Brief Bank # B-847 (Re: F 8.31 n4 [Improper To Instruct That Implied Malice May Be Inferred From Defendant’s Willful Consumption Of Alcohol With Knowledge That He/She Would Be Driving].)
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NOTE: TWO DOCUMENTS: The text of the footnotes appear at the end of each document.
Date of Brief: October 1996
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOHN DOE, ) Case No.:
)
Petitioner, )
)
v. )
)
ANTHONY NEWLAND, Warden of )
California State Prison at )
Solano, )
)
Respondent. )
___________________________________)
PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS;
APPENDIX OF EXHIBITS IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS
J. Courtney Shevelson
California State Bar Member, No. 60004
ATTORNEY AT LAW
Post Office Box 223609
Carmel, California 93922
Telephone: (408) 625-6581
Joel Franklin
California State Bar Member, No. 69705
LAW OFFICES OF JOEL FRANKLIN
2100 Garden Road
Building A
Monterey, California 93940
Telephone: (408) 649-2545
Attorneys for Petitioner
II.
ARGUMENT
The primary defect of the “special inference instruction” is its creation of an unconstitutional irrational permissive inference. See Section A.1, post, at 45-71. However, that instruction contained language which the jury could have read as making the inference mandatory, thus making it a mandatory presumption or, at least, lending an element of judicial compulsion to the “permission” to infer implied malice, absent Petitioner’s rebuttal by raising a reasonable doubt. See Section A.2, post, at 71-74. In that regard, the “factors instruction” restricted the jury from considering evidence which raised such a reasonable doubt as to the existence of implied malice. See Section B, post, at 75-82.
A. THE “SPECIAL INFERENCE INSTRUCTION” CREATED AN ARBITRARY AND IRRATIONAL PERMISSIVE INFERENCE THAT MR. DOE ACTED WITH IMPLIED MALICE AND CREATED A MANDATORY PRESUMPTION THAT HE ACTED WITH THAT MENTAL STATE, IN VIOLATION OF THE UNITED STATES CONSTITUTION.
Since the California Supreme Court’s decision in People v. Watson, 30 Cal. 3d 290, 179 Cal. Rptr. 43 (1981), intoxicated drivers who cause fatal traffic accidents may be charged with murder under an implied malice theory and, alternatively, with gross vehicular manslaughter while intoxicated. Those were the charges Mr. Doe faced. The critical question at trial centered on Mr. Doe’s mental state: In the context of this vehicular homicide, did he cross the fine line separating gross negligence from the implied malice necessary to second degree murder?
If the jury found that he acted with implied malice — that he subjectively appreciated the danger he posed to others and acted with a conscious disregard for the safety of others — then Mr. Doe faced conviction of three counts of second degree murder. If the jury found he did not act with implied malice, or that they had a reasonable doubt, then Mr. Doe faced conviction of three counts of gross vehicular manslaughter while intoxicated. The amorphous distinction between implied malice and gross negligence was a difference, for Mr. Doe, between 45 years to life in prison and a maximum sentence of 14 years in prison.
At Mr. Doe’s request, the trial court instructed the jurors on the distinction between the crimes in the following terms:
Murder, based on implied malice, and vehicular manslaughter both involve an unintentional killing. The malice required for murder differs from the gross negligence required for manslaughter.
Implied malice for murder contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.
Different tests are applied in determining the required mental states.
Gross negligence is found by applying an objective test. For example, i.e., determining whether a reasonable person in defendant’s position would have been aware of the risk involved. Gross negligence is further defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.
Implied malice is found by applying a subjective test, i.e., by determining whether the defendant actually appreciated the risk.
In the present case, in order to prove murder, the District Attorney must prove beyond a reasonable doubt that at the time the defendant drove home, Mr. Doe knew his driving was an act creating a high probability that it would result in death or [in]jury; that is, that he actually appreciated the risk involved and consciously disregarded that risk.
RT 729-730; CT 440. [Footnote 1]
As stated in the introduction to the Petition, given the fine line between gross negligence and implied malice, and given the enormity of the consequences to Mr. Doe, it was essential for the trial court to give scrupulously fair instructions on implied malice. The trial court violated that duty. That violation denied Mr. Doe his rights to due process of law, fair trial by jury, the presumption of innocence, and conviction only upon proof of guilt beyond a reasonable doubt, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, which rights and guarantees are collectively referred to, hereinafter, as “Fourteenth Amendment due process”.
The instructions violated these rights, in the first instance, because the “special inference instruction”, quoted in paragraph III.A.1. of the Petition, created an arbitrary and irrational, and therefore unconstitutional, permissive inference that implied malice was proved. Moreover, the jury could, potentially, have understood the “special inference instruction” to create, unconstitutionally, a mandatory presumption that implied malice was proved.
The constitutional violations arise from the fact that the inference or presumption of implied malice is permitted to be drawn upon a finding of only two predicate facts: voluntary intoxication [Footnote 2] and voluntary driving — i.e., DUI. In California, when a death occurs from an accident when the defendant-driver was driving under the influence, the Legislature has prescribed three possible homicide charges, in increasing severity: vehicular manslaughter while intoxicated but without gross negligence, gross vehicular manslaughter while intoxicated, and second degree murder. See §§ 187, 191.5, 192(c)(3). All three crimes have DUI as a common element. Both second degree murder and gross vehicular manslaughter while intoxicated require proof of more elements than are required to establish the crime of vehicular manslaughter while intoxicated without gross negligence. See §§ 187, 191.5, 192(c)(3). Thus, the Legislature recognizes that, when a death results, DUI is insufficient, by itself, for a conviction of either second degree murder or gross vehicular manslaughter while intoxicated.
1. The “Special Inference Instruction” Violated Due Process by Creating an Irrational Permissive Inference.
The “special inference instruction” offends the Constitution in two ways. The first is that it created an irrational permissive inference.
The “special inference instruction” states:
If you find that the defendant willfully consumed an alcoholic beverage to the point of intoxication, knowing that he thereafter would operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, you may, but are not required to infer that the defendant at the time of the defendant’s driving exhibited a conscious disregard for the safety of others unless, from all the other evidence you have a reasonable doubt that he did.
CT 442; RT 731. This instruction was specially requested by the prosecution. Mr. Doe objected to the instruction, although no objection was required. RT 618-619. [Footnote 3]
The predicate facts of the instruction — drinking to the point of intoxication knowing he would thereafter drive — came from language in two California Supreme Court cases: Taylor v. Superior Court, 24 Cal. 3d 890, 157 Cal. Rptr. 693 (1979), and People v. Watson, supra, 30 Cal. 3d 290. Neither case found that evidence a defendant drank to the point of intoxication knowing he would later drive would, alone, support a finding of implied malice (i.e., subjective awareness of a high degree of risk to others or conscious disregard of that risk) and neither case suggested that an instruction which permitted a finding of implied malice would be proper based on these facts. [Footnote 4] Indeed, given the relatively few fatal accidents in proportion even to the large numbers of DUI arrests, it can be questioned whether driving under the influence is an act “creating a high probability that it would result in death or [in]jury.” See Watson, supra, 30 Cal. 3d at 305 (Bird, C.J., dissenting); Taylor, supra, 24 Cal. 3d at 907-908 (Clark, J., dissenting); Note, People v. Watson: Drunk Driving Homicide — Murder or Enhanced Manslaughter?, 71 Calif. L. Rev. 1298, 1308-1309 & n. 69 (1983); 115 Statistical Abstract of the United States 206-207, 639 (U.S. Dept. Commerce 1995) [in 1993, 1.23 million DUI arrests versus 15550 alcohol-involved fatal accidents, or an average of 1.3%]. [Footnote 5]
The inference permitted by the “special inference instruction” is unconstitutional under the standard articulated by the United States Supreme Court in 1979, in County Court of Ulster County v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) [“Ulster” or “Ulster County Court“]. The court addressed the basic rules on how courts must evaluate the constitutionality of presumptions and inferences, after observing that these devices are “a staple of our adversary system of factfinding.” Id. at 156.
The high court went on to state, however, that their constitutional permissibility depends “on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently.” Ibid. The Court then stated that “in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ibid. [Footnote 6]
Ulster then turns to a more specific comparison of permissive inferences or presumptions versus mandatory inferences or presumptions. The Supreme Court defines permissive inferences as devices which allow but do not require “the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.” Id. at 157 (emphasis added). It then states that permissive inferences affect the application of the “beyond a reasonable doubt” standard, and thereby violate due process of law, if there is “no rational way the trier could make the connection permitted by the inference.” Ibid. “Rationality”, in this sense, is determined by whether “it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Id. at 165-166 & n.28 (emphasis added), quoting Leary v. U.S., 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). Turning to mandatory presumptions, Ulster County Court declares those devices “more troublesome” because they
may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; [they] tell[] the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.
Ulster County Court v. Allen, supra, 442 U.S. at 157. Both conclusive and rebuttable presumptions may suffer from the constitutional defect of shifting the burden of proof to the defendant. Francis v. Franklin, 471 U.S. 307, 317 (1985); Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); U.S. v. Washington, 819 F.2d 221, 225 (9th Cir. 1987).
The United States Supreme Court has articulated the reason for the importance of the burden of proof:
In a criminal case, . . . the interests of the defendant are of such magnitude that . . . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)].
Addington v. Texas, 441 U.S. 418, 423-424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (footnote omitted).
a. The Inference Allowed By the Instruction Was Arbitrary and Irrational Because the Inferred Fact Did Not More Likely Than Not Flow from the Predicate Facts.
The inference permitted by the instruction — that jurors could infer the existence of a conscious disregard for the safety of others at the time of Mr. Doe’s driving merely upon a showing that he had earlier consumed alcohol to the point of intoxication knowing he would drive — was an irrational inference for a number of reasons. First, the instruction said that conscious disregard of the risk posed to the safety of others by Mr. Doe’s driving under the influence could be inferred from earlier conduct by Mr. Doe (i.e., becoming intoxicated) that did not establish, even at that point, that he subjectively appreciated and consciously disregarded the danger his later driving would pose. People who drive to parties, or bars, or clubs, or social engagements with plans to drive home, and who drink to the point of intoxication, may or may not subjectively appreciate the risk posed by their conduct at the later point at which they actually put themselves behind the wheel, when they are intoxicated. [Footnote 7] Likewise, they may or may not consciously disregard the risks they actually recognize when they ultimately drive while intoxicated.
The answer to the question whether an intoxicated person was subjectively aware of the risks his driving posed and consciously disregarded those risks at the time he drove, depends on a multiplicity of factors. Those variables include the degree of his intoxication at the time of driving and the driver’s perception thereof, his general psychological makeup, whether he is an alcoholic, how far he has to drive, and his prior experiences with driving without mishap while intoxicated.
The evidence in Mr. Doe’s trial demonstrates how such variables may establish that he did not actually appreciate or consciously disregard the risks his driving posed. For example, California law recognizes that the impact of heavy intoxication on a defendant’s thought processes and perceptions can work against a finding that he consciously disregarded the safety of others. People v. Whitfield, 7 Cal. 4th 437, 452, 27 Cal. Rptr. 2d 858 (1994). In a vehicular homicide case which was factually similar to Mr. Doe’s case in many ways, particularly with respect to the degree of the defendant’s intoxication at the time of the fatal collision, the California Supreme Court upheld the trial court’s instruction to the jurors that they “should consider the fact of intoxication, including the degree of intoxication,” in determining whether the defendant acted with implied malice. Id. at 441-442, 444. In a very pertinent passage, the court stated:
The most important factor bearing upon defendant’s awareness of the dangerousness of his conduct and conscious disregard of that danger was his degree of intoxication when he undertook his dangerous course of conduct. It appears obviously appropriate to permit the jury to consider defendant’s degree of intoxication in determining whether he formed the mental state that distinguishes the greater offense of murder from the lesser offense of manslaughter.
Id. at 452 (emphasis added).
This passage from Whitfield demonstrates that Mr. Doe’s willful consumption of alcohol to the point of intoxication knowing he would drive cannot rationally be said to prove “conscious disregard for the safety of others”. The jurors should have been left free to consider the other factors that were present in this case and which may have been accepted as raising a reasonable doubt as to subjective awareness and conscious disregard, such as the evidence, discussed in the Statement of Facts, ante, at 30-44, that Mr. Doe’s psychological makeup included a deficiency in the ability to assess the consequences of his acts and to take into consideration future events, or the evidence that, as a result of first his alcoholism and then his intoxication, he was unlikely to consider the possible bad consequences of his “decision” to drink or his subsequent “decision” to drive.
The jurors should also have been left free to conclude that Mr. Doe may not have acted with implied malice based on evidence they could interpret as showing that, in his intoxicated state, he genuinely (but erroneously and tragically) did not think he posed a danger to others because he only had to drive the short distance between his friend Mr. W’s house and his own residence and, therefore, thought he could make it, or because he thought he was all right to drive after “sleeping it off” for 45 minutes to an hour at Mr. W’s place before starting home, or because he thought the roads would be relatively clear that late at night, or because he knew he had never had an accident while driving intoxicated. See ante, at 30-44, As all the experts, both prosecution and defense, testified, if an intoxicated person thinks about it at all, he does not perceive his degree of impairment correctly and does not think about or believe that he may be a danger on the road. See ante at 31-36. All this evidence bore on the question whether Mr. Doe subjectively appreciated the danger his driving posed and consciously disregarded the safety of others, and the jury’s consideration of them should have been unfettered by the arbitrary and irrational inference.
These facts demonstrate that, alone, the fact a person willfully consumed alcohol to the point of intoxication knowing he would drive does not make it “more likely than not” that his later act of driving while intoxicated was actually done with a conscious disregard of the risks to others. The Legislature’s recognition of the varying mental states which may accompany driving under the influence and the relative infrequency of fatal accidents compared to the incidence of driving under the influence, also establish that voluntary intoxication while anticipating later driving does not “more likely than not” prove the existence of an actual appreciation of and a conscious disregard for a “high probability” death or injury would result. See Pen. C. §§ 187, 191.5, 192(c)(3); Watson, supra, 30 Cal. 3d at 305 (Bird, C.J., dissenting); Taylor, supra, 24 Cal. 3d at 907-908 (Clark, J., dissenting); Note, People v. Watson: Drunk Driving Homicide — Murder or Enhanced Manslaughter?, supra, 71 Calif. L. Rev. at 1308-1309 & n. 69; 115 Statistical Abstract of the United States, supra, 206-207, 639; note 14, ante, at 53. As noted by the dissent in Taylor, “[b]ecause so many drunk drivers arrive home without accident it is obvious that dangerous consequences — although possible and occurring with unfortunate frequency — are not probable.” 24 Cal. 3d at 907-908 (Clark, J.).
The lack of a connection in common experience between the fact proved and the ultimate fact inferred makes the inference arbitrary. See Tot v. U.S., 319 U.S. 463, 467-468, 63 S. Ct. 1241, 87 L. Ed. 1519 (1957). If the predicate facts do not make the existence of the inferred fact more likely than not, then the inference is irrational and unconstitutional. Ulster County Court v. Allen, supra, at 165-166 & n.28. As a leading commentator has observed:
The key problem with permissive inferences is that they isolate and abstract a single circumstance from the complex of circumstances presented in any given case, and, on proof of that isolated fact, authorize an inference of some other fact beyond a reasonable doubt . . . . Permissive inferences thus permit juries to avoid assessing the myriad facts which make specific cases unique.
Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979), cited in U.S. v. Rubio-Villareal, 967 F.2d 294, 299 (9th Cir. 1992).
That was the central defect in the “special inference instruction.” Its suggested conclusion (of implied malice) was not more likely than not to flow from the proved facts (DUI) and “not one that reason and common sense justify in light of the proven facts before the jury.” Ulster County Court v. Allen, supra, 442 U.S. at 165-166 & n.28; Francis v. Franklin, supra, 471 U.S. at 316. The inference was, therefore, arbitrary and irrational, and the instruction violated Fourteenth Amendment due process.
b. The Inference Allowed By the Instruction Was Arbitrary and Irrational Because It Did Not Provide a Rational Basis on Which to Find that Mr. Doe Committed Implied Malice Murder Rather Than Gross Vehicular Manslaughter While Intoxicated.
The second reason that the “special inference instruction” was irrational is that proof that a person who caused a vehicular homicide drank to the point of intoxication knowing he would thereafter drive does not provide a rational basis on which to rest a decision that the crime committed was implied malice murder rather than gross vehicular manslaughter while intoxicated. California law clearly recognizes that serious punishment is warranted when a defendant drives while intoxicated and thereby causes the death of another, but it also clearly recognizes that the crime committed is not always implied malice murder. “The [California] Legislature specifically has addressed the situation in which a defendant drives under the influence and thereby causes the death of another, but does not harbor malice, by enacting [California Penal Code] section 191.5, which provides a maximum sentence of 10 years in prison for gross vehicular manslaughter while intoxicated.” People v. Whitfield, supra, 7 Cal. 4th at 453.
The very existence of the crime of gross vehicular manslaughter while intoxicated demonstrates legislative recognition that proof that a person drank to the point of intoxication knowing he would drive may show no more than gross negligence, i.e., that a reasonable person in the defendant’s position would have been aware of the risk posed by his driving. This legislative recognition that implied malice is not invariably present when a defendant causes a death while driving under the influence undercuts the rationality of the inference of conscious disregard for the safety of others from proof of only willful intoxication and driving allowed by the “special inference instruction.” By enacting section 191.5, the Legislature obviously recognized that proof of the predicate facts in the “special inference instruction” may or may not establish that the defendant exhibited a conscious disregard for the safety of others at the time of driving. It is incumbent upon the trier of fact to actually find implied malice based on all the evidence, and the prosecution should not be assisted by an irrational permissive inference instruction which unconstitutionally simplifies the jury’s analysis by pointing to only a few of the many evidentiary variables that bear on the question.
Since Watson, facts of at least similar severity to those present in this case have resulted in convictions for gross vehicular manslaughter. Specifically, in such cases, there was evidence each defendant drank to the point of intoxication knowing he would thereafter drive (the drinking occurred away from the defendant’s home), yet the crime of conviction was gross vehicular manslaughter while intoxicated, not murder. For example, in People v. Brogna, 202 Cal. App. 3d 700, 248 Cal. Rptr. 761 (1988), the defendant, like Mr. Doe, was charged with second degree murder but was acquitted of that charge and found guilty of the lesser included offense of gross vehicular manslaughter while intoxicated. The jury reached this lesser verdict despite evidence that the defendant had two prior convictions for driving under the influence (like Mr. Doe), had attended a first offender program and a one year alcohol abuse program (like Mr. Doe), had attended a number of meetings of Alcoholics Anonymous (like Mr. Doe), and had, further, taken part in counseling sessions which emphasized the dangers of drinking and driving through lectures, films and individual group therapy. The prosecution’s evidence placed the defendant’s blood alcohol level at .20% at the time of the driving (Mr. Doe’s BAC was .23%). The evidence also showed that Brogna traveled on the Ventura Freeway, abruptly changed lanes without signaling, then veered onto the shoulder and struck the victim’s vehicle where it was stopped with its emergency lights flashing. Id. at 704-705. Brogna shows rather clearly that a factual pattern very similar to that shown by the evidence in Mr. Doe’s case does not inevitably lead to a conviction of second degree murder. [Footnote 8]
Such cases demonstrate that “mere” gross negligence is as likely to be established by willful intoxication and driving as is implied malice. Implied malice is not “more likely than not” shown by the fact that a defendant has caused a death in a vehicular homicide after drinking to the point of intoxication knowing he thereafter would drive. The crime can as readily be gross vehicular manslaughter while intoxicated. The inference of implied malice from only these two facts is, thus, irrational under the standard discussed in Ulster County Court, supra, at 165-166 & n.28.
c. Ninth Circuit Decisions Establish that the “Special Inference Instruction” Was Unconstitutionally Arbitrary and Irrational.
The Ninth Circuit has held that instructions closely analogous to the “special inference instruction” violate the Due Process Clause. Most recently, the court considered a Washington case in which the defendant was charged with vehicular homicide and vehicular assault. Hanna v. Riveland, No. 95-35700, ___ F.3d ___, 1996 U.S. App. LEXIS 21394, 96 Daily Journal Daily App. Rep. [“DAR”] 10183 (9th Cir. June 25, 1996, as amended, Aug. 21, 1996). Under Washington law, both crimes included an element of reckless driving, “defined as driving a vehicle ‘in willful or wanton disregard for the safety of persons or property.'” Id. 1996 U.S. App. LEXIS at 2-3, 96 DAR at 10184. In the face of conflicting evidence as to how the defendant was driving, how much he was speeding, and how the fatal collision occurred, the Washington trial court delivered the following instruction:
A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.
This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Id. 1996 U.S. App. LEXIS at 4, 96 DAR at 10184. The Ninth Circuit held this instruction, despite its caveat, created an unconstitutional permissive inference because it permitted the jury to find the existence of the necessary mental state of recklessness from proof only of speeding. The Ninth Circuit held this created an unconstitutional permissive inference because mere speeding did not more likely than not establish recklessness. Id. 1996 U.S. App. LEXIS at 7-12, 96 DAR at 10184-10185.
Hanna followed the Ninth Circuit’s earlier decision in Schwendeman v. Wallenstein, 971 F.2d 313 (9th Cir. 1992), cert. denied, 506 U.S. 1052 (1993). Schwendeman involved exactly the same instruction, that jurors could infer reckless driving solely from evidence of speeding. Id. at 315. The Ninth Circuit held that “[a]lthough it is certainly true that excessive speed is probative of a jury’s determination of recklessness, here we cannot say with substantial assurance that the inferred fact of reckless driving more likely than not flowed from the proved fact of excessive speed.” Id. at 316. On this basis, the court found the permissive inference instruction unconstitutional under the standard set forth in Ulster County Court v. Allen, supra, 442 U.S. at 166 n.28.
In Rubio-Villareal, supra, 967 F.2d 294, the Ninth Circuit reached a similar conclusion with respect to a different permissive inference instruction. The instruction at issue there permitted the jury to infer knowing possession of cocaine from proof only that the defendant drove a vehicle which contained the cocaine concealed in its body. The instruction also warned the jury that it was not required to make the inference and to determine whether the facts warranted the inference. Id. at 295. Nevertheless, the court invalidated the permissive inference instruction based on “the two basic faults” at the heart of criticism of such instructions: (1) the instruction “constituted an intrusion on the jury’s deliberative process because it effectively told the jury in this case that the judge thought there was sufficient evidence to convict the defendant”; and (2) “it focused the jury on some rather than all the facts,” which raised “particular concern” that the jury may have ignored exculpatory evidence in dereliction of its “solemn obligation to weigh all the evidence presented at trial.” Id. at 299 (emphasis in original). These factors were enumerated in Morissette v. U.S., 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952), as two of the reasons permissive inferences offend the Constitution. See id. at 275-276; see Baker v. U.S., 310 F.2d 924, 930-931 (9th Cir. 1962).
These cases illuminate the unconstitutionality of the “special inference instruction.” In the face of the subtle and difficult task of discerning Mr. Doe’s mental state between implied malice (actual awareness of the risks and conscious disregard thereof) and gross negligence (objective, reasonable person test), the “special inference instruction” offered the jurors a simplistic shortcut for deciding whether he acted with implied malice. That inference was arbitrary and irrational because, to paraphrase Ulster, Hanna, and Schwendeman, there is no substantial assurance that the inferred fact of conscious disregard for the safety of others more likely than not flowed from the proved facts that Mr. Doe consumed alcohol to the point of intoxication knowing that he thereafter would operate a motor vehicle. Particularly in light of the “factors instruction”, discussed, post, at 75-82, this created a strong possibility the jurors ignored exculpatory evidence that tended to negate the theory that Mr. Doe subjectively appreciated the risks posed by his driving and consciously disregarded those risks.
2. The “Special Inference Instruction” Violated Mr. Doe’s Constitutional Rights by Making Mandatory the Inference that Implied Malice Had Been Proved.
The second way in which the “special inference instruction” violated the Constitution is that it created a mandatory presumption. The constitutional difficulty may be traced to the final phrase of the instruction, that reads “unless, from all the other evidence, you have a reasonable doubt that he did.” This “unless” clause created the likelihood that reasonable jurors would interpret the instruction as creating a mandatory rebuttable presumption that malice had been proved, unless its existence had been rebutted.
The phrase added a complication which made it likely jurors would interpret the instruction to say, “malice has been proved unless Mr. Doe carries the burden of raising a reasonable doubt that he consciously disregarded the safety of others as he drove.” It told the jurors that while the inference the instruction set forth was rebuttable and did not have to be accepted, they should only reject it if Mr. Doe carried the burden of rebutting it. The “unless” clause of the instruction, thus, raised the constitutional difficulty with mandatory presumptions which the high court noted in Ulster: that they require finding the element upon proof of the predicate facts “unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Ulster County Court v. Allen, supra, 442 U.S. at 157.
In this way, the “special inference instruction” unconstitutionally denied Mr. Doe the presumption of innocence to which he was entitled and shifted the burden of proof to him. It effectively told the jurors the People had overcome the presumption of innocence by proof Mr. Doe “willfully consumed an alcoholic beverage to the point of intoxication, knowing that he thereafter would operate a motor vehicle,” and that they should accept that evidence as establishing implied malice unless other evidence persuaded them there was a reasonable doubt.
In light of the “unless” provision, the “special inference instruction” did not merely create a permissive inference because a permissive inference “places no burden of any kind on the defendant.” Ulster County Court v. Allen, supra, 442 U.S. at 157 (emphasis added). The instruction required Mr. Doe to raise a reasonable doubt as to the existence of implied malice when, without the instruction, the prosecution would have had to prove the element relying on more than driving under the influence. In this way, the prosecution was relieved of its burden to prove every element before Mr. Doe was required to come forward with evidence to raise a reasonable doubt. The instruction thus placed an added burden on Mr. Doe that he may never have had to bear absent the presumption.
By creating a mandatory rebuttable presumption which lightened the prosecution’s burden and shifted the burden of proof to Mr. Doe, the “special inference instruction” violated the guarantees of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, to due process, a fair jury trial, and the presumption of innocence, and to conviction only upon proof beyond a reasonable doubt. (See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 698-701, 703-704, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Francis v. Franklin, supra, 471 U.S. at 313-314, 317; Sandstrom v. Montana, supra, 442 U.S. at 523-524 ; Morissette v. U.S., supra, 342 U.S. at 274-275; People v. Tewksbury, 15 Cal. 3d 953, 964, 54 Cal. Rptr. 1085 (1976).
Thus, Mr. Doe was unconstitutionally required to rebut the existence of an element of the crime which the jury may never have found proven absent the “special inference instruction”. This problem was exacerbated by the “factors instruction.” As discussed in the following section, Mr. Doe was unconstitutionally burdened in attempting to rebut the presumption of implied malice: In order to rebut the presumption by raising a reasonable doubt, Mr. Doe was required, by the “factors instruction”, to prove the defense factors — which tended to prove a lack of subjective appreciation and conscious disregard — beyond a reasonable doubt before the jury could consider them.
B. THE “FACTORS INSTRUCTION” UNCONSTITUTIONALLY LIGHTENED THE PROSECUTION’S BURDEN OF PROOF ON IMPLIED MALICE AND SHIFTED THE BURDEN TO Mr. Doe TO PROVE BEYOND A REASONABLE DOUBT FACTORS THAT NEGATED IMPLIED MALICE.
At Mr. Doe’s trial, defense counsel offered a more abbreviated version of the “factors instruction” than was ultimately delivered. It is material which was added to the instruction by the trial court which created the constitutional difficulty.
The first part of the instruction set forth definitions to differentiate between the implied malice necessary for second degree murder and the gross negligence necessary for gross vehicular manslaughter while intoxicated. RT 729; CT 440. The second part of the instruction provided guidance to the jurors on factors they could consider in determining whether implied malice was proved. The court permitted modifications requested by the prosecution, and then added its own concluding language. As given to the jury, the final instruction read, in pertinent part, as follows:
In the present case, in order to prove murder, the district attorney must prove beyond a reasonable doubt that at the time the defendant drove home, Mr. Doe knew his driving was an act creating a high probability that it would result
in death or [in]jury; that is, that he actually appreciated the risk involved and consciously disregarded that risk.
The following non-exclusive list of factors may be considered in making this determination.
Number one, the defendant’s alcohol level and the effect, if any, of the alcohol on the defendant’s ability to appreciate that risk.
. . . .
Number six, what if anything defendant said prior to driving.
. . . .
Number eight, what the experts, counselors and psychologists say about the effect of alcohol consumption on the ability to appreciate any risk involved.
Number nine, the presence or absence of any mental disease or disorder and the effect, if any, it would have on the defendant’s state of mind.
. . . .
By listing some but not all possible factors to consider, the court is not suggesting that any of the listed factors has been proved or disproved. You, the jurors, are the judges of the facts and must first decide that a listed factor has been proved beyond a reasonable doubt before considering it. The above list is not exclusive.
RT 729-731 (emphasis added); see CT 440-441.
The trial court was responsible for adding the sentence which required the jurors to find each factor proved beyond a reasonable doubt before they could consider it. See RT 617. Although Mr. Doe did not object to the court’s modification of the proposed instruction, under California law an objection was not necessary in order to preserve the constitutional error presented here for appeal. See §§ 1176, 1259; see note 12, ante, at 51.
As discussed, the central issue at trial in this case was whether Mr. Doe subjectively appreciated and consciously disregarded the danger he posed when he drove while intoxicated. The primary defense theory was that, due to his intoxication, and due to the psychological effects of alcoholism, Mr. Doe did not actually appreciate and consciously disregard the risk he presented when he drove home the night of the accident.
In brief, that night — as on other occasions when he was drinking — Mr. Doe did not understand the risk he posed. Erroneously, and, as it turned out, tragically, he thought he was able to drive. He told his friends this, on this occasion and others, by saying that he was “okay” or “fine” to drive. All the psychological and alcohol experts testified that persons under the influence of alcohol, particularly alcoholics, do not think about the danger they present, even though they might know of the risks when sober and might even hypothetically recognize the risk when drunk if you could “freeze-frame” the action and get them to focus on the issue. An intoxicated person genuinely believes he or she can make it home. See, e.g., RT 392-393, 395, 479, 567-568, 580, 593. This evidence could have been considered by the jury as establishing that, at the time he drove home the night of the accident, Mr. Doe did not recognize the danger he posed by driving under the influence and, not having recognized the danger at that point, he did not consciously disregard it, and, therefore, he did not act with implied malice.
On the issue of Mr. Doe’s mental state, the second part of the “factors instruction” — the portion which lists the factors — specifically directed the jurors to consider, inter alia, the effect of Mr. Doe’s level of intoxication on his ability to appreciate the risks, the expert testimony about the likely effect of alcohol consumption on a person’s ability to appreciate risks his conduct poses, and the psychological influences Mr. Doe’s alcoholism had on his ability to appreciate such risks. See RT 713-742; CT 440-441. The trial court, however, modified this message to dictate that the jury could not consider any of these listed factors unless it first found a factor was proved beyond a reasonable doubt. The court’s addition to the instruction meant that Mr. Doe was required to prove the existence of the defenses presented by these factors beyond a reasonable doubt before the jurors could even consider the defense in assessing whether Mr. Doe acted with an actual awareness of and a conscious disregard for the risks. [Footnote 9]
In a criminal case, the prosecution bears the burden of proving all elements of the charged offenses beyond a reasonable doubt. Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278, 113 S. Ct. 2078, 124 L. Ed. 2d 182, 188; §§ 1096, 1105; Evid. Code § 501 (West 1995). It is constitutionally impermissible to require a defendant to do more than raise a reasonable doubt as to the existence of those elements. Mullaney v. Wilbur, supra, 421 U.S. at 703-704; Tewksbury, supra, 15 Cal. 3d at 963-964.
The effect of the court’s modification to the “factors instruction” was to lighten the prosecution’s burden on the mental state element and to shift the burden to Mr. Doe. The instruction required Mr. Doe to do more than simply raise a reasonable doubt to negate the prosecution’s evidence pointing to implied malice. Instead, the instruction prevented the jury from considering Mr. Doe’s defense — that he lacked subjective appreciation of the risk and did not consciously disregard it because of his alcoholism and intoxication — unless they first believed Mr. Doe had proved these defenses beyond a reasonable doubt. In other words, jurors could not even consider whether the evidentiary factors most favorable to the defense raised a reasonable doubt in their minds about his mental state unless they were first satisfied beyond a reasonable doubt that the factors were proved. In effect, this meant Mr. Doe had to prove his defense beyond a reasonable doubt. In addition, the trial court’s modification of the “factors instruction” relieved the prosecution of having to prove that element with evidence sufficient to overcome all reasonable doubts raised by the defense. An instruction which lightens the prosecution’s burden and shifts the burden to the defendant is unconstitutional because it violates the defendant’s rights to the presumption of innocence and conviction only upon proof of guilt beyond a reasonable doubt, to due process and to a fair jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. See, e.g., Mullaney v. Wilbur, supra, 421 U.S. at 698-701, 703-704; Francis v. Franklin, supra, 471 U.S. at 313-314, 317, 105 S. Ct. 1965, 85 L. Ed. 2d 344; Sandstrom v. Montana, supra, 442 U.S. at 523-524; Morissette v. U.S. 342 U.S. 246, 274-275, 72 S. Ct. 240, 96 L. Ed. 288 (1952); Tewksbury, supra, 15 Cal. 3d at 964. The instruction here, which required Mr. Doe to prove his defense of lack of subjective appreciation of the risk and negate the existence of malice beyond a reasonable doubt, placed a heavier burden on Mr. Doe than the instruction found unconstitutional in Mullaney. In Mullaney, the Supreme Court held it was unconstitutional to force the defendant under the instructions given to negate malice by imposing the burden on him to prove he acted in the heat of passion by a preponderance of the evidence. Id., 421 U.S. at 702-703.
Thus, the “special inference” and “factors” instructions in this case unconstitutionally lightened the prosecution’s burden of proving beyond a reasonable doubt every element of the second degree murder charge — including the subjective appreciation and conscious disregard necessary for implied malice — by permitting the jury to conclude that element had been established merely upon proof of Mr. Doe’s voluntary intoxication while knowing he would later drive. This forced Mr. Doe to raise a reasonable doubt when the prosecution may have failed to carry its burden of proof beyond a reasonable doubt in the absence of the irrational inference or mandatory presumption the instructions authorized the jury to make. The instructions placed an additional and unconstitutional burden on the Mr. Doe, by forcing him to prove his mental state defense beyond a reasonable doubt before the jury could consider it. The tailored jury instructions on implied malice were unfair and denied Petitioner the rights and guarantees of Fourteenth Amendment due process.
C. THE UNCONSTITUTIONAL INSTRUCTIONS WERE PREJUDICIAL.
The “special inference instruction” told the jury that it could find that Mr. Doe actually appreciated the risk of his conduct and consciously disregarded it, unless they had a reasonable doubt. However, when the jurors considered whether they had a reasonable doubt, the “factors instruction” precluded them from considering the evidence that Mr. Doe did not subjectively appreciate or consciously disregard the risk because of his intoxication and alcoholism — i.e., that, in such a situation, such a person behaves as if they do not know about the risk, and that Mr. Doe did not think he was drunk and thought he was “okay” to drive home. RT 314-315, 344, 354, 392-393, 395, 470-471, 479, 488-489, 567-569, 580, 593.
Under these instructions, the jury was permitted to convict him of second degree murder based solely upon a finding of voluntary drinking and driving (based upon the “special inference instruction”), without considering the evidence which tended to show the non-existence of subjective appreciation and conscious disregard (based upon the “factors instruction”).
There were no other jury instructions which overrode the unconstitutional messages contained in the “special inference instruction” and the “factors instruction.” See Dickey v. Lewis, 859 F.2d 1365, 1369-1370 (9th Cir. 1988). Both the Ninth Circuit and the United States Supreme Court have held that general instructions on the presumption of innocence and on the prosecution’s burden to prove guilt beyond a reasonable doubt do not cure unconstitutional, burden-shifting instructions. Ibid.; Sandstrom v. Montana, supra, 442 U.S. at 519 n.7. Neither do general instructions to weigh all the evidence. Hanna v. Riveland, supra, 1996 U.S. App. LEXIS at 11, 96 DAR at 10185.
If anything, review of all the instructions demonstrates the devastating impact the unconstitutional instructions had on Mr. Doe’s chances for a fair trial. For example, the trial court instructed that “[a]n inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.” RT 716. Under ordinary circumstances, this would be an uncontroversial, neutral instruction. Here, however, it reinforced the impact of the “special inference instruction” because, in combination, the two instructions told the jurors that the judge thought the inference that Mr. Doe consciously disregarded the safety of others logically and reasonably flowed from the fact he drank to the point of intoxication knowing he would thereafter drive.
Similarly, the unconstitutional instructions undercut the potentially favorable impact of standard instructions, delivered in virtually all criminal cases in California, which explained how the jurors were to evaluate the sufficiency of circumstantial evidence to prove Mr. Doe’s mental state. Pursuant to CALJIC number 2.02, the trial court instructed Mr. Doe’s jurors that “[t]he mental state with which an act is done may be shown by the circumstances surrounding the commission of the act,” but that they could not find Mr. Doe guilty of murder “unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required mental state, but two, cannot be reconciled with any other rational conclusion.” RT 719. The “special inference instruction” and the “factors instruction” rendered this potentially favorable instruction meaningless by making it manifestly easier for the jury to reject the “other rational conclusion” presented by the trial evidence, to wit, that Mr. Doe did not subjectively appreciate the danger he posed to the safety of others and did not consciously disregard that danger. The instructions undermined the rationality of that alternative conclusion.
CALJIC 2.02, as delivered, continued as follows:
Also, if the evidence as to such mental state is susceptible of two reasonable interpretations, one of which points to the existence of the mental state and the other to the absence of the mental state, you must adopt that interpretation which points to the absence of the mental state. If, on the other hand, one interpretation of the evidence as to such mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
RT 719-720. Once again, the “special inference instruction” and the “factors instruction” undercut the potentially favorable message contained in this part of the instruction by leading the jury to the conclusion that the absence of implied malice was not a “reasonable interpretation” of the evidence.
The “special inference instruction” and the “factors instruction” both undercut the potential favorable impact of another instruction to the jury that: “If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or vehicular manslaughter, you must give the defendant the benefit of such doubt and find it to be vehicular manslaughter rather than murder.” RT 737. By suggesting they find the existence of implied malice from proof only of willful drinking and driving, without considering the evidence tending to show the lack of actual appreciation of or conscious disregard for the risks, the two unconstitutional instructions made it easier for the jurors to conclude they did not have a reasonable doubt that the crime was murder.
These constitutionally-defective jury instructions constitute reversible error under all tests for prejudice.
These errors are reversible per se under Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). Sullivan held that, where the verdict of guilty was not rendered upon proof by the prosecution beyond a reasonable doubt within the meaning of the Fifth and Sixth Amendments to the United States Constitution, the conviction cannot stand. Id., 508 U.S. at 278, 280-282. In this case, Petitioner was required to prove his defense beyond a reasonable doubt before the jury considered it in determining whether to reject the instructional inference of implied malice based solely upon drinking and driving. Thus, the prosecution was not required to independently establish implied malice beyond a reasonable doubt, and the verdict in this case does not meet the requirements of the Fifth and Sixth Amendments, as discussed in Sullivan. See ibid.
Moreover, misdescription of the burden of proof vitiates all the jury’s findings. Id. at 281. This structural error is reversible per se. The consequences of the error are “necessarily unquantifiable and indeterminate”, defying analysis under harmless error standards. Id., 508 U.S. at 277-282; see Arizona v. Fulminante, 499 U.S. 279, 291, 309-310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302, 331 (1991).
Here, Mr. Doe was denied his right to have the jury freely consider the mental state evidence tending to show he did not actually appreciate or consciously disregard the risks posed by his driving. The factors favorable to him in this regard had to be proven beyond a reasonable doubt before the jurors could even consider them. As Chief Justice Rehnquist made clear, this is a structural defect because it “restricted the . . . opportunity to . . . make argument to support . . . [the] claim[] of innocence . . . or prevented the jury from considering certain evidence.” See Sullivan v. Louisiana, supra, 508 U.S. at 283-284 (Rehnquist, J., conc.), citing Rose v. Clark, 478 U.S. 570, 579 & n.7, 580 n.8, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). Thus, the erroneous jury instructions mandate reversal of Mr. Doe’s conviction.
Further, the California courts have never considered and issued a reasoned decision whether these errors were harmless beyond a reasonable doubt under the standard announced in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705. Currently, there is controversy as to whether the standard for reversible error in Chapman or in Brecht v. Abramson, 507 U.S. 619, 623, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), should apply when a constitutional error, as here, is being tested for harmlessness for the first time in a habeas proceeding. To date, the Ninth Circuit has not found it necessary to decide whether Chapman or Brecht should apply under these circumstances. See Hanna v. Riveland, supra, 1996 U.S. App. LEXIS at 13 n.2, 96 DAR at 10185-10186 n.2, citing Orndorff v. Lockhart, 998 F.2d 1426 [at 1430] (8th Cir. 1993). The Eighth Circuit refuses to apply Brecht in those circumstances. Starr v. Lockhart, 25 F.3d 1280, 1292 (8th Cir. 1994); Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993), cert. denied, 114 S. Ct. 1631 (1994).
Under either the Chapman or Brecht test, however, Mr. Doe is entitled to relief. These errors cannot be found beyond a reasonable doubt to be harmless, because the jury may have found Mr. Doe guilty under instructions permitting conviction merely upon proof of voluntary drinking and driving — which does not establish implied malice — and without considering the mental state evidence bearing most directly on whether Mr. Doe actually appreciated the risk of his conduct. Harmlessness beyond a reasonable doubt requires that the jury’s finding of guilt would surely not have been different absent the constitutional error. Sullivan v. Louisiana, supra, 508 U.S. at 280. It is not possible to determine that the jury certainly would have reached the same verdict had the instructions not unconstitutionally permitted the jury to conclude that Mr. Doe actually appreciated and consciously disregarded the risks, upon proof of only driving under the influence, without considering the evidence tending to establish the non-existence of this mental state.
When the reviewing court is unable to conclude that the jury necessarily found an element that was omitted from the instructions, it is unable to gauge the effect of the error on the verdict. In this situation, grave doubt must exist in the mind of a conscientious judge whether the error was harmless. Roy v. Gomez, 81 F.3d 863, 868 (9th Cir. 1996). Here, because of the instructions, it is impossible to say that the jury necessarily based its verdict upon the evidence and applied instructions defining the implied malice element, rather than the “special inference” and “factors” instructions, which permitted conviction based upon a finding of drinking and driving without considering the evidence tending to establish the non-existence of actual awareness and, thereby, implied malice. Thus, a grave doubt must exist whether the error was harmless in this case and, under Brecht v. Abramson, supra, 507 U.S. at 623, 637, it cannot be said that the errors did not have a substantial and injurious effect on the verdict. Roy v. Gomez, supra, 81 F.3d at 868; see O’Neal v. McAninch, 513 U.S. ___, ___, 115 S. Ct. 992, 994-995, 130 L. Ed. 2d 947, 951, 952, 955, 957 (1995), citing Kotteakos v. U.S., 328 U.S. 750, 764-765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).
Finally, because it is entirely possible, given the “special inference” and “factors” instructions, that the jury convicted Mr. Doe merely because he drove after drinking, without considering the defense mental state evidence and whether Mr. Doe actually appreciated the risk, it cannot be found that the errors did not have a substantial and injurious effect on the verdict. Brecht v. Abramson, supra, 507 U.S. at 623, 637; see Hanna v. Riveland, supra, 1996 U.S. App. LEXIS at 12-15, 96 DAR at 10185-10186.
III.
CONCLUSION
The “special inference instruction” and the “factors instruction” permitted the jury to convict Mr. Doe R. merely because he drove after becoming intoxicated, without considering the defense mental state evidence and whether Mr. Doe actually appreciated and consciously disregarded the risks posed by such conduct. This possibility violated Mr. Doe’s rights to due process of law, fair trial by jury, the presumption of innocence, and conviction only upon proof of guilt beyond a reasonable doubt, which are guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
This Court should grant the relief requested in the Petition and order a new trial. Dated: October ___, 1996
Respectfully submitted,
______________________________
J. Courtney Shevelson
ATTORNEY AT LAW
______________________________
Joel Franklin
LAW OFFICES OF JOEL FRANKLIN
Attorneys for Petitioner
Mr. Doe
PETITION FOOTNOTES:
Footnote 1: In addition to definitions contained in one of the defective jury instructions (the “factors instruction”), discussed, post, at 75-81, the trial court’s instructions included the standard instructions defining second degree murder, implied malice, gross vehicular manslaughter while intoxicated, and gross negligence (California Jury Instructions, Criminal (5th ed. 1986) [“CALJIC”] Nos. 8.10, 8.11, 8.93, 3.36). RT 727, 732-733; CT 435, 437, 446, 447.
Included in the definition of implied malice was the requirement that the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. It then defined gross negligence as follows:
Gross negligence means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care.
Gross negligence refers to negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen and it must appear that the deaths were not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or grossly negligent act.
Footnote 2: In California criminal law, “willful” means nothing more than volitional or voluntary. See In re Smith, 7 Cal. 3d 362, 364, 102 Cal. Rptr. 335 (1972); In re Jerry R., 29 Cal. App. 4th 1432, 1438, 35 Cal. Rptr. 2d 155 (1994).
Footnote 3: Under California law, no objection is required to preserve a defendant’s right to appeal on grounds an instruction was erroneous and affected his substantial rights. See §1176 (“When written instructions have been presented, and given, modified, or refused, or when the charge of the court has been taken down by the reporter, the questions presented in such instructions or charge need not be excepted to”); §1259 (“The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”).
Footnote 4: In Taylor, the court found such evidence sufficient to permit a plaintiff to proceed with an allegation of entitlement to exemplary damages in a civil complaint. Taylor, supra, 24 Cal. 3d at 897. In Watson, the California Supreme Court found that the evidence of voluntary intoxication and driving was sufficient to permit the prosecution to hold the defendant to answer on charges of second degree murder. Watson, supra, 30 Cal. 3d at 300. The court added these important caveats:
We do not suggest that the foregoing facts conclusively demonstrate implied malice, or that the evidence necessarily is sufficient to convict defendant of second degree murder. On the contrary, it may be difficult for the prosecution to carry its burden of establishing implied malice to the moral certainty necessary for a conviction. Moreover, we neither contemplate nor encourage the routine charging of second degree murder in vehicular homicide cases. We merely determine that the evidence before us is sufficient to uphold the second degree murder counts in the information, and to permit the prosecution to prove, if it can, the elements of second degree murder.
Id. at 301.
Footnote 5: These materials recognize that many times more incidents of driving under the influence do not result in arrests (perhaps as many as 2,000 times more), so that no statistics for all incidents of DUI are available for comparison. Note, People v. Watson: Drunk Driving Homicide — Murder or Enhanced Manslaughter?, supra, 71 Calif. L. Rev. at 1309 n. 69, citing Comment, Alcohol Abuse and the Law, 94 Harv. L. Rev. 1660, 1675, 1677 (1981), and Note, Taylor v. Superior Court: Punitive Damages for Nondeliberate Torts — the Drunk Driving Context, 68 Calif. L. Rev. 911, 929 (1980).
Footnote 6: “[A] commentator has suggested that permissive inferences improperly influence the jury not just by isolating particular facts but by giving a particular step of logic ‘the official legal imprimatur of the state.’ Charles Collier, Note, The Improper Use of Presumptions in Recent Criminal Law Adjudication, 38 Stan. L. Rev. 423, 456 (1986). The effect of such a presumption may be to encourage jurors to abdicate their responsibilities. ‘Jurors faced with difficult choices may understandably place the responsibility for their decision on higher authorities associated with permissive presumptions, even if the outcomes run counter to their personal and moral propensities.'” U.S. v. Rubio-Villareal, 967 F.2d 294, 299 n.7 (9th Cir. 1992) (citation omitted).
Footnote 7: California law requires a union of act and intent — that the necessary mens rea exist at the time the defendant engaged in the actus reus (in this case, David’s driving, hitting the car containing the victims). Pen. C. §20; People v. Hernandez, 61 Cal. 2d 529, 532, 39 Cal. Rptr. 361 (1964); see RT 730, 731. Thus, it is insufficient to establish implied malice that David knew at some other time — such as, when he was sober or when he began to drink, but before he drove home that night — that driving under the influence might harm someone. See Watson, supra, 30 Cal. 3d at 305 (Bird, C.J., dissenting).
Footnote 8: Other California cases provide further illustration. See People v. Ochoa, 6 Cal. 4th 1199, 1202-1203, 26 Cal. Rptr. 2d 23 (1993) [defendant, with BAC of .15%, a prior DUI conviction, an alcohol awareness class which warned of dangers of drinking and driving, drove at high speeds, making abrupt lane changes without signalling, rear-ended a vehicle, killing two occupants]; People v. Hansen, 10 Cal. App. 4th 1065, 1068-1070, 12 Cal. Rptr. 2d 884 (1992) [defendant, with BAC of .20% three hours after the accident, rebuffed pleas of passenger to slow down, drove at speeds of up to 80 miles per hour, repeatedly crossing into opposing lane, lost control of his car while traveling at 15 to 20 miles per hour above the safe speed on narrow, winding Highway 92 towards Half Moon Bay, sending it off a cliff, killing one passenger]; People v. Bennett, 54 Cal. 3d 1032, 1034-1035, 2 Cal. Rptr. 2d 8 (1991) [defendant, with BAC of .20%, weaving in and out of traffic, on a blind curve at approximately 10 miles per hour over the speed limit, crossed the double yellow line, passed three cars, then lost control of his pickup truck, rolling it five or six times, killing one of the passengers].
Footnote 9: As to the prosecution-oriented factors (particularly, numbers 2, 3, 4, 7, 10, and 11), this requirement effected no change in the burden of proof, as the prosecution must always carry the burden of proving every element of the crime, including implied malice, beyond a reasonable doubt.
Date of Document: October 1999
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
)
JOHN DOE, ) Case No.: C 00 00000
)
Petitioner, )
)
v. )
)
ANTHONY NEWLAND, Warden of )
California State Prison at )
Solano, )
)
Respondent. )
___________________________________)
TRAVERSE IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS;
VERIFICATION; BRIEF IN SUPPORT OF TRAVERSE
J. Courtney Shevelson
California State Bar Member, No. 60004
Attorney at Law
PMB 187
316 Mid Valley Center
Carmel, California 93923-8516
Telephone: 831-625-6581
Joel Franklin
California State Bar Member, No. 69705
Law Offices of Joel Franklin
2100 Garden Road
Suite G
Monterey, California 93940
Telephone: 831-649-2545
Counsel for Petitioner,
JOHN DOE
III.
UNDER THE INSTRUCTIONS, THE JURY COULD HAVE RENDERED A VERDICT OF GUILTY WITHOUT CONSIDERING THE EVIDENCE WHICH MIGHT HAVE RAISED A REASONABLE DOUBT ON THE ONLY DISPUTED ELEMENT OF THE SECOND DEGREE MURDER CHARGES, WARRANTING REVERSAL
A. By Permitting the Jurors to Decide Mr. Doe Acted with Implied Malice Based Solely on Two Predicate Facts Which Did Not Make Implied Malice More Likely to Exist than Gross Negligence, the “Special Inference” Instruction Undermined the Requirement for Proof of Guilt of Each Element of the Crime Beyond a Reasonable Doubt.
Petitioner’s primary constitutional attack on the “special inference” instruction is that it violated his right to due process of law by allowing the jury to decide he acted with implied malice based on an irrational permissive inference. Permissive inference instructions undermine the protection the reasonable doubt standard affords a criminal defendant, and thereby violate due process, if there is “no rational way the trier could make the connection permitted by the inference.” CountyCourtofUlsterCounty v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) [“Ulster“]; U.S. Const., Am. 5, 14. “Rationality” for due process purposes is determined by whether “it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Id. at 165-166 & n.28. Alternatively stated, a permissive inferences violates due process “‘if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.'” Hanna v. Riveland, 87 F.3d 1034, 1037 (9th Cir. 1996) [“Hanna“], quoting Francis v. Franklin, 471 U.S. 307, 316, 105 S. Ct. 1965, 1972, 85 L. Ed. 2d 344 (1985).
Second degree murder based on implied malice, the charge Mr. Doe faced and of which he stands convicted, required the prosecution to prove that he acted with actual, subjective knowledge of the danger his actions posed to human life and acted with conscious disregard for human life. The sole issue at trial was whether the prosecution proved beyond a reasonable doubt that Mr. Doe acted with the mental state of implied malice and not just with gross negligence. The defense position was that consideration of all the trial evidence should leave the jury with reasonable doubt as to whether Mr. Doe subjectively appreciated the danger his conduct posed, and with reasonable doubt as to whether he acted with a conscious disregard for human life. The “special inference” instruction bore directly and importantly on the jury’s resolution of these central questions.
The permissive inference equation in the instruction was that the jurors could infer Mr. Doe acted with a conscious disregard for the safety of others if they found he willfully consumed an alcoholic beverage to the point of intoxication knowing he thereafter would operate a motor vehicle. Equating proof of these predicate facts with proof of conscious disregard made these facts also determinative of subjective appreciation of the danger posed, because a person cannot consciously disregard a risk he does not subjectively appreciate. Thus, the “special inference” instruction told the jurors they could infer the mental state of implied malice if they found Mr. Doe willfully drank until he was intoxicated knowing he would thereafter drive.
The equation this instruction set up was too simplistic to pass the rationality test of Ulster. It worked all the evils of an unconstitutional permissive inference: it isolated narrow circumstances from the complex of facts presented by all the trial evidence; it effectively told the jurors that the judge thought the isolated circumstances were sufficient to prove implied malice; it permitted the jurors to avoid assessing the myriad facts of this particular case; and it raised the exceptional concern that jurors would ignore exculpatory evidence that tended to show Mr. Doe did not subjectively appreciate the risk his driving created and did not act with conscious disregard for human life. See United States v. Rubio-Villareal, 967 F.2d 294, 298-299 (9th Cir. 1992) [“Rubio-Villareal“]; Schwendeman v. Wallenstein, 971 F.2d 313, 316 (9th Cir. 1992) [“Schwendeman“]; see also Hanna, supra, 87 F.3d at 1037.
In attempting to justify the “special inference” instruction, Respondent cites the source of the instructional language as an opinion of the California Supreme Court, Taylor v. Superior Court, 24 Cal. 3d 890, 897, 157 Cal. Rptr. 693, and notes that the language was quoted again in People v. Watson, 30 Cal. 3d 290, 300-301, 179 Cal. Rptr. 43 (1981). Ans. Brf. at 21. Respondent, however, does not argue that Taylor and Watson provide authority that the language could constitutionally be inserted into a permissive inference instruction to be delivered to a jury in a second degree murder prosecution involving a vehicular homicide. As the Petition pointed out, the Taylor and Watson cases used the language in entirely distinguishable contexts. Ptn. at 51-53.
Respondent also points out that the California Legislature used this language in a statutory enactment, citing “Stats. 1986, ch. 1106, § 1.” Ans. Brf. at 21. This citation deserves comment because the Legislature’s use of this language in 1986 was not in relation to legislation bearing on second degree murder, nor was it in relation to legislation bearing on proof of implied malice. It was used to justify legislation that separated vehicular manslaughter involving gross negligence while intoxicated from other, less serious forms of vehicular manslaughter by increasing the punishment and placing that most culpable form of vehicular manslaughter in its own Penal Code section, section 191.5. [Footnote 10]
If anything is suggested by the Legislature’s use in 1986 of language similar to what the trial court put in the “special inference” instruction, the suggestion is only that the predicate facts might have a bearing on proof of gross negligence, not that they have any bearing on proof of implied malice. In other words, the Legislature’s use of this language in 1986 to support legislative action directed at the crime of gross vehicular manslaughter might conceivably be cited to support an inference that, under the objective standard for gross negligence, a reasonable person in the same position might well be aware of the risk involved. But, use of this language in legislation involving a crime with gross negligence as its mental state — not implied malice — does not support the trial court’s directive here that the jurors could use those predicate facts to infer implied malice.
Respondent’s primary argument in support of the “special inference” instruction is that the connection it made between the predicate facts and implied malice is a connection “easily made by a rational trier of fact.” Ans. Brf. at 22. As support, Respondent relies on Ulster and on Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973) [“Barnes“]. Ans. Brf. at 22, 24-25. Neither case advances Respondent’s position. The permissive inference at issue here is distinguishable both in kind and in evidentiary setting from the permissive inferences reviewed in Ulster and Barnes.
In Ulster, the permissive inference instruction was based on a New York statute that made the presence of a firearm in an automobile presumptive evidence of its possession by all persons occupying the car. By its express terms, the statute did not apply under certain circumstances, including when the weapon was found on the person of an occupant. Ulster, supra, 442 U.S. at 142 n.1. The two large handguns at issue in the case were seized by police in plain view in the open purse of a 16-year-old girl, the one female riding in the car with three adult males.
The Supreme Court concluded that the inference of possession by all occupants was rational because the evidence showed the following: the guns were too large for the girl’s purse and one was therefore in plain view of everyone in the car; the guns were within easy access of the driver and perhaps the two others riding in the rear; it was highly improbable that the young girl in the group had sole possession of two heavy handguns, especially since she was already armed with a pocketknife to use for self-protection; and the way the guns were stashed in an open purse in the front seat suggested the occupants attempted to conceal them when pulled over out of fear they would be searched. The High Court also pointedly noted that defense counsel did not argue that the girl was in sole possession of the weapons, nor did counsel ask for an instruction that the statutory inference would not apply if the guns were on the girl’s “person” as a result of being in her purse. The case was “tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants,” which made it “surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.” Id. at 164-165.
In Barnes, the permissive inference was in a jury instruction that said “‘[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.'” Barnes, supra, 412 U.S. at 839-840. [Footnote 11] The evidence showed the defendant used another name to open a checking account, then a month later deposited four government checks sent to, but not received by, four different payees. A handwriting expert opined that the defendant endorsed the names of the payees on at least two of the checks. The defendant did not testify, but Government evidence showed he made a post-arrest statement that the endorsed checks were given to him by people he could not name or identify who sold furniture for him door to door. He could not produce evidence of any furniture orders. The Supreme Court held that the permissive inference instruction was rational because it was based on “a traditional common-law inference deeply rooted in our law,” and also because the evidence showed the defendant possessed checks belonging to people he did not know when he had no plausible, innocent explanation for possessing them. Id. at 843-846.
The “special inference” instruction at issue here is easily distinguishable from the permissive inference instructions in Barnes and Ulster. First, unlike in Ulster, the “special inference” instruction was not based on a statutory provision that codified a deliberate legislative judgment that the inference was supported by reason and common sense, nor was it based on a traditional, deeply rooted, common-law inference like the inference permitted in Barnes. The “special inference” instruction was not and is not a standard instruction in CALJIC, and Respondent cannot point to any California legislation or case law that approves of its use in California murder prosecutions.
Second, the permissive inference at issue here was not presented to the jury in a case in which the evidence was one-sided and essentially undisputed on the mental element (as in Ulster and Barnes), nor was the mental element simply knowledge, which was all that was necessary to prove culpable possession of the illegal guns in Ulster and the stolen checks in Barnes. Here, Mr. Doe’s mental state at the time of the collision was the only disputed element of the second degree murder charge and it was hotly contested.
1. The Predicate Facts Do Not Justify Implied Malice Any More Than They Support Gross Negligence and, In Fact, They Could Be Relied Upon to Create a Reasonable Doubt as to the Existence of Implied Malice.
In Ulster’s terms, evidence that Mr. Doe drank to the point of intoxication knowing he would thereafter drive did not make it more likely than not that when he later drove he did so with a subjective appreciation and a conscious disregard for of the risk to human life his driving posed, as opposed to doing so with gross negligence. The totality of the trial evidence clearly rebutted any suggestion that reason and common sense justified the inference in light of the facts presented to the jury.
Both prosecution and defense experts testified at the trial that alcoholics like Mr. Doe do not actually, consciously think about the potential for dangerous consequences when they decide to drink. They act as though they do not know there are dangerous consequences. Thereafter, as they drink to the point of intoxication, the alcohol causes their judgment to degenerate further. They lose their awareness of whether they are under the influence or in good enough shape to drive, and they lose their awareness of potential danger. They think they can make it home safely.
The testimony more specific to Mr. Doe showed he fit this general profile precisely. His friends testified he always thought he was all right to drive even when he was obviously intoxicated, and they testified it was impossible to dissuade him from his belief that he could make it home. One expert psychologist testified that his personality structure made him deficient in assessing the consequences of his acts.
All of this testimony confirmed what the California Supreme Court recognized in People v. Whitfield, 7 Cal. 4th 437, 27 Cal. Rptr. 2d 858 (1994) [“Whitfield“]: the state of intoxication of a person who caused the death of another while driving under the influence may well, in and of itself, completely negate implied malice or at least raise a reasonable doubt about its existence. In holding that evidence of intoxication was highly relevant evidence for the jury’s consideration in determining whether the drunk driver’s mental state reached the level of culpability required for implied malice, the court in Whitfield stated: “The most important factor bearing upon defendant’s awareness of the dangerousness of his conduct and conscious disregard of that danger was his degree of intoxication when he undertook his dangerous course of conduct.” Id. at 452. This means that a person who has drunk to the point of intoxication knowing he will drive may well not subjectively appreciate at the time that he actually drives that his drunk driving poses a danger to human life and may well not act with conscious disregard for human life due to his intoxicated state. Thus, a person who drinks to the point of intoxication knowing he thereafter will drive does not more likely than not act with implied malice at the later point that his driving results in a fatal collision. [Footnote 12]
In effect, the “special inference” instruction gave life at Mr. Doe’s trial to a prosecution theory that Whitfield explicitly rejected — that it would be “anomalous to allow a defendant who kills another while driving under the influence to rely upon the fact of self-induced intoxication to demonstrate that he or she did not harbor malice and, therefore, is guilty only of manslaughter rather than murder.” People v. Whitfield, supra, 7 Cal. 4th at 452. The Whitfield court soundly rejected this idea that drunk drivers do not deserve an intoxication defense to malice, even though it recognized that drunk drivers exact an enormous toll and that a drunk driver who causes a death deserves serious punishment. The court rejected this because the serious punishment such drivers deserve “may be imposed without altering the long-settled requirement that a defendant not be convicted of murder unless he or she actually harbored malice.” Id. at 453. The court noted, moreover, that the Legislature had provided for serious punishment for a drunk driver who causes a death, but who does not harbor malice, when it enacted section 191.5 to prescribe harsher punishment for the crime of vehicular manslaughter while intoxicated with gross negligence. Ibid. [Footnote 13]
As Whitfield recognized, Mr. Doe’s state of intoxication supported his reasonable doubt defense against the intent element of implied malice. His degree of intoxication held strong potential for raising doubt that he subjectively appreciated the danger and that he consciously disregarded human life when he tried to drive home and collided with the victims’ vehicle. The “special inference” instruction, however, revoked this defense by telling the jurors that regardless of the degree of intoxication as Mr. Doe was driving, evidence he drank to the point of intoxication knowing he would thereafter drive inferred that malice was proved. The instruction took a complex mental state issue which, in a fair trial, the jury should have resolved after thoroughly weighing all the circumstantial evidence bearing on Mr. Doe’s mental functioning at the time of the crash — including his degree of intoxication and all the expert and percipient testimony about his alcoholism, his personality deficiencies, and the effect of his intoxication on his understanding of the existence of a risk [Footnote 14] — and reduced it to a mechanistic, meaningless inquiry into whether he drank to the point of intoxication knowing he would drive. All of this evidence held strong potential for raising reasonable doubts as to the existence of implied malice.
This deprived Mr. Doe of a fair jury determination on whether the crime he committed was murder or the lesser offense of vehicular manslaughter while intoxicated with gross negligence.
2. Two Similar Ninth Circuit Decisions Show That the “Special Inference” Instruction Violated Due Process.
Two Ninth Circuit cases present closer legal and factual parallels to the permissive inference issue in this case than Ulster and Barnes. In Schwendeman, supra, 971 F.2d 313, and Hanna, supra, 87 F.3d 1034, the defendants faced charges that required proof under Washington law of reckless driving, “defined as driving a motor vehicle in wanton or willful disregard for the safety of persons or property.” Schwendeman, supra, 971 F.2d at 315; Hanna, supra, 87 F.3d at 1035. The juries in both cases were instructed as follows:
A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.
This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Schwendeman, supra, 971 F.2d at 315; Hanna, supra, 87 F.3d at 1036.
Both cases held that the permissive inference instruction was unconstitutional. Hanna, supra, 87 F.3d at 1037-1038; Schwendeman, supra, 971 F.2d at 316. Although there was plenty of evidence of extremely bad, highly risky driving to support the defendants’ convictions, sufficiency of the evidence was not the point because that was not the appellate issue. As the Schwendeman court put it, the problem was that, “the jury was not given a simple set of instructions which would have permitted them to consider all of the evidence and arrive at a verdict.” Schwendeman, supra, 971 F.2d at 315. The permissive inference instructions in those cases circumvented that ideal. Since the evidence in each case was in conflict on the issue of whether there was wanton or willful disregard for the safety of persons or property, but supported the predicate fact of speeding that was necessary to trigger the unconstitutional inference, the convictions had to be reversed.
The “special inference” instruction in Mr. Doe’s case worked the same unfairness as the speeding-equals-reckless-driving instruction in Schwendeman and Hanna. Here, too, the faulty permissive inference instruction allowed the jurors to focus on isolated facts — that Mr. Doe drank to the point of intoxication knowing he would drive — to the exclusion of all the rest of the evidence in the case bearing on his mental state at the later point when he woke up, got behind the wheel and set off for home after verbalizing the tragic misjudgment that he thought he could make it home safely. Like in Schwendeman and Hanna, Mr. Doe’s jury “was not given a simple set of instructions which would have permitted them to consider all of the evidence and arrive at a verdict.” Schwendeman, supra, 971 F.2d at 315. Instead, his jurors were told they could ignore a major portion of the evidence in the case bearing on his mental state and could leap to a finding of implied malice based on predicate facts that under California law do not even necessarily establish the less culpable, objective mental state of gross negligence. As in Schwendeman and Hanna, the “special inference” instruction violated the Due Process Clause (U.S. Const., Am. 5, 14) because the leap it permitted the jurors to make was not justified by reason and common sense in light of the evidence before the jury.
3. California Law Recognizes that the Predicate Facts May Establish Gross Negligence, and Not Implied Malice, Contradicting Respondent’s Contention.
In addition to unwisely placing reliance on Ulster and Barnes, Respondent also argues that the “special inference” instruction is rational because there is a well-established “correlation between driving under the influence and the potential for serious injury.” Ans. Brf. at 23. Respondent cites cases and statistics to support the proposition that drunk driving as an overall societal problem poses real risks to the public. Ans. Brf. at 23-24. However, the general danger posed by drunk drivers does not rationally show anything about the personal, subjective mental state with which a particular drunk driver acted during a particular instance of driving while intoxicated. More specifically, the general danger posed by drunk drivers does not rationally suggest that a particular individual who caused a fatal collision while driving under the influence harbored implied malice on that occasion, i.e. that on that occasion he subjectively appreciated the danger to human life and acted with conscious disregard for human life. The California Supreme Court clearly recognized that point in Whitfield.
In fact, under California law, the correlation Respondent cites between driving under the influence and the potential for injury does not even rationally establish that a specific act of drunk driving causing death involved the less culpable mental state of gross negligence. This defect in Respondent’s position is spelled out in a case on which Respondent attempts to rely, People v. Bennett, 54 Cal. 3d 1032, 2 Cal. Rptr. 2d 8 (1991). In Bennett, the California Supreme Court examined a conviction for vehicular manslaughter with gross negligence while intoxicated under section 191.5. It rejected the defendant’s proposition that the level of his intoxication was irrelevant to whether he acted with gross negligence — i.e., that gross negligence required proof of something more than just a high level of intoxication. The supreme court made clear, however, that the fact the defendant drove while under the influence and violated a traffic law was insufficient in itself to constitute gross negligence. Id. at 1039. Respondent correctly states that the Bennett court (as it did in Whitfield) recognized that drunk driving sets the stage for tragedy. The point Respondent misses, however, is that despite this clear recognition of the societal risks posed by drunk driving, Bennett nevertheless held that gross negligence was not proved merely by the fact of drunk driving and a traffic violation, and instead required juries to “determine gross negligence from the level of the defendant’s intoxication, the manner of driving, or other relevant aspects of the defendant’s conduct resulting in the fatal accident.” Bennett, supra, 54 Cal. 3d at 1039. In other words, juries must determine the existence of even gross negligence based on all the evidence.
Nothing in Bennett suggests that the California Supreme Court would endorse the simplistic equation of the “special inference” instruction as a rational shortcut for jurors to use to decide that a defendant charged with murder based on a drunk driving accident acted with implied malice. To the contrary, Bennett strongly suggests the Supreme Court would hold that juries must determine whether a defendant who caused a death while driving drunk acted with implied malice in exactly the same way that juries must determine whether such a defendant acted with gross negligence — by a thorough review of all the trial evidence and consideration of the totality of the circumstances, and not by resort to an irrationally simplistic focus on just one or two isolated facts.
4. Instructions Generally Stating the Beyond-a-Reasonable-Doubt Standard of Proof Did Not Remedy the Due Process Violation Created by the Tailored “Special Inference” Instruction.
Respondent also argues that the “special inference” instruction did not violate due process because other instructions cured any irrational permissive inference it created. Ans. Brf. at 25-27. Respondent relies on the general instruction which defined reasonable doubt and told jurors that the prosecution has the burden of proving the defendant’s guilt by that standard. See RT 724. Respondent also relies on general instructions that said implied malice was an element of the crime of second degree murder that the prosecution had to prove, that explained the distinction between murder and manslaughter, and that said Mr. Doe had to be given the benefit of any doubt about the degree of the crime. RT 727, 729-730, 737.
Respondent’s reliance on these instructions is misplaced because none of them deterred the jury from applying the “special inference” instruction as an unconstitutional shortcut by which to conclude that implied malice was proved. An irrational permissive inference is not cured by correct general instructions on the meaning of reasonable doubt, the elements of the crime, and the differences between charged and lesser-included offenses. Such instructions tell the jurors where they must end up in order to convict, but they do nothing to dissuade the jurors from following the unconstitutional path that an irrational permissive inference opens up to them as a way to get there.
The Supreme Court has explained that such general instructions do not contravene an unconstitutional presumption “because ‘[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.'” Francis v. Franklin, supra, 471 U.S. at 319; quoting Sandstrom v. Montana, 442 U.S. 510, 518-519 n.7, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); see also Dickey v. Lewis, 859 F.2d 1365, 1370 (9th Cir. 1988). This principle is equally applicable to irrational permissive inferences. Notably, the Ninth Circuit reversed the convictions in both Schwendeman and Hanna because of the irrational permissive inference instruction used in those cases without suggesting it was necessary to also find that the trial court did not generally instruct on the reasonable doubt standard or on the elements of the crimes.
5. The “Special Inference” Instruction Defeated the Purpose of a Pattern Instruction Telling the Jury to Resolve Doubts About Reasonable Interpretations of the Evidence in Petitioner’s Favor.
Respondent refers to another instruction in support of the argument that the constitutional defect in the “special inference” instruction was cured: the standard instruction used by California courts to explain that if the circumstantial evidence bearing on a mental state element is susceptible to two reasonable interpretations, one pointing to the existence of the mental state and the other pointing to its absence, the jurors must adopt the interpretation that favors the defendant. Ans. Brf. at 29; see RT 719-720; see CALJIC No. 2.02. Once again, however, Respondent’s reliance on this other instruction is misplaced because it had no curative effect on the “special inference” instruction.
Petitioner explained in the Petition how the “special inference” and “factors” instructions actually undercut any potential for fair application of CALJIC No. 2.02 and other standard jury instructions that might have helped him obtain manslaughter verdicts. Ptn. at 84-86. Even without considering the “factors” instruction, the “special inference” instruction undermined on its own the fair application of CALJIC No. 2.02, by giving the jurors an unconstitutional short cut by which to conclude that Mr. Doe’s interpretation of the evidence — that it left doubt about malice — was not a reasonable interpretation. The “special inference” instruction, after all, told the jurors they could infer malice merely from evidence Mr. Doe drank to the point of intoxication knowing he would thereafter drive. It unfairly said that if just those predicate facts were proved, then the reasonable interpretation of the evidence was that malice existed. CALJIC 2.02 did not cure the defect in the “special inference” instruction because whatever potential that instruction held for correctly guiding the jury was undercut by the irrational inference the “special inference” instruction allowed.
6. The Instruction Which Permitted the Jury to Consider Mr. Doe’s Intoxication Did Not Counteract the “Special Inference” Instruction’s Leap.
Respondent relies on a final instruction, that the jurors should consider Mr. Doe’s intoxication in determining whether he acted with implied malice. RT 728; see CALJIC No. 4.21. Again, Respondent’s reliance is misplaced. It is misplaced because this instruction only said the jurors should consider intoxication. This means that when the “special inference” instruction was read soon after this instruction, it told the jurors that while they should consider Mr. Doe’s intoxication, they should evaluate it as favorable to the existence of implied malice. Thus, CALJIC 4.21 did not serve in any way to cure the unconstitutional impact of the irrational permissive inference. Rather, the problem with the permissive inference could have been easily exacerbated by CALJIC 4.21.
Moreover, even if there was some way for the jurors, after hearing the “special inference” instruction, to still read CALJIC 4.21 as suggesting that intoxication might negate malice, the most that CALJIC 4.21 could have accomplished was to convey a contradictory message as to the role intoxication should play in their deliberations on the key issue in the case. A contradictory instruction is not enough to cure an unconstitutional inference. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity” because “[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, supra, 471 U.S. at 322.
7. Rather than Curing the Due Process Violation of the “Special Inference” Instruction, the “Factors” Instruction Cemented It.
Respondent also tries to rely on the “factors” instruction to argue that it qualified the “special inference” instruction in a manner that cured its unconstitutionality. This argument makes no sense in light of the due process violation, discussed later, perpetrated in the last paragraph of the “factors” instruction by the requirement that jurors had to decide if a listed factor had been proved beyond a reasonable doubt before they could consider it. See post at 41-54. Given that the listed factors covered important evidence in support of Mr. Doe’s no malice defense, the “factors” instruction did nothing to cure the unconstitutionality of the “special inference” instruction.
In truth, the “factors” instruction made it infinitely harder for Mr. Doe to dissuade the jurors from applying the irrational permissive inference. The final portion of the “special inference” instruction told the jury that the irrational inference could be applied “unless, from all the other evidence [any of them had] a reasonable doubt that” Mr. Doe had implied malice. RT 731. However, the “factors” instruction said he had to prove any helpful factor beyond a reasonable doubt before jurors could consider on it. RT 731. With the “factors” instruction, evidence which might have raised a reasonable doubt to stop the jury from applying the special inference, only carried weight if Mr. Doe proved facts showing a lack of implied malice beyond a reasonable doubt. This type of passing reference in the final clause of the special inference instruction to the consideration of other evidence or the general reasonable doubt standard is not enough to cure an unconstitutional inference. Francis v. Franklin, supra, 471 U.S. at 319; Hanna, supra, 87 F.3d at 1038; Rubio-Villareal, supra, 967 F.2d at 299-300; see also United States v. Warren, 25 F.3d 890, 899 (9th. Cir. 1994).
The points raised by Respondent do not establish the constitutionality of the “special inference” instruction. That instruction violated the Due Process Clause because the presumed fact that Mr. Doe acted with implied malice did not more likely than not flow from the predicate facts, and because the conclusion the instruction permitted was not justified by reason and common sense in light of all the evidence before the jury.
The other portions of the instructions did not cure the defect here because the “factors” instruction forced the jurors in any event to clear other unconstitutional hurdles before they could consider whether other evidence in the case created doubts that overcame the unconstitutional inference. Contrary to Respondent’s position, the “factors” instruction made the problem even worse.
B. The “Factors” Instruction Relieved the Prosecution of its Burden to Prove All Elements of the Second Degree Murder Charge Beyond a Reasonable Doubt Based on All the Evidence.
1. By Preventing the Jury From Considering Evidence Tending to Show a Lack of Implied Malice Unless the Defense Theory Was First Proved Beyond a Reasonable Doubt, the “Factors” Instruction Lessened the Prosecution’s Burden and Shifted It to Petitioner.
Respondent’s basic position is that the “factors” instruction did nothing more than reiterate the rule that the prosecution has the burden of proof on every element of the crime. Ans. Brf. at 31. Respondent claims this is the common-sense interpretation of the instruction. In fact, it is a fanciful and distorted interpretation of what the instruction plainly says.
Respondent’s interpretation might make sense if the second to last sentence of the “factors” instruction had said: “You, the jurors, are the judges of the facts and should give the listed factors whatever weight you deem appropriate in determining whether the prosecution has proved defendant’s guilt beyond a reasonable doubt.” Instead, it said: “You, the jurors, are the judges of the facts and must first decide that a listed factor has been proved beyond a reasonable doubt before considering it.” RT 731 (emph. added). [Footnote 15]
The problem with this instruction is that, as a constitutional requirement, the jurors should have been left entirely free to consider whether the evidence referenced in the listed factors created a reasonable doubt that Mr. Doe acted with implied malice, rather than needing to determine that Mr. Doe proved beyond a reasonable doubt that he did not. Relevant, admissible evidence can raise a reasonable doubt as to a mental element of a crime, regardless of whether that evidence is itself proved beyond a reasonable doubt. A reasonable doubt can be created by evidence that does not meet even a preponderance of the evidence standard of proof. Martin v. Ohio, 480 U.S. 228, 234, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987). Thus, it was unconstitutional to precondition the jury’s consideration of the evidence favorable to the defense referenced in the various factors by first requiring jurors to screen it to see if it met the highest burden of proof used in the justice system. It robbed Mr. Doe of full jury consideration of all the evidence in this case that pointed to the non-existence of implied malice. By telling the jurors that evidence favorable to the defense had to be proved beyond a reasonable doubt before it could even be considered, the instruction shifted the burden of proof, lightening the prosecution’s burden and transferring it to the defense, violating Due Process of law. [Footnote 16]
In this country, the prosecution bears the burden of proving all elements of the charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) [“Winship“]; Sullivan v. Louisiana, 508 U.S. 275, 277-278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) [“Sullivan“]; Cage v. Louisiana, 498 U.S. 39, 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (per curiam) [“Cage“], disapproved on other grounds in Estelle v. McGuire, 502 U.S. 62, 72 n.4, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). It is unconstitutional to require a defendant to do more than raise a reasonable doubt as to the existence of the elements of a crime as defined by the state legislature. Mullaney v. Wilbur, 421 U.S. 684, 703-704, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) [“Mullaney“]; see Sullivan, supra, 508 U.S. at 278 (jury verdict of guilt beyond a reasonable doubt required by both due process and Sixth Amendment right to jury trial); Keating v. Hood, No. 98-55468, ___ F.3d ___, ___, 1999 WL 718465, *6, 99 Daily J. D.A.R. 9718, 9721 (9th Cir. Sept. 16, 1999) [“Keating II“] (“instruction that relieves the state of the burden of proving mens rea beyond a reasonable doubt contradicts the presumption of innocence . . . violating due process.”). The prosecution’s reasonable-doubt burden “plays a vital role in the American scheme of criminal procedure. Among other things, it is a prime instrument for reducing the risk of convictions resting on factual error.” Cage, supra, 498 U.S. at 39-40 (internal quotation marks omitted), quoting Winship, supra, 397 U.S. at 363. In other words, the requirement for conviction only upon proof of each and every element of the charged crime beyond a reasonable doubt is designed to ensure that a defendant is appropriately convicted of the crime charged, and not some other crime or no crime at all.
In California, implied malice is an element of the crime of second-degree murder. See §§ 187, 188, 189; RT 727; CT 437; CALJIC 8.11. In this case, the sole issue disputed by the prosecution and the defense was whether Mr. Doe possessed the mental state necessary for second-degree murder (implied malice), as opposed to the mental state necessary for gross vehicular manslaughter while intoxicated (gross negligence). Thus, error imposing a lesser standard of proof on the prosecution as to the existence of this mental state element went to the heart of the case and could very likely have led to a conviction of a greater crime than Mr. Doe actually committed.
Under this burden of proof a defendant can be given a life sentence [for murder] when the evidence indicates that it is as likely as not that he deserves a significant lesser sentence [for manslaughter]. This is an intolerable result in a society where . . . it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter.
Mullaney, supra, 421 U.S. at 703-704.
2. The Factors Related to Evidence Which Supported the Defense Theory, and Not Just the Prosecution’s Theory as Respondent Asserts.
Respondent attempts to deflect the unconstitutional burden-shifting impact of the plain language of the “factors” instruction by asserting that each factor set out some consideration that the prosecution had to prove beyond a reasonable doubt, and did not encompass evidence that tended to favor the defense theory of a lack of implied malice, and, therefore, nothing was erroneous about the requirement in the final paragraph that each factor had to be proved beyond a reasonable doubt. Respondent’s analysis is simply wrong.
A number of the factors indisputably related to evidence which tended to support a finding of a lack of subjective appreciation and conscious disregard on Mr. Doe’s part. For example, Respondent argues that the eighth factor, which is “what the experts . . . say about the effect of alcohol consumption on the ability to appreciate any risk . . . . “, only “involved” statements about the “ability, not the inability” of Mr. Doe to appreciate the risk. This is incredible hairsplitting, and is plainly illogical. Even factors that might more realistically, at first, seem to bear only on evidence favorable to the prosecution, do not. A thorough understanding of the evidence shows that most all of the listed factors presented considerations that could lead to the existence of a reasonable doubt regarding Mr. Doe’s subjective awareness and conscious disregard.
The facts highlighted below are discussed more fully in this Traverse above (pp. 9-17) and in the Petition (pp. 30-42). [Footnote 17] The analysis below sets forth one or two examples under each factor, grouping related or very similar factors together, of evidence which might have created a reasonable doubt in the mind one or more jurors, but for the erroneous portion of the “factors” instruction. The record reveals other examples.
a. Factor 1: The Effect of Mr. Doe’s Alcohol Level on His Ability to Appreciate the Risk.
Mr. Doe was intoxicated (see ante at 13), which the California Supreme Court has recognized is the most importance evidence bearing on a lack of subjective appreciation and conscious disregard. Whitfield, supra, 7 Cal. 4th at 452. In other words, Whitfield recognizes that the jurors could reasonably interpret Mr. Doe’s intoxication as preventing him from subjectively appreciating the risks from driving in that condition.
The experts agreed, as discussed more fully below (see §b at 48-49), an intoxicated person does not recognize how impaired he is and believes he is capable of driving much better than he actually does. See ante at 13-14. When he was drunk, Mr. Doe always thought he was “okay” to drive. See ante at 15-16.
If the jury believed this expert testimony, jurors could reasonably interpret this evidence as raising a reasonable doubt that Mr. Doe, at the time he drove home, drunk, subjectively appreciated and consciously disregarded the risk he posed.
b. Factor 4: The Circumstances of Mr. Doe’s Drinking, Including Whether Mr. Doe Knew He Would Drive.
Mr. Doe got drunk at a friend’s house. While he was drunk, Mr. Doe was driven home once by the friend, then was returned to the friend’s house by the same friend, where he fell asleep. Mr. Doe usually would drink somewhere where he could fall asleep, at friends’ houses, rather than bars. See ante at 15-16 n.5.
All of this opened room for doubt as to whether Mr. Doe knew he would drive when he started drinking, such that when he began and continued to drink he had no certainty that he would drive later. This, in turn, undercut the prosecution’s theory that Mr. Doe subjectively appreciated and consciously disregarded the risks to others when he drank.
c. Factor 6: Prior to the Accident, Mr. Doe’s Own Statements.
When Mr. W suggested Mr. Doe sleep over, rather than drive home, Mr. Doe said he was “okay” to drive. See ante at 16. One reasonable interpretation of Mr. Doe’s statement was that he subjectively believed that it was safely for him to drive, which suggested the absence of awareness of risk and conscious disregard of that risk, pointing away from malice.
d. Factor 8: The Experts Statements Regarding the Effect of Alcohol Consumption on the Ability to Appreciate Any Risk Involved.
Expert testimony established that intoxication affects a person’s judgment, including awareness of impairment of driving ability and awareness of potential danger. As common sense might suggest, the level of impairment increases with the amount of alcohol consumed. Once drunk, the judgment necessary to decide whether to drive is impaired or absent. See ante at 13-14.
Thus, when drunk, a person does not recognize how impaired he is and, moreover, is not aware of the dangers posed by driving drunk. Rather, persons under the influence believe they are capable of driving much better than in reality they actually are. See ante at 13-14.
If the jury believed the experts’ testimony in this respect, it supported a reasonable doubt that Mr. Doe, at the time he drove home, subjectively appreciated and consciously disregarded the risk he posed.
e. Factor 9: The Effect of Any Mental Disease or Disorder on Mr. Doe’s State of Mind.
The evidence showed Mr. Doe was an alcoholic and usually drank until he was drunk or “blacked out”. Considerable evidence revealed that alcoholics cannot predict or control how much they drink or whether they get drunk on any particular occasion. They are impaired after taking their first drink and also cannot control whether they will drive after getting drunk. Alcoholics do not recognize their level of intoxication or their impairment from the alcohol they have consumed. See ante at 9-11.
This evidence supported a reasonable interpretation that Mr. Doe did not know when he started drinking the night of the collision that he would get drunk or that he would drive drunk. It tended to create doubt whether Mr. Doe recognized he was impaired, once became intoxicated, supporting a reasonable doubt whether he subjectively appreciated the risk of harm to others.
f. Factors 10 and 11: Both on the Night of the Accident and on Prior Occasions, Statements Made or Advice Given to Mr. Doe, and His Reactions Thereto.
The evidence showed Mr. Doe’s friends often told him he should not drink and drive, but they did not state that he might hurt or kill someone when he was driving drunk. Mr. Doe’s fiancée and his friend Mr. M testified that, when drunk, Mr. Doe did not think that he was a danger; instead, he always thought he was “okay” to drive. He circumvented attempts to prevent his driving home. The night of the collision, Mr. W asked him to spend the night at his house, but, as in the past, Mr. Doe said he was “okay” to drive home. Mr. Doe’s statements and his reactions to his friends’ advice might reasonably be interpreted to show a lack of actual, subjective appreciation and conscious disregard of the risk to human life, and supported a reasonable doubt whether he harbored this implied malice.
However, all these and other facts leading to such a doubt may not have been considered by the jurors, under the dictates of the “factors” instruction. If they decided that a factor was not proved beyond a reasonable doubt, then the “factors” instruction told them not to consider it. In this way, the “factors” instruction likely cut off consideration of facts which might have led to a reasonable doubt whether the prosecution had proved that Mr. Doe acted with implied malice beyond a reasonable doubt.
This is precisely what Martin v. Ohio said would be a constitutional violation. In Martin, the High Court upheld an Ohio statutory scheme and jury instruction which placed the burden on the defendant to prove the legislatively-defined affirmative defense of self-defense by a preponderance of the evidence. The court found that the instruction did not shift the burden of proof on the murder element of “prior calculation and design”. Martin v. Ohio, supra, 480 U.S. at 233, 234 n.*. In so finding, the Supreme Court expressly stated that,
It would be quite different if the jury had been instructed that [the defense] evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that [the defense] evidence must be put aside for all purposes unless it satisfied the [defense proof] standard. Such an instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate.
Id. at 233-234.
Here, the jury was given this offending instructional direction. The instruction required the jury to be satisfied that the evidence was proved beyond a reasonable doubt before considering it. The jury was not told that this burden of proof only applied to evidence which tended to prove those things on which the prosecution bore the burden. The instruction told the jury it could not consider even evidence which would have supported the defense theory unless it first satisfied the beyond a reasonable doubt standard of proof. That is the constitutional violation Martin recognized. Ibid.
Thus, the jury was precluded from consideration of what the California courts recognize as the best evidence of a lack of implied malice — degree of intoxication (see, e.g., Whitfield, supra, 7 Cal. 4th at 452), along with all its effects on Mr. Doe’s actual appreciation of the risk at the time he drove home drunk, and, therefore, whether he consciously disregarded this risk. By instructing the jury that these exculpatory facts had to be established beyond a reasonable doubt before the jurors could consider them as raising a reasonable doubt, the “factors” instruction imposed on Mr. Doe a burden beyond merely raising a reasonable doubt. This legally erroneous burden is far more stringent than the correct burden, which requires the prosecution to prove each element beyond a reasonable doubt and requires the defendant simply to raise a reasonable doubt. It is unconstitutional to require a defendant, like Mr. Doe, to bear such an increased burden. Evidence creating a reasonable doubt could easily fall far short of being proved beyond a reasonable doubt. See Martin v. Ohio, supra, 480 U.S. at 234.
Placing the burden on a defendant to do more than raise a reasonable doubt as to an element of the charged crime a fortiori lessens the prosecution’s burden to prove beyond a reasonable doubt each element of the crime. Cage, supra, 498 U.S. at 40-41. When the prosecution is not required to prove the elements of a crime beyond a reasonable doubt, there is essentially no “verdict” as that term is used in the Sixth Amendment, violating the presumption of innocence and the beyond a reasonable doubt requirement of the Due Process Clause of the Fifth and Fourteenth Amendments, and the right to jury trial of the Sixth Amendment. Sullivan, supra, 508 U.S. at 278, 280.
In this case, the jury did not, after considering all the evidence, find that Mr. Doe acted with implied malice. Rather, the jury may have considered itself barred from considering some of the evidence because it did not meet the level of proof beyond a reasonable doubt. This violates due process and the right to a jury trial.
C. Both Instructional Errors Were Prejudicial, Because they Circumvented the Prosecution’s Burden to Establish Guilt Beyond a Reasonable Doubt and Because they Eliminated the Jurors’ Consideration of All the Evidence in Connection with the Only Element of the Crime Charged that Was In Dispute.
Respondent’s final contention is that any error was harmless. Citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) [“Brecht“], Respondent argues that the appropriate prejudice standard is whether the alleged errors “had a substantial and injurious effect or influence in determining the jury’s verdict.” Ans. Brf. at 33-34. Respondent conspicuously avoids dealing with the argument that the errors here created a structural flaw in the case, to which the Brecht analysis does not apply.
1. Because It Lessened the Prosecution’s Burden to Prove the Elements of the Crime Beyond a Reasonable Doubt, the “Factors” Instruction Was a Structural Defect.
The trial was tainted by the “factors” instruction which lightened the prosecution’s burden of proof beyond a reasonable doubt and shifted that burden onto Mr. Doe. By shifting the prosecution’s burden of proof to Mr. Doe in a way that forced him to establish the truth of exculpatory facts beyond a reasonable doubt before jurors could even consider those facts and use them as sources of reasonable doubt about the one disputed issue in the case, the existence of implied malice, the “factors” instruction infected the trial with structural error fully comparable to the structural error that the Supreme Court said required automatic reversal in Sullivan, supra, 508 U.S. 275, and Cage, supra, 498 U.S. 39.
In Cage, the instructional error resided in directing the jurors that a reasonable doubt had to be a doubt “‘founded upon a real tangible substantial basis and not upon mere caprice and conjecture,'” and that it had to be “‘such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof.'” Cage, supra, 498 U.S. at 40 (emph. added). The Supreme Court found it plain “that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard.” Id. at 41. By increasing the degree of doubt required for acquittal, “a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Ibid. (emph. added). In other words, the instruction lessened the prosecution’s burden of proof.
In Sullivan, the Supreme Court reviewed another Louisiana conviction in which the jury was instructed with a defective definition of reasonable doubt essentially identical to what was held unconstitutional in Cage. Sullivan, supra, 508 U.S. at 277. The High Court concluded that the error revealed a fundamental, structural defect in the trial that was not amenable to harmless error review. It required automatic reversal because the misdescription of the burden of proof in the instruction vitiated all the jury’s findings and meant “there ha[d] been no jury verdict within the meaning of the Sixth Amendment . . . of guilty-beyond-a-reasonable-doubt . . . upon which harmless-error scrutiny can operate.” Id. at 280. It followed that a reviewing court could only engage in its own, purely hypothetical speculation as to what a reasonable jury would have done given the erroneous instruction, which would leave the defendant judged guilty by the wrong entity — the reviewing court rather than the jury. Id. at 280-281. Sullivan stated: “The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, . . . ; it requires an actual jury finding of guilty.” Id. at 280 (emph. added).
At Mr. Doe’s trial, the “factors” instruction infected the case with a structural defect as egregious as the defect that required automatic reversal in Sullivan. It increased the degree of doubt required for Mr. Doe to win “acquittal” of implied malice by imposing on him the very high burden of proving beyond a reasonable doubt the truth of exculpatory facts before jurors could even consider those facts in evaluating whether they raised doubts as to Mr. Doe’s mental state. To the same extent as in Sullivan, this means that the prosecution was relieved of proving all elements beyond a reasonable doubt and, therefore, in Mr. Doe’s case, “there has been no jury verdict within the meaning of the Sixth Amendment . . . upon which harmless-error scrutiny can operate.” Id. at 280. Any effort by this Court to conduct a harmless error inquiry into the impact of the “factors” instruction would require the same type of unacceptable appellate speculation that Sullivan condemned as incompatible with the Sixth Amendment. It follows that the trial court’s error in delivering the “factors” instruction requires automatic reversal.
2. The “Special Inference” Instruction Was Prejudicial In Accordance With the Determination in Hanna.
Respondent argues that the Brecht standard of prejudice review applies to the assessment of prejudice as to each instruction. The “special inference” instruction alone is prejudicial under the Brecht standard, both based on the holding of Hanna and on an analysis of the circumstances and effect of the error in this case applying Brecht‘s inquiry. [Footnote 18]
In Hanna, the “special inference” instruction permitted the jury to determine the defendant’s mental state (reckless, or wanton and willful, disregard) from an action (speeding) that did not “more likely than not” exist in conjunction with that action. Hanna, supra, 87 F.3d at 1037-1038; see Schwendeman, supra, 971 F.2d at 316. Likewise, as discussed earlier (at 18-41), the jury in Mr. Doe’s case was instructed that it could find that he held the mental state of implied malice based solely on his actions in getting intoxicated anticipating he would later drive. A conclusion of implied malice is not a more likely result than gross negligence under those facts. The Ninth Circuit found in Hanna that such an instruction was prejudicial under Brecht (Hanna, supra, 87 F.3d at 1039), requiring a reversal of Mr. Doe’s conviction. Cf. Brecht, sura, 507 U.S. at 637; see Ulster, supra, 442 U.S. at 156-157, 165-166 & n.28.
3. Each Instruction is Prejudicial Under Brecht, As Each Improperly Instructed the Jury on the Only Element at Issue in the Case.
Assuming Brecht provides the applicable prejudice standard, each offending instruction was prejudicial. As Respondent notes, the correct inquiry under Brecht is, “[d]oes this court ‘think the error substantially influenced the jury’s decision?'” O’Neal v. McAninch, supra, 513 U.S. at 436; Hanna, supra, 87 F.3d at 1039; Ans. Brf at 33-34.
Brecht additionally requires federal courts to grant relief “‘where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,'” Hanna, supra, 87 F.3d at 1039, quoting, O’Neal v. McAninch, supra, 513 U.S. at 437. Reversal is required unless this Court’s “‘conviction is sure that the error did not influence the jury, or had but very slight effect, . . . .'” O’Neal v. McAninch, supra, 513 U.S. at 437, quoting Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S. Ct. 1239, 90 L. Ed. 2d 1557 (1946). But if the Court “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,” then “it is impossible to conclude that substantial rights were not affected” and relief must be granted. O’Neal v. McAninch, supra, 513 U.S. at 437-438 (emph. added).
Each instruction is prejudicial under this standard.
The two instructions so infected the entire trial that Mr. Doe was denied due process of law. See Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). In Mr. Doe’s case, the nature of the each error does not permit a conclusion it had only a “slight effect” on the jury’s decision-making, nor can this Court reach a “fair assurance” that either offending instruction did not substantially sway the jury’s judgment. [Footnote 19] When it is impossible to be assured that the jury’s verdict did not rest on the legally erroneous path the instructions provided, then the verdict must be set aside. Keating II, supra, 1999 WL 718465 at *7-9.
The erroneous instructions were absolutely central to the only disputed element of the prosecution’s case — whether there was a reasonable doubt that Mr. Doe acted with implied malice. This centrality of the errors to the issues in dispute is the first reason that prejudice under Brecht is clear.
Prejudice is also manifest under the Brecht standard because the constitutional errors resided in jury instructions. The jury instruction phase of a criminal trial does not escape the attention of the jurors. Reviewing courts, in fact, must assume that “jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.” Francis v. Franklin, supra, 471 U.S. at 324 n.9; see also United States v. Olano, 507 U.S. 725, 740, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). This means there is every reason to believe the instructions at issue in this case substantially influenced and swayed the jurors. [Footnote 20]
The Ninth Circuit understood the likelihood of prejudice from instructional errors in Hanna, supra, 87 F.3d 1034. In Hanna, the court applied Brecht to hold it was prejudicial to instruct the jury with the unconstitutional permissive inference in that case which equated speeding with reckless driving. Id. at 1039. The court was left in grave doubt as to the error’s harmlessness because it could not tell if the jury found reckless driving based on the insufficient equation proffered in the offending instruction. Ibid.; see Keating II, supra, 1999 WL 718465 at *9 n.17. The prejudicial impact of the instructional errors here is even clearer than in Hanna. Even before the “special inference” instruction was delivered to misguide the jurors in a manner analogous to Hanna, the “factors” instruction had erected an unconstitutional barrier to the jury even considering evidence that held exculpatory potential. Each instruction exacerbated the error injected into the trial by the other. Both alone and in combination, they leave the same grave doubt as in Hanna that the jurors fully and fairly considered all the exculpatory evidence bearing on Mr. Doe’s mental state.
Under the “factors” instruction, Mr. Doe had to meet the highest burden of proof used in our courts before jurors could even consider evidence favorable to him on the issue of malice. Then the “special inference” instruction permitted jurors to take an irrational shortcut to find malice based on isolated facts when their duty should have been to weigh all the circumstantial evidence bearing on Mr. Doe’s mental state as he tried to drive home. The centrality of the instructional errors to the one critical issue in the case means each error had a major effect on the jury’s assessment of the element.
Prejudice under Brecht is also clear because the case was close on the issue whether Mr. Doe acted with implied malice. The evidence of Mr. Doe’s level of intoxication and the expert and non-expert testimony about the impact of his alcoholism and intoxication on his cognizance of risk, all supported a reasonable interpretation of the evidence that he acted with gross negligence rather than implied malice and was therefore guilty of gross vehicular manslaughter while intoxicated rather than murder. See ante at 41-54.
In light of the fine line in California law between gross negligence while intoxicated and implied malice, all this evidence held strong potential for creating a reasonable doubt that Mr. Doe acted with implied malice. The two offending instructions, however, unfairly undermined that potential. First, the “factors” instruction erected an unconstitutional barrier to jury consideration of the evidence favoring a lack of malice. Then the “special inference” instruction gave jurors a incomplete, irrational route by which to ignore the large fund of exculpatory evidence and focus only on the isolated predicate facts. The closeness of the case as to Mr. Doe’s mental state means there is no fair assurance that the jury’s decision on the implied malice element was unswayed by the unconstitutional instructions.
The cases applying the Brecht standard that Respondent cites do not advance Respondent’s argument that the errors here were harmless. The error at issue in Brecht itself is distinguishable because the error involved evidentiary Doyle error [Footnote 21] and not instructional error. The error resided in the prosecution’s brief references to the defendant’s post-Miranda silence to impeach his trial story that the shooting was accidental. Counterbalancing this error, the trial record revealed extensive, permissible impeachment of the defendant’s account with evidence of his pre-Miranda silence. The fact the inadmissible evidence was cumulative to more extensive, admissible evidence, coupled with the State’s other weighty evidence that the shooting was not accidental, led the Supreme Court to its harmless error conclusion. Brecht, supra, 507 U.S. at 639. Unlike the Ninth Circuit in Hanna, and unlike the situation this Court faces in Mr. Doe’s case, the Supreme Court could readily tell in Brecht that the Doyle error did not substantially influence the jury’s verdict.
The cases cited by Respondent that involved instructional errors also fail to support the harmless error contention. In Roy v. Gomez, 108 F.3d 242 (9th Cir. 1997) [“Roy III“], the instructional error was the omission of the intent element in the aiding and abetting instruction relating to the robbery underlying a felony murder. See Roy v. Gomez, 81 F.3d 863, 865-866 (9th Cir. 1996) [“Roy I“]. [Footnote 22] The Ninth Circuit found the error harmless under Brecht because, unlike in Mr. Doe’s case or in Hanna, it was possible for the court to tell that the instructional error had no effect on the verdict. More specifically, from the part of the aiding and abetting instruction that was properly given, and from the verdicts the jury returned, the court could tell the jury found the defendant aided in the commission of the robbery with actual knowledge of his accomplice’s unlawful purpose. Since those jury findings based on proper instructions were clear, the Ninth Circuit could conclude there was no likelihood he knowingly aided his accomplice but did not intend to do so, particularly when it considered the defendant’s admission he planned to help rob the victim and the evidence that defendant ended up with the stolen property. This meant the instructional error did not have a substantial and injurious effect on the jury’s verdict. See Roy III, supra, 108 F.3d at 243, adopting Roy I, supra, 81 F.3d at 871 (dis. opn. of Wallace, J.).
For obvious reasons, no similar route to a harmless error conclusion is available in this case. The jury’s “verdict” that Mr. Doe acted with implied malice was wholly unreliable because of the offending instructions. They unconstitutionally required the jury to screen the evidence bearing on malice and ignore anything — even exculpatory evidence — not proved beyond a reasonable doubt, then unconstitutionally directed jurors to apply an irrational inference that bypassed full evaluation of whether any evidence raised doubts. Therefore, as in Hanna, there is no way to conclude (without impermissible speculation) that the unconstitutional instructions only had a very slight, insubstantial effect on the verdicts. At the very least, the errors here raise the same grave doubts about their harmlessness that the Ninth Circuit found dispositive in Hanna.
Respondent also cites Pollard v. White, 119 F.3d 1430 (9th Cir. 1997) as a case that applied the Brecht standard. Pollard actually favors Mr. Doe’s position that the unconstitutional instructions here were prejudicial. The constitutional error in the murder instructions in Pollard resided in a supplemental instruction defining premeditation. Since premeditation and the degree of the murder were issues in dispute, it was “undisputed that the misdescription of the element of premeditation in this case had a harmful effect on the jury’s deliberative process with regard to first degree murder.” Pollard v. White, supra, 119 F.3d at 1433. [Footnote 23] Applying Pollard to Mr. Doe’s case, it follows that, since implied malice was very much in issue, there should be no dispute that instructions which unconstitutionally skewed the jury’s consideration of the evidence bearing on malice produced a harmful effect and were prejudicial.
Suniga v. Bunnell, supra, 998 F.2d 664, also cuts against Respondent’s position that the errors here were harmless. The unconstitutional instruction in Suniga permitted the jury to convict him of murder on a felony murder theory premised on assault as the underlying crime when no such theory of felony-murder liability existed under California law. The Ninth Circuit held that the error was prejudicial, “[f]or here the jury could have convicted Suniga on the illegal and nonexistent theory that because he was engaged in an ADW he was guilty of second degree murder, and it could have done so without deciding whether his alcohol consumption or claim of accident somehow affected the malice equation.” Id. at 669 (emph. added).
The offending instructions here caused the same kind of fundamental error as the unconstitutional instruction in Suniga. To paraphrase the above quote, the jury here could have convicted Mr. Doe on the irrational theory that he acted with implied malice merely because he drank to the point of intoxication knowing he would thereafter drive, and it could have done so without deciding whether his level of intoxication or the evidence of his impaired ability to perceive the danger from his drunk driving affected the malice equation. The finding of prejudicial error in Suniga supports a finding of prejudicial error here.
Whether evaluated alone or in combination, the unconstitutional instructions in Mr. Doe’s case were prejudicial under the Brecht standard. The instructions were central to the one critical issues in the case, the evidence bearing on that critical issue was close, and because the errors resided in jury instructions there is every reason to believe they affected the jury’s deliberations and verdict. The offending instructions either had a substantial and injurious effect or influence on the jury’s verdict, or there is grave doubt as to their harmlessness. Petitioner should be granted relief.
4. Considered Together, the Instructions Were Prejudicial.
a. The Errors Had a Substantial and Injurious Effect on the Jury’s Deliberations and Eventual Verdict of Second Degree Murder.
Even if the offending instructions separately did not substantially, injuriously affect the verdict, cumulatively, they were prejudicial. Brecht, supra, 507 U.S. at 637.
The instructions were not directed to an insignificant, peripheral issue in the case. They went directly to the heart of the trial because they bore on the only disputed issue — whether Mr. Doe acted with implied malice. The “factors” instruction impermissibly burdened the jury’s consideration of the evidence best tending to raise reasonable doubt about the existence of malice. The “special inference” instruction unfairly distorted the law and the burdens of proof by which jurors were to evaluate whether the circumstantial evidence proved implied malice beyond a reasonable doubt. Evidence which the jurors might have considered in deciding whether the irrational connection in the “special inference” instruction was rebutted, the “factors” instruction prevented them from considering unless they were first convinced it proved its point beyond a reasonable doubt. As to the defense evidence creating a reasonable doubt, there is no way to be convinced that this did not have a substantial, injurious influence on the verdict; at the very least, this Court must have a grave doubt in this regard.
b. Together, the Instructions Permitted a Verdict Not Resting Upon a Jury’s Determination of Guilt Beyond a Reasonable Doubt, a Structural Error which Mandates Reversal of the Conviction.
As to the “special inference” instruction, Brecht would indeed provide the appropriate prejudice standard if the irrational permissive inference presented to the jury in the “special inference” instruction was the only constitutional defect at Mr. Doe’s trial. Hanna, supra, 87 F.3d at 1038-1039, quoting O’Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). However, in combination, the errors were a structural defect in the prosecution’s burden of proof beyond a reasonable doubt, requiring automatic reversal.
The constitutional defect in the “special inference” instruction adds fuel to the analysis that the “factors” instruction requires automatic reversal. Jurors first heard the “factors instruction” which raised an unconstitutionally high barrier to their consideration of evidence that suggested a lack of implied malice, then they heard the “special inference” instruction that allowed them to irrationally employ proof of just two isolated facts to infer that Mr. Doe did indeed act with implied malice, again without considering the evidence which might have created a reasonable doubt as to the existence of malice.
This combination of instructions effectively left no room for the jurors to reach a bona fide verdict of guilt beyond a reasonable doubt within the meaning of the Sixth Amendment. Since the jury made no finding of guilt of each element beyond a reasonable doubt, not only is there a violation of due process’s presumption of innocence but also there is no verdict within the meaning of the Sixth Amendment. See Sullivan, supra, 508 U.S. at 278. The offending instructions dictated instead a “verdict” that said no more than that Mr. Doe failed to prove beyond a reasonable doubt exculpatory facts sufficient to undermine the irrational permissive inference. This lightened the prosecution’s burden and shifted an additional burden onto Mr. Doe, distorting beyond sanction the fair trial process mandated by the Fifth, Sixth and Fourteenth Amendments. Id., 508 U.S. at 278, 280-281.
IV.
CONCLUSION
For the reasons set forth in the Petition and supporting briefing, and in this Traverse and its supporting brief, this Court should grant the relief requested in the Petition.
Dated: October ___, 1999
Respectfully submitted,
______________________________
J. Courtney Shevelson
Attorney at Law
______________________________
Joel Franklin
Law Offices of Joel Franklin
Counsel for Petitioner,
Mr. Doe
FOOTNOTES TO TRAVERSE:
Footnote 10: Unless otherwise indicated, all statutory references are to California’s statutes, and all subsequent statutory references are to the California Penal Code (West).
Footnote 11: Unlike the inference in Barnes, which directed the jury to consider all the evidence, the instructions here actually barred consideration of all the evidence bearing on assessment of the defense position, except in the limited circumstance that its significance in that regard was proved beyond a reasonable doubt. See post at 41-54.
Footnote 12: As an initial matter, it should be noted that, in accordance with the requirement that there be a union of act (actus reus) and intent (mens rea), it is at the time that David drove and the accident happened which is the relevant time at which he must have held the requisite intent. §20; RT 727; CT 481. Therefore, any knowledge on David’s part, of the danger posed by drunk driving, hours before he drove home drunk and collided with the victims’ car, does not support a conclusion of implied malice, because of this requirement for a union of act and intent.
Footnote 13: As of January 1, 1996, in response to the holding in Whitfield, the State Legislature amended section 22 to make evidence of intoxication inadmissible in murder cases on the question whether the defendant harbored implied malice. The “special inference” instruction at David’s trial effectively jumped the gun on this legislative action by some six years. Ex post facto principles, of course, would prevent application of this change of law to deny David the intoxication defense that existed at the time he committed his crime. Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); see also Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 947-948 (9th Cir. 1998).
Footnote 14: As discussed later, at 41-54, the jurors were restricted from considering all this evidence by the “factors” instruction which imposed on David a burden of persuasion beyond a reasonable doubt as a precondition to the jurors’ consideration of this evidence.
Footnote 15: Respondent states that David’s trial counsel “agreed to the court’s modifications” which added this sentence to the proffered “factors” instruction. Ans. Brf. at 29. It is accurate to say that trial counsel told the trial court he had no objection to the court’s modifications. RT 618. No matter how the record is read, trial counsel’s lack of objection to the trial court’s addition to the instruction does not bear on this Court’s analysis of the claim of constitutional error here. Respondent does not attempt to argue that the lack of an objection waived David’s constitutional attack. Such an argument would be futile. Under California law, an objection was not necessary to preserve the constitutional error for appeal and habeas corpus review. §§ 1176, 1259; see Ptn. at 51 n.12; id. at 77. Further, the California courts reviewed this claim of constitutional error on the merits and it is before this Court on the merits. See Ptn. Exh. C, A; Retn. ¶III, at 3 [conceding exhaustion of state remedies]; see Suniga v. Bunnell, 998 F.2d 664, 667 (9th Cir. 1993).
Footnote 16: Respondent notes that Petitioner claimed for the first time in his second state habeas petition that the trial court’s modifications to the “factors” instruction violated the Due Process Clause by shifting the burden of proof. Ans. Brf. at 29-30. This is true, but has no bearing on this Court’s analysis. Respondent concedes that Petitioner exhausted his state remedies on all his constitutional claims (Retn., ¶III, at 3) and, moreover, the California courts considered this argument on the merits. It is, therefore, unimportant when and how the due process attack on the “factors” instruction was raised.
Footnote 17: The record cites for the facts are set forth therein, and will not be repeated here.
Footnote 18: The Petition pointed out that it is an open question in the Ninth Circuit whether Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), rather than Brecht, provides the correct prejudice standard when, as here, no state court has ever tested whether the error was harmless beyond a reasonable doubt under the Chapman standard. Ptn. at 88-89. The Ninth Circuit has continued to find it unnecessary to reach that question in several habeas cases decided after the Petition was filed. See Tapia v. Roe, No. 97-15295, ___ F.3d ___, ___ n.2, 1999 WL 672572 n.2, 99 Daily J. D.A.R. 9145, 9146-9147 n.2 (9th Cir. Aug. 31, 1999); Hanna, supra, 87 F.3d at 1038 n.2. The Petition fully explained why the errors cannot be found harmless beyond a reasonable doubt. Nevertheless, since the errors here were prejudicial under Brecht, it would not necessary for this Court to rely on Chapman.
Footnote 19: Because the same analysis applies to both instructions, they are treated at the same time here, rather than going through this analysis twice to focus on each instruction separately. By addressing both instructions, this subsection is not meant to deal with the question of cumulative prejudice; that is addressed in the next section.
Footnote 20: Respondent cites a case in which the constitutional error did not occur in the jury instructions but at a trial phase at which experience taught it was unlikely to have any impact — after the verdict was reached. Rice v. Wood, 77 F.3d 1138 (9th Cir. 1996). The error resided in the defendant’s absence when the jury returned its verdict sentencing him to death. The Ninth Circuit began the prejudice analysis with the observation that “based on experience, it is unlikely that a juror will change his vote merely because defendant is present at return of the verdict and polling.” Id. at 1144. Experience teaches a contrary lesson with respect to unconstitutional jury instructions. The law openly acknowledges they are likely to influence jurors.
Footnote 21: Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
Footnote 22: Roy I was the original en banc decision in the case. In California v. Roy, 519 U.S. 2, 117 S. Ct. 337, 136 L. Ed. 2d 266 [“Roy II“], the Supreme Court disagreed with the prejudice analysis in the majority opinion in Roy I and remanded the case. In Roy III, the Ninth Circuit reconsidered its prejudice analysis under the correct interpretation of the Brecht standard explained in Roy II, and found the error harmless by adopting the reasoning and conclusions of the dissent in Roy I. Roy III 108 F.3d at 243.
Footnote 23: Despite the lack of dispute that the first degree murder verdict was harmfully affected, the Ninth Circuit did not reverse in Pollard as it determined that no prejudice occurred because the state court had reduced the conviction to second degree murder. Because the defendant argued the state court erred in reducing his first degree murder conviction to second degree murder as the remedy for the error in the premeditation instruction, it was necessary for the Ninth Circuit to apply the Brecht standard in deciding whether the error in the premeditation instruction also had a prejudicial effect on the jury’s determination of malice aforethought (an element of second degree murder, as well). Assuming that the offending instruction misdirected the jury on malice as well as premeditation, the Ninth Circuit held that any error was harmless with respect to the reduction in degree because the first degree murder verdict showed the jury fairly rejected the only defense offered — that there was doubt of the defendant’s identity as the shooter — and because the evidence was sufficient to establish at least implied malice. Pollard v. White, supra, 119 F.3d at 1434-1435. This part of Pollard is clearly inapposite to this case for the simple reason that the unconstitutional instructions at David’s trial prevented the jury from fairly considering his no malice defense. Unlike in Pollard, the verdicts here do not show the jury rejected the only defense offered in accordance with all the evidence and the proper standard of proof.
