Brief Bank # B-574C
NOTE: The text of the footnotes appear at the end of the document.
THE TRUE FINDINGS ON THE SPECIAL CIRCUMSTANCE ALLEGATIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO PROVIDE THE JURORS WITH ANY GUIDANCE ON THE TECHNICAL LEGAL MEANING OF THE TERM “RECKLESS INDIFFERENCE TO HUMAN LIFE” AND THEREBY ALLOWED THE JURORS TO APPLY AN UNCONSTITUTIONALLY VAGUE STANDARD IN MAKING THE FINDINGS THAT MANDATED A SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE
The prosecution’s theory was that codefendant Mr. A was Mr. J’s actual killer and that appellant’s liability for murder stemmed from his role as an accomplice and coconspirator. All the evidence pointed to Mr. A as doing the killing and there was nothing to suggest that appellant played that role rather than Mr. A. The jurors agreed with the prosecution theory. Their verdicts establish that they unanimously found Mr. A was the actual killer because they unanimously found that Mr. A personally used a firearm during the commission of the murder, the robbery and the burglary. (CT 1013, 1017, 1019.)
Under the instructions given, the jury’s finding that Mr. A was the actual killer made a significant difference to their evaluation of appellant’s liability to special circumstance treatment. For Mr. A as the actual killer, the matter was very simple: the jury was instructed under subdivision (b) of Penal Code section 190.2 that they did not need to find any intent to kill on the part of the actual killer in order to find the special circumstances true. (CT 1194; RT 7937-7938.) That was how the prosecution argued Mr. A’s liability. (RT 7486.) But for appellant, as a defendant who was not the actual killer, the instructions told the jurors that the special circumstances could not be found true unless he either intended to kill or acted “with reckless indifference to human life and as a major participant” in aiding and abetting the underlying crimes of robbery or burglary. This part of the court’s instruction was based on subdivisions (c) and (d) of Penal Code section 190.2 and read as follows:
“If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, command-ed, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crimes of robbery or burglary which resulted in the death of a human being, namely Mr. J.” (CT 1194-1195; RT 7938; see CALJIC 8.80.1; emphasis supplied.)
The prosecutor’s argument to the jury emphasized that this instruction presented an “either or” proposition. (RT 7486-7487.) In light of the availability of these two distinct alternatives, the jury’s general verdicts on the special circumstance allegations do not indicate in any way how the jurors reached the conclusion that appellant was liable to special circumstance findings. In other words, the verdicts are ambiguous and do not establish whether the jurors thought appellant intended to kill or acted with reckless indifference to human life as a major participant in the robbery and burglary. (CT 998-999.) This ambiguity as to the basis for the verdicts might not make any difference if the instruction on special circumstance liability had provided the jurors with adequate guidance on the two options. However, the instruction failed to provide that guidance because it did not define for the jurors the technical legal meaning of the term “reckless indifference to human life.” This was error, and it was an error that deprived appellant of a fair trial on the special circumstance allegations.
It was crucial that the jury be properly instructed on special circumstance liability because the findings meant the difference between life imprisonment without any possibility of parole release and a twenty-five years to life term with parole eligibility after approximately 18 years. The special circumstance determination could not fairly be left to the vagaries of the various, assorted meanings individual jurors might ascribe to the term “reckless indifference to human life.” For a fair determination on the special circumstance allegations, this term had to be further defined in line with what the United States Supreme Court intended it to mean when it invented the term in Tison v. Arizona (1987) 481 U.S. 137.
The drafters of Proposition 115 lifted the term “reckless indifference to human life” directly from the Tison opinion and placed it in subdivision (d) of Penal Code section 190.2 as if the Supreme Court had suggested the phrase as model language for death penalty statutes to be applied to felony murderers. The CALJIC Committee then lifted the phrase directly from the statute and placed it in CALJIC 8.80.1 without any consideration of the context in which it was used by the Tison court, and as if the term was entirely self-explanatory. The problem that both the drafters of Proposition 115 and the CALJIC Committee ignored is that the Tison court used the phrase in a particular context and attached to it specific meaning.
The context in which the phrase arose in Tison is instructive. The Court was not trying to draft or interpret a death penalty statute, nor was it trying to explain what would be a sufficient jury instruction in a capital jurisdiction such as California where the jury decides penalty. The question Tison grappled with was what state of mental culpability is constitutionally sufficient to uphold a death penalty against a person convicted of felony murder who fell between two recognized poles of culpability. The court identified the one pole as involving a defendant like the defendant in Enmund v. Florida (1982) 458 U.S. 782, who was a “minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.” (Tison, at p. 149.) It defined the other pole as a “felony murderer who actually killed, attempted to kill, or intended to kill,” i.e. someone like codefendant Mr. A. (Id., at p. 150.) For the felony murderer that fell in the middle, Tison gave guidance on what was constitutionally sufficient to uphold the death penalty: “major participation in the felony committed, combined with reckless indifference to human life.” (Id., at p. 158.) But it did not purport to suggest that merely trotting out the phrase “reckless indifference to human life” would be enough to explain the requisite mental state to jurors charged with deciding death and life without parole eligibility.
The Tison court, in fact, made clear it had specific ideas as to what “reckless indifference to human life” meant and thereby recognized that the term needed explanation. First of all, the court said “reckless indifference to human life” meant something more than the mental state the Arizona Supreme Court had devised to expand the definition of “intent to kill” in order to escape the limitation imposed in Enmund. The Arizona High Court wrote that intent to kill “includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony.” (Id., at p. 150.) The Tison court characterized this as merely a “species of foreseeability,” and criticized “this attempted reformulation of intent to kill” as “little more than a restatement of the felony-murder rule itself.” (Id., at pp. 150-151.) Most important, the Tison court found Arizona’s use of this standard in finding a sufficiently culpable mental state for felony murderers was erroneous because this foreseeability concept did not equate with the Tison court’s more demanding concept of “reckless indifference to human life.” (Id., at pp. 138, 158.) That is why the case had to be remanded: to redetermine whether the “reckless indifference” component of the constitutionally required mental culpability was satisfied. The lesson from this is that “reckless indifference to human life” as used by the Tison court means more than mere foreseeability that lethal force would or might be used during the underlying felonies or that life would or might be taken.
In the course of arriving at “reckless indifference to human life” as a shorthand formulation of one of the components of the requisite mental culpability for a felony murderer, the Tison opinion also offers a number of other ideas as to what the court thought the term should mean. One of the court’s ideas is that “reckless indifference to human life” should correspond to what many states already require: that “the defendant was a major actor in a felony in which he knew death was highly likely to occur.” (Id., at p. 154; emphasis supplied.) Another formulation offered by the court is that “reckless indifference to human life” should involve “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death” (id., at p. 157; emphasis supplied), [Footnote 1] a formulation of mental culpability which obviously went beyond what is inherent in a person’s simple participation in the underlying felonies of robbery or burglary and the given that danger to others will inevitably attend the commission of those crimes.
A third formulation offered by the court is that felony murder defendants must have “subjectively appreciated that their acts were likely to result in the taking of innocent life,” which is once again a formulation of mental culpability that goes beyond the defendant’s simple acceptance of the inherent risks of participation in the underlying felonies. [Footnote 2] (Id., at p. 152; emphasis supplied.) Finally, at several points the Tison court used the language “reckless indifference to the value of human life” (id., at pp. 152; 157; 158, fn. 12; emphasis supplied), which clearly says something more demanding than “reckless indifference to human life” even though it does not adequately convey the idea that more is required than mere acceptance of the inherent risks of participation in the underlying felonies.
Thus, throughout its opinion, the Tison court expressly recognized that the term “reckless indifference to human life” was merely shorthand for the various formulations of mental culpability it set out. The court acknowledged this concept would need to be fleshed out by the states. It stated: “We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here.” (Id., at p. 158.) What this signalled for states like California that hand juries the responsibility of determining eligibility for the punishments of death and life without parole eligibility is that “reckless indifference to human life” must be precisely defined in jury instructions to ensure that jurors understand what is being asked of them.
The drafters of subdivision (d) of section 190.2 overlooked the Tison court’s warning that it would be up to the states to give content and precise meaning to the term “reckless indifference to human life.” Just as with a term like “malice aforethought,” the bald use of the Tison court’s language in the statute does not confer precise meaning on the term and make it commonly and uniformly understood by English speakers without further definition. Bald use of the term in jury instructions is even worse. The problem is that a juror can give the term virtually whatever content he or she chooses to give it. In fact, without further definition, jurors are highly likely to interpret “reckless indifference to human life” to mean just as little as the Arizona Supreme Court interpreted “intent to kill” to mean: mere foreseeability that lethal force would or might be used during the underlying felony or that life would or might be taken. Thus, in the absence of further definition, appellant’s jurors were free to improperly conclude that appellant’s mere participation in an armed robbery was sufficient to prove he acted with “reckless indifference to human life,” reasoning that, as the Supreme Court put it, “the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves” (Tison, at p. 151), and therefore participation in a felony constitutes, in and of itself, “reckless indifference to human life.”
Leaving this crucial term open-ended and undefined denied appellant due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under Article I, section 7 of the California Constitution because without further definition the term is unconstitutionally vague. [Footnote 3] The legal definition cannot be left to the individual, subjective beliefs of each juror because this fails to provide adequate guidelines for the imposition of liability to a mandatory sentence of life without the possibility of parole. A vague standard for imposing such a severe sanction both fails to provide fair warning of the conduct that runs afoul of the statute, and “impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109; see also People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389-390.) The use of the term “reckless indifference to human life” in subdivision (d) of Penal Code section 190.2 fails the California Supreme Court’s test that “A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it.” (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 801, quoting People v. McCaughan (1957) 49 Cal.2d 409, 414.) Without some additional narrowing definition, the term is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” (People v. Superior Court (Engert), supra, at p. 801, quoting Connally v. General Const. Co. (1926) 269 U.S. 385, 391.)
Given the vagueness of the statutory language absent a narrowing definition, and given the Tison court’s recognition that the term “reckless indifference to human life” must be given content by the states, the trial court here had a sua sponte duty to give the jurors instructional guidance beyond the mere language of the statute. (People v. Shoals (1992) 8 Cal.App.4th 475, 489-491; People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) “Reckless indifference to human life” is not a term commonly understood by those familiar with English. To pass constitutional muster, California courts must give the term a “technical meaning peculiar to the law” and then must convey that meaning to the jurors in an understandable way. Otherwise, the defendant has been denied his constitutional right to have the jurors “determine every material issue presented by the evidence.” (Id., at p. 779.)
Tison suggests some possibilities for the type of additional jury instruction the trial court should have delivered. Since the term “reckless indifference to human life” does not occur in California law outside of subdivision (d) of Penal Code section 190.2, the Tison opinion is the reasonable place to look for guidance on what the further definition should include. An instruction along the following lines would probably have solved the problem:
“A defendant aids, abets, counsels, commands, induces, solicits, requests, or assists in a robbery or burglary with reckless indifference to human life if he knows the robbery or burglary in which he is participating carries a higher probability of death than normally attends the commission of such crimes, and subjectively appreciates that his participation in the crime is likely to promote the taking of innocent life.”
Appellant’s jury was insufficiently instructed on the meaning of “reckless indifference to human life.” Having been allowed to invent their own personal, subjective, ad hoc definitions of this technical legal term, it is impossible for this court to determine whether the special circumstance verdicts rest on a legally proper theory that appellant acted with intent to kill, or a legally improper theory that he acted with “reckless indifference to human life” under impermissibly sweeping interpretations of that term. Under these circumstances, the court must reverse the special circumstance verdicts unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1131; People v. Green (1980) 27 Cal.3d 1, 70; see also People v. Smith (1984) 35 Cal.3d 798, 809.) [Footnote 4]
Here, it is not possible to make the determination that the special circumstance findings against appellant were based on a proper theory that he acted with the intent to kill in robbing Mr. J. The murder charge was submitted to the jury solely on a felony murder theory which made appellant liable for murder as an aider and abettor or as a coconspirator whether the killing of Mr. J was “intentional, unintentional, or accidental.” (CT 1182-1183; RT 7931-7932; CALJIC 8.21, 8.26.) As a result, the murder verdict does not imply any finding of premeditation and deliberation from which this court might conclude the jury found that appellant acted with the intent to kill. (Cf. People v. Morris (1988) 46 Cal.3d 1, 24; People v. Kelly (1992) 1 Cal.4th 495, 531.)
The verdict on the conspiracy charge also fails to establish that appellant acted with the intent to kill. In fact, the conspiracy verdict points in the opposite direction. The verdict form gave the jury check-off options of finding that Mr. A and appellant had agreed to commit murder, or robbery, or burlglary. The jury only found agreement to commit robbery and burglary. (CT 1002, 1015.) This demonstrates that the jurors rejected the prosecution’s theory that Mr. A and appellant embarked on the robbery with a preexisting intent to kill. [Footnote 5] It follows that the conspiracy verdict does not resolve the ambiguity as to whether the jurors based appellant’s special circumstance findings on a correct or incorrect theory of law.
There is also nothing in any of the other verdicts that provides a basis for concluding that the jury necessarily found the special circumstances true on a proper theory. Under Green, this court must therefore reverse the special circumstance findings under Green and remand the case to allow the prosecution the election of either retrying appellant on the special circumstance allegations or having him sentenced to the term prescribed by law for first degree murder without special circumstances.
This formulation is found in the court’s explanation of its holding. The court says that, just as Enmund found intent to kill a sufficient mental state even though it did not mean death was inevitable: “Similarly we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” (Id., at pp. 157-158.)
This state of mental culpability is what the Tison court said the facts set out by the Arizona Supreme Court showed in addition to showing that the Tison brothers’ participation in the crime “was anything but minor.” (at 152.)
Since subdivision (d) of section 109.2 is a capital eligibility statute, the vagueness of the statute also implicates concerns under the Eighth Amendment of the United States Constitution. (Clemons v. Mississippi (1990) 494 U.S. 738; Maynard v. Cartwright (1988) 486 U.S. 356; Godfrey v. Georgia (1980) 446 U.S. 420.) Although appellant was not sentenced to death, judicial interpretation of the term “reckless indifference to human life” in subdivision (d) must anticipate and accommodate the application of the statute in cases in which the death penalty is imposed. Clearly the statutory language must have the same meaning regardless of which penalty is chosen at the end of the prosecution.
In the analysis employed by the United States Supreme Court in this context, the mistake about the law which the trial court made in its inadequate instruction on special circumstance liability requires reversal because it is not something the jurors could have corrected on their own. “Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.” (Griffin v. United States (1991) 502 U.S. ___, ___, 116 L.Ed.2d 371, 382-383.)
The jury’s conclusion that there was no conspiracy to commit murder was very reasonable in light of certain key evidence on the point. First, the source of the evidence about any agreement to murder Mr. J was suspect because Mr. C was the only witness who testified that Mr. A announced a plan to kill Mr. J in appellant’s presence. Given the serious question marks about Mr. C’s credibility, it is quite understandable that the jury would reject his testimony on this point in the absence of any corroboration. Second, according to Mr. C’s own account, Mr. A took back the statement that he was going to kill Mr. J. According to Mr. C, this was done in appellant’s presence before Mr. C agreed to loan Mr. A his car. Third, the way Mr. A and appellant purportedly described the killing in statements Mr. C and Mr. T claimed they made, the jurors could reasonably conclude that the killing resulted from Mr. A’s sudden, spur of the moment decision to kill.