Brief Bank # B-533a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Petitioner, No. CIV S-90-0904 GEB GGH P
AL SMITH, et al.,
Respondents. FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction on the grounds that the trial court erred in failing to instruct the jury on petitioner’s theory of the case. Specifically, petitioner contends that the trial court erred in (1) failing to give a sua sponte jury instruction on the defense of necessity; and (2) failing to give petitioner’s proffered jury instruction on the defense of entrapment.
represents a public policy decision not to punish an individual despite proof of the crime. People v. Heath, 207 Cal. App.3d at 901. In addition, unlike duress the threatened harm for necessity is in the future. Id. In the instant case, petitioner argued that he never formed the intent to commit the crime and that he was in immediate fear of harm. Thus, petitioner’s defense theory at trial was consistent with duress and not necessity.
Furthermore, the court finds that the trial court did not err in failing to give a necessity instruction, given that petitioner never requested such an instruction. The court’s sua sponte duty does not require a jury instruction for every possible defense theory. In the present case, petitioner did not request such an instruction nor did the evidence dictate such an instruction. As the Court of Appeal correctly stated: “[T]he duty of the trial court involves percipience – not omniscience.” Accordingly, the court recommends that petitioner’s application for a writ of habeas corpus be denied in connection with his sua sponte jury instruction claim.
Failure to Instruct Jury on Defense Theory of Entrapment
In contrast with petitioner’s necessity claim, petitioner did submit a request to the trial court that the jury be instructed on the defense of entrapment. At the outset, the court notes that the framing of the precise issue is important to the overall analysis. At trial, petitioner requested that the jury be instructed on the defense of entrapment. The trial judge refused petitioner’s request because “there’s been no evidence introduced in this trial with respect to any entrapment.” (R.T. 95). On direct appeal, the California Court of Appeal found that, “it appears that the evidence would have supported the proposed entrapment instructions.” California Court of Appeal Opinion, p. 21. This court’s review of the matter confirms the holding of the appellate court on this matter. Entrapment in California is defined by People v. Barraza, 23 Cal. 3d 675 (1979). The general test is “[whether] the conduct of the law enforcement agent is likely to induce a normally law-abiding person to commit the offense.” Id. at 690. However, it is also entrapment for a law enforcement agent to badger, cajole, or importune the defendant into committing the crime. Id. Defendant’s evidence was directed to this latter theory. This court, of course, will not quibble with the finding of the California appellate court that California law required the entrapment instruction to be given therein.
However, the Court of Appeal then held that the failure to instruct on entrapment was harmless error based on the facts of the case. California Court of Appeal Opinion, p.21-22. Thus, the issue before the instant court is whether the trial court’s failure to instruct the jury on the defense of entrapment, which had some foundation in evidence, amounted to a violation of the Constitution, laws or treaties of the United States. Estelle v. McGuire, ___ U.S. ___, 112 S.Ct. 475 (1991).
The Ninth Circuit has consistently stated that if a defendant’s theory of the case is supported by law, and if there is some foundation for the theory in the evidence, the failure to give the defendant’s proposed jury instruction concerning his or her theory is “reversible error.” United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984); United States v. Lesina, 833 F.2d 156 (9th Cir. 1987); United States v. Sotelo-Murillo, 887 F.2d 176, 178-179 (9th Cir. 1989). In Escobar de Bright, the defendant was convicted of conspiring to import heroin, illegally importing heroin, and conspiracy to possess heroin with intent to distribute. The district court refused to give defendant’s requested jury instruction that defendant could not be found guilty of conspiracy if the jury found that defendant “conspired” only with a government agent. Defendant appealed her conviction and the Ninth Circuit Court of Appeals reversed and remanded after finding that the requested instruction was supported by law and there was some foundation in the evidence.
The Ninth Circuit specifically discussed the relationship between the reversible error standard and the harmless error standard, citing Chapman v. California, 386 U.S. 18, 24 (1967). In Chapman, the Supreme Court created the harmless error category. However, even Chapman recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Escobar de Bright, 742 F.2d at 1201, citing Chapman, 386 U.S. at 23. The Ninth Circuit held that the right to have the jury instructed as to the defendant’s theory of the case is one of these rights. In so holding, the court stated that:
Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind will entitle the defendant to a judgment of acquittal.
Escobar de Bright, 742 F.2d at 1201-1202.
The court concluded that even after the enunciation of the harmless error rule in Chapman, the failure to instruct the jury on the defendant’s theory of the case is reversible error per se and can never be treated as harmless. Id. at 1202.
At first glance, it appears that the holding of Escobar de Bright would mandate reversal of the judgment in the instant case. However, the instant case is procedurally distinct from Escobar de Bright and its progeny. In Escobar de Bright, the Ninth Circuit held that failure to instruct the jury on the defendant’s theory of the case constituted reversible error per se. However, the Ninth Circuit analyzed this issue on direct appeal from the trial court’s judgment. Here, the court must apply the correct standard of review for collateral proceedings. Thus, this court must consider whether the trial court’s error was so fundamentally unfair that it amounted to a due process violation. Estelle v. McGuire, 112 S.Ct. at 482.
Although the Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly, this court finds that the instant case fits into that very narrow category. Here, the jury was precluded from considering petitioner’s defense of entrapment, even though the California Court of Appeal found some evidence of entrapment. As the Ninth Circuit noted “jurors are not free to conjure up the law for themselves.” Escobar de Bright, 742 F.2d at 1201. It seems clear to this court that if the Ninth Circuit has held that the failure to give a defense instruction supported by the evidence can “never” be harmless under the federal constitutional standards for determining harmless error, the issue herein is one of fundamental fairness. This court is bound by the Ninth Circuit holding in this respect. The mere fact that the defendant was prosecuted in state court, and not federal court, is a distinction without a difference –-the Chapman constitutional, harmless error standard applies, or does not apply, in either forum. As the right to have the jury instructed on a defense theory of the case is one of those rights “so basic to a fair trial” when some evidence exists to support such an instruction, failure to give such an instruction would be fundamentally unfair. In the present case, failure to instruct the jury amounted to a violation of petitioner’s due process rights.
It is therefore respectfully found that the California Court of Appeal erred in applying the harmless error standard. The Court of Appeal presumed that the jury disbelieved petitioner’s version of the facts in rejecting petitioner’s duress defense. Thus, the court reasoned that the jury would also reject an entrapment theory, as the proposed theory was based on the same factual scenario. The jury merely returned a general verdict of guilty without any explanation for the rejection of the duress defense. Although, the jury could have disbelieved petitioner’s version of the facts, they could have also merely doubted one of the elements of the duress defense. For example, the jury may have found that petitioner did not fear that his life would be in immediate danger. However, this finding would not necessarily negate a finding of entrapment, which does not require a finding of “immediate danger.” If the court were to follow this line of reasoning, it would be substituting its findings for that of the jury. This cannot do. Neither can the California appellate court presume to speak for the jury on a defense that is separate and distinct from a defense that was presented to the jury.
Petitioner was entitled to a jury instruction on the defense of entrapment and failure to provide the required jury instruction was so fundamentally unfair that it amounted to a violation of petitioner’s due process rights.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be granted. The State should re-try petitioner in Case No. 26315, or, in the event that
Petitioner offered four separate instructions on the defense of entrapment (CALJIC 4.60, 4.61, 4.61.5, and 4.63). (C.T. 24-28). For, example, the relevant portion of CALJIC 4.60 provides:
It is a defense to the commission of an act, otherwise criminal, that such act was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control) when the conduct was such as would likely induce a normally law-abiding person to commit the crime.
This instruction contains no reference to a fear of immediate danger of the defendant’s life.