Brief Bank # B-539
COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF )
CALIFORNIA, ) No. 3 Crim. C009984
Plaintiff and )
Respondent, ) San Joaquin Superior
HARRY D. L., )
Defendant and )
APPELLANT’S OPENING BRIEF
Appeal from the Superior Court of San Joaquin County
Honorable JAMES P. DARRAH, Judge
2626 Harrison Street
Oakland, CA 94612
Attorney for Appellant
HARRY D. L.
in wait” and, if so, to return a first degree murder verdict.
Mr. L. submits that there were substantial jury questions as to whether or not the “lying in wait” was with the required purpose of killing or injuring the victim, or simply a coincidental antecedent to the murder. Because the basis on which the jury returned a first degree verdict cannot be determined, reversal is required. People v. Guerra (1985) 40 Cal.3d 377, 388; People v. Green (1980) 27 Cal.3d 1, 69‑70; People v. Sellers (1988) 203 Cal.App.3d 1042, 1055; People v. Houts (1978) 86 Cal.App.3d 1012, 1020.
The judgment of conviction should be reversed, and the matter should be remanded. If there has been no other error creating prejudice as to the murder verdict itself, the prosecutor should be offered an election whether to permit reduction to a conviction of second degree murder, or to retry the case. See Penal Code section 1260.
THE “LYING IN WAIT” INSTRUCTION GIVEN HERE REFLECTS AN INCORRECT VIEW OF CALIFORNIA LAW, BECAUSE IT FAILS TO REQUIRE THAT THE “LYING IN WAIT” BE THE “MEANS” BY WHICH THE MURDER WAS ACCOMPLISHED.
Mr. L. submits that there was an additional problem with CALJIC No. 8.25, above and beyond that already discussed in Argument I. That defect involves the focus of the instruction on the temporal relationship between the period of watching and waiting, and the murder; Mr. L. submits the emphasis should be on the causal relationship.
Mr. L. contends that the policy considerations which gave rise to and sustain lying in wait first-degree murder in California favor a version of the doctrine which requires, in addition to an intent during the period of watching and waiting to inflict injury, a causal relationship between the lying in wait and the murder. Mr. L. believes that the lying in wait decisions of the Supreme Court support this belief.
As already noted, above, a case of major significance in this area is People v. Tuthill,[i] supra. The defendant in Tuthill urged, inter alia, that “in order to commit a murder ‘by means of . . . lying in wait . . .'(Pen. Code § 189), the lying in wait must be the ‘means,’ method or proximate cause by which the defendant is enabled to kill his victim before he can escape . . .” This contention the Supreme Court accepted, with apparent approval. This concept of “the ‘means’ through which defendant accomplished his purpose” has become lost in the current CALJIC statement of the doctrine, which is concerned solely with the temporal proximity of the waiting to the killing.
For many years, this was not the case. For example, in People v. Thomas,[ii] supra, the Supreme Court approved an instruction referring to “[m]urder which is perpetrated by lying in wait . . . .” In People v. Ward,[iii] the lying in wait instruction retained the significant language, “perpetrated by means of lying in wait . . .” People v. Ward, supra, at 228 n.2. However, in Benjamin[iv] the drift was clearly off the course set by Tuthill and Thomas. The instructions given in Benjamin substituted the term “immediately preceded by lying in wait” for “perpetrated by means of lying in wait.” People v. Benjamin, supra, at 81. In other words, the Benjamin instructions did away with the causal view of lying in wait and substituted a temporal approach.
As currently written, CALJIC No. 8.25 has no language even suggesting that there need be a causal relation between the lying in wait and the murder, and is at odds with the language of the statute itself. It did not refer to “perpetrated by,” as in Thomas, Atchley,[v] and Ward; or “accomplished by,” as in Ward; or the “means by which,” as mentioned in Tuthill. The phrase selected was “immediately preceded by,” a term merely of temporal relationship. The instruction is inadequate to articulate the elements of lying in wait murder as defined by the Supreme Court.
Mr. L. submits that he was plainly prejudiced by the defect in the instruction. Under the facts of this case, it is not at all clear that the fact of riding around in a car was a causal prerequisite to the act causing death. Furthermore, even if this error, considered alone, is deemed problematic in terms of its prejudicial effect, the error cannot be evaluated fairly without reference to the other errors in the case, and Mr. L. benefits from the rule that a single error insufficient to establish prejudice may be considered cumulatively with other errors to demonstrate that prejudice resulted. See People v. Buffom (1953) 40 C.2d 709, 726; People v. Zerillo (1950) 36 C.2d 222, 233; and People v. Hatchett (1944) 63 C.A.2d 144, 152.[vi] In short, there was a deficiency in CALJIC No. 8.25, beyond that discussed in Argument I, and the deficiency resulted in prejudice to Mr. L. because the jury was not required to find on a necessary element of lying in wait.
[i] PEOPLE V. TUTHILL (1947) 31 C2d 92; 187 P2d 16 [ii] PEOPLE V. THOMAS (1953) 41 C2d 470; 261 P2d 1 [iii] PEOPLE V. WARD (1972) 27 CA3d 218; 103 CR 671 [iv] PEOPLE V. BENJAMIN (1975) 52 CA3d 63; 124 CR 799 [v] PEOPLE V. ATCHLEY (1959) 53 C2d 160; 346 P2d 764 [vi] See, also, People v. Malone (1988) 47 C.3d 1, 56, and People v. Lucky (1988) 45 C.3d 259, 303, in which cases the Supreme Court considered the cumulative effect of errors in capital cases yet found no prejudice.