Brief Bank # B-883 (Re: F 17.02 n21 [IAC For Failure To Request Instruction That Charges Must Be Considered Separately].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v. (Los Angeles 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 Los Angeles
THE HONORABLE MEREDITH C. TAYLOR, 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
California Appellate Project on an independent case basis
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST
CALJIC No. 17.02, INFORMING THE JURY THAT EACH COUNT
STATED A DISTINCT CRIME AND HAD TO BE DECIDED SEPARATELY.
Appellant was charged with three distinct crimes. The murder charge in count 1 was based on the shooting on Lehigh Street, while the charges in counts 2 and 3 were based on the shooting at Cayuga Street.
Given that he was charged with three separate crimes based on two entirely different incidents, appellant was entitled to have the jury instructed that it decide each count separately from the other counts. (CALJIC No. 17.02 (6th. ed.).) That instruction is based on the fundamental principle that the prosecution must prove the elements of each crime beyond a reasonable doubt. (In re Winship, supra.) CALJIC No. 17.02 reads in relevant part:
“Each count … charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all … of the crimes charged in counts _____. Your finding as to each count must be stated in a separate verdict.”
While the trial court did not have a sua sponte obligation to give CALJIC No. 17.02 (People v. Beagle (1972) 6 Cal.3d 441, 456), trial counsel was ineffective in failing to ask for this critical legal instruction which would have informed the jury of their duty to decide each count separately.
The failure of trial counsel to request and the court to give this instruction infringed upon appellant’s state and federal constitutional right to due process, a fair trial, and a jury trial, and appellant was deprived of his state and federal constitutional right to the effective assistance of counsel at trial.
A. Trial counsel was deficient in failing to ask that CALJIC No. 17.02 be given.
A criminal defense attorney not only has the obligation to conduct a thorough factual investigation into the case, but he or she also has the duty to conduct the necessary legal research and provide the court with the appropriate instructions. (People v. Ledesma, supra, 43 Cal.3d at p. 217-219; People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other grounds, People v. Breverman (1998) 19 Cal.4th 142, People v. Flannel (1979) 25 Cal.3d 668, 685.) (See also Freeman v. Class (8th Cir. 1996) 95 F.3d 639 [counsel ineffective for failing to request cautionary instruction regarding accomplice testimony; Luchenburg v. Smith (4th Cir. 1996) 79 F.3d 388, 392 [counsel ineffective for failure to request instruction accurately explaining state law precluding conviction on compound gun charge].)
The California Supreme Court has held that a trial court does not have the sua sponte obligation to give CALJIC No. 17.02, even though the court has noted that “… the instruction is a useful one in any case of multiple charges and is properly given on request. …” (People v. Morris (1991) 53 Cal.3d 152, 215, overruled on other grounds, People v. Stansbury (1995) 9 C.4th 824, People v. Ochoa (1999) 19 C.4th 353.) Thus, trial counsel here was obligated to review the two volumes of CALJIC and decide which instructions were necessary for appellant to receive a fair trial. A reasonably competent attorney who did the necessary legal research would have easily discovered CALJIC No. 17.02, and would have requested that instruction given that the three counts were based on two separate shooting incidents.
The underlying facts of this case cried out for this instruction to be given. In count 1, appellant was charged with murder as a result of the shooting death of a young man on a sidewalk on Lehigh Street. There was no eyewitness to the actual shooting itself, but a teenage girl saw two masked men jump into a car and flee the scene. In counts 2 and 3, several eyewitnesses testified at trial for the prosecution and defense. Only one prosecution eyewitness identified appellant as being the driver of the automobile in question.
Here, there was both distinct and overlapping evidence in regard to the two shootings. The different evidence was that there were several eyewitnesses to the actual shooting on Cayuga Street, while there were no actual eyewitnesses to the shooting on Lehigh Street. However, there was considerable overlapping evidence in that there was forensic evidence that the same two handguns were used to fire the shells found at both crime scenes. There was also testimony from witnesses in both incidents that a four-door dark blue or black car was used.
Without this instruction to properly guide it during its deliberations, the jury could have easily used the evidence from counts 2 and 3 to find appellant guilty in count 1. Likewise, the jury could have also used the evidence from count 1 to find appellant guilty in counts 2 and 3. It is reasonable to conclude that the jury could have done so in this case because of the relatively weak evidence, especially in regard to count 1. There was no actual eyewitness to the shooting in count 1, so the jury could have used the testimony from witnesses to the Cayuga Street shooting to find appellant guilty in count 1.
A reasonably competent attorney would have been aware of these issues by the end of trial and would have asked the court to give CALJIC No. 17.02 to address these issues. Given the seriousness of these charges and the multiple counts, trial counsel was under an obligation to request this instruction since the trial court had no obligation to give it on its own. (People v. Morris, supra, 53 Cal.3d at p. 215.) There could be no informed, tactical reason for counsel not to request this instruction under the facts of this case. Therefore, counsel was ineffective in failing to request this instruction.
B. Appellant was prejudiced by counsel’s failure to request this instruction.
If counsel had requested this critical legal instruction, it is reasonably probable that appellant would have received a more favorable result because appellant may have been acquitted in counts 1, 2, and/or 3.
Given the multiple charges and the nature of the evidence in regard to each count, it is reasonable to conclude that the jury used evidence from one count to fill in the evidentiary gaps in the other counts. Had the jury been properly instructed, it would have known not to use the evidence from the Cayuga Street shooting to find appellant guilty in count 1, and vice versa.
For the reasons stated in more detail in Argument I, ante, the evidence was relatively weak as to all three counts, especially count 1 where there was no direct evidence that appellant participated in the Lehigh Street shooting. When considered with the trial court’s other instructional error in regard to how the jury should have considered the gang evidence (see Argument III, ante), counsel’s failure to request this instruction and the court’s failure to give it is reversible error. Therefore, appellant’s convictions in counts 1, 2, and 3 must be reversed.
For the above-stated reasons, appellant’s convictions and special circumstances findings should be reversed or stricken for the reasons stated in Arguments I, II, III, IV, V, and VI. If not reversed for those reasons, the gun use enhancements on all three counts must be stricken for the reasons stated in Arguments VII, VIII, and IX. Otherwise, appellant’s sentence should be modified for the reasons stated in Arguments X, XI, and XII.
Dated: March __, 2001.
Attorney for Appellant