Brief Bank # B-840 (Re: F 5.12d [Assaultive Character To Show Victim Acted In Conformity With Character].)
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[Dated: February 13, 2000]
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
Appeal from the Superior Court of the State of California
San Mateo County No. SC40905
Hon. John G. Swartz, Judge
APPELLANT’S OPENING BRIEF
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the appellant
By appointment of the Court
in association with the
First District Appellate Project
APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 15 OF THE CALIFORNIA CONSTITUTION, BECAUSE COUNSEL FAILED TO REQUEST A NECESSARY PINPOINT INSTRUCTION TELLING THE JURY THAT EVIDENCE OF THE VICTIM’S ANTECEDENT ACTS OF VIOLENCE WAS JUSTIFICATION FOR APPELLANT REACTING MORE QUICKLY AND HARSHLY
Both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 215.) “Specifically, a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate. (In re Cordero (1988) 46 Cal.3d 161, 249.) This means that before counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.” (In re Marquez (1992) 1 Cal.4th 584, 602; People v. Ledesma, supra.)
To make a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance “fell below an objective standard of reasonableness . . . under prevailing professional norms” and there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, at p. 687.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id., at 694.)
To establish entitlement to relief on a claim of ineffective assistance of counsel, the burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) When an ineffective assistance of counsel claim is raised on appeal, there is a “‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.’” (People v. Bunyard (1988) 45 Cal.3d 1189, 1215, quoting Strickland v. Washington, supra, at p. 689.) “Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence . . . the conviction should be affirmed.” (Ibid.) The determination whether counsel’s performance was deficient “generally must be made with deference to avoid the dual pitfalls of second-guessing counsel’s tactics and chilling vigorous advocacy by ‘to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial. . . .’” (People v. Ledesma, supra, at p. 216.)
“However, ‘deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. “[D]eference is not abdication” [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.’” (In re Cordero, supra, 46 Cal.3d at p. 180, quoting People v. Ledesma, supra, 43 Cal.3d at p. 217; see also, People v. Burnett (1999) 71 Cal.App.4th 151.)
In determining whether counsel’s performance was less than reasonable, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate. If there does appear on the record to be an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation’, the case is affirmed. However, if there “simply could be no satisfactory explanation” for counsel’s action, an appellate court can grant relief if it finds that the defendant was prejudiced by counsel’s constitutionally inadequate representation. (People v. Pope, supra, 425-427.)
The right to effective assistance of counsel includes the expectation that counsel “will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.]” (People v. Ledesma, supra, at p. 215.) In particular, the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which [the] defense rests.” (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7.)
In this instance, appellant contends that trial counsel failed to provide effective assistance of counsel by not requesting a pinpoint instruction relating Mr. O’s antecedent threats and assaults on the reasonableness of his own actions.
At trial, several prosecution and defense witnesses testified about the Mr. O’s violent and aggressive acts against others. Many of Mr. O’s victims were appellant’s friends or family members. Ms. M, for instance, testified about the incident where Mr. O was yelling at Mr. F and threatening to shoot him with a .38 Reuger (RT 498-499); she also described how she observed Mr. O beating up Ms. K (RT 500-505); Mr. C, in particular, described the incident where he, appellant’s cousin, and appellant’s girlfriend were threatened by Mr. O with a gun for no apparent reason; (RT 1515-1527.)
Appellant also talked about the incident where Mr. O had kicked in Ms. Z’s door in order to get to Ms. K, and about Mr. O stealing his girlfriends’s car stereo and her brother’s truck. Appellant said he was aware of these incidents, all of which occurred during the summer of 1995. Appellant further testified that his awareness of these prior incidents of assaultive behavior by Mr. O is what caused him to be apprehensive when he confronted Mr. O at the gas station that night, and why he panicked when Mr. O reached inside the truck. (RT 1580-1584, 1614-1615 .)
At the beginning of defense counsel’s closing argument counsel presented the defense theory of the case as follows:
“I think if there is one thing that you have learned in this trial, there were a lot of people that had a lot of reasons to hate Mr. O. Mr. O was a liar, he was a cheat, he was a thief. He beat people, used weapons against people, and one night all of that blew up on him and he was killed.
I want to make clear the position that the defense is taking in this case, kind of get a start to finish in the same place. We are not saying John Doe was right in what he did, we are not saying what he did was legal. He went out there to confront Mr. O with stealing from Ms. Z and he went out there to confront Mr. O with stealing from Mr. G.
When Mr. O was confronted, Mr. O did what he always does when he is confronted. As you heard about in a number of other incidents, when Mr. O was confronted he reached for his knife . . . . Mr. O as confronted and he reached for his knife.
John Doe panicked and shot him and killed him. There are some elements of [our self] defense law in this incident. We are going to have a whole bunch of descriptions in the jury room in the laws of this case. You will have the laws of what self defense are. We are not saying this is self defense, but it has some of those aspects in it, but it is not self defense. John Doe acted unreasonably in shooting Mr. O so quickly.
Maybe if he had waited a little longer it would have been self defense because Mr. O might have had the knife, but he acted unreasonably because he shot him too quickly. But because that shooting happened during a sudden quarrel, and because that shooting happened in his honest belief that there was a problem, the correct legal decision here is to find him guilty of voluntary manslaughter and the use of a gun, that’s what we will be asking you to do. Not to excuse him, not to find he was right, but not to convict him. We are not saying he did not intend to kill, he did intend to kill but that is also part of the concept of voluntary manslaughter.” (RT 1673-1674.)
It is clear that defense counsel’s theory of the case was that appellant was guilty of voluntary manslaughter because, appellant, who was aware of Mr. O’s antecedent threats and violence, was justified in reacting more quickly and harshly under the circumstances. However, counsel did not request the any instruction that would have pinpointed the defense for the jury.
A long line of California cases have held that prior threats or violence by the victim warrants an instruction informing the jury that such threats or violence justify the defendant in acting more quickly and taking harsher measures for his own or her own protection than would be a person who had not received such threats. This principle is commonly known and the antecedent threats doctrine. (See e.g., People v. Moore (1954) 43 Cal.2d 517, 527-528; People v. Bush (1978) 84 Cal.App.3d 294, 303-304; People v. Pena (1984) 151 Cal.App.3d 462; People v. Gonzalez (1992) 8 Cal.App.4th 1658, 1663-1664.)
Traditionally, this doctrine has applied to those situations where the victim had previously threatened or assaulted the defendant. However, in People v. Minifie (1996) 13 Cal.4th 1055, the Court held the antecedent threat doctrine also applied where the threats have not been made by the victim, but by third parties, who in the defendant’s mind are reasonably associated with the victim. The Court stated:
“A person claiming self-defense is required to ‘prove his own frame of mind,’ and in so doing is ‘entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.’ [Citation.]” “The defendant’s perceptions are at issue, and threats from a family and its friends may color a person’s perceptions of that individual. A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence ‘[tending] in reason to prove that the fear was reasonable. . . . Such threats are relevant to the defendant’s state of mind-a matter ‘of consequence to the determination of the action’ [citation]-and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant’s actions were justified.” (People v. Minifie, at pp. 1065-1066.)
In rejecting the attorney general’s argument that such antecedent threats did not apply where the threats were not made by the victim the Court stated: “the flaw in this argument is that it assumes the law of self-defense centers on the victim’s acts and intent. To the contrary, the law recognizes the justification of self-defense not because the victim “deserved” what he or she got, but because the defendant acted reasonably under the circumstances.” (Id., at p. 1068.)
The Court further stated that a justifiable homicide case turns on what the defendant actually and reasonably perceives in the victim’s behavior at the moment of killing. Evidence of antecedent threats is admissible when the threats are followed by some overt act that has placed the defendant in immediate danger. A defendant was entitled to show how a reasonable person in his position would have evaluated the extent of that danger. In making that evaluation, the defendant is entitled to consider prior threats, assaults, and other circumstances relevant to interpreting the attacker’s behavior. (Id., at p. 1069, quoting from People v. Aris (1989) 215 Cal.App.3d 1178, 1189.)
Appellant submits that if evidence of antecedent threats and violence by associates of the victim are relevant to the defendant’s state of mind, it stands to reason that is evidence of the victim’s own antecedent threats and violence to friends and family members of the defendant are equally relevant to the defendant’s state of mind. In fact, that is what the trial court effectively ruled here by permitting the defense to present this evidence.
In United States v. Saenz (9th Cir. 1999) 179 F.3d 686, the defendant was charged with assault with a deadly weapon with intent to do bodily harm. The defendant claimed self defense and sought to present evidence that (1) the victim had bragged to him about his fighting prowess; (2) that the defendant was aware, at the time the assault was committed, that the victim had recently been carrying brass knuckles and a piece of pipe for the purpose of assaulting a relative; and (3) that, on the day of the assault, the defendant had refused to participate in a series of illegal activities initiated by the victim. The district court ruled as a matter of law, that this evidence was inadmissible. (Id., at pp. 687-688.) The Ninth Circuit held the district court ruling in error. The court held that a defendant claiming self defense may show his own state of mind by testifying that he knew of the victim’s prior acts of violence against others. (Id., at p. 689; see also, United States v. James (9th Cir. 1999) 169 F.3d 1210 .)
In this case, the trial court permitted the defense to present this evidence about Mr. O’s prior acts of violence. However, counsel failed to request an antecedent threat instruction which would have specifically related this evidence on the issue of appellant’s state of mind.
“Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense.” (People v. Randolph (1993) 20 Cal.App.4th 1836, 1841; see also People v. Ryan (1999) 76 Cal.App.4th 1304, 1318; People v. Middleton (1997) 52 Cal.App.4th 19.) In this instance, the defense should have requested a pinpoint instruction telling the jury that it could consider the evidence of Mr. O’s prior acts
of violence as justification for appellant acting more quickly and taking harsher measures for his or her own protection. [Footnote 1]
Instead, the only instruction requested and given told the jury that it could only consider the evidence of Mr. O’s past acts “as relevant to the issue of whether [he] was acting in conformity with that character trait for violence on October 8, 1995. (CT 825; RT 1749.) This instruction was insufficient to pinpoint appellant’s defense and, in fact, served as a limiting instruction on the jury’s consideration of the evidence. The instruction given essentially told the jury that it could consider the evidence of Mr. O’s prior acts only on Mr. O’s state of mind. However, the critical issue was appellant’s own state of mind; and the instruction given in no way focused the jury’s consideration of this evidence to appellant’s state of mind nor the defense theory of the case.
In People v. Spencer (1996) 51 Cal.App.4th 1208, Division Four of this court specifically held that it was error for the trial court to refuse the defense request to broaden the self-defense instructions to include the homicide victim’s threats and assaults against third persons of which the defendant was aware. The court stated that, having ruled properly and correctly that evidence of the victim’s antecedent violence against third persons was admissible, the defense request for a special instruction expressly including prior assaults or threats by the victim to third persons should have been given. (Id., at pp. 1219-1220.) In Spencer, the court ultimately found the error harmless because in that case, the jury was given the full complement of self-defense instructions, including the instruction that one who has received threats against his own life is justified in acting more quickly and taking harsher measures for his or her own protection. Also, the court noted that there were nothing in the instructions given to the jury that required or suggested that the jury ignore or disregard the evidence of the victim’s acts against the third persons. Moreover, when the evidence was received, the jury was specifically informed that it was being admitted for the purpose of showing the defendant’s “state of mind” at the time of the shootings. “The only “state of mind” that this evidence tended to establish was defendant Spencer’s fear and apprehension of [the victim]. Thus, the precise point that Spencer sought to have conveyed to the jury through its special instruction was in fact conveyed through the trial court’s repeated admonitions at the time the evidence was admitted. (Id., at pp. 1220-1221.) Thus, in light of this authority for such an instruction, the manner in which counsel conducted the defense by presenting numerous witnesses on Mr. O’s past acts, and his argument of the case to the jury, it cannot said that the decision not to request an antecedent threat instruction was a tactical decision. The question therefore becomes whether appellant was prejudiced by the omission of the antecedent threat instruction, i.e, whether there is a reasonable probability that, absent counsel’s failings, the result would have been more favorable to appellant. Appellant believes that this standard is met in his case.
Here, unlike Spencer, there were no instructions directly relating the victim’s prior acts against anyone to the justification for acting more quickly and harshly. In fact, the jurors were directed against consideration of this evidence on appellant’s state of mind when they were instructed that such evidence was only relevant on the issue of whether Mr. O acted in conformity with his prior acts. (RT 1749.) In effect, the jury’s consideration of the evidence was really limited to appellant’s claim of actual self defense and not also on the issue of whether appellant had an unreasonable belief in the need for self defense as argued by counsel.
While it is true that when appellant was testifying about the incidents where Mr. O kicked in Ms. Z’s door, stole her speakers and her brother’s truck, and the assault on Clamar, the court instructed that his testimony was relevant to his state of mind at any time in this case (RT 1582, 1584), the court’s instruction did not serve the same purpose as a specific antecedent threat instruction pinpointing the relevance of the evidence on any justification for acting more quickly or harshly. [Footnote 2]
Furthermore, the jury deliberations and verdicts indicate that had the pinpoint instruction been given, it is reasonably probable the jury would have reached a more favorable result. The jury here did not believe the prosecution had proven beyond a reasonable doubt that the killing was wilful, deliberate and premeditated . During closing argument counsel did not strenuously argue that appellant acted under an actual and reasonable belief in self defense; rather the focus of counsel’s argument was appellant’s state of mind and whether under the circumstances he had an actual but unreasonable belief in self defense. Thus, when deciding appellant’s guilt the jury was really deciding between second degree murder and voluntary manslaughter based on the theory of an actual but unreasonable belief in the need to defend himself. However, the crucial instruction linking Mr. O’s past acts with appellant’s state of mind was missing from the its consideration.
Deciding between these two choices was easy for the jury throughout this case. It is noteworthy that at appellant’s first trial, the jury also heard evidence about Mr. O’s past acts, and were not given the special instruction to consider that evidence on whether Mr. O acted in conformity with his past behavior. Even without that instruction the jury still could not could not reach a decision on appellant’s guilt. (C.f., CT 863-865; RT Vol. V, at pp. 933-936.) In the second trial, pinpoint instruction given narrowed the jury’s consideration of the evidence to Mr. O’s state of mind only. The jury found appellant guilty of second degree murder, but that decision was only reached after four full days of deliberation and several requests for re-reading of testimony. (CT 866-873.) The point here is that what was missing in each instance was an instruction directly linking the antecedent acts of the victim to appellant’s state of mind and his justification for reacting more quickly and harshly.
The ultimate purpose of the right of effective assistance of counsel is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. (People v. Ledesma, supra, at p. 215.) In this instance, appellant believes he has amply demonstrated that counsel’s failure to request an antecedent threat instruction resulted in a violation of that right. As a result, a reversal of appellant’s conviction for second degree murder is required.
For the reasons stated herein, the judgment must be reversed and the case remanded for a new trial.
Dated: February 13, 2000 Respectfully submitted,
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the Appellant
Footnote 1: The court in State v. Peoples (1981 Mo.) 621 S.W.2d 324, 327, summarized the importance of such an instruction as follows: “The developed law of self-defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of the victim, and described acts of violence by the victim. . .as those incidents may bear to prove the basic elements of the defense. [Citations.] A mere direction to the jury to consider such proofs does not suffice. That is because those aspects of evidence are ‘the very heart of self-defense.’ [Citation.]” “In a word: such evidence, . . .serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of the basic self-defense instruction. [Citations.]”
Footnote 2: For example, the court instructed the jury as follows:
“Ladies and gentlemen, this evidence is being offered for a limited purpose, and that is not for the truth of the matter stated, because it is hearsay as to who kicked in the door, but what he had heard about [,] what Mr. Doe had heard about it, to the extent you may or may not find that relevant to his state of mind at any time while he was involved in this case.” (RT 1582.)