Brief Bank # B-867 (Re: F 2.90e [“Abiding Conviction,” Must Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard])
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Date of Brief: October, 2000.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
Plaintiff and Respondent, No. 4 Crim. E000000
v. (Riverside County
JOHN DOE, No. RI00000)
Defendant and Appellant
APPELLANT’S PETITION FOR REVIEW
To The Fourth District Court of Appeal, Division Two
Decision Filed August 23, 2000
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for the Appellant
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:
Appellant John Doe respectfully requests that this Court grant review of the decision of the Court of Appeal, Fourth Appellate District, Division Two, filed on August 23, 2000. A copy of the opinion of the Court of Appeal is attached as Exhibit “A.”
ISSUES PRESENTED FOR REVIEW
1. Did the trial court err in giving the revised CALJIC No. 2.90?
STANDARDS FOR REVIEW
Issue One. Review is sought under this Court’s power as this state’s highest court to correct errors below. (See O’Sullivan v. Boerckel (1999) 526 U.S. 838 [119 S.Ct. 1728, 144 L.Ed.2d 1].)
STATEMENT OF THE CASE; STATEMENT OF FACTS
The statements of the case and facts may be taken as set forth in the Court of Appeal opinion.
The sole issue raised in this petition deals with the revised CALJIC No. 2.90. (See also O’Sullivan v. Boerckel, supra, 526 U.S. at p. 845 [exhaustion for federal habeas requires that “state prisoners must give the state courts one full opportunity to resolve any constitutional issue by invoking one complete round of the State’s established appellate process,” including a petition for discretionary review where available].) No other issues are raised in this petition.
I. THE TRIAL COURT ERRED BY GIVING THE DECEMBER 1994 REVISION OF CALJIC NO. 2.90 [Footnote 1]
The reasonable doubt standard required by the Fourteenth Amendment mandates that each juror who votes for conviction must have an extremely strong belief in guilt, believing it is a “near certitude.” (Victor v. Nebraska (1994) 511 U.S. 1, 15 [114 S.Ct. 1239, 127 L.Ed.2d 583].)
That is not required by the revised CALJIC No. 2.90, given at RT 160. “Conviction” is defined as “a strong persuasion or belief.” (Merriam Webster’s Collegiate Dictionary (10th ed. 1996), p. 254.) “Abiding” has many meanings, the strongest of which for this purpose is “enduring” or “continuing.” (Id. p. 2.) Thus, “abiding conviction” is at most an enduring or continuing strong persuasion or belief. That is below what is required, as the jury wasn’t told its belief in appellant’s guilt had to be “near certitude.” It only had to be continuing and strong, which is not enough.
Appellant’s argument was expressly approved in the case of Alexander v. City of Kingfisher (1915) 12 Okla. Crim. 600, 600-601 [151 P. 1197, 1197], and expressly approved by the Oklahoma Supreme Court as to the synonymous phrase “abiding faith” in Patzwald v. United States (1898) 7 Okla. 232, 236-239 [54 P. 458, 459-460] [on which the Court in Alexander, supra, relied]. Both of these opinions reversed convictions on the same reasoning and analysis as appellant has proffered here. Appellant’s argument, that “abiding conviction” is a standard below proof beyond a reasonable doubt, also prevailed in the Mississippi Supreme Court case of Williams v. State (1896) 73 Miss. 820 [19 So. 826], which also assigned it as grounds for reversal of a conviction. (Id. at pp. 823, 830 [19 So. at pp. 826, 829]; see also Lipscomb v. State (1897) 75 Miss. 559, 577-578 [23 So. 210, 212] and id. at pp. 619-622 [23 So. at pp. 229-230] [conc. opn. of Thompson, J.] and id. at pp. 623-624 [23 So. at p. 230] [opn. of Whitfield, J., on reconsideration].)
The analysis in Patzwald v. United States, supra, which (as noted above) rejected an instruction which was based solely on the synonymous phrase “abiding faith,” well states appellant’s point:
“Abiding faith.” “Abiding” means continuing, permanent, durable. “Faith” means, as used in this connection, the assent of the mind to what is stated or put forward by another; trust or confidence in the veracity of another. An abiding faith would be a belief or confidence in the guilt of the accused, which remains or continues in the minds of the jury It is certainly true that, before a jury can convict a person charged with a crime, they must have an abiding faith of the truth of the charge of his guilt. But what degree of faith? How strong must that faith be, before it crosses the line which separates the realm of doubt from that of moral certainty? Of this, the court, when it attempted to explain or define these words, should have advised the jury. . . .
The law writers have defined “moral certainty” to be the state of impression produced by facts, in which a reasonable mind feels a sort of coercion or necessity to act in accordance with it; the conclusion presented being one which cannot, morally speaking, be avoided, consistently with adherence to truth. These words are very strong,—much stronger than an “abiding faith” in the guilt of the accused.
(Patzwald v. United States, supra, 7 Okla. at pp. 236, 238; see also People v. Brigham (1979) 25 Cal.3d 283, 299-300 [conc. opn. of Mosk, J.] [opinion cited with approval in People v. Freeman (1994) 8 Cal.4th 450, 528 [conc. opn. of George, J.] [“abiding conviction” refers solely to duration of jurors’ belief in guilt, but that is irrelevant to the concept of reasonable doubt, and the phrase “abiding conviction” is “singularly inapt” to convey the required intensity (rather than duration) of jurors’ belief in guilt; also noting that “moral certainty,” though obscure, was “the most crucial phrase of the [reasonable doubt] instruction”].) [Footnote 2]
On the contrary side, one sometimes sees references to the passage in Victor v. Nebraska, supra, 511 U.S. at pp. 14-15, which said: “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” (RB 40.) That passage doesn’t mean the U.S. Supreme Court has held that the new CALJIC 2.90 is constitutional.
Victor only spoke of an instruction “cast in terms of an abiding conviction,” not an instruction based solely on “an abiding conviction.” (Id., 511 U.S. at pp. 14-15 [citing Hopt v. Utah (1887) 120 U.S. 430, 439 [7 S.Ct. 614, 30 L.Ed. 708]].) Thus, while “abiding conviction” can constitutionally give meaning to another passage referring to strength of a juror’s convictions, permitting an instruction “cast in terms of an abiding conviction,” nothing in Victor says an “abiding conviction” by itself is constitutionally sufficient.
Hopt v. Utah, on which Victor relied in the passage above, also did not involve a definition of reasonable doubt based solely on “an abiding conviction.” (Indeed, cases such as Patzwald and Williams postdated Hopt, so those courts obviously didn’t consider Hopt to have approved an instruction based solely on “abiding conviction.”) Rather, Hopt defined “abiding conviction” as a belief so strong that a person would be willing to act upon it in the more weighty and important matters in a persons’s life. (Id., 120 U.S. at p. 439.) The revised CALJIC No. 2.90, by contrast, has no definition of “abiding conviction.” Similarly, the Hopt instruction had a reference to the required extremely high strength of the juror’s “abiding conviction”; there is no such reference in the CALJIC 2.90 revision.
A reasonable doubt instruction deficient under federal constitutional law is reversible per se. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280-281 [113 S.Ct. 2078, 124 L.Ed.2d 182].) The judgment should be reversed.
For all of the reasons above, petitioner respectfully asks this Court to grant review of the decision of the Court of Appeal, and reverse the judgment as set forth herein.
Dated: October 2, 2000.
S. Michelle May
Attorney for John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
Footnote 1: This argument has been rejected in numerous state published opinions, and appellant is unaware of any California opinion that has accepted it (although as noted herein, there are opinions elsewhere which have done so). A Ninth Circuit panel has also rejected the argument. (Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997.) However, given the severity of his sentence, appellant is duty-bound to raise this argument, until the U.S. Supreme Court finally adjudicates it or the law otherwise changes.
Footnote 2: Appellant does not take issue with the dictum of the U.S. Supreme Court in Victor v. Nebraska, supra, that the term “moral certainty,” although not constitutionally required, may be obscure to modern jurors. (See id., 511 U.S. at pp. 14, 16.) However, it is easy enough to update the Patzwald analysis for the year 2000. For example, as noted above, the U.S. Supreme Court has held that the standard of proof beyond a reasonable doubt requires the factfinder to “reach a subjective state of near certitude.” (Victor, 511 U.S. at p. 15.) Thus, as Victor makes clear, an instruction which defined proof beyond a reasonable doubt as “an abiding conviction to a near certainty” (particularly in the context of the remainder of CALJIC No. 2.90, see Victor, 511 U.S. at pp. 14, 16) should be constitutionally sufficient. (Not giving any definition at all would also be constitutional. (See, e.g., Miles v. United States (1880) 103 U.S. [13 Otto] 304, 312 [26 L.Ed. 481].))