PEOPLE OF THE STATE OF CALIFORNIA, ) NO. D014513
) S.D. CR. 113414
JOHN DOE, )
The Honorable William D. Mudd, Judge
CHARLES M. SEVILLA
…Had the jury been properly advised of defendant’s version of the shooting and properly instructed as to the accident defense, the jury could have made an intelligent decision whether to believe defendant’s testimony, and if it believed the testimony, whether a defense of accident had been established. These errors compel reversal.
Thus, it cannot be said, per Sedeno, that the jury necessarily found intent for voluntary manslaughter and thus must have rejected the defense of accident. The misinstructions could have voided the defense in the jury’s mind without it being properly considered because of the “criminal negligence” nullifier, [Footnote 32] or the belief that appellant had to prove accident before he was entitled to an acquittal. Reversal is required.
III. THE COURT ERRED TO APPELLANT’S PREJUDICE BY MISINSTRUCTING ON HIS MAJOR DEFENSE OF ACCIDENT BY PERMITTING THE JURY TO IGNORE THAT DEFENSE BY NOT INSTRUCTING THAT A REASONABLE DOUBT AS TO ACCIDENT REQUIRED AN ACQUITTAL
Evidence Code section 502 requires a burden of proof instruction “on each issue and as to whether that burden requires that a party raise a reasonable doubt….” (Emphasis added). Here, the court gave the general CALJIC 2.90 reasonable doubt instruction (RT 1922), but failed to tell the jury that if the evidence raised a reasonable doubt as to accident (and thus intent to kill), it must find that intent was not formed. [Footnote 33]
Other defenses which, if proved, overcome elements of the offense, warrant specific instructions on the issue of the burden of proof. Thus, the defenses of identity (CALJIC 2.91), alibi (CALJIC 4.50), unconsciousness (CALJIC 4.31), and self-defense (CALJIC 5.15 [Footnote 34]), all have reasonable doubt components informing the jury how to apply the defense instruction. Simply giving CALJIC 2.90 does not adequately inform the jury as to how to apply the affirmative defense instruction to the facts of the case. As a case dealing with self-defense, People v. Adrian (1982) 135 Cal.App.3d 335, 342, noted the inadequacy of CALJIC 2.90 [Footnote 35] to inform the jury of the burden of proof with respect to self-defense:
The general burden of proof instruction given here (CALJIC 2.90) did not make reference to justification; rather, it said the prosecution had the burden of proving the defendant’s “guilt” beyond a reasonable doubt.
All 2.90 does is tell the jury that a reasonable doubt as to “guilt” warrants an acquittal. This instruction works fine when the jury is reviewing the elements of the offense; a reasonable doubt as to any element of the crime warrants an acquittal. But as to an affirmative defense such as accident, the CALJIC instruction (4.45) seems to require the defendant to prove he has committed the act by accident before he can benefit from the defense. This is clearly wrong. (See, e.g., People v. Banks (1977) 67 Cal.App.3d 379 (telling jury defense has burden on self-defense is reversible error).)
CALJIC recognizes the inadequacy of 2.90 in informing juries of the burden issue as to identity, alibi, unconsciousness and self-defense by adding a sentence to each instruction stating the proper burden of proof. This addition complies with the mandate of Evidence Code section 502. For the same reasons, the burden instruction should have been added to the instruction on accident given below.
Prejudice. The error warrants reversal. All appellant needed do was raise a reasonable doubt that the discharge of the gun was accidental to gain acquittal. The jury was not told the burden of proof on this defense and could easily have believed appellant had to prove by a preponderance or beyond a reasonable doubt that the shot was fired accidentally. As noted in the previous argument, the jury was also told to ignore the accident defense if they found “criminal negligence,” but was never informed of the burden of proof on this sub-issue of the accident defense.
In a case as close as this, whether the issue is analyzed from a Chapman v. California (1967) 386 U.S. 18, standard or People v. Sedeno, supra, approach, this error was prejudicial.
IV. THE COURT ERRED TO APPELLANT’S PREJUDICE IN REFUSING TO INSTRUCT THE JURY ON THE ELEMENTS OF ASSAULT WITH A DEADLY WEAPON AND A PRIVATE CITIZEN’S ABILITY TO USE DEADLY FORCE TO STOP A FLEEING FELON, BASED ON THE COURT’S ERRONEOUS OPINION THAT NO ACT CHARGEABLE AS SUCH A FELONY HAD BEEN COMMITTED BY MR. A, THUS PREVENTING APPELLANT FROM PRESENTING TO THE JURY A VALID DEFENSE THEORY.
Private citizens are expressly authorized to make felony arrests under Penal Code § 837, which states in relevant part:
A private citizen may arrest another: …
2. When the person arrested has committed a felony although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
See also People v. Fosselman (1983) 33 Cal.3d 572, 579: There is no right to “defend” against a valid citizen’s arrest. It is the duty of the one being arrested not to resist, and the arresting citizen may use reasonable force to effectuate the detention. [Footnote 36]
Footnote 32: Just as in People v. Mayberry (1975) 15 Cal.3d 143, 158, a rape conviction meant the jury found the elements of the offense, but because the issue of consent was not property instructed, did not mean the jury necessarily rejected the supporting evidence. See also People v. Morales (1975) 49 Cal.App.3d 134, 141 n.4: “Because it was obvious to the jury that defendant had committed some sort of theft crime, the failure to instruct on the lesser offense effectively precluded consideration of whether defendant used sufficient force to be guilty of robbery (emphasis added).
Footnote 33: Or, for that matter, to tell the jury just what the phrase “under circumstances that show neither criminal intent nor purpose, nor criminal negligence meant in relationship to a burden. Did the defendant have to show the absence of these circumstances? If so, by what standard? See People v. Thurmond (1985) 175 Cal.App.3d 865, 871-2 (suggesting a preliminary burden of proof on these issues on the defendant).
Footnote 34: This instruction was given as part of the self-defense series of instructions, CALJIC 5.12, 5.13, 5.14 and 5.15 (RT 1923-24).
Footnote 35: Adrian held it error to fail to give the burden instruction on request. It relied on Penal Code section 1096a which says that when the statutory definition of reasonable doubt is given, no other instruction defining reasonable doubt need be given (135 Cal.App.3d 339). Appellant’s argument here is not that an expanded definition of reasonable doubt be given, but that the court must instruct the jury where the burden of proof exists on the issue of accident as required by Evidence Code section 502. Also, the error in Adrian was held harmless because the court gave other instructions which told the jury of the burden as to self-defense. Here, no other instruction on accident was given to aid the jury in determining the burdens question.
Footnote 36: In People v. Garcia (1969) 274 Cal.App.2d 100, at 11:15 p.m., the manager (a private citizen) of an apartment complex saw the defendant looking through the window of an apartment. The apartment had recently been subject to a series of burglaries. When the manager called out, the defendant attempted to flee. After catching up to the defendant, the manager asked what the defendant was doing on the premises. The defendant said he was looking for a friend, Jerry. During this discussion the manager noticed the defendant was wearing black cloth gloves (it was June). The manager then took the defendant by the arm and began to escort the defendant to his own apartment. While heading toward the apartment, the manager