Brief Bank # B-658 (Re: F 9.95 n5 [Hate Crimes: PC 422.75(a) Requires The Defendant To Personally Possess The Requisite Mental State].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, No. 3 Crim. C00000
v. San Joaquin County
Defendant and Appellant.
APPEAL FROM THE SUPERIOR COURT OF SAN JOAQUIN COUNTY
HONORABLE K. PETER SAIERS, JUDGE
APPELLANT’S OPENING BRIEF
Attorney at Law
State Bar No. 057349
2420 University Avenue
San Diego, California 92104
Telephone: (619) 584-1523
Under Appointment by Court of
Attorney for Appellant
THE COURT’S REPLY TO THE JURY
QUESTION THAT AIDING AND
ABETTING THE RACIAL CRIME
ENHANCEMENT WAS ANOTHER
THEORY OF LIABILITY WAS
During deliberations the jury had two questions regarding aiding and abetting and the assault with a deadly weapon and the “race enhancement.” (CT 154-155) The court initially told the jury the aider and abettor as it relates to the race enhancement was just another theory of liability. (IV RT 878.) The court reread the instruction on aiding and abetting to the jury. (IV RT 882-883) The racial crime enhancement must be reversed because the court did not correctly advise the jury regarding the racial crime enhancement and thereby violated defendant’s right to due process and a fair trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
When a jury requests clarification of the law, a judge must clear up any instructional confusion expressed by the jury. (People v. Gonzales (1990) 51 Cal.3d 1179, 1212 [275 Cal.Rptr. 729]; People v. Thompkins (1987) 195 Cal.App.3d 244, 249-250 [240 Cal.Rptr. 516]) As with all instructions, the court’s instruction must be correct. (Id., at p. 251; People v. Birreuta (1984) 162 Cal.App.3d 454, 462 [208 Cal.Rptr. 635] [jury instructions must be correct])
In the present case, one question expressed by the jury was whether the aiding and abetting instructions applied to the race enhancement. (CT 154, 155; IV RT 878, 882) The court’s answer was that aiding and abetting was another theory of liability. (IV RT 878.) However, if aiding and abetting principles did not apply to the enhancement, the court’s answer was erroneous.
The situation is similar to that in People v. Magana (1993) 17 Cal.App.4th 1371 [22 Cal.Rptr.2d 59, 63], in which the jury expressed confusion during deliberations regarding the great bodily injury enhancement under Penal Code section 12022.7 by asking whether the prosecution had to prove it was defendant’s gun which fired the bullet which struck the victim. The court and counsels agreed to give the standard instructions on aiding and abetting. (Ibid.) The reviewing court struck the finding on the enhancement because aiding and abetting instructions were inapplicable and allowed the jury to find the enhancement allegations true based upon a theory of vicarious liability. (Id., at p. 64.) The court noted that Penal Code section 12022.7 required a defendant personally inflict injury. (Ibid.)
The issue in the present case is whether aiding and abetting principles apply to the enhancement under Penal Code section 422.75, subdivision (b). That section states in part,
“. . . any person who commits a felony or attempts to commit a felony because of the victim’s race, color. . . and who voluntarily acted in concert with another person either personally or by aiding and abetting another person. . .“
The statute is clear and indicates the enhancement is applied to a “person” who commits a felony because of the victim’s race or color. The presence of the phrase “acted in concert with another person either personally or by aiding and abetting another person” shows the enhancement does not apply if only the person who is aided and abetted committed the felony because of race or color. (See People v. Heston (1991) 1 Cal.App.4th 471, 475-480 [2 Cal.Rptr.2d 26] [Penal Code section 12022.4 regarding furnishing firearm to another for purpose of aiding and abetting commission of felony] .) As often is noted, when statutory language is clear and unambiguous, there is no need for statutory construction and courts should not indulge in it. (People v. Cole (1982) 31 Cal.3d 568, 572 [183 Cal.Rptr. 350]; People v. Overstreet (1986) 42 Cal.3d 891, 895  Cal.Rptr. 213].)
Penal Code section 422.75. subdivision (b) , as well as subdivision (a) , show the enhancement is not applied because the crime is racially motivated but because the particular defendant committing the crime or aiding and abetting the crime was racially motivated. [Footnote 1] This interpretation is strengthened by Penal Code section 422.75, subdivision (d), which provides for an additional year if a defendant was convicted of a prior felony in which “the crime was committed because of the victim’s race, color. . . .” This section punishes if “the crime” was racially motivated. Penal Code section 422.75, subdivision (b) requires defendant personally commit the felony because of racial reasons. (See also Penal Code section 422.7, regarding “crime” that is racially motivated.) Even if there may be some ambiguity, a defendant is entitled to every reasonable doubt in the interpretation of words or phrases in a criminal statute. (People v. Overstreet, supra, 42 Cal.3d 891, 896)
Support for the interpretation that aiding and abetting theory does not apply to enhancements can be seen by comparison to other enhancement statutes. (See People v. Woodhead (1987) 43 Cal.3d 1002, 1008 [239 Cal.Rptr. 656] [interpretation of an ambiguous statutory phrase may be aided by reference to other statutes which apply to similar or analogous subjects].)
Many enhancements use the word “personally” in them which clearly expresses a legislative intent that the enhancement for a particular defendant is not to be applied on a vicarious or aiding and abetting basis. (Pen. Code, §§12022, subd. (b), 12022, subd. (c), 12022.5, 12022.7; People v. Cole, supra, 31 Cal.3d 568, 571, 574-579 [aiding and abetting principles not apply to Pen. Code sections 12022, subd, (b), 12022.5, and 12022.71 ; People v. Balbuena (1992) 11 Cal.App.4th 1136, 11381139 [14 Cal.Rptr.2d 640] [Pen. Code section 12022, subd. (c).) Even when statutes do not use the term “personally”, some have been interpreted to require personal use (see Pen. Code, §§12022.8, 12022.55; In re Jose Mario D. (1990) 219 Cal.App.3d 582, 587-588 [268 Cal.Rptr. 364] [Penal Code section 12033.55 regarding infliction of great bodily injury in discharging firearm from vehicle] ; People v. Ramirez (1987) 189 Cal.App.3d 603, 654-657 [236 Cal.Rptr. 404] [Pen. Code section 12022.8 regarding infliction of great bodily injury during sex offense].) There has been a dispute whether Penal Code section 12022.3, subdivision (b) requires a defendant be personally armed with a weapon. (Id., at pp. 625-627.)
Even where the enhancement does not require a defendant personally do something, i.e., use of firearm or inflict injury, the enhancement does not depend on aiding and abetting the enhancement. For instance, the enhancement for being armed with a firearm under Penal Code section 12022, subdivision (a) (1), does not require an aiding and abetting theory as to the enhancement. The statute applies if any one or more of the principles in the commission of the felony is armed with a firearm. As noted in People v. Walker (1976) 18 Cal.3d 232, 241-242 [133 Cal.Rptr. 520],
“Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principles in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice’s personal conduct, as those statutes which provide for such increased punishment ‘do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.’”
As noted in Walker, the aiding and abetting principles do not apply to enhancements. This should be differentiated from increased punishments because of the type of crime rather than of a defendant’s personal conduct in the crime. (People v. Price (1989) 210 Cal.App.3d 1183, 1192-1194 [259 Cal.Rptr. 282] [victim’s loss under Penal Code section 12022.6 and amount of drugs involved under Health and Safety Code section 11370.41; People v. Davis (1985) 166 Cal.App.3d 760, 767 [212 Cal.Rptr. 673] [if escape was by force or violence, additional punishment under Penal Code section 4532, subdivision (b) applied because crime was by force or violence and defendant not required to personally use or aid and abet force or violence].)
Penal Code section 422.75, subdivision (b) requires the defendant, when he commits a felony or aids and abets another to commit a felony, to personally act because of race or color. This conclusion was held by the prosecutor in this case as indicated by the prosecutor’s charging an enhancement under Penal Code section 422.75, subdivision (b) as to each defendant separately. (CT 33-39, 42-43) The court’s erroneous answer involves an instruction expanding liability for the enhancement, i.e., the definition of the enhancement, and the error violates defendant’s rights to due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. The error requires reversal unless it can be said the error was harmless beyond a reasonable doubt. (See discussion in People v. Lee (1987) 43 Cal.3d 666, 671-676 [238 Cal.Rptr. 406] [ambiguous instructions improperly implying implied malice was sufficient for attempted murder violated federal constitution].)
In the present case, there was evidence that Mr. W and Mr.. S as well as Ms. R and defendant assaulted the victim with a deadly weapon or by force likely to produce great bodily injury. (CT 164 (verdict) ; see Statement of Facts, supra) The record shows Mr. W, Mr. S, and Ms. R, as well as defendant, used racial epithets when addressing the victim. (II RT 339, 344, 345, 347, 349) However, the record also shows defendant initially hit the victim because the victim was loud. (II RT 331-332, 404-405, 448-449, 476-477) In addition, defendant told the victim he hated rapists, and accused him of raping the victim’s ex-girlfriend. (II RT 333, 405-406) Thus, although there was evidence defendant’s actions were racially motivated (II RT 343), there was prosecution evidence to indicate defendant’s assaults on the victim were not motivated by his race or color. In addition, the victim admitted he knew defendant for about nine months and considered defendant a friend and had no problems with defendant before. (II RT 389-391) This tends to negate racial prejudice.
Defendant also testified he knew the victim for nine months to a year and had no prior problem with him. (III RT 617) Although he admitted he used racial epithets (III RT 641, 646, 648, 687, 686), he denied the beatings were racially motivated. (III RT 686.) He testified he was drunk and hit the victim because he was loud and also because he thought the victim had raped his ex-girlfriend. (III RT 625, 636, 639-640, 647)
There was also testimony by others that defendant was not a racist or biased against African-Americans. (See Statement of Facts, Defense Evidence, supra.)
While there were reasons other than because of the victim’s color or race which could explain defendant’s actions, there was no such testimony regarding Mr. W or Mr. S, except for the fact the victim was loud. The victim acknowledged Mr. S had a knife in the kitchen at one time but he could not remember what happened. (II RT 408-409.) Defendant testified he (defendant) told Mr. S to put the knife away. (III RT 652) Defendant testified there was an incident indicating Mr. S’ racial prejudice when he would not drink out of the same bottle as the victim. (III RT 666-669.) When Mr. W and Mr. S had the victim in the trunk and were about to drive away, defendant testified Mr. S said he just wanted to have fun with him (the victim). (III RT 653.) At 99 Speedway, defendant testified the other people hitting the victim used racial epithets. (III RT 657-658)
The victim had been known by Ms. R before (II RT 320, 393) and, therefore, even if she may have hit the victim and used racial epithets, the jury may not have believed her actions were because of the victim’s race or color.
The jury may have believed Mr. W and Mr. S acted because of the victim’s race or color because there was no evidence either man knew him bef ore as a friend. The jury may have believed defendant and even Ms. R were not racially motivated because they were the victim’s friend before. This conclusion is supported by the jury’s failure to find the racial enhancement as to the oral copulation in concert by defendant in which Ms. R was present. (CT 169) Both the victim’s description that defendant did not have an erection and did not ejaculate (II RT 373) and defendant’s description that he did not have an erection and the act took 10-15 seconds at most (III RT 681) strongly indicates the oral copulation was not for sexual gratification but to humiliate the victim. if the jury believed this but found the act was not racially motivated, it may have also concluded defendant’s actions throughout the night was not racially motivated.
However, the jury could have believed the assaults by Mr. W and/or Mr. S were motivated by race. Since the record is clear defendant personally assaulted the victim, and the jury found he personally used a weapon and personally inflicted great bodily injury (CT 164-164), there would be no real reason to ask about aiding and abetting as to the racial enhancement unless the jury did not believe defendant’s actions were racially motivated but questioned whether defendant also aided
and abetted in the assaults by Mr. W and Mr. S and their actions were racially motivated.
It should be noted the question was incorrectly answered on the morning of August 30. (CT 171.) The jury reached its verdict at 3 p.m. on the same day. (CT 171.) This short time between the question and verdict indicates prejudice. (People v. Magana, supra, 17 Cal.App.4th 1371 [22 Cal.Rptr.2d 59, 65 [11 minutes]; People v. Markus (1978) 82 Cal.App.3d 477, 482 [147 Cal.Rptr. 151] [“brief lapse” between erroneous additional instruction and verdict].) The very fact the jury asked about aiding and abetting as to the enhancement presents a strong inference the finding was based on this theory. (See People v. Godinez (1992) 2 Cal.App.4th 492, 505 [3 Cal.Rptr.2d 325]; People v. Beeman (1984) 35 Cal.3d 547, 562-563 [199 Cal.Rptr.601].) The fact defendant was acquitted on some counts (kidnapping (but convicted of false imprisonment) , torture, robbery) is a strong indication the jury believed much of defendant’s testimony and indicates a close case. (See People v. Perry (1985) 166 Cal.App.3d 924, 933 [212 Cal.Rptr. 793] [acquitted of crimes in separate incident]; People v. Godinez, supra, 2 Cal.App.4th 492, 504-505 [jury acquitted defendant of use of knife] ; People v. Epps (1981) 122 Cal.App.3d 691, 694-698 [176 Cal.Rptr. 332] [prejudice shown by acquittal on two counts and conviction on one count].) The true finding on the racial crime enhancement under Penal Code section 422.75, subdivision (b) in Count 2 must be vacated.
APPELLANT’S REPLY BRIEF
THE COURT’S REPLY TO THE JURY QUESTION THAT AIDING AND
ABETTING THE RACIAL CRIME ENHANCEMENT WAS ANOTHER
THEORY OF LIABILITY WAS PREJUDICIAL ERROR
Respondent’s response to this argument is confusing. (RB 11-12) Appellant’s argument is that the aiding and abetting principles do not apply to the race enhancement. (AOB 24-29) Clearly the aiding and abetting instructions apply to the underlying crime. Respondent appears to agree that the court’s response was that aiding and abetting can apply to the enhancement as well as to the underlying crime. (RB 12) If appellant is correct that the aiding and abetting principles cannot apply to the race enhancement, respondent impliedly agrees there was error.
Respondent argues the court stated numerous times the aiding and abetting instructions can apply to “the crimes, not the enhancement”. (RB 12) However, respondent has just argued the aiding and abetting instructions apply to both the crime and enhancement. (See previous paragraph at RB 12.)
The court’s prior instructions at IV RT 844 and 854 cannot cure any errors as intimated by respondent. (RB 12) The jury’s questions indicating its confusion were made after these instructions were given. (IV RT 878) The jury was asking questions because it was confused by the prior instructions. The Court was required to clarify the confusion. (AOB 24)
Respondent argues the instructions required the perpetrator possess the necessary mental state. (RB 12) Appellant does not argue the jury was mislead as to the perpetrator’s mental state; the argument is that the jury could have found the race enhancement as to defendant on an aiding and abetting principle rather than on his specific intent. Contrary to the court’s answer, aiding and abetting as it related to the race enhancement was not another theory of liability. As indicated at AOB 30-33, there was prejudice.
THE COURT FAILED TO PROPERLY INSTRUCT ON ALL
ELEMENTS OF THE RACIAL ENHANCEMENT
Respondent agrees that the court failed to instruct on all elements of the enhancement. (RB 10.) Respondent argues, however, the error was cured by other instructions and was harmless under Chapman v. California (1967) 386 U.S. 18, 2324 (87 S.Ct. 824]. (RB 10-11.) The Chapman standard does not apply when a court fails to instruct on an element of an offense or enhancement. (AOB 35.) The record must show the jury resolved the factual question against defendant under other properly given instructions. (AOB 35)
Respondent argues that the omitted element may be supplied by other instructions given the jury. (RB 10.) Not relying on other instructions, however, they then rely on the “in concert” phrase in the verdict forms given the jury, citing to CT 164 and 169. (RB 10.) The verdict form for the race enhancement at CT 169 was not signed. It is not clear how this blank form cured any error. The verdict at CT 164 does have the “in concert” phrase in the race enhancement finding but this cannot cure any error. Respondent cites to no authority that holds verdict forms are part of the instructions to the jury. It is important to note that the jury did not make a race enhancement finding in the oral copulation by concert conviction. (CT 169.) As indicated at AOB 36, the jury need not have found defendant acted in concert in the assault with a deadly weapon. (AOB 36.)
Respondent’s reliance on the verdict forms to show the jury actually knew a finding of “in concert” was required even though the instructions failed to instruct on that element is unfounded. In People v. Mackabee (1989) 214 Cal,App.3d 1250, 1254-1256, [263 Cal.Rptr. 183], defendant argued the burglary was tried on the basis of an entry into the outside building (CARD building) rather than on the basis of an entry into the inner office in the building. The court rejected defendant’s arguments based on the jury instruction and argument of the prosecutor in spite of the fact the verdict form referred to entry in the CARD building. (Id., p. 1255.) The reviewing court noted the trial court used a. verdict form in which all the verdicts were on the same form (and there were notations on the forms.) In the present case, the verdict forms are typed out. There is nothing to indicate the jury read the forms as supplemental instructions to those already read to them by the court.
In People v. Trotter (1992) 7 Cal.App.4th 363, 369-370 [8 Cal.Rptr.2d 648] the jury was properly instructed on the ‘use’ of a firearm but the jury verdict had findings on being ‘armed’ with a firearm. The reviewing court held that correcting the “armed’ to “use” was proper because this was merely a correction of a clerical error. (Ibid.) The reviewing court noted the jury did not draft the verdict form and the verdict form was a pre-printed verdict form given to the jury after proper jury instructions. (Id., at p. 370.)
Similarly in the present case, the jury instructions failed to instruct on an essential element of the enhancement and the pre-printed verdict forms which the jury was to merely sign or not, not to edit, cannot serve as additional instructions. The court’s mere reading of the written verdict forms at IV RT 861 cannot cure the error. (RB 11.) It is the instructions that are important as the trial court instructed. (IV RT 833.)
The question on aiding and abetting as to the enhancement does not necessarily mean the jury was aware of the “in concert” requirement of the underlying offense as respondent suggests. (RB 11.)” As respondent later notes (RB 11-12), the question by the jury was whether the separate instructions on aiding and abetting applied equally to the enhancement and to the underlying offense. The jury was asking about the general aiding and abetting instructions and not any requirement that the an element of the race enhancement was that the underlying offense necessarily be in concert or by aiding and abetting. The question by the jury merely indicated the jury may have found aiding and abetting as to the underlying assault with a deadly weapon but it does not necessarily show the jury did find aiding and abetting as to the assault with a deadly weapon. (AOB 36.)
Footnote 1: This distinction is only important when more than one person commits the crime.