Brief Bank # B-510a
ARGUMENT
I
CALJIC No. 4.45 IS SERIOUSLY DEFECTIVE, AS IT FAILS TO ADVISE THE JURY OF THE PROSECUTOR’S BURDEN OF PROOF CONCERNING THE ACCIDENT DEFENSE. ON THE FACTS OF THIS CASE, THE GIVING OF SAID DEFECTIVE INSTRUCTION WAS REVERSIBLE ERROR.
A. Introduction
In this argument, appellant will explain that the current CALJIC instruction on the accident defense, CALJIC No. 4.45, is seriously defective. In so arguing, appellant will explain that the CALJIC instructions on other defenses–such as unconsciousness (CALJIC No. 4.30, see section B, post), alibi (CALJIC No. 4.50, see section C, post) and justifiable homicide (CALJIC No. 5.15, see section D, post)–inform the jury that those defenses, once raised, must be disproven beyond a reasonable doubt. Current CALJIC No. 4.45, by contrast, fails to so inform the jury with regard to the accident defense, rendering said instruction seriously defective. (See section E, post.) As appellant will demonstrate, the raw giving of this defective instruction was, on the facts of this case, not only error, but reversible error. (See section F, post.)
B. The unconsciousness defense and CALJIC No. 4.30
In People v. Hardy (1948) 33 Cal.2d 52, 63, the trial court instructed the jury that when a defendant raises the defense of unconsciousness, there is a presumption of consciousness which the defendant must overcome by a preponderance of the evidence. The California Supreme Court reversed the defendant’s conviction, holding as follows:
… [T]here can be no justification in the law for placing on the defendant the burden of overcoming the presumption “by a preponderance of the evidence.” It is a cardinal rule in criminal cases that the burden rests on the prosecution to prove the offense beyond a reasonable doubt [citation], and it is error to deprive an accused of the benefit of the doctrine of reasonable doubt by giving an instruction that he has the burden of proving a defense by a preponderance of the evidence. (Id., at 63-64.)
The burden of proof discussed in Hardy remains applicable today. Thus, if the defendant produces evidence creating a reasonable doubt as to his/her consciousness at the time of the offense, the prosecution must prove beyond a reasonable doubt that the defendant was in fact conscious at the time of the offense. (People v. Babbit (1988) 45 Cal.3d 660, 694; People v. Cruz (1978) 83 Cal.App.3d 308, 330-332; Witkin, “California Criminal Law” (2nd Edition, 1988), Vol. 1, pp. 248-249.) Current CALJIC No. 4.30 accordingly provides, in pertinent part, as follows:
A person who commits what would otherwise be a criminal act, while unconscious, is not guilty of a crime.
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Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime…. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed [he][she] must be found not guilty. (CALJIC No. 4.30, Fifth Edition; emphasis added.)
C. The alibi defense and CALJIC No. 4.50
The rule concerning the alibi defense and reasonable doubt is the same as the rule concerning the unconsciousness defense and reasonable doubt. Thus, the defendant need merely produce evidence creating a reasonable doubt as to his/her whereabouts at the time of the crime, whereupon it becomes the prosecution’s burden to prove beyond a reasonable doubt that the defendant was present at the time and place of the commission of the crime. (People v. Jordan (1955) 45 Cal.2d 697, 706; People v. Lewis (1947) 81 Cal.App.3d 119, 123-124.) Current CALJIC No. 4.50 accordingly provides, in pertinent part, as follows:
The defendant in this case has introduced evidence for the purpose of showing that [he][she] was not present at the time and place of the commission of the alleged crime for which [he][she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed you must find [him][her] not guilty. (CALJIC No. 4.50, Fifth Edition; emphasis added.)
D. The justifiable homicide defense and CALJIC No. 5.15
When a homicide defendant raises the defense of justifiable homicide, the burden of proof concerning that defense is the same as in cases involving the defenses of unconsciousness and alibi. Thus, if the defendant produces sufficient evidence to raise a reasonable doubt as to whether the homicide was justifiable, it becomes the prosecution’s burden to prove beyond a reasonable doubt that the homicide was not justifiable. (People v. Banks (1976) 67 Cal.App.3d 379, 383-384; People v. Loggins (1972) 23 Cal.App.3d 597, 601-604; see also People v. Babbit, supra, 45 Cal.3d at 694.) Current CALJIC No. 5.15 accordingly provides as follows:
Upon a trial of a charge of murder, a killing is lawful if it was justifiable…. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable…. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty. (CALJIC No. 5.15, Fifth Edition; emphasis added.)
E. The accident defense and CALJIC No. 4.45
When a person commits an unlawful act or omission by accident and without criminal negligence, he/she is not criminally liable for that act. (Penal Code section 26, subdivision (5); People v. Acosta (1955) 45 Cal.2d 538, 543-544; People v. Thurmond (1985) 175 Cal.App.3d 865, 871-872; People v. Guinn (1983) 149 Cal.App.3d Supp. 1, 9; Witkin, “California Criminal Law” (2nd Edition, 1988), Vol. 1, p. 448.)
The first question to be answered in this section is this: Does advancement of the accident defense–like advancement of a defense of unconsciousness, alibi or justifiable homicide—merely require the defendant to produce evidence raising a reasonable doubt that the charged offense resulted from an accident? Review of the relevant authorities leaves no doubt but that the answer to this question is “yes.”
As the California Supreme Court has recently noted, “The rule is that ‘when there is placed upon an accused a burden of interjecting a factual contention which, if established, would tend to overcome or negate proof of any element of the crime charged as otherwise established by the People, the accused need only raise a reasonable doubt as to the existence or nonexistence of the fact in issue.'” (People v. Babbit (1988) 45 Cal.3d 660, 694, quoting People v. Tewksbury (1976) 15 Cal.3d 953, 963; see also People v. Figueroa (1986) 41 Cal.3d 714, 721.) This rule applies, for instance, to the above—discussed defenses of unconsciousness and alibi. (People v. Figueroa, supra, 41 Cal.3d at 721; People v. Tewksbury, supra, 15 Cal.3d at 963.)
There can be no doubt but that the above rule also applies to the accident defense. That is, when the defendant asserts that the charged act resulted from an accident, he/she is interjecting “a factual contention which, if established, would tend to overcome or negate” proof of criminal intent. Criminal intent, of course, is an element of almost all crimes, including attempted murder and assault with a firearm. (CALJIC Nos. 8.66, 9.00, 9.02.)
Accordingly, the rule enunciated in Babbit, Tewksbury and Figueroa applies to the accident defense. When a defendant raises the accident defense, he/she therefore need only produce sufficient evidence to raise a reasonable doubt that the charged act resulted from an accident. Thenceforth, it is the prosecutor’s burden to prove beyond a reasonable doubt that said act did not result from an accident.
The second question to be answered in this section is this: Should the CALJIC instruction on the accident defense, like the CALJIC instructions on the other above-discussed defenses, advise the jury that the defendant must be acquitted if there is a reasonable doubt as to the validity of his/her defense?
Common sense and case law compel the conclusion that the only sensible answer to this question is “yes.” As for common sense, there is simply no good reason why such advisement is appropriate in an unconsciousness case (CALJIC No. 4.30), an alibi case (CALJIC 4.50) or a justifiable homicide case (CALJIC No. 5.15), but not in an accident case.
As for case law, appellant notes that forty years ago, one trial court and one appellate court openly recognized the wisdom of such an instruction. In People v. Black (1951) 103 Cal.App.2d 69, the trial court gave, and the Court of Appeal approved, an instruction which advised the jury: (1) that the prosecution must prove beyond a reasonable doubt that decedent’s death resulted from criminal agency, rather than an accident; and (2) that “[i]f there is a reasonable doubt in your minds as to whether or not it was an accident…, it would be your duty to resolve that in favor of the defendant and bring in a verdict of not guilty.'” (Id., at 79, emphasis added.)
For all of these reasons, one would expect the CALJIC instruction on the accident defense, CALJIC No. 4.45, to contain the same sort of “reasonable doubt” language contained in CALJIC Nos. 4.30, 4.50 and 5.15. In reality, however, CALJIC No. 4.45 contains no such language. Rather, CALJIC No. 4.45 merely provides as follows:
When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor [criminal] negligence, [he][she] does not thereby commit a crime. (CALJIC No. 4.45, 5th Edition.)
For all of the reasons set forth above, appellant respectfully but fervently submits that current CALJIC No. 4.45 fails to provide proper instruction concerning the accident defense. The instruction should be amended to include the same “reasonable doubt” language found in CALJIC Nos. 4.30, 4.50 and 5.15 (and the Black case). Until CALJIC No. 4.45 is so amended, a trial court errs if it merely gives that instruction in a case where the defense of accident has been raised.
F. The case at bar
As noted in the statement of the facts, ante, the primary defense in this case was one of accident. (RT 421-432, 436.) Whether upon request or sua sponte, the trial court instructed the jury as to the accident defense. In so doing, however, the court merely gave current CALJIC No. 4.45. (RT 527.) For all the reasons set forth above, this was error.
What remains to be seen is whether the court’s error was prejudicial. For reasons that will be explained herein, resolution of this question requires consideration of several factors, including: (1) the precise charges against Mr. Doe; (2) the testimony adduced and arguments rendered at trial; (3) the instructions which the court gave on the accident defense, specific intent and voluntary intoxication; (4) the precise verdict returned by the jury and the manner in which it was returned; and (5) the applicable standard of prejudice.
1. The charges against Mr. Doe
Mr. Doe was charged in count I with the specific intent crime of attempted murder, and in count II with the general intent crime of assault with a firearm. (CT 11-13.) It was alleged as to both counts that Mr. Doe had used a firearm and had intentionally inflicted great bodily injury. (CT 11-13.)
2. The testimony adduced and the arguments rendered
There were two defenses advanced in this case–the defense of voluntary intoxication and the accident defense. As to the former, Clarence T testified that Mr. Doe and Betty P came to his liquor store twice on the day in question. (RT 24-27.) Betty P corroborated this testimony and averred that she and Mr. Doe drank to excess, both on the day in question and on a regular basis. (RT 137-139, 148-150, 158-159.) Mr. Doe verified these things. (RT 415-417, 423-425.) Defense witness Ronald P testified that he had seen Betty P and Mr. Doe get drunk at the union hall before. (RT 438-443.)
Clearly, then, the defense of voluntary intoxication was advanced in this case. The primary defense, though, was just as clearly one of accident. Mr. Doe unequivocally insisted that the shooting was an accident. (RT 436; see also RT 427-429, 452.) Detective N, in describing his interview with Mr. Doe, testified (1) that Mr. Doe told him the shooting was an accident (RT 329-338), (2) that Mr. Doe expressed willingness to take a polygraph test (RT 332), and (3) that he, Detective N, concluded the interview by thanking Mr. Doe for being truthful with him (RT 351). Betty P acknowledged that she could not recall the shooting and further acknowledged that, while she had seen Mr. Doe in possession of the gun before, he had never threatened her with it. (RT 137, 140, 154-156.) Ronald P and William B testified that they had seen Mr. Doe and Betty P argue previously, but that they had never seen Mr. Doe behave violently toward Betty P. (RT 442, 499.)
In her closing argument, defense counsel noted the role alcohol had played in this case. (RT 539-544.) Counsel’s primary energy, however, was devoted to emphasizing the accident defense. (RT 545-546, 549-551, 554-555.)
3. Instructions given on (1) the accident defense and
(2) voluntary intoxication and criminal intent
As noted above, on the subject of the accident defense, the trial court gave current CALJIC No. 4.45 and no other instruction. (RT 527.) The court thereby failed to inform the jury that Mr. Doe need only raise a reasonable doubt as to his accident defense. (RT 527.)
The court’s instructions concerning voluntary intoxication and criminal intent were far more thorough. The court properly instructed the jury that count I and the section 12022.7 enhancement attached to count II required specific intent, whereas count II and the section 12022.5 enhancement attached to that count required only general intent. (RT 528-531.) The court further properly instructed the jury that voluntary intoxication is no defense to a general intent crime, such as assault with a firearm. (RT 527.) The court then gave CALJIC No. 4.21, thereby instructing the jury as follows concerning voluntary intoxication and the specific intent crime charged in count I:
In the crime of attempted murder, of which the Defendant is accused in Count I…, a necessary element is the existence in the mind of the Defendant of the specific intent to kill unlawfully another human being and the mental state of expressed malice aforethought.
If the evidence shows that the Defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether the Defendant had such specific intent or mental state. If, from all the evidence, you have a reasonable doubt whether the Defendant formed such specific intent or mental state, you must find that he did not have such specific intent or mental state. (RT 527, emphasis added; CALJIC No. 4.21, 5th Ed.)
4. The jury’s deliberations and verdict
The jury began deliberating at 1:45 p.m. on April 26, 1991. (CT 67.) At 4:45 p.m. that afternoon, the foreperson returned to the courtroom for a colloquy with the court. (RT 580.) The foreperson stated that the jury had taken three ballots on each count, and added that he, the foreperson, felt they were hopelessly deadlocked. (RT 580-582.)
The other jurors were brought back into the courtroom and questioned. The court thereupon learned that the jury was divided 11 to 1 on count I, and 7 to 5 on count II. (RT 584.) Four of the other jurors echoed the foreperson’s belief that further deliberations were hopeless. (RT 584-585.) The court, however, directed the jury to resume further deliberations the following Monday morning. (See Argument III, post, asserting that the court committed reversible error by improperly coercing the jury into reaching a verdict.)
The following Monday, the jury resumed deliberating and eventually reached a verdict. They acquitted Mr. Doe of the specific intent charges (count I and the section 12022.7 enhancement attached to count II), but convicted him of the general intent charges (count II and the section 12022.5 enhancement attached to that count). (RT 587-588; CT 68-71.)
5. Standard of prejudice; application to this case
It is black-letter law that where an error has been committed which is of federal constitutional magnitude, said error requires reversal unless the reviewing court finds it harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 21.)
Appellant submits that the giving of current CALJIC No. 4.45 in the case at bar was federal constitutional error in two ways. First, it is settled that instructions which lessen the prosecutor’s burden of proof violate the Sixth Amendment right to a jury trial and the due process clause of the Fourteenth Amendment. (Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218]; People v. Roder (1983) 33 Cal.3d 491, 498-499.) For all the reasons set forth ante in section E, CALJIC No. 4.45 served to lessen the prosecutor’s burden of proof, as it failed to inform the jury that they need only harbor a reasonable doubt about the legitimacy of Mr. Doe’s accident defense in order to acquit him. For this reason alone, the raw giving of CALJIC No. 4.45 was federal constitutional error.
Federal constitutional error also occurs where the trial court fails to provide proper instructions on applicable defenses. (United States v. Unruh (9th Cir. 1988) 855 F.2d 1363, 1372.) For this reason, too, the raw giving of CALJIC No. 4.45 was federal constitutional error.
Accordingly, the court’s instructional error was of federal constitutional magnitude in two respects. Mr. Doe’s conviction must be reversed unless the error was harmless beyond a reasonable doubt.
Review of the relevant portions of the record makes it clear the error in question cannot be deemed harmless under this–or any other–standard. As set forth in subdivision (2), ante, a good deal of evidence supported the accident defense here. (See extended discussion ante, at pp. 16-17.) As also set forth in subdivision (2), ante, it was clear from defense counsel’s closing argument, as well as from Mr. Doe’s testimony, that the accident defense was the primary defense in this case. (See pp. 16-17, ante.) Under the circumstances, it was imperative that the trial court give proper instructions on the accident defense. Instead, the court merely gave CALJIC No. 4.45, which was badly defective for all the reasons set forth in section E, ante. Given the circumstances, this was plainly a serious error.
In order to fully appreciate the seriousness of the court’s error, however, one must consider the jury’s actions. First, five members of the jury, including the foreperson, declared that their deadlock was a hopeless one. (RT 585; see discussion at pp. 18-19, ante.) Such declarations have long been recognized as supporting an inference that a case is close, and thus that an error is prejudicial. (People v. Bennett (1969) 276 Cal.App.2d 172, 176.) In the case at bar, wherein the jury was deadlocked 7 to 5 on the ultimate count of conviction, such an inference is overwhelming. (RT 584.)
Second, the jury refused to convict Mr. Doe on all counts. This, too, must be construed as an indication that the case was a close one, and thus that the court’s error was prejudicial. (People v. Epps (1981) 122 Cal.App.3d 691, 698; People v. Washington (1958) 163 Cal.App.2d 846.)
The most significant aspect of the jury’s actions, however, is this: As to count I, the jury was told that voluntary intoxication can prevent a defendant from forming the required specific intent. (RT 527.) They were further told that they must acquit Mr. Doe if they had a reasonable doubt whether his intoxication prevented him from forming such intent. (RT 527.) Having been so instructed, the jury acquitted Mr. Doe of count I and the specific intent enhancement attached to count II. (RT 587-588.)
As to count II, on the other hand, the jury was properly instructed that voluntary intoxication was no defense. (RT 527.) They were further instructed as to the accident defense, but they were not told they must acquit Mr. Doe if they had a reasonable doubt whether the shooting was an accident. (RT 527.) Having been so misinstructed, the jury (barely) convicted Mr. Doe on count II and the general intent enhancement attached to that count. (RT 587-588.)
The significance of the above facts is evident. The jury was properly instructed as to voluntary intoxication and reasonable doubt, and they gave Mr. Doe the benefit of that doubt. The jury was not properly instructed as to accident and reasonable doubt, and they subsequently rejected the accident defense–albeit by the barest of margins. Under the circumstances, the importance of the court’s instructional error is too clear to deny.
In sum, the seriousness of the court’s instructional error is clear from the evidence, the arguments, the intoxication and specific intent instructions, the deliberations and the verdict. For all of these reasons, the error in question must be deemed prejudicial under any standard. Mr. Doe’s conviction must be reversed. [Footnote 2]
Footnote 2: Respondent may argue that any flaws in CALJIC No. 4.45 are waived as an appellate issue, since trial counsel did not object to said flaws. Such an argument fails for three reasons. First, jury instructions are reviewable on appeal without objection below. (Penal Code section 1259; People v. Hernandez (1988) 47 Cal.3d 315, 353; People v. Hall (1989) 208 Cal.App.3d 34, 37.) Second, the trial court has a well established duty to give proper instructions on affirmative defenses, of which the accident defense is clearly one. (People v. Jackson (1989) 49 Cal.3d 1170, 1199; People v. Sedeno (1974) 10 Cal.3d 703, 716.) Finally, even assuming trial counsel was somehow obligated to object to the raw giving of current CALJIC No. 4.45, her failure to fulfill that obligation is still reviewable on appeal under a claim of ineffective assistance of counsel, since it is inconceivable that counsel could have had a tactical reason for (1) wanting the jury to be instructed on the accident defense, but (2) not wanting the jury to be instructed that they must acquit Mr. Doe if they harbored so much as a reasonable doubt that the shooting was an accident. (People v. Pope (1979) 23 Cal.3d 412, 426.) In any event, the raw giving of CALJIC No. 4.45 is clearly a cognizable issue in this appeal.
