Brief Bank # B-531
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, )
) No. H010172Al
VS. ) (Santa Clara Co. Sup.
) Ct. No. 148385)
WILLIAM R. D., )
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA
HONORABLE WILLIAM F. MARTIN, JUDGE
APPELLANT’S OPENING BRIEF
SIXTH DISTRICT APPELLATE PROGRAM
in association with
CHARLES M. BONNEAU
Attorney at Law
2631 K Street
Sacramento, CA 95816‑5178
Attorney for Defendant and
Appellant, WILLIAM R. D.
IV. IT WAS ERROR TO FAIL TO INSTRUCT THE JURY THAT IF THE JURY IS CONVINCED BEYOND A REASONABLE DOUBT THAT AN UNLAWFUL ASSAULT WAS COMMITTED BY THE DEFENDANT, BUT HAS A REASONABLE DOUBT WHETHER THE ASSAULT WAS AGGRAVATED, IT MUST GIVE THE DEFENDANT THE BENEFIT OF THE DOUBT AND CONVICT OF THE LESSER OFFENSE.
In any case involving an offense divided into degrees, the jury must be advised to convict only of the lesser degree if it has a reasonable doubt of which degree applies. (Penal Code section 1097.) The same rule applies to lesser included offenses. (People v. Dewberry (1959) 51 Cal. 2d 548, 555; People v. Aikin (1971) 19 Cal. App. 3d 685, 699‑703.) The standard instruction on deliberations on lesser offenses (CALJIC 17.12), given below, does not include this concept. The trial court therefore erred in neglecting this sua sponte duty.
Penal Code section 1097 provides as follows:
“When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.”
Pursuant to this section, there is a standard jury instruction, CALJIC 8.71, which requires the jury to return a verdict of the lesser degree in a murder prosecution.
“If you are convinced beyond a reasonable doubt that the crime of murder has been committed by a defendant, but you have a reasonable doubt whether such murder was of the first or the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.”
The Use Note to this jury instruction directs that it must be given sua sponte.
Read literally Penal Code section 1097 applies only to crimes divided into degrees, such as murder and burglary. However, the courts have long recognized that the same principle applies to lesser included offenses: the jury must be instructed that if it has determined that the jury is guilty of an offense, but has a doubt whether the offense is greater or lesser, it must convict of the lesser. The Supreme Court so held in People v. Dewberry (1959) 51 Cal. 2d 548, 555:
“It has been consistently held in this state since 1880 that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. (People v. Iams, 57 Cal. 115, 121, 130; People v. Newcomer, 118 Cal. 263, 270-271; People v. Marshall, 120 Cal. 70, 70-71; People v. Burns, 88 Cal. App. 2d 867, 871-873; see also McAffee v. United States, 105 F. 2d 21, 31; People v. Marquis, 153 Cal. App. 2d 553, 556-558; People v. Miller, 67 Cal. App. 674, 678‑679; 20 A.L.R. 1258, 1259; 26 Am. Jur., Homicide, section 541.) …”
Dewberry rejected an argument that the reasonable doubt choice between alternative verdicts is limited to degrees of a crime. Since Dewberry was a murder prosecution, the same principle was to be applied to the choice between murder and manslaughter. Pursuant to that decision CALJIC 8.72 was adopted:
“If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be murder rather than manslaughter.”
Although the quoted language from People v. Dewberry, supra, applies to all lesser included offenses, the only standard jury instruction adopted was CALJIC 8.72, applying to the choice between murder and manslaughter. There is no standard jury instruction applying the principle to other lesser included offenses. This gap is all the more significant because at least one of the cases cited by the Dewberry decision, People v. Burns (1948) 88 Cal. App. 2d 867, 870-871, involved a choice between aggravated felony assault and the lesser offense of simple assault, much as in the present case.
In People v. Aikin (1971) Cal. App. 3d 685, 703‑704, it was held that the Dewberry instructions (now CALJIC 8.71 and 8.72) must be given sua sponte. People v. Aikin again involved a murder prosecution. Hence, CALJIC 8.71 and 8.72 are clearly denoted as sua sponte instructions.
Meanwhile, significantly different language was adopted to apply to the choice between other greater and lesser offenses not involving murder. CALJIC 17.10 was adopted to read as follows:
“If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt….”
This instruction differs from the murder‑manslaughter instructions in two significant respects. First, and most important, it states that the jury “may” deliver a guilty verdict on the lesser offense. It does not say that they “must” convict on the lesser and acquit on the greater, as clearly stated by the murder-manslaughter instructions. This alone will affect the verdict in a close case. Second, the quoted language from CALJIC 17.10 only directs the jury’s attention to the lesser offense if the jury has found a reasonable doubt as to the greater. This instruction adds little or nothing to the reasonable doubt instruction CALJIC 2.90, which directs acquittal on a finding of reasonable doubt. The gist of the principle in CALJIC 8.71 and 8.72 is that the jury, who have determined that the defendant is guilty of a crime, but cannot determine whether to convict on the greater or the lesser offense, must convict only of the lesser. This principle is not stated in the quoted language from CALJIC 17.10.
The quoted language from CALJIC 17.10 was later embodied in CALJIC 17.12, which was read in the present case. (CT 216‑218.) That instruction includes principles derived from Stone v. Superior Court (1982) 31 Cal. 3d 503 and People v. Kurtzman (1988) 46 Cal. 3d 322. CALJIC 17.12 at least permits the jury to consider the lesser offense: “… [Y]ou have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it to be productive to consider and reach tentative conclusions on all charges and lesser crimes before reaching any final verdict[s].” However, the Kurtzman instruction is very far from stating that the jury must convict of the lesser offense if it has a reasonable doubt of which offense the defendant is guilty of.
In People v. Reeves (1981) 123 Cal. App. 3d 65, 69 the court recognized that the above-quoted language from CALJIC 17.10 does not express the principles of People v. Dewberry, supra. Nevertheless, no standard jury instruction was ever adopted to apply the Dewberry principle to offenses other than murder-manslaughter. (But see People v. Gonzales (1983) 141 Cal. 3d 786, 793.)
A paraphrase of the language of CALJIC 8.72 must be read in any case involving a lesser included offense. The instruction should read as follows:
“If you are satisfied beyond a reasonable doubt that an offense was committed by the defendant, but you have a reasonable doubt whether the offense is assault with intent to commit rape or battery, you must give the defendant the benefit of the doubt and find it to be battery rather than assault with intent to commit rape.”
(see People v. Dewberry, supra, and authorities there cited.)
Such an instruction is required sua sponte. (People v. Aikin, supra.)The failure to read it was therefore error.
The error was prejudicial under the facts of the present case. Defense counsel argued that the defendant should be convicted of battery. (RT 285‑286, 291.) The district attorney in response made pointed use of the language from CALJIC 17.12:
“Now, in order for you to find the defendant guilty of battery, misdemeanor battery, and I want to make this very clear, is only if, only if all twelve of you agree that he is not guilty of assault with an intent to commit rape. If you all do not agree on that, then you cannot find any verdicts on the lesser charge….”
The jury had great difficulty choosing between battery and assault with intent to commit rape. During deliberations on June 14, 1992 they inquired of the “legal definition of intent to commit rape.” The trial court responded with a copy of the jury instructions. (RT 327.) The next day the jury asked if the statement “I am going to rape and kill you” constitutes intent in itself. The trial court responded that the statement was circumstantial evidence of intent. (RT 330.) The jury also asked which conclusion has precedence between two rational conclusions. The trial court responded by reading the circumstantial evidence rule on specific intent. (RT 331.)
The jury had good reason to hesitate. This defendant did not kiss or fondle the victims. He did not disrobe them or himself. He certainly committed an assault and battery on them, but the lack of sexual innuendo in the attack is striking. Had the jury been properly instructed that it must resolve any reasonable doubt in favor of the lesser offense, there is a reasonable probability that he would have been convicted of battery and acquitted of assault with intent to commit rape. For these reasons the conviction must be reversed.
 For other offenses such as burglary which are divided into degrees, the principle was embodied in CALJIC 17.11, which reads in its current version as follows:
“If you find the defendant guilty of the crime of ______, but have a reasonable doubt as to whether it is of the first or second degree, you must find [him][her] guilty of that crime in the second degree.”
Appellant was entitled to instructions on simple assault. This is obviously a lesser included offense; the definition of assault was properly read as part of the definition of assault with intent to commit rape. (CT 209‑210.) Rather than giving an instruction on simple assault, the court instructed the jury on battery. (CT 216‑219.) The parties evidently believed that battery was a more appropriate lesser offense than simple assault. Since it would have otherwise been error to fail to give a simple assault instruction (see Argument V. below), battery should be considered a lesser included offense.