Brief Bank # B-826 (Re: F 2.21.2 n2 [Failure To Give “Witness Willfully False” Instruction As Reversible Error].)
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II. THE TRIAL COURT ABROGATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO FAIR TRIAL BY JURY AND TO DUE PROCESS WHEN IT REFUSED TO INSTRUCT WITH CALJIC NO. 2.21.2, “WITNESS WILLFULLY FALSE.”
A. Summary Of Proceedings Below And Introduction
Defense counsel requested the trial court instruct with CALJIC No. 2.21.2, “Witness Willfully False”:
“A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
Defense counsel explained:
“The theory of the defense is that the witnesses who got on the stand, the prosecution witnesses who got on the stand and what they testified to, that they were lying, at least as to the portion where they were saying that they never threatened and that they never charged Mr. R; and that’s — that happens to be a material part of their testimony. And if they were willfully false about that, then I am going to ask a jury to disregard the rest and reject the rest of their testimony.
There was a lot of inconsistencies between their testimonies, and . . . this is one of those instructions that’s usually given. And it is for the jury to determine that if they were false, that they should have an instruction as to what to do then.” (R.T. 290-291.)
Nevertheless, the trial court refused to give this instruction, because “there needs to be some kind of factual basis on which the court can rely other than discrepancies of testimony.” (R.T. 291.)
This ruling was in error. The cases are clear that it was not appellant’s burden to offer affirmative proof to the judge that the witnesses had lied. Sufficient discrepancies in testimony existed to warrant instruction.
Omission of this critical instruction — given virtually as a matter of course in criminal cases — requires reversal of appellant’s assault with deadly weapon conviction. The jurors should have been instructed that, were they to determine witnesses had offered material, willfully false testimony, the jurors could completely reject that testimony.
This omission impermissibly lessened the prosecution’s burden of proof and thus abrogated appellant’s state and federal constitutional rights. The error prejudiced appellant’s defense and requires reversal his convictions.
B. It Was Error For The Trial Court To Refuse To Give This Staple Instruction Necessary To Guide The Jury’s Evaluation Of Arguably False Prosecution Witness Testimony.
The courts have long recognized CALIJIC No. 2.21.2 represents a correct statement of the law which is appropriately given where there is an evidentiary basis to support it. (People v. Lang (1989) 49 Cal.3d 991, 1023 and fn. 15; see also People v. Beardslee (1991) 53 Cal.3d 68, 94-95; People v. Foster (1995) 34 Cal.App.4th 766, 772.) The California Supreme Court most recently considered this instruction in People v. Millwee (1998) 18 Cal.4th 96, where the Court rejected the defendant’s claim that the instruction unfairly cast doubt on the credibility of his testimony. The Millwee Court recognized this “standard” and “routine” instruction “sets forth an appropriate test for evaluating the credibility of any witness at any phase of trial.” (Id. at. p. 159, fn. 29; see also People v. Johnson (1993) 6 Cal.4th 1, 48 [the instruction appropriately “assist[s] the jury in appraising the credibility” of penalty phase witnesses].)
Thus the courts have recognized that CALJIC No. 2.21.2 correctly guides the jury’s determinations of credibility and therefore guilt. It was the trial court’s non-delegable duty to instruct the jury properly as to this principle. (People v. Thompkins , supra, 195 Cal.App.3d at p. 250.) “[T]he primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve.” (Ibid.) As the court in McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 (en banc), cert. denied 118 S.Ct. 1575 (1998), recently recognized when it reversed a state penalty verdict where the trial court failed to correctly instruct after the jurors sought clarification of an instruction:
“A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.” (Id. at p. 836.)
Moreover, there is no requirement that the requesting party offer affirmative proof, beyond discrepancies in the evidence presented at trial, of material falsity. Therefore it was error when the trial court refused the defense request on this ground. This Court in People v. Murillo, supra, 47 Cal.App.4th 1104 held it was error for the trial court to refuse to instruct orally (versus submitting the written instruction to the jury) with CALJIC 2.21.2 where the victim’s testimony was internally inconsistent and the defendant’s testimony was “vague and improbable.” (Id. at p. 1107.)
In People v. Millwee, supra, 18 Cal.4th at p. 159, instruction was triggered simply by the conflict between the prosecution’s circumstantial evidence and the defendant’s own testimony. (Id. at p. 159.) In other words, the California Supreme Court held it was correct, and not a denial of due process, to instruct the jury with CALJIC 2.21.2 on the basis of discrepancies between the prosecution and defense case –necessarily the state of affairs in virtually every criminal trial in which a defendant presents evidence. (See also People v. Rivers (1993) 20 Cal.App.4th 1040 [instruction properly given where inconsistencies occurred between the testimony of the victim and the officer who apprehended the defendant, both of whom were called by the prosecution]; People v. Lescallet (1981) 123 Cal.App.3d 487 [instruction properly given where, although the defendant did not testify, the testimony of defense witnesses was such that if it were true, the victim and prosecution witnesses were probably mistaken or willfully false in their testimony].)
Therefore, it was clearly error for the trial court to require appellant to provide affirmative proof that the prosecution witnesses were willfully material false, or forego instruction with CALJIC No. 2.21.2. As defense counsel correctly pointed out, the four men’s testimony was riddled with inconsistencies and this inconsistency triggered the instruction. [Footnote 1] Moreover, under the specific logic of Millwee as well, the instruction was necessary, since appellant testified on his own behalf and his version of events differed from the prosecution’s.
C. The Trial Court’s Refusal To Instruct Was Prejudicial And Therefore Requires Reversal.
As appellant has set forth above, omission of this instruction lessened the prosecution’s burden of proof. This error of federal constitutional dimension requires this Court to evaluate the prejudice of this error under the test set forth in Chapman v. California, supra, 386 U.S. at p. 24. However, even under the test set forth in People v. Watson, supra, 46 Cal.2d 818, reversal of appellant’s assault with a deadly weapon conviction is required. [Footnote 2] [Footnote 3]
This case was quintessentially a credibility contest between appellant on one side and the victim and his three compatriots on the other. The four prosecution witnesses maintained — in wildly inconsistent versions of how many of them were present when appellant was pinned against the wall trying to escape — that appellant virtually gratuitously stabbed Mr. M in the neck. According to Mr. M and Mr. L, Mr. L cornered appellant against the wall and punched him in the face before Mr. M arrived and tried to grab appellant. According to Mr. G however, it was Mr. M who cornered appellant first — both Mr. L and Mr. O followed, and it was Mr. O who gained some control over appellant before he stabbed Mr. M. Appellant testified he was waving the writing pen knife to defend himself against all four larger men who cornered him against the wall, pummeled him, and would not let him escape. Thus it was absolutely critical that the jurors be instructed that they could completely reject all the testimony of any witness they believed fabricated any part of his answer.
The prejudice stemming from this error is different from the non-prejudicial error this Court found in People v. Murillo, supra, 47 Cal.App.4th 1104. There, counsel argued that based on CALJIC No. 2.21.2, the jurors could reject the victim’s testimony if they believed it was materially false. The trial court erred when it neglected to read the instruction to the jury and refused to orally instruct with the instruction after the jury had retired for deliberations. This Court held the omission did not amount to prejudicial denial of federal rights because the jury had been presented the information regarding CALJIC 2.21.2, albeit through defense counsel. (Id. at p. 1107-1108.) Here, defense counsel requested the trial court give the instruction and he refused; thus it was not possible for defense counsel to explain to the jury it could reject the prosecution witnesses’ testimony under CALJIC No. 2.21.2. Appellant’s jury did not learn from any source that it could reject in whole the testimony of witnesses it found willfully false.
It is clear from the verdicts that the jury rejected appellant’s testimony; indeed, the jurors were instructed that they could use appellant’s previous felony conviction as a means to reject his testimony. (CALJIC No. 2.23, R.T. 300, C.T. 77.) Yet the trial court refused to instruct with this absolutely standard instruction that would have directed the jurors that they could have similarly rejected any man’s (including prosecution witnesses’) version of events if they found he lied about a material fact. [Footnote 4] Had the jurors been instructed that, based on the prosecution’s witnesses’ inconsistencies, they could reject that testimony in whole, the result would have been different. Thus the prejudice is clear and appellant’s conviction for assault with a deadly weapon must be reversed.
Footnote 1: For example, Mr. M and Mr. L testified that Mr. L caught up to appellant and punched appellant in the face two or three times as appellant tried to leap over the wall. Mr. M then reached the two men, grabbed for appellant and was stabbed in the neck. (R.T. 58-60, 71, 129-131, 225-227, 243.) However, Mr. G testified Mr. M reached appellant first and was followed closely by Mr. L and Mr. O , who gained some control over appellant. (R.T. 153-154, 182.)
Footnote 2: Appellant recognizes this court in People v. Murillo, supra, 47 Cal.App.4th at pp. 1107-1108 applied the Watson test for prejudice when analyzing the trial court’s refusal to orally instruct with CALJIC 2.21.2. However, as appellant sets forth above, the error in this case lessened the prosecution’s burden of proof and therefore is error of federal constitutional dimension.
Footnote 3: Because appellant admitted possession of the pen knife, he does not contest that conviction in this argument.
Footnote 4: Although the instruction applies to all witnesses, it is clear the omission could only have prejudiced appellant, whose testimony the jury obviously rejected.