Brief Bank # B-703 (Re: F 12.70 n3 [Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid]; F 12.70 n4 [Hit And Run: Duties Limited To The Scene Of The Accident (VC 20001, VC 20002, VC 20003, VC 20004, VC 20008)].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal
Plaintiff and Respondent, ) No. 2 Crim. B000000
)
v. ) (Ventura County
) Superior Court
JANE DOE, ) No. CR 00000)
Defendant and Appellant. )
___________________________________)
OPENING BRIEF OF APPELLANT JANE DOE
Appeal From Final Judgment Of Conviction
Superior Court, County of Ventura
The Honorable Burt Henson
Presiding, Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for Jane Doe
By appointment of the Court of Appeal
ARGUMENT
I.
The Trial Court Erred In Permitting The Prosecutor To Argue His Erroneous View Of The Law, By Which Appellant Could Be Convicted Even If She Was Unconscious At The Scene Of The Accident; It Also Erred Prejudicially By Not Instructing The Jury That Failure To Give Information At The Scene Of The Accident Was An Essential Element Of The Charged Offense
This issue is governed by a host of authorities including Supreme Court and Court of Appeal opinions, and the plain language of the statutes. There is, by contrast, no law supporting the People’s novel theory.
A. Introduction
The trial court gave CALJIC No. 12.70 (CT 51-52), and a supplemental instruction on unconsciousness of a driver (CT 49). However, the prosecutor sought to put a further theory before the jury. His view of the law was that if appellant was unconscious at the scene of the accident, she was still guilty if when she later became conscious far from the scene and learned she was in an injury accident, she failed to perform the tasks in Vehicle Code sections 20003 and 20004. (RT 256-257, 262-263.) The defense objected vigorously. (RT 257-258, 261-262.)
The trial court agreed with this theory, after speaking with a number of judges at lunch (RT 260-261), but it adopted a procedure suggested by these other judges and let both parties argue whatever interpretation of the law they wanted. (RT 261:4-7, 263:20-24.) The prosecutor did in fact argue his theory of the law to the jury. (RT 266, 270-271, 311.)
This issue went to the heart of appellant’s defense, since she clearly left the scene of an accident without performing the tasks incorporated into Vehicle Code section 20001. Her defense was that she was not guilty of violating section 20001 based on her unconsciousness at the scene of the accident. The prosecutor’s interpretation of the law nullified her defense. The trial court erred prejudicially in letting the prosecutor argue his theory of the law, because it was wrong. The trial court also erred in failing to give a proper jury instruction making clear that only failure to give information at the scene of an accident can violate section 20001, which with CALJIC Nos. 4.30 and 4.31 (given at CT 48, 50) would also have informed the jury that unconsciousness at the scene of the accident was a complete defense.
As our Supreme Court and many other authorities have made clear, a violation of section 20001 can only occur at the scene of an accident, and if a person is unconscious at the scene of an accident, she cannot violate section 20001. There was a great deal of evidence appellant was an legally unconscious at the scene of the accident, and little or no evidence to the contrary, creating a strong, likelihood of an acquittal without the errors. Appellant should be retried before a jury which is properly instructed on this central issue, and the order of probation should be reversed.
B. It Was Erroneous For The Trial Court To Abdicate Its Central Responsibility Of Defining Legal Elements Of Offenses To The Jury Via Instructions, When It Permitted Counsel To Argue Their Differing Views Of The Law And Failed To Resolve The Differences Itself
To begin with, it was inappropriate for the trial court to have permitted counsel to argue their differing interpretations of the law relating to the charged offense. The trial court is supposed to be the ultimate authority on the law as far as the jury is concerned. (See, e.g., Bollenbach v. United States (1946) 326 U.S. 607, 612 [66 S.Ct. 402, 90 L.Ed. 3501; People v. Mahoney (1927) 201 Cal. 618, 626-627.) One of the court’s central functions is to set forth the law governing the case in jury instructions. “Instructions are given on the relevant law simply because we do not presume a jury composed of lay persons is knowledgeable in the law.” (People v. Whitchiirst (1992) 9 Cal.App.4th 1045, 1050; accord Carter v. Kentucky (1981) 450 U.S. 288, 302 [101 S.Ct. 11 12, 67 L.Ed.2d 241]; see also United States v. Wolfson (5th Cir. 1978) 573 F.2d 216, 221 [judge’s words “carry an authority bordering on the irrefutable”].)
For a court to let counsel argue differing interpretations of the law is equivalent to not giving instructions at all, since it results in no Judicial cuidance on the means of deciding a person’s liberty. Moreover, “arguments of counsel cannot substitute for instructions by the Court.” (Carter v. Kentzicky, sitpra, 450 U.S. at p. 304; Parker v. Atchison, Topeka & Santa Fe Co. (1968) 26′) Cal.App.2d 675, 680.) Thus, the practice is an abdication of a central function of the trial court, and appellant would ask this Court to hold it to be legal error.
C. The View Of The Law Argued By The Prosecutor, That Appellant Could Be Convicted Even If She Was Unconscious At The Scene Of The Accident, Is Unsupported And Wrong; The Trial Court Erred In Permitting The Prosecutor To Argue This View, And In Failing To Give The Jury A Correct Instruction
On the merits, the prosecutor’s effort to create new law was unsupported by any authority, and is flatly contrary to the solid authority in the area.
Section 20001 is not captioned “Failure to report injury accident”; it is captioned “Duty to stop at scene of accident.” The offense is commonly called “leaving, the scene of an accident.” (See, e.g., People v. Wong (1976) 18 Cal.3d 178, 182; People v. Gallardo (1994) 22 Cal.App.4th 489, 491; People v. Bellomo (1992) 10 Cal.App.4th 195, 197; see also People v. Carbajal (1995) 10 Cal.4th 1114, 1118, 1124 [same as to section 20002].) It is also commonly called “hit and run” (see, e.g., People v. Carbajal, supra, 10 Cal.4th at p. 11 18; People v. Bow (1993) 15 Cal.App.4th 1551, 1554; CALJIC No. 12.07), which similarly connotes “running” from the accident-i.e., leaving the scene. The purpose of the statute is to prevent a driver from leaving the scene of an accident without ensuring medical aid for the injured and furnishing information as to his identity. (People v. Scofield (1928) 203 Cal. 703, 707-708; People v. Jordan (1963) 214 Cal.App.2d 400, 402-403; People v. Kiihn (1956) 139 Cal.App.2d 109, 112.)
“The crime with which the defendant is charged is complete upon the ‘running’ . . . it is the ‘running’ which offends public policy …. [Citation.]” (People v. Carbajal, stipra, 10 Cal.4th at p. 1124.) Courts of Appeal have similarly held an essential element of a section 20001 offense is “knowingly leav[ing] the scene of the accident.” (People v. Hamilton (1978) 80 Cal.App.3d 124, 132.) “‘The gravamen of a section 20001 offense . . . is not the initial injury of the victim, but leaving the scene without presenting identification or rendering aid.’ [Citation.]” (People v. Jiminez (1992) 11 Cal.App.4th 1611, 1626.)
The trial court also called the alleged offense “leaving-the-scene-of-an-injury accident.” (RT 4:16-17.) As shown above, that was correct. In addition, the duties in section 20003 (giving name and vehicle information, and rendering aid) relate to the scene of an accident.
Because there are no duties beyond the scene of the accident in the statute, none exist, and the trial court wasn’t empowered to create any. “In the construction of a statute . . . the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted . (Code Civ. Proc. § 1858; accord Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365-366.)
Since a person is not criminally responsible for committing, an act which is contrary to law while unconscious (Pen. Code § 26, subd. (4)), and since leaving the scene of an accident is the act which is contrary to law in section 20001, it is a complete defense to an alleged violation of section 20001 if the person is unconscious when she leaves the scene of the accident. That is so whatever the person does or does not do after regaining consciousness hours later.
The same result is reached by recognizing that a violation of section 20001 must be willful. This means the defendant can only violate the statute by committing the proscribed act–leaving the scene of the accident–with knowledge she has been in an injury accident, and is leaving the scene. (People v. Hamilton, supra, 80 Cal.App.3d at p. 132; People v. Odom (1937) 19 Cal.App.2d 641, 646; see generally Hale v. Moraan (1978) 22 Cal.3d 388, 396 [“Willfully” means intent to commit the act proscribed by the statute in question].) Since that knowledge is negated by unconsciousness, again unconsciousness at the scene is a complete defense.
Our Supreme Court has made these principles clear as well. In People v. Scofield, supra, 203 Cal. at p. 703, the defendant hit the car of one Gilliam, rendering him unconscious. Gilliam never regained consciousness and died a few hours later. Scofield was convicted under a predecessor of section 20001 of failing to give his name and address to the unconscious Gilliam. The Supreme Court reversed, and in so doing made clear that a person unconscious at the scene of an accident cannot be convicted of violating the statute:
[N]o one would have the hardihood to contend under the facts in the present case that Mr. Gilliam, had he lived, and while he was unconscious, would have been guilty of a violation of section 141 because he did not give his name and address . . . or because he did not render assistance . . . yet literally he would be within the terms of the statute. His unconscious condition would, of course, excuse him. When both drivers are rendered unconscious, there could be no criminal liability on the part of either for failure to do the things required by the statute.
(Id. at p. 708 [emphasis added].)
Other courts have reached the same conclusion, that unconsciousness at the scene of an accident is a complete defense to a section 20001 charge. (People v. Crouch (1980) 108 Cal.App.3d Supp. 14, 21-22 [cited with approval on another point in People v. Carbajal, supra, 10 Cal.4th at p.1124]; People v. Mayo (1961) 194 Cal.App.2d 527, 536-537; People v. Wallace (1934) 2 Cal.App.2d 238, 244.)
Against this solid wall of authority is the authority supporting the People’s position: Nothing.
The People cited only one case to the trial court, People v. Campbell (1958) 162 Cal.App.2d 776 (RT 258, 260), which doesn’t remotely support their theory. Nor does any other.
Finally, while a court is not supposed to consider the policies behind a clear statute (post, p, 26), even if it could, the result would be the same. The trial court’s ruling was-based on its opinion of the policy underlying section 20001, which was: “[T]o encourage identification of participants and so forth.” (RT 263:19).
But there are already statutes toward that end. Vehicle Code section 20008 requires the driver of every vehicle in an injury accident to report it to law enforcement authorities within 24 hours, and violation is a criminal infraction. (Veh. Code § 40000.1.) Vehicle Code section 16000 requires the driver of every vehicle in an injury accident to report it to the DMV within 10 days, and violation can result in license suspension. (Veh. Code § 16004.) Those are the statutory reporting requirements the Legislature has specifically enacted to apply other than at the scene of an accident, which do “encourage identification of participants and so forth.” Another such law wasn’t necessary, and the Legislature didn’t enact one in section 20001.
For all of the reasons in this Part, the defense’s interpretation of the law was correct: If the jury had found appellant was unconscious at the scene of the accident, that was a complete defense, and appellant could not be convicted of violating section 20001 by failing to contact law enforcement authorities after she “came to” away from the scene of the accident, several hours later. The trial court erred in allowing, the prosecutor to argue a contrary view of the law.
In addition, the trial court erred in failing to give a correct instruction that failing to perform duties at the scene of an accident was an essential element of the offense, and/or that unconsciousness at the scene of the accident was a complete defense. First, such instructions were necessary since they would have corrected the prosecutor’s erroneous argument. Second, a trial court is obligated to instruct sua sponte on every essential element of a charged offense. (People v. Sanchez (1950) 35 Cal.2d 522, 528; People v. Wilkins (1994) 14 Cal.App.4th 761, 777.) Since failure to discharge the section 20003 duties “at the scene of the accident” is an essential element of the charged offense, the trial court was obligated to instruct on it. [Footnote 1]
D. The Errors Were Prejudicial And Reversible
The errors were prejudicial for a number of reasons. First, during deliberations, the jury specifically asked the trial court about this very issue. As shown by the Engrossed Settled Statement filed with this brief, the jury sent in a note asking: “Is the defendant still obligated to report an accident after she has left the scene?” Not surprisingly, the prosecutor thought the answer should be yes, and defense counsel thought it should be no. (RT 5/31/95 [tapes 26-751 and 26-752], p. 2.) The court decided to tell the jury it couldn’t instruct them any further. (Id.) That the jury was specifically considering the issue, and never got correct instructions, by itself shows prejudice from the erroneous instructions. (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 562-563; People v. Singleton (1987) 196 Cal.App.3d 487, 493-494.)
Second, as is also shown by the jury’s note, the instructions given by the trial court did not preclude the legal interpretation urged by the prosecutor. In particular, while CALJIC No. 12.70 states that a defendant must “knowingly” be involved in an injury accident to be convicted, it doesn’t say when the defendant must acquire the knowledge that makes her involvement in the injury accident “knowing.” The second element of the offense, as the jury was instructed, is that a person “knew that an accident had occurred, knew that she was involved in the accident and knew that the other person had been injured. (CT 53.) With the People’s argument, a jury could have inferred that if appellant “knew” these things hours or days after the fact, she could still be guilty. As discussed above, that is legally wrong.
Third, in like manner, the instructions given the jury were that the defendant was required to perform certain tasks. (CT 53.) But the jury was not told when the defendant was required to do so. The prosecutor’s argument with the instruction permitted the jury to infer appellant could be convicted if she failed to perform the tasks days later, again legally wrong.
Fourth, the People submitted a supplemental instruction to further increase the likelihood the jury would interpret the law as they desired: “A vehicle driver who is rendered unconscious by an accident may not be held criminally liable for a failure to perform any duty while she is thus incapacitated.” (CT 49.) From this and the prosecutor’s argument, jurors would logically infer that from the moment a person was no longer “thus incapacitated,” she could be criminally liable for failure to perform stated duties. Expressio unius est exclusio alterius. (Gikas v. Zolin (1993) 6 Cal.4th 841, 852; Grupe Development Co. v. Superior Court (1992) 4 Cal.4th 911, 921.) That is in fact what the People argued. (RT 270-271.) And it too was wrong in this case.
As a result, what the prosecutor was permitted to argue went to the very heart of what the essential elements of the crime were. The jury was instructed that conviction required the defendant to “know” certain facts and perform certain duties. (CT 53). But the jury was left to decide for itself when such knowledge and action was required, equally essential elements. The jury was considering the issue carefully; it may have reached (and almost certainly did reach) the conclusion the prosecutor wanted, and convicted appellant based on this legally erroneous theory.
Moreover, the jury was left to decide for itself whether the essential element of “at the scene of the accident” was a legal requirement for conviction, which is a failure to instruct on this essential element of the offense. That is federal constitutional error, reversible unless there is no reasonable possibility the error had any effect on the jury’s verdict. (Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824, 17 L.Ed.2d 7051.) Indeed, Sullivan v. Louisiana (1993) ____ U.S. ____ [1 13 S.Ct. 2078, 2081-2082, 124 L.Ed.2d 182], and subsequent cases, show that a complete failure to instruct on an essential element of an offense is reversible error per se, if the jury would not have found the element under other proper instructions. (Accord United States v. Stein (9th Cir. 1994) 37 F.3d 1407, 1410; United States v. Gaudin (9th Cir. 1994) 28 F.3d 943, 951, cert. grd. on other grds. and affd (1995) ___ U.S.__ _ [115 S.Ct. 2310, ___ L.Ed.2d ___]) Since that is true here, the order of probation should be reversed on that around alone.
It doesn’t matter what “harmless error” standard is used, however, since if there was error, it was obviously prejudicial. Appellant testified she had no memory for at least five hours, and “came to” in a state of confusion and severe head and neck pain. There was also overwhelming, independent evidence appellant was “knocked out” by the accident and had severe head and neck injuries, and although she was walking and speaking she was dazed, confused and affected by her injuries. There is a great deal of substantial evidence appellant was acting without volition at the scene of the accident (and in her view no contrary evidence, post, Part II), and action without volition from a blow on the head is paradigmatic legal unconsciousness (People v. Ray (1974) 14 Cal.3d 20, 25; People v. Hardy (1948) 33 Cal.2d 52, 66). The jury specifically asked the trial court about the issue, so was obviously considering it closely. (Ante.)
Under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, there is a reasonable probability of a better result with a correct instruction. (See also People v. Beeman, supra, 35 Cal.3d at pp. 562-563.) And of course, under Chapman, there is a reasonable possibility the error affected the jury’s actual verdict, since the error went to the ultimate issue the jury had to decide.
Accordingly, the order of probation should be reversed for a new trial.
E. Alternatively, If This Court Were To Accept The People’s Interpretation Of The Statute, Then The New Interpretation Could Not Be Applied Retroactively, Since That Would Be Unconstitutional As An Unexpected Judicial Enlargement Of A Statute Universally Construed As Applying To The Scene Of An Accident
The caption to this section is self-explanatory. Section 20001 is universally construed to impose duties applicable to the scene of an accident. That is the wording of sections 20001 and 20003, and that is the wording of all the cases which speak of “leaving the scene of an accident” or “hit and run.” Appellant has already discussed this at length ante, p. 10, and need not belabor the issue here. Appellant would only add that in everyday parlance, laypeople as well as lawyers speak of this crime as “leaving the scene of an accident” or “hit and run.”
If this Court were to hold for the first time that this statute also applies long after the scene of an accident disappears, it would constitute an unexpected judicial construction of the statute. That would render the statute unconstitutional and inapplicable, as violative of the ex post facto and Due Process Clauses of the U.S. Constitution.
When a statute has consistently been construed as not applying to certain conduct but an appellate court interprets it for the first time to apply to that conduct, our Supreme Court has consistently held the new interpretation either cannot be adopted at all, or must be applied prospectively only and cannot be applied to the defendant in the case at bar. (People v. Davis (1994) 7 Cal.4th 797, 811-812; People v. Kin- (1993) 5 Cal.4th 59, 80; People v. Weidert (1985) 39 Cal.3d 836, 850-852; Keeler v. Superior Court (1970) 2 Cal.3d 619, 633-636.)
An ex post facto law is a statute which punishes as a crime a previous act that was innocent when done, makes more burdensome the punishment for a crime after its commission, or deprives one charged with crime of any defense legally available when the act was committed. (Bouie v. Columbia (1964) 378 U.S. 347, 353 [84 S.Ct. 1697, 12 L.Ed.2d 894]; Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [46 S.Ct. 68, 70 L.Ed. 216].) While the ex post facto clause by its terms applies to legislatures only, a retroactive judicial enlargement of a criminal act operates precisely the same way and is forbidden by the Constitution. (Bouie, supra, 378 U.S. at p. 353.)
Appellant does not need to lengthen the discussion further, since her point should be obvious. As is discussed in Part I(C) of this brief, section 20001, in its language and as people commonly understand it, applies to and punishes leaving the scene of an accident or “hitting and running,” nothing more. The caselaw uniformly refers to the statute the same way, as prohibiting leaving the scene of an accident or “hit and run,” up to and including the Supreme Court’s most recent discussion of the related section 20002 (People v. Carbajal, supra). All this authority makes clear to the public as a whole that the crime is only committed by leaving the scene of an accident without having provided the required information or attended to the ‘injured person.
There is also ample case authority focusing precisely on that issue, including the Supreme Court’s decision in People v. Scofield, supra, which has been the unquestioned authority on the books for several decades. (See ante, Part I(C).) Moreover, no reported decision has ever placed appellant on notice of the new construction sought by the People, which shows further that the novel theory proposed by the People cannot be applied retroactively. (People v. Weidert, supra, 39 Cal.3d at p. 851; Keeler v. Superior Court, supra, 2 Cal.3d at p. 636.)
Notice to the world, as well as to the defendant on trial, is required before language can be interpreted to create criminal punishment, irrespective of whether policy considerations might make such criminal punishment desirable. (McBoyle v. United States (1931) 283 U.S. 25, 26-27 [51 S.Ct. 340, 75 L.Ed. 816], quoted in Weidert, supra, 39 Cal.3d at pp. 848-849.) That did not exist here. Reasonable people reading the statutes and caselaw could not possibly have fathomed the statute would be extended as the People now seek, since everything on the books that might be probative on the issue is against that interpretation, and nothing espouses it.
Applying these principles, the People’s theory is new law which cannot apply to this case, and in this case, section 20001 can only apply at the scene of an accident. Thus, the trial court’s errors are self-evident. As discussed thoroughly above, the trial court erred in permitting the prosecutor to argue his legal theory, and in failing to give a Jury instruction making clear the offense can only be committed by acts at the scene of an accident. The errors were prejudicial as set forth ante, Part I(D). The probation order should be reversed.
FOOTNOTES:
Footnote 1: If it could be persuasively argued that the trial court adequately instructed the jury that the offense could only be committed by leaving, the scene of an accident (which appellant does not believe is possible), then the trial court committed further error by knowingly permitting the prosecutor to argue a version of the law completely contradictory to the court’s own instructions, substantially increasing the likelihood of jury confusion on what the law actually was.
