Brief Bank # B-751
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, ) 2 Crim. B-104277
v. ) (Los Angeles Cty.
) Superior Court,
STEPHEN A. Y., ) Southeast District
) Case No. VA-032988)
Defendant and Appellant )
On Appeal from the Judgment of the Superior Court
for the State of California, County of Los Angeles,
The Honorable Dewey L. Falcone, Judge Presiding
APPELLANT’S OPENING BRIEF
Esther R. Sorkin
c/o 1190 So. Victoria Ave.
Ventura, CA 93003
Attorney for Appellant
STEPHEN A. Y.
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN INFORMING THE JURY, BY WAY OF THE INSTRUCTION FORM, OF Y.’S PRIOR CONVICTION BECAUSE IT INFRINGED APPELLANT’S RIGHTS OF CONFRONTATION, CROSS-EXAMINATION, AND COUNSEL
Pursuant to a motion for bifurcation and stipulation, the jury was not to be informed of Y.’s prior convictions until and unless he had been found guilty of the petty theft. (R.T. 14-16, 73; C.T. 100.) No evidence of the prior conviction was introduced during the trial on the petty theft issue. The jury instruction form, unlike anything else mentioned at trial, told the jury that Y. had actually suffered the prior conviction by stating in its title “PETTY THEFT WITH PRIOR CONVICTION — PRIOR ADMITTED.” (R.T. 73-74; C.T. 120.) While this does not explicitly inform the jury of the nature of the prior conviction, it does allow a strong inference that the prior conviction was for a theft-related offense.
“[S]ubstantial prejudicial effect is inherent” in evidence of other crimes. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The prejudicial effect is heightened when the other crime is similar to that which the defendant is standing trial. (People v. Johnson(1991) 233 Cal.App.3d 425, 459.)
The exposure to a prejudicial fact on the jury instruction form is exposure to a fact not in evidence:
“Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. [Citations.]” (Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612.)
While the jury had been informed that items such as arrest and standing trial, which would include the charges contained in the information, were not evidence of guilt, (R.T. 75-76; C.T. 103-104), the same admonition was not given regarding factual matters disclosed on the instruction forms. This is especially problematic because the verdict form did more than the information; the information merely told the jury that Y. had been charged with suffering a prior conviction, whereas the information form told the jury that Y. had admitted the prior conviction.
The written information was sent back into the jury room during deliberations and the jury was told both that the instructions would control over other statements concerning the law and that all parts of the instructions were of equal importance. (R.T. 75, 89-90; C.T. 103, 127.)
The jury’s exposure to Y.’s prior conviction constitutes exposure to facts not in evidence. Jury exposure to a file showing that the defendant had suffered a prior conviction warranted reversal when the file had been sent inadvertently into the jury room. (United States v. Vasquez (9th Cir. 1979) 597 F.2d 192, 193-194.) Here, the instruction forms containing the inadmissible fact was sent into the jury room deliberately.
The timing of the jury’s exposure to the non-evidence also maximizes its prejudicial impact. Since this non-evidence was introduced after the jury began its deliberations, Y. had no opportunity “to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument … or to take other tactical steps that might ameliorate its impact.” (Gibson v. Clanon (9th Cir. 1980) 633 F.2d 851, 854.)
That a motion for mistrial based on the reading of the information was properly denied (R.T. 73-74) is irrelevant to the error caused by the use of instruction forms to convey similar information. The jury was expressly told that fact of a trial (which includes the reading of the information) is not evidence of guilt, but was not told the same thing regarding the instruction forms. More importantly, the jury was told that the fact that Y. had been charged with anything (including the prior conviction) could not be used as evidence of guilt, but the verdict form told the jury that Y. had actually admitted that he had a prior conviction.
This is not the case where there is a generalized attack on the descriptive titles on the written instructions. (People v. Bloyd (1987) 43 Cal.3d 333, 355.) Nor is this a case where a correct instruction was given an erroneous label. (People v. Lvons (1991) 235 Cal.App.3d 1456, 1462-1463.) Rather, this is a case where the descriptive title was used to convey highly prejudicial factual information. There is no authority allowing jury exposure to prejudicial non-evidence simply because the non-evidence was noted on the jury instruction form, rather than on a separate piece of paper.
The trial court had a sua sponte duty to delete the words “WITH PRIOR CONVICTION ‑‑ PRIOR ADMITTED” from the instruction form. (C.T. 120.) “[I]t is the duty of the trial judge to see that a case is not defeated by ‘mere inadvertence’ … and ‘to call attention to omissions in the evidence or defects in the pleadings’ which are likely to result in a decision other than on the merits. [Citation.] (People v. St. Andrew (1980) 101 Cal.App.3d 450, 457.
Here, the trial court had been told of the problems involved in informing the jury of Y.’s admitted prior conviction. Appropriate steps were taken to minimize the prejudicial effect of one incident, the reading of the information. (R.T. 73-74.) Here, as in St. Andrew, court action “would presumably have cured the defect on the spot without prejudice to the interests of any party,” and the failure to take such action “constitutes … an unwarranted abdication of the judicial role.” (Ibid.)Moreover, imposing on the trial court a sua sponte duty to delete words from the title of the jury instruction is consistent with the trial court’s sua sponte duty to correct jury instructions. (People v. Cole (1988) 202 Cal.App.3d 1439, 1446.)
Insofar as a request for modification of the instruction form may have been required, Y. received ineffective assistance of counsel, in violation of the Sixth Amendment. The issue here is not the usual problem with modification of jury instructions, but is more analogous to failing to object to damaging but inadmissible evidence, which can clearly constitute prejudicially deficient performance by counsel. (In re Wilson (1992) 3 Cal.4th 945, 955-957.)
Counsel here could have no tactical reason for allowing the jury to be told of prejudicial information that had been excluded from evidence. “[H]is duty was to fight for his client, not to open the gate to an overwhelming flood of … damning evidence.” (People v. Coffman (1969) 2 Cal.App.3d 681, 691.)
Regardless of how the error is classified, the result was jury exposure to highly prejudicial non-evidence, which mandates reversal of the conviction unless it can be shown that the error was harmless beyond a reasonable doubt. (United States v. Vasquez, supra, 597 F.2d at 193-194.) The non-evidence exposed to the jury concerned an admission of a prior conviction, which casts doubt on the reliability of the fact finding process, mandating reversal under any standard:
“There is little doubt exposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial. [Citations.]” (emphasis added.) (People v. Harris (1994) 22 Cal.App.4th 1575, 1580, citing among other cases, People v. Morgan (1978) 87 Cal.App.3d 59, 76 [evidence of prior wrongdoing “obviously of a prejudicial nature”].)
The threat that a jury will convict to punish a defendant, not for the charged offense but for other misconduct, is not speculation, but a genuine danger. (United States v. Bradley (9th Cir. 1993) 5 F.3d 1317, 1321.) The danger is increased when the nature of the other misconduct is an admitted prior conviction of a crime. When, as here, the prosecution’s case depends on the credibility of one person, anything that tends to change the issue from “am I convinced beyond a reasonable doubt that this person’s testimony is true” to “this person’s testimony is true because defendant is an admitted criminal” is necessarily prejudicial.
The jury was exposed to non-evidence showing that Y. had suffered a prior conviction, in violation of his Sixth Amendment rights to confrontation, cross-examination, and the presence, or, effective assistance, of counsel. The non-evidence exposed the jury to the most prejudicial form of information available: admission of an otherwise inadmissible prior conviction for a similar offense. Reversal is required.
REMAINDER OF THE BRIEF NOT SENT