Brief Bank # B-881 (Re: F 8.26 n3 [CJ 8.26 Improperly Expanded The California Felony Murder Rule].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, No. F00000
Plaintiff and Respondent, SCN: 200000
v. (Merced County)
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the Superior Court
of the State of California
for the County of Merced
THE HONORABLE DENNIS A. CORNELL, JUDGE
KIM MALCHESKI #98181
Attorney at Law
P.O. Box 40105
San Francisco, CA 94140
Attorney for Appellant
Under appointment by the
Court of Appeal through the
Central California Appellate Program
on an independent case basis
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO GIVE
CALJIC NO. 8.26 — FIRST DEGREE FELONY MURDER IN
PURSUANCE OF A CONSPIRACY — WHICH UNFAIRLY
EXPANDED THE CALIFORNIA FELONY MURDER RULE.
The trial court committed reversible error here by giving the 1998 revision of CALJIC No. 8.26, defining first degree felony murder in pursuance of a conspiracy. (CT 564, RT 1093-1094.) That instruction as given here read as follows:
“If a number of persons conspire together to commit the crime of kidnapping for a robbery, or kidnapping, or carjacking, or robbery, and if the life of another person is taken by one or more of them in the perpetration of, or an attempt to commit that crime, and if the killing is done in furtherance of the common design and to further that common purpose, there is an ordinary and probable result of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” (CT 564, RT 1093-1094.)
As given here, CALJIC No. 8.26 is an erroneous statement of California law as it pertains to co-conspirator liability under the first degree felony murder rule codified in Penal Code section 189. That instruction in effect creates an expanded type of first degree felony murder which is not authorized by Penal Code section 189 or California case law, and which unfairly expands first degree felony murder liability in California. Furthermore, that instruction uses vague and undefined legal phrases, which failed to give appellant constitutionally sufficient notice of his potential liability for first degree felony murder.
A. This legal issue is cognizable on appeal.
California courts have consistently held that instructional errors may be raised on appeal and considered by appellate courts without an objection by trial counsel. (People v. Carpenter (1997) 15 Cal.4th 312, 380-381 [defendant may challenge on appeal the preponderance of the evidence standard for other crimes evidence without the proper legal objection]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291 [lying in wait murder instruction could be reviewed on appeal without objection at trial]; People v. Godwin (1995) 31 Cal.App.4th 1112, 1116 [court’s definition of “wrongfully” could be reviewed on appeal without objection]; People v. Hall (1989) 208 Cal.App.3d 34, 47 [instruction on unjoined perpetrator could be reviewed on appeal without objection]; and People v. Andersen (1984) 26 Cal.App.4th 1241, 1249 [DUI instruction reviewable on appeal without objection].)
Jury instructions which affect the “substantial rights of the defendant” may be reviewed on appeal without objection. (Penal Code § 1259.) CALJIC No. 8.26 is certainly an instruction which affects the substantial rights of a defendant because it permits an accused to be convicted of first degree felony murder under the theory of co-conspirator liability.
California courts have also held that federal constitutional claims may be raised for the first time on appeal. (People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173; People v. Allen (1974) 41 Cal.App.3d 196, 201, fn. 1; People v. Norwood (1972) 26 Cal.App.3d 148, 153.)
If this court deems this issue to have been waived on appeal, then trial counsel’s failure to object to this instruction on these grounds constitutes ineffective assistance of counsel under the state and federal constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668.) Trial counsel was ineffective here in failing to object to this instruction because the prosecution heavily relied upon this instruction and this type of expanded first degree felony murder liability during his closing argument. (RT 1140-1143.) There could be no conceivable reason for counsel not to object to this instruction; therefore, his omission could not have been the result of an informed tactical decision. (People v. Pope (1979) 23 Cal.3d 412, 425-426.)
B. CALJIC No. 8.26 unconstitutionally expands the California felony murder rule.
The felony murder rule is a very strict rule of criminal liability which, in California, imposes a potential life or life without the possibility of parole sentence, on someone who intentionally, unintentionally, or accidentally kills someone during the commission of certain specified felonies within section 189. An aider and abettor, who does not intentionally or actually kill someone, may be convicted of first degree murder and sentenced to 25 years to life in state prison for the crime of driving a getaway car during a robbery where someone is killed during their flight. Defendants may also receive the death penalty, or life without parole, if the relevant felony murder special circumstance applies, which does not even require an intentional murder. (Penal Code § 190.2(a)(17).)
The California Supreme Court has repeatedly stated that “felony murder is a highly artificial concept which deserves no extension beyond its required application.” (People v. Dillon (1983) 34 Cal.3d 441, 463.) The Supreme Court has warned against a strict application of that rule “because in almost all cases in which it is applied it is unnecessary and it erodes the relation between criminal liability and moral culpability.” (Ibid., internal quotations and citations omitted.) “Although it is the law in this state, it should not be extended beyond any rational function that it is designed to serve.” (People v. Washington (1965) 62 Cal.2d 777, 783, citations omitted.)
Because of the strictness of the felony murder rule, the Supreme Court has given the doctrine the narrowest possible application consistent with its ostensible purpose, which is to deter those engaged in felonies from killing. (People v. Satchell (1971) 6 Cal.3d 28, 34, overruled on another ground, People v. Flood (1918 Cal.4th 470). Accordingly, the Supreme Court has restricted the scope of the felony rule by holding it inapplicable to felonies that are an integral part of and included in the homicide, such as felony assaults. (People v. Ireland (1969) 70 Cal.2d 522.)
By ascribing first degree felony murder liability to a co-conspirator, CALJIC No. 8.26 ignores the fundamental nature of the crime of conspiracy as an inchoate crime. (United States v. Feole (1975) 420 U.S. 671, 694.) Conspiracy does not require the commission of the substantive offense that is the object of the conspiracy. (People v. Manson (1977) 71 Cal.App.3d 1, 47.) The crime of conspiracy is defined by Penal Code sections 182 and 184 as two or more persons conspiring together to commit any crime, along with proof of the commission of an overt act by one or more of the parties to that agreement.
Conspiracy is a specific intent crime that requires intent to agree or conspire, and the intent to commit the offense which is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600.) All conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberate first degree murder. (People v. Cortez (1998) 18 Cal.4th 1223.) A conspiracy requires that one of the co-conspirators commit an overt act. That overt act does not need to constitute the intended crime, or even an attempt to commit the crime which is the object of the conspiracy. Most importantly, the overt act does not even need to be a criminal act. (CALJIC No. 6.10.5.)
The language of CALJIC No. 8.26 must be viewed within the context of California conspiracy law, and the felony murder rule in California. One problem with this instruction is that conspiracy is an inchoate crime. As an inchoate crime, a co-conspirator may commit the crime of conspiracy without necessarily committing the object of that conspiracy. Unlike aiding and abetting, which is a separate theory of liability for a target offense, conspiracy is a separate and independent crime with its own requisite legal elements. One of those elements is the commission of an overt act, which need not be criminal.
Aiding and abetting liability pursuant to Penal Code section 32 is fundamentally different from conspiracy, because the aider and abettor, who may be liable for the natural and probable consequences of the target offense, must knowingly and intentionally aid and abet a target offense which is a crime. (CALJIC No. 3.02 (2000 revision); People v. Prettyman (1996) 14 Cal.4th 248.) CALJIC No. 3.02 now requires that the target offense for aiding and abetting be specifically defined.
CALJIC No. 8.26 is based on outdated notions of the law as it relates to conspiracy, the first degree felony murder rule in California, and the natural and probable consequences doctrine. The comment to CALJIC No. 8.26 states that the instruction is based in part on the decision in People v. Harper (1945) 25 Cal.2d 862; a 1945 Supreme Court decision based on the much older decisions in People v. Kaufman (1907) 152 Cal. 331, and People v. Holmes (1897) 118 Cal. 444.
The trial court’s error in giving CALJIC No. 8.26 here was compounded by the giving of CALJIC No. 6.11, which further expands conspiracy liability under the felony murder rule. (CT 572-573.) That instruction permits the jury to find a co-conspirator guilty of a crime which is the “natural and probable consequence” of the criminal objective of that conspiracy. (Ibid.) In the court’s version of CALJIC No. 6.11, the court did not denote the specific felonies the defendants had to commit to come within the purview of that instruction. (Ibid.)
The California Supreme Court has held that section 189 is the statutory enactment of the first degree felony murder rule, which does not require malice. (People v. Dillon, supra, 34 Cal.3d 441.) The Dillon court explained that there are only two kinds of first degree murder in California: deliberate and premeditated murder with malice, and first degree felony murder as defined by section 189. (Id. at pp. 476-477.) There are no other types of first degree felony murder — as opposed to second degree felony murders — because first degree felony murder is defined by statute only. (Ibid.)
It can now be said that there is a third kind of first degree murder, as defined by section 189. The third kind of first degree murder is statutory first degree malice murder by means of a destructive device, poison, lying in wait, torture, etc.. (Penal Code § 189; People v. Mattison (1971) 4 Cal.3d 177, 183-184.) These “statutory” first degree murders are substitutes for deliberation and premeditation, but they are not substitutes for malice aforethought. (People v. Diaz (1992) 3 Cal.4th 495, 538 [murder by poison].)
CALJIC No. 8.26, especially when read with CALJIC No. 6.11, in effect establishes a new type of first degree felony murder, which is contrary to section 189 and California case law. There are now only three kinds of first degree murder as defined by section 189; all other types of murder are second degree murder as a matter of law. While aiders and abettors may be liable for first degree murder for the natural and probable consequence crimes of target crimes they knowingly and intentionally aid and abet, that aiding and abetting doctrine does not necessarily apply to co-conspirator liability. As previously explained, conspiracy is a separate and independent crime, while aiding and abetting liability is a theory of criminal liability.
These instructions are fatally flawed because conspiracy is an inchoate crime which does not require the commission of a target crime, and may be proven with only the commission of an overt act. CALJIC No. 8.26 reduces the prosecution’s burden of proof by eliminating or reducing the causation requirement that the murder occur during the commission of the predicate felony as defined by section 189. (People v. Cooper (1991) 53 Cal.3d 1158 [for felony murder liability, a robbery is not complete until the perpetrator has reached a place of temporary safety].)
Furthermore, these instructions are flawed because they employ legal phrases which are not defined within the instruction, or by other instructions. CALJIC No. 8.26 uses the phrases “common design,” “common purpose,” and “ordinary and probable result.” That instruction does not define what “ordinary and probable result” means within the meaning of that instruction. It is unclear whether that phrase has the same meaning as “natural and probable consequences” as used in CALJIC Nos. 3.02 and 6.11. The trial court here had a sua sponte duty to explain phrases and words which have a technical legal meaning. (People v. McElheny (1982) 137 Cal.App.3d 396, 403; People v. Hill (1983) 141 Cal.App.3d 661, 668.)
C. The giving of these instructions here requires reversal of appellant’s murder conviction.
Appellant’s first degree murder conviction, and the felony murder special circumstances thereon, must be reversed because there is a reasonable likelihood that the jury applied these erroneous instructions in a way that violated the federal constitution. (Boyde v. California (1990) 494 U.S. 370, 380.) The murder charge was presented to the jury under several different theories: premeditated first degree murder, first degree felony murder, and the erroneous co-conspirator theory of first degree felony murder incorporated in these instructions. The district attorney argued three separate theories of first degree murder liability to the jury and heavily relied upon the incorrect theory contained within CALJIC No. 8.26. (RT 1136-1143.) The district attorney strenuously argued that both defendants were guilty of first degree murder under the theory that they were co-conspirators of murder. (RT 1142.) The jury’s verdict does not specify which theory of first degree murder it based its verdict on, but it is reasonable to conclude from the felony murder special circumstance findings that they based their first degree murder verdict on felony murder. Given that an incorrect legal theory of first degree murder was presented to the jury and strenuously argued by the district attorney, reversal is required because it is not possible to determine from the verdict that the jury found appellant guilty of first degree murder on a proper theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1131.)
Furthermore, the giving of these erroneous instructions here was highly prejudicial because of the perjurious testimony of Ms. J and Ms. G. While this was a brutal killing, appellant testified that there was no plan to kill Mr. T. (RT 991-992.) The testimony of the three girls and appellant shows that once the decedent began kicking back at them, things spiraled out of control and he was beaten to death, possibly by the two girls.
That factual scenario suggests that Mr. T may have died as of the result of a felony assault, which would invoke the merger doctrine of People v. Ireland, supra, 70 Cal.2d 522. When a homicide results from a felony assault, the merger doctrine precludes a first degree felony murder conviction. (Ibid.) Likewise, a conspiracy to commit a felonious assault cannot be a predicate felony for the first degree felony murder rule. (People v. Baker (1999) 74 Cal.App.4th 243.)
For these reasons, the giving of these instructions which permitted the jury to find appellant guilty of first degree murder under a legally invalid theory of first degree murder in California violated appellant’s state and federal constitutional rights to due process, a fair trial, and a jury trial under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. Thus, appellant’s first degree murder conviction, and the felony murder special circumstances based thereon, must be reversed.
For the above-stated reasons, appellant’s convictions should be reversed for the reasons stated in Arguments I, II, III. If not reversed for those reasons, the appellant’s sentence should be modified for the reasons stated in Argument IV.
DATED: November __, 2000
Attorney for Appellant