Brief Bank # B-695a (Re: F 4.020 n1 [Third Party Culpability: Sua Sponte Duty].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
APPELLANT 1 and
Defendants and Appellants.
APPELLANT’S OPENING BRIEF
On Appeal From the Judgement of the Superior Court
of the State of California
In and For the County of Kern
HONORABLE CLARENCE WESTRA, JR., JUDGE
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
Attorney for Appellant 2
By Appointment of Court of Appeal
Under the Central California Appellate Project
C. The Trial Court Should Have Specifically Instructed on the Defendants’ Third Party Defense
When it comes to jury instructions, “[a]t a minimum, it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case …” (People v. Iverson (1972) 26 Cal.App.3d 598, 604.) Moreover, the trial court has “an affirmative duty to give, sua sponte, a correctly phrased instruction on defendant’s theory.” (People v. Stewart (1976) 16 Cal.3d 133, 140.)
In the present case the defendant’s theory of the case was that Mr. G committed the killing. However, the court failed to give to instructions which were critical to this defense.
1. Failure to Relate Third Party Defense to Prosecution’s Burden of Proof Beyond a Reasonable Doubt.
The court failed to relate the third party defense to the burden of proof. It is well established that the defendant need not prove the third party guilty but only need raise a reasonable doubt as to his own guilt based on the third party evidence. (People v. Edelbacher (89) 47 Cal.3d 983, 1017; People v. Hall (86) 41 Cal.3d 826, 833].) This was error.
As to many affirmative defenses CALJIC includes a statement of the burden of proof. (E.g., identity (CALJIC 2.91); alibi (CALJIC 4.50); unconsciousness (CALJIC 4.30); and self-defense (CALJIC 5.15).) These instructions comply with the mandate of Evidence Code § 502 which requires a burden of proof instruction “on each issue and as to whether that burden requires that a party raise a reasonable doubt ….” (Emphasis added.) (See People v. Simon (95) 9 Cal.4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden].) Accordingly, a specific burden instruction should also be included in a pinpoint instruction which relates a theory of the defense to an element of the charge. Nor is CALJIC 2.90 adequate to inform the jury as to the burden applicable to affirmative defenses. (See People v. Adrian (82) 135 Cal.App.3d 335, 342 [185 CR 506].) All CALJIC 2.90 does is tell the jury that a reasonable doubt as to “guilt” warrants an acquittal. (See Adrian 135 Cal.App.3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to a defense theory especially one that points the finger at a third party, the natural inclination of the juror is to decide whether or not the third party is guilty rather than whether the third party evidence raises a reasonable doubt as to the defendant’s guilt.
Hence, the failure to relate the theory of the defense to the burden of proof prejudicially abridged Appellant 2’s federal constitutional rights (6th and 14th amendments) to trial by jury and due process by undermining and misleading the jury as to the prosecution’s burden and the reasonable doubt standard. (See Sullivan v. Louisiana (1993) 503 US 275.)
Footnote 1: This error was exacerbated by the improper reference in CALJIC 2.01 to a finding of the “defendant’s innocence.” (CT 508-9.) This instruction improperly suggested that the jury must decide between “guilt” or “innocence” thus implicating the defendant’s state (Art. I, § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, “Not Guilty and Innocent — The Problem Children Of Reasonable Doubt“, 4 Crim. Justice J. 349 (1981).)