Brief Bank # B-861 (Re: F 2.50.01 n12 / F 2.50.02 n9 [Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FOUR
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Court of Appeal
No. A085837
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________/
Appeal from the Superior Court of the State of California
Alameda County No. H25048
Hon. Julie Conger, Judge
APPELLANT’S REPLY BRIEF
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the appellant
By appointment of the Court
in association with the
First District Appellate Project
Independent system.
APPELLANT’S REPLY BRIEF
PRELIMINARY STATEMENT
This brief is designed to respond to respondent’s contentions which require additional discussion and elucidation for the proper disposition of the case. Emphasis will be placed upon certain legal and factual contentions of respondent which appellant believes are erroneous statements of applicable law or are unsupported by the record.
ARGUMENT
ADMISSION OF THE TESTIMONY ABOUT APPELLANT’S ALLEGED ACT OF DOMESTIC ABUSE AGAINST HIS WIFE, AND THE DELIVERY OF CALJIC NO. 2.50.02 DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL
A. The Admission of the 1992 Incident Pursuant to Evidence Code section 1109 Was a Violation of Appellant Due Process Rights
On appeal appellant has argued that the admission of propensity evidence about an alleged act of domestic abuse by appellant upon his wife pursuant to Evidence Code section 1109 violated his constitutional right to due process and a fair trial. (AOB 9-19.) [Footnote 1] Specifically, the evidence presented was the testimony about a 1992 incident. Mrs. Doe reported that, while the two were arguing she raised her hand to hit appellant and he struck her in the face. The two began pushing and shoving each other, and she then bit his finger. Appellant admitted hitting his wife but said it was in self-defense. He also disputed Mrs. Doe’s description of the
incident. Appellant testified that she was biting his finger when he struck her to force her to let go of his finger. (RT 673-674.) A photograph was taken of Mrs. Doe’s injury to her face which was described as a small cut and her eye was bruised and puffy. (RT 55-61.)
Following the filing of his opening brief, the California Supreme Court decided People v. Falsetta (1999) 21 Cal.4th 903, in which the Court rejected a similar due process challenge with respect to Evidence Code section 1108 which provides for the admission of prior sexual offenses. Since the California Supreme Court has not directly decided this issue, and to preserve the issue for federal review, for the reasons stated in appellant’s opening brief, appellant maintains that the admission of the propensity evidence was a violation of his state and federal due process rights.
Furthermore, in Falsetta, one of the reasons for rejecting the defendant’s due process challenge to section 1108 was because, in that instance, there was no undue burden on the defendant since the prior crimes involved charges for which he had admitted. (Id., at p. 916.) In this case, appellant never admitted an act of domestic abuse. He stated both at the time of the offense and at trial that he slapped his wife only after she had tried to hit him and while she was biting his finger. As noted by Justice Mosk in his concurring opinion in Falsetta, in situations such as this case, some due process concerns remain since defendant is required to defend against prior crimes for which he was never convicted nor admitted. (See People v. Falsetta, 21 Cal.4th at p. 925, conc. op. by J. Mosk.)
B. The Evidence Should Have Been Excluded Under Evidence Code section 352
Despite the due process concerns, there is the issue as to whether the evidence should have been excluded pursuant to Evidence Code section 352. Appellant has argued that the 1992 incident should have been excluded because its probative value was far outweighed by its prejudice. (AOB 19-20.) Respondent suggests that the trial court conducted the proper balancing determination under section 352 by admitting the 1992 evidence, while exercising its discretion by excluding other evidence. (RB 17.) That is simply not true.
Evidence code section 1109 specifically requires that the trial court conduct a section 352 analysis before the admission of any alleged prior acts of domestic violence. The analysis envisioned by sections 1109 and 352 is not a determination of the relative probative value of the proposed evidence amongst each other. Rather the question is whether the probative value of any and all of the evidence that is sought to be admitted is outweighed by the potential prejudice from its admission. Here the trial court excluded the other alleged acts as too remote and they were not corroborated. (RT 5-8.) Evidence of the 1992 incident should have been excluded because it had no probative value as to the purpose for which it was admitted. It is important to keep in mind that this evidence was admitted for the express purpose of showing that appellant had a disposition to assault his wife and as a result of that predisposition, he was guilty of murdering his wife. If the 1992 incident was irrelevant for that purpose, then the evidence was inadmissible. Simply put, appellant’s actions did not constitute an act of domestic violence and therefore failed to show that he had a disposition to assault his wife. His actions were in self-defense and was not an intentional or reckless act “causing or attempting to cause bodily injury”, nor was Mrs. Doe in “reasonable apprehension of imminent serious bodily injury.” Appellant had every legal right to defend himself against her hitting him and biting his finger.
A comparison of other cases where similar evidence has been admitted for the purpose of showing propensity is instructive. In People v. Poplar (1999) 70 Cal.App.4th 1129, the defendant was charged with rape and assault on his girlfriend. The evidence that was admitted pursuant to section 1109 consisted of one incident where the defendant pushed his way into a former girlfriend’s home, slammed her head against a wall and kicked her while she was on the floor. He pled guilty to a charge of co-habitant abuse in that case. In the another incident while engaged in an argument with another girlfriend, he dragged her by her hair and beat her with his fists. He again pled guilty to co-habitant abuse. (Id., at pp. 1136-1137.)
In People v. Johnson (2000) 77 Cal.App.4th 410, the defendant was charged with the murder of his wife. At trial, the defendant’s son testified pursuant to Evidence Code section 1109, that in 1986, he had observed his father pull a gun on his mother, grab her by the hair and punch her in the face. In 1998 he had observed his father, without justification, punch his mother in the stomach causing her to have a seizure. (Id., at p. 415.)
Finally in People v. Brown (2000) 77 Cal.App.4th 1342, the evidence was that during an argument, the defendant, without provocation, kicked or hit his former girlfriend in the head causing her to chip her tooth, then choked and kicked her; in another incident with yet another girlfriend, the defendant choked and struck the girlfriend’s head on the pavement. (Id., p. 1330.)
Although appellant is not suggesting that only such extreme evidence can be admitted under Evidence Code section 1109, he does contend that Evidence Code section 1109 was not designed for the admission of any and every incident involving a domestic situation regardless of the circumstances. That is the purpose for the section 352 limitation. Here the trial court should have realized that the 1992 incident was not relevant to its intended purpose, i.e., disposition, and therefore should have been excluded as more prejudicial than probative.
Nor was the evidence admissible for under Evidence Code section 1101 as the respondent suggests. (RB 18-19.) Admissibility under Evidence Code section 1101, subdivision (b) depends on the materiality of the fact sought to be proved, the tendency of the evidence to prove or disprove the disputed fact, and any rule or policy requiring exclusion of the evidence. (People v. Gallego (1990) 52 Cal.3d 115, 171.) Before permitting the jury to hear evidence of other offenses a trial court must ascertain that the evidence (a) “tends logically, naturally and by reasonable inference” to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People’s case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue. (People v. Thompson (1980) 27 Cal.3d 303.) Also, the admission of other crimes evidence cannot be justified merely by asserting an admissible purpose. Rather, its relevancy must be determined. The question that must be asked is whether the evidence of other offenses offered here is logically relevant to prove something other than disposition in this case? (People v. Thompson, 27 Cal.3d at p. 319 and fn. 22.)
In this case, the fact that appellant slapped his wife after she tried to hit him and after she was biting his finger, was not logically relevant to his intent, or anything else, with respect to the killing of his wife on this occasion.
C. The Delivery of CALJIC No. 2.50.02 Was in Error
Appellant’s jury was instructed pursuant to the pre-1999 revision of CALJIC No. 2.50.02, which failed to specifically inform the jurors that 1992 incident was insufficient by itself to prove beyond a reasonable doubt that appellant was guilty of the charged crimes. Relying primarily on People v. Regalado (2000) 78 Cal.App.4th 1056 and People v. O’Neal (2000) 78 Cal.App.4th 1065, argues that the instruction was not defective. (RB 19-26.)
Appellant suggests that the better reasoning is found in People v. Vichroy (1999) 76 Cal.App.4th 92, and recent decision in People v. Orellano (2000) 79 Cal.App.4th 179 [93 Cal.Rptr. 866]. In both of those cases, the issue concerned the similar instruction CALJIC No. 2.50.01, but the same principles apply.
In People v. Orellano the court stated:
“In combination, CALJIC Nos. 2.50.01 (pre-1999), 2.50.1, and 2.50.2 permitted the jury to find by a preponderance of evidence that appellant committed the prior crimes, to infer from such commission of the prior crimes that appellant had a disposition to commit such crimes, and to infer from such disposition that appellant “did commit” the charged crimes, without necessarily being convinced beyond a reasonable doubt that appellant committed the charged crimes. If the jury followed these instructions literally and arrived at a guilty verdict in that manner, appellant was denied his due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crimes. (People v. Vichroy, supra, 76 Cal.App.4th 92, 99, [], citing In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368, and People v. Fitch (1997) 55 Cal.App.4th 172, 182- 183, [].) A “constitutional infirmity arises” because taken literally these instructions authorized a conviction of the current charges based “solely” upon a finding that appellant committed the prior crimes. In Vichroy the trial court did not instruct the jury about the preponderance of evidence standard for proof of the prior crimes. The appellate court found error because, even assuming the prior crimes were proved beyond a reasonable doubt, “[w]e do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as ‘proxy’ or substitute for proof of the ultimate fact, i.e., appellant’s guilt of the currently charged offenses.” (Id. at p. 99, [].) The “constitutional infirmity” is even greater where, as here, the jury was also instructed that the prior crimes need only be proved by a preponderance of evidence. . . .” (93 Cal.Rptr. 866, at p. 869.)
The court also discussed the fact that although the instructions must be considered as a whole, the question to be asked is “whether, in light of the specific language challenged and all the instructions as a whole, there is a ‘reasonable likelihood’ the jury interpreted the instructions in an impermissible manner. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385; People v. Cain (1995) 10 Cal.4th 1, 36, 40 [].)” The court stated that Evidence Code section 1108, and in this instance, section 1109, is atypical for applying the well-established principle that specific instructions must be considered with all of the instructions as a whole.
“The reason is the unprecedented change which Evidence Code section 1108 represents in our jurisprudence of evidence. (See also Evid. Code, § 1109.) Section 1108 radically departs from prior case law which indicated that “propensity” evidence is inherently unduly prejudicial to a criminal defendant. Until the issue was finally resolved by our Supreme Court in People v. Falsetta, supra, 21 Cal.4th 903, 910-922, [], the criminal defense bar repeatedly urged that Evidence Code section 1108 denies a defendant due process by permitting a jury to consider prior sex offenses as evidence of a defendant’s disposition to commit such crimes.
Because Evidence Code section 1108 permits admission of disposition evidence in this unprecedented manner, we believe it especially important that the jury be fully and fairly instructed on its permissible use. In this context, the 1999 revision to CALJIC No. 2.50.01, in our opinion, is more than just a desirable improvement or “useful nugget of additional information, [citation], it is essential to the jury’s proper understanding of disposition evidence. In the 1999 revision, the jurors are told in the same instruction that although they may infer from the defendant’s commission of prior sex crimes that he “did commit” the charged crimes, “that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes.” Without the 1999 revision, as here, the jurors are told they may infer the defendant’s guilt of the charged crimes from the preponderance of evidence that he committed prior sex crimes, and they are forced to surmise from all the other instructions that this inference is subject to the reasonable doubt standard.
In People v. Van Winkle, supra, 75 Cal.App.4th 133, 147-149, [], People v. O’Neal, supra, Cal.App.4th [93 Cal.Rptr.2d 248], and People v. Regalado, supra, Cal.App.4th [93 Cal.Rptr.2d 83], the appellate courts hypothesized the process by which rational and reasonably intelligent jurors might harmonize the instructions as a whole. In the context of now-admissible disposition evidence under Evidence Code section 1108, however, we are not persuaded this was “reasonably likely.” The danger that juries may be unduly influenced by disposition evidence is so well established that until enactment of Evidence Code section 1108, such evidence was universally excluded. (People v. Falsetta, supra, 21 Cal.4th at pp. 913-914, []; People v. Alcala (1984) 36 Cal.3d 604, 630-631 [].) Although admission of disposition evidence under section 1108 does not violate due process (People v. Falsetta, supra, 21 Cal.4th at pp. 912- 922, []), an essential safeguard to prevent its lessening the prosecution’s burden of proof is proper instructions to the jury that evidence of prior offenses is not sufficient to prove guilt of the charged crime beyond a reasonable doubt. [citations]. Such instructions were not given here. The jurors were specifically told they could infer appellant’s disposition, and his guilt of the current charges, from his commission of the prior crimes, shown by a mere preponderance of evidence. The other instructions on the reasonable doubt standard were general in comparison. (See Francis v. Franklin (1985) 471 U.S. 307, 319-320, 322-323, 105 S.Ct. 1965, 85 L.Ed.2d 344.) The danger that the jury leaped to a verdict of guilty is too great for us to confidently assume the jurors arrived at a verdict beyond a reasonable doubt by a careful reasoning process involving all the other instructions. In the context of disposition evidence under Evidence Code section 1108, we conclude there is a “reasonable likelihood” the jurors were misled by the incomplete instruction. Since we have no way of knowing whether the jury applied the correct burden of proof, the convictions must be reversed (Sullivan v. Louisiana (1993) 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182; People v. Vichroy, supra, 76 Cal.App.4th at p. 101, []) so that appellant can be retried before a properly instructed jury.” (People v. Orellano, supra, 93 Cal.Rptr. 869-870.)
In this case, the prosecution repeatedly tried to portray appellant as violent toward his wife. In addition to the 1992 incident, the prosecution attempted to elicit the uncorroborated testimony from one of appellant’s daughters that appellant continually threatened to kill his wife, but the court did not all this testimony. The prosecution again attempted to put before the jury prejudicial statements from Miss Doe that her father was violent when he drank, but the trial court sustained appellant’s objections to this line of questioning.
Although the jury was instructed that it had to find appellant guilty based upon the reasonable doubt standard pursuant to CALJIC No. 2.90, it was also told that it could infer that appellant had a disposition to commit similar offenses, and having that disposition, it could further conclude that appellant was likely to commit and, in fact, did commit the crime for which he was accused. (RT 796.) Thus, the jury was told that it need only find that appellant committed the prior offense in order to find him guilty of the charged crime, first degree murder. There was nothing in the instructions that told the jurors that a finding that appellant had a disposition to commit offenses against his wife was not sufficient, in and of itself, to prove his guilt beyond a reasonable doubt. Thus, no instruction reconciled the CALJIC Nos. 2.50.02 and 2.90.
Respondent asserts that during closing argument the prosecutor “emphasized the presumption of innocence and the People’s burden to prove guilt beyond a reasonable doubt.” (RB 30.) In fact, the only statement about the burden of proof made by the prosecutor was to state:
“Now the defendant has an absolute right to a jury trial on this charge, and he had an absolute right to be presumed innocent. And the presumption of innocence is a sacred part of our jury system. It gives us the fairest legal system in the world. And I welcome the burden of proof beyond a reasonable doubt. I welcome it.” (RT 890.)
This isolated statement hardly clarifies the conflicting instructions on reasonable doubt. Nor did that statement tell the jurors that they could not find appellant guilty of first degree murder based solely on the prior incident. On the other hand, the prosecutor repeatedly told the jurors that appellant was the “type” of person that was “prone to use violence to settle his problems, and was therefore guilty of first degree murder. (RT 826, 847-848.)
Moreover, like People v. Vichroy, the jurors here were not told that needed to find the prior act true based upon the preponderance of the evidence standard. (Id., at p. 99.) Nevertheless, the constitutional infirmity still exists because the jurors were instructed that they could convict appellant of first degree murder based solely upon their determination that he committed a prior act of domestic dispute. Proof beyond a reasonable doubt of a basic fact, that appellant committed a prior act of domestic violence, was used as a “proxy” or substitute for proof of the ultimate fact, i.e, that appellant was guilty of the charged offenses.
D. The Error In Admitting the Propensity Evidence and the Instructional Error Requires A Reversal of the Judgment
Respondent argues that even the admission of this evidence and the delivery of CALJIC No. 2.50.02 was error, it was harmless under Chapman v. California (1967) 386 U.S. 18. (RB 26-30.) Appellant believes the instructional error here should be deemed structural error because the jury was allowed to convict appellant of first degree murder based solely upon a finding that he committed a prior act of violence against his wife.
While most constitutional errors during trial are subject to a harmless error analysis, misinstruction on the burden of proof necessary to find the defendant guilty is reversible per se. (Sullivan v. Louisiana (1993) 508 U.S. 275.) The reason is that a harmless error analysis looks to the basis on which “the jury actually rested its verdict.” (Yates v. Evatt (1991) 500 U.S. 391, 404-405.) Where the jury receives wrong instructions on the burden of proof constitutionally required for a conviction, there has been no jury verdict within the meaning of the Sixth Amendment, and the entire premise of a Chapman harmless error review is simply absent. There being no jury verdict of guilty beyond a reasonable doubt, the question whether the same verdict of guilty beyond a reasonable doubt would have been rendered is utterly meaningless. There is no object, so to speak, upon which harmless error scrutiny can operate. (Sullivan, supra, 508 U.S. at p. 280; People v. Kobrin (1995) 11 Cal.4th 416, 429.) It is not enough that a reviewing court concludes that a jury would surely have found the defendant guilty beyond a reasonable doubt had it been instructed correctly. “The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. . . .” (Sullivan, supra, 508 U.S. at p. 280.) A trial court’s misdirection on the reasonable doubt standard is accordingly structural error. (Ibid.) In this instance, this court cannot say that the trial court’s defective instructions resulted in a jury verdict of guilt beyond a reasonable doubt. There is no basis for determining how the jury resolved the contradictory instructions. Like those cases involving defective reasonable doubt instructions, a finding in this case that the erroneous instruction was harmless would rest on pure conjecture, “effectively substituting this court for the jury as trier of fact.” (People v. Kobrin, supra, 11 Cal.4th at p. 429; see Sullivan, supra, 508 U.S. at pp. 279- 280, 113 S.Ct. 2078.) Because a harmless error analysis is impossible, the error was of a magnitude that it infected the integrity of the trial process, and reversal is required.
Nevertheless, even under the Chapman standard, the error here was prejudicial. There was no question here that appellant killed his wife. The crucial issue for the jury here was his statement of mind when killed her. While there was evidence that appellant purchased the gun used in the killing shortly before the killing, there was also evidence that he had a history of wanting to kill himself, and his testimony own testimony was that he purchased the gun to kill himself. (RT 354-356, 584-585, 593-593.) Also, it was undisputed that at the time of the shooting appellant was very intoxicated with a blood alcohol level of .23, (RT 216), which indicating that he was not thinking rationally.
The propensity evidence impermissibly portrayed appellant as having a history of violence toward his wife. From that the jury was then allowed to find that appellant acted in conformity with that history and was therefore guilty of the charged offense, first degree murder, despite the defense evidence to the contrary. It cannot be said that the admission of this evidence, along with the constitutionally infirm instruction, did not lighten the prosecution’s burden of proof in this case and contribute to the guilty verdict in this case. The judgment must be reversed.
CONCLUSION
For the reasons stated herein and in appellant’s opening brief, the judgment must be reversed.
Dated: April 12, 2000 Respectfully submitted,
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the Appellant
REPLY BRIEF FOOTNOTE (Footnote 1):
Footnote 1: At trial, the prosecution sought to portray appellant as a violent man who often assaulted or threatened his wife. This claim was based upon the uncorroborated testimony of one of appellant’s daughters, Miss Doe. The trial court, however, refused to allow this testimony under section 1109 because it was contradicted by other children and too remote to be of any relevance to this case. (RT 6-8.)
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Court of Appeal
No. A085837
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________/
PETITION FOR REVIEW
After Published Decision by the Court of Appeal,
First Appellate District, Division Four
Filed July 13, 2000
Cynthia A. Thomas
State Bar No. 96180
5050 Laguna Blvd., Ste. 112-329
Elk Grove, CA 95758
Telephone (916) 682-6901
Attorney for the appellant
By appointment of the Court
in association with the
First District Appellate Project
Independent system.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Court of Appeal
No. A085837
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________/
PETITION FOR REVIEW
TO THE HONORABLE RONALD GEORGE, CHIEF JUSTICE, AND TO THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:
Appellant, John Doe, respectfully petitions this court for review following the published decision of the Court of Appeal, First Appellate District, Division Four, filed on July 13, 2000, affirming his conviction. A copy of the court of appeal decision is attached hereto as Exhibit A. A copy of the order granting respondent’s request for publication is attached hereto as Exhibit B.
ISSUES PRESENTED
Does the version of CALJIC No. 2.50.02 given in this case violate the Sixth and Fourteenth Amendments to the United States Constitution as it allowed the jury to convict appellant solely on the basis of the proof of the prior offenses by a preponderance of the evidence?
What is the proper standard of review to be applied to this error?
NECESSITY FOR REVIEW
A grant of review and resolution of these issues by this Court is necessary to secure uniformity and to settle an important question of law, of federal constitutional dimension, pursuant to rule 29(a)(1), California Rules of Court.
Specifically, the issue presented herein– whether the delivery of the pre-1999 edition of CALJIC No. 2.50.02 violated the Sixth and Fourteenth Amendment requirements of a jury verdict on the charged offense beyond a reasonable doubt, by permitting the jury to convict appellant based solely on proof of an uncharged offense by a preponderance of the evidence. The question should now be addressed as there are currently a multitude of differing published opinions on this issue. (C.f. People v. Orellano (2000) 79 Cal.App.4th 179; People v. Vichroy (1999) 76 Cal.App.4th 92; People v. Regaldo (2000) 78 Cal.App.4th 1056; People v. O’Neal (2000) 78 Cal.App.4th 1065; People v. James (2000) 81 Cal.App.4th 481.)
To date, this Court has declined to grant review in any of these cases. Each remain published authority with very different reasoning and results. The consequence is a very mixed bag of case law which, given the importance of the issue, ultimately needs to be resolved by this Court.
In this case, the court of appeal thoroughly reviewed the decisions while noting the conflicting decisions, but declined to resolve the question of whether the delivery of this instruction as in error by ruling the error was harmless. (Exhibit A, at pp. 12-19.) The court of appeal also noted the split of authority as to the proper standard of review for deciding this issue. (Id., at p. 18.)
Appellant submits that this issue has created a great deal of uncertainty with respect to this important issue of law. Despite the fact that the instruction was amended in 1999, there remains a large number of cases in which the pre-1999 instruction was given and a uniform resolution of the issue. Therefore appellant urges this Court to grant review to resolve the conflict in the law.
STATEMENT OF THE FACTS
For the purpose of this petition for review only, appellant adopts the outline of the procedural history and summary of facts provided in the attached opinion of the Court of Appeal.
ARGUMENT
I.
CALJIC 2.50.02, AS GIVEN HERE, VIOLATED APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
In this case, appellant was charged with the murder of his wife Mrs. Doe. During his trial, the trial court permitted, pursuant to Evidence Code § 1109, testimony about a 1992 incident. In 1992, Mrs. Doe reported to the police that, while the two were arguing she raised her hand to hit appellant and he struck her in the face. The two began pushing and shoving each other, and she then bit his finger. At trial, appellant admitted hitting his wife but said it was in self-defense. He also disputed Mrs. Doe’s description of the incident. Appellant testified that she was biting his finger when he struck her to force her to let go of his finger. (RT 673-674.) A photograph was taken of Mrs. Doe’s injury to her face which was described as a small cut and her eye was bruised and puffy. (RT 55-61.)
When instructing the jury on how it was to consider this evidence, appellant’s jury was instructed pursuant to the pre-1999 revision of CALJIC No. 2.50.02 [Footnote 2], which failed to specifically inform the jurors that 1992 incident was insufficient by itself to prove beyond a reasonable doubt that appellant was guilty of the charged crimes. By its very language, CALJIC No. 2.50.02, as given, permitted jurors to engage in a three-step process: (1) find the defendant committed the uncharged (prior) offenses by a preponderance of the evidence; (2) from that alone, it may find the defendant had a propensity to commit the current offense; and (3) from that alone, find the defendant was likely to commit and did commit the current offense. This created two separate federal constitutional violations: (a) the jury was permitted to return convictions (“did commit the current offense”) based solely on a finding that the defendant committed uncharged (prior) offenses, and (b) it was permitted to do that on finding the prior offenses committed by only a preponderance of the evidence.
This Court in People v. Falsetta (1999) 21 Cal.4th 903, touched on this issue with respect to the similar instruction, CALJIC No. 2.50.01. This Court noted that the 1999 revision of CALJIC 2.50.01, which informed the jury they may not convict based solely on the evidence of his other sexual offenses, insures that the jury will not convict on the lesser standard of proof necessary to prove the commission of the evidence admitted under Evidence Code § 1108. (Id., at p. 920.) The Court specifically directed that an admonishment “not to convict defendant solely in reliance on the evidence that he committed prior sex offenses,” will help “assure that the defendant will be tried and convicted for his present, not his past, offenses.” (Id., at p. 923.) Since this decision there has been a myriad of opinions from the courts of appeal, both on CALJIC Nos. 2.50.01 and 2.50.02, which have split on the issue presented herein.
In this case, the respondent relied principally on People v. Regalado, supra, 78 Cal.App.4th 1056 and People v. O’Neal, supra, 78 Cal.App.4th 1065, to argue that the instruction was not defective and therefore there was no error in the delivery of the instruction. (See also, People v. Waples (2000) 79 Cal.App.4th 1389; People v. Van Winkle (1999) 75 Cal.App.4th 133.) Appellant suggested that the better reasoning is found in People v. Vichroy, supra, 76 Cal.App.4th 92, and People v. Orellano, supra, 79 Cal.App.4th 179 which held that there was a reasonable likelihood that former CALJIC No. 2.50.01 might have misled the jurors into believing they could infer the defendant’s guilt merely from his commission of the prior offense. [Footnote 3]
As noted by the court of appeal here, in People v. James, supra, the First District Court of Appeal, Division Three, stated that the older version of CALJIC No. 2.50.01 was constitutionally infirm as it allowed the jury to base its verdict directly on an inference from the propensity evidence and so undermined the state’s obligation to prove each element of the charged offense beyond a reasonable doubt.
Appellant urges this court to adopt the better reasoning used by the Second District Court of Appeal in People v. Vichroy, supra, 76 Cal.App.4th 92 and People v. Orellano, supra, 79 Cal.App.4th 179. Proof of prior acts of domestic violence cannot be permitted to substitute for proof of appellant’s guilt of the currently charged offenses. In Vichroy, the court stated: “We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as ‘proxy’ or substitute for proof of the ultimate fact, i.e., appellant’s guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges.” (Id. at p. 99.)
Similarly in People v. Orellano, supra, the court of appeal found: “appellant was denied his due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crimes. A ‘constitutional infirmity arises’ because taken literally these instructions authorized a conviction of the current charges based ‘solely’ upon a finding that appellant committed the prior crimes.” (Id., at pp. 184-85; citations omitted.) In Orellano, the court of appeal found that the revision to CALJIC 2.50.02 was “more than just a desirable improvement or ‘useful nugget’ of additional information it is essential to the jury’s proper understanding of disposition evidence.” (Id., at p. 185, citations omitted.) Thus, the instruction given in that case violated the due process clause of the Fourteenth Amendment which requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime.
In this case, the prosecution repeatedly tried to portray appellant as violent toward his wife. In addition to the 1992 incident, the prosecution attempted to elicit the uncorroborated testimony from one of appellant’s daughters that appellant continually threatened to kill his wife, but the court did not all this testimony. The prosecution again attempted to put before the jury prejudicial statements from Miss Doe that her father was violent when he drank, but the trial court sustained appellant’s objections to this line of questioning.
Although the jury was instructed that it had to find appellant guilty based upon the reasonable doubt standard pursuant to CALJIC No. 2.90, it was also told that it could infer that appellant had a disposition to commit similar offenses, and having that disposition, it could further conclude that appellant was likely to commit and, in fact, did commit the crime for which he was accused. (RT 796.) Thus, the jury was told that it need only find that appellant committed the prior offense in order to find him guilty of the charged crime, first degree murder. There was nothing in the instructions that told the jurors that a finding that appellant had a disposition to commit offenses against his wife was not sufficient, in and of itself, to prove his guilt beyond a reasonable doubt. Thus, no instruction reconciled the CALJIC Nos. 2.50.02 and 2.90.
At best, they create an instructional conflict, which is not cured as a matter of constitutional law for the separate reasons that the correct instructions do not specifically reference the incorrect ones (see Francis v. Franklin (1985) 471 U.S. 307, 322). Additionally, if the jury did perceive a conflict, then as a matter of common sense it would be more likely construe the more specific instruction, CALJIC No. 2.50.02, to prevail over the more general ones. (See, e.g., Cal. Civ. Code, § 3534; Cal. Code Civ. Proc., § 1859; National Insurance Underwriters v. Carter (1976) 17 Cal.3d 380, 386 [maxim that specific prevails over general, as applied to dealings among non-lawyers].)
In any event, there is nothing to indicate a jury would engage in this type of minute legal dissection. The judge instructs the jury on principles of law, and the jury does not question the judge or try to ascertain the legal reasoning behind the instructions. Here, the jury was told that if it found the defendant committed the prior uncharged offense by a preponderance of the evidence, that sufficed to prove disposition, and disposition was sufficient to prove the charged offenses beyond a reasonable doubt. The jury was expressly permitted to do exactly what the Constitution forbids, and there is nothing to show the jury did not do so.
II.
THIS ERROR IS A STRUCTURAL ERROR MANDATING REVERSAL.
This instructional error amounted to a structural error at trial in the misinstruction on the burden of proof that mandates reversal. Any instruction which undermines the requirement of the Sixth and Fourteenth Amendments–that a jury verdict find the charged offenses proved beyond a reasonable doubt–is reversible error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278-281.) Regardless of the evidence, there can be no “harmless error” analysis when the actual jury verdict may not have been a finding that the evidence proves the charged offenses beyond a reasonable doubt. “There is no object, so to speak, upon which harmless-error scrutiny can operate.” (Id., at p. 280.)
The fundamental importance of the requirement of proof beyond a reasonable doubt as a component of the right to trial by jury was clearly delineated in Sullivan v. Louisiana, supra, 508 U.S. 275. The Sullivan decision is “straightforward and uncompromising.” The Court held that a constitutionally deficient reasonable doubt instruction cannot be harmless error. (People v. Crawford (1997) 58 Cal.App.4th 815, 821.) Sullivan “concluded that the giving of a constitutionally deficient reasonable doubt instruction is among those constitutional errors that require reversal of a conviction, rather than those that are amenable to harmless-error analysis….The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt–not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.” (People v. Crawford, 58 Cal.App.4th at p. 822, fn. omitted, quoting Sullivan, supra, 508 U.S. at p. 280.) Justice Scalia explained the necessity for a reversal per se standard with a defective instruction on reasonable doubt in Sullivan v. Louisiana, supra, when he wrote: “[W]here the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings. A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’” (Id., at p. 281; emphasis added; See also People v. Vann (1974) 12 Cal.3d 220; People v. Phillips (1997) 59 Cal.App.4th 952; and People v. Elguera (1992) 8 Cal.App.4th 1214 [in all of these cases the misinstruction on the prosecution’s burden, to prove his case beyond a reasonable doubt, and the defendant’s right to the presumption of innocence, has been held to be reversible error notwithstanding reference to the proper standard in other instructions and during the argument of counsel].) This Court cannot employ any lesser standard.
Without an explicit discussion of the standard of review employed, the court in Vichroy reversed, stating: “The instruction permitted the jury to find appellant guilty of the current charges solely because he had committed prior sexual offenses. Because we cannot assume the jury followed the constitutionally correct conflicting instruction, the judgment must be reversed.” (People v. Vichroy, supra, 76 Cal. App. 4th at p. 101.) The court in People v. Orellano, supra, 79 Cal.App.4th 179 openly relied on Sullivan v. Louisiana, supra, in concluding that reversal was mandated by the very nature of the error: “The danger that the jury leaped to a verdict of guilty is too great for us to confidently assume the jurors arrived at a verdict beyond a reasonable doubt by a careful reasoning process involving all the other instructions. . . . Since we have no way of knowing whether the jury applied the correct burden of proof, the convictions must be reversed.” (People v. Orellano, supra, at p. 186.)
In this case, the court of appeal also noted the split of authority as to the proper standard of review. In this instance, the court of appeal, citing Yates v. Evatt (1991) 500 U.S. 391, 403-404, concluded that any error in the delivery of this instruction was harmless because the inference to be drawn from the instruction was utterly unimportant in relation to everything else the jury considered on the issue of appellant’s conduct and state of mind. (Exhibit A., at pp. 18-19.)
Appellant submits that the application of a reversible per se standard is the correct standard of review for error in a criminal case where the jury is incorrectly instructed on the burden of proof necessary to sustain a criminal conviction. Due process requires that the prosecution prove a defendant’s guilt beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) The Sixth Amendment requires that the jury, not the trial court, find the defendant guilty beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. 275, 278.; People v. Avila (1995) 35 Cal.App.4th 642, 655.) Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard” of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) “The Due Process Clause requires the government to prove a criminal defendant’s guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires.” (Id., at p. 22.)
If this Court chooses to look to the jury instructions as a whole to see if other instructions convey correctly the concept of reasonable doubt to the jury, reversal is still mandated. (Francis v. Franklin, supra, 471 U.S. 307, 315; see Victor v. Nebraska, supra, 511 U.S. at pp. 22-23; People v. Avila, supra, 35 Cal.App.4th at p. 658, fn. 9.) CALJIC No. 2.90 was given here by the trial court and it instructed the jury, in general terms, to both presume that a defendant is innocent and that the prosecution has the burden of proving guilt beyond a reasonable doubt. However, CALJIC No. 2.90 did not tell the jury that it superseded the uncharged crimes instructions, nor did the CALJIC No. 2.50.02 refer to CALJIC No. 2.90. There is a reasonable likelihood, therefore, that the jury concluded that the uncharged crimes instructions were more specific than the reasonable doubt instruction, and that they provided an alternate method of proving appellant guilty. This general instruction on the prosecution’s burden of proof thus did not clarify the uncharged crimes instructions. (See Francis v. Franklin, supra, 471 U.S. at pp. 319-320; see also, United States v. Sanchez-Lima (1998) 161 F.3d 545, 549 [“A specific instruction which is defective in respect to the burden of proof is not remedied by correct general statements of law elsewhere given in the charge unless the general statement clearly indicates that its consideration must be imported into the defective instruction”].)
CONCLUSION
For the reasons stated herein, appellant requests that his petition be granted.
Dated: August 21, 2000 Respectfully submitted,
CYNTHIA A. THOMAS
Attorney at Law
State Bar# 96180
5050 Laguna Blvd., Suite 112-329
Elk Grove, CA 95758
Telephone: (916) 682-6901
Attorney for Appellant
OPENING BRIEF FOOTNOTES (Footnotes 2-3):
Footnote 2:
The instruction given to the jury was as follows:
“Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in this case. . . .If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had the disposition to commit the same or similar type offense. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime for which he is now charged. . . . (RT 795-796.)
Footnote 3: In both of those cases, the issue concerned CALJIC No. 2.50.01, but as the court of appeal here noted, the same principles apply. (Exhibit A, at p. 13.)
