Brief Bank # B-534 A. The trial court was required to instruct sua sponte on the legal definition of death “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Wickersham (1982) 32 Cal.3d 307, 323.)
The statutory definition of death is surely a general principle of law. It has been applied to determine the act which constituted the killing. (People v. Mitchell, supra, 132 Cal.App.3d 389, 396-398.) It has been used to determine whether a fetus was a person within the meaning of the manslaughter statute. (People v. Flores, supra, 3 Cal.App.4th 200, 210.) The frequency with which trial courts must confront the issue is not determinative. Few murder prosecutions are based upon the killing of a fetus, but a trial court must nonetheless instruct the jury sua sponte on the legal meaning of the term “viable” if the victim was a fetus. (People v. Smith (1987) 188 Cal.App.3d 1495, 1514.)
The meaning of death was, moreover, very “closely and openly connected with the facts before the court.” (Wickersham, supra.) As indicated in the presentation of appellant’s insufficiency of the evidence claim and in the introduction to this argument, the testimony of the autopsy physician raised the issue of whether the victim was alive at the time of the neck wounds, and left the issue in such a manner as to call out for an articulation of the definition of death to be applied by the jury. Likewise, instruction on the meaning of death was “necessary for the jury’s understanding of the case.” (Ibid.) In fact, it was necessary to an understanding of the actus reus element of the offense. “‘At a minimum, it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law.’ [Citation.]” (People v. Haney (1977) 75 Cal.App.3d 308, 312.)
The instruction defining deliberate and premeditated murder used the term “killing” to define the act which must be committed with the requisite intent. (C.T. 112-114.) In common usage, a person is killed only when he or she is totally lifeless, i.e., when both heart and brain have ceased to operate. (See Barber v. Municipal Court (1983) 147 Cal.App.3d 1006, 1013 [noting that death has historically been defined to require cessation of heart as well as respiratory functions].) But because California law now defines death as cessation of brain or cardiac activity, the term “killing” has a technical meaning different from the common usage. A trial court must define, sua sponte, any technical terms used in a jury instruction defining an element of the offense. This is especially true where, as here, the technical term has a different meaning in common usage. (See, e.g., People v. Shoals (1992) 8 Cal.App.4th 475, 489-490 [court must instruct sua sponte on definition of “opening or maintaining” a place for unlawful distribution of controlled substance]; People v. Smith, supra, 188 Cal.App.3d 1495, 1514 [definition of “viable”]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [definition of “force” as used in Penal Code section 288, subdivision (b)]; People v. McElheny (1982) 137 Cal.App.3d 396, 403-404 (definition of “assault”].)
Without a correct understanding of the meaning of the term “killing,” the jury could not make a proper determination on the element of concurrence of act and intent. As previously noted, concurrence of act and intent is required for the crime of premeditated murder. (People V. Dougherty, supra, 40 Cal.2d 876, 901-902; People v. Maughs, supra, 149 Cal.253, 263.) The need for concurrence of act and intent is a “fundamental doctrine of criminal law.” (People v. Green (1980) 27 Cal.3d 1, 53.) “‘So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.’ [Citation.]” (Ibid.) As this court recognized in a case involving a charge of aiding and abetting a burglary, some factual situations require the trial court to render, sua sponte, a special instruction identifying the criminal act or acts which must concur with the requisite intent. (People v. Macedo (1989) 213 Cal.App.3d 554, 560; Cf. People v. Smith (1992) 7 Cal.App.4th 1184, 1188 [questioning in dicta whether such instruction is required absent any request].)
Finally, instruction on the brain death standard was necessary to fulfill the federal and state constitutional right to jury trial and the guarantee of due process of law. The California Constitution requires that every material issue of fact be submitted to the jury. (People v. Sedeno (1974) 10 Cal.3d 703, 720.) Likewise, the 14th amendment Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.)
The instructions which were given may be said to have implicitly required that the victim be in some sense alive at the time any deliberate and premeditated intent to kill was formed, but they did not require the jury to find that the victim was legally alive (i.e., not “brain dead”) at that point. The absence of the brain-death instruction thus relieved the state of its burden to prove ‘every ingredient of an offense beyond a reasonable doubt . . . .’ [Citations.]” (People v. Figueroa (1986) 41 Cal.3d 714, 725.)
B. The trial court’s error requires reversal Failure to render a required definitional instruction is a denial of the right to have the jury determine every material issue, and “‘constitutes a miscarriage of justice regardless of the strength of the prosecution’s case.’ [Citation.]” (People v. Shoals, supra, 8 Cal.App.4th 475, 490 [reversing for failure to define “opening and maintaining”].) California doctrine requires reversal unless the issue posed by the erroneously omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Sheldon (1989) 48 Cal.3d 935, 961-962 [reversing for failure to define “assault”].)
Here, no other instruction required the jury to find that the victim had brain activity when the deliberate and premeditated intent to kill was formed. It is therefore clear that the error requires reversal under the state constitutional standard. (People v. Sheldon, supra, 48 Cal.3d 935, 961-962; People v. Shoals, supra, 8 Cal.App.4th 475, 490.)
The error requires reversal under federal doctrine as well. As this court recognized in People v. Reyes (1992) 2 Cal.App.4th 1598, 1603-1604, the federal standard applicable to error in failing to define an element of the offense is the test articulated in Justice Scalia’s concurrence in Carella v. California (1989) 491 U.S. 263, 271. That test requires reversal unless “the facts found by the jury are so closely related to the omitted issue that, on [the] evidence, no rational jury could find one without finding the other.” (People v. Reyes, supra, 2 Cal.App.4th 1598, 1604.)
Here, there are no findings “closely related to the omitted issue.” A rational jury could quite easily find the stabbing to have been perpetrated with a deliberate and premeditated intent to kill without finding that such intent accompanied the prior asphyxiation.
Reversal would likewise be required under the rule requiring the state to prove that federal constitutional error had no effect on the verdict. (Yates v. Evatt (1991) ___ U.S. ___ [114 L.Ed.2d 432, 448, ___ S.Ct. ___].) While we may assume that the jurors understood the term “killing” to refer to the act which caused the death, we cannot assume that the jurors understood that death is defined by law, much less that death is defined by law to include persons evincing cardiovascular activity. This was a case where “[d]ischarge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” (Bollenbach v. United States (1946) 326 U.S. 607, 612.)
Finally, in light of all the factors noted in the introduction to this argument, reversal would be required under the Watson “reasonable probability” standard. (People v. Watson (1956) 48 Cal.3d 935, 947.) Again, the evidence that appellant formed a deliberate and premeditated intent to kill before the victim’s brain death is extremely weak. The evidence that he formed that mental state afterwards is relatively strong. Rendition of an instruction on the legal definition of death would have effectively required the jury to test the weak evidence of pre‑mortem deliberation. The absence of such instruction allowed the jury to base its verdict on the relatively strong evidence of postmortem deliberation and the resulting attempt to kill. The prosecutor actively encouraged the jury to base its verdict upon the post-brain-death deliberated and premeditated attempt to kill. (R.T. 822.) And the jury’s verdict on the weapon use allegation states a finding that appellant used, in committing the crime, a weapon used only after the victim’s legal death. (C.T. 153.) Clearly, the error contributed to the verdict, and it is “reasonably probable” that a different verdict would have ensued were it not for the error.
 The autopsy physician testified that the “current definition of death in California is brain death and not cardiac death”, but did not purport to be stating the law. (R.T. 281.) He testified that the medical community “usually” says a person is dead when the brain dies. (R.T. 281.) But he pointed to his belief in the persistence of cardiac activity in answering both prosecution and defense counsel’s queries as to whether the victim was alive when the neck wounds were inflicted. (R.T. 271, 282.) And his explanation for having listed a cut to the trachea as a contributing factor in the death referred to its impact upon the cardiovascular system. (R.T. 258, 290.)