Brief Bank # B-746
NOTE: The text of the footnotes appear at the end of the document.
III. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT IF APPELLANT HAD A REASONABLE AND GOOD FAITH BELIEF THAT MR. C WAS DEAD DURING THE TIME OF ASPORTATION THAT THE JURY MUST FIND APPELLANT NOT GUILTY OF KIDNAPPING.
A. Factual background
Trial counsel for co-defendant Roe requested a modified jury instruction based upon CALJIC No. 4.35 [Footnote 1] The instruction was refused by the trial court. The instruction read as follows:
CALJIC No. 4.35 Ignorance or mistake of fact
An act committed made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime.
Thus a person is not guilty of a crime if [he] [she] commits an act under an honest [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make such act. [sic.]
*** If you have reasonable doubt as to whether a mistake of fact negated criminal intent you must find that such intent was not formed. (Forecite California F 4.35.) (CT 609.)
The trial court erred in refusing to give the instruction requested at trial. In the alternative, based on the evidence presented in the case, the trial court had a sua sponte duty to instruct the jury that if appellant had a reasonable and good faith belief that Mr. C was dead at the time of the movement, that they must find him not guilty of kidnapping,
B. The law
A criminal defendant is entitled to have the jury instructed on any defense supported by substantial evidence. “Substantial evidence” in this specific context is defined as evidence which is sufficient to deserve consideration by the jury, that is, evidence from which a jury composed of reasonable people could have concluded that the particular facts underlying the instruction did exist. (People v. Wickersham (1982) 32 Cal.3d 307, 324, cited with approval in People v. Johnson (1993) 6 Cal.4th 1, 42-43; People v. Ceja (1994) 26 Cal.App.4th 78, 85.) Although the defendant’s testimony may differ significantly from that advanced by the prosecution, it may still warrant jury consideration. The trial court may not make its own assessment that the defendant lacked credibility and decide it was not “substantial.” Assessing the credibility of a witness is an exclusive function of the jury and is not to be usurped by the court. (People v. Lemus (1988) 203 Cal.App.3d 470, 477; People v. Mayberry, supra, 15 Cal. 3d 143, 151; People v. Flannel (1979) 25 Cal.3d 668, 684-685.) As stated in People v. Carmen (1951) 36 Cal.2d 768, 773:
The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.
Only where there is “no substantial evidence” to support the defense presented does the court not err in refusing to give instructions based on that defense.
When it comes to jury instructions, “[a] t a minimum, it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case . . .” (People v. Iverson (1972) 26 Cal.App.3d 598, 604.) Moreover, the trial court has “an affirmative duty to give, sua sponte, a correctly phrased instruction on defendant’s theory.” (People v. Stewart (1976) 16 Cal.3d 133, 140.) “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. 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. Sedeno (1974) 10 Cal.3d 703, 716.) “Included within this duty is the . . . obligation to instruct on defenses, and on the relationship of these defenses to the elements of the charged offense. . .” (People v. Stewart, supra, 16 Cal. 3d at p. 140; see also People v.. Montoya (1994) 7 Cal.4th 1027, 1050 [sua sponte duty applies to theories which the evidence “strongly illuminates”].
C. The trial court erred in failing to instruct the jury that if appellant had a reasonable
and good faith belief that Mr. C was dead during the time of the asportation, that the
jury must find appellant not guilty of kidnapping.
As set forth above in Argument II, section (B), the evidence created a strong inference that appellant reasonably believed that Mr. C was dead during the time of the asportation, while at the same time there was no evidence to suggest that he did no so believe. Therefore, the trial court should have given the requested instruction, or in the alternate an instruction specifically tailored to kidnapping. A proper instruction for such a factual setting, is as follows:
It is a defense to the charge of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that Mr. C was dead at the commencement of, and the duration of, the movement of Mr. C. If from all the evidence you have a reasonable doubt whether the defendant believed Mr. C to be dead at the commencement of, and for the duration of, the movement, you must find him not guilty of kidnapping. (3 FORECITE California 9.50d.)
D. Reversal isrequired
Under California law, the failure to give an instruction upon a defense supported by substantial evidence requires reversal unless the omitted issue is decided adversely to the defendant by the jury in another context. (People v. Wickersham. supra, 32 Cal.3d 307, 335, citing, People v. Sedeno, supra, 10 Cal.3d 703; People v. Rivera (1984) 157 Cal.App.3d 736, 743.) Furthermore, an appellate court cannot cure such error by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have accepted the defense. (Ibid.)
Further, failure to instruct on the defendant’s theory of the case where there is evidence to support the instruction violates the defendant’s right to present a defense and to trial by jury as guaranteed by the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process. (United States v. Unruh (9th Cir. 1987) 855 F. 2d 1363 9 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F.2d 772, 777-779.) The Ninth Circuit has consistently stated that if a defendant’s theory of the case is supported by the law. and if there is some foundation for the theory in the evidence, the failure to give the defendant’s proposed jury instruction concerning his or her theory is “reversible error.” (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 11969 1201; United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 159-160; United States v. Sotelo-Murillo (9th Cir. 1989) 887 F.2d 176, 178-179.)
For example, in Escobar de Bright the Ninth Circuit held that the right to have the jury instructed as to the defendant’s theory of the case is one of those constitutional rights whose infraction can never be treated as harmless error. (Id., at p. 1202.) In so holding the court stated that:
Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting, a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal. (Id., at pp. 1201-1202.)
Accordingly, through the trial court’s refusal to instruct the jury on appellant’s theory of defense, the trial court violated his right to have the jury determine every material issue presented by the evidence (People v. Wickersham, supra, 32 Cal.3d 307, 335), and denied appellant his right to present a defense as guaranteed by the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process. (United States v. Unruh, supra, 855 F.2d at p. 1372; Bennett v. Scroggy, supra, 793 F.2d at pp. 777-779.) Consequently reversal is required.
As a failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Article 1, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights, even were a lower standard of prejudice applied, it would have to be said beyond a reasonable doubt that had the jury been properly instructed that it would not have returned a result more favorable to appellant. (Chapman v. California (1967) 368 U.S. 18.)
This was a closely balanced case in which the jury believed appellant’s defense of perfect self-defense and acquitted him of both the murder (Count 1) and the attempted murder (Count 2) charges. The jury likewise acquitted appellant of the kidnapping of Mr. S, believing that Mr. S was dead during, the time of the asportation. As the evidence strongly suggested that appellant believed Mr. C was dead at the time of the asportation, had the jury been instructed that appellant’s reasonable and good faith belief that Mr. C was dead would have to result in a not guilty verdict, it cannot be said beyond a reasonable doubt that they would not have returned a verdict more favorable to appellant.
II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT IF APPELLANT HAD A REASONABLE AND GOOD FAITH BELIEF THAT MR. C WAS DEAD DURING THE TIME OF ASPORTATION, THAT THE JURY MUST FIND APPELLANT NOT GUIILTY OF KIDNAPPING.
Respondent argues that the trial court was not required to instruct on mistake of fact in regard to the kidnapping count (Count IV). (RB 22.) Respondent bases its argument on Penal Code section 26, asserting that because appellant transported the body for purposes of dumping it in a field, which required general criminal intent, appellant was not entitled to an instruction giving the jury the option of finding appellant not guilty of kidnapping based upon a mistake of fact. [Footnote 2] Respondent’s argument is has no merit.
If respondent were correct that section 26 precludes a not guilty verdict based upon a mistake of fact any time a defendant possesses general criminal intent in connection with a crime that is only tangentially related to the crime of which he is accused, a great injustice would follow. Take for example a situation where a defendant is charmed with raping a victim in a public place. Defendant asserts a defense based upon People v. Mayberry, supra, 15 Cal.3d 143, that he reasonably believed the intercourse was consensual, and there is ample evidence to support such a claim. Under respondent’s reasoning the defendant would not be entitled to an instruction telling the jury that if they find that the defendant reasonably believed that the intercourse is consensual, they must find defendant not guilty of rape. This is because under the facts, defendant is still committing the crime of lewd conduct in a public place. (Pen. Code § 647, subd. (a).)
Another example showing the error in respondent’s logic could involve a homicide case. Defendant is hunting in the woods after hunting season is over. He hears a rustling in the bushes which he believes to be a deer, then shoots and kills victim. Assuming there is ample evidence to support the giving of an instruction which provides a defense to homicide based on a mistake of fact, under respondent’s reasoning, defendant would nonetheless not be entitled to any such instruction because he is committing the crime of hunting out of season.
The cases which respondent relies upon in support of its contention that the trial court was not required to give an instruction based upon mistake of fact are distinguishable.
People v. Magpuso (1994) 23 Cal.App.4th 112, People v. Williams (1991) 233 Cal.App.3d 407, and People v. Lopez (1969) 271 Cal.App.2d 754, cert. den. 396 U.S. 935, dealt with the crime of selling drugs to minors, and the refusal of the trial court to give an instruction that if the defendant suffered from a mistake of fact about the age of the person he was selling to, then he could be found not guilty of selling cocaine to a minor.
In People v. Parker (1985) 175 Cal.App.3d 818, the trial court refused defendant’s proposed instruction that his mistaken belief that property was an inhabited dwelling constituted affirmative defense to first degree burglary.
The cases regarding selling drugs to a minor are not applicable to the present case because even if the person to whom the drugs were sold was over 18 years old, selling illegal narcotics is still an element of the crime of selling drugs to a minor. Likewise in Parker, breaking into a property with the intent to permanently deprive is an element of committing a burglary, whether of an inhabited dwelling or otherwise. In the present case, the misdemeanor of disposing of a dead body is a completely separate crime, with different elements, than the crime of kidnapping. In the same way, the crime of committing a lewd act in a public place is a separate crime with different elements than rape, and hunting out of season is a separate crime with different elements than homicide.
People v. Jentry (1977) 69 Cal.App.3d 615, also cited by respondent, was a situation in which the court found the act of mayhem committed against the victim took place as part of one transaction and the fact that victim may have been dead at the time the mayhem was perpetrated did not constitute a defense to felony murder. In People v. McGrath (1976) 62 Cal.App.3d 82, the court found that the theft of the victim’s property took place as part of the same continuous transaction that resulted in the victim’s death, and the fact that the victim was dead when the theft occurred was therefore not a defense to grand theft from the person.
Jentry and McGrath are simply inapposite because they deal with a different issue than that presented here. Neither case concerns the failure to cive an instruction on mistake of fact. In addition, Jently is dissimilar from the present case in that it involved a situation where the crime of mayhem was not only part of the continuous transaction that led to the victim’s death. but the intent of the defendants prior to the killing was to perpetrate the crime of mayhem. Here, there is no evidence that. either appellant or any of his codefendants had the intent to kidnap Mr. C (or transport his apparently dead body to another location) at the time of the assault. Assuming Mr. C had been dead at the time of the asportation, it could not be seriously contended that the act of moving the body would have constituted kidnapping under the rationale of Jentry. [Footnote 3]
In sum, the evidence created a strong inference that appellant reasonably believed that Mr. C was dead during the time of the asportation. Therefore, the trial court should have given the requested instruction, or in the alternative an instruction specifically tailored to kidnapping.
III. THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT ON MISTAKE OF FACT IN REGARD TO COUNT IV
Appellant contends the trial court erred in failing to instruct the jurors that if appellant had a reasonable and good faith belief that Mr. C was dead during the time of asportation, that they must find him not guilty of kidnapping. (AOB 21-26.) The contention must be deemed unavailing
As stated by our Supreme Court in People v. Olsen (1984) 36 Cal.3d 638, 649:
“It is true that at common law ‘”’an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense.’”’ (Hernandez, supra, 61 Cal.2d at pp. 535-536, citation omitted.)”
The court in People v. Lopez (1969) 271 Cal.App.2d 754, cert. den. 396 U.S. 935, stated:
“…As a general proposition, it has been said that a mistake of fact relating only to the gravity of the offense will not shield a deliberate offender from the full consequences of the wrong actually committed.” (Id., at pp. 760-761.)
The foregoing appears to have been codified in Penal Code section 26 which states in relevant part:
“All persons are capable of committing crimes except those belonging to the following classes:
Three – Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.” (Emphasis added.)
In the case at bench, even if appellant believed Mr. C was dead, the transportation of Mr. C’s body for purposes of dumping it in a field required at least a general criminal intent. (Health & Saf. Code, §§ 7050.5(b), 7054, also 102850; see Pen. Code, §§ 32, 153, 182; also 81 A.L.R.3d 1071.) Therefore, regardless of appellant’s belief, he acted with criminal intent, and the court was not required to instruct on mistake of fact. (See People v. Magpuso (1994) 23 Cal.App.4th 112, 115-118; People v. Williams (1991) 233 Cal.App.3d 407, 410-412; People v. Parker (1985) 175 Cal.App.3d 818, 823; People v. Lopez, supra, 271 Cal.App.2d 754; see also People v. Jentry (1977) 69 Cal.App.3d 615, 629-630; People v. McGrath (1976) 62 Cal.App.3d 82, 86-88, hg. den. 11-12-76, questioned in People v. Sellers (1988) 203 Cal.App.3d 1042. 1053. fn. 17.)
Moreover, there would appear to be public policy considerations against recognizing a defense of reasonable mistake of fact as to a kidnapped person being dead since such claims could result in severely injured but live victims being unduly deprived of medical care and/or being, subjected to additional danger such as further attempts to kill as occurred in the case at bench. Thus. one who unlawfully transports a person, even with the good faith belief that the person is dead, should be deemed to do so at his or her peril. (See People v. Olsen, supra, 36 Cal.3d at p. 649.)
As the instruction was requested by co-counsel, it should be deemed to apply to all defendants in the case.
Respondent cites three Health and Safety Code sections that appellant would arguably violate by transporting a dead body and dumping it in a field. (See, Health & Saf. Code, § 7050.5 [removal of human remains from location other than a dedicated cemetery], § 7054 [deposit or disposal of human remains outside cemetery], and § 102850 [notification of coroner].)
As respondent concedes, the specious reasoning of McGrath was questioned in People v. Sellers (1988) 203 Cal.App.3d 1042, 1053, fn. 17. The court in McGrath, in “stretching to affirm a conviction” for grand theft from the person, even though the victim was unquestionably dead at the time of the taking, “bolstered its conclusion by relying on the continuous-transaction theory cadged from felony murder cases.” (Ibid.)