Brief Bank # B-533b
John Stanwood Hollis
PO Box 9
Avenal CA 93204
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
John Johnson )
Al Smith, )
MEMORANDUM IN SUPPORT OF
PETITION FOR WRIT OF HABEAS CORPUS
STATEMENT OF THE CASE
The Statement of the Case on page two of the opinion of the Court of Appeal (attached hereto) is accurate. The issue raised by this petition relates only to Tulare County Superior Court case number 26315, wherein petitioner was charged, and found guilty following a jury trial, of selling cocaine (Health and Saf. Code, § 11352), and sentenced to four years plus a two year enhancement.
FEDERAL HABEAS CORPUS IS AN APPROPRIATE REMEDY WHEN A STATE TRIAL COURT’S FAILURE TO INSTRUCT ON THE DEFENDANT’S THEORY OF THE CASE HAS DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW.
As a general principal questions concerning jury instructions are normally matters of state law and are not cognizable in federal habeas corpus proceedings. [Citations.] However, a federal court may grant relief in a habeas proceeding based on alleged error in state trial court’s failure to give a proposed charge to the jury if such failure is so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment. [Citations.]
It is well settled that a defendant is entitled to an instruction on his theory of the case if the record contains evidentiary support and the theory is supported by the law. [Citation.] (Owens v. Wolff (D.Nev. 1981) 532 F.Supp. 397, 398.)
In United States ex rel Means v. Solem (8th Cir. 1980) 646 Fed.2d 322, the Court found that the petitioner, charged with riot to obstruct justice, had presented evidence in support of a self‑defense theory under South Dakota law. Petitioner had requested instructions which were imperfect, but sufficient to alert the trial judge to the self‑defense issue. Held, failure to instruct on the petitioner’s theory in these circumstances was error of constitutional magnitude, warranting federal habeas corpus relief. (Id., p. 332.)
“A CRIMINAL DEFENDANT’S RIGHT TO AN INSTRUCTION ON HIS OR HER THEORY OF THE CASE SO IMPLICATES ‘FUNDAMENTAL CONSTITUTIONAL GUARANTEES,’ THAT FAILURE TO SO INSTRUCT IS PER SE REVERSIBLE ERROR.”
So said the United States Court of Appeal for the Ninth Circuit in United States v. Sotelo‑Murillo (9th Cir. 1989) 887 Fed.2d 176, 180. Petitioner herein was convicted by a jury that was not instructed on his theory of the case, and was thus deprived of his constitutional right to a trial by jury.
The Court of Appeal here reviewed the evidence and found that petitioner “presented evidence that he participated in the transaction because of Cook’s overbearing conduct . . . . It appears that the evidence would have supported the proposed entrapment instruction.” It found the error in refusing the instruction harmless, explaining that the jury’s verdict meant that the jury had not believed petitioner’s testimony. (Slip Opinion 21‑22.)
That explanation must fail on two counts. First, the Court of Appeal should not have engaged in a harmless error analysis at all, because failure to instruct on the defendant’s theory of the case, where there is evidence to support it, is per se reversible error. (United States v. Sotelo‑Murillo, supra, 887 Fed.2d at p. 180.) Second, the notion that the jury’s verdict necessarily indicated disbelief of petitioner’s version of the events he described is simply inexplicable on this record. The jury was instructed that only a threat which “would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged” would provide a defense. Petitioner testified to a threat conveyed by phone (and therefore not “immediate”), directed in part against another person, and ambiguous as to whether it was of death or something lesser. The jury could have believed all of that, and still convicted because it was not persuaded that the threat described would cause a reasonable person to fear immediate danger to his own life.
To put it another way, petitioner was entitled to an acquittal if the jury believed that he participated in the sale of cocaine because of overbearing conduct on the part of a person acting for a law enforcement agent. (CALJIC No. 4.61.5 (1979 Revision) as proposed by petitioner in this case; CT 27.) The Court of Appeal agreed with that proposition and further agreed that there was evidence that that is what happened. (Slip Opinion 21.) Yet it found the error in failing to so instruct the jury harmless, because the jury convicted on instructions that petitioner was entitled to an acquittal only if he reasonably believed that his own life was in immediate danger. But a jury finding that petitioner’s testimony failed to show a reasonable basis for a fear of imminent death is not the same thing as a finding that it failed to show overbearing conduct by a law enforcement agent. Having found error in failing to instruct on entrapment, the Court of Appeal should not, in these circumstances, have found the error harmless.
The Court of Appeal recited relevant portions of petitioner’s testimony, including that the threat inducing him to act was made over the telephone, was that “you know what will happen,” and caused petitioner to fear for his fiancé’s safety as well as his own. (Slip Opinion 8.) It then said, “The defense presented by petitioner, however, was consistent with duress and completely inconsistent to (sic) the defense of necessity.” (Slip Opinion 15.) That is like saying, “it sounds like a duck, looks like a duck, and acts like a duck; those facts are completely inconsistent with its being a duck.”
Under California law, the elements of a necessity defense are as follows:
1. The act charged as criminal must have been done to prevent a significant evil;
2. There must have been no adequate alternative to the commission of the act;
3. The harm caused by the act must not be disproportionate to the harm avoided;
4. The accused must entertain a good faith belief that his act was necessary to prevent the greater harm;
5. Such belief must be objectively reasonable under all the circumstances; and
6. The accused must not have substantially contributed to the creation of the emergency.
(People v. Pena, supra, 149 Cal.App.3d Supp. at pp. 25‑26; People v. Heath (1989) 207 Cal.App.3d 892, 897.)
A properly instructed jury could well have found every one of these elements. The “significant evil” to be prevented was death or serious injury. Respondent argued in the Court of Appeal that perhaps petitioner had “adequate alternatives,” but none are suggested in that Court’s opinion. A drug sale is not disproportionate to death or serious injury, and surely a jury could have found that petitioner’s belief in the necessity of his act was held in good faith and was objectively reasonable. Petitioner did not contribute to the creation of the emergency. There was, in short, evidence in support of every element of a necessity defense.
“However,” said the Court of Appeal, petitioner “also testified that he feared for his life during the actual transaction . . . .” (Slip Opinion 16.) Perhaps he did. Perhaps his testimony provided support for a traditional duress instruction. But that does not mean the evidence did not support a necessity instruction as well.
The Court of Appeal made much of petitioner’s use of the word “duress” and the phrase “duress . . . eliminates volitional intent” in his requested instruction. According to the Court of Appeal, that meant that petitioner’s “theory of the case” was duress and not necessity. (Slip Opinion 15‑16.) But at the time this case was tried, the California courts had not distinguished between the two. The leading case at that time was People v. Pena, supra, in which, as in other recent cases prior to People v. Heath, supra, the terms “duress” and “necessity” were used interchangeably. (See 1 Witkin and Epstein, Cal. Criminal Law (2d Ed. 1988) sec. 233, p. 270.) Heath was the first California case to recognize the differences between these two defenses.
The facts to which petitioner testified ‑ a threat conveyed by phone (and therefore not “immediate”), directed in part against another person, and ambiguous as to whether it was of death or something lesser ‑ if true, entitled petitioner to a not guilty verdict, whether the theory be labeled “duress” or “necessity.” But no jury ever passed upon the truth of petitioner’s testimony. Petitioner admitted the sale of cocaine, and the court instructed that everything presented by way of defense was irrelevant: duress, the court instructed, is a defense only if the threat is of immediate danger to the life of the threatened person. As the prosecutor argued, “the gun’s got to be pointed at his head. With a gun pointed at his head, the guy has to say, ‘now give me an ounce of coke or I’m going to blow your head off,’ or at least he has to think that that’s the situation.” (October RT 103A.) Since that was not the situation petitioner described, the jury was left with no defense to consider.
Petitioner’s testimony, if believed, would have established his right to an acquittal on the basis of either entrapment or necessity. The trial court in effect instructed the jury to disregard that testimony, and the Court of Appeal affirmed. Petitioner’s constitutional right to a jury’s consideration of his defense was thus denied.
John Stanwood Hollis
the standard duress instruction clearly informed the jury regarding the lack of volitional intent, and a contrary instruction regarding necessity, on the facts of this case, would have confused the jury. The court was clearly aware of its duty to give all instructions supported by the evidence, based on its comments when it rejected the entrapment instructions, and its failure to sua sponte instruct on the necessity defense was not error considering the facts and the defense theory presented in this case. “The duty of the trial court involves percipience‑‑not omniscience.” (People v. Cram (1970) 12 Cal.App.3d 37, 41; People v. Flannel, supra, 25 Cal.3d 668, 683.)
SHOULD THE COURT HAVE GIVEN THE
REQUESTED INSTRUCTIONS ON ENTRAPMENT?
Appellant also contends that the court should have given the requested entrapment instructions. The court rejected this request because it felt that the evidence did not support entrapment instructions.
A trial court is not obligated to give requested instructions if the evidence is such as to preclude a reasonable jury from finding the instructions applicable. (People v. Flannel, supra 25 Cal.3d 668, 684; People v. Wickersham, supra, 32 Cal.3d 307, 325; People v. Schultz (1987) 192 Cal.App.3d 535, 539.) Thus, the question is whether the evidence was sufficient to justify the entrapment instructions. Appellant argues that Cook was working under the direction of Officer P. and that Cook’s threats constituted affirmative acts which induced appellant to commit the crime.
The Supreme Court has adopted the following test of entrapment: “[W]as the conduct of the law enforcement agent likely to induce a normally law‑abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect‑‑for example, a decoy program‑‑is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law‑abiding person to commit the crime.” (People v. Barraza (1979) 23 Cal.3d 675, 689‑690.) The court outlined two principles to aid in interpreting police conduct. Entrapment will be established if the police conduct induces the person to commit the act because of friendship or sympathy, instead of a desire for personal gain. Entrapment will also be established if affirmative police conduct makes the commission of the crime unusually attractive to a normally law‑abiding citizen. (23 Cal.3d at p. 690.) There is no entrapment, however, when the official conduct goes no further than to assure the suspect that he is not being “set up,” and to gain the confidence of the suspect. (Id. at p. 690, fn. 4; 1 Witkin, Cal. Crim. Procedure (1988 2d ed.) Defenses, § 264, pp. 302‑303.) Entrapment is an affirmative defense imposing upon the defendant the burden of showing that he was induced to commit the act. (People v. Schwartz (1952) 109 Cal.App.2d 450, 455; People v. Pijal (1973) 33 Cal.App.3d 682, 692.)
Appellant testified that he participated in the narcotics transaction based on his fear of Al Cook. He claimed that Cook threatened him during the phone call and that he warned appellant that he better produce the cocaine or he knew what would happen. The evidence clearly established that Cook was working as an agent of law enforcement since he was a paid informant. While P.’s account of the phone call refuted part of appellant’s story, appellant still presented evidence that he participated in the transaction because of Cook’s overbearing conduct. While appellant’s prior conviction for possession for sale might have negated any inference that he was a law‑abiding citizen, he was out on bail at the time of the sale to P. and had not yet been convicted of any offense. It appears that the evidence would have supported the proposed entrapment instructions.
Any error in failing to instruct on either necessity or entrapment is harmless based on the facts of this case. As discussed above, the heart of appellant’s defense was that he sold the cocaine to P. only because of his fear of Cook based on past incidents of violence and the phone conversation. This scenario of fear was the basis of appellant’s duress defense, and was stressed by defense counsel during closing argument. It is clear that this factual scenario was also the basis for appellant’s arguments concerning the necessity and entrapment instructions. The success of these defenses (duress, necessity and entrapment) was dependent upon whether the jury believed his story about Cook and the phone conversation. It is clear, in light of the conviction, that the jury did not believe appellant’s version of the drug transaction, and it is not reasonably probable that a result more favorable to appellant would have been reached had either the necessity or entrapment instructions been given. (People v. Ratliff (1986) 41 Cal.3d 675, 694; People v. Watson (1956) 46 Cal.2d 818, 836.)
WAS APPELLANT IMPROPERLY IMPEACHED
WITH PROOF OF A PRIOR ARREST AND TRIAL?
Appellant contends that the court improperly permitted impeachment of his testimony in case No. 26315 through proof of his arrest and trial for possession of cocaine for sale in case No. 26217. We agree this was error, but conclude it was harmless. The record reveals that appellant was apprised by the court that evidence pertaining to possessing cocaine for sale in case No. 26217 might be admissible to rebut his testimony supporting a duress defense. A bench conference was conducted during Tamera B.’s testimony:
“THE COURT: is the defendant going to testify his life was in danger?
“MR. PARHAM [defense counsel): I think he will.
“THE COURT: You better consider that seriously too, because that might open the door about the testimony of the other offense. I’m not prejudging that.
“MR. FAUST [prosecutor]: I would think right now that if he goes into any kind of selling of drugs because of duress [sic] that we should be entitled to have all of the previous stuff put in to show that he does it without being under duress.
of federal law, claims which merely challenge the correctness of jury instructions under state law cannot be construed to allege a deprivation of federal rights. (Van Pilon v. Reed, 799 F.2d 1332 (9th Cir. 1986).) The failure to instruct is not a federal violation unless the deprivation so infected the entire trial as to amount to a deprivation of due process. (Olsen v. McFall, 843 F‑2d 918, 927‑928 (6th Cir. 1988) (Failure to instruct on defense of duress).) Petitioner’s theory was presented to the jury. He was entitled to no more so due process is satisfied.
FAILURE TO INSTRUCT ON ENTRAPMENT DOES
NOT WARRANT FEDERAL RELIEF
Petitioner argues that it was error not to also instruct on entrapment. The trial court believed that entrapment instructions were inappropriate because all of the defense evidence had to do with the defense of duress. (RT 95.) The court of appeal disagreed, and concluded that entrapment instructions were warranted by the evidence but harmlessly omitted in light of the jury’s rejection of appellant’s testimony. (App. A., p. 21‑22.)
Petitioner cites federal law, United States v. Sotelo‑ Murillo, 887 F.2d 176, 180 (9th Cir. 1989) in support of his claim. Whether petitioner was entitled to an entrapment instruction in his state prosecution, however, depends on state law and failure to give an entrapment instruction that might be proper as a matter of state law does not amount to federal constitutional issue. (Miller v. Stagner, 757 F.2d 988, (9th Cir. 1985), cert den. 475 U.S. 1048. See also Engle v. Isaac, 456 U.S. 107, 119; 102 S.Ct. 1558.)
Moreover, petitioner has not shown that the absence of the instructions so infected the entire trial so as to amount to a violation of due process. (Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973).) The jury was instructed on duress. Duress is a defense when one engages in conduct otherwise criminal when acting under threats and menaces where they are such that they would cause a reasonable person to believe that his life would be in immediate danger if he did not engage in the conduct. (CT 47.) Entrapment asks whether the conduct of the law enforcement agent is likely to induce a normally law‑abiding person to commit the offense. (People v. Burraza 23 Cal.3d 675, 689‑690 (1979).) As the court of appeal recognized, petitioner’s theories of avoiding liability all depended on the same factual scenario ‑‑ he feared for his life because of the threats of Coker and his representatives. The jury plainly rejected this factual scenario. No reason exists to expect a different result if the additional option of entrapment had been presented. The absence of the instruction, therefore, did not infect the entire trial; no federal violation occurred.
For the foregoing reasons, it is respectfully urged that the instant petition for writ of habeas corpus be dismissed.
DANIEL E. LUNGREN
Chief Assistant Attorney General
ARNOLD O. OVEROYE
Senior Assistant Deputy Attorney
Attorneys for Respondent
 “Q Well, there was nobody standing there to hurt you at that time, was there?”
“A Well, I didn’t know that. I didn’t know who he would have had with him. I didn’t know Mr. P. either.”
(RT 80, Slip Opinion 16.)
Appellant requested the standard entrapment instructions: CALJIC Nos. 4.60 (1979 3rd revision), 4.61 (1981 revision), 4.61.5 (1979 revision), and 4.63 (1979 4th revision).
 defense was also unavailable because petitioner could have repaid the debt for his prior purchase of cocaine from Cook. It is also clear that petitioner substantially contributed to the emergency, (People v. Heath, 207 Cal.App.3d 892, 897 (19__), by illegally using Cook as his supplier for cociane, RT 88, and not paying off his debt. (RT 82)