B-780

Brief Bank # B-780 (Re: FORECITE F 4.30 n3 [Unconsciousness As Technical Term Requiring Sua Sponte Definition])

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

vs.

JOHN DOE,

Defendant and Appellant.

APPELLANT’S OPENING BRIEF

II. THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY ON THE DEFINITION OF THE WORD “UNCONSCIOUS” AS USED IN THE INSTRUCTIONS, THEN COMPOUNDED THE ERROR BY REFUSING THE JURY’S SPECIFIC REQUEST AT THE COMMENCEMENT OF THEIR DELIBERATIONS FOR A LEGAL DEFINITION OF THIS WORD, REQUIRING REVERSAL.

A. Procedural Background.

The defense theory of the case presented to the jury was that John Doe was unconscious at the time of the shooting of Ms. Roe because of voluntary consumption of alcohol, reducing his crime to involuntary manslaughter. In accordance with this theory the trial court instructed the jury pursuant to CALJIC 8.47, “Involuntary Manslaughter-Killing While Unconscious Due to Voluntary Intoxication,” as follows:

“If you find that a defendant while unconscious as a result of voluntary intoxication killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter. [¶] When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts inherently dangerous to human life or safety. Under such circumstances, the law implies criminal negligence.” (RT 500; CT 180)

The court also instructed the jury pursuant to 4.31, “Presumption of Consciousness”:

“If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if he were conscious, you should find that he was conscious, unless from all the evidence you have a reasonable doubt that the defendant was, in fact, conscious at the time of the alleged crime. [¶] If the evidence raises a reasonable doubt that the defendant was, in fact, conscious, you must find that he was then unconscious.” (RT 497; CT 172)

Following instruction and argument, the jury retired to begin their deliberations at 5:15 p.m. on July 25, 1995. At 5:45 p.m., they returned to the courtroom with a note signed by their foreperson with four requests from the jury to the court. The final item requested was, “A legal definition of the word ‘unconscious’ as it applies to the reference of the word ‘unconscious’ in the jury instructions.” (RT 601-602; CT 197) The trial judge responded to this request in the following manner:

“The Court: * * * First of all, Ms. ___ [foreperson] and the jury, I cannot by law give you a legal definition of the word ‘unconscious.’ Whatever there is is included in the instructions themselves with the assistance of testimony. Is that clear to the jury?” (RT 603-604)

B. The Instructional Error: “Unconsciousness” is a Technical Legal Term Requiring Sua Sponte Definition, Which is Provided in CALJIC 4.30; the Trial Court Erred by Refusing the Jury’s Request for the “Legal Definition of ‘Unconscious’” as Used in the Instructions, and Compounded the Error by Telling the Jury It Could Not “By Law” Give Such a Definition.

The general rule is that absent a request, clarifying instructions need not be given if the terms used in the instructions given are “commonly understood by those familiar with the English language.” However, there is a sua sponte duty to instruct if the terms in question have “a technical meaning peculiar to the law.” (People v. Purcell (1993) 18 Cal.App.4th 65, 71; People v. Brucker (1983) 148 Cal.App.3d 230, 238; People v. Anderson (1966) 64 Cal.2d 1269.) The basis for this rule was succinctly set out by the court in People v. Shoals (1992) 8 Cal.App.4th 475:

“‘It is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. [Citation.] A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation]. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779; Pen. Code, § 1138. . . .)” People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490, emphasis added.)

While “unconscious” is a word used often enough in common speech, its colloquial meaning is at odds with the technical, medical-legal meaning which it has in the context of a total or partial defense to criminal charges. Webster’s define’s unconsciousness as follows:

“unconscious . . . adj. 1. a) not endowed with consciousness; mindless b) temporarily deprived of consciousness [unconscious from a blow on the head] 2. not aware (of) [unconscious of his mistake] 3. not known, realized, or intended; not done, said, etc. on purpose [an unconscious habit, unconscious humor] 4. not aware or one’s own existence; not conscious of self 5. having to do with those of one’s mental processes that one is unable to bring into one’s consciousness —the unconscious Psychoanalysis the sum of all thoughts, memories, impulses, desires, feelings, etc. of which the individual is not conscious but which influence his emotions and behavior. . .” (Webster’s New World Dictionary of the American Language (2nd College Ed., World Publ. Co., New York 1970), p. 1545.)

None of these dictionary definitions of “unconscious” effectively expresses the particular legal meaning of the term as a defense to criminal conduct. [Footnote 1] In People v. Saille (1991) 54 Cal.3d 1103, 1121, a murder case with an unconsciousness defense, the supreme court made it clear that the legal definition of unconsciousness applicable to such a defense is that found in CALJIC 4.30. That provision states, in relevant part, that an unconsciousness defense “. . . applies to persons who are not conscious of acting but who perform acts while asleep, or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor or any similar cause . . .”, adding that “[u]nconsciousness does not require that a person be incapable of movement.” (CALJIC 4.30.) The Use Note to CALJIC 8.47 confirms this holding in Saille, providing that “CALJIC 4.30 defines unconsciousness.” (CALJIC, 5th Ed., Jan. 1995 Supp., Use Note to CALJIC 8.47. [Footnote 2])

The relevant, critical language present in this definition of unconsciousness and missing from the colloquial, dictionary definition, is that a person can perform actions without being conscious of such actions because he or she is suffering from a state of delirium as a result of voluntary intoxication, and that unconsciousness does not require that a person be incapable of movement.

While no court has specifically found a sua sponte duty to define “unconscious,” the supreme court in People v. Clark (1993) 5 Cal.4th 950, which was confronted with this question, declined the opportunity to conclude that there was not such duty, and assumed, without deciding, that “unconscious” has a sufficiently technical, legal meaning to require sua sponte instruction. (Id., at p. 1020.) [Footnote 3] The court in Clark held further, though, that instructions pursuant to CALJIC 4.31 and 8.47 were sufficient to convey the meaning of “unconscious” which the defendant claimed was missing:

“. . .[T]here is no question in this case that the jury instructions as given adequately conveyed to the jurors that the law contemplates that an unconscious person can be capable of movement. CALJIC No. 4.31 itself advised the jury that a reasonable doubt that the defendant was conscious required a finding that he was unconscious even if he ‘acted as if he were conscious. . . .’ CALJIC No. 8.47, as given by the court, told the jurors that ‘[i]f you find that the Defendant killed while unconscious as a result of voluntary intoxication and therefore did not form a specific intent to kill or did not harbor malice aforethought, his killing is involuntary manslaughter.’ Both of these instructions unmistakably convey to a reasonable juror the information that defendant claims was missing from the instructions. (People v. Clark, supra, at p. 1020.)

Although these same instructions were given at Mr. Doe’s trial, the instant case is distinguishable from Clark because even with these instructions before it, the jury in the instant case sought further legal guidance from the trial court, requesting “[a] legal definition of the word ‘unconscious’ as it applies to the reference of the word ‘unconscious’ in the jury instructions.” (CT 197) Our supreme court has stressed that a trial judge has an enhanced duty to clarify the meaning of a particular legal term when requested to do so by a deliberating jury. (See People v. Sanders (1995) 11 Cal.4th 475, 561; People v. Hawthorne (1992) 4 Cal.4th 43, 76.) Thus, even if there is no sua sponte duty to define a particular term, where a jury indicates confusion over the term and specifically requests an instruction defining the term, the court must honor their request. (People v. Miller (1981) 120 Cal.App.3d 233, 236 [no sua sponte duty to define “great bodily injury,” but court must do so when jury requests definition], cited with approval in People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “Only by answering the jury’s request does the court fulfill its duty to instruct on those elements of the case necessary for the jury to reach an informed decision.” (People v. Miller, supra, at p. 236.)

Here, the jury’s request makes it indisputably clear that the instructions pursuant to CALJIC 4.31 and 8.47 were insufficient to convey to them the legal definition of “unconscious” as used in the instructions. Thus, the trial court was obligated to answer the jury’s request by reading them the relevant portions of CALJIC 4.30 which the supreme court in Saille and the drafters of CALJIC recognize as the legal definition of “unconscious.” (People v. Saille, supra, 54 Cal.3d at p. 1121, CALJIC 8.47 (Use Note), supra.) [Footnote 4]

Instead of giving this instruction, which even a rudimentary review of CALJIC would have disclosed was the appropriate definition of “unconscious,” the trial court told the jury, “I cannot by law give you a legal definition of the word ‘unconscious’ . . .”, and referred the jury to other, unspecified instructions and “the assistance of testimony.” (RT 603-604) These comments by the court were extremely misleading. Here was a jury diligently seeking to understand how to apply the court’s instructions concerning the only defense presented to them, which was predicated upon unconsciousness; unsure about the meaning of the central term “unconscious” based on the instructions given to them, they straightforwardly asked the court for a “legal definition” of the term; and rather than read to them the relevant portion of CALJIC 4.30, which both the state supreme court in Saille and the drafters of CALJIC recognize as stating the legal definition of “unconscious,” the judge told the jury, in effect, that he was forbidden by law to say anything more about the meaning of “unconscious” than what they had already heard in their instructions. (RT 602-604)

Appellant submits that the trial court failed in its obligation to sua sponte instruct the jury on the legal definition of “unconscious” as provided in CALJIC 4.30, compounded that error by denying the jury’s specific request for such a definition, and exacerbated the error further through its misleading and erroneous statement that the court was prohibited by law from giving them a legal definition of “unconscious.”

C. The Failure to Define “Unconscious” as Used in the Instructions Requires Reversal Under the State and Federal Constitutions.

1. Standard of Review.

In determining whether this error requires reversal, the first question to be resolved concerns the appropriate prejudice standard. Several cases have held that the failure to define a technical legal term which is a material element of a charged offense is a denial of a defendant’s constitutional right to have a jury determine every material issue presented by the evidence, and that such an error requires reversal “regardless of the strength of the prosecution’s case.” (People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490, quoting People v. Reynolds, supra, 205 Cal.App.3d at p. 779.) Other courts considering similar errors hold that Chapman harmless error analysis is required where such error affects only an aspect of an element of a crime, without eliminating the element from the jury’s consideration. (See People v. Purcell, supra, 18 Cal.App.4th at p. 74, People v. Harris, 47 Cal.3d at p. 1100, and People v. Harris (1994) 9 Cal.4th 407, 416-427.)

None of these cases considered the failure to define a technical legal term which is central to an affirmative defense put forward by the defense, as opposed to an element of the crime. The two cases which appellant has found which have considered this type of error have both concluded that the Sedeno [Footnote 5] standard for error in failing to instruct on a lesser included offense or affirmative defense shown by the evidence is applicable. Thus, in both People v. Brucker, supra, 148 Cal.App.3d at pp. 239-240, and People v. Thurmond (1985) 175 Cal.App.3d 865, 872-873, the courts held that the failure to define “culpable negligence” in connection with an “accident and misfortune” defense requires reversal unless the jury necessarily resolved the question posed by the omitted instruction based on other instructions. The court in Thurmond reversed, citing the rule that “[i]nstructional error will justify a reversal of the judgment where, as here, the jury is misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the defendant’s guilt.” (Thurmond, supra, at p. 874, citing People v. Rogers (1943) 22 Cal.2d 787, 807, and People v. Wilson (1967) 66 Cal.2d 749, 764.)

Appellant contends that the instructional error in failing to define “unconscious” is also federal constitutional error. An instructional error which has the effect of lessening the prosecution’s burden of proof in a case violate the defendant’s Sixth Amendment right to trial by jury and the due process clause of the Fourteenth Amendment. (See Yates v. Evatt (1991) 500 US 391 [114 LEd2d 432, 446-450]; Martinez v. Borg (9th Cir. 1991) 937 F2d 422, 423.) The court’s failure to define “unconscious” effectively reduced the prosecutor’s burden of disproving “unconsciousness” once appellant had put the defense before the jury. (See People v. Babbitt (1988) 45 Cal.3d 660, 694 [prosecution assumes burden of disproving unconsciousness once defense raises issue].) The effect of this was to effectively deprive Mr. Doe of his unconsciousness defense. Thus, the error is federal constitutional in dimension because it involves a trial court’s refusal to give proper instructions on a defense theory of the case. (See United States v. Zuniga (9th Cir. 1993) 6 F.3d 569, 570; United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198; United States v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-779; U.S. Const., 5th, 6th & 14th Amends.)

Appellant also believes that the error violated the federal constitution in the same sense as the failure to define a technical legal term that is an element of the offense because in both cases, the court’s error deprives a defendant of his constitutional right to have a jury determine a crucial material issue presented by the evidence. (People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490) Under Shoals, the error is reversible per se. (Id.)

2. Requirement of Reversal.

Appellant submits that reversal is required under all of the above-described standards, or under California’s traditional Watson test. Looking first to the Sedeno test (People v. Brucker, supra, 148 Cal.App.3d at pp. 239-240, People v. Thurmond, supra, 175 Cal.App.3d at pp. 872-873), it cannot be said that the jury “necessarily” resolved the questions posed by the omitted definition of “unconscious” under instructions actually given to them. While the court in Clark found that the jury received sufficient guidance as to the meaning of “unconscious” from the instructions given pursuant to CALJIC 4.31 and 8.47 (People v. Clark, supra, 5 Cal.4th at p. 1020), in the instant case, the jury, which had these two instructions before it, specifically requested clarification of the meaning of “unconscious” in the instructions. Thus “. . . it no longer can be presumed that the jury understands the meaning of the term.” (People v. Miller, supra, 120 Cal.App.3d at p. 236.) In this situation, the trial court was obligated to give the requested instruction (id.) and this court cannot properly conclude that the jury’s verdict of guilt on second degree murder charges “necessarily” resolved the issues which an instruction properly defining unconsciousness would have put before them. Thus, reversal is required under the Sedeno standard applied in Brucker and Thurmond.

Reversal is also required under both Chapman and Watson harmless error analysis. The evidence in support of the unconsciousness defense was strong. Mr. Doe told the police that he had consumed an enormous quantity and strength of alcoholic beverages the night of the shooting, a description confirmed by the physical evidence of empty bottles found by the police in his hotel room. (RT 63, 66-69; Ex. 2, pp. 3, 5, 9, 21.) Doe’s extensive history of alcoholism, prior documented “true” blackout episodes, and total lack of memory of the time of the shooting, contrasted to his sequential recall of the Ohio shooting, led Dr. Woods, the defense expert, to opine that Doe was in a alcohol-induced intoxication delirium at the time of the shooting, one characteristic of which is an impairment of consciousness. (RT 374-384)

The prosecutor’s response to this strong evidence was an all-out attack both on the possibility that Doe’s intoxication in any way gives rise to a lesser verdict of involuntary manslaughter and on the notion that an unconscious person could have committed the acts which Mr. Doe must have done in the shooting of Ms. Roe. First, while discussing the instructions on the unconsciousness defense, the prosecutor argued to the jury that the crime was not involuntary manslaughter because shooting a person in the head from close range is not a negligent act.

“Involuntary manslaughter is if instead of putting the gun next to her head, he got blind drunk, pointed that gun out the window and, without regard, just to celebrate, emptied the clip, fired off all the rounds in the gun, and one of the bullets happened to strike Ms. Roe, who at the time was walking down the street. That is involuntary manslaughter because he’s demonstrated negligence in his actions.” (RT 524)

During his comments to the jury in his rebuttal argument, the prosecutor drove this point home, analogizing action committed while unconscious to a “random” act of a madman, and attacking the notion that Mr. Doe could have been unconscious when he killed Ms. Roe:

“What’s the intent? I want you to answer this question together while you’re discussing this case. Here’s your question. When John Doe put the muzzle of this gun against Ms. Roe’s head and pulled the trigger he intended to — there’s the blank. You come up with an answer.

“The first answer that comes to mind is, of course, kill Ms. Roe. All right. Have you got a reasonable answer other than that one?

“This whole trial has been about what did he intend to do at that moment, in that precise second. Counsel [for defendant] didn’t say anything about it in the last two hours. So answer that question. When you come up with a reasonable answer, you’re going to be able to come to a verdict.

“This was not a random act. Counsel keeps talking about unconscious, and it’s been used in so many different ways I don’t know what it means anymore. This was not a random act. I was waiting for him to explain how that poor woman ended up face down on the bed with her arms crossed and half her clothes off.

* * *

“At the time he pulls the trigger, what was he intending to do if it’s not kill that poor woman. At the time he’s pulling the trigger, counsel said there’s nothing sexual going on in the room. How come she’s got half her clothes off? How come one of her stockings is halfway down? What’s he doing when he puts the gun up against her head?

“Take a look here. This is how John Doe had sex with women. This is what happened in the last couple seconds before that woman died.

“That’s all I really want to talk about. I don’t care about his drinking habits. I don’t care about his alcoholism. I don’t care about most of what counsel talked about. All I care about is what his intent was.

“If that man was unconscious — that word, ‘unconscious’ — at the time he pulls that trigger, I don’t know what the word means if he can do all that up to the shooting and everything he did after that shooting and claim that he was unconscious. Who was doing it? Some demon took over his body?

“This is not an unconscious act, it’s not a random act, it’s not an accident, it’s not a mistake. It’s a murder. The man committed a murder, and all I want you to do is hold him accountable for it. It’s not your fault, it’s not my fault; it’s what he did, and that’s’s why he’s here.

“Thank you. [¶] Thank you, your honor.” (RT 597-599, emphasis added)

The prosecutor’s strategy with respect to the unconsciousness defense is clear from the preceding passages: on the one hand, focus on the act of shooting itself, and attendant circumstances; and on the other, attack the very notion underlying the defense by ridiculing the central claim—i.e., that a long-term, final-phase alcoholic who consumed enormous quantities of alcohol could black out to the point where they performed violent acts without being conscious of such action. The trial judge’s failure to give the clarifying instruction requested by the jury, which would have advised them that individuals can perform actions without being conscious of them when they are in a substance induced intoxication delirium as a result of voluntary intoxication, and that unconsciousness does not require that a person be incapable of movement (CALJIC 4.30), made possible the type of argument engaged in by the prosecutor, i.e., equating “unconscious”acts with random, or negligent acts, and attacking the notion of a person committing a shooting while unconscious as tantamount to a claim that a demon took over his body. (RT 597, 599) With the proper, legal definition of “unconscious” before them, the jury would not have heeded the prosecutor’s claim that the word had been “used in so many ways” he didn’t know what it meant any more, or that he didn’t know what “unconscious” meant any more if Mr. Doe was unconscious when he killed Ms. Roe. (RT 597, 599)

It is true that defense counsel had the chance to counter this attack, and argue, based on the evidence and expert testimony of Dr. Woods, that the prosecution had not proven beyond a reasonable doubt that Mr. Doe’s actions could not have been committed while he was unconscious. (See, e.g., RT 537-550, 572-573) However, as our nation’s highest court has noted in Boyde v. California (1990) 494 U.S. 370, “. . . arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, . . . and likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” (Id., at p. 384; see also People v. Payton (1992) 3 Cal.4th 1050, 1070.)

As noted in Part I-E above, the length of the jury’s deliberations, their questions to the court, and their acquittal on the greater charge of first degree murder all suggest that this was a close case. Reversal is required because this court cannot conclude that the trial court’s error in refusing the jury’s request for the legal definition of unconsciousness is harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)

Assuming, arguendo, that this court concludes that the instructional error is not federal constitutional in dimension, reversal is required under the Watson test for the reasons discussed in the comparable cases of Miller and Thurmond. In Miller, where it was a “close question” whether the defendant’s use of force was sufficient to be likely to cause great bodily injury, the trial court’s refusal to give the clarifying instruction requested by the jury on the meaning of “great bodily injury” led the court to conclude that it was reasonably probable that if the jury had been given the proper definition it would have found him guilty of a lesser charge. (People v. Miller, supra, 120 Cal.App.3d at p. 236.) In the instant case, it was a close question whether the prosecution had proven beyond a reasonable doubt that appellant John Doe was conscious when he killed Ms. Roe; thus, the trial court’s refusal to define “unconscious” when requested to do so by the jury, coupled with the court’s misleading and incorrect statement that it could not do so “by law” (RT 603), make it reasonably probable that a verdict more favorable to Mr. Doe would have resulted had the court properly fulfilled its duties and given the requested clarifying instruction.

In Thurmond, the court’s error in failing to define “culpable negligence,” a technical legal term crucial to the defense of mistake or accident put forward by the defendant (People v. Thurmond, supra, 175 Cal.App.3d at p. 872), was held to require reversal because it caused the jury to be “misdirected or misled upon an issue vital to the defense” in a case where the evidence did not “point unerringly to the defendant’s guilt.” (Id., at p. 174.) In the instant case, the court’s failure to define the central term of his proffered defense, “unconscious,” even after the jury requested guidance as to this key point, made it possible for the prosecutor to misdirect and mislead the jury about the meaning of this term as applied to the facts of the instant case. The evidence presented to the jury—in particular, the proof of the extent of Doe’s intoxication on the night of the shooting, his prior history of blackouts, and the expert testimony tying these two factors to “true” blackouts characterized by a total failure of memory and an impairment of consciousness—was such as to create a strong defense of unconsciousness, and certainly cannot be said to have pointed “unerringly” to Mr. Doe’s guilt for murder. Thus, under the Watson test as applied in similar cases, reversal is required.

APPELLANT’S OPENING BRIEF FOOTNOTES

Footnote 1: The jury in the instant case seemed to understand this, asking the judge for the “legal definition of ‘unconscious’ . . .” (CT 197, emphasis added), recognizing that the term was being used in the instructions in a different manner than their own understanding of it.

Footnote 2: We refer to this older supplement of CALJIC as it was current at the time of appellant’s trial.

Footnote 3: One lower appellate court has held that a trial court properly refused instruction on 4.30 and 4.31 in an attempted murder case with an intoxication defense. (People v. Walker (1993) 14 Cal.App.4th 1615, 1621) The court in Walker held that these instructions were inapplicable to a case involving voluntary intoxication, and that it was sufficient for the court to have given 4.20, 4.21, and 4.22. Walker is distinguishable from the instant case for two reasons. First, there is no indication that unconsciousness, as opposed to intoxication, was the gravamen of the defense in Walker; thus, while CALJIC 8.47 and 4.31 were given in the instant case, putting the question of unconsciousness squarely before the jury, there was no comparable instruction on unconsciousness in Walker which would have necessitated a definition of this term, and no suggestion that the defense had requested modified instructions under 4.30 and 4.31 which would have related evidence of voluntary intoxication to some lesser related crime to attempted murder, e.g., assault with a deadly weapon. Second, Walker was decided before Clark, and did not consider whether “unconsciousness” was a technical term requiring sua sponte definition. “Cases are not authority for propositions not considered therein.” (Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 73.)

Footnote 4: CALJIC 4.30 refers to a complete defense to crime based on involuntary unconsciousness. A suggested definition of “unconscious” in CALJIC 4.30 modified to apply to a partial, involuntary manslaughter defense to murder, would be as follows:

“Unconsciousness does not require that a person be incapable of movement. This rule of law applies to persons who are not conscious of acting but who perform acts while suffering from a delirium as a result of the voluntary consumption of intoxicating liquor.” (CALJIC 4.30, modified to apply to a partial defense based on voluntary intoxication under the facts of the instant case.)

Footnote 5: People v. Sedeno (1974) 10 Cal.3d 703.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

vs.

JOHN DOE,

Defendant and Appellant.

APPELLANT’S REPLY BRIEF

II. THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY ON THE DEFINITION OF THE WORD “UNCONSCIOUS” AS USED IN THE INSTRUCTIONS, THEN COMPOUNDED THE ERROR BY REFUSING THE JURY’S SPECIFIC REQUEST AT THE COMMENCEMENT OF THEIR DELIBERATIONS FOR A LEGAL DEFINITION OF THIS WORD, REQUIRING REVERSAL.

Appellant believes that most of the points made by respondent with respect to this issue in Part II of its brief are adequately addressed by the discussion in Part II of the opening brief. A few of respondent’s contentions require some comment in reply.

In Part II-B respondent asserts that the California Supreme court in People v. Clark (1993) 5 Cal.4th 950 “rejected” the notion that there is a sua sponte duty to define unconsciousness. (RB, p. 28.) Clark did nothing of the kind. As the quoted passage from Clark makes clear, the court assumed without deciding that “unconscious has a sufficiently legal, technical meaning to require a sua sponte instruction.” (Id., at p. 1020.) [Footnote 6] Although the court in Clark concluded that the instructions actually given under CALJIC 4.31 and 8.47 were sufficient to convey this meaning (Clark, supra, at p. 1020), as pointed out in the opening brief, the instant case is distinguishable from Clark because even with these instructions the jury sought further legal guidance as to the “legal definition of the word ‘unconscious’” in the instructions (CT 197), proof positive that the instructions were not sufficient to convey the correct legal, technical meaning of unconscious to this particular jury.

The next point concerns respondent’s characterizes of the provisions of CALJIC 4.30 as a “possible definition” of the term “unconscious.” (RB, p. 28.) As pointed out in the opening brief, both the supreme court in People v. Saille (1991) 54 Cal.3d 1103 and the drafters of CALJIC in the use note to CALJIC 8.47 characterize the language of CALJIC 4.30 as the correct legal definition of “unconscious.” (Saille, supra, at p. 1121; CALJIC, 5th Ed., Jan. 1995 Supp., Use Note to CALJIC 8.47.) Thus, appellant’s suggested definition of “unconscious” in footnote 13 of the opening brief is based on clear authority.

Third, respondent seems to be contending that appellant cannot complain about the trial court’s failure to properly define “unconscious” after the jury’s request that it do so because he did not object to the trial court’s failure to provide additional instructions. (RB, pp. 29.) But the cases cited without discussion by respondent as to this point, People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433, and People v. Kaegler (1973) 32 Cal.App.3d 738, 746 are inapposite. Both involved technical violations of the provisions of Penal Code section 1138 concerning the court’s obligation to respond to jury requests in the presence of counsel and the defendant, holding that any error under this provision is waived by defense counsel’s failure to object. (Id.) Neither of these cases involved anything approaching the error in the present case, i.e., the court’s failure to give what amounts to a sua sponte instruction defining a crucial legal term central to the defense presented at trial.

Respondent’s further contention that additional instruction based on a jury’s request for clarification is discretionary (RB, p. 29) ignores the salient authority of People v. Miller (1981) 120 Cal.App.3d 233, 236, cited in the opening brief, which held that even when there was no sua sponte duty to define “great bodily injury,” once the jury requests such a definition the trial judge is obligated to provide it for them. (Id., at p. 236, cited with approval in People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “Only by answering the jury’s request does the court fulfill its duty to instruct on those elements of the case necessary for the jury to reach an informed decision.” (People v. Miller, supra, at p. 236.)

Fourth, respondent’s brief discussion of prejudice assumes without any real argumentation that the Watson standard applies. (RB, p. 30.) For the reasons discussed in the opening brief, the failure to define “unconscious,” a technical legal term crucial to the only defense presented at trial, is federal constitutional error because it both lessened the prosecution’s burden of proving guilt and deprived Mr. Doe of his right to have the jury make a proper determination of a crucial material issue presented by the evidence . (See AOB, pp. 39-41.) [Footnote 7]

Finally, respondent’s one paragraph discussion as to why any error is harmless (RB, p. 31) ignores the rather detailed discussion of this subject in Part II-C-2 of appellant’s opening brief. (AOB, pp. 41-47.) For the reasons discussed at length therein, reversal is required under both the state and federal constitutional standards.

APPELLANT’S REPLY BRIEF FOOTNOTES

Footnote 6: We argued in the opening brief that the dictionary definitions of “unconscious” are inadequate to convey the legal meaning of the term (AOB, pp. 35-36), a point which respondent does not dispute.

Footnote 7: Respondent suggests in a footnote that the Sedeno type analysis (People v. Sedeno (1974) 10 Cal.3d 703) which appellant suggested applies to this error is inappropriate in light of the high court’s recent decision in California v. Roy (1996) 519 U.S. ___ [136 L.Ed.2d 266.) (RB, p. 30, fn. 5.) However, respondent missed the rather obvious point that appellant’s reference to this standard was based on two cited California cases applying state law harmless error analysis, People v. Brucker (1983) 148 Cal.App.3d 230, 239-240, and People v. Thurmond (1985) 175 Cal.App.3d 865, 872-873.

Supreme Court No.

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

vs.

JOHN DOE,

Defendant and Appellant.

ANSWER TO PETITION FOR REVIEW

II. ADDITIONAL ISSUE IF REVIEW IS GRANTED: THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY ON THE DEFINITION OF THE WORD “UNCONSCIOUS” AS USED IN THE INSTRUCTIONS WHEN IT REFUSED THE JURY’S SPECIFIC REQUEST AT THE COMMENCEMENT OF THEIR DELIBERATIONS FOR “A LEGAL DEFINITION OF THE WORD ‘UNCONSCIOUS,” REQUIRING REVERSAL.

A. Procedural Background.

The court also instructed the jury pursuant to 4.31, “Presumption of Consciousness”:

Appellant argued on appeal that the trial court erred by failing to sua sponte define “unconscious” for the jury, and additionally erred when it failed to provide such a definition when asked to do so by the deliberating jury. In its opinion below, the court of appeal found it unnecessary to resolve the question whether the failure to define “unconscious” constituted instructional error, but made the following comments on this issue:

“Defendant also ascribes as error the court’s failure to inform the jury that a person can be unconscious even though ambulatory. A similar claim was rejected in People v. Clark (1993) 5 Cal.4th 590, 1020, in light of other instructions, which were also given here. Defendant suggests Clark is distinguishable because, shortly after deliberations began here, the jury asked the court to define ‘unconscious,’ and to provide transcripts of both Dr. Woods’s testimony and defendant’s statement to police. The court replied that it could not ‘by law give [the jury] a legal definition of the word “unconscious.” Whatever there is is included in the instructions themselves with the assistance of testimony.’ CALJIC 4.30, which was not given, contains the following language: ‘Unconsciousness does not require that a person be incapable of movement.’ Commentary to the pattern instruction refers to applicable cases.

“The attorney general correctly points out that defendant did not request amplification of the instructions when the court responded to the jury’s question, and argues the point is waived.

“It is troubling that the trial court inaccurately told the jury that the law prevented it from providing further legal definition of the term ‘unconscious,’ particularly when helpful sources were readily at hand. We are mindful that the areas in which the court must instruct sua sponte or risk reversal are appropriately limited. The trial court should also be mindful of its obligation to assist the jury by properly instructing them on relevant issues of law, especially when the jury expresses difficulty with an essential aspect of the case. We need not inquire further whether the court’s conduct here constituted legal error because, for the reasons set out below, we conclude that the other areas of confusion created by the court’s instructions require reversal.” (Slip opinion, p. 11, fn. 8.)

For the reasons expressed in this footnote and based on the argument which follows, appellant believes that if this court grants respondent’s petition for review, it must also grant review as to this important question of law left unresolved by the opinion of the court of appeal.

None of these dictionary definitions of “unconscious” effectively expresses the particular legal meaning of the term as a defense to criminal conduct. [Footnote 8] In People v. Saille (1991) 54 Cal.3d 1103, 1121, a murder case with an unconsciousness defense, this court made it clear that the legal definition of unconsciousness applicable to such a defense is that found in CALJIC 4.30. That provision states, in relevant part, that an unconsciousness defense “applies to persons who are not conscious of acting but who perform acts while asleep, or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor or any similar cause . . .”, adding that “[u]nconsciousness does not require that a person be incapable of movement.” (CALJIC 4.30.) The Use Note to CALJIC 8.47 confirms this holding in Saille, providing that “CALJIC 4.30 defines unconsciousness.” (CALJIC, 5th Ed., Jan. 1995 Supp., Use Note to CALJIC 8.47.[Footnote 9]) The relevant, critical language present in this definition of unconsciousness and missing from the colloquial, dictionary definition, is that a person can perform actions without being conscious of such actions because he or she is suffering from a state of delirium as a result of voluntary intoxication, and that unconsciousness does not require that a person be incapable of movement.

No court has specifically found a sua sponte duty to define “unconscious.” However, when this court was confronted with this question in People v. Clark, supra, 5 Cal.4th 950, it declined the opportunity to conclude that there was not such duty, and assumed, without deciding, that “unconscious” has a sufficiently technical, legal meaning to require sua sponte instruction. (Id., at p. 1020.) However, in Clark this court held further that instructions pursuant to CALJIC 4.31 and 8.47 were sufficient to convey the meaning of “unconscious” which the defendant claimed was missing:

“[T]here is no question in this case that the jury instructions as given adequately conveyed to the jurors that the law contemplates that an unconscious person can be capable of movement. CALJIC No. 4.31 itself advised the jury that a reasonable doubt that the defendant was conscious required a finding that he was unconscious even if he ‘acted as if he were conscious. . . .’ CALJIC No. 8.47, as given by the court, told the jurors that ‘[i]f you find that the Defendant killed while unconscious as a result of voluntary intoxication and therefore did not form a specific intent to kill or did not harbor malice aforethought, his killing is involuntary manslaughter.’ Both of these instructions unmistakably convey to a reasonable juror the information that defendant claims was missing from the instructions. (People v. Clark, supra, 5 Cal.4th at p. 1020.)

Although these same instructions were given at Mr. Doe’s trial, the instant case is distinguishable from Clark because even with these instructions before it, the jury in the instant case sought further legal guidance from the trial court, requesting “[a] legal definition of the word ‘unconscious’ as it applies to the reference of the word ‘unconscious’ in the jury instructions.” (CT 197) This court has often stressed that a trial judge has an enhanced duty to clarify the meaning of a particular legal term when requested to do so by a deliberating jury. (See People v. Sanders (1995) 11 Cal.4th 475, 561; People v. Hawthorne (1992) 4 Cal.4th 43, 76.) Thus, even if there is no sua sponte duty to define a particular term, where a jury indicates confusion over the term and specifically requests an instruction defining the term, the court must honor their request. (People v. Miller (1981) 120 Cal.App.3d 233, 236 [no sua sponte duty to define “great bodily injury,” but court must do so when jury requests definition], cited with approval in People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “Only by answering the jury’s request does the court fulfill its duty to instruct on those elements of the case necessary for the jury to reach an informed decision.” (People v. Miller, supra, at p. 236.)

In the present case, the jury’s request made it indisputably clear that the instructions pursuant to CALJIC 4.31 and 8.47 were insufficient to convey to them the legal definition of “unconscious” as used in the instructions. Thus, the trial court was obligated to answer the jury’s request by reading them the relevant portions of CALJIC 4.30 which this court in Saille and the drafters of CALJIC recognize as the legal definition of “unconscious.” (People v. Saille, supra, 54 Cal.3d at p. 1121, CALJIC 8.47 (Use Note), supra.) [Footnote 10]

These comments by the court were extremely misleading. Here was a jury diligently seeking to understand how to apply the court’s instructions concerning the only defense presented to them, which was predicated upon unconsciousness; unsure about the meaning of the central term “unconscious” based on the instructions given to them, they straightforwardly asked the court for a “legal definition” of the term; and rather than read to them the relevant portion of CALJIC 4.30, which both the state supreme court in Saille and the drafters of CALJIC recognize as stating the legal definition of “unconscious,” the judge told the jury, in effect, that he was forbidden by law to say anything more about the meaning of “unconscious” than what they had already heard in their instructions. (RT 602-604)

The Ninth Circuit addressed a similar issue recently in McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, and reaffirmed on federal constitutional principles the view that a simple readback of prior instructions may not be sufficient when the jury has indicated confusion from those instructions.

“[The jurors had these instructions with them all along. Both sides agree the instructions were technically flawless. They were, however, the same instructions that for some unknown reason eleven of the jurors did not correctly understand in the first place. Under these circumstances, we agree with Justice Broussard of the California Supreme Court: ‘There is no point in reiterating language which has failed to enlighten the jury.’ ([People v. McDowell (1988) 46 Cal.3d 551, 581] (Broussard, J., dissenting in part.)

* * *

. . . The unremarkable prescription for [uncorrected juror confusion] is that ‘[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.’ [Bollenbach v. United States (1946) 326 U.S. 607, 612-13]. As the Seventh Circuit has said, Bollenbach places on the trial judge ‘a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.’ [Davis v. Greer (7th Cir.1982) 675 F.2d 141, 145]. This duty exists, among other reasons, because ‘“[i]n a trial by jury . . ., the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’” [Bollenbach v. United States, supra, 326 U.S. at p. 612].” (McDowell v. Calderon, supra, 130 F.3d at pp. 838-839.)

C. The Failure to Define “Unconscious” as Used in the Instructions Requires Reversal Under the State and Federal Constitutions.

As respondent’s petition for review is principally focused on the question of prejudice, appellant presents the argument not addressed in the opinion on appeal, namely whether the error in failing to define “unconscious” requires reversal.

ANSWER TO PETITION FOR REVIEW FOOTNOTES

Footnote 8: The jury in the instant case seemed to understand this, asking the judge for the “legal definition of ‘unconscious’ . . .” (CT 197, emphasis added), recognizing that the term was being used in the instructions in a different manner than their own understanding of it.

Footnote 9: We refer to this older supplement of CALJIC’s Fifth Edition as it was current at the time of appellant’s trial.

Footnote 10: CALJIC 4.30 refers to a complete defense to crime based on involuntary unconsciousness. A suggested definition of “unconscious” in CALJIC 4.30 modified to apply to a partial, involuntary manslaughter defense to murder, would be as follows: