Brief Bank # B-832 (Re: F 8.20 n4 [Error To Instruct Jury That First Degree Murder Does Not Require Proof That Defendant Maturely And Meaningfully Reflected Upon The Gravity Of His Or Her Act].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
_____________________________/
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable Vilia Sherman
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
III. THE TRIAL COURT ERRED PREJUDICIALLY IN GIVING THE JURY AN INSTRUCTION WHICH WAS IRRELEVANT TO THE LEGAL ISSUES, BUT WAS REPEATEDLY USED AS ARGUMENT FOR THE PROSECUTION
A. Overview
Over defense objection (RT 1477-1478), the prosecution requested and was granted a jury instruction quoting Penal Code section 189, which stated: “A finding of first degree murder does not require proof that the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (CT 364; RT 1476-1479.) The instruction was given at RT 1529:26-28.
The statute on which the instruction was based, and which the prosecutor cited, was enacted only to abrogate the defense of diminished capacity. (Post, p. .) The instruction thus had no proper legal meaning in this case. However, the prosecution was able to use the instruction repeatedly in its closing argument, as a means of demeaning Mr. Doe and in arguing for first-degree murder, focusing the jury on specific court-approved factors that it used to attack his character. This is not a use which comports with the actual meaning of section 189. Moreover, the trial court should never have permitted an irrelevant instruction for argumentative purposes, of which its instruction signified approval to the jury.
The use of a legally irrelevant, argumentative and misleading instruction, thus permitting a court-approved attack on the defendant’s character, undermines the fairness of the proceedings. In this case, it was prejudicial on both the degree of murder in Count 1, and the issue of guilt/innocence in Count 2. To that extent, the judgment should be reversed.
B. Discussion: The Instruction Was Irrelevant And Argumentative
“[H]owever laudable the court’s motive, ‘It is error to give an instruction which correctly states a principle of law which has no application to the facts of the case.’ [Citation.] Yet such an error is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’ [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice.” (People v. Rollo (1977) 20 Cal.3d 109, 122-123.)
The latter is the case here. The instruction was confusing, which itself is reversible error in the context of irrelevant or abstract instructions. “It has long been the law that it is error to charge the jury on abstract principles of law not pertinent to the issues in the case. [Citation.] The reason for the rule is obvious. Such an instruction tends to confuse and mislead the jury by injecting into the case matters which the undisputed evidence shows are not involved.” (People v. Jackson (1954) 42 Cal.2d 540, 546-547.) That is particularly so when as here the instructions would tend to mislead a jury as well as confuse it, as shown by the case cited in the Jackson passage above, People v. Roe (1922) 189 Cal. 548, 558-560.
The instruction would have been highly misleading to a lay jury. Maturity and meaningfulness had nothing to do with any governing law in this case. The instruction, however, told the jury they did.
In the context in which the court gave the instruction, and also in light of the prosecutor’s closing argument, a jury would conclude that the instruction dealt with character traits,–i.e., an immature defendant who made immature and meaningless choices was more likely guilty of first-degree murder. That was exactly what the prosecution sought from the instruction (RT 1476), what the trial court contemplated when it approved the instruction (RT 1477-1478), and what the prosecutor did. (Post, p. .)
The correct legal interpretation of the instruction, however, has nothing to do with character traits, maturity, or meaning in a lay sense. It deals only with the abrogation of the diminished capacity defense, obviously a non-issue in a case that came 14 years after Proposition 8.
The words “mature and meaningful,” as to first-degree murder, were a legal shorthand for the diminished capacity defense. (People v. Bobo (1990) 229 Cal.App.3d 1417, 1434; People v. Stress (1988) 205 Cal.App.3d 1259, 1268-1270.) The concept of “mature and meaningful” was only implicated by diminished capacity, which required a defense based on mental disease or defect. (People v. Stress, supra, 205 Cal.App.3d at p. 1270; see also, e.g., People v. Caylor (1968) 259 Cal.App.2d 191, 204.) There was no such defense here, and diminished capacity no longer exists.
In short, the trial court gave a jury instruction for a purpose that was not supported by the statute which the instruction purported to follow. Quoting statutory language does not necessarily make for a good jury instruction. (See, e.g., People v. Deloney (1953) 41 Cal.2d 832, 841-842; People v. Sanchez (1950) 35 Cal.2d 522, 528.)
Literally, however, the instruction is true: Maturity and meaning are not required for first-degree murder. Neither is brown hair, a high IQ, or a pleasant smile. The best one could argue about this instruction is that it was legally irrelevant, except the jury couldn’t have known that.
When an irrelevant or abstract instruction diverts the jury onto a track favored by the prosecution, but that track is likely to mislead the jury on the law in a manner detrimental to the defense, the irrelevant instruction is likely to be prejudicial. (See, e.g., People v. Sanchez, supra, 35 Cal.2d at p. 528; People v. Martinez (1984) 157 Cal.App.3d 660, 669-670.) Thus although the instruction might have been legally correct in the abstract, it became confusing in the context of this specific case. It was also misleading, because it suggested to the jury that two particular factors (maturity and meaningfulness) played a special role in the determination of degree; else, why would the judge emphasize them so? That is exactly the type of irrelevant instruction which is most likely to be prejudicial.
The factors which courts have used to find errors of this nature harmless do not exist in this case. For example, courts have found there is no substantial risk of misleading the jury to the defendant’s prejudice when an irrelevant instruction does not figure in the closing arguments. (People v. Crandell (1988) 46 Cal.3d 833, 872-873; People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) In this case, however, the irrelevant instruction figured prominently in the closing arguments, where the prosecutor utilized it on several occasions. (Post, p. .)
Or, there would be no substantial risk of misleading the jury to the defendant’s prejudice, if the irrelevant instruction would be nullified by the standardized instruction that the jury should disregard instructions which applied to a state of facts it determined did not exist. (People v. Von Villas (1992) 11 Cal.App.4th 175, 238.) Here by contrast, the jury could easily have found the state of facts implicated by the irrelevant instructions to exist. All it had to do was find that appellant was immature or not meaningful, which the prosecutor argued was established by the evidence: “[W]e know from his two counselors that he’s not mature and meaningful.” (RT 1369:4-5; see RT 1390, 1414, 1419-1420 [evidence from counselors].)
In addition, the instructions were argumentative, in the manner condemned in the cases cited by defense counsel, People v. Wright (1988) 45 Cal.3d 1126, and People v. Harris (1989) 47 Cal.3d 1047. Wright disapproved of the common practice of incorporating facts deemed by one side (there, the defendant) to be material, and suggestive of an opinion favorable to that party as to the effect of those facts. (Id. at p. 1135.) Harris disapproved of the same type of instruction. (Id. at p. 1099.)
Here, as noted above, the erroneous instruction focused the jury on a specific factual issue of whether appellant reflected upon the gravity of his act in a manner that was either immature or not meaningful, suggesting that either court-emphasized factor strongly favored first-degree murder. The prosecutor seized on that to argue repeatedly that appellant was immature and not meaningful, the things he did were immature and not meaningful; since first-degree murder didn’t require mature and meaningful weighing, and appellant’s weighing was immature and not meaningful, he was guilty of first-degree murder. (See post, p. .)
While the instruction allowed the prosecutor to do that, it did so erroneously. Whether appellant was mature or “meaningful,” or made mature or meaningful choices, had nothing to do with Penal Code section 189, the proffered legal basis of the instruction. There is no statutory link between first-degree murder and character traits such as immaturity or meaninglessness, or making immature or meaningless choices in life. The jury was misled into believing there was.
The trial court rejected defense counsel’s contention that the instruction was improperly argumentative, ruling that “this is on the order of a pinpoint instruction almost.” (RT 1478.) By this ruling, the trial court misunderstood the distinction between a proper pinpoint instruction, and an improper argumentative instruction.
In a proper pinpoint instruction, “[w]hat is pinpointed is not specific evidence as such, but the theory of the [party’s] case.” (People v. Wright, supra, 45 Cal.3d at p. 1137.) By contrast, an instruction is improperly argumentative if it highlights certain evidence “without further illuminating the legal standard at issue.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1269, 1270; People v. Noguera (1992) 4 Cal.4th 599, 648.) Thus, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative. (People v. Roberts, supra, 2 Cal.4th at p. 314; People v. Wright, supra, 45 Cal.3d at p. 1137.) The instruction in this case was clearly the latter, as it focused on specific evidence by “highlighting certain aspects without further illuminating the legal standards at issue.” (People v. Musselwhite, supra, 17 Cal.4th at pp. 1269-1270; People v. Noguera, supra, 4 Cal.4th at p. 648; People v. Fauber (1992) 2 Cal.4th 792, 865-866.) Defense counsel’s objection was correct.
Based on the above, the trial court erred in giving this diminished capacity instruction in what was obviously a non-diminished capacity case.
C. Prejudice
The error was prejudicial under any standard. It is prejudicial of itself that the trial court put its legal imprimatur on “factors” argued by the prosecution that simply didn’t have any legal effect on any issues of premeditation or deliberation. True, nothing would have stopped the prosecution from arguing that maturity and meaningfulness had some relation to premeditation and deliberation even if the trial court had not given the erroneous instruction; but without that instruction, any arguable link would have been tenuous at best.
By contrast, with the trial court’s imprimatur, the jurors would have considered themselves directed by the court specifically to consider these factors, above and beyond those that were not specified. The fact that the argumentative direction came from the trial court made the error particularly prejudicial, because jurors give great heed to the instructions of the trial judge, as the highest and most influential authority on matters of law. (E.g., Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 819.)
The fact that the prosecutor capitalized on the erroneous instruction in closing argument is a further factor strongly showing prejudice. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1034; People v. Roder, supra, 33 Cal.3d at p. 503, fn. 13; People v. Feno (1984) 154 Cal.App.3d 719, 728-730.) Here, the erroneous instructions did not appear merely in some passing remark. The prosecutor requested the instruction for the express purpose of making the arguments that he did, repeatedly using the “mature and meaningful” instruction to argue that appellant was guilty of first-degree murder because he was immature and never did anything meaningful. The jury heard this court-approved theme from the prosecutor over and over again in his closing argument (RT 1571:17-24, 1581:8-11, 1638:28-1639:6), and further at the end of his rebuttal, in the last argument that the jury heard from counsel. (RT 1655:23-28.) In particular, when a plaintiff or prosecutor capitalizes on a legal error during his rebuttal argument, that especially compounds the prejudice from the error, because defense counsel has no opportunity to respond. (People v. Perez (1962) 58 Cal.2d 229, 245; People v. Talle (1952) 111 Cal.App.2d 650, 677.)
The end result is prejudicial error on degree in Count 1, as it induced the jury to find first-degree murder if it concluded appellant wasn’t mature or meaningful, or didn’t make mature or meaningful choices.
A fortiori, the same error was prejudicial as to Count 2. Any error that erroneously increased the possibility of the jury finding premeditation and deliberation also increased the possibility that the jury would find there was solicitation with intent to kill, as opposed to mere joking around. Once the jury found first-degree murder based on premeditation and deliberation, it had little with which to reject the prosecution theory that despite all of appellant’s supposed planning, the solicitation was non-existent, particularly in a case with such thin motive for first-degree murder. (See ante, -.)
Finally, allowing a legally erroneous attack on a defendant’s character as a basis for guilt rises to the level of a Fourteenth Amendment violation. (E.g., Dawson v. Delaware, supra, 503 U.S. at pp. 165-168; McKinney v. Rees, supra, 993 F.2d at p. 1385.) Such error is evaluated under Chapman v. California, supra, 386 U.S. at pp. 23-24. (See ante, p. .) It is prejudicial under that standard for the reasons above, and also due to the prosecution’s extensive reliance on it in closing argument, as discussed above.
Appellant recognizes that on the instructions given this jury, this error only affected Count 1 insofar as it went to the question of degree. Thus, as to Count 1, if the People do not bring defendant to trial within a specific time after the filing of the remittitur, then the trial court shall proceed as if the remittitur modified the judgment to reflect a conviction of second-degree murder on Count 1. (People v. Edwards (1985) 39 Cal.3d 103, 118.)
However, that remedy is inappropriate for Count 2, because the error affected that count in its entirety. Solicitation is itself a form of premeditation and deliberation, and thus an error which affected the issue of premeditation and deliberation necessarily affected the charge of solicitation as well. That is especially so here, where there were also other problems with the evidence of solicitation. These matters are discussed ante, pp. 48-50, and are incorporated by reference here.
Thus, unless the People request a new trial, the judgment should be modified to reflect only a conviction of second-degree murder on count 1.
