Brief Bank # B-525a
IN THE COURT OF APPEAL OF THE STATE F CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, ) No. A052632
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Plaintiff/Appellee, )
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vs. )
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JOHN DOE, )
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Defendant/Appellant. )
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APPELLANT’S OPENING BRIEF
On Appeal From The San Mateo Superior Court
No. C-24763
Dale A. Hahn, Judge
DENNIS P. RIORDAN, ESQ.
MICHAEL A. LEVY, ESQ.
RIORDAN & ROSENTHAL
523 Octavia Street
San Francisco, CA 94102
Telephone (415) 431‑3472
Attorneys for
Defendant/Appellant
JOHN DOE
California’s criminal law for many decades” (Patterson, 49 Cal.3d at 621), even conservative members of the present court have questioned whether “the second degree felony-murder rule stands on solid constitutional ground.” Id., at 641 (Panelli, concurring).
It was the questionable validity of a judge-made theory of criminal liability that led the Supreme Court to accept the merger rule and ban the use of the felony murder doctrine in cases where assault was the predicate offense. Ireland, supra; Wilson, supra. It would be truly unwise to resurrect the constitutional problems obviated by the merger doctrine by substituting for the discredited felony murder rule another nonstatutory, judge-made theory of vicarious liability that does not even possess the virtue of antiquity. The state’s novel use of aiding and abetting law to convict of murder a defendant who neither killed nor acted with malice must be rejected.
B. Since There Is No “Misdemeanor-Murder” Doctrine In California, John Doe Cannot Be Convicted of Murder For Doing No More Than Aiding And Abetting A Misdemeanor.
Since the crime of assault with a deadly weapon is an integral component of any homicide that results from that assault, thereby “merging” into the homicide and precluding use of the felony murder rule, the lesser related offenses of possession of a firearm and brandishing must “merge” for the purposes of the Ireland rule as well. They therefore cannot serve as the predicate for a murder conviction. There are, however, a wealth of additional reasons why the commission or aiding and abetting of a misdemeanor cannot possibly serve as the predicate for a murder conviction on a vicarious liability theory.
The state presented to the jury the theory that, even if Doe neither killed nor possessed malice, he was guilty of murder if he aided and abetted a misdemeanor—brandishing or possession of a gun—from which a homicide resulted as a natural and probable consequence. Under this view of the evidence, Doe’s actions did not meet the statutory definition of murder, which requires a mental state of malice aforethought. Penal Code §187. His conduct would, however, come within a different statutory definition: that of involuntary manslaughter, which is defined as the “unlawful killing of a human being without malice…in the commission of an unlawful act, not amounting to felony.” Penal Code § 192. The states argument that Doe could be guilty of murder by committing an unlawful act “not amounting to felony” from which a homicide resulted flies directly in the face of the statutory definition of manslaughter, and must be rejected.
Secondly, the “reasonable and probable consequences” doctrine is not to be found in the Penal Code; it is rather a judicial creation. Its use is therefore constitutionally suspect, as is true of the second degree murder rule. The latter, however, as noted above, has history to recommend it. There is no historical basis for a “misdemeanor-murder” rule. In fact, a division of this Court recently confronted with a case similar to this one could find no precedent for the extraordinary claim that the commission of a misdemeanor could render a party liable for murder. [Footnote 14] To now create a new definition of murder would be to engage in reckless judicial activism of a form expressly prohibited by the Penal Code. Penal Code § 6.
Most importantly, as a matter of law, a case cannot be sent to a jury on the theory that a homicide can be a “reasonable and probable consequence” of a misdemeanor offense of possession or brandishing a firearm. A precise parallel can be found in the law governing the operation of the second degree felony murder rule.
Since, as judicially defined, a second degree felony murder is a homicide occurring during a felony “inherently dangerous to human life”, the threshold inquiry in the doctrine’s application is whether the charged felony meets that standard Patterson, supra. If it does not, the case may not be sent to the jury on a felony murder theory. Id. The law in California is patently clear that the issue of “inherent dangerousness” is not (at least initially) one for the jury, but must first be judicially determined as a matter of law. Id.
In People v. Satchell (1971) 6 Cal.3d 28, the California Supreme Court faced the issue of whether the felony firearm offenses of possession of a gun by an ex-felon or possession of a sawed off shotgun were sufficiently likely to produce death to serve as a predicate for the operation of the felony murder rule. Deciding that issue as a matter of law, the Court held that these offenses were not “inherently dangerous to human life,” and that the trial court had committed reversible error by permitting the case to go to the jury on a felony murder theory, thereby leaving the issue of “inherent dangerousness” to be decided by jurors as an issue of fact.
If the felonies of possession of a sawed off shotgun and possession of a firearm by an ex-felon cannot be deemed “inherently dangerous to human life,” than the misdemeanor offense of aiding and abetting the possession or brandishing of a gun by a non-felon cannot be deemed to be a crime which “reasonably and probably” results in homicide. To quote Satchell:
[W]e find it difficult to understand how any offense of mere passive possession can be considered to supply the element of malice in a murder prosecution. 6 Cal.3d at 42. [Footnote 15]
The ultimate argument against acceptance of a “murder-manslaughter rule” is the blatantly unfair and oppressive result in this case. A young black man with no prior felony record (RT 1262) is serving a life sentence for a homicide that he did not commit or intend, on a theory he aided and abetted another in committing a shooting of which a separate jury found the other party not guilty. [Footnote 16] Such a result may have been common in Mississippi in 1945, but not in California, where sensible rules of criminal liability have traditionally been fairly applied. By rejecting the specious theories on which appellant was convicted of murder, this Court will uphold this state’s historical commitment to justice for all.
III. THE PEOPLE’S SPECIAL INSTRUCTIONS CONSTITUTED A COMMENT ON THE EVIDENCE THAT WILL REQUIRE REVERSAL ON APPEAL
The prosecutor requested and obtained what she denominated “special jury instructions” as to both of the charges on which Doe was convicted. As to aiding and abetting, the trial court instructed:
In determining whether the defendant aided and abetted a crime committed by John Smith, also known as Henry James Smith, you may, but are not required to consider the presence or absence of any of the following factors: One, prior agreement to commit the
FootnoteS:
See People v. Mendoza-Castillo (1991) 232 Cal.App.3d 132, 139 n.2. In Mendoza-Castillo, Division One held that under the natural and probable consequence doctrine, the violation of a misdemeanor will support a conviction of manslaughter, but not one for second or first degree murder. Since, however, Mendoza-Castillo was later depublished on October 3, 1991, appellant does not offer it in support of his present claim.
In this case, all of the predicate offenses proposed by the prosecution—assault with a deadly weapon, brandishing, and possession of a firearm—were improper bases for a murder conviction. Even if only one had been improper, however, reversal would be required. When a jury is presented with both legally permissible and impermissible theories of murder, reversal is required unless the reviewing court can determine on which theory the verdict of guilt rested. People v. Green (1980) 27 Cal.3d 1, 69. Permitting the case to go to the jury on the theory that gun possession could serve as a predicate for murder alone requires reversal. Satchell, supra.
The trial judge stated at sentencing:
“I believe that the statements of all the people who have written to me and who spoke here this morning feel this is, based on what they have seen of the defendant, that this is out of character….” (RT 1273).
