Brief Bank # B-794 (Re: PG IX(H)(6) [Supplemental Instruction Should Not Tell Jury In What Order To Consider Issues] / F 8.75a [Return Of Partial Verdict: Requirement That Jury Consider Lesser Offenses].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
Honorable F. Clark Sueyres, Judge
APPELLANT’S OPENING BRIEF
JANET J. GRAY
Attorney at Law
STATE BAR NO. 99723
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
THE SUPPLEMENTAL INSTRUCTION WAS ALSO INCORRECT BECAUSE
IT INSTRUCTED THE JURY IN WHAT ORDER TO CONSIDER ISSUES,
SPECIFICALLY SUGGESTING THAT THE JURY ELIMINATE
CONSIDERATION OF APPELLANT’S DEFENSE
As discussed above, the trial court is limited in its ability to instruct the jury with those instructions which constitute a correct statement of law. Implicit within this limitation, is that the court may not suggest a deliberation procedure that is specifically prohibited by well-established principles set forth by controlling case law. Our state high court has held that the court should not tell the jury in what order to consider the issues or reach tentative decisions. (People v. Kurtzman (1988) 46 Cal. 3d 322, 329, 333; accord, People v. Dennis (1998) 17 Cal.4th 468, 537.) Thus, a trial court should not tell the jury it must first unanimously acquit the defendant of the greater offense before deliberating on or even considering a lesser offense. (People v. Kurtzman, supra, 46 Cal.3d at pp. 328, 335.)
In the present case, the trial court, after being informed the jury was deadlocked, and after urging the jury to begin deliberations anew in light of the seriousness of their charge, called the jury back on its own motion and instructed them, in relevant part:
However, in your deliberations you may find it useful to start by considering the elements of the crime charged without reference to the two concepts which concern self-defense or the one which refers to heat of passion.
Thereafter, consider whether the killing was unlawful, whether the killing was not justified by self-defense. Next consider whether malice was negated, that is, was there either, one, actual but unreasonable belief in the necessity of self-defense or, two, heat of passion.
On the subject of actual but unreasonable belief in the necessity of self-defense, consider whether there was actual fear of imminent peril as I have defined it for you. Note that fear of future harm no matter how great the fear and no matter how great the likelihood of harm is not enough for an imminent peril.
The court’s instruction to consider the greater offense, murder, without reference to appellant’s defense violates the Kurtzman rule prohibiting the court from directing the order in which the jury considers the various offenses. This direct violation of Kurtzman requires reversal of appellant’s conviction inasmuch as the jury was unfairly coerced into rendering a verdict for murder.
B. The Court’s Improper Direction To The Jury To Consider The Murder Charge Without Regard To Appellant’s Claim of Self-Defense Coerced A Murder Verdict
In Kurtzman, supra, 46 Cal.3d 322, the defendant was charged with first degree murder. The trial court instructed the jury that if it were not convinced beyond a reasonable doubt that the defendant was guilty of the charged crime, it could convict him of the lesser included offenses of second degree murder or manslaughter. After the jury informed the trial court it had deadlocked on the murder charge but had reached a verdict on manslaughter, the court admonished the jury to deliberate until it reached a verdict on first degree murder before determining the lesser included offenses. The jury then acquitted the defendant of first degree murder, and, following further deliberations, returned a verdict of guilty of second degree murder. (Id. at pp. 327-328.)
The defendant sought reversal of his second degree murder conviction on the ground that the trial court erred by advising the jurors during their deliberations that they must unanimously agree on whether or not the defendant was guilty of the greater offense of second degree murder before “considering” their verdict on voluntary manslaughter. (Kurtzman, supra, 46 Cal.3d at p. 324.) Agreeing with the defendant that it was error for the trial court to have so directed the sequence of the jury’s deliberations, the state high court held that:
[People v.] Stone, supra,  31 Cal.3d 503 should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed … that the defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense. (Kurtzman, supra, 46 Cal.3d at p. 329, original italics.)
A trial court may “restrict[ ] a jury from returning a verdict on a lesser included offense before acquitting on a greater offense” but may not “preclude [it] from considering lesser offenses during its deliberations.” The state high court has impliedly rejected a “strict acquittal-first rule under which the jury must acquit of the greater offense before even considering lesser included offenses.” (People v. Berryman (1993) 6 Cal.4th 1048, 1073.)
In the instant case, the court instructed the jury to abandon consideration of the lesser offense of voluntary manslaughter, inasmuch as it instructed the jury to consider the murder charge without regard to any of the defenses relied on by appellant, which would effectively reduce the murder charge to manslaughter. The judge suggested this procedure when the jury was most vulnerable to such advice, after it had acknowledged it was deadlocked after some six and one-half hours of deliberations.
This error is not simply a procedural nicety. It effectively prevented the jury from considering appellant’s defense in relationship to the charged murder. It is apparent that the jurors did not readily accept the prosecution’s entire case because even after indicating they had arrived at a murder verdict, they were unable to decide between first and second degree murder. (RT 775, 777-781.) This fact indicates that the jury had rejected evidence produced by the prosecution to establish a premeditated murder. Thus, proper consideration of appellant’s defense could have conceivably rendered either an acquittal or a manslaughter conviction.
C. The Court’s Instruction Abridged Appellant’s Due Process Rights and Right To A Jury Trial
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.) Further, misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or unsupportable finding of guilt.”. (Baldwin v. Blackburn (5th Cir. 1981) 653 F.2d 942, 949.)
“Trial by jury is an inviolate right…secured to all…[i]n criminal actions in which a felony [or misdemeanor] is charged.” (Cal.Const Art I, §16. (See also US. Const. Amends VI, XIV.) An instruction which directs the jury to find an element against the defendant violates the Sixth Amendment right to trial by jury, as applied to the States through the Fourteenth Amendment and the Fourteenth Amendment right to due process. (See, U.S. v. Caldwell (9th Cir. 1993) 989 F.2d 1056, 1060-61; People v. Cummings (1993) 4 Cal.4th 1233, 1316.)
D. The Failure To Properly Instruct The Jury Is Reversible Error Under Any Standard of Review
Because the error impacts the appellant’s constitutional due process rights and constitutional right to a jury trial 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 is unable to meet that burden in the present case. Appellant notes that in Kurtzman, the court did not specify which standard of review it was applying, but reasoned that the record there showed that there was no coercion of a single juror or a small minority of jurors, and thus reversal was not warranted. (Kurtzman, supra, 46 Cal.3d at p. 336-337.)
However, the facts in the present case are highly distinguishable from Kurtzman. There the court noted that the jury had originally been instructed under CALJIC 17.10, as in the present case, which simply told them that if not satisfied unanimously that defense was guilty of the offense charged first degree murder, they could find him guilty of second degree murder or voluntary manslaughter as lesser included offenses. (Id. at p. 335.) However, unlike Katzman, the instant court did not ascertain what offenses, if any the jury had been able to agree upon, nor were they asked to reveal what their point of disagreement might be. Thus, as in Katzman, it cannot be concluded what areas had been under active consideration by the jury prior to the supplemental instruction.
In Katzman, the jury said they had been able to agree on manslaughter, but when asked to deliberate on first degree murder, were able to return a verdict of acquittal. The Katzman court noted, that “[e]ven though they were told to deliberate on second degree murder alone, it is not clear they understood that admonition to preclude considering all aspects of defendant’s mental state relating to malice, including whether malice had been negated by defendant’s imperfect self-defense claim.” (Ibid.) The court reasoned that this was so because the jury continued to pose questions on the relationship between second degree murder and voluntary manslaughter. (Ibid.) This is particularly distinguishable from the case at bar, where not only did the court not know what the area of disagreement was between the jurors, but also specifically told them to consider the murder charge without reference to appellant’s claim of self-defense or heat of passion defense. Obviously, inasmuch as appellant acknowledged that the issue was not who shot the victim, but rather whether the shooting was justified or ameliorated by self-defense concepts, the jury would immediately come to an agreement that a murder was committed. Inasmuch as the jury returned shortly after this instruction with an indication that they had agreed upon murder, but could not agree on the degree, it is evident that they had abandoned consideration of appellant’s defense theories, just as the court had suggested. As such it is not reasonably possible to conclude that there was no prejudice as a result of the court’s supplemental instruction to the jury.
However, even assuming, arguendo, this court applies the lesser Watson 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 (1956) 46 Cal.2d 818.)
In the present case there was considerable evidence that appellant was operating under the truly held belief that the victim had placed him under a spell and that he was doomed to a withering death unless he acted. (RT 466, 467, 487.) He also believed that the victim was armed, and was aware that the victim was making attempts to take his own weapon. There was also a history of past threats, along with the threat just prior to the shooting, that appellant was going to die that day. (RT 477, 478.) Thus, there was a significant amount of evidence to consider relating to appellant’s claim of self-defense.
Additionally, the already lengthy deliberation process and request for readbacks, suggested that this was a close case. (People v. Cardenas (1982) 31 Cal.3d 897, 907 [12 hours]; People v. Rucker (1980) 26 Cal.3d 368, 391 [9 hours]; People v. Woodard (1979) 23 Cal.3d 329, 341 [6 hours]); (People v. Filson (1994) 22 Cal.App.4th 1841, 1852; People v. Hernandez (1988) 47 Cal.3d 315, 352-53 [request for read-back, reinstruction].)
And, as discussed in more detail in the preceding argument, the presence of reversible error is that the jury returned a verdict shortly after the delivery of an erroneous supplement instruction. (People v. Markus , supra, 82 Cal.App.3d at p. 482; Powell v. U.S., supra, 347 F.2d at p. 158.)
Based on the foregoing, appellant respectfully requests that his conviction be reversed.