B-810

Brief Bank # B-810 (Re: PG VII(C)(11) [Instruction On Uncharged Theory Violates Due Process And Right To Effective Assistance Of Counsel].)

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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

JOHN DOE,

Defendant and Appellant.

____________________________________/

APPELLANT’S OPENING BRIEF

Automatic Appeal from the Judgment of the

Superior Court of the State of California

for the County of Los Angeles

HONORABLE DOUGLAS A. McKEE, JUDGE

HONORABLE JEAN E. MATUSINKA, JUDGE

____________________

WILLLIAM T. LOWE

Acting Chief Assistant

State Public Defender

State Bar No. 83668

Attorneys for Appellant

THE FIRST DEGREE MURDER CONVICTIONS AS TO COUNTS II

AND III MUST BE REVERSED BECAUSE APPELLANT WAS GIVEN

CONSTITUTIONALLY INSUFFICIENT NOTICE THAT HE COULD

BE CONVICTED OF A VIOLATION OF PENAL CODE SECTION

189, AND A CONVICTION UNDER THAT SECTION WAS BEYOND

THE JURISDICTION OF THE COURT

Appellant was charged in the amended information upon which he was tried with three counts of “murder, in violation of section 187, Penal Code,” alleged to have been committed “wilfully, unlawfully, feloniously and with malice aforethought . . .” (1CT 40-42.) No allegation was made that he had committed felony-murder under Penal Code section 189, and no underlying felony was charged in the amended information on which he was tried. [Footnote 1]

Nonetheless, concerning each homicide, the guilt phase jury was instructed not only on a theory of murder with malice aforethought in violation of Penal Code section 187, but also on felony-murder in violation of Penal Code section 189. (1CT 170; RT A46, pp. 4940-4946.) Moreover, as discussed in Argument III, post, the prosecutor relied in his argument to the jury primarily upon felony-murder as his theory of the Ms. H homicide, and on murder with malice aforethought only as an alternative theory for finding appellant guilty of first degree murder on that count.

Appellant submits that since felony-murder was not charged in the amended information as to the homicides of Ms. H and Ms. K, appellant had no constitutionally sufficient notice that the state sought a conviction of felony-murder, and that, therefore, the trial court’s instruction, and the prosecutor’s argument, on felony-murder constituted prejudicial error, violating due process and necessitating reversal of the first degree murder convictions on Counts II and III. [Footnote 2] Appellant was potentially convicted on two counts of offenses other than those with which he was charged. This was in excess of the jurisdiction of the trial court. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; People v. West (1970) 3 Cal.3d 595, 612; In re Hess (1955) 45 Cal.2d 171, 175.)

A. Relevant Facts

No mention of felony-murder was made in the amended information upon which appellant was tried (1CT 40-45; RT A7, pp. 632-636), nor in voir dire or in the initial instructions to the jury (see RT A33, pp. 3713-3717; A39, pp. 4449-4450). In a motion for mistrial, in which the possible cross-admissibility of the 1978 manslaughter was discussed, the prosecution mentioned only premeditation and intent, not felony-murder, as theories of the crimes. (RT A34, pp. 3851, 3854.) During voir dire, the prosecution mentioned only premeditation and deliberation as a ground for a first degree murder conviction. (See, e.g., RT A34, p. 3863; A35, p. 3891; A36, p. 4068.) During a discussion of the admissibility of semen evidence, defense counsel noted that the homicide of Ms. K was being prosecuted on a theory of premeditation murder, not felony-murder.

During the prosecutor’s opening statement, no mention of robbery or felony murder was made. (RT A39, pp. 4461-4469.) During discussion of instructions, which took place the same day that arguments to the jury began (RT A45, pp. 4807-4821), the first mention of felony-murder regarding Ms. H was made. Defense counsel objected to the instruction, arguing that there was insufficient evidence of robbery to uphold the instruction, and that the dismissal of the charge of robbery and the robbery-murder special circumstance pursuant to a section 995 motion should preclude any attempt to obtain a conviction on a felony-murder theory. (RT A44, pp. 4808-4811.) The trial court overruled the defense objection. During the discussion of instructions, no mention of a felony-murder basis for conviction on Count III was made.

The instructions given to the jury included a general instruction on first degree murder, including felony-murder, as to all three counts. The court also delivered a robbery instruction, which was not tied to any of the three counts, and a unanimity-of-theory instruction which specifically applied only to Count II (Ms. H). [Footnote 3]

B. Appellant Received Constitutionally Inadequate Notice That He Faced a Conviction of Felony-Murder on Counts II and III

Due process requires notice of the charges against which the defendant must defend. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation. . . .” (U.S. Const., amend. VI.) This guarantee is applicable to the state through the Due Process Clause of the Fourteenth Amendment. (In re Oliver (1948) 333 U.S. 257, 273-274.)

“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal [Citations omitted]. . . . It is as much a violation of due process to send an accused to prison following a conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. [Citation omitted.]” (Cole v. Arkansas (1948) 333 U.S. 196, 201.)

“The Sixth Amendment requires, in part, that an information state the elements of an offense charged with sufficient clarity to apprise a defendant of what he must be prepared to defend against. Russell v. United States (1962) 369 U.S. 749, 763-64; Miller v. Stagner (9th Cir. 1985) 757 F.2d 988, 994, amended, 768 F.2d 1090 (9th Cir. 1985).” (Givens v. Housewright (9th Cir. 1986) 786 F.2d 1378, 1380.) To determine whether a defendant has received constitutionally adequate notice of the charges against him, the court looks first to the information. (James v. Borg (9th Cir. 1994) 24 F.3d 20, 24.) Where the information is inadequate, however, adequate notice may be found from other sources, such as argument at the preliminary hearing (evidence of other crime at preliminary insufficient to give notice) or actual and timely notice of the prosecution’s intent to seek conviction on a theory of proof not mentioned in the information. (See Morrison v. Estelle (9th Cir. 1992) 981 F.2d 425, 428; but see Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 570-571; Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234.)

1. Dillon Established That Felony-Murder is Distinct from All Other Murder and is Exclusively Codified in Penal Code Section 189

In People v. Dillon (1983) 34 Cal.3d 441, decided eight months before the commission of the crimes which were the subject of the instant information, this Court went to great lengths to preserve what it found to be a legislative preference for the continued existence of a felony-murder theory of liability for first degree murder. In fact, Dillon was a radical re-evaluation of California precedent in the area of felony-murder and it admitted as much. (34 Cal.3d at p. 472, fn. 19, and 473, fn. 20.)

In Dillon, the Court was confronted with the two challenges that: (1) the felony-murder rule was an uncodified common law crime which the Court should “abolish” in light of the elimination of common law crimes effected by the Penal Code of 1872 (see Pen. Code, § 6; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632); and (2) that if codified by statute, then the California felony-murder rule created an unconstitutional presumption of the statutory element of malice, in violation of the holdings of Mullaney v. Wilbur (1975) 421 U.S. 684 and Sandstrom v. Montana (1979) 442 U.S. 510. (34 Cal.3d at p. 462.)

The Court first concluded that the legislative history of the adoption of the Penal Code of 1872 compelled the conclusion that “. . . section 189 [is] not only a degree fixing device but also a codification of the felony-murder rule; no independent proof of malice is required in such cases, and by operation of the statute the killing is deemed to be first degree murder as a matter of law.” (34 Cal.3d at p. 465.) [Footnote 4]

The Court then addressed the contention that, because “malice” is a statutory prerequisite of murder under section 187, the felony-murder rule operates to create an unconstitutional presumption of malice. (34 Cal.3d at pp. 472-473.) The Court’s opinion rejecting this contention makes perfectly clear that there are two distinct crimes of “murder,” each with different elements:

“We do not question defendant’s major premise, i.e., that due process requires proof beyond a reasonable doubt of each element of the crime charged. (See Pen. Code, § 1096; People v. Vann (1974) 12 Cal.3d 220, 225-228.) Defendant’s minor premise, however, is flawed by an incorrect view of the law of felony-murder in California. To be sure, numerous opinions of this Court recite that malice is ‘presumed’ (or a cognate phrase) by operation of the felony-murder rule. But none of those opinions speaks to the constitutional issues now raised, and their language is therefore not controlling. (In re Tartar (1959) 52 Cal.3d 250, 258, and cases.)” (34 Cal.3d at pp. 473-474, fn. omitted.)

The Court continued with the observation that any “presumption of malice” was necessarily a conclusive one and hence a rule of substantive law. Cutting through the language of presumption contained in prior precedent, the Court held that the “‘conclusive presumption’ is no more than a procedural fiction that masks a substantive reality, to wit, that as a matter of law malice is not an element of felony-murder.” (34 Cal.3d at p. 475; emphasis added.)

If there is any doubt that this Court was distinguishing between two crimes, both denominated murder and both potentially of the first degree, but with different elements, it is forever laid to rest by the Court’s succinct response to the equal protection claim raised in Dillon:

“There is likewise no merit in a narrow equal protection argument made by defendant. He reasons that the ‘presumption’ of malice discriminates against him because persons charged with ‘the same crime,’ i.e., murder other than felony-murder are allowed to reduce their degree of guilt by evidence negating the element of malice. As shown above, in this state the two kinds of murder are not the ‘same’ crimes and malice is not an element of felony-murder.” (34 Cal.3d at p. 476, n. 23; see also 34 Cal.3d at pp. 476-477, fn. 24.)

2. The Information Was Inadequate to Support a Charge of Felony-Murder

In Gray v. Raines, supra, 662 F.2d 569, the Ninth Circuit Court of Appeals found that an information charging rape under one section of a multi-sectioned statute gave inadequate notice that the defendant could be convicted of rape under a separate section of the same statute, where the separate sections involved proof of different elements. “What makes statutory and forcible rape separate offenses for charging purposes is the fact that proof of different elements is required.” (Id., at p. 572; see also Givens v. Housewright, supra, 786 F.2d 1378 [charge of wilful, deliberate, and premeditated murder constitutionally inadequate notice of murder by torture].) The fact that the two crimes in Gray were both defined in the same statute, and both denominated by the same generic name, “rape,” was not sufficient to satisfy constitutional requirements of notice. “Obviously, the State . . . may organize its criminal laws in whatever manner it chooses. The state cannot, however, use a classification scheme to circumvent the constitutional notice requirement imposed on the state when charging a defendant with an offense.” (662 F.2d at p. 571; see also Givens v. Housewright, supra, 786 F.2d at p. 1382.)

As Dillon points out, in California the crimes of premeditated and deliberate murder and non-malice felony-murder require different elements of proof, and are not even defined in the same statute, as was the case in Gray. In Sheppard v. Rees, supra, 909 F.2d 1234, the State of California effectively conceded that a charge of murder under section 187 is not per se sufficient notice of a felony-murder charge. (909 F.2d at pp. 1236-1237.) [Footnote 5] The information, then, was constitutionally inadequate to put appellant on notice that he might be convicted of a violation of section 189, felony-murder.

California law regarding the adequacy of the information is generally similar:

“It is fundamental that ‘When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. (Citations.) This reasoning rests upon a constitutional basis: “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (Citation.)’ (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.)” (People v. Lohbauer, supra, 29 Cal.3d 364, 368; In re Hess, supra, 45 Cal.2d 171, 174-175. [Footnote 6])

The alternative tests for a lesser included offense in this context are (1) whether the offense is lesser included under the language of the indictment or information (People v. Lohbauer, supra; People v. West, supra) and (2) whether the offense is lesser-included under the statutory definition of the offense charged. (People v. Lohbauer, supra, at p. 369.) If either test is satisfied, the conviction is within the jurisdiction of the trial court. If neither is satisfied, it is not. This rule specifically precludes the conviction of an uncharged lesser related (but not included) crime. (People v. Lohbauer, supra, 29 Cal.3d at pp. 369-370.) Moreover, “reasonable doubts in determining the identity of the offense charged are to be resolved in the defendant’s favor.” (People v. Schueren (1973) 10 Cal.3d 553, 558.)

This Court in Lohbauer resisted the state’s invitation to create a third test under which a reviewing court could “hold immaterial any variance between an offense charged and a lesser offense of which a defendant is convicted unless ‘the defendant was misled to his prejudice and prevented from preparing an effective defense.’” (29 Cal.3d at p. 370.) In People v. Thomas (1987) 43 Cal.3d 818, 830, this Court reaffirmed the holding of Lohbauer on this issue.

The information upon which appellant was tried specifically charged murder with malice under section 187. Felony-murder is not the same as malice murder, as this Court explained in Dillon. Nor is felony-murder an included offense either under the language of the statute or under the language of the charge in the information. It is true that both sections 187 and 189 require a killing. However, while a violation of section 187 requires malice, a violation of the felony-murder rule codified in section 189 does not. Conversely, a violation of the felony-murder rule in section 189 requires the intent and attempt to commit one of the felonies enumerated in that section, whereas a violation of section 187 does not. Consequently, a charge of “murder” without more does not state which of these two crimes is alleged. A charge of murder with reference to one statute or the other does not state that both are alleged. Though each statute defines a crime with the same generic name, each statue has a different complex of essential elements. In short, under the rule stated in Lohbauer, the first degree murder convictions in this case which were predicated on the incorrect felony-murder instruction were beyond the trial court’s jurisdiction to impose under California law.

Appellant recognizes that a line of cases deriving from People v. Witt (1915) 170 Cal. 104 has long held that a charge in the language of or by reference to Penal Code section 187–i.e., murder with malice–is adequate to sustain a felony-murder conviction. However, it is necessary to consider exactly what Witt decided, and on what basis:

“The information charged the defendants with the crime of murder, committed as follows: ‘That the said [defendants] . . . did wilfully, unlawfully, feloniously and with malice aforethought, kill and murder . . . a human being, contrary to the form, force and effect of the statute, etc. Concededly, this describes the offense of murder in the language of our statute, and is in accord with a form approved over and over again by this court. It is claimed, however, that it does not sufficiently allege the kind of murder proved in this case, viz: one committed in the perpetration or attempt to perpetration or attempt to perpetrate one of the felonies specified in section 189 of the Penal Code. Whatever may be the rule declared by some cases from other jurisdictions it must be accepted as the settled law of this state that it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case. As said in People v. Soto (1883) 63 Cal.165, ‘The information is in the language of the statute defining murder, which is: ‘Murder is the unlawful killing of a human being with Malice aforethought’ (Pen. Code, § 187). Murder, thus defined, includes murder in the first degree and murder in the second degree. It has many times been decided by this court that it is sufficient to charge the offense committed in the language of the statute defining it. As the offense charged in this cases includes both degrees of murder, the defendant could be legally convicted of either degree warranted by the evidence.’ Under our decisions, there is no ground for distinction in this regard between the class of murder in the first degree here involved and any other class.” (People v. Witt, supra, 170 Cal. at pp. 107-108; emphasis added.)

Appellant has no quarrel with the proposition that an information “may be in the words of the enactment describing the offense,” as Penal Code section 952 provides. Witt and its progeny followed this rule, but based their holdings on the assumption that first degree felony-murder was described and included in the provisions of Penal Code section 187. That assumption was wrong. Dillon establishes that a charge of murder with malice (a violation of Pen.Code § 187) plainly does not charge the offense of felony-murder in the language of the statute defining it. The statute describing first degree felony-murder is Penal Code section 189 and no other. Therefore, Dillon destroyed the fundamental premise of Witt, i.e., that first degree felony-murder is a violation of Penal Code section 187. It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether or not such prior decisions are mentioned and commented upon. (In re Lane (1962) 58 Cal.2d 99, 105.) Thus, it would appear that, in logic and law, Dillon has sub silentio undermined the rule of pleading set forth in Witt. [Footnote 7]

This Court had not directly addressed the continuing validity of Witt in light of Dillon at the time of the filing of the information in this case, or even through the guilt trial. Therefore, the only information defense counsel would have had was that appellant was charged with only one kind of murder, i.e., murder with malice. To date, this Court still has not directly analyzed the repercussions of its analysis in Dillon. [Footnote 8] However, a few Court of Appeal cases have addressed the issue, generally applying the same “unsatisfactory” jurisprudence (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19) that preceded Dillon.

People v. Watkins (1987) 195 Cal.App.3d 258, was the first to address the continuing viability of Witt in light of Dillon. However, the Watkins analysis, which followed Witt, was founded on a superficial analysis of both Witt and Dillon. The court in Watkins apparently relied upon a belief that the entire Dillon analysis was little more than dicta, rather than a seriously analyzed response to substantial constitutional and statutory challenges. The Watkins court also accused this Court of indulging in result-oriented jurisprudence in Dillon.

“Dillon is an unusual, unique case and should not be applied over-broadly. There, it would appear, the court sought and achieved a particular result, the reduction of Mr. Dillon’s first degree murder conviction to second degree murder. In doing so, it analyzed section 189 and the felony-murder doctrine in California in great detail and ultimately rejected defendant’s contentions that the first degree felony-murder rule in this case is an uncodified common law rule that should be abolished and, if on the contrary it is embodied in a statute, the statute is unconstitutional. While Dillon rejected these arguments, it reached the above stated result on an entirely different basis, that on a proportionality analysis, the sentence there imposed constituted cruel and unusual punishment. Thus, we conclude, Dillon does not stand for the proposition advanced by appellant.” (195 Cal.App.3d at p. 268 (emphasis added).)

It is apparent that the fact that Dillon rejected the defendant’s contentions does not weaken the force of the holdings which were the basis of that rejection. Similarly, that Dillon found other error unrelated to the constitutional and statutory challenges which it rejected is completely irrelevant to this Court’s reasoning in resolving those challenges.

Similarly, the Watkins analysis of the holdings of Witt and Dillon is simplistic. The Watkins court relied upon the holding of Witt without conducting any reasoned analysis of the effect of Dillon’s holding upon the continued validity of Witt. Watkins opined that in Dillon, this Court

“. . . merely recognized what it perceived to be the law since the enactment of section 189 in 1872. Dillon, which interprets, rather than reinterprets, section 189, should not be read to change the well accepted rule of pleading set forth in People v. Witt. Whether murder is committed with malice, or in the context of felony-murder, the crime committed is still murder. And while identification of the statute violated is advisable, it is not required. (People v. Schueren (1973) 10 Cal.3d 553, 558, 111 Cal.Rptr. 129, 516 P.2d 833.) Therefore, an information charging murder is sufficient to charge a violation of section 187 or section 189.” (195 Cal.App.3d at p. 267.)

Watkins also found a lack of prejudice from the fact that there was a separate allegation that the robbery was committed in the commission of a robbery as a special allegation, and that the only theory advanced at the preliminary hearing or the trial was felony-murder. Rather than matters going to prejudice, in fact these matters go to the adequacy of notice outside of the information. Under California law, it is clear that notice comes from not only the information but also the evidence at the preliminary hearing. (People v. Thomas (1987) 43 Cal.3d 818, 829.) In Watkins, there was clear notice from the information and from the evidence at the preliminary hearing that the defendant had to defend against the elements of felony-murder. The Watkins analysis is thus very poor authority in any disciplined analysis of this issue.

In People v. Scott (1991) 229 Cal.App.3d 707, the analysis was not much better. In Scott, the court decided that Dillon did not change the law regarding “murder” as a generic term, and that in the absence of some reason for holding that Witt was wrongly decided, Witt should be followed:

“… Dillon neither stated nor … implied that felony-murder, henceforth, was a different crime than it had been nor that it was a new crime. If, as Dillon stated, felony-murder was a different ‘kind’ of murder than malice-murder (and therefore they were ‘not the “same” crimes’) it was still murder. We have found no suggestion in Dillon, and appellant fails to cite any, that this kind of murder, felony-murder, codified since 1872, now requires charging language different that prescribed for 56 years.” (229 Cal.App.3d at p. 714.)

However, the Dillon court acknowledged the past “unsatisfactory” jurisprudence surrounding the issue of felony-murder (34 Cal.3d at p. 472, fn. 19), which, if followed literally, raised fundamental statutory and constitutional problems with felony-murder. Appellant has shown that Witt, particularly, was founded on the incorrect assumption that felony-murder was defined in section 187, which stemmed from the “unsatisfactory jurisprudence” criticized in Dillon. The fundamental shift in the understanding of the elements and statutory basis for felony-murder which was first determined in Dillon in 1983 demands a thorough reanalysis of the basis for the Witt rule. The Scott court undertook no such thorough analysis. Instead, Scott relied upon the holding rather than the reasoning of Witt. [Footnote 9]

Scott also relies upon People v. Guerra (1985) 40 Cal.3d 377, which, in rejecting the need for jury unanimity as to whether a verdict was based upon felony-murder or malice-murder, relied upon a pre-Dillon case which expressed the belief that all forms of first degree murder are defined by section 187. [Footnote 10] Of course, “[c]ases are not authority for propositions not considered.” (In re Tartar, supra, 52 Cal.2d 250, 258.) This Court has repeatedly so stated. (People v. Belleci (1979) 24 Cal.3d 879, 888; People v. Ceballos (1974) 12 Cal.3d 470, 481; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.). The effect of Dillon upon that issue was not advanced, considered, discussed, or decided in Guerra. Reliance on Guerra as “precedent” is, therefore, inappropriate. [Footnote 11]

This issue was also addressed in People v. Johnson (1991) 233 Cal.App.3d 425, which followed Watkins. While acknowledging that Dillon held that felony-murder was codified only in section 189, and that felony-murder differed in its elements from any other type of first or second degree murder, Johnson refused to conclude that “felony-murder and premeditated murder are two distinct crimes.” (Id., at p. 454.) Rather, the Court of Appeal relied on the distinction that felony-murder and premeditated murder are “‘two kinds of first degree murder’ requiring different elements of proof.” (Ibid.) [Footnote 12]

In other words, the overriding principle for the Johnson court appears to have been that the two crimes are both called “murder,” not that they have entirely different elements. No reasoning was given as to why the similarity of name rather than the similarity of elements should be controlling, nor can appellant conceive of a reasoned basis for such an analysis. It is not the name the prosecution must prove, it is the elements of the crime. (See Gray v. Raines, supra, 662 F.2d 569.) It is not the name which the defendant needs to defend against, it is the elements of the crime. [Footnote 13]

3. While Sufficient Notice May be Provided from Sources Other Than the Information, No Such Notice Was Provided in This Case

While the language of the information presents a jurisdictional issue (People v. Lohbauer, supra, 29 Cal.3d at p. 368), as a matter of notice, it has been recognized that constitutionally adequate notice may be found from the circumstances of the case outside of the language of the information. Thus, if an information provides jurisdiction for conviction of a rape, for example, sources other than the information may be adequate to provide notice of alternate theories of rape. (See People v. Collins (1960) 54 Cal.2d 57.)

However, the mere fact that evidence of the elements of another similarly named crime is presented at a preliminary hearing has been found insufficient to give notice under the Sixth Amendment. (Gray v. Raines, supra, 662 F.2d at pp. 571, 573-574.) Similarly, notice of the alternate theory given at a jury-instruction conference near the close of the evidence has been found constitutionally inadequate. (Id. at p. 569; but see Morrison v. Estelle (9th Cir. 1992) 981 F.2d 425, 28.) Adequate notice has been found from an opening statement and argument on motions during trial. (See Calderon v. Prunty (9th Cir. 1995) 59 F.3d 1005, 1009-1010.)

On the issue of notice, California generally relies upon the evidence at the preliminary hearing, in conjunction with the information, to provide notice of the charges against which the accused must defend. (People v. Thomas, supra, 43 Cal.3d 818, 829.) In Watkins, Scott, and Johnson, the courts referred to such non-pleading notice, although in the context of the lack of prejudice. For instance, in Watkins, the court found a lack of prejudice from the fact that “[t]he information alleged that the murder was committed in the commission of a robbery as a special allegation. At both the preliminary hearing and trial, the only theory advanced by the prosecution was felony-murder, and the defense was not misled or deceived by the charging allegation.” (195 Cal.App.3d at p. 267.) Johnson and Scott both relied upon evidence presented at the preliminary hearing. (233 Cal.App.3d at pp. 456-457; 229 Cal.App.3d at p. 717.) Of course, in this case, the only evidence of a robbery presented at the preliminary hearing was the evidence specifically held insufficient to support such a charge. Johnson also relied on the prosecution’s opening argument and early request for a felony-murder instruction. (233 Cal.App.3d at p. 456. See also People v. Bernard, supra, 27 Cal.App.4th at pp. 470-471.) In this case, however, no mention of felony-murder was made in the opening statement and no instruction was requested until the morning of argument.

Both Scott (229 Cal.App.3d at pp. 715-716) and Johnson (233 Cal.App.3d at pp. 455) also relied upon People v. Thomas, supra, 43 Cal.3d 818, which reiterated the rule that notice comes from the evidence adduced at the preliminary hearing as well as the information. However, Thomas does not resolve the issue posed by Dillon.

The issue in Thomas was whether or not an information which alleged a general charge of manslaughter, but included a specific reference to subsection (1) of section 192 (voluntary manslaughter), gave notice that a conviction was sought under subsection (2) of that same section. This court held that the reference to one subsection of a statute was not determinative on the issue of jurisdiction or notice: “[I]t is the language of the accusatory pleading which is controlling and not the specification of the statute by number …” (43 Cal.3d at p. 831.)

The language of the accusatory pleading in this case was not a general charge of murder. Instead, it specifically alleged not only section 187, but it also alleged that the murder was committed “with malice aforethought.” That language, as Thomas pointed out, “is controlling.” The specification of section 187 in this case serves to confirm the language of the information as charging only malice-murder.

Both the allegation of malice and the specification of section 187 point to another crucial difference from the situation in Thomas. There, this Court dealt with a general allegation of a violation of one statute, which could be violated in different ways. The information therefore conferred jurisdiction to convict the defendant of a violation of that one statute. Malice-murder and felony-murder are defined in two different statutes, and an allegation of the violation of one statute cannot confer jurisdiction or provide adequate notice that a conviction will be sought under the other. Appellant has found no case which allows a generically named charge (e.g., kidnapping) to provide notice and jurisdiction for a conviction under multiple statutes (e.g., sections 207, 208, 209). There is no logical basis for treating murder, which is defined in two different statutes, with different elements of proof, differently for purpose of jurisdiction or notice.

4. Notice of a Charge of Felony-Murder as to Count II (Ms. H) Was Inadequate

As stated, a charge of robbery of Ms. H, as well as a special circumstance allegation of robbery-murder, had been made in the original information, but both were dismissed for lack of sufficient evidence. (RT AA3, pp. 14-15.) Furthermore, appellant’s statements to the police did not support such charges either. (See Argument III, post.) It was defense counsel’s position, when the prosecution first raised the possibility of a felony-murder instruction on the day of argument to the jury, that the prosecution had acceded to the holding of insufficient evidence and had done nothing to preserve those charges or challenge the holding of insufficient evidence, and should be “estopped” from resurrecting the charge of felony-murder in the instructions to the jury. The record indicates that the prosecution gave no notice prior to the discussion on instructions that they intended to rely upon a felony-murder theory at trial. Appellant submits that on the facts of this case, the notice that such a conviction was sought was constitutionally inadequate, and the conviction on a felony-murder theory was beyond the jurisdiction of the court.

This Court has allowed a conviction of felony-murder where the underlying felony had been dismissed pursuant to section 995, in another capital case, People v. Davis (1995) 10 Cal.4th 463. The facts of Davis, however, are distinguishable from the situation appellant and counsel faced in this trial. In Davis, the prosecutor specifically notified the trial court and counsel prior to opening statements of the intent to seek a felony-murder instruction and defense counsel specifically acknowledged notice. (Id. at p. 513.) Here, there was no specific, or reasonably inferable, notice of the prosecution’s felony-murder theory until discussion on the instructions, which took place a matter of minutes before argument.

The effect of such last-minute notice may be seen in defense counsel’s limited response to the substantial factual and legal issues newly inserted into the case by a felony-murder theory. Counsel failed to request lesser included offense or other instructions which would have highlighted the insufficiency (or at least the substantial weakness) of the prosecution’s evidence of a theft. (See Arguments III and V, post.) Nor did counsel in his argument to the jury focus on the critical legal standards which should have prevented the jury from convicting on a felony-murder theory. (Ibid.; see, e.g., RT A46, pp. 4867-4871.)

In light of the inadequacy of the information and the evidence, and the absence of any other notice of a felony-murder charge prior to the day argument to the jury commenced, the notice of such a charge was constitutionally inadequate and conviction of first degree murder on that basis was beyond the jurisdiction of the court.

5. Notice of a Charge of Felony-Murder as to Count III (Ms. K) Was Inadequate

During his argument to the jury, the prosecutor made no mention of felony-murder as a theory of conviction as to Count III. He did, however, emphasize appellant’s search for money in Ms. K’s room after her death. (RT A45, pp. 4839, 4843.)

Appellant contends that the instruction to the jury that they could find guilt of felony-murder as to Count III was error because no notice that appellant faced such a charge as to that count had ever been given. It is a virtual certainty that defense counsel did not recognize the effect of the instruction, for he neither objected nor proposed corrections to clarify. Yet, given the evidence relating to that Count (see Argument IV, post), and the unembellished instructions about robbery and felony-murder, it is reasonably probable that the jury (or some of the jurors) found appellant guilty of first degree murder of Ms. K on a felony-murder theory. Given the complete absence of notice, such instructions were error of a constitutional magnitude, and require reversal of the conviction on Count III.

The evidence presented regarding Count III demonstrated a homicide for unknown reasons. The prosecution argued that it was simply a decision of appellant to kill his sister because of an argument. The defense argued that it was a sudden, impulsive killing in an irrational state of rage, not premeditated or deliberate. The evidence was not clear-cut on either side. The nature of the homicide (manual strangulation and post-mortem stab wounds), with the absence of a rational motive, strongly suggests the non-premeditated, irrational killing which the defense argued.

On the other hand, the post-mortem activity of appellant, which included theft-like behavior of ransacking the room looking for money, is the sort of evidence which, on the instructions given in this case, the jury may have thought was robbery sufficient for a felony-murder conviction. (See Arguments IV and V, post.) “[W]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.” (People v. Turner (1990) 50 Cal.3d 668, 688.) In fact, in People v. Ramkeesoon (1985) 39 Cal.3d 346, this Court reversed a felony-murder conviction obtained on a substantially similar state of evidence and instructions.

As with Count II, the inadequacy of the information and the evidence is probably to blame for defense counsel’s failure to seek proper instructions or present any argument on the legal significance of an attempted theft (see Arguments IV and V, post). This left the jury unguided on a crucial issue in the face of what might seem, to a lay juror, a simple case of attempted theft plus homicide equaling robbery-murder. Therefore, it is reasonably probable that the jury, or some of the jurors, actually convicted appellant on an inappropriate robbery-murder charge as to Count III.

C. Presentation to the Jury of a Proper and an Improper Theory of First Degree Murder Requires Reversal of the Murder Convictions

When a jury is given instructions on a legally proper theory of guilt in conjunction with instructions on a legally improper theory of guilt, any resulting conviction must be reversed unless it can be conclusively shown by reference to the verdict(s) of the jury that no juror relied upon the improper theory. (People v. Green (1980) 27 Cal.3d 1, 69; People v. Guiton (1993) 4 Cal.4th 1116; see also Sheppard v. Rees, supra, 909 F.2d 1234, 1237-1238)

On the record available, it is impossible to tell whether or not the jury (or any of the jurors) convicted appellant on a theory of felony-murder on either Count II or Count III. The verdicts are general, and say nothing regarding the theory under which the jury convicted as to either count. There were no underlying felonies charged, so nothing can be told from other verdicts.

The instructions allowed convictions of felony-murder. The prosecutor, in argument to the jury, urged felony-murder as a basis for a first degree murder as to Count II. The evidence as to both Counts II and III was of a type which might lead to a finding of felony-murder in the absence of full and complete instructions on the relevant issues, as was the case here. (See Arguments V, post.) Indeed, as discussed below (see Arguments III and IV, post), the evidence was such that there is a reasonable probability that some, if not all, of the jurors relied upon the improper felony-murder theory in returning a verdict of guilt on Counts II and III. Therefore, neither from the verdicts of the jury nor from the evidence at trial can it be determined that the jury did not rely upon the legally erroneous felony-murder theory in reaching either of its first degree murder convictions in this case.

Moreover, it has been held, in the Ninth Circuit, that constitutionally inadequate notice of the crimes of which a defendant might be convicted is a structural error, requiring reversal without an examination of prejudice. (Sheppard v. Rees, supra, 909 F.2d at pp. 1237-1238; Gray v. Raines, supra, 662 F.2d at p. 572.)

Therefore, the convictions of first degree murder as to Counts II and III must be reversed.

FOOTNOTES:

Footnote 1: In the original information, one count of robbery of Ms. H, and one special circumstance allegation that Ms. H was murdered while appellant was engaged in a robbery, were charged. (1CT 37-38.) Each of these charges was stricken as unsupported by the evidence pursuant to Penal Code section 995. (1CT 5-6; RT AA3, pp. 14-15.) No felony other than section 187 murder with malice was charged in relation to the Ms. K homicide. (1CT 40-42.)

Footnote 2: While this error applies to Count I as well, the verdict of second degree murder on that count renders the errors harmless as to that count.

Footnote 3: The relevant instructions were as follows:

“‘The defendant is charged in Counts I, II and III of the information with the commission of the crime of murder, in violation of section 187 of the Penal Code.

“‘The crime of murder is the unlawful killing of a human being with malice aforethought of the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.

“‘In order to prove the commission of the crime of murder, each of the following elements must be proved:

“‘That a human being was killed;

“‘That the killing was unlawful;

“‘And that the killing was done with malice aforethought or occurred during the commission or attempt to commit a felony inherently dangerous to human life.

“Robbery is a felony inherently dangerous to human life.”

* * *

“‘The unlawful killing of a human being whether intentional, unintentional or accidental which occurs as a result of the commission or attempt to commit the crime of robbery and where there was in the mind of the perpetrator the specific intent to commit such a crime is murder of the first degree.

“‘The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.

“‘The crime of robbery is the taking of personal property in the possession of another from his person or immediate presence and against his will accomplished by means of force or fear and with the specific intent permanently to deprive such person of the property.

“‘In order to prove the commission of the crime of robbery, each of the following elements must be proved:

‘That a person had possession of property of some value, however slight;

‘That such property was taken from the person or from his immediate presence;

‘That such property was taken against the will of such person;

‘That the taking was accomplished either by force or violence or by fear or intimidation or by both;

‘And that such property was taken with the specific intent permanently to deprive such person of the property.

“‘Before the jury can convict the defendant of first degree murder in Count II of the information, Ms. H, all jurors must agree on the theory of first degree murder; that is, you must unanimously agree that the defendant had the specific intent to rob Ms. H and then intentionally killed her and/or you must unanimously agree that the defendant premeditated and deliberated the murder.” (RT A46, pp. 4940-4946.)

Footnote 4: Had this Court found no statutory source for the crime of felony-murder, the Court would have had to enforce the statutory abolition of all noncodified crimes. (Pen.Code, §6, originally adopted in 1872.)

Footnote 5: While the state attempted to avoid such a complete concession (id., at p. 1236), it cannot be avoided from the facts of Sheppard. The information in that case charged the defendant with one count of murder under California Penal Code section 187, but the state conceded a lack of notice due to conduct other than the information. However, that concession would have been unnecessary if the information standing alone had been sufficient notice.

Footnote 6: Notably, in Gray v. Raines, supra, 662 F.2d at pages 571-572, the Ninth Circuit found support for its conclusion that the information in that case was constitutionally inadequate in this Court’s opinion in In re Hess, supra, 45 Cal.2d 171, which stated inter alia that:

“A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense….” (Id. at p. 174; emphasis added.)

Footnote 7: The same is true for the many cases which either cite and rely upon Witt, or cite a case relying upon Witt. (See, e.g., In re Walker (1974) 10 Cal.3d 764, 781; People v. Risenhoover (1968) 70 Cal.2d 39, 50 cert. den., (1969) 396 U.S. 357; People v. Ford (1966) 65 Cal.2d 41, 50; People v. Goldstein (1962) 58 Cal.2d 535, 539; People v. Mendez (1945) 27 Cal.2d 20, 23; Allen v. Superior Court (1980) 113 Cal.App.3d 42, 49.) Each case, with no analysis, follows Witt‘s holding that a statement of the offense (under Pen. Code § 952) in the terms of Penal Code section 187 murder-with-malice permits conviction of first degree felony-murder.

Footnote 8: This Court has inexplicably cited Dillon for the precise opposite of its holding:

“To prove first degree murder of any kind, the prosecution must first establish a murder within section 18–that is, an unlawful killing with malice aforethought. (People v. Dillon (1983) 34 Cal.3d 441, 465. . . .)” (People v. Stanley (1995) 10 Cal.4th 764, 794.)

However, that case involved only malice-murder, not felony-murder, so that the erroneous statement of the law did not affect the analysis.

Footnote 9: However, a strong dissenting opinion concluded that a conviction of a felony-murder based upon a charge of section 187 was a violation of due process and beyond the trial court’s jurisdiction, and that both Watkins and the majority in Scott were in error. (229 Cal.App.3d at pp. 721-726.)

Footnote 10: “It is settled — that ‘in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the persecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.’ People v. Milan (1973) 9 Cal.3d 185, 195.) Defendant provides no compelling reason or authority that would require us to depart from this rule. . . .” (People v. Guerra, supra, 40 Cal.3d at p. 386; emphasis added.)

Footnote 11: In reviewing the effect of a prior decision, a reviewing court is free to consider the briefs in prior appeals to determine the arguments therein raised and decided. (9 Witkin, California Procedure, Appeals (3d ed. 1985) § 784, pp. 755-756.) As this Court will readily determine from the Guerra briefing, not only was no argument based on Dillon ever made there, but in fact the initial Guerra briefing predated this Court’s opinion in Dillon. Except by prescience, the appellant in Guerra could not have raised the present argument. Consequently, reliance upon Guerra as to this issue would be inappropriate.

Footnote 12: The Johnson court also relied upon Guerra, despite its failure to address the applicability of Dillon’s analysis to the issues raised. As discussed ante, Guerra is no authority on this proposition either way, for the issue in this case was not presented to the Court.

Footnote 13: People v. Bernard (1994) 27 Cal.App.4th 458 followed Johnson and Scott. However, in that case, the information included a special circumstance of robbery-murder, which clearly puts the defendant on notice that the prosecution sought to prove the elements of felony-murder. (Id. at pp. 470-471.)