B-599

Brief Bank # B-599

NOTE: The text of the footnotes appear at the end of the document.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal No. C000000

Plaintiff and Respondent, (Sacramento County Superior Court
No. CR000000)

JOHN DOE,

Defendant and Appellant
_______________________________________/

OPENING BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction Superior Court, County of Sacramento

The Honorable William R. Ridgeway, Presiding Judge

Michael B. Dashjian State Bar No. 111072
Law Offices of Michael B. Dashjian
Suite 384
2509 Thousand Oaks Boulevard
Thousand Oaks, California 91362
(805) 376-2245
Attorney for John Doe
By appointment of the Court of Appeal

IX. The Firearm And Prior Prison Term Enhancements Must Be Reversed Because Of
Failure To Instruct The Jury On Essential Elements Thereof

A. The Firearm Use Enhancement

The trial court instructed the jury on the firearm use enhancement allegations as follows:

    It’s alleged in Counts One and Two that the defendant personally used a firearm during the commission of the crimes charged.

    If you find the defendant guilty of one or more of the crimes charged, you must determine whether the defendant personally used a firearm in the commission of such felonies.

    The word "firearm" includes a pistol. The firearm need not be operable.

    The term "used a firearm" as used in this instruction, means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it.

    The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it’s true, you must find it to be not true. (RT 722.)

A firearm enhancement under Penal Code section 12022.5, of course, requires that the defendant have personally used the firearm. (People v. Walker (1976) 18 Cal.3d 232, 240-43; People v. Allen (1985) 165 Cal.App.3d 616, 626.) The trial court in this case did in fact use the phrase "personally used," although it did not define it. But on top of that, the trial court had also given an instruction on aiding and abetting:

    The persons concerned in the commission or attempted commission of a crime who are regarded as principals in the crime thus committed or attempted and equally guilty thereof including the following:

    One, those who directly and actively commit or attempt to commit the act constituting the crime; or

    Two, those who aid and abet the commission or attempted commission of the crime. . . . (RT 716.)

As a result, the instructions were such that the jury could have found the firearm enhancement true if it found that Mr. Doe did not himself use a firearm, but aided and abetted a co-defendant who did. While it is true that an enhancement does not define a substantive crime but only serves to impose an added penalty when the crime is committed under specified circumstances (People v. Morris (1988) 46 Cal.3d 1, 16; People v. Superior Court (Grilli)(1978) 84 Cal.App.3d 506, 512-13), there is no way a Superior Court jury is going to know the subtle intricacies of our enhancement laws, especially without a further set of instructions explaining them. If rational jurors under the instructions in this case hear that an aider and abetter is as guilty as a principal, they may and undoubtedly will consider themselves able to impose a "personal use" enhancement on one who aids and abets a personal user" in the underlying substantive crime. The instructions thus fail to provide proper legal guidance to the jury on what is required for finding a personal use enhancement to be true, and are consequently in error.

This error might be characterized as a complete failure to instruct on the actual meaning of "personal use, " which would render the error reversible per se. (See People v. Cummings (1992) 4 Cal.4th 1233, 1312-16; see also People v. Shoals (1992) 8 Cal.App.4th 475, 489-90 [reversible error to fail to define term with technical legal meaning].) Perhaps a more appropriate characterization would be that the trial court’s error was in instructing the jury that it could find the firearm use allegation true based on something that is not actually "personal use" of a firearm. That is also reversible error per se because it is impossible to know just what the jury did base its finding on, and therefore whether it based its finding on something that did not as a matter of law constitute a personal use enhancement. (See Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 669-70; People v. Brady (1987) 190 Cal.App.3d 124, 138.)

In either event, there can be no assurance that the jury has actually made a finding that Mr. Doe "personally used" a firearm, and the firearm use enhancement must be reversed.

B. The Prior Prison Term Enhancements

In the bifurcated trial on the enhancement allegations under Penal Code section 667.5, subd. (b), the trial court did not instruct the jury in the language of CALJIC No. 17.18. Rather, the trial court simply informed the jury of the following:

It’s . . . alleged in the Information that the defendant previously has been convicted of a violation of 496 of the Penal Code, receiving stolen property, on January 10th, 1984, and a violation of 487.2 of the Penal Code, grand theft from the person, on April 23rd, 1989, and a violation of 666 of the Penal Code, petty theft with a prior conviction on 7/3 — July 3rd, 1991, and that is as a result of each of those convictions, he was sentenced to state prison and served a term in state prison. (RT 757-58.)

The trial court, however, did not instruct the jury on an essential element of the section 667.5(b) enhancement–that it can only be imposed when the defendant has served a separate prior prison term.

The trial court then discussed the verdict forms, and indicated that for each alleged enhancement on the verdict forms, it was being alleged that Mr. Doe "served a separate term in state prison for this offense. . . ." But even in discussing the verdict forms, the trial court never defined a "prior separate prison term."

"Prior separate prison term" has a technical meaning, which is contained in the enhancement statute itself, Penal Code section 667.5, subd. (g). Had the trial court properly given CALJIC No. 17.18, it would have correctly instructed the jury as to that technical meaning. As it stands, the jury was given absolutely no guidance on an essential element of the enhancement. Such failure to define terms in an essential element of an allegation that have a technical legal meaning is equivalent to a complete failure to instruct on that essential element, since the jury is not told what it is supposed to do in order to find that essential element to be true, which is a violation of a defendant’s fundamental jury trial rights. (See People v. Shoals (1992) 8 Cal.App.4th 475, 489-90.)

These rules also apply to the elements of an enhancement. Withdrawing an essential element of an enhancement allegation from the jury’s consideration deprives the defendant of his jury trial right on the enhancement allegation. (See People v. Cummings, supra, 4 Cal.4th at pp. 1316-20.) That is the case here, and the prior prison term enhancements must be reversed.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal No. C000000

Plaintiff and Respondent, (Sacramento County Superior Court
No. CR000000)

JOHN DOE,

Defendant and Appellant
_______________________________________/

REPLY BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction Superior Court, County of Sacramento

The Honorable William R. Ridgeway, Presiding Judge

VIII. The Firearm And Prior Prison Term Enhancements Must Be Reversed Because
Of Failure To Instruct The Jury On Essential Elements Thereof [Appellant’s
Opening Brief, Part IX, Pages 62-64]

A. The Firearm Use Enhancement [Appellant’s Opening Brief, Part IX(A), Pages 62-63

Respondent misses the point of this argument, and errs significantly characterizes the appellant’s actual argument.

The argument appellant actually is making is based on the fact that at the trial of the enhancements, the jury is expected to follow the instructions that were previously given at the trial of the main offense, plus any special instructions on the enhancements themselves.

That must be the case. If it were not, then it would be automatic reversible error whenever a trial court did not repeat the entire panoply of jury instructions at the enhancement phase that it read at the main trial. But such an action would be pointlessly time-consuming, trial courts almost never do it, and such repetitious redundance is not required–because the jury is expected at the enhancement phase to follow the same jury instructions it heard at the main guilt phase.

Thus, in this particular case, the jury would be expected at the enhancement phase to follow CALJIC Nos. 3.00 and 3.01, the aiding and abetting instructions it heard at the main guilt phase.

And that is what creates the fundamental error appellant is pointing out. Jurors are presumed to be intelligent people who follow the law given to them by the trial court. (People v. Hardy (1992) 2 Cal.4th 86, 208; People v. Mickey(1991) 54 Cal.3d 612, 689, fn. 17.) "Out of necessity, the appellate court presumes the jurors faithfully followed the trial court’s discretions, including erroneous ones." (People v. Lawson (1987) 189 Cal.App.3d 741, 748.)

Thus, it must be assumed that the jurors followed CALJIC Nos. 3.00 and 3.01 at the enhancement phase as well as the guilt phase. The jurors would thus have concluded from following these instructions that a person is equally culpable as an alder and abetter as he is as a perpetrator. And they would have concluded that a person is equally culpable of having personally used a firearm whether he was an alder and abetter of the personal user, or the personal user himself.

That is appellant’s argument, and that is the fatal error.

Rational jurors could have concluded that by the trial court’s instructions, a defendant can receive a personal use enhancement if he aided and abetted someone who personally used a firearm. As a result, the challenged instruction permitted the jury to find the personal use enhancement to be true even if based on the facts it found, appellant did not personally use a firearm. That is error. (See AOB at p. 63; see also People v. Brady (1987) 190 Cal.App.3d 124, 138.) Nor is there any guarantee that the jury found appellant to have personally used a firearm under other proper instructions; they did find him guilty of assault with a firearm under Penal Code section 245(a)(2), but that did not require a finding that he personally used a firearm.

The personal use enhancement must be reversed. Appellant acknowledges, however, that under Penal Code section 1260, the enhancement as to Count I may be reduced to a use enhancement under Penal Code section 12022, subd. (a), since the jury necessarily found that enhancement to be true under other proper instructions when it found appellant guilty of assault with a firearm. But the enhancement as to Count II (assault with a firearm) cannot be reduced pursuant to Penal Code section 1260, since by the terms of section 12022, subd. (a), that enhancement cannot be applied because the arming is an essential element of a conviction under Pen. Code § 245, subd. (a)(2); and consequently, it must be vacated. [FOOTNOTE 1]

B. The Prior Prison Term Enhancements [Appellant’s Opening Brief, Part IX(B),
Pages 63-64]

Respondent cites no authority to show that, as he asserts, "’prior separate prison term’ is a term of common usage and requires no further explanation." (RB at p. 33.)

The case cited by respondent, People v. Raley (1992) 2 Cal.4th 870, 901, is not on point for two reasons. First, Raley was a capital murder case which involved the term "sadistic purpose," obviously not at issue here. Second, Raleyevaluated the definitional requirement under a federal due process standard (as one would expect in a capital case), but that is not the standard at issue in this case. Rather, the standard at issue here is one of state constitutional law. The requirement of defining technical legal terms is a part of the state constitutional right to have the jury determine all material issues presented by the evidence, denial of which is reversible error per se. (People v. Shoals (1992)8 Cal.App.4th 475, 489-490; People v. Reynolds (1988) 205 Cal.App.3d 776, 779; see generally People v. Modesto (1963) 59 Cal.2d 722, 730 [state constitutional right generally], disapproved on other grounds in People v. Sedeno (1974)10 Cal.3d 703, 720-721.)

The words "prior separate prison term" may be words in common use in the English language. But that does not mean that the jury need not be instructed as to the legal definition of the phrase "prior separate prison term" under Penal Code section 667.5, subd. (g). "Assault" is a common word in the English language, but failure to define it is reversible error. (People v. Valenzuela (1985) 175 Cal.App.3d 381, 393; People v. McElheny (1982) 173 Cal.App.3d 396, 403.) More recently, it was held reversible error per se to fail to define "opening or maintaining" in a jury instruction, even though those words are obviously in common use in the English language as well–and even though the trial court read the statute to the jury. (People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490.)

The test is thus not whether the words in question are common or commonly understood. Rather, the test must be whether there is any matter in the legal definition that jurors would not know of or understand from the instructions given them (in this case, just by hearing the word or phrase), which could reasonably be material to the issue the jurors are being called upon to decide. If there is, then it cannot be assumed that the jurors decided the material matter, because they would not have known to do so. And the error will be reversible per se, because the jurors will not have been instructed on a material issue raised by the evidence, depriving the defendant of his right to have the jurors decide all such issues.

That test is clearly met here.

A one-year prior prison term enhancement can only be imposed under Penal Code section 667.5, subd. (b), when the defendant has served a "prior separate prison term" as defined in subdivision (g). That is therefore the question the jury must decide–has the defendant served as prior separate prison term" as it is defined in subdivision (g)?

For each allegation under Penal Code section 667.5, subd. (b), in order to determine whether the defendant has served a "prior separate prison term" as it is defined in subdivision (g), the jury must determine whether all of the facts in subdivision (g) are true. Specifically, the jury must determine whether a defendant completed a period of prison incarceration imposed for a particular offense–whether the defendant was incarcerated in the first place, whether he was convicted of the offense, and whether he then completed a continuous period of incarceration attributable to that offense (as opposed, for example, to prevailing on appeal, or being out on ball, or having a writ granted). In the case of allegations as to multiple enhancements, the jury must also determine that none of the offenses in the allegations resulted in prison terms that were not "separate." The jury, of course, can only determine that all of these are true if it finds that the prosecution has proven them beyond a reasonable doubt–but the defendant has the absolute right to have the jury make that finding, since as discussed above, a defendant has a constitutional right to have the jury determine all material issues presented by the evidence. In this case, however, the jury was not given instructions that would guide it as to each of these issues.

This in fact shows the reason why a jury must be instructed as to the definition of technical legal terms that are material elements of a crime or enhancement. The jury must find each element of an enhancement or crime to be true beyond a reasonable doubt before it can impose the enhancement or convict. But when jury instructions do not give a definition for a term that has a legal meaning, there can be no assurance that the jury will have found the elements underlying that definition. It is the jury, not a reviewing court, that must determine in the first instance the existence or nonexistence of all facts underlying an enhancement allegation.

When such instructions on the meaning of a term with a legal meaning are not given, "the error [is] prejudicial regardless of the strength of the People’s case." (People v. Reynolds, supra, 205 Cal.App.3d at p. 782.) "Unless ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions,’ the issue must be deemed to have been removed from the jury’s consideration and would require reversal (People v. Valenzuela, supra, 175 Cal.App.3d at p. 394 [holding in context of failure to define a term with a legal meaning].) Here, the factual questions raised by section 667.5, subd. (g) were not decided by the jury under any other instructions; and since the jury was not instructed in a manner that would ensure it could make those findings, then the enhancement cannot stand.

Since appellant’s jury was not instructed on the definition of "prior separate prison term" contained in Penal Code section 667.5, subd. (g), and since there are material elements in that definition which the jury would not have known to find just by hearing the words "prior separate prison term," this case falls under Shoals, Reynolds and the other cases herein. The prior prison term enhancements should be reversed. [FOOTNOTE 2]

FOOTNOTES:

Footnote 1: Neither People v. Wims (Nov. 4, 1993) 93 Daily Journal D.A.R. 14030 nor People v. Winslow Nov. 10. 1993) 93 Daily Journal D.A.R. 14298, both cited in the appellant’s opening brief at p. 62, has been officially published at this time. The argument herein stands on its own without further need for citation to case authority.

Footnote 2: Based on the authority set forth herein, respondent is incorrect in asserting that "[t]his is not a case where an element of the enhancement was removed from the jury’s consideration." (RB at p. 34.) When there has been a failure to define a technical legal term as to an enhancement allegation, then in fact "an element of the enhancement [has been] removed from the jury’s consideration." (People v. Shoals, supra, 8 Cal.App.4th at pp. 490-491 [failure to define legal term constituting element of the offense meant that " [t]he jury was not instructed fully on the meaning of the elements in this case," and therefore that the defendant was denied his right to have the jury determine every material issue].) The jury did not "ha[ve] to have concluded" (RB at p. 34) anything it was not instructed on, and in fact it is presumed that the jury did not draw any conclusions as to matters on which it was not instructed for the very reason that it was not instructed to do so. (People v. Hernandez (1988) 46 Cal.3d 194, 211; People v. Valenzuela, supra, 175 Cal.App.3d at p. 393.)