an extraordinary case, and for that reason the trial court erred when it failed to give CALJIC No. 2.91 sua sponte.
D. Prejudice
It is settled that the failure to give proper instructions on the elements of an offense is federal constitutional error. (People v. Hernandez (1988) 46 Cal.3d 194, 211.) Such an error requires reversal unless it is harmless beyond a reasonable doubt. (Ibid.)
In People v. Hogue (1991) 228 Cal.App.3d 1500, 1505, this Court stated, “An essential element of any crime is, of course, that the defendant is the person who committed the offense.” In view of this authority, appellant submits that the failure to give CALJIC No. 2.91 in the case at bar constituted a failure to give proper instructions on an “essential element of the crime.” Accordingly, under Hernandez, appellant’s conviction must be reversed unless the court’s failure to give CALJIC No. 2.91 was harmless beyond a reasonable doubt.
The error in question cannot be dismissed as harmless under such a standard. Indeed, the error in question cannot be dismissed as harmless under any standard. For one thing, as explained at length ante at pp. 12-15, it is hard to imagine how this jury concluded, solely on the basis of Michael C’s identification testimony, that appellant’s identity as the Doe twin who cut Michael C had been proven beyond a reasonable doubt. For another thing, the record shows that the jury struggled in so concluding, deliberating at some length over a two-day period and requesting a rereading of Howard and Nadine C’s testimony concerning the fight and the knives. (RT 328-332; see People v. Williams (1971) 22 Cal.App.3d 34, 38-40, holding that such requests are proof of a close case.)
Under the circumstances, no error in the jury instructions on eyewitness testimony could be found harmless. The error in question certainly cannot. By omitting CALJIC No. 2.91, the court failed to inform the jury of the prosecutor’s burden of proof concerning Michael C’s eyewitness identification testimony. Said failure might have been harmless–as was the error in Blair, supra–had the trial court had occasion to give CALJIC No. 4.50. (See ante at pp. 18-20.) This was not an alibi case, however, and CALJIC No. 4.50 was therefore not given. Of the instructions which were given, none served directly to inform the jury of the prosecutor’s burden of proof concerning identity. Hence, none of the given instructions served to fill the void created by the instructional error.
The significance of said void is all too apparent. Had the jury been given CALJIC No. 2.91, they would very likely have concluded there was a reasonable doubt about the accuracy of Michael C’s identification testimony. Such a conclusion would have resulted in appellant’s acquittal of all charges, in view the jury’s conclusion that only one of the Doe twins was criminally culpable for Michael C’s injury.
Hence, the failure to give CALJIC No. 2.91 was not only error on the unusual facts of this case, but gravely prejudicial error. Appellant’s conviction must be reversed.
Remarkably, appellant’s trial counsel made no effort to use any part of the preliminary hearing to impeach Michael C’s eyewitness identification testimony. While the Blair Court did refer to the holding in Richardson, it did not in any way indicate approval or disapproval of the Richardson court’s blanket pronouncement that CALJIC No. 2.91 need never be given sua sponte. The court in the case at bar did not give CALJIC 4.50, undoubtedly because the subject of alibi was wholly irrelevant. While CALJIC No. 2.91 can be helpful in cases involving the defense of alibi, the case at bar is proof positive that said instruction is useful in other cases as well. That is, the defense of alibi obviously had nothing to do with the present case. By contrast, the prosecutor’s burden of proving identity beyond a reasonable doubt had everything to do with this case. Thus, at least in cases such as the one at bar, CALJIC No. 2.91 is not an instruction relating to the defense of alibi, but rather an instruction relating to witness credibility and the prosecutor’s burden of proof. Appellant notes that numerous published decisions so characterized CALJIC No. 2.91, linking it with the general instruction on witness credibility (CALJIC No. 2.20). (See, e.g., People v. Hall, supra, 28 Cal.3d at 159; People v. Levingston, supra, 136 Cal.App.3d at 727; People v. Boothe (1977) 65 Cal.App.3d 685, 689-690.)
