Brief Bank # B-702 (Re: F 8.67 n1 Improper Instruction That Second Degree Attempted Murder Is A Lesser-Included Of First Degree Attempted Murder].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, ) No. A000000
) ) Lake County
JOHN DOE, ) Superior Court
) No. CR0000
Defendant and Appellant. )
Appeal from the Judgment of the Lake County Superior Court
Honorable Robert L. Crone, Judge
APPELLANT’S OPENING BRIEF
Attorney at Law
P.O. Box 2190
Nevada City, CA 95959
Telephone: (916) 265-3696
State Bar No. 88495
Appointed by the Court of
Appeal, under the First
Independent Case System
Attorney for Appellant
IN COUNT I, THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY
THAT ATTEMPTED MURDER WAS A LESSER INCLUDED OFFENSE OF
ATTEMPTED PREMEDITATED MURDER.
A. Nature Of The Error
Count I charged appellant with the attempted murder of Ms. G (§§ 664, subd. (a), 187, subd. (a)); in a separate allegation, the information charged that the offense was committed with premeditation (§ 664, subd. (a)). (CT 1.) The trial court instructed the jury that “attempted unpremeditated murder” was a lesser offense included within “attempted premeditated murder” and directed deliberations to proceed accordingly. (RT 889-892; CT 98-100 [CALJIC No. 17.12, as modified by the court].) But in a decision filed more than a month before the instant trial began, the Supreme Court held that the lesser offense analysis is inappropriate in this context. The premeditation language in section 664 establishes a penalty provision that increases the punishment if the trier of fact, after finding the defendant guilty of the crime of attempted murder, also finds that the murder attempted was willful, deliberate, and premeditated.” (P-e-op-Le v. Bright (1996) 12 Cal.App.4th 652, 665-666, emphasis added, 668.) The court’s instructions were therefore erroneous and, as appellant will show, require reversal with respect to the premeditation allegation in Count I.
In following up the definition of attempted murder (CALJIC No. 8.66; RT 879-880; CT 86) with that of premeditation, the court correctly instructed the jury according to CALJIC No. 8.67, beginning as follows:
It is also alleged in Counts I and IV of the Information, that the crime attempted was willful, deliberate and premeditated murder. If you find the Defendant guilty of attempt to commit murder, you must determine whether this allegation is true or not. (RT 880, emphasis added, quotation marks omitted; CT 41.)
Had the court stopped there, the instructions would have been both complete and accurate. As given by the trial court in Bright, supra, CALJIC Nos. 8.66 and 8.67 “clearly defined an attempt to commit murder as a single offense rather than one of degrees, and distinguished the premeditation allegation as separate from, rather than a separate degree of, the offense of attempted murder.” (12 Cal.4th a t 670-671.) But that is not what occurred here; instead, the court even more clearly defined attempted unpremeditated murder as a lesser offense included within attempted premeditated murder. In fact, CALJIC No. 8.67 was an anomaly; throughout the remaining instructions, the court specifically referred to the charged offense of attempted premeditated murder, with attempted unpremeditated murder as a lesser included offense. (RT 53, CT 864-865 (CALJIC No. 2.02]; RT 72, CT 872-873 [CALJIC No. 3.31]; RT 73, CT 873 [CALJIC No. 3.31.5]; RT 74, CT 874 [CALJIC No. 3.32]; RT 75-76, CT 876-877 [CALJIC No. 4.21.1]; RT 98-100, CT 889-802 [CALJIC No. 17.12]; RT 101, CT 893 [CALJIC No. 17.19]; RT 102, CT 894 [CAIJIC No. 17.20].)
One of these instructions, CALJIC No. 17.12, dealt with the jury’s role in connection with lesser and greater offenses. As pertinent to Count I, the court’s modified instruction was as follows:
If you are not satisfied beyond a reasonable doubt that the Defendant is guilty of the crimes for which he is accused in Count I, attempted premeditated murder, and you unanimously so find, you may convict him of any lessor [sic] crime to that charge provided you are satisfied beyond a reasonable doubt that he is guilty of that crime.
You will be provided with guilty and not guilty verdict forms for the crime charged in Count I, attempted premeditated murder upon Ms. G [sic] and lessor [sic] crimes thereto. The crimes of attempted unpremeditated murder, attempted voluntary manslaughter and simple assault are lessor [sic] crimes to that of attempted premeditated murder.
. . . . . . . . . . . . . . . . . . .
Thus, you are to determine whether the Defendant is guilty or not guilty of the crime charged in Counts I, II, III, IV and V or of any lessor [sic] crime. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach tentative conclusions on all charges and lessor crimes before reaching any final verdicts.
Before you return any final or formal verdicts for the crimes charged in Counts, I, II, III, IV and V, you must be guided by the following: One,, in Counts, I, II, III, IV and V, if you unanimously find the Defendant guilty of the crime for which he is accused, your foreperson should sign and date the corresponding verdict form for the counts [sic] which is being considered. All other verdict forms as to that count which is being considered must be left unsigned.
In Counts, I, II, III, IV and V, if you are unable to reach a unanimous verdict as to the crime for which the Defendant is accused in the count which is being considered, do not sign any verdict form as to that count and report your disagreement to the Court.
Three, in Counts, I, II, III, IV or V, the Court cannot accept a guilty verdict on a lessor crime unless the jury also unanimously finds and, returns a signed verdict form of not guilty as to the greater crime for the count which is being considered.
Four, in Counts, I, II, III, IV and V, if you find the Defendant not guilty of the crime of which he is charged in the count which is being considered, but cannot reach a unanimous agreement as to a lessor [sic] crime for that count, your foreperson should sign and date the not guilty verdict form as to the greater crime and report your disagreement as to the lessor [sic.] crime for that count to the Court.
. . . . . . . . . . . . . . . . . . .
(RT 889-892, quotation marks omitted; CT 98-100. )
The trial court’s erroneous approach to the premeditation allegation and finding apparently stemmed from the prosecutor’s comment during an instructional conference: “The way I viewed it is an attempted premeditated murder. And — is the primary charge. [¶] Then there’s lessers to that, just plain attempted murder, non-premeditated . . . . “ (RT 445.) Later on in the discussion of premeditation, defense counsel pointed out, consistent with the Supreme Court’s analysis in Bright, supra, that the statutory provision does not create offenses of greater and lesser degree:
MS. CONARD: It’s not really decree [sic].
MR. COLLINS (prosecutor]: It’s not first, second or third decree [sic], this classic term.
THE COURT: But there’s language, both premeditated and deliberate.
MS. CONARD: Right.
. . . . . . . . . . . . . . . . . . .
MR. COLLINS: At least in the back of my mind I was going to do a general murder case and then find whether it’s willful, premeditated or just . . .
MS. CONARD: Malice aforethought.
MR. COLLINS: Yes.
I haven’t worked out the language on that; I haven’t done the verdict forms yet.
Or simply done with malice aforethought without premeditation. (RT 448-449.)
Unfortunately, in working out the language of the instructions and verdict forms, the prosecutor and court apparently returned to the erroneous approach originally suggested by the prosecutor where attempted premeditated murder” was “the primary charge,” with a “lesser” of “just plain attempted murder, non-premeditated.” Thus, the instructions repeatedly incorporated this concept, as discussed above, and the jury received separate verdict forms for premeditated and unpremeditated attempted murder. (See CT 34-35 [“GUILTY/ COUNT 1/ ATTEMPTED MURDER/ PREMEDITATED”]; compare CT 40-42 (“NOT GUILTY/ COUNT 4/ ATTEMPTED MURDER/ PREMEDITATED” and “GUILTY/ COUNT 4/ ATTEMPTED MURDER/ PREMEDITATED”].)
Appellant did not formally object to the erroneous instructions (RT .758-760, 859), but this court may and should review them. As noted above, defense counsel effectively pointed out that attempted premeditated murder was not a greater degree of attempted unpremeditated murder. (RT 448.) And in any event, “[s]ince no conscious, deliberate, or tactical reason was stated for concurring in the instructions, there was no invited error or waiver of the instructional error claim. [Citations.]” (People v. Collins (1992) 10 Cal.App.4th 690, 694-695; § 1259.)
In identifying the premeditation component of section 664, subdivision (a) as a “penalty provision prescribing an increased sentence” (People v. Bright, supra, 12 Cal. 4th at 669), the Supreme Court discussed its effect on the jury’s deliberations and findings–an effect absent from the trial below:
In contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. [Citations.] The jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged. (Id. at 661, emphasis added.)
In Briqht, the jury–already instructed according to CALJIC Nos. 8.66 and 8.67–requested and received further instruction as to the relationship between the premeditation allegation and the substantive offense.
During its deliberations, the jury submitted a note to the trial court requesting clarification as to whether they could return a verdict on the charge of attempted murder even if they were unable to reach a unanimous verdict on the allegation of premeditation. The trial court initially instructed the jury that it must unanimously agree on the allegation of premeditation before rendering a verdict on the charge of attempted murder. The following day, however, after the prosecutor brought to the court’s attention decisional authority inconsistent with the court’s earlier response to the jury’s inquiry, the court directed the jury to disregard its earlier instruction and told them that “you may make a finding of guilty or not guilty as to the attempted murder charge and consider separately whether you can resolve the question of premeditation if that resolution is called for.” at 658, emphasis added.)
The Bright court’s initial attempt at clarification was, of course, substantially the same as the trial court’s modification of CALJIC No. 17.12 in the instant case. Both were inaccurate statements of the law. But while the trial court in Bright withdrew the erroneous explanation and replaced it with an essentially correct one, the instruction in this case remained erroneous, to appellant’s prejudice.
Pursuant to section 664, subdivision (a), CALJIC Nos. 8.66 and 8.67, and Bright the jury’s task with respect to Count I should have been straightforward: First, determine whether appellant was guilty of the offense of attempted murder. Then–only if such a finding is made–determine whether that offense was committed with premeditation. If jurors were convinced of the appellant’s guilt of attempted murder, but split on premeditation, they could properly return a verdict on the substantive offense itself without being concerned that appellant would have gone unpunished on that count. Indeed, that is precisely what occurred in Bright: Following the trial court’s corrected instruction, the jury returned a verdict of guilty in the attempted murder count but was unable to make a finding on the premeditation allegation. The trial court declared a mistrial as to that allegation alone, and it was set for retrial. (12 Cal.4th at 658.) [Footnote 1] The Supreme Court approved that result. at 662, 669.)
Having learned that attempted murder was a lesser offense included within attempted premeditated murder, the jury’s task was equally straightforward–albeit materially inaccurate. Paraphrasing the first three guidelines furnished by the court (.at RT 891-892, CT 54): Primarily, determine whether appellant was guilty of attempted premeditated murder. If unable to reach a unanimous verdict on that offense, report the disagreement to the court. Do not reach a verdict of attempted unpremeditated murder without unanimously agreeing there was no premeditation. This approach is virtually the opposite of the correct one. While it is proper in the context of a true lesser included offense and a greater offense (People v. Bright, supra, 12 Cal.4th at 661), it is seriously prejudicial to a criminal defendant in a case such as this. Thus, a court may “properly . . . restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater offense . . . . 11 (People v. Kurt (1988) 46 Cal. 3d 322, 324, italics removed. ) But the court may not, consistent with California law, restrict a jury from returning a verdict on a charged offense before a not true finding on a penalty provision.
Two hypothetical trials may demonstrate the extent of the error. In each case, the jury is convinced of the defendant’s guilt of attempted murder, but there are one or more holdout jurors concerned about whether premeditation was established beyond a reasonable doubt. One jury is instructed pursuant to CALJIC Nos. 8.66 and 8.67; that is, “if” they find the defendant guilty of attempted murder, they must determine premeditation, and the verdict forms present the latter option as just that–an optional finding of true or false to be made in addition to the guilty verdict. (See, e.g.., CT 34-35 [verdict form in Count 1, with alternate check-boxes for great bodily injury and firearm use enhancement findings].) The second jury is instructed as occurred in the instant case; that is, there could be no guilty verdict of attempted unpremeditated murder without a unanimous acquittal of attempted premeditated murder.
Under the first scenario–essentially, the Bright case–there is no particular pressure on holdout jurors to change their minds simply to ensure conviction. The jury may return a guilty verdict on attempted murder and inform the court of the split. Regardless of the outcome, the defendant is guilty of a serious crime as charged–and as the jurors all agree.
But based on an erroneous lesser/greater offense instruction, there is a great deal of unnecessary pressure on holdout jurors with respect to premeditation. It is true that CALJIC No. 17.12 permits the jury to report a split on the greater offense. The reality is, however, that the court will accept no attempted murder guilty verdict unless and until jury is unanimous in finding or rejecting premeditation. Thus, the jurors may all agree that the defendant is guilty of a serious crime–attempted murder–as charged. But a mistrial is threatened unless unanimity is reached on the penalty provision. Under the circumstances, there are obvious “‘dangers to the defendant.’” (People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7.) To paraphrase the Supreme Court’s explanation of a problem with a mandatory acquittal-first rule, “‘[i]f the jury is heavily for conviction on [attempted premeditated murder], dissenters favoring [attempted murder without premeditation] may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge.’ [Citation.]” (Id. at 1077-1078, fn. 7.) [Footnote 2]
B. Impact on Constitutional Rights
The instructional error here involves more than a misapplication of included offense principles. By turning the entire approach of the factfinder on its head, the error denied appellant his right to a fundamentally fair trial, in violation of his state and federal constitutional rights to trial by jury and due process of law. (Cal. Const., art. I, §§ 15, 16; U.S. Const., Amends. 6, 14.) “[T]he Due Process Clause . . . speak[s] to the balance of forces between the accused and his accuser. [Citation.]” (Wardius v. Oregon (1973) 412 U.S. 470, 474 (37 L.Ed.2d 82, 87, 93 S.Ct. 2208], fn. omitted. In connection with Count I, the “balance of forces” were shifted toward the premeditation finding by virtue of the trial court’s error. Effectively, the “tail” of the penalty provision was able to wag the “dog” of the substantive offense, in direct contravention of the procedure contemplated by the state Legislature and courts. It is as if the jury were instructed that it could not return a verdict of attempted murder without unanimous agreement on the great bodily injury and firearm use enhancements, or as if a capital case jury could not return a verdict of guilt without unanimous agreement with respect to the penalty.
The trial court’s erroneous approach to attempted murder instructions thus diminishes the reliability of the determination as to the penalty provision, effectively “increas[ing] the risk that the defendant may be convicted [with a premeditation finding] notwithstanding the obligation to [find the allegation not true if it] is not proven beyond a reasonable doubt.” (People v. Geiger (1984) 35 Cal.3d 510, 520 [explaining state due process requirement of lesser offense instructions]; re equivalent federal analysis, see Beck v. Alabama (1980) 447 U.S. 625, 638 [65 L.Ed.2d 392, 403, 100 S.Ct. 2382], re capital cases; Turner v. Marshall (9th Cir. 1995) 63 F-3d 807, 818-819 [federal courts split re noncapital cases].)
Appellant acknowledges that two recent California Supreme Court decisions, read together, suggest that even substantial instructional error involving a “penalty provision” such as premeditation under section 664, subdivision (a) is to be evaluated under the state standard for harmless error; i.e., the error is deemed prejudicial only where it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (People v. Wims (1995) 10 Cal.4th 293; People v. Bright, supra, 12 Cal.4th 652; People v. Watson (1956) 46 Cal.2d 818, 836.) Wims concluded that the trial court’s failure to instruct the jury as to the elements of a section 12022, subdivision (b) (weapon use) enhancement is subject to the test for prejudice. (10 Cal.4th at 298.) In determining that no federal constitutional error occurred, the Supreme Court reasoned that the Sixth Amendment does not guarantee a right to a jury trial for a “penalty provision,” as opposed to a “substantive crime.” (Id. at 303-309.) The court added that no due process or equal protection violation occurred. (Id. at 309-315.)
Eight months later, in an unrelated context, the Supreme Court concluded that the premeditation element of section 664, subdivision (a), “constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder.” (People v. Bright, supra, 12 Cal.4th at 656-657.) In Bright, the information charged the defendant with premeditation, and the jury was instructed according to CALJIC No. 8.67, so the majority had no occasion to address the harmless error issue posed in Wims. (Id. at 657-658.) But in vigorous dissent, Justice Kennard warned that the two cases together threatened the constitutional right to jury trial on the issue of premeditation in connection with attempted murder. (Id. at 690-693, dis. opn. of Kennard, J.)
Appellant urges this court to follow Justice Kennard’s lead on this federal issue not yet addressed by the Supreme Court majority and to distinguish Wims in the context of the present case. As Justice Kennard noted,
[i]n McMillan v. Pennsylvania  477 U.S. 79 [91 L.Ed. 2d 67, 106 S.Ct. 2411], the United States Supreme Court stated that state legislatures do not have “unbridled power to redefine crimes to the detriment of criminal defendants” (id. at p. 86 [91 L.Ed.2d at 77]), and the court suggested that a state legislature might lack power to remove a factual issue from the jury’s consideration by defining the issue as a mere “sentencing consideration” (or, in the language of the majority, by placing the issue in a mere “penalty provision”) if a finding on that issue would expose the defendant to substantially “greater or additional punishment” (id. at p. 88 [91 L.Ed.2d at 78]). Here, a.finding that in attempting to commit murder a defendant acted with premeditation will expose the defendant to a penalty of life imprisonment, as compared with a maximum term of nine years for attempted murder committed without premeditation. Because of the grave sentencing consequences attending a finding of premeditation, it may well be unconstitutional to deprive the defendant of a right to jury trial on the issue of premeditation. [Citation to the Justice’s dissent in Wims.] (People v. Bright, supra, 12 Cal.4th at 692, dis. opn. of Kennard, J.)
In determining that there was no constitutional right to a jury trial for the weapon enhancement in Wims, the majority pointed to section 969c, which provides that if a defendant pleads guilty to a substantive offense, the enhancement issue “must be determined by the court” before sentencing. (§ 969c; People v. Wims, supra, 10 Cal.4th at 304.) Section 664, subdivision (a), on the other hand, provides that the premeditation allegation must be “charged in the accusatory pleading and admitted or f ound to be true by the trier of fact.” Additionally, the majority, like Justice Kennard, cited the United States Supreme Court decision in McMillan v. Pennsylvania, supra, which upheld a sentencing statute in part because “the disputed statute enhanced punishment based upon a ‘factor that has always been considered by sentencing courts to bear on punishment–the instrumentality used . . . .’ [Citation.]” (10 Cal.4th at 308.) But premeditation has long been treated as more than a “sentencing factor”; since before the enactment of the Penal Code in 1872, it has been an element of first degree murder. (§ 189; People v. Sanchez (1864) 24 Cal. 17, 28-30.)
Particularly given the dramatic consequences of a premeditation finding, constitutional rights should not be limited to those defendants who are charged with murder, as opposed to attempted murder. [Footnote 3] Such a result is itself inconsistent with due process, a concern not addressed by the majority in Wims. (People v. Bright, supra, 12 Cal.4th at 691, dis. opn. of Kennard, J.) State harmless error analysis is therefore insufficient, and the error requires reversal unless it is harmless beyond a reasonable doubt. (Cupman v California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].)
C. The Error Requires Reversal.
Under either standard of review, appellant was prejudiced. The error was not cured by the court’s remaining instructions. Although CALJIC Nos. 8.66 and 8.67 were correct as far as they went, they would not have rendered the erroneous instruction harmless even by contradicting it. (People v. Cameron (1994) 30 Cal.4th 591, 600.) In any event, they did not directly contradict CALJIC No. 17.12 as given; if anything, the specificity of the latter instruction and the many instructional references to premeditation in the context of the greater/lesser distinction must have cleared up any ambiguity. And although CALJIC No. 8.67 concluded with a direction that the premeditation finding (of “true” or “not true”) must be included in the verdict form (RT 881), the pertinent forms did not correspond to this instruction. Moreover, the error was compounded by the prosecutor’s references to attempted premeditated murder as “the primary charge,” as distinct from the “lesser charge” of attempted unpremeditated murder. (RT 801, 811, 841, 857-858.) Similarly, defense counsels explanation to the jury was of course consistent with and supportive of the erroneous instruction chosen by the trial court: “[T]he number one thing, what they’re asking for is that you find that there was an attempt to commit murder and that attempt was done with premeditation.” (RT 839.)
Additionally, while the prosecution presented evidence that supported a premeditation finding–appellant’s motive and threatening statements, actions with respect to the shotgun, and story to Officer Helm–it cannot be characterized as “overwhelming” in the context of the entire evidence. Thus, even appellant’s friends, including Ms. G, did not take the generalized threats seriously; Mr. R supported appellant’s testimony that he took the gun only to sell it; and appellant explained his earlier story of a preplanned murder as an attempt to get the death penalty, based on an anguished misunderstanding.that he had killed Ms. G.
It is worth noting that the jury found appellant guilty of attempted unpremeditated murder in Count IV (re Allen Kent). Thus, although there was evidence which would have supported a premeditation finding in that count–again, appellant’s motive and purposeful behavior, action in initially hiding the gun, and story to Office Helm–the jury rejected it and implicitly credited appellant’s defense theory to that extent. While there was more evidence of premeditation in Count I, there was also more evidence against it; the point is that, given the result in Count IV, the prosecution’s case cannot fairly be deemed so overwhelming as to rule out a reasonable probability of prejudicial error.
Footnote 1: Subsequently, a different judge on the trial court granted the defendant’s motion and barred retrial of the allegation on double jeopardy grounds. (Id. at 659-660.) The Court of Appeal reversed the order dismissing the allegation, and the Supreme Court affirmed that decision. (Id. at 660, 671.)
Footnote 2: Appellant recognizes that CALJIC No. 17.12 is not a mandatory acquittal-first rule in the sense of erroneously precluding the jury from even considering lesser offenses during its deliberations. (Ibid, ; People v. Kurtzman, supra, 46 Cal.3d at 366.) But that distinction cannot save the ‘instruction in the penalty provision context, where it has no proper application at all.
Footnote 3: These consequences are arguably more dramatic in an attempted murder case than in a simple murder case. Assuming no special circumstances, the basic penalty for unpremeditated second degree murder is 15 years to life; for premeditated murder, it is 25 years to life. (§ 190, subd. (a).) For unpremeditated attempted murder, the penalty is a determinate term of five, seven or nine years; with premeditation, it is an indeterminate term of life in prison. (§ 664, subd. (a).)