Brief Bank # B-730
THE JURY WAS INSTRUCTED INCORRECTLY AND/OR INCOMPLETELY REGARDING ACCOMPLICE PRINCIPLES UNDER THE CIRCUMSTANCES OF THIS CASE
Appellant requested that the court instruct the jury that “C.” was an accomplice as a matter of law, per CALJIC 3.16. The court denied the request, instructing the jury instead with CALJIC 3.10, which defines accomplice, so that they could determine whether or not C. was an accomplice. (RT 818, 819.) That instruction was given to the jury in the following form:
An accomplice is a person who is subject to prosecution for the identical offense charged in Counts One and Two and Three against the defendant on trial by reason of aiding and abetting.
The court instructed the jury with 3.11, 3.12, 3.14, 3.18 and 3.19, all regarding the corroboration necessary should the jury find that C. was an accomplice. C. had pled to being an accessory after the fact in relation to his involvement in the subject crime in 1991, some years before appellant’s trial. (RT 493‑495.) This information was before the jury, as was the fact that he was no longer subject to prosecution. (RT 540.) The prosecution reiterated that C. had already being punished for his role in this crime, which was according to the prosecution, merely assisting appellant after the crime, by driving him away from the scene of the crime. (RT 853, 947.) Defense counsel mentioned that he was no longer subject to prosecution, except for possibly lying regarding the facts of the crime. (RT 919, 920.)
The court erred when it refused to instruct the jury with CALJIC 3.16, that C. was an accomplice as a matter of law. However, even assuming that such instruction was not required it is nevertheless reversible error to have given the CALJIC 3.10 instruction in the above form for two reasons. First, the instruction, by omission, misstates the law as applicable to the facts of this case. Second, the appellant’s due process rights were violated because the incomplete instruction effectively lessened the government’s burden of proof.
B. The Court Should Have Instructed With CALJIC 3.16 As A Matter Of Law
An accomplice is one who “is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) A conviction cannot stand upon the testimony of an accomplice unless it is corroborated with other evidence tending to connect the defendant with the commission of the offense. (Ibid.) The test of an accomplice is not whether the witness was subject to trial and conviction at the time of testifying, but whether the witness was subject to prosecution for the offense when the acts were committed. Thus, a witness who was charged and acquitted of the identical offense charged against defendant may still be found to be an accomplice. (People v. Gordon (1973) 10 Cal.3d 460.)
The facts in the Gordon case are instructive on this issue. In that case the trial court failed to instruct on the pertinent principles of accomplice liability in a murder prosecution. The potential accomplice had already been acquitted on the same murder, but yet the state high court ruled that instruction that the witness was an accomplice as a matter of law was nevertheless required. The high court reasoned:
The evidence is clearly sufficient to warrant the conclusion by a properly instructed jury that, prior to her acquittal at the first trial, Carolyn was liable to prosecution for Carl’s murder.
. . .
Furthermore, defendant’s own testimony which was not inherently improbable, added evidence that reasonably could support a jury finding Carolyn was involved in the crime, and thus warranted a conclusion by the jury that Carolyn was an accomplice under section 1111. (People v. Gordon, supra, 10 Cal.3d at p. 469, 470.)
The court concluded that even though the witness‑accomplice had been acquitted, she was not immune to the concept that her testimony should nevertheless be viewed with caution. The court concluded that the jury should have been instructed that the witness‑accomplice’s testimony was to be distrusted, reasoning:
Carolyn’s motivation to fabricate her testimony in the instant case may have been no less substantial. When she testified in her own behalf in the first trial, her testimony was clearly to be distrusted under the rationale set forth in Wallin. [People v. Wallin (1948) 32 Cal.2d 803, 808] Were she to change her testimony in the second trial, she would be subject to prosecution for perjury as a result of her conflicting testimony under oath. (Pen. Code, § 118.) Additionally, we believe any person acquitted of murder would have some reluctance, whether from societal pressure or otherwise to subsequently admit he or she in fact committed the offense. Indeed, such reluctance could be virtually as pervasive as the hope or expectation of leniency relied upon in Wallin. Therefore, because compelling reasons exist for discounting Carolyn’s testimony at defendant’s second trial, the jury should have been instructed that her testimony was to be viewed with distrust and that they could not find defendant guilty on the basis of Carolyn’s testimony, unless sufficient corroboration has been established. [fn. omitted] (Ibid. [emphasis added.)
Thus even though a witness had been acquitted of the crime, the state high court determined that the jury should have been instructed to view her testimony with distrust, rather than merely to instruct the jury to make the determination as to whether or not she was an accomplice, thus making her testimony subject to distrust.
“The phrase ‘liable to prosecution’ in section 1111 means, in effect, properly liable. (People v. Rodriguez (1986) 42 Cal.3d 730, 759.) Any issues of fact determinative of the witness’s factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed may the court determine that the witness is or is not an accomplice as a matter of law.” (People v. Easley (1983) 34 Cal.3d 858, 874, People v. Tewksbury (1976) 15 Cal.3d 953, 960; People v. Hoover (1974) 12 Cal.3d 875, 880.) The decisions stating that “[o]ne is ‘liable to prosecution’ for an offense if it has been committed and there is ‘probable cause’ to believe he has committed it” (People v. Dailey (1960) 179 Cal.App.2d 482, 485, citing People v. Cowan (1940) 38 Cal.App.2d 231, 242) are not inconsistent with these principles. A witness may be an accomplice whether or not the witness is the actual perpetrator by virtue of aiding and abetting or conspiracy principles. (People v. Gordon, supra, 10 Cal.3d at pp. 468, 469; People v. Beeman (1984) 35 Cal.3d 547, 560-561.)
In the present case, C. was an accomplice based on undisputed facts clearly creating probable cause to believe that he had committed the crime, either as the actual perpetrator or as an aider and abettor. There is no dispute that C. was responsible for driving the vehicle from which the fatal shots were fired and remained in place with his engine running until the shooting was finished. (RT 411, 500, 503, 504.) There was no dispute that he had driven around the bar headed in a direction that was contrary to his stated destination, where he stopped his car in front of the unruly group. C. did not provide an adequate explanation for not leaving the scene while the shots were being fired, for fleeing the area shortly after the shooting because in his words he had a “big problem,” or for leaving a job in which he had accrued benefits that were lost. (RT 173, 175, 176, 415, 487, 491, 493, 510.) These facts go well beyond those described in Gordon, in which the state high court found that the jury should have been instructed that the witness there was an accomplice as a matter of law. While obviously the witness there had been acquitted, it was clearly open to question whether she was “legally guilty”, which as Gordon so plainly articulates, is not the issue before the jury. As in Gordon, C.’s mere denial that he was an unwitting participant does not create a legitimate dispute so as to alter his status as an accomplice as a matter of law.
Accordingly, the court erred when it refused to instruct the jury that C. was an accomplice as a matter of law. However, assuming, arguendo, that C. is not an accomplice as a matter of law, the court’s instruction nevertheless requires reversal of appellant’s convictions because it inaccurately represented the pertinent law.
C. CALJIC 3.10 Misstates the Law By Virtue of Omission And Effectively Presented An Incorrect Statement of The Law Concerning Accomplices
“It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531, see also, People v. Sedino (1974) 10 Cal.3d 703, 716.) Moreover, the rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations. (People v. Thompkins (1987) 195 Cal.App.3d 244, see also, California Rules of Court, Appendix, Div. I, 5.) The court “should not require a party to rely on abstract generalities … but should instruct the jury in terms that relate to the particular case before it. [Citation.]” (Fish v. LA. Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 642.)
On the issue of instruction regarding analysis of accomplice testimony, our state high court has written:
In People v. Bevins (1960) 54 Cal.2d 71, 76, quoting from People v. Warren (1940) 16 Cal.2d 103, 118, we held it is the duty of the trial court in a criminal case to give, on its own motion, instructions on the pertinent principles of law regarding accomplice testimony “…whenever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice . . ..” (People v. Gordon, supra, 10 Cal.3d 460 [emphasis added].)
The instruction used here, CALJIC 3.10, which purports to define who qualifies as an accomplice does not misstate the law standing on its own. However, by virtue of its omission of the well established principle that it is not whether or not a person is subject to trial and conviction at the time of testifying, but rather when the acts were committed, the court effectively misrepresented a significant portion of the law to the jury. The jury was clearly instructed that C. could only be considered an accomplice if he is subject to prosecution for the same crime as appellant. Nothing in that instruction conveys the significant principle that the jury had to decide this issue as of the time the crime was committed. In fact the instruction presents the exact contrary principle inasmuch as the use of the present tense, “is” creates the impression that to be an accomplice that C. would have had to been subject to prosecution at the time of trial.
Thus at a minimum, the court should have instructed the jury that accomplice liability was to be determined at the time of the events in question, and not at the time of trial, as the court erroneously instructed the jury. The jury was well aware that C. could not be prosecuted for the subject shooting because he had already pled to a lesser crime. (RT 853, 919, 920, 947.) Thus, as instructed, there is no logical way that they could have concluded that he was in fact an accomplice, whose testimony required corroboration. Having been thus instructed, the jury would likewise conclude that since corroboration was not required, that C.’s testimony was enough evidence to convict appellant of homicide without any additional evidence, per the court’s instruction with CALJIC 2.27. (RT 817.) The jury was specifically told that if C. was not an accomplice, that they could rely, on his testimony alone as the sole evidence of appellant’s guilt. (RT 817.)
D. The Instructions As Given Violates Due Process of Law
The United States Supreme Court has written, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (See Francis v. Franklin (1985) 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct. 1965; Sandstrom v. Montana (1979) 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.)
Both the failure to give CALJIC 3.16 and/or the incomplete CALJIC 3.10 instruction lessened the government’s burden of proof because it erroneously eliminated any possibility that the jury would look for corroboration for C.’s testimony, even though he was clearly an accomplice, if not the actual perpetrator. Since the jury was not informed of the actual parameters of accomplice principles for the purposes of evaluating C.’s testimony, the prosecution’s burden of proof as to who actually perpetrated this crime was significantly reduced.
E. The Failure to Instruct the Jury Correctly Regarding Distrust of Accomplice Testimony Is Reversible Error Under Any Standard of Review
Because the error impacts the appellant’s constitutional due process rights such error is reversible unless the state shows beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 US. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) The prosecution cannot meet this burden in this case.
When a constitutional right is not at issue, the standard for reversal on this issue is whether the failure to instruct resulted in a miscarriage of justice requiring a reversal. (Cal. Const., art. VI, § 13; People v. Gordon, supra, 10 Cal.3d 460.) “It is well established that ‘ “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ‘ ” (People v. Gordon, supra, 10 Cal.3d at p. 470, quoting from People v. Bevins (1960) 54 Cal.2d 71, 78, quoting from People v. Watson (1956) 46 Cal.2d 818, 836.) Assuming, arguendo that this court applies the lesser standard, that the error is reversible only if it is reasonably probable that a more favorable result would have been reached absent the error, the error is nevertheless prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.)
While the prosecution may point to additional corroboration in the record, such as evidence of flight and oral statements, as will be discussed below, the jury was either improperly or inadequately instructed as to the use of this type of evidence. Moreover, much of the same evidence is equally applicable to C., since he acknowledged he left the Stockton area due to the shooting and told a friend at work that he had a “big problem.” (RT 487, 491‑493, 619.) Thus under the somewhat peculiar circumstances of this case, it defies common sense, if not the law, to rely on evidence that is equally damning to C. to corroborate his testimony.
It is interesting to note that although the Gordon court did not find reversible error, it did not do so based largely on the fact that the witness-accomplice there, Carolyn, had been produced by the prosecution with the clear introduction to the jury that she would tell them half-truths, that she was a liar and involved in the subject murder, even though acquitted. (People v. Gordon, supra, 10 Cal.3d at pp. 471, 472.) This could not be more directly contrary to the present case, where the prosecutor, as will be discussed in the argument concerning prosecutorial misconduct, below, emphasized C.’s status as someone with minor involvement that only qualified him as an accessory after the fact, and who was more believable than appellant because his prior felony only related to that accessory conviction, while appellant had a crime of moral turpitude. (RT 854, 855.) In this case, the prosecution did everything it could to present C. to the jury as someone they, could believe because unlike appellant, he had not admitted he lied to police. (RT 855.)
Here the prosecution had a weak case beyond the evident problems relating to C.’s credibility, which the trial court had also noticed on the record. (RT 738, 1005 [court commented that clearly “things in evidence had not been reconciled by the People” and that the witnesses had not told the “whole story, including C.”]) Beyond that other physical evidence presented at trial did not create an inference that appellant necessarily was the actual shooter.
For example, the prosecution presented contradictory evidence about when the passenger in the Impala, presumably appellant, was hit with the cue stick. C. said that appellant reported he was hit with the cue stick before the shooting began. (RT 489; SCT 18.) Appellant likewise said that he was hit with the cue stick, and then C. started shooting after appellant refused to take the gun offered him by C. (RT 678‑680.) Another prosecution witness, M., said that he hit the unidentified shooter with the stick to stop the shooting. (RT 388, 389.) M. was unable to identify appellant after the shooting in a six-pack photo lineup. (RT 360, 365, 373; ACT 48 ‑‑ Exhibit 31.) Yet another prosecution witness said that the homicide victim, O., actually carried out a cue stick from the bar. (RT 303.) Thus, the fact that appellant had a bruise on his arm did not necessarily establish that he therefore must be the shooter. The prosecution capitalized on both sets of facts to argue appellant’s guilt. (RT 843, 850 [appellant was enraged by being hit and must have started shooting; appellant must be the shooter because M. hit the person shooting with a cue stick and appellant was bruised by a cue stick.].)
Every single percipient witness to the shooting had been engaged in drinking large quantities of beer preceding the shooting. (RT 209, 243, 245, 259, 295, 338‑343, 366‑368, 397.) The birthday celebrants, the group comprised of the victims, were all involved in an apparent drunken brawl outside the bar when the pertinent events occurred. (RT 296, 297, 301‑303, 352, 353, 412, 414, 511, 670-672, 685.) Yet another witness told police after the shooting that the shooter was 18 years old and standing outside the bar, as opposed to being in a car. (RT 625, 626.) Appellant’s appearance, as one can ascertain from a photo of him entered into evidence, is not that of an 18 year‑old, but rather a well‑weathered middle‑aged man. (CT 33; ACT 48; Exhibit 31; [lower left photo is appellant (RT 360, 365, 374)].) V. also told police that O. had the argument in the bar with an 18 year old, not appellant. (RT 625.) At trial this same witness initially said there was no argument, then claimed there was an argument between O. and appellant. (RT 246, 247, 249,258.)
Likewise the fact that the gun was shot out of the passenger side of the car did not necessarily establish that appellant, who was indisputably the passenger, had shot the gun. According to appellant he leaned back after it was clear to him that C. was going to shoot the gun and told him to get out of the way. C. was leaning over appellant while shooting the gun. (RT 682‑684.) Physical evidence supporting this version of facts is the fact that C.’s wife found bullet casings inside the car. (RT 562.) Inasmuch as bullet casings are kicked backwards and to the right, the presence of the casings supports an inference that the gun was shot from within the car, rather than, from someone sitting next to the window and necessarily shooting extended out the window. (RT 636, 637.)
Also significant is that none of the witnesses to the shooting could identify appellant as the actual shooter. They could only acknowledge that the shots were coming from the passenger side of the car, which is not inconsistent with appellant’s version of the events.
Also indicative of the prejudice is the length of the jury deliberations. While the record does not allow for a precise statement of exactly how long the jury deliberated, it supports the conclusion that the jury deliberated at least 7.5 hours. (RT 961, 966; CT 130, 319.) The Supreme Court has stated that a six hour deliberation indicates a weak case, and that it was an indication that the jury had uncertainties regarding the identification of the perpetrator of the crime. (People v. Woodard (1979) 23 Cal.3d 329, 341.)
Based on the foregoing, appellant requests that his convictions be reversed.
 The jury was told by the court that they could establish their own times to deliberate, but was given parameters of 8:30 a.m. to 4:30 p.m. The jury began deliberating on October 1 at 3:15 p.m. (RT 961, 966.) The jury reached a verdict at 4:30 the following day. (CT 130, 319.) Assuming the jury followed the court’s outside time parameters, and took a one and one‑half hour lunch and a fifteen-minute break on October 2, a seven and one‑half hours deliberation time is reached.