Brief Bank # B-842 (Re: LRO II(B) [Theories For Instruction On Lesser Related Offenses Notwithstanding Birks: Conflict Between Birks and the Right to Present a Defense].)
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[Date of Brief: December, 1999]
NOTE: The text of the footnote appears 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
V. THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHTS TO TRIAL BY JURY AND TO COMPULSORY PROCESS AND HIS FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY REFUSING THE DEFENSE REQUEST TO INSTRUCT ON THE DEFENSE THEORY THAT APPELLANT WAS GUILTY AT MOST OF ACCESSORY AFTER THE FACT
A. Summary of Proceedings Below.
Defense counsel requested that the trial court instruct the jury on accessory after the fact, Pen. Code, § 32, on the ground that appellant had admitted to every element of that offense in his testimony. The prosecutor objected to the instruction, and the trial court refused the defense request, citing People v. Birks, supra, 19 Cal.4th 108. (RT 621-26.) [Footnote 1] Defense counsel renewed his request for an accessory-after-the-fact instruction after the prosecutor argued to the jury that appellant did not need to be present at the shooting to be guilty as an aider and abettor. (RT 641-42; 654.) Defense counsel noted that the prosecutor’s argument had thereby put in issue the question of appellant’s guilt of accessory after the fact, by insinuating to the jury that it could find appellant guilty even if appellant had been sitting at home waiting for the shooters to come back after having borrowed his truck. The trial court again refused the defense request. (RT 654-56.) Defense counsel reiterated his request for an accessory-after-the- fact verdict form, which the trial court refused. (RT 711.) This refusal violated appellant’s right to an instruction on the defense theory of the case.
B. The Trial Court’s Refusal to Instruct on the Defense Theory Violated Appellant’s Sixth and Fourteenth Amendment Rights.
1. The federal constitutional right to instruction on the defense theory of the case.
Whether rooted in the Sixth Amendment rights to trial by jury and compulsory process, or in the due process clause of the Fourteenth Amendment, the constitution guarantees criminal defendants a right to present a defense, and therefore a right to a requested instruction on the defense theory of the case. (Mathews v. United States (1988) 485 U.S. 58, 63 [”As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor”]; 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]; Richmond v. Embry (10th Cir. 1997) 122 F.3d 866, 871 [the right to present defense evidence arises under the Sixth Amendment right to compulsory process and the Fourteenth Amendment right to due process].)
Refusal to give an instruction on the defense theory infringes Sixth Amendment and Fourteenth Amendment guarantees because it prevents the jury from considering defense evidence and from making findings of fact necessary to establish guilt. (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198; Whipple v. Duckworth (7th Cir. 1995) 57 F.3d 496, 423 [refusal to give defense instruction infringes right to a fair trial, amounts to a directed verdict against the defendant, and results in inadequate instructions on the applicable law].) As the Ninth Circuit explained, refusal to give an instruction on the defense theory effectively strips a defendant of the ability to present a defense:
“A failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt. . . will entitle the defendant to a judgment of acquittal.”
(Escobar de Bright, supra, 742 F.2d at 1201-1202.)
2. Summary of California case law relating to instructions on lesser offenses and defenses.
Currently, California case law distinguishes between “defense” instructions, “lesser included offense” instructions, and “lesser related offense” instructions, affording criminal defendants differing levels of entitlement to each type. “Defense” instructions generally refer to affirmative defenses, and “pinpoint” defense instructions refer to defenses that relate particular facts to a legal issue in the case. Trial courts are obligated to give any “defense” instruction supported by sufficient evidence that is consistent with the defendant’s theory of the case. Defendants are entitled upon request to an instruction that “pinpoints” the defense theory. (People v. Saille (1991) 54 Cal.3d 1103, 1118.)
Although lesser included offense instructions are not considered defense instructions, trial courts are obligated to instruct on any lesser included offense supported by substantial evidence, whether or not the defense requests the instruction. (People v. Breverman (1998) 19 Cal.4th 142.) After People v. Birks, supra, the case relied upon by the trial court to deny appellant’s requested instruction, trial courts have no obligation under state law to give lesser related offense instructions even if the defendant’s defense committed only a lesser crime related to the charged offense. A trial court, however, may give a “lesser related” offense instruction if both the defense and prosecution agree. (Birks, supra, 19 Cal.4th at 136, fn. 19.)
3. Refusal to give a lesser related offense instruction violates the defendant’s right to present a defense where the instruction would have set forth the defense theory of the case.
Birks, supra, relied on Hopkins v. Reeves (1998) 524 U.S. 88, , 118 S.Ct. 1895, 1899, which considered uncharged lesser related offenses in the context of traditional lesser offense analysis set forth in cases such as Beck v. Alabama (1980) 447 U.S. 625. The issue was framed in terms of what alternatives were provided to the jury and whether the jury’s choices rendered the outcome sufficiently reliable. This analysis, employed in both Birks and Hopkins, does not explicitly address the fact that a lesser related offense can be a defense, and therefore, does not address whether failure to give such an instruction implicates the defendant’s right to instruction on the defense theory.
Analogous United States Supreme Court case law indicates that California procedural rules must bow to the defendant’s right to instruction on the defense theory. The United States Supreme Court has consistently held that domestic rules of evidence may not be invoked to deny a defendant a right to a fair trial. (See e.g., Rock v. Arkansas (1987) 483 U.S. 44; Davis v. Alaska (1974) 415 U.S. 308.) The same should be true of domestic procedural rules that implicate a defendant’s Sixth and Fourteenth Amendment right to defense instructions, which allow the jury to actually consider whether the defense evidence does raise a reasonable doubt as to guilt.
The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (See e.g., Chambers v. Mississippi (73) 410 U.S. 284, 295; Washington v. Texas (1967) 388 U.S. 14, 19-23.) Exclusion of evidence has been found to be arbitrary or disproportionate “where it has infringed upon a weighty interest of the accused.” (U.S. v. Scheffer (1998) 523 U.S. 303, ___, 118 S.Ct. 1261, 1262.)
As set forth above, in Part B, section 1, pp. 51-53, the Sixth and Fourteenth Amendment rights to instruction on the defense theory are well-established. Therefore, in a case such as the present, where the defendant admitted on the stand to assisting the perpetrators after the shooting, it is undeniable that the defendant has a strong and constitutionally-based interest in presenting the jury with the defense that his culpability was lesser than the crime charged. Indeed, United States v. Brown (8th Cir. 1994) 33 F.3d 1002, held that the defendant’s right to an instruction on the defense theory was infringed by the trial court’s failure to give an accessory after the fact instruction based on the defendant’s testimony. Since the defendant testified to culpability as accessory after the fact, “the accessory after the fact instruction function[ed] as a defense.” (Id. at 1004.) In sum, even if in the interests of the accused are not so infringed as to violate constitutional guarantees when the evidence of accessory after the fact is weaker than in the present case, the defendant is certainly entitled to a lesser related offense defense instruction where, as here, the defendant takes the stand and admits to lesser culpability. Thus, the trial court’s failure to instruct on accessory after the fact violated appellant’s Sixth and Fourteenth Amendment rights.
4. Appellant was entitled to the accessory after the fact instruction, even if the jury did not receive a verdict form allowing them to find appellant guilty as an accessory after the fact.
Defense counsel here requested both an instruction and a verdict form on accessory after the fact. As set forth above, in Argument III, Part B, the trial court is obligated to tailor defense instructions and give defense requested instructions, that “‘focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt . . . .’” (People v. Carter, supra, 19 Cal.App.4th at 1252, quoting People v. Wright, supra, 45 Cal.3d at 1141, internal citations omitted.) The trial court could have tailored an instruction to inform the jury of the elements of accessory after the fact, without allowing the jury to return a verdict of guilt as accessory after the fact. This would have provided the jury with the legal basis for appellant’s defense. At the very least, appellant was entitled to a jury that understood the defense theory was that he was culpable only of a lesser crime, even if the jury could not return a verdict as to the lesser crime.
5. The prosecutor “opened the door” to the issue of whether appellant committed accessory after the fact.
Even if appellant had not been entitled to an accessory defense instruction upon request, he was entitled to it because the prosecutor implied in his argument that another instruction allowed for a finding of guilt as an aider and abettor, based solely on appellant’s actions after the shooting. (RT 641-42.) Even though there was absolutely no evidence of that appellant had the intent to assist the shooters prior to the shooting if he was not actually present during the shooting as the driver, the prosecutor relied on the instruction that appellant could be guilty as an aider and abettor even if he were not present at the scene of the crime. This argument opened the door to the issue of appellant’s culpability based on his testimony regarding his actions after the shooting, and under People v. Birks, supra, 19 Cal.4th 136, fn. 19, the trial court should have found the prosecutor impliedly placed the issue of accessory after the fact into question, and given the instruction.
Appellant contends that the distinction made by Birks between “defense instructions” and “lesser related offense instructions” is a distinction without a difference from the standpoint of the defendant’s right to present a defense, when the defendant’s sole defense is an admission to a related offense and a denial of the crime charged. (Cf. Bashor v. Risley (9th Cir. 1984) 730 F.2d 1228, 1240 [failure to give lesser included offense instruction can violate a defendant’s right to adequate instruction on his or her theory of the defense]; People v. Barton, supra, 12 Cal.4th at 199 [lesser included offenses often resemble defenses, because the defendant generally puts on evidence to support the theory].) A lesser related offense instruction relates the law to the evidence and informs the jury where the charged crime ends — what is not the charged crime — just as a “defense” instruction does. For example, a self-defense instruction tells the jury under what circumstances the law categorizes a homicide as justifiably in self-defense rather than as manslaughter or murder. A lesser related offense instruction performs the same function, telling the jury under what circumstances the law defines conduct as a crime other than the one charged. Thus, when the defendant’s entire defense is that he committed a lesser related offense, and his attorney requests a lesser related offense instruction, a trial court’s refusal to give the instruction infringes the same federal constitutional rights to the same extent as a refusal to give a “defense” instruction.
Here, solely because appellant’s defense fell into the category of “lesser related offenses,” the trial court withheld an instruction on the defense theory. As set forth above in Argument IV, no instruction set forth the defense theory that if appellant did not have the intent to assist the perpetrators until after the shooting, he was liable only as an accessory after the fact, not before the fact. Consequently, the refusal to give the instruction infringed appellant’s right to present a defense. The jury could not pass on the crucial question whether appellant’s actions amounted to accessory after the fact rather than aiding and abetting, as appellant contended they did in his own testimony. The refusal to give the accessory instruction rendered appellant’s testimony essentially ineffectual, because the jury could not consider the law that supported the very assertion he made — his culpability in the crime was at most that of an accessory.
C. The Resulting Prejudice.
Because the trial court’s refusal to instruct on accessory after the fact violated appellant’s Sixth and Fourteenth Amendment rights, the Chapman v. California, supra, 386 U.S. at 24 standard of review for prejudice is applicable. Appellant has set forth prejudice from the failure to instruct on the timing requirement of aiding and abetting in Argument IV, Part C, and the same prejudice applies here. Moreover, the prosecution cannot prove beyond a reasonable doubt that the error was harmless, because the prosecution’s case was extremely weak. The prosecution had no eyewitness identification evidence and no evidence that appellant aided and abetted the shooting if he did not drive the truck to the scene. It had only a shred of evidence that there actually was a driver — Ms. D’s testimony that she heard an engine almost simultaneously with hearing the shots. (RT 29-34.) Nevertheless, the prosecution relied on an argument that appellant need not be present at the shooting to be found guilty, thereby exhorting the jury to find appellant guilty based on his own admission as an accessory rather than on any prosecution evidence that he assisted the shooters as a driver. (RT 642.) Therefore, if the trial court had instructed the jury on appellant’s defense theory, it is likely that the jury would have concluded the prosecution failed to prove beyond a reasonable doubt that appellant aided and abetted the shooters and found him guilty as an accessory.
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
The trial court initially believed that appellant did not fully admit to knowing that the two perpetrators had committed a crime. After further argument by defense counsel, the trial court conceded appellant “may have” admitted that he was aware a crime had occurred. (RT 621-26.)