Brief Bank # B-550a
COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
) Crim. C013657
Plaintiff and Respondent, )
) (Sacramento County
) Superior Court
) No. CR101953)
RONALD W. B. )
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
Honorable Jack V. Sapunor, Judge
APPELLANT’S SUPPLEMENTAL BRIEF
JANET J. GRAY
ATTORNEY AT LAW
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
THE COURT ERRED BY FAILING TO INSTRUCT THE JURY WITH CALJIC 2.13.1
LIMITING THE USE OF ADMISSIONS TAKEN IN VIOLATION OF MIRANDA AND
BY INSTRUCTING THE JURY WITH CALJIC 2.13 AND 2.71 WHICH ALLOW
UNFETTERED USE OF PRIOR STATEMENTS
Appellant was interviewed by police after he was arrested even though he indicated that he wished to speak to an attorney before being questioned. (C.T. 149,150,156‑159.) Trial counsel brought a motion to suppress which resulted in a stipulation that these statements would not come in during the prosecution’s case-in-chief. (C.T. 149; R.T. 4.) Portions of this videotape, taken in violation of Miranda were placed on separate videotapes and introduced during the prosecution’s cross-examination of appellant. (Exhibits 33, 34, 35, 36, 38.)
The court did not instruct the jury with CALJIC 2.13.1 which limits consideration of statements given to law enforcement officers inconsistent with defendant’s trial testimony only for the purpose of testing defendant’s credibility and not as evidence of guilt. Defense counsel did not request this instruction. Under applicable instruction principles the court had the sua sponte duty to instruct the jury with CALJIC 2.13. 1. (People v. Duncan (1988) 204 Cal.App.3d 613.) However, even if this court holds that there is no sua sponte duty to instruct, the court nevertheless erred by instructing the jury because it instructed the jury with CALJIC 2.13 and 2.71 which permitted unfettered use of appellant’s inconsistent statements to establish guilt. (See, People v. Wyatt (1989) 215 Cal.App.3d 255,258.)
B. The Court Had the Sua Sponte Duty to Instruct the Jury With CALJIC 2.13.1
Although every criminal defendant is privileged to testify in his own defense that privilege does not include the right to commit perjury. (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.) The Harris decision permits introduction of statements taken in violation of Miranda and its progeny to impeach a testifying defendant to question a defendant’s credibility and not as evidence of guilt. (Harris v. New York, supra, 401 U.S. 222, 223, 91 S.Ct. 643, 644.) The California State Supreme Court initially adopted the Harris rule and held defense counsel must request instructions limiting the use of such impeachment. (People v. Nudd (1974) 12 Cal.3d 204, 209.) The state high court subsequently retreated from the Harris rule and held that statements obtained in violation of Miranda could not be used for any purpose. (People v. Disbrow (1976) 16 Cal.3d 101, 113.) In so holding the state high court expressly overruled People v. Nudd, supra, 12 Cal.3d 204 and declared that “Harris is not persuasive authority in any state prosecution in California.” (Ibid.) However, with the passage of Proposition 8, article 1, section 28, subdivision (d) of the California Constitution the supreme court held that “the Federal law must be applied as to the use of statements in violation of the Miranda rule … so … that under Harris,.. [such statements] would be usable as impeachment testimony by the prosecution.” (People v. May (1988) 44 Cal.3d 309, 313.)
Federal cases applying this principle have held that introduction of illegally obtained statements without proper limiting instructions is error that must be proved to be harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, even though not requested by defense counsel. (Hinman v. McCarthy (9th Cir. 1982) 682 F.2d 343, 349 (U.S. cert. den. 459 U.S. 1048); See also United States v. Valle Valdez (9th Cir. 1977) 554 F.2d 911.) As a California District Court has explained: “(I)n the view of this court, Hinman v. McCarthy, (citation) enjoins the trial courts of this circuit to properly instruct that statements which are not taken in accordance with the rule of Miranda, and which are used properly in accordance with Harris and with Oregon v. Hoss, (1975) 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, may be considered only for the purpose of evaluating the credibility of the declarant/witness.” (Duran v. Stagner (D.C. Cal. 1985) 620 F.Supp. 803.) The federal rule requiring sua sponte instruction controls in the present case under the state high court’s decision in People v. May. (People v. Duncan, supra, 204 Cal.App.3d at p. 621.)
C. Even Assuming This Court Does Not Impose A Sua Sponte Duty to Instruct the Jury Reversal Is Mandated Because the Jury Was In Fact Instructed With Incorrect Statements of Law
Appellant is aware of a split of authority on whether a trial court has a sua sponte duty to instruct the jury with CALJIC 2.13. 1. (People v. Wyatt, supra, 215 Cal.App.3d at p. 258; People v. Baker (1990) 220 Cal.App.3d 574, 579.) These cases rely on the principle from People v. Nudd, supra, 12 Cal.3d 204, 209 which states that “absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. (Citations).” (People v. Wyatt, supra, 215 Cal.App.3d at p. 258; People v. Baker, supra, 220 Cal.App.3d at p. 579.)
Appellant submits that Wyatt’s reasoning is faulty for several reasons. Neither Baker nor Wyatt discuss the fact that the Nudd decision, upon which their decisions are based, was expressly overruled by the California State Supreme Court in People v. Disbrow, which was later abrogated by Proposition 8, as interpreted in People v. May, supra, (People v. Disbrow, supra, 16 Cal.3d at p. 113 [“we overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California.”] Appellant is not aware of any principle of law that would reactivate Nudd, even though the Harris rule was subsequently readopted by virtue of passage of Proposition 8. The determination in Nudd that the Harris limitations must be requested by counsel was part and parcel of its adoption of Harris. Its subsequent rejection of Harris in Disbrow made requesting the Harris limitation moot.
The California Supreme Court did not retreat from Disbrow’s rejection of Harris because it had second thoughts about the validity of Nudd but because of the imposition of Proposition 8 and its interpretation in People v. May, supra. May expressly requires application of federal law to the use of statements taken in violation of Miranda principles. (People v. May, supra, 44 Cal.3d 309, 313 [“Federal law must be applied, and the Federal standard must be applied as to the use of statements in violation of the Miranda rule”.].) The holding in Nudd adopting the Harris rationale but finding no sua sponte duty to instruct on the Harris limitations was not based on application of federal standards but rather interpretation of Evidence Code, section 355 and state law. (People v. Nudd, supra, 12 Cal.3d at p. 208‑209.)
Since Nudd pre‑existed the express adoption of federal standards as to the use of illegally obtained statements its holding cannot be considered controlling. As discussed in the previous argument, federal standards which allow use of illegally obtained statements to prevent a defendant from committing perjury restrict the potential abuse of such a rule with the concomitant duty to instruct the jury sua sponte, that such statements can only be used to determine credibility. (Hinman v. McCarthy, supra, 676 F.2d at p. 349.)
However, even assuming, arguendo that this court relies on the line of cases which has essentially reseciatated Nudd, reversal is nevertheless mandated. The trial court instructed the jury with CALJIC 2.13 as follows:
Evidence that on some former occasion, a witness made a statement or statements that were inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasion. (R.T. 1109.)
The trial court also instructed the jury with CALJIC 2.71 as follows:
An admission is a statement made by the defendant other that at his trial which does not by itself acknowledge his guilt of the crimes for which such defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.
You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether such statement is true in whole or in part. If you should find that the defendant did not make the statement, you must reject it. If you find that it is true in whole or in part, you may consider that part which you find to be true.
Evidence of an oral confession or oral admission of the defendant should be viewed with caution. (R.T. 1112, emphasis added.)
The effect of giving these two instructions without excluding from consideration the illegally obtained statements was to inform the jury that such admissions could be considered on the issue of guilt. (See, e.g. People v. Duncan, supra, 204 Cal.App.3d at p. 622.) The statements as used by the prosecution and tendered to the jury by the court went directly to the issue of appellant’s culpability for first degree murder. This usage is in direct contravention of the Harris decision which strictly limits the use of illegally obtained statements for attacking credibility. (Harris v. New York, supra, 401 U.S. at p. 226, 91 S.Ct. at p. 646.) These instructions literally broadened the exceptions to the Miranda rule articulated in Harris and Hass and as such amounts to constitutional error. (See, e.g. Duran v. Stagner, supra, 620 F.Supp. at p. 805.)
“It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citation.) 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.” (People v. St. Martin (1970) 1 Cal.3d 524, 531, see also, People v. Sedino (1974) 10 Cal.3d 703, 716.) Here the court went further than omitting an instruction, it incorrectly instructed the jury on an essential point of law.
D. Both Errors, The Failure to Instruct With CALJIC 2.13.1 and Instructing the Jury With CALJIC 2.13 And 2.71 Are Not Harmless Beyond A Reasonable Doubt
As explained above, all claimed instructional errors involve a federal right requiring application of the Chapman standard. These instructional errors require reversal because the prosecution cannot prove that the error was harmless beyond a reasonable doubt under the Chapman standard.
The record is laden with examples of the prosecution introducing several of appellant’s prior statements not for attacking his credibility but for establishing his guilt of first degree murder. For example, the prosecution introduced a prior statement from the police interview in which appellant stated that he did not believe “you should commit a capital offense and get away with it.” (R.T. 664, 665; Exhibit 38, 38A.) The whole point of introducing this statement was not to attack appellant’s credibility as a witness but to prove consciousness of guilt for the crime charged. (R.T. 665.) The prosecution in fact argued to the jury that his statement regarding committing the capital offense was appellant’s admission that he had premeditated, deliberated and planned the victim’s death. (R.T. 996,997.) Appellant had explained his understanding of a capital offense was where one takes a life, either it being intentional or accidental. (R.T. 616.)
In another instance the prosecution argued that his prior statement to the police that he was not “real angry” was also evidence of first degree murder because appellant, since making that statement was trying to fit his actions into the realm of manslaughter by testifying that he was angry. (R.T. 996.) The prosecution also relied on prior illegally obtained statements to argue that because appellant had told officers he had loaded the gun used to kill the victim in the morning that he had premeditated the murder and deliberated. (R.T. 992, 1099; Exhibit 34, 34A.) Likewise the prosecution argued that appellant’s illegally obtained admission that he had briefly practiced shooting the gun also evidenced premeditation because someone planning on committing suicide with a gun does not have to be a good shot. (R.T. 991, 1099.)
Other portions of the illegally obtained taped interview were used not to attack credibility per se but to argue that appellant “could not go along with what he says on the tape” because if he did he would be admitting first degree murder. (R.T. 993, 994, 1092; Exhibit 35, 36.) The prosecution stressed that appellant “tried to change what the evidence was, even though we have him on tape admitting certain things.” (R.T. 1092.)
Inasmuch as the jury acknowledged they were having a difficult time with the issue of premeditation, and in light of the court’s resolution of their dilemma with rereading of the prosecution’s “17 points of premeditation,” which included reference to some of the illegal statements as evidence of premeditation, reversal is mandated. (R.T. 1097‑1104, 1133, 1135, 1136; C.T. 261.) Appellant also notes that the jury requested a reread of appellant’s testimony regarding loading the gun indicating that they considered this aspect of the case important. (C.T. 257.)
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
Appellant respectfully requests that his conviction be reversed.
Dated: April 2, 1993
JANET J. GRAY
ATTORNEY FOR APPELLANT
 Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
 CALJIC 2.13.1 provides: If you find that a defendant, following arrest, made (a statement) (or) (statements) to a law enforcement officer or officers, inconsistent with (such) defendant’s trial testimony, the out‑of‑court (statement) (or) (statements) should be considered by you only for the purpose of testing (such) defendant’s credibility as a witness. You must not consider the statement as evidence of guilt. (¶) (Evidence of an oral out‑of‑court statement of the defendant ought to be viewed with caution.)
 Appellant notes that this argument has no bearing on Argument 1, regarding admission of the taped discussion with appellant and his sons because that portion of the tape does not contain statements illegally obtained under Miranda and/or its progeny.