Brief Bank # B-660 (Re: F 5.15a [Self-Defense: Specification Of Prosecution’s Burden].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
Plaintiff and Respondent, No. H000000
v. (Santa Clara County
JOHN DOE, No. 000000)
Defendant and Appellant
OPENING BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Santa Clara
The Honorable Catherine A. Gallagher
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for John Doe
In Association With The Sixth District
By appointment of the Court of Appeal
IV. The Trial Court Was Required By California Statute To Instruct The Jury Sua Sponte On The Burden Of Proof In A Self-Defense Case, And It Erred Prejudicially In Failing To Do So
In the alternative to the discussion in Part III, ante, the judgment should be reversed because the trial court was required by California statute–Evidence Code section 502–to instruct the jury that the prosecution must prove beyond a reasonable doubt the absence of self-defense, when the evidence raises the issue. (People v. Sanchez, supra, 30 Cal.2d at p. 571; People v. Adrian, supra, 135 Cal.App.3d at pp. 337-341.)
A. The Applicabiliiy Of Section 502 To A Case Such As This Is A Question Of First Impression
Appellant recognizes that another court has held this burden of proof instruction not to be a sua sponte instruction. (People v. Sandoval (1970) 9 Cal.App.3d 885, 888.) However, Sandoval did not address the issue of Evidence Code section 502. Cases are never authority for issues not considered, discussed, or decided. (People v. Superior Court (Marks) (1991)1 Cal.4th 56, 65-66; People v. Banks (1959) 53 Cal.2d 370, 389; Fricker v. Uddo and Taormina Co. (1957) 48 Cal.2d 696, 701.)
“The doctrine of stare decisis applies only to judicial precedents, i.e., to the ratio decidendi or actual ground of decision of a case cited as authority.” (Consumers Lobby Against Monopolies v. PUC (1979) 25 Cal.3d 891, 902; 9 Witkin, Cal. Procedure (3d ed. 1985), Appeal, § 783 at pp. 753-754.) “Appellate decisions have no authoritative value as to points not raised or considered by the court.” (Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 647.) Where a contention was not raised or discussed in a previous case, the previous case is not authority as to that contention. (General Motors Acceptance Corp. v. Kyle (1960) 54 Cal.2d 101, 114.) It wouldn’t matter if Sandoval was a case from our Supreme Court (which of course it is not), because not even the Auto Equity doctrine applies in such a situation. (Fairchild v. Adams (1959) 170 Cal.App.2d 10, 14.)
The question of whether Evidence Code section 502 requires a sua sponte instruction on the burden of proof in self-defense cases has never been considered in Sandoval or any other published opinion. Accordingly, it is properly before this Court as a question of first impression.
Evidence Code section 502 states:
The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party  raise a reasonable doubt concerning the existence or nonexistence of a fact or that he  establish the existence or nonexistence of a fact [2a] by a preponderance of the evidence, [2b] by clear and convincing proof, or [2c] by proof beyond a reasonable doubt.
(Emphasis and bracketed boldfaced numbers added.)
Thus, in section 502, our Legislature requires that a court shall go beyond mere standard instructions on the burden of proof on each issue (such as CALJIC No. 2.90). Our Legislature further requires that a court shall instruct the jury on the burden concerning the “existence or nonexistence of a fact.” The word “shall” is ordinarily considered to be a mandate or command. (E.g., Long Beach Police Officers Assn v. City of Long Beach (1988) 46 Cal.3d 736, 743; Schiro
v. Curci (1990) 220 Cal.App.3d 840, 843.)
The word “fact” in Evidence Code section 502 is defined in Evidence Code section 500, the “General Provisions” governing Division 5 of the Evidence Code. Section 500 states: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Emphasis added.)
Thus, section 502 requires that a court instruct the jury on the burden as to each fact “the existence or nonexistence of which is essential to the claim for relief or defense that [a party] is asserting.” Self-defense is obviously one such “fact”; if a person asserts that he acted in selfdefense, then the existence of self-defense is essential to the defense that he is asserting.
In short, in section 502, our Legislature has clearly and succinctly required trial courts to instruct the jury as to who has the burden of proof on self-defense, and what that burden is. Because our Legislature has required this instruction in a proper case, it must be given sua sponte, just like any other jury instruction required by statute. (Eg., People v. Vann (1974) 12 Cal.3d 220, 225 [reasonable doubt instruction under Penal Code § 1096]; People v. Reeder (1976) 65 Cal.App.3d 235, 241 [expert testimony instruction under Penal Code § 1127b]; People v. Williams (1960) 179 Cal.App.2d 487, 491 [flight instruction under Penal Code § 1127c].)
Evidence Code section 502, like any other statute, should be interpreted in accordance with its plain meaning. (Pacific Southwest Realt Co. v. County of Los Angeles (1991) 1 Cal.4th 155, 167; People v. Edwards (1991) 54 Cal.3d 787, 833.) And Evidence Code section 502, like any other statute, must not be presumed to be idle or superfluous, but must instead be construed to have meaning. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22.) In short, Evidence Code section 502 should be taken to mean what it says. A jury instruction shall be given on who has the burden as to a particular fact, and what that burden is.
Under section 502, a trial court has four instructional options, depending on the law governing a particular claim or defense. It must instruct that the party with the burden of proof either:
 Has the burden of raising a reasonable doubt concerning the existence or nonexistence of a fact essential to a claim for relief or defense asserted;
[2a] Has the burden by a preponderance of the evidence of establishing the existence or nonexistence of a fact essential to a claim for relief or defense asserted;
[2b] Has the burden by clear and convincing evidence of establishing the existence or nonexistence of a fact essential to a claim for relief or defense asserted; or
[2c] Has the burden of proof beyond a reasonable doubt of establishing the existence or nonexistence of a fact essential to a claim for relief or defense asserted.
(The boldfaced bracketed numbers here correspond to the boldfaced bracketed numbers in the quotation of the statute at the top of this section.)
In a case where the issue of self-defense has been raised by the evidence, such as this case, the correct instruction is obviously [2c]. The party with the burden of proof of wrongdoing–the prosecution (Evid. Code § 520; Penal Code § 1096)–also has the burden of proof beyond a reasonable doubt of establishing the nonexistence of self-defense, a fact essential to a defense asserted. (People v. Sanchez, supra; People v. Adrian, supra.)
In this case, the trial court did not fulfill its statutory obligation under Evidence Code section 502. As set forth above, the failure to give a statutory jury instruction required by our Legislature is error.
Under any standard, including the state-law standard of People v. Watson, supra, the error is obviously prejudicial in this case, for the reasons set forth in Part III(C) above. The minor nature of Ms. E’s injuries would have supported appellant’s defense; but with the burden of proof in the wrong place, the jury may have determined that the defense evidence was not strong enough to carry a burden of proving self-defense. Furthermore, the case was to a great extent a credibility contest, and a material error in a case that turns largely on credibility is prejudicial under any standard. (People v. Daggett, supra; People v. St. Andrew, supra.) And beyond that, an error that diminishes the prosecution’s burden of proof is one of the most serious errors in our entire system of justice, and it is “structural error” affecting the integrity of a trial as a whole. (Sullivan v. Louisiana, supra, 113 S.Ct. at pp. 2081-2082.)
The error in failing to give this instruction was particularly prejudicial in this case because of the prosecutor’s repeated–and wrong–statements that appellant had the burden of proving selfdefense. The prosecutor’s error was discussed ante, Part III(A); that discussion need not be repeated here. Suffice it to say that the failure to give the statutorily required instruction was especially prejudicial in a case where the only burden of proof the jury heard on the issue of selfdefense was the wrong one, and it was extremely harmful to the defense.
In addition, the error is a constitutional one implicating the Due Process Clause. The deprivation of a right guaranteed by state law (such as Evidence Code section 502), at least without a compelling reason or a hearing, is itself a due process violation. (Wilson v. Superior Court (1978) 21 Cal.3d 816, 821; Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175].) So is an error in the allocation of the burden of proof. (Sullivan v. Louisiana, supra.) A due process violation would be governed by the constitutional standard of Chapman v. California, supra, 386 U.S. at pp. 23-24, in which no harmless error could be found unless the State established that there was no reasonable possibility the error affected the verdict. That would be impossible, for all of the reasons in this brief, and most particularly because an error in misallocating the burden of proof goes to the fundamental integrity of a trial and can never be harmless. (Sullivan v. Louisiana, supra, 113 S.Ct. at pp. 2081-2082.)
Under whatever standard, the error in failing to give the instruction required by Evidence Code section 502 is prejudicial, and the judgment should be reversed.