Brief Bank # B-888 (Re: F 2.90e [“Abiding Conviction” Must Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, 3 Crim. No. C000000
Plaintiff and Respondent, San Joaquin Co.
Nos. SF0000000
v. SF0000000
ROBERT ROE and JOHN DOE,
Defendants and Appellants.
________________________________________/
APPELLANT JOHN DOE’S OPENING BRIEF
On Appeal from the San Joaquin County Superior Court
Honorable Bernard Garber, Judge
Robert V. Vallandigham, Jr.
State Bar No. 67875
333 Bush St., Ste. 2500
San Francisco, CA 94104
(415) 397-3540
Attorney for Appellant
John Doe
Under Appointment by the Court of Appeal
IV. THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT IN VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL WHEN HE TRIVIALIZED AND MISCHARACTERIZED THE CONCEPT OF REASONABLE DOUBT, AND THEN APPEALED TO THE PASSIONS AND PREJUDICES OF THE JURY
In order to demonstrate prosecutorial misconduct in violation of the Sixth Amendment right to a fair trial and mandating reversal, it is not necessary to establish that the prosecutor acted in bad faith. It is enough to simply demonstrate that the actions and words of the prosecutor had the net effect of prejudicing the defendant’s right to a fair trial. (People v. Ngyuen (1996) 40 Cal.App.4th 28, 35, citing People v. Bolton (1979) 23 Cal.3d 208, 213-214.) It is fundamental to our system of trial by jury that a defendant must be proven guilty beyond a reasonable doubt. (U.S. Const., Amends. V, VI, and XIV; Sullivan v. Louisiana (1993) 508 U.S. 275, 277, 113 S.Ct. 2078.) Appellant contends that in this case the prosecutor committed multiple instances of misconduct violating those constitutional guarantees in the manner he trivialized the reasonable doubt standard and by improperly appealing to the emotions of the jury by suggesting that they convict the defendants to protect themselves and those they know from being shot in the future.
After defense counsel had both presented their arguments, in his rebuttal argument the prosecutor asserted that reasonable doubt is something between the “51 percent” standard of preponderance of the evidence and “100 percent certainty.” (RT 1671.) Appellant objected when the prosecutor then explicitly argued that the phrase “abiding conviction of the truth of the charges,” means:
I think that that belief in the truth of those charges should last as long as the facts of this case are fresh in your mind. Whether that’s a month and you want to put us all out of your memory, or whether that’s five years, as long as those facts are fresh and you can tell – you can tell people about the evidence in this case, that’s a – (RT 1672.)
Defense counsel asserted that the prosecutor’s argument was a misstatement of the reasonable doubt standard, but the court rejected the objection noting that it would reading the reasonable doubt instruction and stating, “I don’t think he said anything that’s inconsistent so far. (RT 1672.) The prosecutor then told the jury it could decide for itself whether he had misstated the meaning of the phrase “abiding conviction,” but then repeated his assertion that it means “[a]s long as the facts are fresh, that’s how long your strong belief – your lasting belief should last.” (Ibid.)
After the jury was instructed, appellant Doe’s counsel reiterated his objections to the prosecutor’s closing arguments and requested a curative instruction regarding, inter alia, (1) the prosecutor’s improper and adverse reference to appellant’s invocation of his right to remain silent and not testify at trial, and (3) the prosecutor’s appeal to the emotions of the jury to the effect that they should convict the defendants not for the alleged victims of the shooting, but for the people who drive on West Lane. Appellant’s resulting motion for a mistrial was then denied. (RT 1721-1729.)
* * * * *
A. The Prosecutor Committed Misconduct When He Argued That Proof Beyond A Reasonable Doubt Is Something More Than 51 Percent Certainty And A Belief That Is Held Only As Long As The Jurors Remember The Facts Of The Case Just Like In Traffic Court.
The prosecutor’s assertion that reasonable doubt is somewhere between 51 percent and 100 percent certainty was grossly misleading. While literally true, that assertion proves nothing. It is also literally true that beyond a reasonable doubt is between one percent certainty and one hundred percent certainty, but no reasonable person, could ever assert with a straight face that making such an argument to a jury would be proper and not misleading.
When the prosecutor’s misleading description of reasonable doubt was combined with his next assertion that the phrase “abiding conviction of the truth of the charges” simply means holding a belief about the facts as long as the facts of the case are remembered by the jury, the prosecutor further violated appellant’s constitutional right to proof beyond a reasonable doubt and to a fair trial.
The People may argue that, even assuming it is the better practice to not use a “literally true” argument that reasonable doubt is somewhere between 51 and 100 percent certainty, giving CALJIC No. 2.90 to a jury later dilutes or cures any possible misconception that might be created in the minds of the jurors. Nothing could be further from the truth. If a prosecutor makes such an argument, the trial court refuses to instruct the jury that such an argument is misleading, and the court then reads the jury CALJIC No. 2.90, a layperson can draw only one logical conclusion: Whatever the amorphous language of CALJIC No. 2.90 means, it includes the definition of being between 51 and 100 percent certainty. Giving CALJIC No. 2.90 by itself does absolutely nothing to dispel the grossly misleading prosecutorial tactic designed to trivialize the People’s heavy burden of proof. (Cf. People v. Ngyuen, supra, 40 Cal.App.4th 28, 36 [prosecutor committed misconduct and misled the jury regarding the beyond a reasonable doubt standard of proof by analogizing it to decisions on whether to marry or change traffic lanes while driving].)
An apt analogy that demonstrates the grossly misleading nature of the “literally true” argument that proof beyond a reasonable doubt is somewhere between 51 and 100 percent certainty can be found in the fundamental rules of baseball. In order to score a run in baseball, it is necessary to go from home plate to first base, then to second base, then to third base, and then finally back to home. Of course, if one were to explain the procedure for scoring a run to a someone who had never seen a baseball game, it would be literally correct to say that a run is scored by going from home plate to first base, running to third base, and then returning home without mentioning the need to pass through second base. Such a statement would be “literally true,” but it would also be grossly misleading because any player who tried to shortcut the proper path around the bases and score without going through second base could never score a run. Another analogy can be drawn from sailing where a boat must pass the start line, round several markers, and then cross the finish line first in order to win. While it would be “literally true” that one must round half the markers and cross the finish line first in order to win a sail race, it would be grossly misleading to so describe the rules for winning a sailing race because it is necessary to round all of the markers and finish first in order to win a race.
The grossly misleading nature of the “literally true” statements referenced in the foregoing analogies applies equally to the arguments of the prosecutor in this case regarding the definition of reasonable doubt. Any juror assessing the evidence in an effort to determine whether the People have met their burden of proof to show guilt beyond a reasonable doubt must not only pass through more than 50 percent certainty the standard of preponderance. He or she must then go beyond the substantially higher standard of proof required to demonstrate clear and convincing evidence.
Only if the proof first exceeds the high burden for demonstrating clear and convincing evidence can it meet the quantum of proof specified by CALJIC No. 2.90. Proof by clear and convincing evidence is manifestly a much higher standard than a mere preponderance yet it falls far short of proof beyond a reasonable doubt. It is like second base in a baseball game, a position that must always be exceeded before one ever gets to third base. It is like rounding all of the intermediate marks in a sail race before one can round the final marker on the way to the finish line. Of course, appellant is not asserting that a prosecutor could properly equate the three burdens of proof to the three bases in baseball and thereby suggest that proof beyond a reasonable doubt equates to proof by a 75 percent or greater standard; rather, the point is that one cannot justify a prosecutor’s efforts to trivialize the reasonable doubt standard with the assertion that any statement that is “literally true” is not misleading and therefore perfectly proper.
The prosecutor’s improper attempt to trivialize and mischaracterize the reasonable doubt standard was further demonstrated by his immediate reference to traffic court as an appropriate example of where the “in between” 51 percent and 100 percent certainty reasonable doubt burden of proof is employed:
It’s the same standard they use downstairs in the basement in traffic court when that officer comes in and says, yeah, I testified. I clocked this guy at 85 or whatever and the judge says, fine, pay your fine. It’s the same standard they use down there. (RT 1671.)
Once again, it is a truism that traffic court commissioners and judges are required to apply the reasonable doubt standard in determining traffic law infraction matters. On the other hand, the circumstances and procedures whereby that standard of proof is applied in traffic court are markedly different from the circumstances and procedures followed in a superior court where the jury is deciding far more complicated evidentiary matters and where substantial issues of guilt on charges like attempted murder and assault by firearm are at stake. It was certainly no mere happenstance that the prosecutor followed his more than 51 percent certainty mischaracterization of the reasonable doubt standard with a reference to traffic court. At a minimum, most people who find it necessary to appear in a traffic court setting witness a situation where an experienced traffic court judicial officer disposes of large numbers of cases in short periods of time with no jury, little in the way of contested testimony and evidence, and with virtually no time for deliberation before justice is dispensed. The prosecutor’s assertion that an abiding conviction means a belief only as long as the facts of the case can be remembered, combined with a pointed reference to traffic court dispositions where a judicial officer handling a high volume of cases is not likely to remember the facts of any given case the next day, was a clever strategy designed to trivialize and minimize the high burden of proof borne by the People in appellant’s case. The not so subtle message the prosecutor conveyed to the jury by combining the “between 51 percent and 100 percent certainty” standard with his references to traffic court and misleading explanation of the phrase “abiding conviction” was that appellant’s jury had a quick and easy task before it where a long carefully. In other words, the prosecutor trivialized the burden of proof so that when the court later read the amorphous words of CALJIC No. 2.90 to the jury, the jurors would think of the high speed, high volume, and limited deliberation inherent in the traffic court process. Perhaps the prosecutor also intended to play on the incorrect belief shared by many unhappy traffic court participants that effectively one is presumed guilty if they have been cited for a traffic violation must carry a heavy burden to convince the court of one’s innocence in order to obtain one of the rare acquittals that occur in that setting.
In sum, asserting to a jury, as the prosecutor did in this case, that proof beyond a reasonable doubt is simply something between 51 and 100 percent certainty, requiring a belief in one’s conclusion that lasts only as long as the juror remembers the facts just like down in the basement in traffic court is grossly misleading. It is prosecutorial misconduct of the most basic kind and violates a defendant’s constitutional rights to proof beyond a reasonable doubt and to a fair trial.
CONCLUSION
There is insufficient evidence to support to the convictions. The prosecutor committed prejudicial misconduct by trivializing the reasonable doubt standard and improperly appealed to the emotions of the jury. The trial court committed instructional error when it compounded the prosecutor’s misconduct by instructing the jury that proof beyond a reasonable doubt is somewhere between 50 and 100 percent certainty mandating reversal per se. The court’s instruction on reasonable doubt in the language of CALJIC No. 2.90 taken from Penal Code section 1096 denied appellant his constitutional right to equal protection of the law because that instruction provides no adequate standard for determining the level of certainty to which the jury must be persuaded in order to assess whether the People have carried their burden of proof. Even if the Chapman standard of error applies, the error was prejudicial. For these reasons, appellant’s convictions and sentence should be reversed.
DATED: May 4, 2001
Respectfully submitted,
By _________________________
Robert V. Vallandigham, Jr.
Attorney for Appellant
John Doe
