Brief Bank # B-690
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, ) Case No. A072534
v. ) Solano County
) Case No. C38139
STEVEN B. S., )
Defendant and Appellant. )
APPELLANT’S OPENING BRIEF
STATEMENT OF APPEALABILITY
This appeal is from a judgment entered upon a conviction by jury trial, and as such the appeal is authorized by Penal Code section 1237.
STATEMENT OF THE CASE
Pursuant to the August 14, 1995, consolidation of two informations for jury trial, under case number C38139, appellant Steven B. S. was charged in six counts as follows: count 1 – murder of M. Z. in violation of section 187, subdivision (a); count 2 – forcible rape in concert of M. Z. in violation of section 264.1; count 3 ‑ forcible rape of M. Z. in violation of section 261(2); count 4 ‑forcible lewd act with child committed upon M. Z. in violation of
BY THE MANNER IN WHICH THE COURT DELIVERED CALJIC NO. 3.16, THE COURT IMPERMISSIBLY IN EFFECT DIRECTED THE JURY TO FIND THAT MR. S. WAS A PERPETRATOR OF THE CRIMES IN COUNTS 1‑4
A. The Nature Of The Error
The trial court instructed the jury pursuant to CALJIC No. 3.16 as follows: “If the crime of murder, rape in concert, rape and lewd acts with child under 14 years with force was committed by anyone, the witness Lalo [F.] was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration.” (CT p. 167; RT p. 524.)
The jury had been informed through uncontradicted testimony that Lalo F. had already been judicially adjudicated guilty of those crimes. (RT p. 301.)
Thus, through the combination of the fact of Mr. F.’s established guilt of those crimes and through instruction of the jury pursuant to unmodified CALJIC No. 3.16, the jury was in effect told by the court there was at least one other person who was guilty of those crimes. The evidence suggested only one other person who might have fit that definition, Steven S., and in effect the court therefore instructed the jury that Mr. S. was guilty as to counts 1-4. Moreover, this de facto directed verdict included the special circumstances which accompanied count 1, because those crimes charged in counts 2-4 constituted the special circumstances.
This problem was described in People v. Hill (1967) 66 Cal.2d 536, 555, as follows: “However, where a codefendant has made a judicial confession[] as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant’s foregone guilt to the other defendants. [Citation.] It is not error even to forego the giving of accomplice instructions where the giving of them would unfairly prejudice a codefendant in the eyes of the jury. [Citation.] In the instant case it was not error to leave to the jury the determination of Madorid’s role as an accomplice and thus avoid imputations of the guilt of Hill and Saunders which might have flowed from the court’s direction that the confessing Madorid was their accomplice as a matter of law.” (See also People v. Richardson (1960) 182 Cal.App.2d 620, 623, where this problem was noted by Division Two of this court.)
“It has long been recognized that a trial judge ‘may not direct a verdict of guilty no matter how conclusive the evidence.'” (Brotherhood of Carpenters v. United States (1947) 330 U.S. 395, 408 [91 L.Ed. 973, 985, 67 S.Ct. 775]; accord United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 572‑573 [51 L.Ed.2d 642, 651‑652, 97 S.Ct. 1349]; [other citations omitted].) Only recently, a plurality of the Supreme Court reaffirmed this principle, observing that “[the] Court consistently has held that ‘a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict … regardless of how overwhelmingly the evidence may point in that direction.'” (Connecticut v. Johnson (1983) 460 U.S. 73, 84 [74 L.Ed.2d 823, 832], quoting, Martin Linen Supply, supra, 430 U.S. at pp. 572‑573 [51 L.Ed.2d at p. 652].)
“The prohibition against directed verdicts ‘includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.’ (United States v. Hayward (D.C. Cir. 1969) 420 F.2d 142, 144.) As one panel of the Fifth Circuit has stated, ‘[No] fact, not even an undisputed fact, may be determined by the judge.’ (Roe v. United States (5th Cir. 1961) 287 F.2d 435, 440, cert. den. (1961) 368 U.S 824 [7 L.Ed.2d 29, 82 S.Ct. 43]; accord United States v. Musgrave (5th Cir. 1971) 444 F.2d 755, 762.)” (People v. Figueroa (1986) 41 Cal.3d 714, 724.)
In our case, the impact of the court’s instruction pursuant to CALJIC No. 3.16 in light of the alignment of the primary participants in this trial was to leave the jury with the following facts: (1) Lalo F. was guilty of the crimes charged against Mr. S. in counts 1-4; (2) Mr. F. was an accomplice in those crimes; and (3) therefore, at least one other person is guilty of those crimes. Since Mr. S. was the only one implicated in those crimes other than Mr. F., this was in effect a directed verdict in that the combined message was clear: the jury must find Mr. S. guilty.
Thus, the error is clear, and the error stands unrectified by any other instructions given to the jury or findings made by the jury.
B. The Remedy
The standard of review of instructional error has undergone considerable evolution in recent years, and subtly different analyses have been applied to slightly different forms of instructional error. Mr. S. submits that none of those nice distinctions need be drawn in this case, however, because the nature of this issue leads inextricably to the remedy that the conviction is reversible per se.
Highly instructive on this question is the recent California Supreme Court case of People v. Cummings (1993) 4 Cal.4th 1233. While instructional error which omits an element of an offense may be subject to harmless error analysis under the principles of Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460], the Supreme Court in Cummings drew a clear distinction between instructions which omit one element of an offense and those which omit substantially all elements of the offense from the jury’s consideration, holding the latter situation requires reversal per se without engaging in harmless error analysis. (Cummings, Supra, at p. 1315.)
A directed verdict by definition has at least as great an impact as withdrawing substantially all of the elements of the offense from the jury’s consideration. Thus, notwithstanding the recent proliferation of differing analyses of harmless error depending on the nature of the error, this case stands in that clear, separate category of error which is reversible per se. In other words, although Mr. S.’s jury was fully instructed on the elements of the offenses with which he was charged, that point is of no moment because the court in effect instructed the jury that Mr. S. was perpetrator of the crimes charged in counts 1‑4.
Thus, although respondent may try to characterize this issue as instructional error subject to harmless error analysis, as in People v. Young, supra, in fact the jury instructions led to the problem but the problem is larger than mere instructional error ‑‑ the practical effect here was to direct a verdict in favor of the prosecution. When a judge rather than a jury has decided the outcome of a criminal jury trial ‑‑ as here, by implicitly directing the jury to find that Mr. S. was the perpetrator ‑‑ the conviction cannot stand consistent with the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process of law. (Also see People v. Figueroa, supra, 41 Cal.3d 714.)
Thus, the error is reversible per se, and the judgment of conviction against Mr. S. in counts 1‑4 and the special circumstances accompanying count 1 must be reversed.
 All references in this brief to statutes are to the Penal Code unless otherwise indicated.
 “The record does not reflect any objection by defense counsel to this instruction as given. Since the apparent absence of objection is not accompanied by a statement of tactical purpose by defense counsel in acceding to the instruction in this form, the issue advanced here is cognizable on appeal. (Section 1259; People v. Graham (1969) 71 Cal.2d 303.) Moreover, courts are on notice that great care must be taken in the delivery of accomplice cautionary instructions, and Mr. S. submits the court was obligated sua sponte to avoid this problem in light of the long-extant People v. Hill (p. 15) and the analogous sua sponte obligation to tailor CALJIC No. 3.18 when accomplice testimony is in part favorable to a defendant. (See People v. Flanders (1979) 89 Cal.App.3d 634, 640, and People v. Terry (1970) 2 Cal.3d 361, 398-399.)
 The jury had been instructed as to the definitions of principals and aiders and abettors pursuant to CALJIC Nos. 3.00, 3.01, 3.02. (CT pp. 162-164.) The court had failed, however, to define the term “accomplice” pursuant to CALJIC No. 3.10. Given the context of the accomplice cautionary instructions given, CALJIC Nos. 3.11, 3.12, 3.16, 3.18 (CT pp. 165‑168), together with the general meaning of “accomplice,” the jury likely assumed an accomplice to be the same thing as an aider and abettor.
 Mr. F. made a judicial confession and the jury was told he had been convicted.
 This court perceived a similar, but less serious, problem in People v. Young (1978) 85 Cal.App.3d 594, where a codefendant pled guilty after the trial started and the trial court informed the jury, over objection of appellant whose trial by that jury was continuing, of the fact of the plea. This court found error, characterizing this process as being tantamount to inadmissible hearsay that the pleading codefendant had participated in the crime, but found the error harmless beyond a reasonable doubt. (Id., at p. 602.) Our case is worse, however, because the jury heard directly from the party whose guilt had been adjudicated, which was proper because he was subject to cross‑examination, but then the jury was told that at least one other party was guilty: if the crime was committed by anyone ‑ and surely it was committed by Mr. F. ‑ Mr. F. was an accomplice; therefore, there must have been one other principal involved.