B-728

Brief Bank # B-728

NOTE: The text of the footnotes appear at the end of the document.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal

Plaintiff and Respondent, (Riverside County
v. Superior Court
No. CR-00000)

JOHN DOE,

Defendant and Appellant.
________________________________________/

OPENING BRIEF OF APPELLANT

Appeal From Final Judgment of Conviction Superior Court, County of Riverside
The Honorable Gary Tranbarger, Presiding Judge

Michael B. Dashjian
State Bar No. 111072
Law Offices of Michael B. Dashjian
7343 El Camino Real Suite 351
Atascadero CA 93422
(805) 461-7500
Attorney for JOHN DOE
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)

B. Carjacking Is Not Committed By A Use Of Force Which Is Not Substantially
Greater Than That Required To Take The Vehicle

The “force” element in the crime of robbery, under section 211, requires “something more . . . than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales (1975) 49 Cal.App.3d 134, 139; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246; People v. Church (1897) 116 Cal. 300, 302-304; see also People v. Mungia (1991) 234 Cal.App.3d 1703, 1708-1709 [adjudicating robbery charge under Morales]; People v. Ramkeesoon (1985) 39 Cal.3d 346, 352 [citing Morales with approval].) Whether that type of force exists is a factual issue for the jury (People v. Church, supra, 116 Cal. at pp. 302-303), as the existence of force in general is for the jury. (People v. Mungia, supra, 234 Cal.App.3d at p. 1707.)

Carjacking is a crime that is close to robbery. The two statutes have nearly identical wording that differ only as io intent, and they are identical as to the “force or fear” element. A fortiori, the Morales standard, requiring something more than merely the force necessary to commit the underlying theft, applies as well to carjacking. [Footnote 1]

That is also the law as to other crimes involving force in the commission of an underlying offense. A lewd act with force under section 288, subdivision (b) requires that the defendant “use[] physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself” (People v. Bolander (1994) 23 Cal.App.4th 155, 158-159, and cases cited therein; id. at p. 163 [conc. opn. of Mihara, J.]) The same is true for other sex offenses committed by force. (People v. Senior (1992) 3 Cal.App.4th 765, 774; People v. Bergschneider (1989) 211 Cal.App.3d 144, 153; People v. Quinones (1988) 202 Cal.App.3d 1154, 1158; People v. Pitmon (1985) 170 Cal.App.3d 38, 52.) This is the same type of standard as that used for robbery. (Accord People v. Bolander, supra, 23 Cal.App.4th at p. 163 [conc. opn. of Mihara, J.].) [Footnote 2]

C. The Requirement Of Force Beyond That Necessary To Commit The Underlying
Theft Must Be Explained To The Jury Sua Sponte

This formulation of “force,” requiring something more than the force necessary to commit the underlying act, is a technical definition peculiar to the law and thus requires instruction sua sponte. (People v. Pitmon, supra, 170 Cal.App.3d at p. 52.) This should be self-evident anyway. The “something more” requirement is part and parcel of the essential element of force, at least when the evidence raises the issue, and as such, it is a general principle of law necessary to the jury’s understanding of case which requires sua sponte instruction. (People v. Cummings (1993) 4 Cal.4th 1233, 131 1.)

Moreover, inasmuch as the “something more” requirement qualifies the meaning of the word “force,”it is an integral part of that essential element which must be heard by the jury, under both state law and the Fourteenth Amendment. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665; United States v. Gaudin (9th Cir. 1994) 28 F.3d 943, 952 [cert. grd. o.g. and affd (1995) ___ U.S. ___ [115 S.Ct. 2310, 132 L.Ed.2d 444]].)

Thus, while in most contexts it has been held that the word “force” in the crime of robbery has no technical meaning (People v. Anderson (1966) 64 Cal.2d 633, 639-640), that is not true when the evidence raises the issue of whether the force used was substantially more than that required to commit the underlying offense. Jurors cannot know the level of force required to commit an offense unless they are told. (See People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 [instructions are given lay jurors because it is assumed they do not know the law].)

In section 288 cases, where this type of issue arises more often, the word “force” is considered to have a technical meaning, for precisely this reason. Force “substantially different from or substantially greater” than that necessary to accomplish the underlying offense is “a specialized meaning not readily known to the average lay juror” (People v. Pitmon, supra, 170Cal.App.3d at p. 52.) The CALJIC Committee recognized this, for after Pitmon, it built that technical definition into the standardized instruction for section 288, subdivision (b) cases. (CALJIC No. 10.42.)

The factual issue discussed in this Part arises much less often in carjacking cases. Thus, giving only the current standardized instruction would not create reversible error in the vast majority of carjacking cases. (CALJIC No. 9.46 (1994 rev.).) However, the situation is different when the evidence does raise the issue.

FOOTNOTES:

Footnote 1: Penal Code section 215 states in pertinent part:

“Carjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.

Penal Code section 211 states in pertinent part:

Robbery is the felonious taking of person property in the possession of another, from his person or immediate presence, and against his wil1, accomplished by means of force or fear.

Footnote 2: While the Morales requirement of “something more” is a less technical phrase than “substantially different from or greater than,” the terms appear to have the same meaning. It is presumed the Legislature did not intend the penal consequences of an aggravated or compound offense to attach when the aggravation or compounding is trivial in relation to, or merely incidental to, the underlying offense. (See, e.g., People v. Daniels (1969) 71 Cal.2d 1119, 1139 [movement and risk of harm in aggravated kidnapping]; People v. Jackson (1955) 44 Cal.2d 511, 517 [bodily harm in kidnapping (aggravated false imprisonments.) Robbery is merely an aggravated form of theft (People v. Butler (1967) 65 Cal.2d 569, 573), and carjacking an aggravated form of vehicle taking. (People v. Dominguez (1995) 38 Cal.App.4th 410, 418-419.) Thus, the Morales rule is similar to other formulations that refer to uses of force which are trivial In relation to, or merely incidental to, the underlying offense. (See also People v. Bolander, supra, 23 Cal.App.4th at p. 163 [conc. opn. of Mihara, J.].)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal

Plaintiff and Respondent, (Riverside County
v. Superior Court
No. CR-00000)

JOHN DOE,

Defendant and Appellant.
________________________________________/

REPLY BRIEF OF APPELLANT

Appeal From Final Judgment of Conviction Superior Court, County of Riverside

The Honorable Gary Tranbarger, Presiding Judge

ARGUMENT

I. THE TRIAL COURT ERRED PREJUDICIALLY IN FAILING TO INSTRUCT THE
JURY THAT THE CRIME OF CARJACKING REQUIRED A USE OF FORCE
BEYOND THAT NECESSARY TO TAKE THE CAR; IN THE ALTERNATIVE,
TRIAL COUNSEL ERRED IN FAILING TO REQUEST SUCH AN INSTRUCTION
[AOB, Part I, Pages 6-18]

A. Reviewability

The trial court is obligated, sua sponte, to instruct the jury on the general principles of law that are commonly or openly and closely connected to the facts of the case, and that are necessary for the jury’s understanding of the case. (People v. Mayfield (1997) 14 Cal.4th 668, 773; People v. Strong (1996) 30 Cal.App.4th 366, 375-376.) Thus, when based on the evidence, a legal term does not have a plain and unambiguous meaning in the context of that particular case, the trial court errs by failing to provide sufficient guidance on what the term means in the context of the case. (See People v. Mayfield, supra, 14 Cal.4th at pp. 773-774; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1399.) Even if a term may be unambiguous in some cases, the only relevant issue is whether the term was unambiguous as applied to the evidence in this case.

The same result follows from the line of cases dealing with the trial court’s sua sponte requirement to define legal terms that do not have a common meaning. Even if a term is an English word commonly used by jurors, and even if it would require no definition in other cases, when it requires definition in a particular case for the jurors to be able to use it properly, it must be so defined. (See, e.g., People v. Mayfield, supra, 14 Cal.4th at pp. 773-774 [“official act”]; People v. Enriquez (1996) 42 Cal.App.4th 661, 665 [“under the influence”].)

Finally, if a jury’s instructions are such that the jury is permitted to convict a defendant under a set of facts that as a matter of law should not permit conviction, then the jury has been wrongly instructed, under state law and the Fourteenth Amendment. (People v. Guiton (1992) 4 Cal.4th 1116, 1128-1129; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670.)

While the People claim waiver, there can be no waiver of the trial court’s error in failing to give an instruction required sua sponte, absent “invited error” which cannot exist on a silent record. (People v. Wickersham (1982) 32 Cal.3d 307, 330-334 [disapr’d o.g. in People v. Barton (1995) 12 Cal.4th 186, 201].) The issue should be considered on its merits.

The People’s cases, People v. Johnson (1993) 6 Cal.4th 1, 52; People v. Hardy (1992) 2 Cal.4th 86, 153, and People v. Sully (1991) 53 Cal.3d 1195, 1218 [cited in RB 8-9], and People v. Jones (1996) 42 Cal.App.4th 1047, 1055, all stand for the proposition that when a jury instruction properly instructs the jury on the governing legal principles in a manner that properly guides the jury in its task, a failure to ask for clarifying instructions bars review. These cases are not apposite here, because appellant’s point is that the court’s instructions did not properly instruct the jury on the governing legal principles. The jury was not given the legal principle on the use of “force” in a robbery, established in cases such as those cited in AOB 7. In most robbery-type cases, such an instruction wouldn’t be required, because the quantum of force would not be an issue raised by the evidence. But it was an issue raised by the evidence in this case.

The People are correct that “[o]n review an appellate court may consider any instruction given in the absence of an objection if the substantial rights of the defendant are affected.” (RB 9 [citing Pen. Code, § 1259 and People v. Hannon (1977) 19 Cal.3d 588, 600.) The People argue appellant is wrong, on the merits; appellant argues he is correct on the merits. That is the issue appellant asks this Court to decide.

B. Carjacking Is Not Committed By A Use Of Force Which Is Not Substantially Greater
Than That Required To Take The Vehicle [AOB, Part l(B), Pages 7-9]

Appellant agrees that “an analogy to robbery is useful because carjacking is closely related to robbery.” (RB 10.)

Thus, appellant cited five cases which stand for the proposition that the “force” element in a robbery “requires ‘something more . . . than just that quantum of force which is necessary to accomplish the mere seizing of property.”‘ (AOB 7, citing People v. Morales (1975) 49 Cal.App.3d 134, 139; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246; People v. Church (1897) 116 Cal. 300, 302-304; People v. Mzingia (1991) 234 Cal.App.3d 1703, 1708-1709; and People v. Ramkeesoon (1985) 39 Cal.3d 346, 352.)

The People not only fail to discuss those cases, they do not mention a single one in their brief They have written their argument as if these cases, and the principle for which they stand, did not exist. Worse still, of the five cases cited by appellant, four are from jurisdictions which would be relevant to an appeal in this Court; Morales and Mungia are from this Court, and Church and Ramkeesoon are from our Supreme Court. These cases should not so easily be ignored.

If the People could have shown why these cases were somehow inapposite here, presumably they would have. They did not. Appellant can only conclude what he believes is clear anyway, that Morales, Garcia, Church, Mungia and Ramkeesoon are the law of this state, and the “force” element in the crime of robbery requires “something more . . . than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (Accord People v. Wright (1996) 52 Cal.App.4th 203, 210.)

Because the People agree robbery is analogous to carjacking (RB 9, 11), a fortiori, the word “force” in section 215 also refers to “something more . . . than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales, supra, 49 Cal.App-3d at p. 139, and cases cited above.) That is what appellant has argued.

The People instead claim appellant is analogizing carjacking to sex crimes. (RB 11-12.) Appellant never made such an argument; he agrees with the People that “[c]arjacking is a crime that is close to robbery” (AOB 8). That is why the five robbery cases appellant cited at the bottom of page 7 of the AOB should also apply to this case. Appellant cited sex crime cases to show the widespread use of the principle that “force” means something more than the minimum amount of force required to commit the underlying act–not only in robbery cases based on Morales, Church and their progeny, but also in other areas of law. To the extent the principle is also used in other areas of the law, cases from those other areas interpreting the principle would be instructive here as well.

In any event, appellant relies on Morales, Garcia, Church, Murgia and Ramkeesoon, and his point has not been rebutted.

C. Application Of Law To Facts [AOB, Part I(D), Pages 10-12]

This is where the People’s incomplete statement of the facts, and their failure to utilize the Supreme Court’s standard of review in Henderson, Clement and Oettinger, becomes important. The People merely say there was sufficient evidence of force because “[a]ppellant used physical force when he grabbed Mr. L from behind and pulled him away from the car causing him to stumble backwards.” (RB 13.) “Sufficient evidence”, however, is precisely the method of analysis the Supreme Court rejected in the block-quoted passage from Henderson above. (Id., 12 Cal.3d at pp. 673-674 [quoting OMeara v. Sworyiguer, supra, 191 Cal. at p. 15].)

The People never mention Mr. H’s testimony, that appellant never grabbed, hit or even touched Mr. L. (RT 179, 182, 201.) Under Henderson, Clement and Oettinger, it must be presumed a properly instructed jury could have believed Mr. H’s testimony. That is likely anyway, because of other evidence the People don’t mention– Mr. L’s loud and hostile behavior to try to stop Mr. B from talking to Mr. H (RT 193-195), and Mr. L’s acts of giving a false I.D. to a police officer and then deny it under oath (RT 89, 91, 202-203). Had a properly instructed jury believed this testimony, it could have concluded appellant did not use more than the quantum of force necessary to seize the car. In fact, with his extremely slow driving and his preference for driving away from Mr. L, a properly instructed jury could easily have concluded that while appellant wanted to steal the car, he was doing everything he could to avoid a use of force.

The same would be true for the People’s claim as to appellant’s use of fear (RB 13); it would violate the settled principles of Henderson, Clement and Oettinger, if it were properly part of this analysis. However, the issue of fear is more properly a part of a prejudice analysis, because appellant is not arguing any error in the jury instructions on fear.

D. The Error Was Preiudicial

The People’s argument is “There was sufficient evidence of fear, so there is no prejudice.” (RB 12-13.) That is not the test under Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824, 17 L.Ed.2d 705]), which the People don’t mention. The test under Chapman is whether the State can meet its burden of showing this jury’s verdict was unaffected by the error, beyond a reasonable doubt. (Id.; Sullivan v. Louisiana (1993) 508 U.S. 275, 278-280 [113 S.Ct. 2078, 124 L.Ed.2d 182] [opn. of Scalia, J., for a unanimous Court]; People v. Kobrin (1995) 11 Cal.4th 416, 428-430.)

Under that test, the error is reversible. As the People acknowledge, “it cannot be determined if the jury found appellant applied force, fear, or both, in the commission of the [car theft].” (RB 13.) The jury may have found there was insufficient evidence of fear, particularly given Mr. H’s testimony that Mr. L didn’t look afraid when he got off the car. (RT 187.) If the jury found the car theft was accomplished by force, and there is no way to know it didn’t, the jury’s verdict was irrevocably tainted by the error, because the jury was never asked to consider the issue of whether the force rose to the level required by Morales and Church.

Because the jury never considered this element of the offense, the error is prejudicial. It makes no difference what a hypothetical jury might have found if properly instructed, because appellant was entitled to the verdict of this jury, and “the trial court’s instruction completely deprived the jury of an opportunity” to consider this element of the offense. (People v. Kobrin, supra, 11 Cal.4th at p. 430; Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-280.)

Our Supreme Court has made clear that the prejudice of People v. Kobrin, supra, is to be used when the trial court’s instructions deprive the jury of the opportunity to consider a material element of the offense. That is so here, since the jury was deprived of the opportunity to consider whether “force” sufficient for a carjacking under section 215 (the MoralesIChurch standard) was used. But even if the standard of People v. Watson (1956) 46 Cal.2d 818, 836 was used, contrary to Kobrin, the error would be prejudicial for the reasons at AOB 13-14.

E. In The Alternative, Trial Counsel Committed Sixth Amendment Error, To Request An Instruction On The Issue Above [AOB, Part I(F), Pages 15-18]

An action by trial counsel must have a reasonable tactical basis in order to be proper under the Sixth Amendment. (People v. Stratton (1988) 205 Cal.App.3d 87, 94-95.)

The People claim defense counsel here made a “tactical decision” to limit the litigation to the issue of whether appellant had the specific intent to take the car, and give up all other legal issues. (RB 14.) However, that would not be a reasonable “tactical decision,” because no issue of specific intent was raised by the evidence.

Carjacking does not require a specific intent to permanently deprive a person of his car; it only requires an intent to deprive a person of his car, either temporarily or permanently. (Pen. Code, § 215, People v. Antoine (1996) 48 Cal.App.4th 489, 494-495.) Here, there was no dispute in the evidence; everyone agreed appellant took the car, and there was no defense of misidentification. Nor did defense counsel point to any evidence in the record that appellant did not intend to take the car, either temporarily or permanently.

It would thus have been unreasonable for counsel to “focus” on an unreasonable defense that couldn’t possibly succeed, and forego a MoralesIChurch defense that had merit on this evidence and required the jury to do little more than believe Mr. H and Mr. B. Thus, had this been defense counsel “tactical decision,” it would have been unreasonable and would not have defeated a Sixth Amendment claim. (Accord, e.g., Gray v. Lynn (5th Cir. 1993) 6 F.3d 265, 268-269 [failure to object to instruction which improperly broadened the range of acts which would permit conviction, held cognizable ineffective assistance of counsel].)

In reality, defense counsel’s argument was the type of argument a trial attorney would make if he believed he had no issues at all to litigate. Though understandable in that context, defense counsel simply missed the MoralesIChtirch issue, just as the trial court did. The error should be attributable to the trial court, whose duty it is to provide correct instructions responsive to the evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1337; People v. Farley (1996) 45 Cal.App.4th 1697, 1712.). But if not, then the error must alternatively be attributed to counsel.