Brief Bank # B-671 (Re: F 8.31 n3 Implied Malice Theory Must Be Limited To The Perpetrator].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
(Los Angeles County
Defendant and Appellant.
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Honorable Rose Hom, Judge Presiding
APPELLANT’S OPENING BRIEF
JANET J. GRAY
ATTORNEY AT LAW
STATE BAR NO. 99723
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
APPELLANT’S DUE PROCESS RIGHTS WERE ABRIDGED BY THE
COURT’S INSTRUCTION TO THE JURY WITH UNMODIFIED
CALJIC 8.31 REGARDING IMPLIED MALICE
The jury was instructed, in relevant part, as follows:
The persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed and equally guilty thereof include:
1. Those who directly and actively commit the act constituting the crime or;
2. Those who aid and abet the commission of the crime.
A person aids and abets the commission of a crime when the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advise, aids promotes, encourages or instigates the commission of the crime.
A person who aids and abets the commission of a crime need not be personally present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. (RT 614.)
Murder of the second-degree is also the unlawful killing of a human being when, one, the killing resulted from an intentional act, two, the natural consequences of the act are dangerous to human life, and, three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended to kill a human being. (RT 619, 620.)
The court committed prejudicial error because it did not specify that CALJIC 8.31, which essentially invites a jury to imply malice based on a finding only that the killing resulted from an intentional act, only applied to the actual perpetrator of the crime. Giving CALJIC 8.31 in its unmodified form allowed the jury to find appellant guilty based on participation in an intentional act without the requisite aiding and abetting intent.
B. The Court Erred By Giving Inaccurate Instructions Regarding The Use Of An Implied Malice Theory
“It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [citation.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) “[A] court may give only such instruction as are correct statements of the law. [citation.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1275.) When the court undertakes to instruct the jury on legal principles a “‘proper consideration of the evidence’ (citation) require[s] that the instructions given be accurate.” (People v. Malone (1988) 47 Cal.3d 1, 49.)
In the present case the instructions concerning implied malice should have been confined to whomever the jury found to be the actual perpetrator of the crime. Under the theories of liability in this case, liability could attach to appellant if he was found to be the actual perpetrator, or that he aided and abetted the crime. As explained above, an aider and abettor is one who acts “with knowledge of the criminal purpose of the perpetrator and with intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman, supra, 35 Cal.3d 547, 560.) Thus there is a requirement that an aider and abettor intend to facilitate a criminal act. Implied malice on the other hand is a different legal creature. As the Supreme Court has recently written:
… [A] murder committed with implied malice requires that the prosecution demonstrate the defendant in fact acted with malice. [Citations.] The concept of implied malice has both a physical and a mental component. [Citations.] The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ [Citations.] The mental component, as set forth earlier, involves an act ‘deliberately performed by a person who knows that his conduct endangers the life of another who acts with conscious disregard for life…’ [Citations.] Whether a defendant’s underlying acts are inherently dangerous in the abstract is not dispositive in the jury’s determination as to whether a defendant acted with malice. (People v. Nieto-Benitez (1992) 4 Cal.4th 91.)
Because the jury was not instructed with CALJIC 3.02 and rejected the prosecution’s theory that the killing was premeditated and deliberate, the jury most likely erroneously relied on CALJIC 8.31 to convict appellant of second degree murder because it was not confined to the actual perpetrator of the killing. The unmodified implied malice instruction permits the jury to find the requisite intent for a second degree murder where there is an intentional act where the natural consequences of which are dangerous to life. As instructed the jury could have easily assumed that all they had to find was that appellant had committed an intentional act that under the circumstances was dangerous to life. Thus even appellant’s knocking on the victim’s door, under the circumstances of this case, could have been the basis for finding that the natural consequences of bringing the victim to the door was dangerous to life.
However, aiding and abetting liability cannot be based merely on the performance of an intentional act that is dangerous to human life, but rather the aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with the intent of facilitating the commission of the offense. Thus there must be a criminal intent to facilitate a crime, and not merely perform an intentional act. In other words, while causation is one prerequisite to vicarious liability there can be no such liability without the requisite mens rea which encompasses an intent to participate in a criminal enterprise with another person. Hence the defendant who is being subjected to vicarious liability must have knowledge of and an intent to facilitate the criminal act of another. (People v. Slaughter (1984) 35 Cal.3d 629, 659-660.)
In other areas of legal instruction where adverse inferences can be drawn from certain acts or omissions of the defendant, the courts have found the need to delineate to which defendant the instruction applies. (See, e.g. People v. Pitts (1990) 223 Cal.App.3d 606, 877- 79.) In Pitts the evidence did not support the inference that all of the defendants had participated in flight behavior suggesting consciousness of guilt. The Pitts court held it was error for the court to not have expressly limited the instruction’s applicability to the defendant whose behavior could be interpreted as flight. Because the jury was not informed of the instruction’s limitation they could have inferred from the unmodified instruction that other evidence susceptible to being perceived as flight as unjustifiably evidencing a consciousness of guilt. (Id. at p. 879.)
As will be discussed at length below, the error abridged appellant’s due process rights and right to have the jury decide all factual questions requiring reversal. Notwithstanding the standard applied, reversal is nevertheless warranted, as likewise is discussed at length below.
[END OF BRIEF]