Brief Bank # B-503
C. CALJIC 2.00, 2.01 and 2.02 Are
Constitutionally Deficient Because They Do Not
Advise Juries That the Inferences Drawn From
Circumstantial Evidence Must Be More Likely
Than Not to Flow From the Proven Facts.
The CALJIC instructions on circumstantial evidence, 2.00, 2.01 and 2.02, were all given in this case. (CT 167, 168, 192; RT 647-649, 658.)
In a recent decision, Schwendeman v. Wallenstein (9th Cir. July 27, 1992) __ F.2d __ (92 D.J.D.A.R 10378] [Dock. No. 9135626], the Ninth Circuit held that a jury instruction creating a permissive inference is constitutionally deficient unless it can be said “‘”with substantial assurance” that the inferred fact is “more likely than not to flow from the proved fact on which it is made to depend.”‘”
The Ninth Circuit’s test is derived from that of the United States Supreme Court in County Court of Ulster County v. Allen (1979) 442 U.S. 140, 166, fn. 28, in which the Court stated that “‘a criminal statutory presumption must be regarded as “irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.'”
CALJIC instructions 2.00, 2.01 and 2.02 purport to explain how the jury should infer facts from circumstantial evidence. The only definition of “inference” given in those instructions is, “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.” (CALJIC 2.00.) CALJIC 2.01 and 2.02 permit the jury to draw an inference of guilt (CALJIC 2.01) or specific intent (CALJIC 2.02) from circumstantial evidence if the interpretation of the evidence pointing to guilt appears to be reasonable, while any alternate interpretation pointing to innocence appears to be unreasonable.
The instructions, as written, permit juries to infer facts merely by determining that the inferred fact “logically and reasonably” flows from the proven fact, without making the constitutionally required additional judgment that the inferred fact was more likely than not to follow from it. Because those CALJIC instructions permit juries to convict defendants based on constitutionally deficient permissive inferences, they deny defendants due process of law. (Schwendeman v. Wallenstein, supra.)
Even when no objection is made at trial, the appellate court is empowered to review any instruction which affects the substantial rights of the defendant. (Pen. Code §1259; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.) A constitutionally deficient jury instruction requires reversal unless the error is harmless beyond a reasonable doubt. (Schwendeman v. Wallenstein, supra.) The instructions were prejudicial in the present case because the evidence against the defendant was entirely circumstantial. Given the large amount of testimony presented at the trial, it is impossible to say which inferences the jury relied upon or which of those inferences were improperly arrived at because of the liberal definition of inference given in the circumstantial-evidence jury instructions. [Footnote 12] For these reasons, it cannot be said that the error was harmless beyond a reasonable doubt. The defendant’s conviction must therefore be reversed for this error.
Footnote 12: The task of deciding what the jury’s factual findings might have been is not made easier by the fact that it convicted both defendants, thereby rejecting at least some of the evidence presented by Mr. W and his cohorts, as well as the defendant’s testimony denying guilt.
