Brief Bank # B-529
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
PEOPLE OF THE STATE OF ) No. A052632
CALIFORNIA, ) (San Mateo Superior Court
) No. C‑24763)
IRVING M. )
PETITION FOR REHEARING
DENNIS P. RIORDAN, ESQ.
DYLAN L. SCHAFFER, ESQ.
RIORDAN & ROSENTHAL
523 Octavia Street
San Francisco, CA 94102
Telephone (415) 431‑3472
IV. DEFENDANT’S CONVICTION MUST BE REVERSED BECAUSE HE CANNOT BE IMPRISONED FOR MURDER ABSENT NOTICE THAT HIS CONDUCT WOULD BRING SUCH A SANCTION, NOR CAN HE BE CONVICTED ON A THEORY AS TO WHICH HE WAS NEITHER GIVEN NOTICE NOR TRIED.
A. I.M.’s Conviction Violates Due Process Because He Was Deprived Of Notice, By Statute Or Case, That His Actions Could Result In Murder Liability.
As this Court noted in its opinion, no California court squarely [has] address[ed] the question whether a defendant prosecuted solely on an aiding and abetting theory may be liable for murder where he intended to facilitate or encourage only a misdemeanor.” 92 C.D.O.S. at 8521. No state statute answers that question in the affirmative. Section 187, defining murder, requires malice aforethought, and the homicide statute that deals with misdemeanors, section 192, creates only manslaughter liability.
The question therefore arises whether in the absence of case or statutory authority Defendant had notice of such liability and, if not, whether his conviction therefore is constitutionally invalid?
In Keeler v. Superior Court (1970) 2 Cal.3d 619, defendant was charged with murder after assaulting his former wife and causing the death of her fetus. Keeler sought a writ of prohibition to prevent his trial on murder charges, arguing, inter alia, that because Penal Code § 187 prohibits the killing of a “human being,” the statute did not provide notice that he could be charged with murder under the circumstances. Because he could not have had adequate warning of his liability under section 187, the murder charge violated the guarantee of due process of law.
The California Supreme Court agreed, holding that Keeler could not have foreseen his liability under section 187:
The first essential of due process is fair warning of the act which is made punishable as a crime. “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well‑recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.” (Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618].)
This requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 16). When a new penal statute is applied retrospectively to make punishable an act which was not criminal at the time is was performed, the defendant has been given no advance notice consistent with due process. And precisely the same effect occurs when such an act is made punishable under a preexisting statute but by means of an unforeseeable judicial enlargement thereof. (Bouie v. City of Columbia (1964) 378 U.S. 347 [12 L.Ed.2d 894, 84 S.Ct. 1697].)
Id. at 633‑34 (emphasis in original). The court held that while Keeler’s conduct was “improper and immoral” (id. at 635), the “judicial enlargement of section 187 . . . urged . . . by the People would not have been foreseeable . . . .” Id. at 639.
Like Keeler, Defendant was never on notice that the facilitation of a misdemeanor could result in his liability for murder. Had Defendant perused California case law, he would only have known that facilitation of a felony could lead to such liability.
[When] society has declared certain dangerous conduct to be felonious a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved.
People v. Patterson, 49 Cal.3d at 626 (emphasis added).
As this Court noted, and as the state no doubt will argue in response, there is no authority expressly limiting the “natural and probable consequences” doctrine to the commission or facilitation of felonies, although Patterson powerfully suggests that limitation. 92 C.D.O.S. at 8521. That was, of course, precisely the case in Keeler. Prior to Keeler, no case expressly had held that a fetus was not within the section 187 use of the phrase “human being.” The question, rather, was whether, assuming extension of the statute’s definition was proper, the defendant could have foreseen such an expansive interpretation. The Keeler court could “find no reported decision of the California courts which should have given petitioner notice that the killing of an unborn but viable fetus was prohibited by section 187.” 2 Cal.3d at 636.
The same is true of the Defendant and the Court’s misdemeanor-murder theory. I.M. was on notice that he could be convicted of aiding and abetting one or more misdemeanors. He was on notice that commission of a misdemeanor could create manslaughter liability for a resulting homicide. Penal Code § 192. He had no way of predicting, however, even had he studied the breadth of California cases and statutes, that his facilitation of a simple misdemeanor could render him liable for murder.
Indeed, Defendant’s task in discerning his potential liability, in view of this Court’s opinion, was even more burdensome. Even assuming he could discerned from Croy and Ford that by his participation in a misdemeanor he could be liable for murder, I.M. could not have guessed that, as this Court holds, his mere intent to facilitate a misdemeanor could lead to his conviction for murder. Rogers, supra and CALJIC 3.02 would logically have led him to precisely the opposite conclusion: that even if participation in a misdemeanor could result in murder liability, the state first would have to demonstrate his guilt of the misdemeanor. This Court now has ruled for the first time that no such requirement exists (92 C.D.O.S. at 8523), but Defendant cannot now be charged with notice of such a draconian rule.
Defendant’s conviction for murder when such notice was lacking cannot withstand due process scrutiny.
The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect.
Keeler, 2 Cal.3d at 635. Reversal is required.
B. Defendant Was Not Given Constitutionally Adequate Notice That He Had To Defend Against An Allegation That He Aided And Abetted The Commission Of A Misdemeanor In Order To Avoid Conviction For Murder,
[D]ue process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence at his trial. (In re Oliver, 333 U.S. 257, 273 [92 L.Ed. 682, 694, 68 S.Ct. 499]; Cooke v. United States, 267 U.S. 517, 536‑537 [69 L.Ed. 767, 773‑774, 45 S.Ct. 390]; In re Hess, 45 Cal.2d 171, 175 [288 P.2d 5]; People v. Pond, 44 Cal.2d 665, 676 [284 P.2d 7931; People v. Puckett, 44 Cal.App.3d 607, 611 [118 Cal.Rptr. 884]; People v. Romo, 200 Cal.App.2d 83, 87 [19 Cal.Rptr. 179].)
Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742; accord, People v. Thomas (1987) 43 Cal. 3d 818, 823; People v. Lohbauer(1981) 29 Cal.3d 364, 368. A charge puts a defendant on notice that he must defend against not only that accusation but all crimes necessarily included within it. Conversely,
when a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime
Lohbauer, 29 Cal.3d at 368, citing People v. West (1970) 3 Cal.3d 595,612. Thus a defendant charged with a felony burglary cannot be found guilty of an uncharged misdemeanor unlawful entry, even if the evidence proves he so entered (Lohbauer, 29 Cal.3d at 369), nor may a defendant charged with assault with a deadly weapon be found guilty of a misdemeanor brandishing (People v. Leech (1965) 232 Cal.App.2d 397) or battery (In re Robert G. (1982) 31 Cal.3d 437, 441).
The Defendant was charged only with murder. He thus concededly could not have been convicted of the misdemeanors of possessing a concealed weapon or of brandishing a weapon relied on by the prosecutor in closing argument, because notice of those charges would have been constitutionally inadequate. Of course, he was not formally convicted of those misdemeanors, but the prosecutor argued ‑ and this Court has held ‑ that he could be found guilty of murder, the charged offense, if the jury found him guilty of no more than aiding and abetting the two misdemeanors with which he was not charged. In other words, to avoid a murder conviction, Defendant was required at trial to defend against not, only an accusation he intended a murder ‑ which the prosecutor finally conceded Defendant did not ‑ but accusations he intended one of two misdemeanors. Unless Defendant was “advised of the [misdemeanor] charges against him [sufficiently] that he [might] have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence at his trial,” (Sallas, supra) his conviction must be reversed.
In California, a murder charge stated in conclusory fashion is sufficient to give a defendant notice that he may be tried on any of the conventional theories of murder liability: first degree murder, felony murder, etc. That is so for two reasons: first, those theories of liability are well established, and hence a lawyer can expect that a case may be tried on them; and, second, a defendant and his lawyer ordinarily receive notice of the exact theory of the prosecution’s case during pretrial proceedings. See People v. Thomas (1987) 43 Cal.3d 818, 829 n. 5 (felony-murder need not be alleged in pleading because “the evidence adduced at the preliminary hearing will adequately inform the defendant of the prosecution’s theory regarding the manner and degree of killing.”); People v. Terry (1962) 57 Cal.2d 538, 555‑556 (preliminary hearing transcript and voir dire provided defendant with notice that he was facing first‑degree murder charge). If, however, a defendant is not adequately apprised of the theory of the prosecution’s case by the pleadings and pretrial proceedings, a different result obtains. In Thomas, an information charging manslaughter contained extra language suggesting that only voluntary manslaughter was intended. The prosecutor, however, stated at the preliminary hearing that the case might be one of involuntary manslaughter. On these facts, the Supreme Court found that
the accusatory pleading, coupled with the transcript of the preliminary examination, was adequate to notify the defendant he faced a charge of involuntary manslaughter; . . . inclusion of the possibly misleading information should not lead to reversal unless he was actually misled to his prejudice.
Id.at 830 (emphasis added).
Being “actually misled” was precisely what occurred to the defendant in Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234. Sheppard, a California murder case, was tried on a theory of premeditated murder.
At no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony‑murder raised, directly or indirectly.
After both sides rested and instructions apparently had been settled, the prosecutor for the first time asked for felony-murder instructions on the morning of closing arguments. The Ninth Circuit noted that, consistent with California law, a defendant can be notified of the nature of the allegations against him by means other than the primary charging document:
This case does not involve a claim that adequate notice was provided by a source other than the primary charging document. An accused could be adequately notified of the nature and cause of the accusation by other means ‑ for example, a complaint, an arrest warrant, or a bill of particulars. 5t.1, e.g., Gray, 662 F.2d at 574 (Tang, J., specially concurring). Similarly, it is possible that an accused could become apprised of the particular charges during the course of a preliminary hearing. Any or all of these courses ‑ or perhaps others ‑ might provide notice sufficient to meet the requirements of due process, although precise formal notice is certainly the most reliable way to comply with the Sixth Amendment. The Constitution itself speaks not of form, but of substance.
Id.at 1236 n. 2.
The Circuit found, however, that reversal was required, on the facts before the Court.
A trial cannot be fair unless the nature of the charges against a defendant are adequately made known to him or her in a timely fashion. See Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (a fair trial is “one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding“) (emphasis added). Here, the prosecutor “ambushed” the defense with a new theory of culpability after the evidence was already in, after both sides had rested, and after the jury instructions were settled. This new theory then appeared in the form of unexpected jury instructions permitting the jury to convict on a theory that was neither subject to adversarial testing, nor defined in advance of the proceeding.
Id. 909 F.2d at 1237. See also Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 575 (statutory rape conviction voided by failure to notify defendant he could be convicted of that offense until instruction conference); compare People v. Crawford (1990) 224 Cal.App.3d 1, 9 (unlike Sheppard, defendant was not surprised by felony murder theory because prosecutor and judge mentioned it in pretrial conference.)
The unique facts of this case render appellant’s due process notice claim irrefutable. Defendant was charged at the preliminary hearing only with an accessory charge, and was bound over only on that charge. Needless to say, the Municipal Court proceedings provided no notice that he would face a murder charge, much less one based on his intent to commit a misdemeanor.
When he was charged, it was in a truly unusual manner. The
amended information charged the murder in Count One as follows:
Violation of Section 187 Penal Code, Ca: That the said defendant Irving M., on or about the 2nd day of July 1990, at and in the County of San Mateo, State of California, did willfully, unlawfully, feloniously, and with malice aforethought, murder Beatrice J. a/k/a Beatrice S., a human being.
The state did not have to put the allegation that I.M. acted “willfully, feloniously, and with malice aforethought” in the information (People v. Mosher (1969) 1 Cal.3d 379, 399), but it did. Therefore, at the very point that I.M. learned for the first time he was accused of murder, he learned he was charged with that murder on a theory of malice aforethought.
In defending against a § 995 challenge, the prosecutor argued:
[Defendant] is liable for the malice that B.J. showed. Both of them essentially went armed to have a confrontation against unarmed people. And when B.J. started shooting Point blank at Conray B., that malice is shared by Defendant.
(RT of Oct. 9, 1990, at 10).
Thus the prosecutor charged a malice theory against Defendant and argued that theory in pretrial proceedings. In fact, on the day before trial began, counsel discussed with the trial judge the prosecutor’s contention that this case might produce a first-degree murder conviction. (RT of Oct. 22, 1990, at 51‑54).
Once trial began, the prosecutor never mentioned a murder theory based on a predicate misdemeanor in her opening argument. She did not request instructions on her misdemeanor-murder theory.
A critical event then occurred after an unreported conference on instructions. The defense stated that:
[W]e were both advised [prior to trial] by Miss Allhiser, that Count I which was –otherwise, as far as Court and Counsel were concerned ‑ was a first degree, and the first degree verdict. People will not be seeking a first degree murder conviction and the verdicts corresponding thereto have been withdrawn.
Thus it was not until after the close of evidence that the prosecutor dropped her theory of premeditated murder. Her theory that I.M. could be guilty of murder by intending a misdemeanor never entered the case until she made her closing argument. (RT 1147‑49). This was thus a far worse “ambushing” than that which required reversal in Sheppard v. Reed, where the prosecutor “misled the defendant” but at least revealed her theory of guilt before closing arguments began.
Furthermore, and of equal significance, the lawyer in Sheppard arguably might have been on guard against a felony-murder theory since that doctrine is well established. On the other hand, at the time this case was tried, no criminal practitioner in California could possibly have suspected that a person who intended no more than a misdemeanor could be found guilty of murder on that basis. Concededly, no case approving such a result existed in 1990.
The theory on which Defendant’s conviction is now predicated entered California law on October 15, 1992, two years after his trial. Thus it is plain that I.M. received no notice prior to trial of the fact that he had to defend himself not only against a Beeman aiding and abetting theory, requiring proof of malice, but a misdemeanor-murder theory, requiring an intent as minimal of that of possessing a gun.
The notice error cannot be found harmless. In reversing in Sheppard, Judge Stephen Trott, former Deputy Attorney General of the United States under Ronald Reagan, states:
The constitutional requirement of a fair trial is not satisfied merely by the existence in the record of sufficient evidence to establish guilt. To apply such a test as dispositive would be to ignore other mandatory components of a fair trial, and would defeat the purpose of the notice requirement. The error in this case goes to the heart of our adversarial process and is inconsistent with elementary due process. We cannot regard as fair a trial in which the defendant’s right to defend was impaired by a lack of notice as to the nature and cause of the accusation. Under these circumstances, lack of constitutionally required notice necessarily denies a defendant the fundamental right to a fair trial. Such errors “abort  the basic trial process . . . or deny(y) it altogether.” Rose, 478 U.S. at 578, n. 6, 106 S.Ct. at 3106, n. 6.
Furthermore, in this case the prejudice emanating from the lack of notice is manifest. For example, this Court notes that: “The question of whether a misdemeanor could serve as a target offense was not raised below . . . [W]e assume [appellant] is claiming the court should . . . . sua sponte, have precluded the prosecutor from relying on misdemeanor target offenses.” 92 C.D.O.S. at 8521 n. 5. Had the defense been notified before trial, as the Constitution requires, of the prosecution’s theory that murder liability could be predicated on appellant’s intent to commit a misdemeanor, he could have preserved a full objection to the theory. Were that objection overruled, he could have at least requested full instructions on the underlying misdemeanors.
But, most importantly, he could have presented evidence and argument that Defendant did not have the intent to commit misdemeanors listed by the prosecutor. This Court affirms largely on its conclusion that “there was no evidence or argument to the effect that defendant, Reed and Jackson entered upon some plan that did not satisfy the definitions of the suggested target offenses. . . .” Id. at 8524. But during the entire taking of evidence appellant and his counsel were on notice only that they were facing a charge of murder with malice aforethought and premeditation. Appellant’s counsel’s closing argument had been written before he learned that the state’s theory of guilt was that malice aforethought could be supplanted by the intent to commit a misdemeanor, since notice of that theory was provided for the first time literally minutes before appellant’s counsel rose to argue. (Compare RT 1148‑49 and 1151).
As our Supreme Court said in reversing in In re Robert G.
and People v. Lohbauer, supra:
It may never be known with any confidence after a conviction what defenses might have been asserted had defendant been given adequate and advance notice of the possible offense for which he was criminally vulnerable.
31 Cal.3d at 442, citing 29 Cal.3d at 370. As in those cases,
the constitutional defect of lack of notice requires reversal of I.M.’s conviction.
C. This Court Cannot Affirm A Conviction On A Theory On Which It Was Not Tried.
As the Court is well aware, the trial court instructed on the following theory of vicarious liability for aiding and abettors:
You must determine whether the defendant is guilty of the crime originally contemplated. And, if so, whether the crime charged in Count one was a natural and probable consequence of such originally contemplated crime.
(RT 1198). This is the established CALJIC 3.02-Rogers principle. The Court has agreed, however, that appellant’s conviction cannot be affirmed on the theory contained in these instructions because “it is illogical to require the jury to determine defendant’s guilt of one or more crimes without giving the jury any definitions of those offenses.” 92 C.D.O.S. at 8523. The Court affirms by holding that the theory instructed was in itself wrong, the correct formulation of aider and abettor vicarious liability being
that the defendant have intended to facilitate or encourage some criminal act and that the ultimate offense be a natural and probable result of pursuing that original criminal goal.
Id. at 8523‑24.
Even were this Court’s theory good law, it is not the theory on which the jury was instructed. Determining whether the ultimate crime “was a natural and probable consequence of such originally contemplated crime” is a different task than determining whether the “ultimate offense [is] a natural and probable result of pursuing that original goal,” as Rogers makes clear. The jury was never instructed on this latter theory on which the Court affirms.
In Cole v. Arkansas (1948) 333 U.S. 196, the defendants were charged with a violation of Section 2 of the Arkansas Act. The court instructed on the elements of that section, and the defendants were convicted. On appeal, the state Supreme Court affirmed on the ground the record demonstrated defendants were guilty of a violation of section 1 of the Act, thereby avoiding the defendants’ constitutional attack on section 2. 333 U.S. 199‑200.
As here, the defendants filed a petition for rehearing arguing:
To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the fourteenth Amendment to the United States Constitution.
Id. at 200.
The Supreme Court reversed:
To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.
Id. at 202.
Here, the case as tried was tainted by inadequate
 “Pursuant to our statutory scheme, murder is defined as the unlawful killing of a human being with malice aforethought.” People v. Babbitt (1988) 45 Cal.3d 660, 693.
 In its opinion, the Keeler court refused to create murder liability on the basis of the existence of a statute criminalizing the defendant’s conduct. As the court noted, “petitioner could well have believed he was violating” Penal Code § 274 which prohibits using any means “to procure the miscarriage” of a woman. 2 Cal.3d at 635. The fact that Keeler knew his conduct was wrong did not mean he knew or should have known it was murder. In this case, the Defendant had no way of knowing that the “natural and probable consequences” doctrine would be expanded to render him liable for murder upon the basis of conduct the law classified only as a misdemeanor.