Brief Bank # B-926 (Re: F 8.87 Inst 3 [Jury Must Determine Whether Unadjudicated Acts Were “Violent” And “Criminal”].)
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B. The Trial Court Improperly Directed the Jury to Presume That Possession of a Shank Involved an Actual Threat of Force or Violence or the Implied Use of Force or Violence
Penal Code section 190.3, subdivision (b), allows a jury to consider as an aggravating factor any criminal activity that involves the implied threat of violence or the actual threat of violence. Assuming, for the purposes of this claim, that the evidence was admissible under factor (b), the ultimate issue of whether the incident rose to the required level of force or violence is one for the jury to decide. Here, the trial court took the issue out of the juror’s hands by erroneously instructing them that the evidence was either an implied use of force or violence or an actual threat of force or violence:
Evidence has been introduced for the purpose of showing that the defendant has committed the following criminal activity – i.e., bringing a deadly weapon into county jail – which involves the implied use of force or violence or the threat of force or violence.
Before a juror may consider any such criminal activity as an aggravating circumstance in this case, a juror must be satisfied beyond a reasonable doubt that the defendant did, in fact, commit such criminal activity.
It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubt that such criminal activity occurred, that juror may consider that activity as a factor in aggravation. (RT 2542-2543; see also CT 4.21, CALJIC 8.87.)
By defining the alleged criminal activity as one that involves an actual threat or implied use of force or violence, the instruction removed this issue from the jury’s consideration. Moreover, the trial court impermissibly increased the weight of the evidence by escalating the defined level of force from an implied threat to an actual threat or implied use of force or violence. Accordingly, it violated appellant’s right to due process of law (U.S. Const., Amend. 14; Cal. Const., art. I, §§ 7 and 15) and compromised the reliability of the penalty verdict in violation of Eighth Amendment standards.
1. The Instruction Created a Mandatory Presumption
The prosecution must prove beyond a reasonable doubt criminal activity offered as aggravation under Penal Code section 190.3, subdivision (b). (People v. Robertson, supra, 33 Cal.3d ay p. 54.) Before this evidence is considered in aggravation, under the plain language of factor (b), the jury must also find that the acts involved force or violence. This is a question of fact rather than law: “[W]hether a particular instance of criminal activity ‘involved … the express or implied threat to use force or violence’ (§ 190.3, subd. (b)) can only be determined by looking to the facts of the particular case.” (People v. Mason (1991) 52 Cal.3d 909, 955.) Accordingly, the jury must determine both that a particular act occurred and that the act involved the requisite force or violence. (See People v. Figueroa (1986) 41 Cal.3d 714, 734 [factual determinations are for the jury to decide].)
Appellant had a due process right to be sentenced under California’s statutory guidelines that require the jury to determine the applicable aggravating and mitigating factors. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.) Here, the instruction violated due process by creating a mandatory presumption that the evidence constituted an actual threat or implied use of force or violence. Once the jury found the underlying fact to be true, they were to presume that it constituted an implied use or actual threat of force or violence and apply the aggravating factor against appellant. (See Francis v. Franklin (1985) 471 U.S. 307, 314 [“mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts”]; People v. Figuera, supra, 41 Cal.3d at p. 724 [instruction effectively directed verdict by removing other relevant considerations if the jury finds one fact to be true].) This foreclosed any independent consideration of the required elements of the aggravating factor. (Carella v. California (1989) 492 U.S. 263, 266.)
This Court has emphasized that the jury may consider any “innocent explanation” for weapons in prison that do not involve force or violence. (People v. Tuilaepa (1992) 4 Cal.4th. 569, 589; see also People v. Roberts (1992) 2 Cal.4th 271, 332 [expressing doubt about whether a prisoner possessing a weapon in his cell involved conduct rising to the level of an aggravating factor]; People v. Mason, supra, 52 cal.3d at p. 957 [innocent explanation of prison weapon raises ordinary evidentiary conflict for trier of fact to decide].) However, the jury instruction precluded any defense to whether the alleged criminal acts involved a threat or implied use of force or violence.
The instruction directed the jury to infer the implied use or the threat of force or violence once the criminal activity was proved. Accordingly, the instruction improperly removed the factual issue of appellant’s actual or implied threat of force from the jury’s consideration in violation of appellant’s statutory and due process rights. (See People v. Figueroa, supra, 41 Cal.3d at pp. 725-726.)
2. The Instruction Improperly Escalated the Seriousness of the Incident by Defining the Incident as an Actual, Express Threat or Implied Use of Force or Violence
The instruction was particularly egregious in the present case because it allowed the jury not simply to conclude that possession of a weapon was an implied threat of violence (Pen. Code, § 190.3, subd. (b)), but that it was an express threat or implied use of force. Even assuming that the evidence of a weapon in prison is admissible as an implied threat of violence, an instruction that directs the jury to find that the evidence was an actual threat or implied use of force or violence goes far beyond anything that this Court has sanctioned. (See. e.g., People v. Tuilaepa, supra, 4 Cal.4th at p. 589 [evidence admissible only as implied threat]; People v. Ramirez, supra, 50 Cal.3d at pp.1186-1187 [same].)
The difference between an express or implied threat is enormous. An actual threat “must express an intention of being carried out.” (People v. Bolin (1998) 18 Cal.4th 297, 339.) An implied threat is far less immediate, and far more capable of being rebutted. The trial court’s instruction that allowed the jury to consider the incident to be actual express threat made it far more serious than the evidence warranted.
Moreover, the instruction erred by defining the criminal act as involving the “implied use” of force or violence, rather than the “implied threat” of such use. (See Pen. Code, § 190.3, subd. (b), People v. Tuilaepa, supra, 4 Cal.4th at p. 589.) As discussed above, a threat involves an intention to use force or violence when such force has not actually been used. Even after issuing a threat, an offender may retreat or decide not to follow through on the threat. Threats do not necessarily lead to violence. Here, the instruction escalated the level of force by telling the jury that mere possession of the shank implied its actual use. This misinstructed the jury on the statutory requirements. It also permitted the jury to speculate about all the ways that a shank may have been used and to consider it to be much more serious than the evidence warranted. Accordingly, the resulting verdict violated appellant’s due process rights and was unreliable in violation of Eighth Amendment standards. (Beck v. Alabama (1980) 447 U.S. 625, 637 [8th Amendment requirements of reliability in a capital case].)
3. The Instruction was Prejudicial
The mere possibility that an instruction created a mandatory presumption is error. (Sandstrom v. Montana (1979) 442 U.S. 510, 519.) Because the error here violated due process and Eighth Amendment standards, it requires reversal unless it can be shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Similarly, this Court has similarly determined that any substantial error in the penalty phase of a capital trial must be deemed prejudicial. (People v. Robertson, supra, 33 Cal.3d at p. 54.) Under these standards, the judgment must be reversed.
The incident involving the “shank” was the only evidence introduced by the prosecution in the penalty phase. It provided the primary evidence for the prosecution’s argument that appellant could be a future danger if allowed to live. Moreover, had the jury found that the level of force or violence did not rise to factor (b)’s requirements, the jury would have had to consider the absence of violence as mitigation.
Appellant’s trial counsel argued that appellant was simply resisting authority in a passive way, doing something prohibited simply because he could do it. (RT 2572.) The instruction foreclosed this argument by requiring the jury to find it involved the implied use or actual threat of force or violence.
The enormity of the incident increased through the instruction directing the jury to find that it involved either an actual threat or implied use of force or violence – far above the statutory language and the kind of use of the evidence that this Court has allowed. Because the instruction directed the jury to consider the evidence as being far more serious than the incident warranted, it would have weighed especially heavy during the penalty deliberations.
This Court cannot speculate on what the jury might have found had they been properly instructed and the effect that the error had on the jury’s verdict. (Ibid.) Accordingly, it cannot find that the error was harmless. The penalty verdict must be reversed.