Brief Bank # B-800f (Re: F 17.41.21 n2 [Challenge To “Juror-Snitch” Instruction].)
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[Date Brief Received by FORECITE: March 22, 2000]
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S REPLY BRIEF
On Appeal from the Judgment
of the Los Angeles County Superior Court,
Honorable Michael Johnson, Presiding
State Bar No. 88645
P.O. Box 1879
Sebastopol, CA 95473
Tel: (707) 575-0393
Fax: (707) 829-1197
Attorney for Appellant
III. CALJIC 17.41.1, AS GIVEN HERE, VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS AND THIS ERROR IS PRESERVED BY THE PROVISIONS OF PENAL CODE SECTION 1259.
A. Under Penal Code section 1259 No Objection in the Trial Court is Required to Preserve the Issue of a Constitutionally Deficient Jury Instruction on Appeal.
The people once again claim waiver when there is none. Penal Code section 1259 specifically states: “The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”].) When the constitutional rights of a defendant are infringed by an erroneous jury instruction, no objection is required in the trial court to preserve the issue for appellate review. (People v. Flood (1998) 18 Cal. 4th 470, 482, fn.7; People v. Chavez (1985) 39 Cal.3d 823, 830; People v. Hannon (1977) 19 Cal.3d 588, 600; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291) As was well stated in People v. Smith (1992) 9 Cal.App.4th 196: “The People make their oft-repeated, but only occasionally applicable, contention the issue was waived, or alternatively that any error was invited, because defendants failed to object to, or request modification of, the challenged instruction. As appellate courts have explained time and again, merely acceding to an erroneous instruction does not constitute invited error. [citations] Nor must a defendant request amplification or modification in order to preserve the issue for appeal where, as here, the error consists of a breach of the trial court’s fundamental instructional duty.” (Id. at p. 207, fn. 20.)
B. CALJIC 17.41.1 Violated Appellant’s Right to Trial by Jury Under The Sixth Amendment and Due Process of Law under the Fourteenth Amendment to the Constitution.
Respondent argues that the jury should not be told of its nullification power; the problem with CALJIC 17.41.1, however, is that it misinforms the jury that it has no nullification power. Quite recently the Fourth District Court of Appeal decided People v. Engelman (Feb. 1, 2000, D032699) Cal.App.4th___, 00 C.D.O.S. 892.) That court recognized:
“For more than 300 years, jurors have had the power to nullify, that is, “to disregard the court’s instructions and the evidence presented and return a verdict of acquittal” where the law and the evidence dictate otherwise. ( People v. Fernandez (1994) 26 Cal. App. 4th 710, 714; People v. Baca (1996) 48 Cal. App. 4th 1703, 1707, citing Bushell’s Case (1670) 124 Eng.Rep. 1006; United States v. Dougherty (D.C. Cir. 1972) 154 U.S. App. D.C. 76, 473 F.2d 1113, 1130, citing Bushell’s Case, supra.)” (Ibid. emphasis added)
This concept of juror nullification is in accord with well settled law and the protections of the United Sates and California Constitutions. The federal and state constitutions both provide for the right to a jury trial in a criminal case. (U.S. Const., amends, VI, XIV; Duncan v. Louisiana (1968) 391 U.S. 145, 156.); Cal. Const., art. 1, § 16.) “A right to a jury trial is granted to criminal defendants in order to prevent oppression by the Government.”” (Duncan v. Louisiana, supra, 391 U.S. at p. 155.) Indeed, the availability of jury nullification appears to be one reason why the founders of this country insisted on including the right to jury trial in the Bill of Rights. History teaches us of crucial cases in which jury nullification carried the day during American colonial times: from the acquittal of William Penn for preaching to an unlawful assembly in Bushell’s Case (1670) 6 Howell’s State Trials 999, to Peter Zenger’s acquittal on freedom of speech principles. (See People v. Dillon, (1983) 34 Cal.3d 441, 490, 491 (conc. opn. of Kaus, J.; People v. Powell (1949) 34 Cal.2d 196, 205 [“It cannot be doubted that a trier of fact has and often exercises the power, because of obvious extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree or class of crime than that shown by the evidence.]; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1136 [noting approval of nullification’s existence as a necessary check against judges and prosecutors but holding the jury need not be affirmatively informed of the power to nullify].)
Moreover, the United States Supreme Court has referred to the act of jury nullification as “discretionary.” (Gregg v. Georgia (1976) 428 U.S. 153, 199, fn. 50.) John Adams and Alexander Hamilton both stated that the jurors had a duty to find a verdict according to their own conscience, even if in opposition to the courts direction. (Howe, Juries and Judges of Critical Law (1939) 52 Har. L. Rev. 582.) Thus, should a juror feel during deliberations of the facts that the law is contrary to the juror’s conscience, that juror has a constitutional right to follow his or her conscience and vote for acquittal. a number of intermediate.
People v. Engelman, supra, and a number of other appellate decisions have recently addressed the issue of jury nullification; these cases stand for the proposition that the defendant has no right to have the jury affirmatively advised that it may nullify. They do not, however, hold that the jurors have no right to nullify nor that a jury may be told it cannot nullify. (See People v. Engelman, supra, 00 C.D.O.S. 892; People v. Nichols (1997) 54 Cal.App.4th 21, 23-25 [trial court could refuse to answer the jury’s question as to whether defendant was subject to the Three-Strikes sentencing scheme]; People v. Baca (1996) 48 Cal.App.4th 1703, 1705-1708 [defendant not entitled to instruction advising the jury of his sentence and inviting the jury to nullify]; People v. Fernandez (1994) 26 Cal.App.4th 710, 713-714 [court need not instruct a jury that it has the power to acquit]; People v. Partner (1986) 180 Cal.App.3d 178, 185-186 [jury asked question that appellant contended should be interpreted as a jury attempt to avoid the felony-murder rule; jury should not be instructed on nullification]; see also United States v. Dougherty, supra, 473 F.2d 1113 [defense not entitled to a jury instruction that the jury may disregard the law].) CALJIC No. 17.41.1 goes much further than these cases: it not only advises the jury that it must follow the law but implies serious consequences inflicted by the judge should a juror choose to suggest nullification. “That shoving the jury in the direction of nullification is something the trial court need not do does not mean that it is permitted to pressure the jury into stifling a spontaneous urge to nullify.” (People v. Dillon, supra, 34 Cal.3d at p. 492-493 (conc. opn. of Kaus, J.). A jury should not be instructed “in a manner that affirmatively conceals” the truth. (People v. Arias (1996) 13 Cal.4th 92, 173; see also People v. Gainer, (1977) 19 Cal.3d 835, 851-852 [court may not misinstruct the juries that a hung jury means the case will be retried because hung juries do not always result in re-trial].) CALJIC No. 17.4l.1 not only deprives the defendant and jurors of the right of nullification but affirmatively conceals the truth that the right exists. Moreover, the instruction misinforms the jurors by suggesting that if they disregard the law and are found out, they are in trouble. (See People v. Dillon, supra, 34 Cal.3d 441, 490 [“As far as the average lay juror is concerned, failure to follow the court’s instructions invites legal sanctions of some kind and unless the juror is willing to risk a fine, jail or heaven knows what, he or she feels bound to follow the instructions.”].) But this is not the truth: “Yet the essence of the jury’s power to `nullify’ a rule or result which it considers unjust is precisely that the law cannot touch a juror who joins in a legally unjustified acquittal or guilty verdict on a lesser charge than the one which the proof calls for. [Footnote].” (Ibid.; see also Evid. Code § 1150 [jury’s right to enter a general verdict].)
There is another, independent basis why CALJIC No. 17.41.1 is erroneous: the right to an independent decision of each juror and the right to be free from conviction absent a unanimous verdict. A defendant has the right to the independent decision of each juror (CALJIC No 17.40 [“The People and the defendant are entitled to the individual opinion of each juror.”]; People v. Gainer, supra, 19 Cal.3d 835, 848, 849.) This right arises from the constitutional right to be free from conviction absent a unanimous verdict. (Cal. Const., art. I,§ 16; Hicks v. Oklahoma (1980) 447 U.S. 343 [the due process clause entitles a defendant to application of favorable state law]; U.S. Const., amend. XIV.) “Unanimity obviously requires that each juror must vote for and acquiesce in the verdict. Acquiescence simply because the verdict has been reached by the majority is not an independent judgment, and if permitted, would undermine the right to a unanimous verdict.” (People v. Superior Court (Thomas) (1967) 67 Cal.2d. 929, 932.) CALJIC No. 17.41.1 threatens the integrity of the unanimous verdict by intimidating juror if they should disagree with the government.
In Gainer, the California Supreme Court addressed the propriety of an instruction, called a “dynamite” or “Allen” [Footnote 1] charge, that advised a split jury, inter alia, that the dissenters should question their opinions because they are in the minority. (People v. Gainer, supra, 19 Cal.3d. 835.) The court held such an instruction was improper and, as a judicially declared rule, disapproved of it. (Id. at pp. 852, 856-857.) One reason was because it urged the minority jurors to reconsider their views and acquiesce in the majority. (Id. at pp. 848-851.) The Gainer court held, “The open encouragement given by the charge to such acquiescence is manifestly incompatible with the requirement of independently achieved jury unanimity.” (Id. at p. 849.) The Allen admonition to minority jurors given in Gainer, like the instruction given here, “constitutes just such excessive pressure on the dissenting jurors to acquiesce in a verdict.” (Id. at p. 850.) “[D]issenters, struggling to maintain their position in a protracted debate in the jury room, are led into the courtroom and, before their peers, specifically requested by the judge to reconsider their position.” (Ibid.) Here, the dissenters may be threatened by other jurors to go along with the majority or face a session with the judge. Because the coercive effect of CALJIC No. 17.41.1 is similar to that in Gainer, this Court should hold the instruction to be error under Gainer. Moreover, by coercing the jurors, the instruction violates defendant’s right to due process under the federal and state constitutions. (U.S. Const., amend XIV; Cal. Const., art. I § 17.)
The instruction additionally infringes upon a defendant’s Sixth Amendment right to an impartial jury. The issue of whether removal of a holdout juror violates defendant’s constitutional right to a unanimous jury apparently is before the California Supreme Court. [Footnote 2]
Other courts, including the Ninth Circuit, have held that removing a holdout juror violates a defendant’s Sixth Amendment right to an impartial jury if there is either “any possibility” or a “reasonable possibility” that the juror’s views on the merits of the case contributed to the impetus for removal. (See, e.g., United States. v. Symington (9th Cir. 1999) 195 F.3d 1080, 1087 [reasonable possibility]; United States v. Brown (D.C. Cir. 1987) 823 F.2d 591 [any possibility]; United States v. Thomas (2d Cir. 1997).116 F.3d 606, 621 [same]; U.S. Const., amends. VI, XIV.) By threatening the holdouts with potential judicial sanctions, the majority jurors may use CALJIC No. 17.41.1 as the impetus to scare holdout jurors into changing their beliefs about the merits, thus violating the Sixth Amendment’s right to an impartial jury. And if the United States or California Constitution prohibits removal or sanction of a holdout juror, then an instruction suggesting the jurors may be subject to such sanctions misstates reality, thereby constituting error.
The same is true if the Supreme Court should hold that a trial court property cannot inquire into the reasons the juror has reached the decision reached. If the court cannot so inquire, then the jury should not be misled into believing the court can do so. And trial courts should not be allowed to so inquire. Jury deliberations have long been considered sacrosanct. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 575 (conc. opn, of Mosk, J.) [discussing the history and role of the jury and the reasons why the deliberations and subjective beliefs of the jurors may not be explored].) Too, in United States v. Brown, supra, 823 F.2d 591, the appellate court recognized the difficulty inherent in reviewing a trial court’s inquiry of a dissenting juror. In Brown, which held the dismissal of a juror was in error because the juror, who stated he did not want to follow the law in question, may have had questions about the sufficiency of the evidence, the court recognized that a trial court “may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations.” (United States v. Brown, supra, 823 F.2d at p. 596; see also United States v. Symington, supra, 195 F.3d at p. 1087.) “There are important reasons why a trial judge must not compromise the secrecy of jury deliberations.” (United States v. Symington, supra, 195 F.3d at p. 1086.) Included in these reasons are the risk of inviting the trial court to second-guess and influence the jury’s work and the risk of exposing deliberations to public scrutiny, jeopardizing the integrity of the deliberative process. (Ibid.) Because the instruction suggests that the judge may delve into the reasons for a juror’s position, the instruction again misinforms the jury.
Thus, CALJIC No. 17.41.1 violates the California Constitution’s guarantee of a unanimous jury and the United States Constitution’s guarantees of an impartial jury and of due process. The instruction further contravenes the California Supreme Court’s decision in Gainer, supra, and misinforms the jury about its powers and the consequences of standing by one’s conscience. Accordingly, it was error to instruct the jury here with CALJIC No. 17.41.1.
C. The Error is Reversible Per Se.
Where an error is structural, it is reversible per se. (Sullivan v. Louisiana (1993) 508 U.S. 275.) Giving CALJIC No. 17.41.1 implicated defendant’s fundamental right to twelve jurors exercising their independent opinion and defendant’s and the jurors’ fundamental right to juror nullification, as well as allowing the trial judge to invade the province of the jury. Accordingly, giving CALJIC No. 17.41.1 is structural error, and the judgment must be reversed.
CALJIC No. 17.41.1 is patently invalid. It invades the province of the jury, interferes with the defendant’s right to a unanimous jury exercising independent judgment, tramples on the defendant’s and jurors’ right to nullification, and blatantly misadvises the jury, directly and indirectly, as to its powers and its rights.
What is especially troubling is that there is no valid reason justifying the existence of CALJIC No. 17.41.1. To the extent a small part of the instruction may be valid-telling the jury about the duty to deliberate and to avoid relying upon punishment-these points are adequately addressed elsewhere in the standard CALJIC instructions. No comment accompanies the instruction, and thus there is no citation to a case, rule, or empirical study that might justify the instruction’s existence. Indeed, this instruction stands alone in the legal system in suggesting that a party in the system may interfere with the jurors or their deliberation process, much less punish the jurors for this process. (See, e.g., CALJIC No. 17.60 [advising the jury it has an absolute right to discuss or not discuss the deliberations or verdict, with unreasonable contact by the parties or counsels punishable by sanctions]; Code of Civ. Proc., §§ 206, subd. (f), 237; [sealing of juror information to prevent contact]; Evid. Code, § 1150 [evidence as to the jurors’ mental processes and the effect of statements or events on jurors is inadmissible].)
Because the trial court’s erroneous instruction with CALJIC No. 17.41.1 was reversible per se (and, at any rate, not harmless beyond a reasonable doubt), this Court must reverse the judgment.
Footnote 1: Allen v. United States (1896) 164 US 492.
Footnote 2: In People v. Metters (S069442), rev. granted June 10, 1998, formerly at 61 Cal.App.4th 1489, the defendant asserted that removal of a holdout juror violated his right to a unanimous jury. The Supreme Court has issued “grant and hold” orders on several subsequent cases, including People v. Robery (S071279), rev. granted August 26, 1998, in which a juror was removed who was believed to be unwilling to follow the law.