Brief Bank # B-577 (Re: F 9.02 n1 [ADW: Juror Unanimity (PC 245(a)(1) & PC 245(a)(2))]; F 17.01 n13 [Juror Unanimity: Single Assault Based On Multiple Acts]).
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NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: August 1993
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF )
CALIFORNIA, ) No. H000000
)
Plaintiff and Respondent, ) (Santa Clara County
vs. )
)
JOHN DOE, )
)
Defendant and Appellant. )
___________________________________)
APPELLANT’S OPENING BRIEF
____________
On Appeal from the Superior Court
for the County of Santa Clara
The Honorable Nathan D. Mihara, Judge
____________
Joel Franklin
LAW OFFICES OF JOEL FRANKLIN
2100 Garden Road
Building A
Monterey, California 93940
Telephone: (408) 649-2545
Assisted by
SIXTH DISTRICT APPELLATE PROGRAM
IV.
APPELLANT IS ENTITLED TO A PER SE REVERSAL OF HIS CONVICTION BECAUSE THE COURT FAILED TO GIVE A UNANIMITY INSTRUCTION ON A SINGLE COUNT OF ASSAULT WITH A DEADLY WEAPON BASED ON TWO OR MORE SEPARATE ACTS, AND THEREBY REMOVED THE NECESSITY FOR JURY UNANIMITY ON AN ELEMENT OF THE OFFENSE
A. The Evidence and the Prosecution’s Theory of the Case Established That Appellant Committed Two or More Acts, Each of Which Might Separately Constitute the Offense.
As the facts emerged at trial and as argued to the jury by the prosecutor, appellant could have violated the elements of 245(a)(1) by two independent and factually distinct means: by striking Mr. M with a baseball bat, or by pushing Mr. M down the flight of stairs. (See Trial RT 39-41, 55-56, 117-118, 165-166.) Under this factual scenario, the jurors could reasonably have disagreed on which set of facts or acts–the striking with the baseball bat or, the pushing down the stairs–satisfied the section 245(a)(1) liability formula, even though each act separately could constitute the offense. As a result, an instruction on unanimity was required to be given sua sponte. (People v. Diedrich (1982) 31 Cal.3d 263, 280-282 [unanimity required when evidence proved several distinct episodes any of which could have supported a single count of bribery]; People v. Madden (1981) 116 Cal.App.3d 212, 219, and cases cited therein [where possibility of non-unanimity, instruction must be given sua sponte].)
The failure to instruct the jury that it must unanimously agree on the act satisfying the second element of section 245(a)(1) allowed the jury to find Mr. D guilty of violating section 245(a)(1) without unanimously finding this element of the crime. Without a unanimous finding on this second element of section 245(a)(1), Doe could be convicted only of section 240 simple assault, at best. Appellant’s conviction must be reversed. (See People v. Cummings, supra, 4 Cal.4th at pp. 1312-1316, and cases cited therein [reversal per se where instructions do not require the jury to find every essential element of the charged offense]; Diedrich, supra, 31 Cal.3d at pp. 280-282 [unanimity instruction required for the element of the charged offense as to which multiple acts could qualify].)
Appellant was charged with one count of violating Penal Code section 245(a)(1). The information alleged that he assaulted Mr. M with a deadly weapon (a baseball bat), or by means of force likely to produce great bodily injury. (CT 41, 70; Trial RT 151-152.) In order to prove the alleged offense, the jury was told that the prosecution must prove beyond a reasonable doubt that:
1. A person was assaulted, and
2. The assault was committed by use of a deadly weapon or instrument or by means of force likely to produce great bodily injury.
(CT 72; Trial RT 152-153.) The jury was instructed on the definition of a deadly weapon [Footnote 1] and the meaning of great bodily injury. [Footnote 2]
Under the facts of the case, and as the prosecutor argued them, the jury could find the statute violated by use of a deadly weapon (a bat) or by means of force likely to produce great bodily injury (a push down the stairs). In closing argument, the prosecutor invited the jurors to choose between factual scenarios in this way:
In the second element in the 245 is that the assault was committed by the use of a deadly weapon or by force likely to produce great bodily injury. It can be either or. When the person was assaulted if the person who assaulted him used a deadly weapon, or when the person who assaulted him used such force that it was likely to produce great bodily injury, either or,
. . . .
So 245 can be proved in either one of the ways, that the bat is a deadly weapon or by force likely to produce great bodily injury.
. . . .
An assault, an attempt to apply physical force, was committed. He assaulted him, attempted
to apply physical force with him, and it was used with a deadly weapon. The bat is a deadly weapon . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . In the tumble down the stairs in his force of pushing him [Mr. M] down the stairs is force likely to produce great bodily injury.
. . . .
You’ll be able to look at the pictures closely back in the jury deliberation rooms. And you’ll see that it is a flight of cement stairs that they actually tumbled down. That force and the force of pushing somebody down this flight of stairs is force likely to produce great bodily injury, likely. Remember, again, actual bodily injury is not necessary.
. . . .
All of this evidence, ladies and gentlemen, leads to the conclusion that defendant was out to assault somebody . . . . He did come, in fact, assault [Mr. M]. He attempted to apply physical force upon him with a deadly weapon, that being the bat or by force likely to produce great bodily injury.
(Trial RT 161-163, 165-167, emphasis added.) The court’s instruction on section 245(a)(1) paralleled the prosecutor’s theory of the case and closing argument comments. (See CT 72-73; Trial RT 151-154, 160-166.)
B. The Trial Court Erred in Failing to Sua Sponte Give a Unanimity Instruction.
It is settled that:
Where the accusatory pleading charges a single criminal offense and the evidence shows the evidence shows more than one unlawful act [which may have constituted the offense] was committed, then either the prosecution must elect the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.
(People v. Martinez (1988) 197 Cal.App.3d 767, 772, emphasis in original; Diedrich, supra, 31 Cal.3d at pp. 280-282.) [Footnote 3] “Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky (1981) 450 U.S. 288, 302.) Moreover, “a trial court must instruct sua sponte on those general principles of law which are ‘ . . . closely and openly connected with the facts before the court, and which are necessary for a jury’s understanding of the case.'” (People v. Crawford (1982) 131 Cal.App.3d 591, 596, citation omitted; People v. Sedeno (1974) 10 Cal.3d 703, 715.)
A court’s sua sponte obligation extends to instructing the jury on certain principles of law. (People v. Madden, supra, 116 Cal.App.3d at p. 215.) Specifically, a jury must be informed that its verdict must be unanimous. (See Cal. Const., Art. I, §16; Penal C. §1150; People v. Jones (Mark) (1990) 51 Cal.3d 294, 305 [“the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged”]; People v. Deletto (1983) 147 Cal.App.3d 458, 472 [failure of jury to agree upon the act committed implicates 14th Amendment due process principles by lessening the prosecution’s burden of proof].) [Footnote 4] The guarantee of jury unanimity has “constitutional underpinnings”. (People v. Melendez (1990) 224 Cal.App.3d 1420, 1428.) As with the reasonable doubt standard (which is an indispensable element in all criminal trials under In re Winship (1970) 397 U.S. 358, 364, a unanimous jury requirement “impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.” Thus, as in this case, when the prosecution shows several acts and each act is a separate offense, a unanimity instruction is required. (People v. Madden, supra, 116 Cal.App.2d at p. 216; see also, e.g., People v. McNeill (1980) 112 Cal.App.3d 330, 335-336 [multiple assaults]; People v. Perez (1979) 23 Cal.3d 545 [numerous sexual acts upon a single victim]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 8-9 [two acts of resisting arrest approximately one-half hour apart]; People v. Hatch (1910) 13 Cal.App. 521, 534-536 [several acts of embezzlement]; People v. McMillan (1941) 45 Cal.App.2d Supp. 821, 829-830 [multiple batteries].)
The absence of a proper unanimity instruction opens the possibility that the jurors may have come to different conclusions as to which distinct episode or act was sufficient to prove the single offense, yet still found appellant guilty. Without the instruction, there is a likely danger that the defendant will be convicted even though there is no single act which all the jurors agree the defendant committed to satisfy the elements of the crime. (Diedrich, supra, 31 Cal.3d at p. 282.) [Footnote 5] As a result, appellant has been denied his constitutional right to juror unanimity. (Diedrich, supra, 31 Cal.3d at pp. 280-282; People v. Dellinger (1984) 163 Cal.App.3d 284, 302.)
C. The Conflict Among Appellate Districts in Determining the Need For Unanimity Does Not Alter the Requirement of Reversal of Appellant’s Conviction.
1. The Conflict.
Disagreement exists among the district courts of appeal as to when, and under what circumstances, juror unanimity is required. In People v. Melendez, supra, 224 Cal.App.3d 420, the Fifth District reversed a conviction where a unanimity instruction was not given and a “patchwork verdict” resulted that could have been based on different criminal acts, as well as on different legal theories. In Melendez, the court required factual unanimity when different evidence or facts would support each conclusion as to whether the defendant could have been an aider and abetter or a principal. (224 Cal.App.3d at pp. 433-434.) [Footnote 6] Also in Melendez, the defendant was found guilty of robbery, but his criminal act was equally consistent with theft or burglary. (Ibid.)
In People v. Davis (1992) 8 Cal.App.4th 28, the Fourth District held that unanimity is not required “in those cases where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event” and that “jurors need not agree on the theory of criminality or the theory of criminal participation” as to that discrete act. (Id., at p. 45, emphasis added.) [Footnote 7]
Most recently, the First Appellate District has entered the unanimity fray in People v. Sutherland (July 29, 1993) (Dock. No. A055570) ___ Cal.App.4th ____, ____ [93 Daily Journal DAR 9737, 9739-9744]. Like the court in Davis, the court in Sutherland embarked on a lengthy discussion of unanimity from its early origins in California and elsewhere. (Id., at pp. 9741-9743.) In Sutherland, the court determined that a unanimity instruction is not required in a multiple-count complaint alleging forgery and uttering. (Id., at pp. 9743-9744.) [Footnote 8] Thus, the court found that under the forgery statute, forging and uttering are different legal theories under which a jury may find the defendant guilty of the generic statutory offense of forgery. As such, no unanimity is required as to whether the defendant’s conduct falls into either or both categories; in either case, the jury would be unanimous that, by one means or another, the defendant has committed a single forgery. (Id., at p. 9743.)
Moreover, Sutherland refuses to adopt the Melendez rationale for requiring unanimity, and also is critical of the broad reasoning in Davis. (Id., at pp. 9742-9743.) It is important to underscore, however, that in Melendez and Davis, the issue was whether or not different theories of criminal participation may have supported the respective convictions. (See discussions of Davis, ante, at pp. 19-20, fn. 10, and Melendez, ante, at p. 19.) In other words, in those cases the focus was whether the defendant’s liability either as a principal or as an aider and abettor would support a verdict as to its single charge of robbery. (See Sutherland, supra, 93 DAR at p. 9743.)
In this case, appellant’s conviction does not rest on two different legal theories of criminal participation, but whether a single offense was committed by separate and alternative acts. The state of the evidence allowed the jury to disagree as to which alternative the defendant employed. It is in this very context that unanimity is constitutionally mandated. (United States v. Gipson (5th Cir. 1977) 553 F.2d 453.)
The constitutional rationale espoused in Gipson is apropos here:
The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of 12 jurors to convict a defendant does little to ensure that his right to unanimous verdict is protected unless the prerequisite of jury consensus as to the defendant’s course of action is also required.
(Id., at pp. 457-458, footnote omitted.) The acceptance of Gipson in the Ninth and other federal circuit courts was noted by Justice Blackmun in a separate concurring opinion in McKoy v. North Carolina (1990) 494 U.S. 443, 449, fn. 5:
In federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeal are in general agreement that “[u]nanimity . . . means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specific offense.”
(United States v. Ferris (9th Cir. 1983) 719 F.2d 1405, 1407; see also United States v. Holley (5th Cir. 1991) 492 F.2d 916, 925-927; White, J., conc. opn.; Schad v. Arizona (1991) 405 U.S. ___ [111 S.Ct. 2491, 115 L.Ed.2d 555, 578-580].) As discussed below, neither the Davis nor Sutherland rationale approve the instructional defects in this case.
2. The Decision in Schad v. Arizona is not Controlling.
The Davis and Sutherland decisions are based, in large part, on those courts’ analysis of the decision in Schad v. Arizona, supra, 405 U.S. ___ [111 S.Ct. 2941, 115 L.Ed.2d 555]. The United States Supreme Court in Schad characterized its decision not as one involving jury unanimity, but rather one concerned with the permissible breadth of criminal definition. (Id., 115 L.Ed.2d at pp. 564-565.)
There, the Supreme Court addressed the question of whether jury unanimity is required when the prosecution relies upon felony murder and premeditation/deliberation as alternative theories of first-degree murder. In Arizona, as a matter of state law, premeditation or the commission of a felony are not independent elements of the crime, but rather are means of satisfying a single mens rea element. Therefore, because the state legislature’s definition of the elements of an offense is “usually dispositive” and, because there was no due process violation in so defining the elements of first-degree murder, Schad held that no constitutional requirement of jury unanimity existed. (Schad, supra, 115 L.Ed.2d at p. 569.) Justice Souter further noted that the Court must defer to the appropriate choices made by the state legislature and that Arizona had a long history of equating the mental element of premeditation with that necessary for felony murder. [Footnote 9] (Id., 115 L.Ed.2d at p. 572.)
To the extent the Schad analysis serves as an underpinning of the Davis and Sutherland decisions, it adds little to the issue raised by this appeal. Here, unlike Schad, the jury was invited to rely on different facts which formed the actus reus [Footnote 10] of the crime, as opposed to different theories to measure appellant’s criminal liability. The plurality decision in Schad does not discuss or analyze the due process considerations that come into play when the evidence establishes commission of different criminal acts (i.e., assault committed by the use of a deadly weapon or instrument, or assault committed by means of force likely to produce great bodily injury). Second, the lack of a “general requirement” as to jury unanimity regarding preliminary factual issues does not preclude the applicability of due process principles when the evidence shows, as it does here, separate courses of conduct, either of which may form the basis of an offense. Indeed, the California Supreme Court in People v. Beardslee (1991) 53 Cal.3d 68, observed “a unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and convict him of the crime charged.” [Footnote 11] (Id., at p. 93, citation omitted.)
On this record, jurors could “disagree which act” the defendant committed (assault with the baseball bat or assault by pushing Mr. M down the stairs), yet convict him of the section 245(a)(1) crime charged. Accordingly, it was error and a violation of due process to fail to instruct that unanimity was required as provided in CALJIC No. 17.01. (Gipson, supra, 553 F.2d at pp. 457-458; Diedrich, supra, 31 Cal.3d at p. 282.)
3. The California Supreme Court Recently Reaffirmed the Requirement of a Unanimity Instruction for Multiple Alternative Acts under a Single Count.
Recently the California Supreme Court in People v. Guiton, supra, 4 Cal.4th 1116, required unanimous agreement on the act committed by defendant, in accord with the rule expressed in Gipson, supra, (553 F.2d at pp. 457-458). The court in Guiton observed:
Here, there was sufficient evidence of guilt beyond a reasonable doubt on the independently valid ground . . . . The jury was instructed that its verdict had to be unanimous and that all jurors had to agree that the defendant committed the same act.
(Id., at p. 1127, emphasis added and in original.) [Footnote 12] Guiton addressed jury unanimity, in determining whether reversal is required when a general verdict is rendered in a case where alternative theories of criminal conduct were presented and the record did not affirmatively demonstrate a reasonable probability that the jury’s verdict was based solely on one single valid theory. (Id., at pp. 1121-1126.) This statement by the supreme court in Guiton suggests that an instruction requiring unanimity cures such problems inherent in a general verdict. In this case, such a unanimity instruction was not given.
The unanimity standard set forth in Guiton is entirely consistent with California law and previous decisions of the California Supreme Court, discussed above. (See Diedrich, supra, 31 Cal.3d at pp. 280-282.) It is also consistent with the Gipson rationale that the jury must be unanimous on the actus reus element of the offense and agree precisely “what the defendant did.” (Gipson, supra, 555 F.2d at p. 459.)
D. Failure to Deliver a Unanimity Instruction in This Case Requires a Per Se Reversal of Appellant’s Conviction.
The trial court must instruct, even without request, on the general principles of law relevant to and governing the case. (People v. Sedeno, supra, 10 Cal.3d at p. 715.) The obligation includes instructions on all the elements of the charged offense. (People v. Dyer (1988) 45 Cal.3d 26, 60.) The court has a primary duty to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251.)
Where an instruction or omission of an instruction wholly removes an element from the jury’s consideration, thus resulting in a jury’s failure to make a factual determination of an element of the offense, the error is reversible per se. (Cummings, supra, 4 Cal.4th at pp. 1312-1316.) The jury must be instructed to find each element of the offense before it can convict. (Id., at p. 1316.) The jury must, further, be instructed that it must unanimously find each element. (Diedrich, supra, 31 Cal.3d at pp. 280-282.)
As previously discussed, conviction of violation of section 245(a)(1) requires proof of an assault (first element) and that the assault was committed by use of a deadly weapon or by means of force likely to produce great bodily injury (second element). (Penal C. §245(a)(1); CALJIC No. 9.02 (5th ed. 1988).) In order to convict, the jury must unanimously decide beyond a reasonable doubt that defendant committed each element.
The unanimity instruction was not given and, on this record, it is clear that the jury was not informed that it was required to unanimously agree on the specific and separate predicate facts constituting the second element of the offense. (See discussion, ante, at pp. 13-18.) [Footnote 13]
Recently, the California Supreme Court in Cummings, supra, 4 Cal.4th at pp. 1312-1316, considered an analogous claim where the jury was not instructed that in order to convict on the charge of robbery, it must find that personal property was taken from the robbery victims against their wills by means of force or fear. (Id., at p. 1313; see id., at p. 1313, fn. 52-53.) In relying on the United States Supreme Court decision in Rose v. Clark (1986) 478 U.S. 570, the Cummings court recognized that reversal is mandated upon instructional error on the elements of a crime, whether an impermissible presumption or omission of an element, that ” . . . necessarily render[s] the trial fundamentally unfair, if it aborted the basic trial process or denied it altogether . . . .” (Id., at p. 1314, citation omitted.) [Footnote 14] To fail to require unanimity of each element of the offense aborts the basic trial process. (Diedrich, supra, 31 Cal.3d at pp. 280-282.) In Osborne v. Ohio (1990) 495 U.S. 103, the Court, reversed, without considering the prejudice of the error, “in order to ensure that Osborne’s conviction stemmed from the finding that the State had proved each of the elements of [the offense].” (Id., at p. 126.)
By failing to give a unanimity instruction and requiring the jury to determine which act satisfied the second element of section 245(a)(1) (use of a deadly weapon or means of force likely to produce great bodily injury) the jury was not required to unanimously find an essential element of this offense. (Cummings, supra, 4 Cal.4th at p. 1316; Diedrich, supra, 31 Cal.3d at pp. 280-282.) These instructional errors are a “structural defect affecting the framework within which the trial [proceeded] . . . .” (Arizona v. Fulminante (1991) 499 U.S. ___, ___ [111 S.Ct. 1246, ____, 113 L.Ed.2d 302, 331].) As such, error reversible per se has been committed and appellant’s conviction must be set aside. (Ibid.; see also People v. Hernandez (1988) 46 Cal.3d 194, 211 [reversal of sentence enhancement for failure to instruct on element thereof]; Sullivan v. Louisiana (1993) 508 U.S. ___, ___ [113 S.Ct. ____, ____, 124 L.Ed.2d 182, 190-191] [error in a reasonable doubt instruction is a structural defect requiring per se reversal].)
VI.
CONCLUSION
For the foregoing reasons and in the interests of justice, the conviction must be reversed, and the sentence modified to strike the enhancement allegation for a prior prison term under Penal Code section 667.5(b).
Dated: August 18, 1993
Respectfully submitted,
SIXTH DISTRICT APPELLATE
PROGRAM
______________________________
Joel Franklin
LAW OFFICES OF JOEL FRANKLIN
Attorneys for Defendant and
Appellant John Doe
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF )
CALIFORNIA, ) No. H00000
)
Plaintiff and Respondent, ) (Santa Clara County
) Case No. 000000)
vs. )
)
JOHN DOE, )
)
Defendant and Appellant. )
___________________________________)
APPELLANT’S REPLY BRIEF
____________
On Appeal from the Superior Court
for the County of Santa Clara
The Honorable Nathan D. Mihara, Judge
____________
Joel Franklin
LAW OFFICES OF JOEL FRANKLIN
2100 Garden Road
Building A
Monterey, California 93940
Telephone: (408) 649-2545
Assisted by
SIXTH DISTRICT APPELLATE PROGRAM
APPELLANT’S REPLY BRIEF
Appellant respectfully submits this reply to the Respondent’s Brief [RB, hereafter]. Appellant answers only those arguments needing further discussion. Any failure to treat certain issues here is neither a waiver nor a concession.
After appellant’s opening brief was filed, the United States Supreme Court granted certiorari in Sandoval v. California (Sept. 28, 1993) ___ U.S. ___ [125 L.Ed.2d 789, 114 S.Ct. 40] (Dock. No. 92-9049), to review California’s standard reasonable doubt instruction, CALJIC 2.90. This instruction was given to the jury at appellant’s trial. Reference is made to this Court’s November 5, 1993, Miscellaneous Order 93-1, which applies in this matter to preserve the CALJIC 2.90 challenge for review.
I.
RESPONDENT FAILS TO ESTABLISH THAT, ON THIS RECORD, THE SINGLE CHARGED OFFENSE BROUGHT UPON MULTIPLE ACTS OF THE DEFENDANT DID NOT REQUIRE A SPECIFIC INSTRUCTION TO ENSURE A UNANIMOUS JURY FINDING ON EVERY ELEMENT OF THE OFFENSE AND THAT FAILURE TO SO INSTRUCT IS NOT PER SE PREJUDICIAL
A. The Prosecution’s Presentation of Multiple Separate Acts in a Single Count Necessitated a Unanimity Instruction to Ensure Juror Agreement on Each Element of the Charged Offense.
As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity. (People v. Dellinger (1984) 163 Cal.App.3d 284, 301.) To protect this constitutional guarantee of juror unanimity, the court must instruct the jury to agree on the act or acts constituting the offense. (People v. Diedrich (1982) 31 Cal.3d 263, 280-282, and People v. Madden (1981) 116 Cal.App.3d 212, 216-217, quoted in Dellinger, supra, 163 Cal.App.3d at p. 301.)
Where a single crime can be proven by different conduct (in this case, either with a deadly weapon or by means of force likely to produce great bodily injury) and proof of at least two of these courses of conduct rely on different evidence, and where the circumstances demonstrate a reasonable possibility that all of the jurors will not agree on the same act or acts, a unanimity instruction must be given. (People v. Melendez (1990) 224 Cal.App.3d 1420, 1433-1434; Dellinger, supra, 163 Cal.App.3d at p. 301; People v. McNeill (1980) 112 Cal.App.3d 330, 335; Madden, supra, 116 Cal.App.3d at p.218-219, 219, fn. 6.)
In analyzing the need for a unanimity instruction on a charge of forgery under Penal Code section 470, People v. Sutherland (1993) 17 Cal.App.4th 602, determined that the crime of forgery can be proven by two means: forgery or uttering. [Footnote 15] The court found that no distinction of legal significance exists between forging a single check or uttering the same check. (Id., at pp. 618-619.) In Sutherland, each count of violation of the generic forgery statute involved only one check, and both forging and uttering were shown as to each check and count. (Id., at p. 618.)
However, in Doe’ trial, the prosecution explained its case to the jury that the acts of Doe are legally distinct, forming two separate bases for conviction: Either Doe was guilty of violating section 245, subdivision (a)(1) by assaulting Mr. M with a baseball bat or Doe was guilty of violating section 245(a)(1) by assaulting Mr. M by pushing him down the stairs. Under the facts as presented to the jury, there was not a mere abstract or hypothetical difference between a deadly weapon and means of force likely to produce great bodily injury: Under the facts of the case, and as argued by the prosecutor, the statute could have been violated either (1) by striking Mr. M with the bat or (2) pushing Mr. M down the stairs.
This case did not present an instance where use of a deadly weapon and use of means of force likely to produce great bodily injury are differences in interpretation of the same act, such as where an accused has assaulted the victim by a single act of, for example, aiming or shooting a firearm at the victim. In such an instance, it would be irrelevant whether the jury considers the firearm a “deadly weapon” or considers it “means of force likely to produce great bodily injury”. In that case, only one act, no matter the interpretation placed on it, could constitute the offense charged.
In Doe’ case, distinct acts could, by themselves, have constituted the offense: Even absent the push and fall down the stairs, the strikes with the bat could justify conviction. Likewise, even if the encounter with the baseball bat had not occurred, the jury could have determined that the push down the stairs was an assault by means of force likely to produce great bodily injury.
Indeed, the district attorney viewed the incident in this manner. She argued that Doe violated Penal Code section 245(a)(1) by striking Mr. M with the bat, the assault with a deadly weapon. The prosecutor further argued that Doe violated section 245(a)(1) by pushing Mr. M down the stairs, which was asserted to be the assault by means of force likely to produce great bodily injury.
The district attorney first explained the violation with the bat:
He [Doe] assaulted him [Mr. M], attempted to apply physical force with him, and it was used [sic] with a deadly weapon. The bat is a deadly weapon . . . .
(RT 165.)
After explaining that hitting Mr. M with the bat was an assault with a deadly weapon, the prosecutor then turned to the push down the stairs:
And the tumble down the stairs in his force of pushing him down the stairs is force likely to produce great bodily injury. . . . And you’ll see that it is a flight of cement stairs . . . . That force and the force of pushing somebody down this flight of stairs is force likely to produce great bodily injury . . . .
(RT 166.)
The distinction drawn by the district attorney divides this case from the Sutherland case, in that it invites the jury to treat the two courses of conduct independently, as separate criminal events. [Footnote 16] Here, like the material difference noted by the Sutherland court, the prosecution’s case was presented to the jury as offering “alternative means to conviction, each with their own distinct set of elements.” (Sutherland, supra, 17 Cal.App.4th at p. 618, emphasis supplied.) As the Sutherland court observed,
Of course, where the state charges fewer counts of forgery than the number of forged instruments shown by the evidence, a unanimity instruction may be required, as in any case where the information charges fewer offenses than are proved by the evidence and it cannot be assured that the jury will be unanimous as to which crime the defendant committed.
(Id., at p. 618, fn. 6.) Thus, even under the discussion of the need for unanimity instruction in Sutherland as that court interpreted the United States Supreme Court’s analysis in Schad, Doe was entitled to a unanimity instruction, in order to assure that due process has been provided. (Sutherland, supra, 17 Cal.App.4th at p. 617.)
The importance of the prosecutor’s argument where, as here, the jury renders a general verdict of guilt without a unanimity instruction was underscored by the California Supreme Court in People v. Guiton (1993) 4 Cal.4th 1116. (Id., at pp. 1127, 1131; see id., at pp. 1121-1129, harmonizing People v. Green (1980) 27 Cal.3d 1, and Griffin v. United States (1991) 502 U.S. ___ [116 L.Ed.2d 371, 112 S.Ct. 466].) The district attorney’s argument to the jury, focussing on a single course of conduct for conviction, in conjunction with a unanimity instruction demonstrated that the jury found Guiton guilty on that theory. (Guiton, supra, 4 Cal.4th at pp. 1127, 1131.) The respondent’s brief conspicuously avoids discussion of this consequence.
Guiton found that unanimity instruction, when combined with the prosecution’s argument emphasizing a single ground for conviction (transporting, as opposed to selling, cocaine), cures the problem with a general verdict, of inability to ascertain that the jury has agreed on a single valid factual basis for conviction. (Guiton, supra, 4 Cal.4th at p. 1127, 1131.) [Footnote 17] With no unanimity instruction and a general verdict, “it is impossible to determine whether the jury unanimously agreed on one of the acts postulated by the prosecution”. (Dellinger, supra, 163 Cal.App.3d at p. 301.) Thus, there is no way to be assured the constitutional guarantee of jury unanimity has been satisfied. (Id., at p. 301; McNeill, supra, 112 Cal.App.3d at pp. 335-336 [unanimity is a fundamental constitutional requirement].) Accordingly, when a general verdict is to be used, a unanimity instruction is required.
The cases on which Sutherland relies are founded on the inability to determine the specific mental processes of a criminal defendant. (People v. Davis (1992) 8 Cal.App.4th 28; Schad v. Arizona (1991) 501 U.S. ___ [115 L.Ed.2d 555, 111 S.Ct. 2491]; accord People v. Beardslee (1991) 53 Cal.3d 68; People v. Perez (Dec. 21, 1993, Dock No. G013472) __ Cal.App.4th ____ [93 Daily J. D.A.R. 16235].) The specific intent required in crimes such as first degree murder and robbery may be shown by distinct courses of conduct, each of which demonstrates the specific intent required by the crime charged. In Davis, the defendant’s participation, either as a principal or as an aider and abettor demonstrated his specific intent to commit the robbery. (Davis, supra, 8 Cal.App.4th at p. 44-45; Beardslee, supra, 53 Cal.3d at pp. 92-94.) In Schad, the defendant’s intent to kill either was shown by premeditation or was supplied by his intent to participate in the felony during which a killing occurred. (Schad, supra, 501 U.S. at p. ___ [115 L.Ed.2d at pp. 570-571, 111 S.Ct. at p. ____], plur. opn. by Souter, J. [“under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability.”]; accord People v. Sullivan (1903) 173 N.Y. 122, 127 [65 N.E. 989, 989-990].) This line of cases finds that a specific intent may be proven by any mens rea which shows the specific intent required for conviction.
The Sutherland case inappropriately relies on these alternative-mens rea cases to part company with the requirement for juror unanimity on the actus reus elements of an offense. With respect to the Sutherland court, forging an instrument is accomplished by one set of actions, whereas uttering the instrument is accomplished by different actions. (See Sutherland, supra, 17 Cal.App.4th at p. 618 [“the evidence shows different acts of forging and acts of uttering.”], emphasis supplied.) Thus, forging and uttering are distinct acts, or, actus rei, each of which alone could constitute the offense, but which, shown together, could result in juror disagreement about the conduct of the defendant which violates the statute. Likewise, the offense charged in Doe’ case was committed by two separate acts: either Doe assaulted Mr. M by hitting him with the bat, or he assaulted Mr. M by pushing him down the stairs.
Further, the charged crime in Sutherland, forgery, is a crime which requires a specific intent: intent to defraud. (See Sutherland, supra, 17 Cal.App.4th at p. 619; Pen. C. §470; see also 2 Witkin and Epstein, California Criminal Law (2d ed. 1988) Crimes Against Property §694, p. 788 [discussing intent to defraud under Pen. C. §476a (issuing check to defraud)].) No such specific intent is required for the crime with which Doe is charged. While Sutherland appears wrongly decided because not justified by the cases on which it relies (as discussed above), the distinction of a required specific intent is material here.
Unlike in Sutherland, where the distinct acts of forging and uttering are united by the common intent to defraud (Sutherland, supra, 17 Cal.App.4th at pp. 618-619), the assault with a deadly weapon is not tied to an assault by means of force likely to produce great bodily injury. Both assault with a deadly weapon and assault by means of force likely to produce great bodily injury under section 245(a)(1) are general intent crimes, which require no more than intent to commit the act, which the law happens to define as a crime. (People v. Rocha (1971) 3 Cal.3d 893, 898; 1 Witkin and Epstein, California Criminal Law (2d ed. 1988) Crimes Against the Person §§ 415, 419(a), pp. 475-476, 481; see People v. Hood (1969) 1 Cal.3d 444, 456.)
Another stated policy cited by Respondent for refusing to impose a sua sponte duty to instruct jurors on the requirement for unanimous agreement is the purported belief that juries will be unable to reach a verdict because of confusion resulting from instructional complexity. (RB, p. 10.) This argument underestimates the capabilities of California juries.
Respondent’s argument would suggest that a double standard of intelligence be required between jurors selected to sit in criminal matters and those called for civil cases. Jurors in civil cases are routinely required to render special verdicts and findings on such complex legal concepts as proximate and intervening causes, apportionment of fault among multiple tortfeasors, and a myriad of other intricate issues commonly presented by civil litigation. (See, e.g., BAJI (7th ed. 1986) Nos. 3.75-3.80, 13.20, 16.10-16.12.)
Here, the delivery of an instruction in accordance with CALJIC 17.01 would have harmonized with the district attorney’s case and explanatory argument, which quite clearly delineated each separate asserted violation of the statute. There is nothing complicated or potentially confusing about the pattern language of CALJIC 17.01. Requiring juror unanimity in cases such as this, where several acts may alone have constituted a single charged offense, is not potentially “instructionally difficult”, as both CALJIC 17.01 and 4.71.5, which have long been used with approval, have addressed this requirement simply and adequately.
Respondent’s brief asserts that the issue presented in this case has been resolved by the case of People v. Jefferson (1954) 123 Cal.App.2d 219, 221: “California case law directly holds that an unanimity instruction is not required where the defendant could have used either a deadly weapon or force likely to produce great bodily injury in committing one violation of section 245, subdivision (a)(1).” (RB, at p. 13.) The Jefferson case did not address the situation presented by the prosecution’s case here: multiple separate acts, each of which alone could constitute the charged offense.
The court in Jefferson determined that Jefferson’s attack on a police officer with two different knives was a continuous course of conduct, not requiring the prosecutor sua sponte to elect on which the charge of assault with a deadly weapon would be based. As the Jefferson court observed, “[b]oth of the matters relied on as being separate and distinct offenses, occurred in the course of a continuous effort on the part of the officers to disarm the appellant. They were a part of the same incident, and they could not reasonably be held to constitute two separate offenses each complete in itself . . . .” (Jefferson, supra, 123 Cal.App.2d at p. 221.) The Jefferson court was not called upon to consider whether “deadly weapon” and “force likely to produce great bodily injury” were alternate theories of a single offense or separate criminal conduct, either of which is a violation of 245(a)(1). In Doe’s case, the separate acts were presented to the jury as distinct and separate violations of section 245(a)(1).
Similarly, the Respondent’s Brief argues that the case of People v. Griggs (1989) 216 Cal.App.3d 734, determined that “[u]se of a deadly weapon or use of force likely to produce great bodily injury are alternative means of proving a violation of section 245, subdivision (a)(1).” (RB, p. 12.) Griggs did not determine this issue. The issue in Griggs was whether the prosecution must identify the victim of an assault with a deadly weapon, when the weapon was fired into a crowd which then dispersed before any member of the crowd could be identified. (See Griggs, supra 216 Cal.App.3d at pp. 737, 739-743.) Griggs did not address whether “deadly weapon” and “force likely to produce great bodily injury” are alternate theories for conviction or distinct avenues for violation of section 245(a)(1). [Footnote 18]
In summary, Doe was charged with a single count of violating section 245(a)(1) based upon multiple acts. The People’s case was presented to the jury as two distinct courses of conduct, either of which could justify conviction: Doe striking Mr. M with the baseball bat, or Doe pushing Mr. M down the stairs. Under these circumstances, as observed by Dellinger, “there was only one offense [charged] and one victim but there were several hypotheses as to which act or acts” which violated the statute. (Dellinger, supra, 163 Cal.App.3d at p. 301.) A unanimity instruction was required to be given to the jury, and the failure to do so was error. This instructional error removed the necessity for the jury to unanimously agree beyond a reasonable doubt on every element of the crime charged, requiring reversal, as discussed below. (See People v. Cummings (1993) 4 Cal.4th 1233, 1312-1316.)
B. Failure to Require Unanimity On an Element of the Offense Removes the Necessity for the Jury to Find that Element and Is, therefore, Prejudicial Per Se, Requiring Reversal.
The California Constitution guarantees the right to a unanimous jury for conviction. (Cal. Const., Art. I, §16.) Unanimity is also required by the due process clause of Fifth and Fourteenth Amendments to the federal constitution. (See, e.g., Schad, supra, 501 U.S. ___, ___, fn. 5 [115 L.Ed.2d 555, 567, fn. 5, 111 S.Ct. 2491, ____, fn. 5].) [Footnote 19] In particular, where a failure to instruct removes the need to find each and every element of the charged offense, that error is prejudicial per se, necessitating reversal. (Cummings, supra, 4 Cal.4th at pp. 1312-1316.) No showing that the error was harmless is permitted to avoid reversal. (See Cummings, supra, 4 Cal.4th at p. 1316.)
In this case, the failure to render the unanimity instruction of CALJIC 17.01 or 4.71.5 obviated the need for the jury to agree on each and every element of the crime charged. Therefore, the instructional error is prejudicial per se, requiring reversal in accordance with Cummings. (Cummings, supra, 4 Cal.4th at pp. 1312-1316.)
The Respondent’s reliance on the section 12022.5 enhancement finding to cure the instructional error is fallacious. Because the failure to instruct the jury to unanimously agree on whether the assault was committed with the bat, a deadly weapon, or whether the assault was committed by pushing Mr. M down the stairs, means of force likely to produce great bodily injury, was error which was per se prejudicial, no analysis that the error was harmless is appropriate. (Cummings, supra, 4 Cal.4th at p. 1316.)
III.
CONCLUSION
For the foregoing reasons and those advanced in appellant’s opening brief, and in the interests of justice, the conviction must be reversed, and the enhancement allegation for a prior prison term, under Penal Code section 667.5(b), stricken.
Dated: January ___, 1994
Respectfully submitted,
SIXTH DISTRICT APPELLATE
PROGRAM
______________________________
Joel Franklin
LAW OFFICES OF JOEL FRANKLIN
Attorneys for Defendant and
Appellant John Doe
FOOTNOTES:
Footnote 1: The court instructed the jury that a deadly weapon is any object, instrument, or weapon which is used in a manner as to be capable of producing, and likely to produce, death or great bodily injury. (CT 72; Trial RT 153; see CALJIC No. 9.02 (5th ed. 1988).)
Footnote 2: The court instructed the jury that great bodily injury refers to significant or substantial bodily injury or damage and that actual bodily injury is not a necessary element of the crime. (CT 72-73; Trial RT 153; see CALJIC No. 9.02 (5th ed. 1988).)
Footnote 3: The doctrine of election protects two procedural rights of the criminal defendant in cases where the evidence tends to show a larger number of offenses than have been charged: the right to unanimous jury verdict and the right to be advised of the charges. (People v. Gordon (1985) 165 Cal.App.3d 839, 866 [Sims, J., conc. opn.]; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 570-571.)
Footnote 4: The unanimity instruction that the trial court failed to give appears in CALJIC No. 17.01 (5th ed. 1988). The jury is instructed that before it can return a guilty verdict, all jurors must unanimously agree beyond a reasonable doubt that the defendant committed the same criminal act or omission. (See People v. King (1991) 231 Cal.App.3d 493, 499.)
The Clerk’s Transcript reflects that CALJIC 17.01 was withdrawn. (CT 90.) The record does not reveal which party, or whether the court, proposed and withdrew the instruction. In any event, the sua sponte obligation to give CALJIC 17.01 was not satisfied.
Footnote 5: As the court in People v. Thompson (1956) 144 Cal.App.2d Supp. 865, 859, citations omitted, observes:
Where, as in this case, the proof of either of two facts constitutes the offense charged, the jury should be instructed that all twelve must agree that one fact or the other is established; it will not do for part of them to agree on the existence of one fact, the rest of them concluding that the other fact alone was established.
Footnote 6: In an opinion from the same district in People v. King, supra, 231 Cal.App.3d at pp. 500-502, the court reversed a conviction on a possession of methamphetamine for purpose of sale because of failure to give a unanimity instruction, based on conflicting evidence of ownership, possession and control, where some jurors may have believed that defendant committed one act in fulfilling an element of the crime and other jurors may have believed that defendant committed a completely different act.
Footnote 7: In Davis, the defendant argued that evidence was presented showing that he entered the store (and was thus a perpetrator of the robbery), as well as showing that he remained in the car during the robbery (and was thus an aider and abettor). (8 Cal.App.4th at p. 32.)
Footnote 8: The court specifically reviews CALJIC No. 15.02 (5th Ed. 1988), which permits the jury to convict defendant of forgery by “proof of either the forging or the uttering of the forged instrument or document or of both such forging and such uttering.” (Id., at p. 9740, fn. 4.)
Footnote 9: It is noteworthy that Justice Scalia, whose concurring vote makes up the plurality, stated that, but for the historical aspect of Arizona’s definition of first-degree murder, he might be aligned with the dissenters, who believed Arizona’s unitary crime of first-degree murder to be unconstitutional. Justice Scalia concluded that the plurality provide no satisfactory explanation for why it is permissible (other than the “endorsement of history”) to combine in one offense killings in the course of a felony and premeditated killings. (Schad, supra, 115 L.Ed.2d at p. 578.)
Footnote 10: In essence, Davis stands for the proposition that jurors may convict on different theories of culpability so long as all agree on the ultimate conclusion of guilt. (See 8 Cal.App.4th at pp. 44-45; see People v. Chavez (1951) 37 Cal.2d 656, 671; People v. Nicholas (1980) 112 Cal.App.3d 249, 272-273.) Sutherland reaches the same conclusion. (93 DAR at pp. 9743-9744 [forging and uttering are different legal theories under which a jury may find the defendant guilty of the statutory offense].) This conclusion is inapposite here.
For example, where the jury agrees that defendant has accomplished the actus reus and that he has a state of mind that renders him culpable of murder of the first degree, there has been a unanimous verdict of guilt. This is so despite the potential for divergence of opinion concerning the precise nature of the mens rea. However, where part of the jury may never have considered the mens rea of the defendant because there are multiple forms of criminal conduct tendered, there is no unanimity in the verdict of guilt. In such a case, the apt case analogy is two cases “which turn on the prosecutorial election as to which of several proven acts occurring during the period charged form the basis upon which a unanimous verdict may be found.” (Nicholas, supra, 112 Cal.App.3d at p. 273, citations omitted.) Thus, jury unanimity is required on the essential separate facts constituting the offense. (People v. Madden, supra, 116 Cal.App.3d at p. 219; Gipson, supra, 553 F.2d at pp. 457-459.)
Footnote 11: Again, in Beardslee, like Davis and Melendez, jurors were called upon to determine a theory of liability and distinguish whether the defendant was an aider and abettor or a perpetrator. Moreover, there was no prosecutorial contention that defendant committed multiple independent acts, any of which could have led to the victim’s death. (53 Cal.3d at p. 93.) This, of course, is not how the prosecutor argued Doe’ liability (See discussion of prosecutor’s argument, ante, at pp. 13-18; cf. People v. Guiton (1993) 4 Cal.4th 1116, 1131, fn. 2.)
Footnote 12: It is also noteworthy that the Court in Guiton quoted from the prosecutor’s argument to the jury which, in essence, directed it to find factual unanimity. The Guiton prosecutor argued: “I believe that he sold cocaine. I believe that he offered to sell it. I believe that he furnished it to someone through his runner–as Officer Romo described to you is normal in cocaine transactions–though you could agree on all these things, the point is that all twelve of you have to agree on one, at least one.” (Guiton, supra, at p. 1131, fn. 2, emphasis added.)
The prosecutor in this case made virtually the opposite argument, by telling the jurors that they may select separate acts of appellant–“either or”–those acts involving the baseball bat, or those acts involving the pushing down the stairs–to convict. Absent a unanimity instruction, appellant’s jury did not have to agree on “at least one” act, but could pick and choose among several.
Footnote 13: Reviewing courts may look to the prosecutor’s “closing argument” in determining whether an instructional error has occurred. (Cf., People v. Lee (1987) 43 Cal.3d 666, 677-680; Melendez, supra, 224 Cal.App.3d at p. 1433 [the court considered “the prosecutor’s comment that the jurors need not agree on a . . . set of facts . . . in order to return a guilty verdict”].) Closing argument by the deputy district attorney illustrated that a unanimity instruction was necessary.
As opposed to telling the jury that it must unanimously agree on a single act or acts which comprise the offense by which the jury was instructed (see Guiton, supra, 4 Cal.4th at p. 1131, fn. 2), the prosecutor focused the juror’s attentions on choosing between the deadly weapon and great bodily injury factual scenarios and failed to inform them that they must agree on which act satisfied the second element of the 245(a)(1) allegation. This “either or” argument invited the jury to broaden rather than narrow its evaluation of the evidence to a specific act or acts committed by appellant. (Madden, supra, 116 Cal.App.3d at pp. 216-218.) The prosecutor’s argument avoided the unanimity requirement, by telling the jury that they could choose between use of the deadly weapon or force likely to produce great bodily injury. This is exactly the opposite of what CALJIC No. 17.01 would have told them: that they had to be unanimous on an act, or separate courses of conduct, constituting the offense. (Diedrich, supra, 31 Cal.3d at pp. 280-282.)
Footnote 14: See also, e.g., People v. Lawson (1987) 189 Cal.App.3d 741 [erroneous instruction that removed from jury’s consideration the “security” element of a sale of unqualified securities charge held reversible per se]; People v. Reynolds (1988) 205 Cal.App.3d 776 [erroneous instruction that removed from jury’s consideration knowledge element of possession charge required reversal “regardless of the strength of the People’s case”].)
Footnote 15: All subsequent statutory references are to the Penal Code, unless otherwise indicated.
Footnote 16: As a result, the Respondent’s assertion, without discussion or reference to comparable authority, that no unanimity instruction was required because the actions here were a continuous course of conduct (Respondent’s Brief [RB], p. 16), is misplaced. While the Respondent now may “not doubt . . . that [Doe’] two physical acts were so closely connected in time that they formed only one transaction”, the People below treated the strikes with the baseball bat as a separate course of conduct from the push down the stairs, and so explained the allegations to the jury. The jury was invited to choose between these courses of conduct in determining whether to convict Doe of violating section 245(a)(1). (See RT 165-166; see People v. Madden, supra, 116 Cal.App.3d at pp. 214, 219 [unanimity instruction required where evidence of several criminal acts and defendant not charged with separate violations in connection with all of the acts, even where the acts all occurred within relatively short time span].)
Footnote 17: The Attorney General’s invitation to ignore the prosecution’s presentation of the push down the stairs as “means of force likely to produce great bodily injury” ignores the posture of the case as explained and presented to the jury. “It is fundamentally unfair to develop two alternate theories at trial, secure a general verdict, and then abandon one of them on appeal.” (Dellinger, supra, 163 Cal.App.3d at p. 301.)
Footnote 18: Indeed, Griggs was conviction under paragraph (2) of section 245(a), not paragraph (1). Paragraph (2) of that section requires assault with a firearm, and does not contemplate a distinction between “with a deadly weapon” and “by any means of force likely to produce great bodily injury”. (See Griggs, supra, 216 Cal.App.3d at p. 739; Pen. C. §245(a)(2).)
Footnote 19: Due process is necessary in order to ensure a fair trial, which is a fundamental requirement of this country’s system of criminal justice. (U. S. Const., Am. 5, 6, 14.) When error violates this fundamental Constitutional guarantee, the error is prejudicial per se and requires reversal. (See generally, People v. Garcia (1984) 36 Cal.3d 539, 551 [a failure to instruct which would permit the state to circumvent the requirement that it prove every fact necessary for conviction beyond a reasonable doubt is error violating right to have the jury decide every element of the charged offense (Sandstrom error–Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450]), requiring reversal per se]; People v. Mayberry (1975) 15 Cal.3d 143, 157 [denial of fundamental right is itself a miscarriage of justice]; Rose v. Clark (1986) 478 U.S. 570, 577 [92 L.Ed.2d 460, 106 S.Ct. 3101].)
