Brief Bank # B-641
NOTE: The text of the footnotes appear at the end of the document.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, 2 Crim No. B000000
Plaintiff and Respondent, (Superior Ct. No. TA00000)
Defendant and Appellant.
APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY
HONORABLE RICHARD P. KALUSTIAN, JUDGE PRESIDING
APPELLANT’S OPENING BRIEF
State Bar No. 145787
2049 Century Park East
Los Angeles, CA 90067
Attorney for Appellant
Appellant was charged with murder in violation of Penal Code section 187, subdivision (a) and that he used his car as a deadly weapon to murder the victim. The jury was instructed as to second degree murder, voluntary manslaughter and involuntary manslaughter.
Appellant was convicted of involuntary manslaughter. His sentence was enhanced one year pursuant to Penal Code section 12022, subdivision (b). That section provides in pertinent part:
Any person who personally used a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted. . . .
The court committed reversible instructional error when it court failed to sua sponte instruct the jury on the specific intent necessary to find appellant personally used the car as a dangerous or deadly weapon. Additionally, the enhancement must be struck because there is no evidence appellant used or intended to use the car as a dangerous or deadly weapon.
WHERE THE APPELLANT WAS CONVICTED OF INVOLUNTARY MANSLAUGHTER AND IT IS ALLEGED HE USED A CAR AS A DEADLY WEAPON, THE TRIAL COURT’S ERRONEOUS FAILURE TO INSTRUCT THE JURY ON THE INTENT ELEMENT OF THE PENAL CODE SECTION 12022(B) WEAPON USE ENHANCEMENT IS REVERSIBLE PER SE
A. The Court Committed Reversible Error When it Failed to Sua Sponte Instruct the
Jury on The Intent Element for the Penal Code Section 12022(b) Allegation.
The court erroneously deleted the intent element when it instructed the jury on the weapons use enhancement allegation using a modified version of CALJIC 17.19.1 as follows: [Footnote 1]
It is alleged that the defendant personally used a deadly or dangerous weapon during the commission of the crime. If you find the defendant guilty, you must determine whether the defendant personally used a deadly or dangerous weapon in the commission of such crime.
A “deadly weapon” is an object, instrument or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily harm.
The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
You will include a special finding on that question in your verdict using a form that will be supplied for that purpose.
(CT 128-129, RT 255-256.)
The jury was instructed that it may find appellant guilty of involuntary manslaughter if it found the victim was killed during commission by appellant of reckless driving, exhibition of speed or in the commission of an act, ordinarily lawful which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. (CT 120-121; RT 226-227.)
The jury was further instructed on CALJIC numbers 8.46, 16.840, 16.84 1, and 16.870 defining due caution and circumspection, reckless driving, speeding as constituting reckless driving, and exhibition of speed as follows:
The term “without due caution and circumspection” refers to negligent acts which are aggravated, reckless and gross which are such a departure from what would be the conduct of an ordinarily careful, prudent person under the same circumstances as to be contrary to a proper regard for human life or a danger to human life or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonable have been foreseen. it must appear that the death or danger to human life was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act.
Every person who drives a vehicle upon a street or highway in willful or wanton disregard for the safety of persons and property, is guilty of reckless driving, a misdemeanor.
The word “willful,” as used in this definition, means an intentional disregard for the safety of others. It is not necessary to establish an intent to injure some person or property.
The word “wanton,” as used in this instruction, includes the elements of consciousness of conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of the consequences.
The rate of speed at which a vehicle is driven is considered as an isolated fact and simply in terms of so many miles per hour is not alone proof of reckless driving, but the rate of speed at which a vehicle is driven is a factor to be considered by you in light of all proved surrounding circumstances in deciding whether the vehicle was being driven in willful or wanton disregard for the safety of persons or property.
No person shall engage in any motor vehicle exhibition of speed on the street or highway. An exhibition of speed is a willful act of showing off or displaying a dangerous and imprudent speed where the presence of the other person is not known to the driver or may reasonably [be] anticipated by him.
(CT 122-125, RT 227-228.) During deliberations on November 10, 1993, the jury requested a readback of the testimony of the defense expert witness Mr. B. (CT 82.) The jury asked the following question specifically raising the issue of what intent the appellant must be found to have had when he hit the victim’s car with his car:
“Do we have to prove or establish the defendant’s intent to hit the brown car?”
The court answered:
Miss S, I am not sure I understand the question. But let me make some comments, some of which may assist you and some of which may not assist. I am not permitted by my comments to lead you to a verdict or push you one way or the other. That’s just not my job. As I have said before, the parties have selected a jury, and you will decide the facts. So I have to be very careful in what I say to you so that you don’t infer something from what I have said or how I feel, what I think the evidence is or whatever.
Let me say this to you. There have been essentially two versions of the case presented to you, one by the prosecution, and you heard that testimony, and one by the defense, and you have heard that testimony.
It’s your job to decide what the facts are. You decide what happened. You decide what the facts are, what you finally resolve of all the evidence. Evidence is everything that’s presented in the trial. The facts are what you finally believe happened and how it happened. So you should decide that first.
Secondly, the intent or mental state with which as act is done is in the definition of the crimes. The second degree murder, the manslaughter and the involuntary manslaughter. And you should look at those to decide what intent or mental state is necessary.
I can’t really answer the question, “Do we have to prove or establish the defendant’s intent to hit the brown car.” That’s something you are going to have to decide, whether he intended to hit the brown car or what he did intend to do. That’s something you must infer from all the surrounding circumstances and the testimony of the witnesses.
A particular mental state or intent is generally proved circumstantially because what’s in somebody’s mind can only be proved, in a sense, directly by what they say. After what they say, everything else is what they do. And you infer from what they do what they intended to do, what they meant to do, what they were thinking.
That’s how intent is proved, basically. So it is essentially circumstantial. We don’t have a probe into anybody’s mind and pull. out intent. So you are going to have to decide.
I would suggest you decide the facts first, decide what you believe happened, and then take the law that I have given you and apply the law you believe should be applied to those facts.
. . .
I can point to instructions that are relevant, the mental states in each of the instructions defining the crime, the instruction which tell you how to evaluate witness’ testimony, but I can’t really be anymore specific than that.
(CT 82, RT 265-267.) Nowhere in the court’s answer was the jury instructed that it must find appellant had the specific intent to use the car as a dangerous or deadly weapon when he hit the victim. The court addressed solely the murder and manslaughter instructions. Those instructions did not provide a basis for finding appellant used the car as a dangerous or deadly weapon in this case for the purpose of enhancement.
The trial court must instruct even without request on the general principles of law relevant to and governing the case. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324, People v. Sedeno (1974) 10 Cal.3d 703, 715.) That obligation includes instructions on all of the elements of a charged offense. (People v. Dyer (1988) 45 Cal.3d 26, 60.) The court here failed to instruct the jury on the element of appellant’s intent to use the vehicle as a deadly or dangerous weapon. The failure to instruct on the intent element of the weapons enhancement entirely precluded jury consideration of an element of the offense. Such error was federal constitutional error and is reversible per se. [Footnote 2] (Rose v. Clark (1986) 478 U.S. 570; Pope v. Illinois (1987) 481 U.S. 497, People v. Cummings (1993) 4 Cal.4th 1233, 1312.) Where, as here, the error is removal of the issue of intent from the jury’s consideration, rather then mere misinstruction on an element of the enhancement, a harmless error analysis does not apply. (People v. Cummings, supra, 4 Cal.4th at pp. 1312-1316, People v. Hernandez (1988) 46 Cal. 3d 194, 210-211.)
B. The Court Erred in Failing to Sua Sponte Instruct the Jury on CALJIC 12.42 That
the Intended Use Determines Whether an Innocent-Appearing Instrumentality is a
Dangerous or Deadly Weapon.
“A car is not a dangerous weapon unless it is used with the intent to cause harm.” (U.S. v. Torres-Lopez (1994) 13 F.3d 1308, 1312.) However in no instruction was the jury instructed that it must determine whether appellant intended to use the car as a deadly weapon in the crime charged.
[A] distinction should be made between two classes of “dangerous or deadly weapons.” There are, first, those instrumentalities which are weapons in the strict sense of the word, and second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling into the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are “deadly and dangerous” to others in the ordinary use for which they are designed, may be said as’a matter of law to be “dangerous or deadly weapons.” This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second, class, such as ordinary razors, pocket-knifes, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed, may not be said as a matter of law to be “deadly and dangerous weapons.” When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a “dangerous or deadly” manner, and it may be fairly inferred from the evidence that its possessor intended to use it as a weapon should the circunutances require, we believe that its character as a “dangerous or deadly weapon” may be thus established, at least for purposes of that occasion.
(People v. Graham (1969) 71 Cal.2d .303, 328 quoting People v. Raleigh (1932) 128 Cal.App. 105 at pp. 108-109; see also People v. Reid (1982) 133 Cal.App.3d 354, People v. Moran (1973) 33 Cal.App.3d 724, 730.)
The intended use determines whether an innocent-appearing instrument is a dangerous or deadly weapon. (People v. Grubb (1965) 63 Cal.2d 614, 620-621, People v. Deane (1968) 259 Cal.App.2d 82.) Where the object or instrumentality has a legitimate and lawful purpose, Grubb requires that there be evidence tending to show that, at the time and place of the alleged illegal use, the defendant contemplated the illegal, and not the legal use. (People v. Grubb, supra, 63 Cal.2d at 620-621, People v. Barrios (1992) 7 Cal.App.4th 501, 505, fn. 3, Bills v. Superior Court (1978) 86 Cal.App.3d 855, 861, People v. Deane, supra, 259 Cal.App.2d at 89.) The jury must consider the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from the standard form, and other relevant facts indicating that the possessor would use the object for a dangerous, not harmless purpose. (People v. Grubb, supra, 63 Cal.2d at 620.) In accordance with the Grubb rule, where the defendant is charged with using as a dangerous or deadly weapon an instrument such as a vehicle, which falls within the second category, the jury must be instructed on CALJIC No. 12.42:
In determining if the instrument or object in this case was a weapon of the kind within the law as stated, you may consider the circumstances attending any possession of the instrument or object by the defendant, such as the time and place of its possession; the destination of the possessor; any alteration of the object from its standard form; and evidence, if any, indicating its intended use by the possessor for a dangerous rather than a harmless purpose.
The court erred in failing to instruct the jury on CALJIC 12.42.
C. The Issue Presented by the Erroneously Omitted Element Was Not Resolved Adversely
to Appellant Under Other Properly Given Instructions.
To find that appellant personally used the vehicle in this case as a dangerous or deadly weapon, the jury was required to find that appellant had the specific intent to use it in that manner. That issues was not decided adversely to appellant under any other properly given jury instruction. (People v. Sedeno, supra, 10 Cal.3d at 721.)
As the Supreme Court explained in People v. Graham, supra, 71 Cal.2d 303, although the manner of use of an object does not automatically determine whether a defendant was “armed with a deadly or dangerous weapon,” the method of use may be evidence of the intent of its possessor. (Id. at 327.) In requiring that a jury be instructed to find whether the defendant intended to use shoes as a weapon for the purpose of armed robbery, the court explained:
[A] critical jury issue does arise in a case such as the present in which the defendant employs an instrumentality which in the strict sense of the word does not constitute a dangerous or deadly weapon. The issue then turns on whether the instrumentality was one which, under the control of the perpetrator of the robbery could be used in a dangerous or deadly manner and whether the perpetrator intended to use it as a weapon. In the absence of an instruction explaining the requisites for a finding that the defendant was “armed with a dangerous or deadly weapon,” the jury could not rationally apply the language of Penal Code section 211a to the facts in this case.
The general rule which provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof (People v. Reed (1952) 38 Cal.2d 423, 430 [240 P.2d 590]) will not prevail when the jury would have difficulty in understanding and applying the statute. Under such circumstances, a court must give additional guidance and clarification on its own motion. (People v. Thomas (1945) 25 Cal.2d 880, 895 [156 P.2d 7]; see also People v. Failla (1966) 64 Cal.2d 560, 565 [51 Cal.Rptr. 103, 414 P.2d 39].) In a robbery case such as the instant one, in which the instrumentality used is neither a weapon in-the strict sense of the word nor “dangerous or deadly” to others in the ordinary use for which it is designed, the trial court should specify the issue which the jury must resolve in the form suggested by Raleigh.
(People v. Graham, supra, 71 Cal.2d at 329.) The rule applies to this case. By failing to instruct the jury on the specific intent necessary to find appellant used the car as a dangerous or deadly weapon, there was no basis for enhancing appellant’s sentence pursuant to Penal Code section 12022, subdivision (b). The jury asked a specific question regarding appellant’s intent to hit the victim with his car, yet the court still did not direct the jury toward the enhancement issue. Graham holds the court had a sua sponte duty to do so. (Id. at 329.)
Neither the murder instructions nor the involuntary manslaughter instructions determined the issue of whether appellant personally used the car as a dangerous or deadly weapon. Those instructions dealt with negligent conduct. “Involuntary manslaughter is inherently . . . an unintentional killing.” (People v. Hendrick (1988) 44 Cal.3d 635, 643 quoting People v. Broussard (1977) 76 Cal.App.3d 193, 197.) (Italics provided.)
The words “without due caution and circumspection” refer to criminal negligence–unintentional conduct which is gross or reckless, amounting to a disregard of human life or indifference to the consequences. (People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926]. If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of that danger, the defendant is guilty of murder based on implied malice. (See People v. Cleaves (1991) 229 Cal.App.3d 367, 378 [280 Cal.Rptr. 146].)
(People v. Evers (1992)10 Cal.App.4th 588, 596.) (Emphasis added.)
The court’s failure to properly instruct the jury rendered the trial as to the enhancement issue fundamentally unfair. The jury’s finding that appellant intentionally used the car as a deadly or dangerous weapon to kill the victim must be reversed.
Footnote 1: CALJIC No. 17.19.1 is the instruction given regarding personal use of firearm or deadly weapon in sex crimes charged under Penal Code section 12022.3 CALJIC No. 17.16 is the correct jury instruction to be given for a charge of violating Penal Code section 12022, subdivision (b). CALJIC No. 17.16 provided:
It is alleged in [Count[s] ] that in the [attempted] commission of the crime charged, the defendant[s] personally used a deadly or dangerous weapon. If you find such defendant[s] guilty of the crime[s] thus charged [or an attempt to commit such crime] [or lesser included crime], you must determine whether or not such defendant[s] personally used a deadly or dangerous weapon in the [attempted] commission of such crime[s]. A deadly or dangerous weapon means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death. The term “used a deadly or dangerous weapon” as used in this instruction means to display such a weapon in a[n intentionally] menacing manner or intentionally to strike or hit a human being with it. The People have the burden of proving this allegation. If you have a reasonable doubt it is true, you must find it to be not true. You will include a special finding on that question in you verdict using a form that will be supplied for that purpose.
CALJIC No. 17.19.1 also contained a similar paragraph regarding the defendant’s specific intent, but that was omitted form the version given to the jury in this case. (CT 129.) That paragraph provides:
The term used a [firearm] [or] [other deadly weapon] as used in this instruction, means to display a [firearm] [or other deadly weapon in a menacing manner, intentionally to [fire] [or] use it, or intentionally to strike or hit a human being with it.
Footnote 2: The standard of prejudice for failure to instruct on an enhancement is pending review. In People v. Wims (S036641 19 Cal.App.4th 1601, 1606 and in People v. Winslow (S036861) 19 Cal.App.4th 1775, 1780, the Supreme Court will consider the question of what standard of prejudice applies to the failure to instruct on an enhancement or an element thereof.