Brief Bank # B-922 (Re: F 1.22 n1 / 5.12 n9 / F 5.15 n1 / F 5.50 n1 / F 5.51 n2 / F 5.17 n14 / F 5.17 n15 [Improper To Give CJ 1.22 (Definition Of Malice) In A Murder Case / Imperfect Self-Defense Without Intent To Kill: Requires Sua Sponte Instruction On Voluntary Manslaughter/ Failure To Request Antecedent Threats Instruction As IAC / Self-Defense: Sua Sponte Duty To Instruct / Imperfect Self-Defense Instruction Should Be Included With Manslaughter Instructions].)
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NOTE: The text of the footnotes appear at the end of the document.
EXCERPT FROM BRIEF
STATEMENT OF APPEALABILITY
This appeal follows a final judgment and sentencing in a criminal proceeding and is expressly authorized by Penal Code Section 1237. [ Footnote 1]
STATEMENT OF THE CASE
Appellant, John Doe, was charged by information filed October 12, 1994, with one count of first degree murder with a firearm (§ § 187, 12022.5.) On July 18, 1995, appellant was acquitted of first degree murder and found guilty of second degree murder, and the firearm enhancement allegation was found to be true. Appellant was sentenced to fifteen years to life plus four years for using a firearm. On March 2, 1998, this court reversed appellant’s conviction (F024536) on the ground that the jury instruction on unreasonable self-defense was defective. (CT 3.)
Appellant’s first retrial began on August 10, 1998, and ended with the court declaring a mistrial on August 14, 1998. [Footnote 2] On October 5, 1998, appellant’s second retrial began and concluded on October 8, 1998, with the jury finding appellant guilty of second degree murder and finding the firearm use allegation to be true. (CT 192, 201.) Appellant was sentenced on November 5, 1998, to fifteen years to life plus four years. (CT 312.) The court awarded appellant 1,755 days presentence credits and imposed restitution fines of $200 (§ § 1202.4, 1202.45.) Appellant filed a timely pro se notice of appeal on December 9, 1998. (CT 316.)
STATEMENT OF THE FACTS
A. Summary of The People’s Evidence
In September 1994, appellant lived with his father, Mr. Doe Sr., his brother, Jim Doe, Mr. H [Footnote 3], and Mr. N, on Wood Street in Bakersfield. (RT 31.) Appellant, Mr. H, and Mr. N grew up in the same town in Mexico. (RT 56.) Mr. N had the reputation as a bully who had been in many fights and had hurt a number of people in Mexico. (RT 47-48.) On Sunday September 11, 1994, Mr. N took a pair of appellant’s shoes and refused to return them when appellant asked for them. (RT 31-32.)
When Mr. N repeatedly refused to return appellant’s shoes, appellant bent down to retrieve the shoes. Mr. N grabbed appellant by the neck, then put his forearm across appellant’s throat and grabbed his bicep with his other hand to reinforce his choke hold on appellant. (RT 32-33, 46.) Mr. N then threw appellant on the bed where he continued to choke him. (RT 46-47.) Appellant was helpless and his face changed color because he could not breathe. (RT 47-48.) Rodriguez observed what was happening to appellant but did nothing. Appellant’s brother, Jim Doe, came in and first repeatedly told Mr. N to get off of appellant and when he continued to choke appellant, Jim Doe pulled Mr. N off of appellant. (RT 48-49.) Appellant got up, went to the kitchen, and grabbed a small kitchen knife which his father took from him. (RT 33, 49.) Mr. N told appellant, that if appellant did not kill him with the knife, he would kill appellant and his family, and appellant was very close to his father. (RT 33, 49.) Mr. N was angry because Jim Doe had interfered in his attempt to strangle appellant. (RT 33.)
Rodriguez, appellant, his father, and brother all worked at the same location in the fields, and Mr. N worked at another location. (RT 34, 51.) Appellant and the others went to work on Monday and again on Tuesday September 13, 1994. When Rodriguez got home from work on Tuesday, appellant was sitting in his family’s car and Mr. N, who had arrived with a friend, was standing in the driveway. (RT 37.)
Mr. N appeared tranquil and was conversing with Rodriguez. (RT 37.) After about forty minutes, appellant approached them and asked Mr. N to please return his shoes. (RT 38.) Mr. N, who had earlier removed his shirt, refused to do so, became angry, raised his fists in a fighting position, and immediately stepped forward to hit appellant. (RT 39, 56.) Appellant retreated, and then pulled out a gun from his waistband and fired three shots. (RT 40, 59.) The first shot hit Mr. N in the right bicep, and the second and third shots were fired rapidly after that. (RT 57-58.) When Mr. N fell to the ground after the second shot, appellant ran towards him and fired a third shot. (RT 42.)
A .22 caliber revolver with three spent casings and six live rounds was recovered near the body. (RT 77, 81.) Mr. N died due to a penetrating lacerations of the brain. (Supp. CT p. 7; ex. 7). After the shooting, appellant took the bus and went to his sister’s home in Los Angeles, where he was arrested and questioned on September 14, 1994, at about 5 a.m. by Kern County deputy sheriff, Alfonso Crespo. (RT 65.) Appellant was interrogated in Spanish, and his forty minute statement was recorded and then transcribed by the People. Because the tape was in Spanish, neither the tape nor the transcript were introduced into evidence.
A, Appellant’s Statement
Deputy Crespo testified that appellant admitted that he had shot Mr. N and stated that he had bought the gun on Sunday at the swap meet. (RT 66-67.) Appellant went into the house on Tuesday and got the gun while Mr. N was talking to his father. (RT 67.) Mr. N grabbed appellant’s shoulder after the first shot and appellant fired a second shot aiming for Mr. N’ shoulder, but because Mr. N moved, the shot hit him in the face, and he fell to the ground. (RT 68.) Appellant fired a third shot which hit Mr. N in the back of the head. (RT 68.)
Appellant told Crespo about an incident which had occurred two days earlier, that Mr. N threatened him when he asked for his shoes back, and that he believed that Mr. N was going to hurt him and his family. (RT 70-71.)
B. Summary Of Defense Case
Psychologist, James Sanderson, Ph.D., who examined appellant prior to his original trial in 1995, concluded that he suffered from paranoid schizophrenia. (RT 134.) Dr. Sanderson described appellant as being severely disturbed and highly vulnerable to react emotionally rather than rationally when under stress. (RT 133-134.) He regarded appellant as highly vulnerable and in danger of his emotions overwhelming his ability to think logically under stressful situations. (RT 135, 167.) His evaluation showed that appellant functions in the low range of intelligence and has serious problems thinking clearly and perceiving accurately. (RT 167-168.)
Appellant told Dr. Sanderson that Mr. N had threatened to kill him and his family and that he was afraid Mr. N would carry out his threat.
(RT 167.) Appellant’s self concept is such that he feels he is likely to lose in a fight and is fearful of people who seem stronger than him. (RT 135.) Dr. Sanderson did not know whether appellant’s perception was related to his small stature. (RT 135.) On cross-examination, Dr. Sanderson explained that pulling a knife on someone, even after a fight has been broken up, is consistent with the person pulling the knife being afraid. (RT 138.) Sometimes, people are so afraid that they feel pressed to do something or due to feelings of inferiority to prove that they are grown-up. (RT 138.)
Mr. R, who grew up with appellant and Mr. N in Mexico, characterized appellant as a good person and Mr. N as a violent person. (RT 98-99.) Mr. N had a reputation as a fighter, a bully, and an angry, violent man capable of hurting people. (RT 112.) Mr. N rode around their town on a horse and struck people with his whip. Mr. R had to defend his life when Mr. N was on his horse. (RT 105.) Mr. N broke up parties and dances with his fighting. (RT 99-100.) Mr. R had never known appellant to fight. (RT 100.) Mr. R had last seen appellant and Mr. N in Mexico in early 1994. (RT 101, 106.) Mr. N was much better built than was appellant. (RT 106.)
In November 1993 or early 1994 in Mexico, Mr. N and about twenty of his followers threw rocks at Mr. R’s house because he had provided sanctuary to a thirteen-year-old boy they were chasing. (RT 99-104, 110.) Mr. N wanted to come into Mr. R’s house to get the boy, but he refused to let him. (RT 108.) Mr. R reported the incident to the police who had an order to arrest Mr. N. (RT 110.) Mr. N left Mexico because the police were looking for him. (RT 99, 111.)
Appellant’s brother, Jim Doe, testified that when he entered their house on Sunday September 11, 1994, Mr. N had appellant down on a mattress and was choking him. (RT 113.) When Jim Doe walked into the house, Mr. H walked out. (RT 120-121.) Appellant’s face was turning purple from Mr. N choking him. (RT 120.) When Mr. N refused to let go of appellant, Jim Doe pulled him off of appellant and threw him out the door. (RT 113-114.) Mr. N left but as he was leaving, he was angrily hitting the fence and threatening to come back and kill appellant and his family. (RT 114.) Appellant heard Mr. N make those threats. (RT 119-120.)
On Tuesday when Jim Doe, appellant, and their father got home from work, Mr. N was there with Mr. C. (RT 114-115.) When Jim Doe saw Mr. N get out of the truck and remove his shirt, he recognized that as a sign that Mr. N was ready and in the mood to fight. (RT 116, 124-125.) Appellant was still in the family car where Jim Doe had told him to stay. (RT 126.) Jim Doe then went to the store with Mr. C, and when he returned, he saw his father looking nervous and sick and Mr. N lying on the ground. (RT 115.)
Jim Doe described his family as peaceful and appellant as not knowing how to fight well. (RT 118.) He described Mr. N as well-built and muscular and as having beat many people in Mexico by hitting them from behind with sticks or rocks. (RT 119.) Mr. N did not need a weapon to kill appellant; he could have killed him with his hands or with rocks or sticks. (RT 128.)
Appellant testified in his own behalf. Appellant lived in Mexico but periodically came to the United States to work in the fields with his father and brother. (RT 179.) Mr. N was living with appellant’s father and brother when appellant arrived. (RT 179.) Appellant is five-feet-three-inches tall and weighed between 148 and 150 pounds. [Footnote 4] (RT 180, 204.) Appellant had seen some of Mr. N’s fights in Mexico. (RT 182.) Appellant was afraid to fight because if you get knocked to the ground, you do not get up and you get beat up badly. (RT 182.)
Mr. N had sexually molested appellant by grabbing his buttocks while he was asleep. (RT 172.) When appellant told Mr. N to stop, Mr. N tried to persuade appellant by telling him that no one would know. (RT 172.) On Sunday, Mr. N took a pair of work shoes from appellant which were not worth very much money but were important to appellant because they were the shoes he wore to the swap meet. (RT 174-175.) Appellant asked Mr. N three times to return the shoes, and when he refused, it “went to [appellant’s] heart, and he grabbed Mr. N’s leg. (RT 176.)
Mr. N, who was a good fighter, was on top of appellant choking him until his throat closed and he did not think he could draw another breath. (RT 171.) Appellant was very scared and did not fight back. (RT 171.) Mr. H just stood there and did nothing to help appellant. (RT 176.) Appellant’s brother saved him. (RT 176.) Appellant then went to the kitchen and got a small knife from the wash basin and held it at his side and asked Mr. N one more time to please return his shoes. (RT 206.) When appellant’s father told appellant to give him the knife, appellant did so. (RT 207.)
After Mr. N left, appellant went to the swap meet and bought a gun because Mr. N had threatened to kill him and his family. (RT 186.) Appellant bought the gun with the idea of just showing it to Mr. N so Mr. N would not harm him. (RT 186.) He bought ammunition, loaded the gun, and put it under the mattress. (RT 186-187.) He bought the gun to defend himself and his family. (RT 210.)
The following Tuesday, appellant was sitting in the car listening to the radio when Mr. N arrived and quickly got out of the truck and removed his shirt. (RT 173.) When appellant saw him do that, he though Mr. N was going to hit him. (RT 189.) Appellant ran into the house and got the gun and put it in his waistband. (RT 189-192.) After Mr. C and Jim Doe left to go to the store, appellant looked out and saw that the truck was gone and thought that Mr. N was gone and that it was safe to go back outside. (RT 173, 192.)
Appellant was going out to the car to turn off the radio and get his lunch box when he saw Mr. N and Rodriguez. (RT 174, 192.) Mr. N looked at appellant “real bad” and when appellant asked for his shoes back, Mr. N refused and told appellant that he should have used the knife on him because now he was going to injure appellant. (RT 194.) When appellant asked Mr. N why he would do that when he already had taken appellant’s shoes and attacked him, Mr. N became real hateful and told appellant that he was going to use the knife on appellant. (RT 194.)
When Mr. N stepped toward appellant and lunged at him, appellant became very frightened and pulled out the gun and fired. (RT 180-181, 195.) Appellant thought Mr. N was going to choke him again and did not think Rodriguez would do anything to protect him. (RT 177.) Appellant did not intend to kill Mr. N but shot to protect himself so that Mr. N would not hurt him. (RT 184.) Appellant was not thinking calmly and rationally because he was very afraid based on what Mr. N was saying to him and his prior threat to kill appellant and his family. (RT 184.)
Appellant was not conscious of aiming at Mr. N. (RT 200.) The whole thing happened very rapidly, and appellant could not think of anything because he was blinded. (RT 184.) All he knew was that he was afraid and was defending himself. (RT 184, 200.) Appellant knew that Mr. N was very strong and believed he could kill appellant as he had tried to do three days earlier. (RT 183.) Mr. N swore at appellant after he fired the first shot. (RT 178.) Because appellant was so frightened, he was not sure whether Mr. N was falling or was already on the ground when he fired the third shot. (RT 201-202.)
When appellant thought Mr. N was no longer a threat, he threw down the gun and thought about waiting for the police, but because he thought they might be brutal like the police in Mexico, he went to his sister’s in Los Angeles. (RT 178-179.) Appellant’s younger sister, Ms. Doe, testified that Mr. N was known as a violent bully and had made terribly disrespectful remarks of a sexual nature to her. (RT 213.) Appellant came to her house after the shooting. (RT 212.)
ARGUMENT
I. THE COURT COMMITTED REVERSIBLE ERROR, LESSENED THE PEOPLE’S BURDEN OF PROOF, AND DENIED APPELLANT HIS RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW BY FAILING TO MEET ITS SUA SPONTE DUTY TO INSTRUCT ON THE UNREASONABLE SELF-DEFENSE FORM OF INVOLUNTARY MANSLAUGHTER
A. Introduction
Counsel for appellant stated that he did not think implied malice applied to appellant’s case because appellant “either intended to kill or he didn’t intend to kill”. RT 214-215.) The prosecutor disagreed and correctly stated that appellant testified that he did not intend to kill Mr. N. (RT 217.) The court agreed with the prosecution and instructed on both express and implied malice and on both the sudden quarrel and unreasonable self-defense forms of voluntary manslaughter. (RT 217.) The court also had a sua sponte duty to instruct on the unreasonable self-defense form of involuntary manslaughter. By failing to do so, the court committed reversible error, lessened the People’s burden of proof (In re Winship (1970) 397 U.S. 358), denied appellant a trial by jury on all of the issues, and denied him due process of law as guaranteed by both the state and federal constitutions (5th. & 14th. Amend.).
B. Duty Of Trial Court To Instruct On Lesser Included Offenses.
Our Supreme Court has recently examined the standard for reversal when the trial court fails to meet its duty to instruct on lesser included offenses and in so doing presented a comprehensive review of the law on lesser included offenses. (People v. Breverman (1998) 19 Cal.4th 142.) It is black letter law that the trial court must instruct, sua sponte, on all general principles of law related to issues raised by the evidence.
It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390 [ (St.Martin) ].) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370), but not when there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009; People v. Osuna (1969) 70 Cal.2d 759, 767, 76 Cal.Rptr. 462, 452 P.2d 678.)
(Id., at p. 154; emphasis added; internal quotation marks omitted.)
The rule requiring the court to instruct on lesser included offenses, even over the defendant’s objection, reflects the law’s aspiration that the most accurate result be obtained.
Cases have suggested that the requirement of sua sponte instructions arises, among other things, from the defendant’s right under the California Constitution to have the jury determine every material issue presented by the evidence. (E.g., People v. Geiger (1984) 35 Cal.3d 510, 519, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger), overruled on other grounds, People v. Birks (1998) 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073; see also People v. Wickersham (1982) 32 Cal.3d 307, 335, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.) However, we have consistently stressed the broader interests served by the sua sponte instructional rule. As we have said, insofar as the duty to instruct applies regardless of the parties requests or objections, it prevents the strategy, ignorance, or mistakes of either party from presenting the jury with an unwarranted all-or-nothing choice, encourages a verdict … no harsher or more lenient than the evidence merits” (Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311, italics added), and thus protects the jury’s “truth-ascertainment function” (Barton, supra, 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531). These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice. (Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.)
(Breverman, supra, 19 Cal.4th at p. 155; emphasis added; internal quotation marks omitted.)
It follows that once the court determined there was sufficient factual basis to instruct on implied malice, there was sufficient factual basis which required the court to instruct on the lesser included offense of the unreasonable self-defense form of involuntary manslaughter.
C. The Court Had a Duty To Instruct On The Unreasonable Self-Defense Form of Involuntary Manslaughter.
The court instructed the jury on unreasonable self-defense as follows: “A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. … Such an actual by unreasonable belief is not a defense to the crime of voluntary manslaughter.” (CT 274.) And the standard CALJIC instruction (8.40) given by the court instructed the jury it could find appellant guilty of voluntary manslaughter if it found that he intentionally killed Mr. N with actual but unreasonable belief that deadly force was necessary. Manifestly, it would have been error, based on the facts of appellant’s case, for the court to have omitted the unreasonable self-defense language from CALJIC 8.40.
Unfortunately, the jury was not instructed that it could find appellant guilty of involuntary manslaughter if it found that he unintentionally killed Mr. N with the actual but unreasonable belief deadly force was necessary. That was prejudicial error. Our Supreme Court in In re Christian S. (1994) 7 Cal.4th 768, 780 fn. 4 found that unreasonable self-defense negates malice for both intentional and unintentional killings, resulting in some form of manslaughter. A person who kills another unintentionally based on unreasonable-self-defense cannot be guilty of voluntary manslaughter, because under black letter law, voluntary manslaughter requires the intent to kill.
Since a homicide based on unintentional unreasonable self-defense is without malice and without the intent to kill, it necessarily constitutes involuntary manslaughter. Several appellate courts and respected secondary authorities have so concluded. The leading case is People v. Glenn (1991) 229 Cal. App. 3d 1461. In Glenn, Division Seven of the Second District Court of Appeal, reversed a manslaughter conviction for the failure of the trial court to instruct the jury on involuntary manslaughter, stating:
A person who kills another in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury may be guilty of voluntary or involuntary manslaughter depending on the existence of an intent to kill.
(Id., at p. 1467, emphasis added.)
Glenn relied on two 1982 cases, Welch and Clark, both of which analyzed unreasonable self-defense as a form of criminal negligence in the use of excessive force. (People v. Welch (1982) 137 Cal. App. 3d 834, 840; People v. Clark (1982) 130 Cal. App. 3d 371, 382.)
Relying on People v. Flannel (1979) 25 Cal.3d 668, In re Christian S., supra, and Glenn supra, Division Seven of the Second District Court of Appeal reversed a murder conviction because the trial judge failed to instruct on both voluntary and involuntary manslaughter on an unreasonable self-defense theory. (People v. Ceja (1994) 26 Cal. App. 4th 78, 85-87.) In People v. Dixon (1995) 32 Cal. App. 4th 1547, Division Five of that court discussed Glenn at length with approval:
. . . Associate Justice Johnson and his colleagues recognized unreasonable self-defense could, depending on the existence of an intent to kill, result in a verdict of voluntary or involuntary manslaughter. An intentional killing in the unreasonable self-defense context is voluntary manslaughter. An unintentional killing can be involuntary manslaughter.
(Id., at pp, 1557-1558, fn. 5.)
In People v. Cameron (1994) 30 Cal. App. 4th 591, 601 the Third Appellate District acknowledged that an unintentional killing can occur in the course of unreasonable self-defense and that the Penal Code’s two formulations of involuntary manslaughter are not exclusive.
Actual but unreasonable self-defense is listed as a distinct form of involuntary manslaughter, requiring sua sponte instruction, in the jury instructions handbook published by the California Center for Judicial Education and Research. (2001 CJER Mandatory Criminal Jury Instructions Handbook, section 2.47, pages 45.)
While the standard CALJIC instruction on involuntary manslaughter provides only the two statutory forms of this offense, the Use Note and Comment sections of CALJIC 8.45 refer both to unreasonable self-defense and to People v. Welch, supra, 137 Cal. App. 3d 834, 839-841.) Thus, these reputable secondary sources all identify a correlation between unreasonable self-defense and involuntary manslaughter. [Footnote 5]
Whether construed as coming within or independent of the statutory examples of involuntary manslaughter, the unreasonable self-defense form of involuntary manslaughter is based on that statute. The unreasonable self-defense form of involuntary manslaughter can be construed as an application of the criminal negligence form of involuntary manslaughter. [Footnote 6] That was the analysis in both Clark and Welch. In Clark, the court held that involuntary manslaughter instructions were proper on a criminal negligence theory where an unintentional killing had occurred in the defendant’s failure to exercise proper care with a firearm in his exercise of self-defense. In that case, defendant Clark’s right of self-defense was established but “the nature of the force necessary to that defense was not.” (People v. Clark, supra, 130 Cal. App. 3d at p. 382.) The Welch court had a similar analysis. (People v. Welch, supra, 137 Cal. App. 3d at p. 840.)
Alternatively, unreasonable self-defense may be considered as an independent form of involuntary manslaughter. The caselaw has clearly established that manslaughter is a residual “catch-all” for unlawful killings which do not fit within other defined categories of homicide. In 1966, our Supreme Court stated:
[The manslaughter statutes’] enumeration of non-malicious criminal homicides . . . could not be exclusive, for in the absence of malice, a homicide cannot be an offense higher than manslaughter.
(People v. Conley (1966) 64 Cal. 2d 310, 318; See also People v. Mosher (1969) 1 Cal. 3d 379, 390; People v. Graham (1969) 71 Cal. 2d 303, 315; People v. Aubrey (1967) 253 Cal. App. 2d 912, 919.)
More recently, our Supreme Court held that an unintended killing in the course of a nondangerous-to-life felony can be involuntary manslaughter. (People v. Burroughs (1984) 35 Cal. 3d 824.) That court reasoned:
[T]he only logically permissible construction of section 192 is that an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection.
(Id., at p. 835.)
In a different context, the Third District Court of Appeal in Cameron reasoned:
[I]f a killing is unlawful it must constitute either a murder or manslaughter, the defining boundary being malice; if the homicide is unlawful and malice is lacking the offense is manslaughter. If the offense cannot be voluntary manslaughter, because the case law holds that voluntary manslaughter requires an intent to kill, it is manslaughter nonetheless and, a fortiori, must be involuntary manslaughter.
(People v. Cameron, supra, 30 Cal. App. 4th at p. 604.)
Thus, an unlawful homicide which occurs in unreasonable self-defense with no intent to kill must, “a fortiori“, be involuntary manslaughter, even if it is not specifically enumerated in the involuntary manslaughter statute. As our Supreme Court reasoned in Flannel itself, this construction simply gives effect to the statutory definition of involuntary manslaughter, by identifying additional circumstances under which a unintentional yet unlawful homicide can occur. (People v. Flannel, supra, 25 Cal. 3d at p. 677.)
Under either construction, it is incontrovertible that an unintentional killing motivated by an actual but unreasonable belief in the necessity of self-defense or the use of excessive force when self-defense is justified is involuntary manslaughter, especially in light of Christian S.’s explicit recognition of the applicability of unreasonable self-defense to unintentional killings. (In re Christian S., supra, 7 Cal. 4th at p. 780, fn. 4.) That is exactly what numerous appellate courts have held. (People v. Dixon, supra, 32 Cal. App. 4th 1547, 1557-1558, fn. 5; People v. Ceja, supra, 26 Cal. App. 4th at pp. 85-87; People v. Cameron, supra, 30 Cal. App. 4th at p. 604; People v. Glenn, supra, 229 Cal. App. 3d at p. 1467; People v. Welch, supra, 137 Cal. App. 3d 834, 840; People v. Clark, supra, 130 Cal. App. 3d 371, 382.) There is no other way to reconcile Flannel and Christian S. with the bedrock rule that voluntary manslaughter requires the specific intent to kill.
D. Application of The Law To Appellant’s Case.
Appellant specifically testified that he did not intend to kill Mr. N, that he did not aim but shot blindly. (RT 184.) Appellant used a small caliber handgun and only fired three of nine rounds. However, appellant’s jury was never instructed that it could find him guilty of involuntary manslaughter if it found that he did not intend to kill Mr. N and actually but unreasonably believed that he needed to repeatedly shoot Mr. N to prevent him from carrying out his threat to kill appellant.
E. Appellant Was Prejudiced By The Court’s Failure To Instruct On The Unreasonable Self-Defense Form Of Involuntary Manslaughter.
Reversal is required because the trial court failed to instruct on the unreasonable self-defense form of involuntary manslaughter. In Breverman, our Supreme Court modified the standard for reversal when a court fails to instruct, sua sponte, on a lesser included offense. The court abandoned the “Sedeno standard of near-automatic reversal” and adopted the “miscarriage of justice” standard enunciated in article VI, section 13 of the California Constitution.
Hence, by virtue of the California Constitution, reversal is not warranted unless an examination of “the entire cause, including the evidence,” discloses that the error produced a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) This test is not met unless it appears “reasonably probable” the defendant would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818.)
(Breverman, supra, 19 Cal.4th at p. 149.)
Post-trial review must focus not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.
[T]he double negative approach … presupposes that a reversal will result only when there exists, in the opinion of the court, at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.
(Id., at p.837.)
Application of the “double negative” approach of the Watson standard supports reversal in appellant’s case because, at a minimum, there is an equal balance of probabilities in his case. It is as likely a reasonable jury would acquit appellant as convict him of second degree murder.
II. THE COURT COMMITTED REVERSIBLE ERROR, LESSENED THE PEOPLE’S BURDEN OF PROOF, AND DENIED APPELLANT HIS RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW BY GIVING A LEGALLY INCORRECT DEFINITION OF MALICE
The trial court gave both a legally correct and a legally incorrect definition of malice. The trial court erroneously gave CALJIC 1.22 as requested by the prosecution. (CT 248.) In appellant’s 1995 trial and his first retrial, the People’s request for CALJIC 1.22 which defines malice as a “wish to vex, annoy or injure another person or an intent to do a wrongful act” was rejected by the court. (CT F024536, p. 220, ART 241-242.) During the instruction conference in appellant’s first retrial, Judge Felice refused to give CALJIC 1.22 stating that the jury might be confused between that definition of malice and that in CALJIC 8.11 which is the only definition relevant to a murder charge. (ART 243.)
In appellant’s second retrial, the court read CALJIC 8.10 which sets out the elements of murder including malice aforethought, then CALJIC 1.22 which incorrectly defines malice, followed by CALJIC 8.11 which correctly defines malice:
The defendant is accused of having committed the crime of murder, a violation of Penal Code section 187 (a).
Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder, violation of Section 187 (a) of the Penal Code.
A killing is unlawful if it was neither justifiable nor excusable.
In order to prove this crime each of the following elements must be proved:
One, a human being was killed;
Two, the killing was unlawful, and ;
Three, the killing was done with malice aforethought.
The words malice and maliciously mean a wish to vex, annoy or injure another person or an intent to do a wrongful act.
Malice may be either express or implied.
Malice is express when there is manifested an intention unlawfully to kill a human being.
Malice is implied when :
One, the killing resulted from an intentional act;
Two, the natural consequences of the act are dangerous to human life, and;
Three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.
When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act. (RT 258-259.)
The due process clause of the federal Constitution “forbids conviction unless the jury finds each element of the crime charged beyond a reasonable doubt. (Winship, supra, 397 U.S. at p. 364.)” (People v. Shade (1986) 185 Cal.App.3d 711, 714, hereafter Shade.) In appellant’s case, due process required the People to prove that he either intended to kill Mr. N or acted with conscious disregard to the risk. By giving two definitions of malice — one correct and one incorrect — the trial court lessened the People’s burden of proof by permitting the jury to find appellant guilty of murder if it found that he acted to annoy, vex, or injure Mr. N.
“[T]he People, as the moving party in a criminal proceeding, have the duty to tender adequate instructions such that a lawful conviction results. (Citation.)” (People v. Guzman (1999) 73 Cal.App.4th 103, 117.) That duty was clearly breached in this case. The CALJIC Use Note to 1.22 expressly states that 1.22 should not be used to define malice aforethought in a murder trial. The reason the error is particularly egregious is that “malice” as used in section 187 is a legal term of art with a “technical or unique usage in the law” [Footnote 7] rather than the common usage meaning of malice which coincides with the definition given in CALJIC 1.22.
Jurors are required in a murder trial, regarding the meaning of malice, to ignore their previous understanding of the word and to adopt the definition given by the court in its instructions. When those instructions include, as they did in appellant’s case, both a legally correct and a legally incorrect definition, reversal is required unless the record clearly demonstrates that the verdict rests on the correct definition. (People v. Green (1980) 27 Cal.3d 1, 69; People v. Guiton (1993) 4 Cal.4th 1116.)
In Green, the Supreme Court held that “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green, supra, 27 Cal.3d at p. 69.)
Green further found that “[t]he same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.” (Id., at p. 70.) In keeping with the United States Supreme Court’s ruling in Griffin v. United states (1991) 502 U.S. 46, the Supreme Court two years later in Guiton limited its holding in Green to legal rather than factual defects.
We thus conclude that the rule in Green, supra, 27 Cal.3d 1, which we construe as applying only to cases of legal insufficiency in the Griffin sense, survives our adoption of Griffin, [citation omitted]. If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.
(Guiton, supra, 4 Cal.4th at p. 1129; fn. omitted.)
The United States Supreme Court has held that “a conflict between instructions does not clarify either instruction.” (People v. Guzman, supra, 73 Cal.App.4th at p. 117.)
Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jury applied in reaching their verdict.
(Francis v. Franklin, supra, 471 U.S. 307, 322.)
The instructional error which occurred in appellant’s case is the same as that which was found to be error in Shade. The Third District Court of Appeal in Shade found the error was harmless in that case because it found that the evidence supported the second degree murder conviction and did not support either theory of voluntary manslaughter. (People v.Shade, supra, 185 Cal.App.3d 715.) The Court of Appeal’s analysis substituted its factual findings for that of the jury. The Sixth Amendment to the United States Constitution requires the jury, not the reviewing court, to make the factual findings upon which guilt rests. (Sullivan v. Louisiana (1993) 508 U.S. 275.) “As we held in Sullivan v. Louisiana 508 U.S. 275 (1993), a criminal defendant is constitutionally entitled to a jury verdict that he is guilty of the crime, and absent such a verdict the conviction must be reversed, ‘no matter how inescapable the findings to support that verdict might be.'” (California v. Roy (1996) 519 U.S. 2, 7 [117 S.Ct. 337, 339; 136 L.Ed.2d 266; conc. opin. J. Scalia [emphasis in original].)
In Shade, the jury was instructed on both second degree murder and voluntary manslaughter and given conflicting definitions of malice. The Court of Appeal noted that “[i]f malice is adjudged by the minimal standard of vexing or annoying, a jury would be hard-pressed to find its absence.” “Thus, if the evidence supports voluntary manslaughter, the jury may have found malice and convicted defendant based on the incorrect definition.” (People v. Shade, supra, 185 Cal.App.3d at p. 715.)
In appellant’s case, the record in no way reveals upon which standard of malice the jury relied in finding appellant guilty of second degree murder, therefore, reversal is required. However, even if this court adopts the same analysis as did the court in Shade, reversal is required because the evidence, in appellant’s case, more than amply supports a voluntary manslaughter conviction. The evidence showed appellant is a young man suffering from paranoid schizophrenia, who functions in the low range of intelligence, and had no history of any kind of violence; while Mr. N was a violent bully who had tried to kill appellant two days before he was killed and had threatened to return and kill appellant and his family.
Based on those facts which strongly support an acquittal or a conviction of voluntary or involuntary manslaughter, the instructional error on the only contested element of murder requires reversal.
III. THE COURT’S FAILURE TO FULLY INSTRUCT ON SELF-DEFENSE LESSENED THE PEOPLE’S BURDEN OF PROOF AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW
” ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.'” (People v. St. Martin, supra, 1 Cal.3d at p. 531; emphasis added.) Based on the facts of appellant’s case which amply supported reasonable and unreasonable self-defense, the trial court had a sua sponte duty to fully instruct the jury on self-defense. (See Use Note to CALJIC 5.10; People v. Holt (1944) 25 Cal.2d 59, 64-65; People v. Mayweather (1968) 259 Cal.App.2d 752, 755-756.)
That included the duty to instruct the jury pursuant to CALJIC 5.15 that the burden was on the people to prove the homicide was unlawful. CALJIC 5.15 informs the jury that the People have the burden of proving beyond a reasonable doubt that the “homicide was unlawful, that is, not justifiable” and that if it had a “reasonable doubt that the homicide was unlawful, [it] must find the defendant not guilty.” Appellant’s jury was instructed that it was the People’s burden to prove that he was guilty beyond a reasonable doubt (CALJIC 2.90) but it was given no guidance on who had the burden or what that burden was regarding proof of self-defense.
The court also had a sua sponte duty to instruct the jury pursuant to CALJIC 5.50 that appellant was not required by law to retreat. CALJIC 5.50 provides as follows:
A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.
The trial court also failed to inform the jury pursuant to CALJIC 5.51 that actual danger is not required for self-defense. CALJIC 5.51 provides as follows:
Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.
All three of those self-defense instructions were given in appellant’s 1995 trial and his first retrial in August 1998. (CT F024536, pp. 271, 273, 274, CT 142, 144, 151.) However, in spite of the fact that the principles embodied in the three omitted instructions were obviously closely related to the facts before the court, they were not given in appellant’s second retrial. The questions regarding no duty to retreat and whether the danger was actual or only apparent were critical to appellant’s defense. Because the jury was not fully instructed on self-defense, it might very well have incorrectly concluded that appellant had a duty to run from Mr. N when Mr. N approached him with his fists raised and that self-defense was not available to appellant if the jury determined that appellant was not in actual danger. The omission of CALJIC 5.50 and 5.51 was prejudicial and was compounded by the court’s failure to instruct the jury that the People had the burden of proving beyond a reasonable doubt that the killing was unlawful.
Because the court’s failure to fully instruct the jury on appellant’s defense deprived him of a fair trial as guaranteed by the Fourteenth Amendment, reversal is required unless respondent can prove beyond a reasonable doubt that the second degree murder conviction was not affected by the instructional errors.
However, even if this court applies the Watson [Footnote 8] test of error, reversal is still required. Post-trial review must focus not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.
[T]he double negative approach … presupposes that a reversal will result only when there exists, in the opinion of the court, at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.
(Id., at p.837.)
Application of the “double negative” approach of the Watson standard supports reversal in appellant’s case because, at a minimum, there is an equal balance of probabilities in appellant’s case. Even if this court were to conclude that the instructional errors taken individually are insufficient grounds for reversal, the errors combined to make reversal a necessity.
IV. APPELLANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND COUNSEL’S ERRORS DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
A. Introduction
Appellant was represented by appointed counsel, Mr. D, in 1995 when he was first tried for the killing of Mr. N. In his first appeal, appellant raised multiple instances of ineffective assistance of counsel, and because Mr. D failed to respond to repeated requests by the undersigned and this court to send the undersigned his copy of the audio tape of appellant’s statement to the police, this court referred Mr. D on the basis of his failure to cooperate with appellate counsel to the State Bar of California. [Footnote 9] Because this court reversed on other grounds, it did not reach the issue of ineffective assistance of counsel raised in the direct appeal and consolidated petition for writ of habeas corpus.
Following that reversal, Mr. D, who was no longer accepting court appointed cases and had not done so for three years, accepted appointment to represent appellant. (CT 34.) He assumed that appellant’s case would be assigned to the Indigent Defender Program. (CT 34.) Based on what followed, it is regrettable that did not occur.
B. Standard of Proof for Ineffective Assistance of Counsel
The right to counsel guaranteed by the Sixth Amendment of the United States Constitution and Article I, section 15 of the California Constitution has long been held to include the right to the effective assistance of counsel. (Powell v. Alabama (1932) 287 U.S. 45; Gideon v. Wainwright (1963) 372 U.S. 335; People v. Ibarra (1963) 60 Cal.2d 45.) The right to counsel “entitles the defendant not to some bare assistance but rather to effective assistance. [Citation.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215, emphasis in original.) Unfortunately, appellants right to effective assistance of counsel was violated in his retrial.
A criminal defendant is thereby entitled to “the reasonably competent assistance of an attorney acting as a diligent conscientious advocate.” (United States v. De Coster (D.C. Cir., 1973) 487 F.2d 1197, 1202.) The California Supreme Court has characterized the purpose of the right to effective assistance of counsel as follows: “The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citation.] (Ledesma, supra, 43 Cal.3d at p. 215.)
Under both California and federal law a claim of ineffective assistance of counsel has two components: 1) the defendant must show that counsel’s performance was deficient, i.e., “counsel’s representation fell below an objective standard of reasonableness … under prevailing professional norms” (Strickland v. Washington (1984) 466 U.S. 668, 686-689; accord People v. Pope (1979) 23 Cal.3d 412, 423-425); 2) the defendant must show prejudice (Ledesma, supra, 43 Cal.3d at 217, citing Strickland, supra, 466 U.S. at 691-692; People v. Fosselman (1983) 33 Cal.3d 572, 583-584.)
California law requires prejudice to be affirmatively proved and adopts the Strickland standard that “‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.'” (Ledesma, supra, 43 Cal.3d at 217-218, quoting Strickland, supra, 466 U.S. at 693-694; accord People v. Marquez (1986) 188 Cal.App.3d 363, 369.) A “reasonable probability” does not mean “more likely than not” but is a probability sufficient to undermine confidence in the outcome of the trial. (Strickland, supra, 466 U.S. at 694.)
Specifically, ‘when a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’
(Ledesma, supra, 43 Cal.3d at 218.)
When this court reviews trial counsel’s performance to determine whether it was deficient, it must “in general exercise deferential scrutiny.” (Id., at p. 216; accord Pope, supra, 23 Cal.3d at 424.) However, our Supreme Court has qualified that general rule. “We must emphasize, however, that deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ [Citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.” (Id., at p. 217.) Based on the above standards, attorney D failed to provide effective legal assistance to appellant.
C. What Counsel Failed To Do To Protect Appellant’s Rights To A Fair Trial And Effective Assistance of Counsel.
1.) Consenting to the discharge of the jury sworn to hear appellant’s first retrial when there was not legal cause for discharge deprived appellant of a once in jeopardy defense.
The jury in appellant’s first retrial began deliberating during the afternoon of August 12, 1998. (CT 49.) It deliberated through the day of August 13, 1998, and the morning of August 14, 1998, with the exception of the time required for a requested read back of testimony. (CT 52-53.) At the end of the morning, the jury sent the court a note indicating it was deadlocked eleven to one and that it did not appear it would be “able to agree 100%.” [Footnote 10] (CT 188.)
Following the lunch recess with the jury in the courtroom, the court asked the foreperson whether any further instructions or explanation of the law, further read back of testimony, or further deliberations might result in a verdict. (Aug. RT, p. 323, hereinafter ART followed by page number.) The foreperson answered that there were six people who were convinced one way and maybe three or four whom with further discussion could go the other way, but one is not going to change. (ART 323.)
The court then made the following comments which included paraphrasing CALJIC 8.75.
Now, there is the lesser and included charge and I didn’t instruct you on the possibility of returning a partial verdict and I don’t know where you are at and I don’t want to inquire where you are at in terms of the charge as alleged in the information as second degree murder, how you stand on that as opposed to how you may be standing on the voluntary manslaughter.
And if you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime that he is accused of in the information, namely, second degree murder, and you unanimously so find, you may convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of that crime. You have been provided with guilty and not guilty verdict forms for the crime charged as well as a lesser crime thereto, namely, voluntary manslaughter.
I previously instructed you that the crime of manslaughter or voluntary manslaughter is a lesser crime to that of second degree murder. And I also instructed you that your are to determine whether the defendant is guilty or not guilty of the crime charged or of any lesser crime. And in doing so, you have discretion as to how to approach it, that is you could evaluate each crime separate from the other or consider the evidence pertaining to both of the charges.
But at this time I’m going to ask you to, if you will, consider for a moment whether or not you can unanimously find the defendant not guilty of the second degree murder charge. And I don’t want you to answer that question here, but let me read this instruction to you and some of it is repetitive, but I have an obligation to read it to you at this time before I discharge you.
If you unanimously find a defendant guilty of the crime of which he is accused, your foreperson should sign and date that corresponding verdict form. All other verdict forms are to remain unsigned. Secondly, if you are unable to reach a unanimous verdict as to the crime of which the defendant is accused, do not sign any verdict forms and just report your disagreement which you have done.
Now, the third alternative or possibility is that if you unanimously agree and find the defendant not guilty of the crime of which he is charged but cannot reach a unanimous agreement as to the lesser crime, your foreperson should sign and date the not guilty verdict form as to the charged crime and report your disagreement as to the lesser crime to the court. . . . (ART 323-324.)
The judge then asked, “Do you feel that by further deliberations you might be able to reach some verdict on the charged crime yet not be able to reach a verdict as to the lesser crime? (ART 323-324, emphasis added.) The jury foreperson responded to the question by saying, “[t]hat would be a true statement.” (ART 325.) When the judge questioned, “[y]ou feel you could possibly?”, the foreperson said, “[r]ight.” (ART 325.) “We have five or six that I feel will not change their position of the eleven. We are not going to unanimously go to – -.” (ART 325.) The judge then interrupted and said, “[a]gree either way?”, and the foreperson said, “[r]ight.”
Without asking for clarification as to what the foreperson meant when he said that with further deliberations the jury might be able to reach a unanimous verdict on the second degree murder charge and still not be able to reach a verdict on the lesser included charge of voluntary manslaughter, the court indicated that it had to determine whether all of the jurors agreed with the foreperson. (ART 326.) “Foreperson has indicated to me, ladies and gentlemen, that there is no reasonable possibility of the jury reaching a verdict in this case at this point even with further instructions or explanation as to the law, further read back of testimony or further deliberations. If you agree with what the foreperson has told me, say yes. If you do not agree with the foreperson, say no.” (ART 326.) Each member of the jury said yes. (ART 326-327.)
The court then stated that it was inclined to declare a mistrial and asked Mr. D whether he had any objection, and Mr. D responded that he did not. (ART 327.) It is clear, based on this record, that counsel should not have consented to discharge of the jury because once the foreperson said there was a possibility that a verdict could, with further deliberations, be reached on the second degree murder charge, the discharge of the jury would have been without legal necessity. Had counsel not consented, he could have, indeed would have had a duty to, raise the defense of once in jeopardy when the matter was set for retrial.
The principal of double jeopardy provides a fundamental protection for criminal defendants against the power of the state.
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
(Green v. United States (1957) 355 U.S. 184, 187-188, emphasis added.)
“Without the guarantee against double jeopardy, the chances of convicting innocent persons would be increased, both because the state would have unlimited opportunities to prosecute an acquitted defendant and because the exposure of the accused’s defense in the first trial would provide the state with a major advantage in preparing for the second.”
(Larios v. Superior Court (1979) 24 Cal.3d 324, 329.)
This fundamental principal of Anglo-American jurisprudent is embodied in the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution. “Under both the federal and state Constitutions, the double jeopardy clause `serves principally as a restraint on courts and prosecutors.’ (Brown v. Ohio (1977) 432 U.S. 161, 165.)” (People v. Fields (1996) 13 Cal.4th 289, 298.)
The double jeopardy clause of the Fifth Amendment to the United States Constitution guarantees that no person shall `be subject for the same offense to be twice put in jeopardy of life or limb,’ and is made applicable to the states through the due process clause of the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794.)
(People v. Fields, supra, 13 Cal.4th at p. 297.)
Unlike many other protections, our Supreme Court has determined that the California Constitution can be interpreted to provide greater protection than that provided by the federal constitution.
Protection against double jeopardy is also embodied in article I, section 15 of the California Constitution, which declares that [p]ersons may not twice be put in jeopardy for the same offense. As we reaffirmed in Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077, the California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants’ rights than the federal Constitution, as construed by the United States Supreme Court.
(Id., at p. 298, internal quotations omitted.)
Jeopardy attaches, in a jury trial, when the jury has been impaneled and sworn. (Crist v. Bretz (1978) 437 U.S. 28, 38.) Once jeopardy attaches, “if a jury is discharged without reaching a verdict, the defendant cannot be retried unless the defendant consented to the discharge, or manifest necessity required it.” (Green v. United States (1957) 355 U.S. 184, 188.) “When a jury is unable to reach a verdict, double jeopardy rules bar retrial unless the defendant consents to the discharge of the jury (citation) . . ., or the trial court determines further deliberations are not reasonably likely to result in a verdict (§ 1140) [Footnote 11], in which case legal necessity exists for declaration of a mistrial (Arizona v. Washington (1978) 434 U.S. 497, 503-505.)” (People v. Marshall (1996) 13 Cal.4th 799, 825 (hereafter Marshall).)
While our Supreme Court in Marshall determined that the trial court is not required to ask the jury when it reports that it is unable to reach a verdict whether it is deadlocked only on the lesser included offense, it is clear that the court must, when there is a “hint” that is the case, determine that the jury is genuinely deadlocked on the charged offense.
In Marshall, the defendant was charged with three counts of murder and one count of attempted murder. When the jury reported it was deadlocked with seven jurors voting to acquit and five to convict, the judge told the jury to resume deliberations. (Id., at p. 824.) After deliberating for three more hours, the jury reported the vote had remained unchanged. (Ibid.) When the jury returned to the courtroom and indicated that further deliberations would be useless, the court declared a mistrial. (Ibid.)
In his appeal, defendant Marshall argued that Stone v. Superior Court (1982) 31 Cal.3d 503 (hereafter Stone) required the court to inquire whether the jury could reach a verdict on the charged crimes and was deadlocked on the lesser included charges and that by not having done so the mistrial was without legal necessity. (Ibid.) Our Supreme Court held that the rule of Stone which constitutionally requires courts to “afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense” is limited to situations in which there is some indication that the jury is deadlocked only as to the lesser included charge. (Id. at p. 519.)
The Supreme Court in declined to extend the holding in Stone to cover the situation in Marshall where the court made no inquiry regarding the nature of the deadlock and the jury did not “hint at such a possibility.” (People v. Marshall, supra, 13 Cal.4th at p. 824.) That holding clearly implies that declaration of a mistrial, in a situation such as exited in appellant’s case where there was more than just a “hint” that the deadlock was primarily related to the lesser included offense, is without legal necessity. In appellant’s case there was much more than just a hint that the jury might have been able to reach a verdict on the charged offense and still be unable to reach a verdict on the lesser included offense. When Judge Felice asked whether by “further deliberations you might be able to reach some verdict on the charged crime yet not be able to reach a verdict as to the lesser crime”, the foreperson responded, “[t]hat would be a true statement.” (ART 325.)
A somewhat muddled exchange then occurred between the judge and the foreperson with the judging interrupting the foreperson prior to his having completed his thought, and with counsel for appellant remaining silent. When the court stated it was inclined to grant a mistrial, counsel alert to the rules of double jeopardy would have, at a minimum, requested further clarification, and would not have consented to the mistrial.
An example of effective representation in relationship to the double jeopardy protections is found in People v. Chaney (1988) 202 Cal.App.3d 1109, (hereafter Chaney). In Chaney, the defendant was charged with murder, and the jury was instructed on first and second degree murder and voluntary and involuntary manslaughter as lesser included offenses. (Id., at p. 1113.) The jury deliberated over several days and then reported that it had been “seriously deliberating” with all members participating but was unable to agree upon a verdict. (Ibid.) The foreperson reported that the vote was 10 to 2 and had been that way since the first ballot. (Ibid.)
The court twice asked the foreperson whether the jury was unable to reach a verdict on any of the possibilities, and the foreperson stated that there was disagreement on intent, that they had reached unanimity on several items but were disagreeing on degree. (Ibid.) When the foreperson attempted to further explain, the court “cut him off” and polled the other jurors who agreed they could not reach a verdict. (Ibid.) When the court discussed declaring a mistrial with counsel, defense counsel noted that the jury appeared to be deadlocked as to the degree and asked the court to get clarification into the “nature of the jury’s inability to reach a verdict.” (Ibid.)
The trail court was reluctant to make further inquiry, but urged by defense counsel agreed to ask the jury how many ballots it had taken. The judge stated that if that information did not change his mind, he would declare a mistrial and told defense counsel to let him know if he did not want him to do so after he made the inquiry. (Ibid.) Defense counsel, after further discussion, asked the court, if it declared a mistrial, to then ask the jury “how it stood” prior to discharging it. (Ibid.) After determining that the jury had taken six or seven ballots, the judge declared a mistrial. (Id., at p. 1114.)
The case was then set for retrial, and Chaney entered a plea of once in jeopardy which was granted by the trial court. The People appealed unsuccessfully arguing that the defendant had consented to the mistrial. While the Court of Appeal in Chaney appeared to extend the rule of Stone beyond what the Supreme Court in Marshall determined was intended, Marshall’s disapproval of that point in no way invalidates the fine example of defense lawyering which occurred in that case.
Caselaw is clear that the court has the duty, prior to discharging the jury after jeopardy has attached, to determine that the jury is “genuinely deadlocked”. (People v. Fields, supra, 13 Cal.4th at p. 295.) In addition, our Supreme Court has referred to “unequivocal statements” that the jury is deadlocked in assessing whether the trail court had abused its discretion by discharging the jury. (People v. Wash (1993) 6 Cal.4th 215, 250.) In that case the jury sent the judge five notes indicating that it was “inconceivable” it would “ever reach a unanimous decision”, that it was “at an impasse”, and that “prospects for a unanimous verdict seem[ed] virtually non-existent.” Obviously, no such unequivocal statements were made in appellant’s case. The exact opposite is the case — the statement was very equivocal. Thus the court’s discharge of the jury was without legal necessity.
However, “[a]n otherwise legally insufficient declaration of mistrial may become legally sufficient where the defendant has consented to the declaration of mistrial. (Citations).” (People v. Chaney, supra, 202 Cal.App.3d at p. 1116.) Had Mr. D not consented to the discharge, appellant would have been able to block further prosecution with a plea of once in jeopardy, and it would have been ineffective assistance of counsel not to have raised that defense. (People v. Marshall, supra, 13 Cal.4th at p. 825, citing People v. Belcher (1974) 11 Cal.3d 91, 96.) The result must be the same based on Mr. D’s improper consent to the mistrial.
2.) Counsel failed to request any pinpoint instruction regarding the legal consequence of antecedent threats and/or assaults on reasonable and unreasonable self-defense.
It has been the law for over forty years that a defendant is entitled to an instruction regarding the role of antecedent threats or violence by the homicide victim on the accused’s use of deadly force. “It is well settled a defendant asserting self-defense is entitled to an instruction on the effect of antecedent threats or assaults by the victim on the reasonableness of defendant’s conduct (People v. Moore (1954) 43 Cal.2d 517, 527-528; People v. Pena (1984) 151 Cal.App.3d 462, 475; People v. Bush (1978) 84 Cal.App.3d 294, 303-304; People v. Torres (1949) 94 Cal.App.2d 146, 151-154; People v. Graham (1923) 62 Cal.App. 758, 765; People v. Bradfield (1916) 30 Cal.App. 721, 727).” (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664.)
In all of those cases, the defense requested an instruction relating the effect of antecedent threats and/or violence to the reasonableness of the defendant’s conduct. In all of those cases, the reviewing courts found that the trial court had erred by refusing to instruct on the legal effect of prior threats or violence by the victim on the defendant’s response and that the error was reversible. While the instruction proposed in those cases varied slightly from case to case, all of the proposed instructions included that the jury is to consider the fact that a person who has previously been threatened with death or bodily harm by the victim or been attacked by the victim is justified in acting both more quickly and more harshly.
In People v. Spencer (1996) 51 Cal.App.4th 1208, the trial court modified CALJIC 5.12 to include the effect of antecedent threats.
As used in these instructions, [‘]imminent danger[‘] means that the danger must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the danger must appear to the defendant as immediate and present[,] and not prospective or even in the near future. An imminent danger is one that[,] from appearances, must be immediately dealt with. In determining whether a person presents an imminent danger, the defendant is entitled to consider all the circumstances, including any prior assaults or threats by that person against the defendant. [¶] One who has received threats against his or her life or person is justified in acting more quickly and taking harsher measures for his or her own protection in the event of assault, either actual or threatened, [than] would be a person who had not received such threats.
(Id., at p. 1219, emphasis added.
The Court of Appeal in People v. Pena, supra noted the danger of the jury not being instructed on the effects of antecedent threats or violence. “Absent instruction with respect to the effect of prior threats, jurors could believe they were precluded from considering the effect of prior threats on defendant’s perception of his immediate danger. (People v. Bush, supra., 84 Cal.App.3d 294; People v. Torres, supra., 94 Cal.App.2d 146.)” (People v. Pena, supra, 151 Cal.App.3d at p. 475.)
The error of not instructing on antecedent threats/violence is presumed prejudicial. (Ibid.) In appellant’s case, the effect on appellant of Mr. N’ prior threats and violence against him only two days before the shooting was the crux of his defense. It is clear that, based on the facts of appellant’s case which included the prior threats and violence by Mr. N, that it would have been reversible error had the trial court denied a defense request for an instruction regarding antecedent threats/violence. It therefore follows that it was reversible error for Mr. D not to have requested such an instruction.
In appellant’s case, the uncontroverted evidence showed that two days before appellant shot Mr. N, he had tried to kill appellant by strangling him and after appellant was saved by his brother, who threw Mr. N out of their house, Mr. N threatened to return and kill appellant and his family. There can be no possible tactical reason for D not having requested an instruction which would have clarified that appellant was justified in acting more quickly and harshly than would some reasonable person whom had never been choked and threatened by Mr. N.
Indeed appellant included in his argument that he received ineffective assistance of counsel in his appeal of his original conviction in 1995 that Mr. D should have requested an instruction regarding the role of antecedent threats on self-defense. “Counsel providing effective assistance of counsel would also have requested a pinpoint instruction which told the jury that antecedent threats by the decedent to the defendant justified the defendant in using quicker and harsher measures in self-defense. (People v. Moore (1954) 43 Cal.2d 517, 528; People v. Gonzales (1992) 8 Cal.App.4th 1658.) “It is well settled a defendant asserting self-defense is entitled to an instruction on the effect of antecedent threats or assaults by the victim on the reasonableness of defendant’s conduct. [Citations.]” (Id., at p. 1664.) Attorney D’s failure to do so is, by itself, ineffective assistance of counsel and grounds for reversal of appellant’s murder conviction.” (AOB, p. 11.)
It is both puzzling and extremely unfortunate that Mr. D did not learn from his error in 1995. Based on the uncontroverted facts of appellant’s case from which a reasonable jury, correctly instructed, could have acquitted appellant or found him guilty of a lesser included offense, it is more than reasonably probable that a better result would have occurred absent this single omission by Mr. D.
3.) Counsel failed to request CALJIC 5.15, 5.50, AND 5.51.
Appellant argued in section III., supra that the trial court had a sua sponte duty to fully instruct the jury on the relevant principles of self-defense. However, if this court should disagree, there can be no serious argument that Mr. D’s failure to request complete instructions on appellant’s defense was ineffective assistance of counsel. Because of Mr. D’s omission, appellant’s jury was not instructed pursuant to CALJIC 5.15 that the People had the burden of proving beyond a reasonable doubt that the “homicide was unlawful, that is, not justifiable” and that if it had a “reasonable doubt that the homicide was unlawful, [it] must find the defendant not guilty.” Appellant’s jury was instructed that it was the People’s burden to prove that he was guilty beyond a reasonable doubt (CALJIC 2.90) but it was given no guidance on who had the burden or what that burden was regarding self-defense.
Because of Mr. D’s omission, appellant’s jury was not instructed pursuant to CALJIC 5.50 that appellant was not required by law to retreat. CALJIC 5.50 provides as follows:
A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.
Because of Mr. D’s further omission, appellant’s jury was not instructed pursuant to CALJIC 5.51 that actual danger is not required for self-defense. CALJIC 5.51 provides as follows:
Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.
All three of those self-defense instructions were given in appellant’s original trial in 1995 and in his first retrial in August 1998. (CT F024536, pp. 271, 273, 274, CT 142, 144, 151.) However, when Judge Oberholzer, who presided over appellant’s second retrial, asked Mr. D whether he wished to request any additional instructions, Mr. D stated that “the issues [he] wanted defending my case are reflected in the instruction packet.” (RT 217.) That response reflects how truly unprepared counsel was to defend appellant.
The question regarding no duty to retreat and whether the danger was actual or only apparent were critical to appellant’s defense. Because the jury was not fully instructed on self-defense, it might very well have incorrectly concluded that appellant had a duty to run from Mr. N when Mr. N approached him with his fists raised and that self-defense was not available to appellant if the jury determined that he was not in actual danger. Counsel’s failure to request CALJIC 5.50 and 5.51 was prejudicial and was compounded by the further omission of requesting the court to instruct the jury that the People had the burden of proving beyond a reasonable doubt that the killing was unlawful.
4.) Counsel failed to request the court to instruct on the lesser included offense of involuntary manslaughter.
For the reasons set forth in section I., supra, counsel’s failure to have requested the court to instruct on involuntary manslaughter, is another example of his failure to provide effective assistance of counsel.
5.) Counsel failed to object to the People’s request for the court to give a legally incorrect definition of malice.
For the reasons set forth in section II., supra, counsel’s failure to object to the court giving CALJIC 1.22, a legally incorrect definition of malice as applied to a murder charge, is yet another example of counsel’s failure to provide the constitutionally guaranteed level of assistance.
6.) Counsel failed to elicit important testimony from Mr. H and appellant.
The shooting in this case occurred in 1994. Thus the witnesses were testifying to facts which occurred four years earlier. It was therefore particularly important for counsel to have refreshed his recollection as to their prior testimony. Mr. D either failed to do that or failed to make use of significant prior testimony. For example, Rodriguez testified at appellant’s first trial that appellant shot Mr. N out of desperation, and that if appellant had not shot him, Mr. N would have killed appellant. (CT 6.) No such testimony was elicited at appellant’s third trial.
Appellant testified at his first trial that he was unable to sleep Sunday night because he was afraid that Mr. N would return with a big stick and knock down the door. (RT 1995, p. 185.) Appellant worked Monday and Tuesday but felt continuous stress and fear. (RT 1995, pp. 186, 191.) Appellant sometimes heard voices and bad words in his head, as he had on the day he shot Mr. N. (CT 7.) Appellant testified at his second trial that he had never before fired a gun. (ART 157.) None of that testimony was elicited at appellant’s third trial.
While none of those failures to refresh the witnesses’ recall was, standing alone, reversible error, they are further dramatic examples of counsel’s failure to provide the level of assistance required by the state and federal constitutions.
7.) Counsel failed to secure an independent translation of appellant’s statement in Spanish.
In both appellant’s direct appeal (F024536) of his 1995 conviction and consolidated petition for writ of habeas corpus (F027919) he raised the issue of ineffective assistance of counsel based on Mr. D’s failure to have secured an independent translation of appellant’s statement in Spanish to the police after he was arrested in Los Angeles.
When the undersigned had the tape and transcript provided by the People reviewed by a qualified Spanish language interpreter, it was determined, contrary to deputy Crespo’s testimony in appellant’s first trial, that he had not asked appellant whether he intended to kill Mr. N when he purchased the gun on Sunday. (CT 8.) This court in its opinion also noted a translation error discovered by the independent translator related to a threat by Mr. N. (CT 8.)
In spite of that history, Mr. D went to trial on appellant’s case twice more without having secured an independent translation of the audio tape. On August 10, 1998, the prosecutor informed the court that she would not be introducing the tape of appellant’s statement in Spanish to the police but would be offering the testimony of deputy Crespo and that Mr. D had been given a copy of the English translation of the tape. (ART 7-8.) Mr. D stated that he had had Mr. Ventura review both sides of the tape and would be able to respond to some things in the tape. (ART 8.)
Mr. D then informed the court that the transcript provided by the prosecution only related to one-half of the tape and that he did not have an English translation of the entire tape unless it had been prepared since the original trial. (ART 8-9.) The court then advised appellant that if the prosecutor intended to introduce portions of the tape that pursuant to the rules of court she would have to have a transcript and that the same rule applied to the defense. (ART 9-10.)
The following day when Mr. D asked Crespo on cross examination whether appellant went into great detail about the fight the previous Sunday, the court sustained the prosecutor’s hearsay objection. (ART 96.) When D asked Crespo whether appellant described Mr. N as bloodthirsty, the court sustained the prosecutor’s hearsay objection. (ART 96.) D made no reference to Evidence Code section 356. Evidence Code section 356 provides in relevant part, “[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the adverse party; …”
“This rule applies to admissions and confessions in criminal cases (People v. Crowl (1938) 28 Cal.App.2d 299, 307-308) and applies even if the omitted portions of the conversation are self serving (People v. Hansen (1960) 178 Cal.App.2d 846, 851-853.)” (People v. Douglas (1991) 234 Cal.App.3d 273, 285.)
“It is an elementary rule of law that when admissions of one on trial for the commission of a criminal offense are allowed in evidence against him, all that he said in that connection must also be permitted to go to the jury, ….” (29 Am.Jur.2d, Evidence, §599, pp. 654-655, fns. omitted.)” (Ibid.)
When D asked Crespo whether appellant told him that Mr. N had removed his shirt, Crespo denied that appellant told him that. (ART 97.) After D showed him the transcript of appellant’s statement, Crespo testified that his memory had been refreshed and that appellant had told him that Mr. N had removed his shirt. (ART 97.)
The prosecutor then requested a sidebar conference and informed the court that the accuracy of the translation had been an issue in the prior appeal and that there were problems with the transcript. (ART 98.) She further stated that she had no idea that D intended to use her translation because he included Mr. Ventura on his witness list. (ART 98-99.) She told the court that she was unwilling to stipulate to the accuracy of the transcript. (ART 99.)
The court then asked D whether Mr. Ventura had prepared a transcript of the tape, and D responded that he had not. (ART 99.) Judge Felice then reminded D of the rule of court requiring a transcript of a tape and advised him that he could have just those portions transcribed which he wanted to use.
What I can suggest to you is this, counsel. If there is specific portions of this transcript — of the tape, rather, that you wish to get into, you can just transcribe those portions and then you know, I guess maybe I’m trying to steer you in the right direction, Mr. D. In other words, I’m not going to precluded you from refreshing this witness’ recollection with a transcript which can be, you know, the foundation can be laid as an accurate translation and transcription of the tape-recorded statement, those portions that you wish to get into with the witness. (ART 100.)
D made no further attempt to ask Crespo any meaningful questions. Then on October 5, 1998, following the declaration of a mistrial on appellant’s first retrial and a Marsden hearing at which D admitted that he was not prepared to go to trial on appellant’s case because he thought it was going to trail another of his cases for which he was prepared (RT 7), the prosecutor informed the court that the accuracy of the People’s translation of appellant’s statement had been challenged in the first appeal. She stated that the People’s transcript could not be used by D to question Crespo because she was not agreeing that the translation was accurate and that she understood that D had not secured an independent translation. (RT 13.)
Had D followed Judge Felice’s advise, he would have been able to refute the prosecutor’s statement and to advise the court that he had in fact secured an independent translation of the tape. Instead, he told the court that he had no problem with what the prosecutor was saying. (RT 14.)
It is difficult not to be aghast at counsel’s stubborn determination not to have the tape transcribed so that he could use it to cross examine Crespo. It quite simply “boggles the mind” that any attorney would go to trial once, let alone three times, without be totally familiar with his client’s statement to the police and taking whatever steps were necessary to be able to effectively cross-examine the officer who took the statement.
The only lesson D appeared to learn from his problems in the first retrial was that he would not even attempt to cross examine Crespo about anything that he had not testified to in his direct examination. (RT 69-71.) It is beyond cavil that no competent attorney would attempt to defend a client against any criminal charge, let alone a murder charge, without being completely familiar with any statement his client had given to the authorities. If, as in this case, the interview was in another language, counsel providing effective legal assistance would have secured a copy of the tape and the prosecution’s English translation, and would then have secured an independent translation of the tape. Mr. D’s failure to do so manifestly meets the first prong for proving ineffective assistance of counsel, i.e., his performance fell well below an objective standard of reasonableness.
D. Petitioner Was Prejudiced By Counsel’s Poor Performance.
In this case, counsel’s errors are so numerous and of such significance that they combined to deprive appellant of due process of law. Therefore, reversal is required unless respondent can prove beyond a reasonable doubt that the second degree murder conviction was unaffected by the errors. That is an impossible burden to meet.
However, even if this court applies the traditional test for ineffective assistance, i.e., whether it is reasonably probable that a better result would have occurred absent counsel’s errors, reversal is still required. Indeed, based on the quantity and quality of counsel’s errors, reversal would be required even if the old “sham” or “farce” standard were still in effect. Mr. D did not even bother to file a notice of appeal for appellant.
The issue in this case was not who killed Mr. N but whether appellant was legally culpable and is so the level of his culpability. The trier of fact was faced with determining whether appellant acted reasonably to defend himself, acted unreasonably but in good faith to defend himself, or acted with malice aforethought. Appellant has now faced the power of the state and loss of his liberty at three defective trials. Indeed if counsel had not consented to discharge of the jury in appellant’s first retrial, he would have had a duty to raise a once in jeopardy defense which would have ended this ordeal.
Appellant has more than just a reasonable chance of being acquitted or found guilty of a lesser included offense if he is ever fairly tried and effectively represented. Justice requires reversal.
V. THE ABOVE ERRORS COMBINED TO DEPRIVE APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW
Even if this court were to conclude that the above errors considered individually were not prejudicial, their cumulative prejudicial impact is overwhelming and denied appellant his state and federal constitutional rights to due process of law. (People v. Sanchez (1995) 12 Cal.4th 1, 60; People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Thus reversal is required.
CONCLUSION
Because appellant was denied his constitutional right to a fair jury trial and to effective assistance of counsel, his conviction must be reversed. It falls to this court once again to do justice in this case.
DATED:
Respectfully submitted,
PATRICIA L. WATKINS
Attorney for JOHN DOE
FOOTNOTES:
Footnote 1: All statutory references are to the Penal Code unless otherwise specified.
Footnote 2: More details regarding the cause of the mistrial will be provided in relationship to the issue on double jeopardy.
Footnote 3: Mr. H testified in all three of appellant’s trials. Appellant and this court referred to him as Mr. H in appellant’s first appeal.
Footnote 4: Mr. N was described in the coroner’s report as well developed five-foot-four-inch and 162 pound Hispanic male. (Supp. CT, p. 3; ex. 7.)
Footnote 5: The issue is now pending before the California Supreme Court in People v. Blakely (S062453) review granted 10-1-97.
Footnote 6: Penal Code section 192, subd. (b) provides that involuntary manslaughter is a homicide committed “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”
Footnote 7: People v. Karis (1988) 46 Cal.3d 612, 642.
Footnote 8: People v. Watson (1956) 46 Cal.2d 818.
Footnote 9: Appellant requests this court to judicially notice the briefs and its own file in F024536 and F027919.
Footnote 10: The note is dated August 13, 1998; however, both the clerk’s and reporter’s transcripts reflect that the court received the note on August 14, 1998, and spoke with the jury in the courtroom at 11:50 a.m. and then excused them for lunch with the understanding that the court would address the note following the noon recess. (CT 53, RT 322.)
Footnote 11: The double jeopardy constitutional protections are codified in Penal Code sections 1023 and 1140.
