Brief Bank # B-955 (Re: F 14.66a [Receiving Stolen Property With Innocent Intent: Burden Of Proof As To Affirmative Defense].)
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Date of Brief: September, 2002.
THE TRIAL COURT ERRED IN INSTRUCTING WITH CALJIC NO. 14.66, WHICH IMPROPERLY PLACES A BURDEN OF PROOF ON THE DEFENDANT, IN VIOLATION OF FEDERAL CONSTITUTIONAL PRINCIPLES
The trial court instructed the jury, pursuant to CALJIC No. 14.66, as follows:
In the crime of receiving stolen property, there must exist a union of joint operation of act or conduct and general criminal intent.
There is no general criminal intent if a defendant buys or receives stolen property, knowing it to be stolen, with the intent to return the property to its owner. The presence of an innocent intent is a defense to the charge of buying or receiving stolen property, and the burden of raising a reasonable doubt as to the existence of criminal intent is upon the defendant. (CT 171; emphasis added.)
Appellant contends that this instruction violated the federal constitution, since it shifted a burden of proof on an element of the offense, to appellant.
Under In re Winship (1970) 397 U.S. 358, 363-364, the burden is on the prosecution to prove each element of the charged crime, under due process principles. If it is shown that the defendant took possession of the property, intending to return it to its rightful owner, this will negative the mental state necessary for the crime. (People v. Dishman (1982) 128 Cal.App.3d 717, 721.) Once the prosecution has provided sufficient proof to show beyond a reasonable doubt, that the crime has been committed, the defendant, in order to avoid conviction, has the burden of coming forward with evidence which contradicts or undermines the prosecution‘s case. (People v. Figueroa (1986) 41 Cal.3d 714, 721.) However a burden of coming forward is not the same as a burden of persuasion.
The case which exemplifies this distinction well is People v. Loggins (1972) 23 Cal.App.3d 597. In that case the defendant was charged with murder, and the primary issue was whether the defendant had acted in self-defense. The trial court instruceted the jury on that issue as follows:
Upon a trial of a charge of murder, it is a defense that the homicide was [justifiable][excusable]. To establish this defense th eburden is on the defendant to raise a reasonable doubt as to his guilt of the charge of murder. (Id., at p. 599.)
The Loggins court pointed out that the correct form of the jury instruction would have stated that once the prosecution has sustained their burden of proof, the defendant bears the burden of coming forward with evidence, but that the burden of persuasion is not shifted in any manner to the defense. (Loggins, supra, 23 Cal.App.3d at pp. 601-602.) The court explained that even if the prosecution case provided proof, beyond a reasonable doubt, that malice was presumed, “the presumption is not one affecting the burden of proof, but one affecting the burden of producing evidence.“ (Id., at p. 603.)
This principle in Loggins has been embraced in later cases. In People v. Adrian (1982) 135 Cal.App.3d 335, 337, the court noted that the legislature had modified the jury instruction in question in order to avoid constitutional problems of placing a burden of proof on the defendant.
The thornier issue is whether the error in CALJIC No. 14.66 amounts to reversible error. In Loggins, the reviewing court found that the error in instructing the jury on the burden of proof on self-defense was harmless. That court concluded that the defendant had failed “to establish that the erroneous instruction actually shifted to the defense some part of the prosecution‘s burden of persuasion.“ (Loggins, supra, 23 Cal.App.3d at p. 604.) The court reasoned that the primary defect of the instruction was to inform the jury that the defense had the burden of showing reasonable doubt, when the correct instruction was that reasonable doubt could come from either the defense evidence or the prosecution evidence. (Id., at pp. 604-605.) But since the jury had also been instructed that the prosecution bore the burden of proving guilt beyond a reasonable doubt, the court concluded that the jury instruction “did not distract the jurors from measuring all the evidence of self-defense by the yardstick of reasonable doubt.“ (Id., at p. 605.) The court found it noteworthy that the jury returned a verdict of manslaughter rather than murder, indicating that they paid attention to the concept of “beyond a reasonable doubt“. (Ibid.) The court concluded that under either the Chapman or Watson standard, there was neither a reasonable possibility or reasonable probability that the error was prejudicial. (Ibid.)
It should be remembered that Loggins was decided well before Sullivan v. Louisiana (1993) 508 U.S. 275, which held that an error affecting the reasonable doubt standard was structural error, requiring reversal per se. Since the error in the instant case affected the burden of persuasion beyond a reasonable doubt, it should be considered a structural error.
Loggins was also decided before Sandstrom v. Montana (1979) 442 U.S. 510. Sandstrom observed that the court must pay attention to “the way in which a reasonable juror could have interpreted the instruction“ in question. (Id., at p. 514.) In that case the court concluded that it was possible that a reasonable juror could have taken the instruction to be a mandatory presumption. (Id., at p. 515.) Later, the court decided that a reasonable juror “could well have been misled by the instruction ….“ (Id., at p. 517.)
The same principles apply in the instant case. A reasonable juror, confronted with CALJIC No. 14.66, could have been misled into thinking that it placed a burden of persuasion on the appellant, once the prosecution had shown conscious possession of stolen property, despite the fact that CALJIC No. 2.90 was also given. A reasonable juror could easily have inferred that CALJIC 2.90 was a general instruction, to be used unless a more particular instruction became applicable. The juror may have concluded that since CALJIC No. 14.66 was a more particulr instruction (it only applied where there was evidence of recently stolen property), that instruction should be applied to the receiving stolen property charge, instead of the more general CALJIC No. 2.90 instruction. Such a deduction would comport with the principle that where a general statute and a special statute cover the same subject matter, the latter controls. (People v. Coronado (1995) 12 Cal.4th 145, 153-154.) Therefore such a deduction would be reasonable, and shows that a reasonable juror could have been misled by CALJIC No. 14.66.
For these reasons the use of CALJIC No. 14.66 violated the federal constitution, in that it could reasonably have been interpreted to lighten the prosecution‘s burden of proof on the receiving stolen property charge. Since a jury instruction which reduces the burden of proof is considered structural error, the judgment of conviciton on the receiving stolen property charge must be reversed, and remanded to the trial court for a new trial.