Brief Bank # B-536c
SEYMOUR I. COHEN, Attorney at Law
18411 Crenshaw Boulevard, Suite 411
Torrance, CA 90504
Tel.: (310) 329‑6384
Attorney for Defendant‑Appellant
APPELLATE DEPARTMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES
PRISCILLA Y. G., ) CASE NO.: BR31339
) A.M.C. : 91MOO848
Defendant‑Appellant, )
)
v. )
)
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent. )
)
APPELLANT’S REPLY BRIEF
We further submit that in the case at the bar, not only do we have improperly received evidence, but there further was improper instruction by the failure to instruct on the limited purpose of prior conviction evidence per CALJIC 2.50. When this occurs the following is the rule in this jurisdiction:
“When, as here, reliance on the improperly received evidence was aided by improper instructions, there should be no question of the prejudicial nature of the dual error”. (People v. McCaughan 49 Cal.2d 409, 416, People v. Robinson (1964) 61 Cal.2d 373, 406)
We submit that it is significant in the case at the bar that the jury did not convict this appellant of the Penal Code section 245 (a) (1) violation (assault with a deadly weapon with great bodily injury, the charged offense, but of some lesser offense (whichever one it was) which fact is entitled to great weight. We submit that the jury was locking for a compromise once it became aware of the prior conviction and accordingly, it is impossible to determine on which evidence the jury convicted and furthermore, the error was compounded by misinstruction. Accordingly, there is no question but there must be a reversal.
III
STATUTORY CONSTRUCTION MANDATES THE RULE OF LENITY AND
ACCORDINGLY, THE APPELLANT IS NOT GUILTY OF A
VIOLATION OF PENAL CODE SECTION 422
In statutory construction when the plain language of the statute does not unambiguously reveal its meaning the courts’ turn to legislative history. (Blum v. Stenson (1984) 465 U.S. 886 896, 104 S.Ct. 1547‑1548, 1549, 79 L.Ed.2d 891; California Teacher’s Association v. San Diego Community College District (1981) 28 Cal.3d 692, 698)
Where the wording of the statute or its legislative history does not point clearly to a particular meaning, the courts apply a policy of lenity and adopt a less harsh meaning.” (Ladner v. United States (1958) 358 U.S. 169‑177, 79 S.Ct. 209, 214, 3 L.Ed.2d 199)
In California we have a plain meaning rule, but the plain meaning rule is most often either honored in the breach, or used as dicta to buttress a meaning otherwise determined to be consistent with the legislative intent of the statute. (People v. Ali (1967) 66 Cal.2d 277; Title Insurance and Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 95)
There is no question that the courts have traditionally examined statutory language in terms of the context from which it originated and the events which gave it form and substance. (2 A Sutherland on Statutory Construction, 191)
In addition, the legislature has been deemed to be aware of existing laws and judicial decision in effect at the time legislation is enacted and to have enacted an amended statute in the light of such decisions that does have a direct bearing upon them. (People v. Overstreet (1986) 42 Cal.3d 891, 897)
In the case at the bar, we have the clear legislative intent contained in the cases. The former Penal Code section 422 was struck down by the California Supreme Court and the majority of the California Supreme Court felt that the term in the former statute of “social or political goals” is unconstitutionally vague since the language has no established legal meaning, and provides no limitation (so as to be all encompassing). The court felt that the statute provided no guidance to the police, prosecutor, judge or jury who must decide whether a defendant’s conduct was motivated by the desire to achieve such goals; thus unguided discretion is an impermissible violation of constitutional due process requirements. However, Justice Richardson in his dissent pointed out that in his mind it was apparent that what the legislature contemplated was a prohibition of threats where they are made to advance the cause of an ascertainable group, or are made in furtherance of principles advocated by an ascertainable group, whether in a political or a more general (social) context. He clearly held that beyond the purview of the statute is threats made in a purely personal context as is found in cases concerning strictly personal pecuniary gain as in the case of blackmail or as a result of personal robbery. (People v. Mirmirani (1981) 30 Cal.3d 375 at p. 390)
The Legislative Intent Service, which has been cited in 19 appellate opinions as of June 29, 1990 the last one being Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260 in its exhaustive review of the background of Penal Code section 422 confirms that the primary purposes of Penal Code section 422 is to be part of the “California Street Terrorism Enforcement and Prevention Act” and it is important to note that in connection with the amendments after People v. Mirmirani, supra. the office of the City Attorney indicated as follows:
“Penal Code section 422, the ‘Terrorist Threats’ statute, would be amended to remedy the constitutional defects discussed by the California Supreme Court in People v. Mirmirani. The statute, as amended, would provide a valuable weapon for combating gang terrorism, but would apply equally to other terrorist groups.” (Page 5 of December 16, 1992 summary by Legislative Intent Service)
It further characterizes on page 6 of the Legislative Intent Service, that the 1989 modification to Penal Code section 422 was “. . . non substantive changes to the statute on terrorist threats by correcting a drafting error.”
Accordingly, when the legislature reenacted the statute, it is clear they were aware of the background and that all they were doing was removing the constitutional impermissiveness as defined by the majority opinion in Mirmirani, supra but clearly Penal Code, section 422 does not apply to purely personal threats as Justice Richardson pointed out. In this case, there is just no question that what we have is purely personal threats and accordingly, it is clear that under our canons of statutory construction that this appellant is not guilty of any crime under Penal Code section 422 and that conviction must fall.
IV
THE EVIDENCE OF PRIOR CONVICTIONS IS ALMOST NEVER
NON‑PREJUDICIAL AND IN THIS CASE IT WAS DEVASTATING
We submit evidence of prior criminal convictions are almost never harmless, though in certain cases, a defendant, if he chooses to testify, can be impeached by those convictions of moral turpitude, as he is not entitled to take refuge behind the presumption of innocence.
Perhaps the clearest exposition is in Gordon v. United States (1967) 383 F.2d 936, 940‑941, where former U.S. Chief Justice Berger in discussing the standards that a court must consider before it allows admission of prior convictions stated:
“In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s
