Brief Bank # B-838 (Re: PG VII(C)(21) [Due Process Requires Balanced Instructions That Do Not Unduly Favor The Prosecution].)
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[Date of Brief: December, 1999]
NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, H000000
Plaintiff and Respondent, [Monterey Co.
v. SS 000000]
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
From the Judgment of the Superior Court
of the State of California, County of Monterey
The Honorable Wendy C. Duffy, Judge Presiding
KATHY M. CHAVEZ, SBN 121701
TARA MULAY, SBN 193606
Berkeley, CA 94709-0006
FAX (415) 723-7544
Attorney for Appellant
By appointment of the
Court of Appeal under the
Sixth District Appellate
Project’s independent case system
III. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS RIGHT TO IMPARTIALITY BETWEEN THE PROSECUTION AND THE DEFENSE AND SIXTH AMENDMENT RIGHT TO PRESENT A MEANINGFUL DEFENSE BY REFUSING MULTIPLE, LEGALLY CORRECT DEFENSE REQUESTED INSTRUCTIONS AND INSTRUCTING SOLELY ON THE PROSECUTION’S THEORY OF CONSCIOUSNESS OF GUILT
A. Summary of Proceedings Below and Introduction to Argument.
The trial court refused the defense requested modifications to CALJIC instructions Nos. 2.03 and 2.04 [Footnote 1] on consciousness of guilt. Appellant requested the following addition to CALJIC No. 2.03]:
“Before considering the defendant’s statements, you must determine the existence of the following preliminary facts: 1) whether the defendant made the statements; and 2) whether the defendant deliberately lied to hide his complicity in the crime. Unless you find both of these preliminary facts to exist, you must disregard the statements.
The defendant’s falsehoods, even if admissible as indicating consciousness of guilt, are insufficient to support any missing elements of the prosecution’s case. Even though the falsehoods are admissible as indicating a consciousness of guilt, there are many other plausible reasons why a defendant may utter falsehoods.” (CT 161-62.)
Appellant requested the following addition to CALJIC No. 2.04:
“You may not consider this evidence for any purpose unless you first determine it demonstrates a consciousness of guilt as to the charged offenses.” (CT 164.)
The trial court also refused to give the following defense proposed special instruction:
“The defendant in this case refused to identify the person(s) who he claimed used his truck, requested that he hide the three guns recovered in his home, and who (sic) he gave a ride to subsequent to the shooting in this case.
The defendant’s refusal to identify these individuals who were known to him is a factor you may consider in deciding the weight to give his testimony. The defendant has offered a reason why he chose not to identify these persons. You are free to accept or reject that explanation. You are the sole judges of the credibility of all witnesses in the case; including the defendant. It is up to you and you alone as the trier of fact in this case to decide what weight, if any, to give to the defendant’s explanation for why he refused to name these individuals.” (CT 163.)
The instructions as given, i.e., CALJIC Nos. 2.03, 2.04 and 2.06 without the requested modifications, and without appellant’s special requested instruction, amounted to instructing the jury exclusively as to the prosecution’s theory of consciousness of guilt, while depriving appellant of any defense theory instructions regarding appellant’s evasive conduct. The trial court thereby weighted the balance of the instructions heavily in favor of the prosecution and violated appellant’s due process and Sixth Amendment rights.
B. The Trial Court’s Refusal to Instruct the Jury on the Principles Supporting the Defense Theory that Appellant Concealed and Attempted to Fabricate Evidence For Plausible, Innocent Reasons other than Consciousness of Guilt Violated Appellant’s Sixth Amendment and Due Process Rights.
1. Summary of applicable legal principles.
Due process requires balanced instructions that do not unduly favor the state. In Wardius v. Oregon (1973) 412 U.S. 470, 474, fn. 6, the Supreme Court warned that “state trial rules which provide nonreciprocal benefits to the State” interfering with the right to a fair trial violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v.Texas (1967) 388 U.S. 14, 22 [state would violate due process clause if it precluded category of defense witnesses, such as accomplices, from testifying on the basis that they are unworthy of belief]; Gideon v. Wainwright (1963) 372 U.S. 335, 344 [defendants must be afforded right to counsel in order to defend against charges prosecuted by state’s attorneys].) The Due Process Clause “speak[s] to the balance of forces between the accused and his accuser.” (Wardius, supra, 412 U.S. at 474; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372 [accord].) Therefore, “in the absence of a strong showing of state interests to the contrary,” there “must be a two-way street” as between the prosecution and the defense. (Id. at 474.)
A criminal defendant is also entitled to present a complete defense, by presenting evidence tending to raise a reasonable doubt about his guilt and by receiving requested instructions that pinpoint the defense theory of the case. (See, e.g., United States v. Hicks (4th Cir. 1984) 748 F.2d 854, 857-58 [rights to trial by jury and due process abridged by failure to give requested instruction on defense theory of the case]; Crane v. Kentucky (1986) 476 U.S. 683, 690 [whether rooted in due process or the Compulsory Process Clause of the Sixth Amendment, a defendant is entitled to an opportunity to present a defense].) Therefore, upon request, the defendant must receive “special instructions on matter[s] critical to the defense, [that] “focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt . . . by listing, in a neutral manner, the relevant factors supported by the evidence.” (People v. Carter (1994) 19 Cal.App.4th 1236, 1252, quoting People v. Wright (1988) 45 Cal.3d 1126, 1141, internal citations omitted; see also People v. Fudge (1994) 7 Cal.4th 1075, 1110 [accord].) Such instructions must be neutral and should not “invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact.” (Wright, supra, 45 Cal.3d at 1135.)
The rights set forth above — to impartiality between the prosecution and the defense and to present a complete defense with evidence tending to raise a reasonable doubt and supporting instructions — delineate a due process and Sixth Amendment right to instructions that do not unfairly favor the prosecution’s theory of the case. Even though Wardius, supra, involved reciprocal discovery rights, the California Supreme Court has held that the equitable principle announced there of a balance of forces between the prosecution and the defense applies with equal force to jury instructions. (See People v. Moore (1954) 43 Cal.2d 517, 526-27 [reversing where refusal to give defense requested instructions on self-defense resulted in “rules of law [being] stated exclusively from the viewpoint of the prosecution].) Since instructions that support only the prosecution theory of the case lead the jury to believe that the court or the law is critical of the defendant’s claim, “[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions.” (Ibid.)
In short, appellant was entitled to instructions that did not prevent the jury from giving due weight to his testimony that his evasive behavior with the police and his refusal to name gang members was motivated by his fear of gang retaliation and his knowledge of his culpability for assisting the shooters after the shooting. [Footnote 2] (RT 562 [appellant testifies he asked Mr. V to give him an alibi because: “I was still — either way — either situation I was going to prison”]; RT 595 [“if I give up the information, I Know something will be done to my family or myself, and that’s something I would not be able to deal with. Eventually I know I’m going to prison, either way.”].) The trial court’s refusal to give the defense theory instructions skewed the instructions in favor of the prosecution and violated his due process and Sixth Amendment rights.
2. The trial court erred in refusing appellant’s requested modifications to CALJIC No. 2.03.
In addressing whether a defendant’s statement was properly admitted as evidence of consciousness of guilt, [Footnote 3] the California Supreme Court stated that the jury must find two preliminary facts before a defendant’s false statements are relevant to consciousness of guilt: “that the statement was false” and “that defendant deliberately lied to hide his complicity in the crime.” (People v. Kimble (1988) 44 cal.3d 480, 498; People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 [accord].) Appellant was thus entitled to his first requested modification [Footnote 4] which would have given the jury the legal underpinning supporting appellant’s defense theory that his falsehoods did not show consciousness of guilt because he did not lie to hide his complicity in the crime.
Since the instruction correctly set forth the preliminary facts the jury must find before considering appellant’s falsehoods as evidence of consciousness of guilt, appellant was also entitled to the instruction under Evidence Code section 403, subdivision (c)(1). (See, e.g., People v. Simon (1986) 184 Cal.App.3d 125 [Evid. Code § 403(c)(1) entitles defendant to jury instruction that jury must find preliminary facts].)
Appellant was also entitled to his second requested modification to CALJIC No. 2.03, because it was legally correct and, in a neutral manner, set forth the legal principle supporting appellant’s testimony that there was an innocent explanation for his falsehoods.
People v. Jenkins (1979) 91 Cal.App.3d 579, 586 held that evidence of a defendant’s falsehoods is insufficient to support missing elements of a prosecution’s case, and recognized that in the case before it there were “many other plausible reasons” for the defendant’s falsehoods, e.g. that the defendant, while not conscious of his guilt, might have lied to the police because he was concerned about being the target of prosecution regardless of his guilt of the crime for which he was accused. All of the principles set forth in appellant’s second proposed modification to CALJIC No. 2.03 track Jenkins and support appellant’s defense theory. The first sentence of the proposed modification would have used the phraseology in Jenkins to reiterate that evidence of prior falsehoods was insufficient to prove guilt [CALJIC Nos. 2.03, 2.04 and 2.06]. More importantly, the second sentence would have supported appellant’s defense by calling the jury’s attention to the possibility that the evidence might demonstrate other plausible and innocent explanations for a defendant’s falsehoods.
Both of these proposed modifications would have balanced the forces between the prosecution and the defense, and ensured that the jury actually weighed appellant’s testimony explaining his conduct and maintaining his innocence of the charged crimes.
3. The trial court erred in refusing appellant’s requested modification to CALJIC No. 2.04.
Evidence is admissible to prove consciousness of guilt only when there is some evidence from which a jury may infer that the defendant was conscious of guilt of the charged offense, and that he did not act out of consciousness of guilt of some other offense or because of another factor. (People v. Rankin (1992) 9 Cal.App.4th 430, 435-36 [evidence of defendant’s falsehoods inadmissible to prove consciousness of guilt where the jury could only infer he made the false statements to protect someone else]; United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1049 [the probative value of circumstantial evidence of consciousness of guilt depends on strength of evidence that the defendant was conscious of guilt of the charged crime]; (People v. Williams (1988) 44 Cal.3d 1127, 1143, fn. 9, quoting [accord].) Thus, the question whether the defendant may have acted out of consciousness of guilt of some other crime is another preliminary fact the jury must make before considering the evidence as relevant to consciousness of guilt. Appellant’s testimony was precisely that he knew he was going to prison regardless of whether he had an alibi, because he assisted the shooters after the shooting. (RT 562.) It was thus crucial to the defense that the jury consider preliminarily whether the effort to procure an alibi was relevant to his consciousness of guilt of the crime charged.
4. Appellant was entitled to an instruction tailored to inform the jury that it could consider and accept or reject any explanation he gave for refusing to answer questions during his testimony.
In certain respects, appellant’s proposed special jury instruction might be considered an “argumentative pinpoint instruction,” because it refers directly to appellant’s refusal to name the individuals he believed were the shooters and his explanations. (People v. Wright, supra, 45 Cal.3d 1140-1141.) Even if that were the case, the trial court was obligated to tailor the instruction to eliminate its flaws and retain the legitimate principles supporting the defense theory, e.g. by instructing: “You may consider any explanation given by a defendant for refusing to answer questions during testimony as bearing on the weight of the his credibility. You are free either to accept or reject any such explanations.” (People v. Fudge, supra, 7 Cal.4th at 1110 [trial court should tailor argumentative defense pinpoint instruction to conform to requirements of Wright rather than rejecting instruction altogether].) Again, this instruction would have provided some balance against the three prosecution instructions on consciousness of guilt, which on their own implied severe disapproval of appellant’s explanations for his refusal to name names and his prior evasive conduct.
The crux of the error is that the skewed instructions impressed upon the jury that the law and the court disapproved of appellant’s testimony explaining his conduct with the police and the prosecution. The trial court’s failure to give the defense requested modifications and instructions deprived appellant of a jury that could fairly evaluate his defense testimony and theory, and therefore the instructional errors violated appellant’s due process and Sixth Amendment rights.
C. The Accumulation of Instructional Errors Violated Appellant’s Due Process and Sixth Amendment Rights, and Requires Reversal.
The trial court’s combined errors in refusing to give the defense requested instructions violated appellant’s federal due process and Sixth Amendment rights, requiring review for prejudice under Chapman v. California, supra, 386 U.S. at 24.
The same factors that demonstrate the prejudice from the trial court’s erroneous modification of CALJIC No. 2.06 illustrate the prejudicial nature of the trial court’s failure to instruct on the defense theory. (See argument *, above). In brief, the prosecutor exploited the one-sided, biased consciousness of guilt instructions in his closing argument, emphasizing that the court would instruct the jury at length on the evidence showing consciousness of guilt. (RT 650-51.) Thereby, the prosecutor urged the jury to recognize that the trial court and the law were on his side and favored his theory. Moreover, since the prosecution’s case was devoid of any direct evidence that appellant intended to aid the shooters prior to the shooting, the “consciousness of guilt” evidence was crucial to the prosecution, and appellant’s testimony explaining it was crucial to the defense. Thus, this Court must reverse.
Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse his convictions and remand for a new trial; or in the alternative, that this Court strike the vicarious personal use enhancements, and remand for a new trial.
DATED: December ___, 1999 Respectfully submitted,
KATHY M. CHAVEZ
TARA M. MULAY
Attorneys for Appellant
CALJIC No. 2.03, as given in this trial, states: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that  statement as a circumstance tending to prove a consciousness of guilt; however, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.” (RT 685; CT 255.)
CALJIC No. 2.04 states: “If you find that a defendant attempted to persuade a witness to testify falsely or attempted to fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt; however that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (RT 686; CT 256.)
See also II Wigmore on Evidence, º 2, pg. 232 (J. Chadborn, rev. ed., 1979) [“Let the accused’s whole conduct come in; and whether it tells for consciousness of guilt or consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and not to be emphasized.”]
Although the instruction modification would have been clearer had it stated that the jurors must find these facts “before considering whether the defendant’s statements indicated a consciousness of guilt,” instead of simply stating that they must find the facts “before considering the defendant’s statements,” the trial court had the duty to give the instruction even if the court believed it needed to tailor it somewhat to conform entirely to the facts and the law applicable to appellant’s case. (People v. Fudge (1994) 7 Cal.4th 1075, 1110.)
“[T]he so-called CALJIC stereotyped instructions are no more sacrosanct than any others. Unless a particular instruction fits the evidentiary situation and presents a fair and impartial picture of the issues, it should not be given.” (People v. Mata (1955) 133 Cal.App.2d 18, 21.) “Although the CALJIC pattern instructions perform an invaluable service to the bench and bar, that those instructions are not sacrosanct is apparent from their treatment by the appellate courts.” (People v. Vargas (88) 204 Cal.App.3d 1455, 1464.)