Brief Bank # B-518
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, ) F016455
Plaintiff and Respondent, )
) (Kings County Superior
v. ) Court No. 10084)
JOHN DOE, )
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA FOR THE COUNTY OF KINGS
HONORABLE PETER M. SCHULTZ, JUDGE
APPELLANT’S OPENING BRIEF
CHARLES M. BONNEAU
Attorney at Law
2631 K Street
Sacramento, CA 95816
Telephone: (916) 444-2349
Attorney for Appellant
V. IT WAS ERROR TO REFUSE TO INSTRUCT THE JURY ON THE REASONS FOR VIEWING AN ORAL ADMISSION OR CONFESSION WITH CAUTION.
The trial court refused a defense-requested instruction that would have supplemented CALJIC 2.70 on viewing oral admissions with caution. The requested instruction would have stated the reasons for viewing an oral admission with caution: the admission may be misunderstood, it may be inaccurately remembered, and it may be incorrectly repeated. (CT 3090.) [Footnote 8] It should have been given in this case because CALJIC 2.70 standing alone is not self-explanatory. It does not inform the jury why oral admissions or confessions should be viewed in any different way than other evidence. Without the proposed explanation the jury is unlikely to take an admission or confession, otherwise viewed as extremely probative evidence, with the proverbial grain of salt.
The language of the proposed instruction is taken verbatim from People v. Gardner (1961) 195 Cal.App.2d 829, 832. The Gardner court held that there is a sua sponte duty to read an instruction based on Code of Civil Procedure section 2061 (4), repealed in 1967. That instruction, now embodied in CALJIC 2.70 dictates that evidence of an oral admission or confession be viewed with caution. The Gardner court cited authority from the past century which discussed the reasons for the cautionary rule. The Gardner court summarized these reasons in the language quoted in the proposed instruction:
“This kind of testimony is considered dangerous, first, because it may be misapprehended by the person who hears it; secondly, it may not be well remembered; thirdly, it may not be correctly repeated.” (Ibid.)
The trial court below refused the Gardner instruction with the following notation:
“Subject adequately covered by 2.70. [Footnote 9] All evidence may be misapprehended or not well remembered. Any statement may not be correctly repeated.” (CT 3090.) This reasoning is true as far as it goes, but it proves too much. The cautionary instruction has been required for almost a century and a half because oral admissions and confessions are particularly prone to misinterpretation. Unlike other evidence, an oral confession may dispose of all elements of the case. Its significance is apparent and need not be guessed at by the witness. The witness repeating the confession is necessarily aware of its significance, and thus is prone to confabulation. Long experience has taught that the danger of misinterpretation is particularly high in dealing with admissions, and a cautionary instruction is therefore necessary.
But standard CALJIC 2.70 does not say why the evidence should be viewed with caution. The danger of misrepeating a confession is a function of the accuracy of the medium repeating the confession. Thus, mechanically recorded confessions do not call for the cautionary instruction. (People v. Hines (1964) 61 Cal.2d 164, 173.) Failure to read the cautionary instruction has been held to be harmless error where there is little dispute in the evidence about whether the statement was actually made. (People v. Beagle (1972) 6 Cal.3d 441, 456; People v. Stankewitz (1990) 51 Cal.3d 72, 94.) Conversely, where there is substantial dispute about whether the defendant actually made the statement, the reasons for the rule cited by the Gardner court should be read to the jury.
In the present case there was substantial disagreement on the accuracy of several admissions attributed to appellant.
1. Chrissy K and Chrisean C testified that appellant had told them that he had just been in a fight with several Mexicans. (CT 2482, 2577.) In Chrsean C’s opinion appellant was bragging about the incident. (CT 2578.) Appellant testified only that he told the girls they got in a fight. (CT 2811.)
2. Chrissy K testified that Mr. H had told her that he (Mr. H) had killed two people. (CT 2483.) This testimony was permitted only as it related to a later statement quoted by Thomas M, in which appellant allegedly suggested that they should kill Mr. H because he had talked about the incident. (CT 2415.)
3. Chrisean C testified that there was a party several months after the killings. Appellant talked about the murders. (CT 2580.) He then threatened her with a gun and told her she should not open her mouth if she knew what was good for her. (CT 2583.) Appellant testified that he did not threaten Chrisean C, and claimed that she had long been biased against him. (CT 2819.)
4. As recounted in Argument II above, Laura B claimed that appellant was indifferent to the killings, saying that the killer “did society a favor and who cares.” (CT 2938-2939.) Appellant denied making such a statement. (CT 2946.)
The above statements were all admitted through witnesses who had an apparent bias against appellant. Laura B was an exgirlfriend. Thomas M was motivated to shift blame to appellant, and his wife was motivated to protect him. Chrisean C had a previous dislike for appellant. These witnesses were motivated, perhaps subconsciously, to interpret appellant’s statements in a damaging way or even to fabricate the statements. A simple conclusory instruction that evidence of admissions and confessions should be viewed with caution (CALJIC 2.70) is insufficient. The jury should be told that such statements are to be viewed with caution because the witness may have misheard or misunderstood it, the witness may have mis-remembered it, or the witness may not have correctly repeated it (i.e. the witness lied). (People v. Gardner, supra.)
A failure to read a cautionary instruction has been held to be reversible error. (People v. Diaz 1962) 208 Cal.App.2d 41, 44.) In the present case, appellant’s state of mind or attitude toward the incident became the focus of the opposing sides. His alleged admissions or confessions to his former friends became the main evidence bearing on his credibility and his state of mind. His former friends were all demonstrably biased. The failure to read the requested instruction was reversible error.
: The requested instruction read as follows:
The reason for the rule that evidence of any oral admission or confession of the defendant ought to be viewed with caution is that: “This kind of testimony is considered dangerous, first, because it may be misapprehended by the person who hears it, secondly, it may not be well remembered, thirdly, it may not be correctly repeated.”
: CALJIC 2.70 reads in pertinent part as follows:
“Evidence of an oral confession or admission of the defendant should be viewed with caution.”