Brief Bank # B-662 (Re: PG VI(A)(3) [Duty To Object — Invited Error: Joining D.A.’s Request For Instruction].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, County of Placer
Defendant and Appellant.
APPELLANT’S REPLY BRIEF
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, ENTERED NOVEMBER 9, 1992.
HONORABLE JAMES L. ROEDER, JUDGE.
State Bar No. 99613
3145 Geary Blvd., No. 604
San Francisco, CA 94118
Attorney for Appellant
By appointment of the
Court of Appeal under the
Independent Case System.
B. It Was Not Invited Error.
Respondent contends that pursuant to People v. Wickersham (1982) 32 Cal.3d 307, 330, this was invited error because both the prosecution and the defense requested the instruction. (RB 24.) However, respondent offers no tactical reason for appellant to have requested the instruction without limiting it to the other, more serious charges for which motive is not an element.
“The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. However, because the trial court is charged with instructing the jury correctly, it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” (Id., at p. 330, footnote omitted.)
“This rule is necessary to ensure that an accused’s right to complete instructions is fully protected. ‘As the court forcefully stated in People v. Keelin (1955) 136 Cal.App.2d 860, 874, “Nevertheless, error is nonetheless error and is no less operative on deliberations of the jury because the erroneous instruction may have been requested by counsel for the defense. After all, it is the life and liberty of the defendant in a case such as this that is at hazard in the trial and there is a continuing duty upon the part of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause.” Accordingly, if defense counsel suggests accedes to the erroneous instruction because of neglect or mistake we do not find “invited error”; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.’ ([People v. Graham [(1969) 71 Cal.2d 303], at p. 319.)” (People v. Wickersham, supra, 32 Cal.3d 307, 331-332, emphasis added.)
The Supreme Court recently affirmed this holding: “For the [invited error] doctrine to apply, it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” (People v. Duncan (1991) 53 Cal.3d 955, 969, internal citations and quotation marks omitted.)
Because appellant did not express a tactical reason for failing to limit the instruction that motive is not an element of the offense to the offenses in which motive is not an element, the invited error doctrine does not bar review of the instruction’s erroneous prejudicial effect on the section 647.6 annoying or molesting convictions appellant suffered.
Because the instruction did apply to the other, more serious charged offenses, it appears that counsel simply failed to notice that the instruction would prejudice the defense of the section 647.6 charges by withdrawing an element of the offense from the jury’s consideration. Thus, it appears that counsel acted out of ignorance or mistake rather than a tactical reason.
Indeed, application of the invited error doctrine here is particularly inappropriate because defense counsels mistake can be traced directly to the trial court’s denial of appellant’s motion to sever the charges. Had the trial court granted the motion to sever, defense counsel would not have focused on the felony charges to the detriment of the misdemeanor charges, and would not have made this mistake. Since the trial court had a “continuing duty upon the part of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause” (People v. Wickersham, supra, 32 Cal.3d 307, 332 [internal quotations and citations omitted]), and the trial court denied the motion to sever, the trial court should have realized that the duty to assure proper instructions would encompass ensuring that the instructions on the felony charges did not prejudice appellant’s defense on the misdemeanor charges.
Because there was no tactical reason for appellant’s erroneous failure to notice that the instruction would prejudice the defense against the misdemeanor charges, the invited error doctrine does not bar appellant from seeking review on grounds that his defense on the misdemeanor charges was prejudiced by the trial court’s failure to satisfy its obligation to assure that the jury was properly instructed. (People v. Wickersham, supra, 32 Cal.3d 307, 330-332; People v. Duncan, supra, 53 Cal.3d 955, 969.)
In sum, the inclusion of the instruction was simply error, not invited error which would bar appellant from challenging the error on appeal. (People v. De Leon (1992) 10 Cal.App.4th 815, 823-824.)
C. Appellant’s Two Misdemeanor Annoying Or Molesting Convictions Should Be Reversed Because The Trial Court Violated Appellant’s Fourteenth Amendment Right To Due Process By Giving Conflicting Instructions Regarding The Necessity Of Finding Motive As An Element Of The Offenses.
1. The Green\Guiton rule applies under which appellant’s misdemeanor convictions should be reversed because the case was submitted to the jury to decide on either a legally incorrect theory — that motive was not an element that the prosecution must prove beyond a reasonable doubt — or a legally correct theory — that motive was an element that the prosecution must prove beyond a reasonable doubt and the jury did not necessarily find the element under other instructions.
As discussed in appellant’s opening brief, because the case was submitted to the jury to decide on either a legally incorrect theory — that motive was not an element that the prosecution must prove beyond a reasonable doubt — or a legally correct theory — that motive was an element that the prosecution must prove beyond a reasonable doubt –, a particular analysis applies to determine whether the error was harmless.
Thus, unless the reviewing court can absolutely determine from the record that the jury definitely reached the general verdicts of guilt by finding the element of motive beyond a reasonable doubt, appellant’s convictions must be reversed.