Brief Bank # B-956 (Re: F 8.45a [Involuntary Manslaughter Causal Requirement (PC 192(b))].)
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Date of Brief: October 2, 2002
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, No. A000000
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
On Appeal From The Judgment Of The Superior Court
State Of California, County Of Alameda
The Honorable Julie Conger
Judge of the Superior Court
State Bar No. 102322
PO Box 5138
Berkeley, California 94705
Attorney for Appellant
The Trial Court Deprived Appellant Of Due Process
And A Fair Trial When It First Failed, And Then Refused,
To Instruct The Jury On The Essential Elements
Of The Crime Of Involuntary Manslaughter
At least two things are clear in the massive jumble of evidence and argument that constitutes the trial record in this case: Appellant JOHN DOE applied unwelcome force to the person of the victim, Mr. S, and Mr. S died not long afterward. Accordingly, the jurors had little difficulty concluding that Appellant had committed a battery, which (under the instructions they received) provided the predicate for a verdict of involuntary manslaughter. What was less clear – indeed, it was the most fiercely contested issue in the trial – was whether Appellant DOE’s actions actually caused Mr. S’s death. The jurors were manifestly uncertain about the answer, and they twice asked the trial court whether the two things of which they were certain (i.e., that Appellant committed a battery, and that Mr. S died soon after) were sufficient to require that they return an involuntary manslaughter verdict – even if they “d[id]n’t believe his actions resulted in the killing ….” CT 549.
The obvious legal answer was that the jury should not have convicted JOHN DOE of involuntary manslaughter or any form of homicide unless they had found, beyond a reasonable doubt, that his actions did result in the killing. Unfortunately, the instructions originally given by the trial court did not provide the jurors with that essential legal principle. Rather, the involuntary manslaughter instructions garbled or omitted outright essential elements of that offense, and the instructions as a whole affirmatively misled the jury into believing that it was not necessary for them to find that Appellant’s conduct resulted in the unlawful killing in order for them to hold him liable. The prejudice resulting from those erroneous instructions was multiplied whey the trial court responded to the jury’s notes by flatly refusing to clarify the matter. As a result of the trial court’s failure to make the law clear for the confused jurors, it is virtually certain that JOHN DOE was convicted of a homicide that some jurors did not believe he had caused.
The initial failure to instruct the jury on all of the essential elements of the crime of which they ultimately convicted Appellant deprived him of the fair jury trial guaranteed him under the Sixth Amendment and the right to due process of law guaranteed by the Fourteenth. United States v. Gaudin (1995) 515 U.S. 506, 509-10. The trial court’s subsequent failure to respond fully and accurately to the jury’s inquiries violated Penal Code, §1138, and also deprived Appellant of his Fifth, Sixth and Fourteenth Amendment rights to be tried by a jury that is adequately informed of the law governing all elements of the offense and thus able to determine each element. People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Giardino (2000) 82 Cal.App.4th 454, 465-66; People v. Thompkins (1987) 195 Cal.App.3d 244, 250-53. Because each error – and certainly both together – indisputably prejudiced Appellant, he is entitled to a new trial.
Although the defendants were charged with murder, the trial court also instructed the jury on the lesser included crimes of involuntary and voluntary manslaughter. The standard involuntary manslaughter instruction provided to the jury, CALJIC 8.45, was as follows:
“Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life is guilty of the crime of involuntary manslaughter in violation of Penal Code Section 192, subdivision (b).
There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.
A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life.
A killing is unlawful within the meaning of this instruction if it occurred:
1. During the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or
2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.
An ‘unlawful act’ not amounting to a felony consists of Battery, a violation of Penal Code sections [sic] 242.
The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission.
In order to prove this crime, each of the following elements must be proved:
One, a human being was killed.
And two, the killing was unlawful.”
CT 514 [CALJIC 8.45 (2001 revision)] [emphasis supplied].
The instruction given for voluntary manslaughter had an essentially parallel construction, but with an important difference; it provided, in pertinent part:
“Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or in conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code Section 192(a). . . . . .
In order to prove this crime, the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and
4. The perpetrator’s conduct resulted in the unlawful killing.
A killing is unlawful, if it was neither justifiable nor excusable.”
CT 510 [CALJIC 8.40 (2001 revision)] [emphasis supplied].
On the morning of August 3, 2001, the jury’s second day of deliberations, they sent out a series of notes. CT 738. Among them was a request for a readback of the testimony of the medical examiner, Dr. Herrmann, focusing on the various theories about what precisely caused the death of the victim. [Footnote 1] As the day progressed, the jurors sent out several substantive requests for clarification of the law. CT 738. The penultimate one read:
“The charge, Battery [CALJIC] 16.140 AND The charge, Involuntary Manslaughter [CALJIC] 8.45
Does the fact that a killing occured [sic] render the charge Involuntary Manslaughter
Does that fact (alone) allow Battery.”
The final jury note, apparently sent soon after, was as follows:
“Can or does [CALJIC] 16.140 apply due to the fact a human being was killed & knowing that 3.30 can apply to Battery 16.140? [Footnote 2] Because the belief that a defendant was not involved in the killing, even If I know there was a killing, but, I don’t believe his actions resulted in the killing, for only 1 defendant.”
CT 549 [strikeouts in original]. [Footnote 3]
To each of these last two notes, the trial court gave the same written response, as follows:
“You must decide the case for each defendant separately. The definition of battery was supplied solely to provide meaning to the language of the involuntary manslaughter instruction. A conviction of battery as to either defendant is not an option.
CT 548, 550.
Before sending those (identical) responses, the trial judge discussed the matter with counsel. RT 2301-03. Although the substance of the discussion appears to have occurred off the record, the court then went on the record to memorialize it. RT 2302. The judge first read the two jury notes, and then recited her response, which she had already composed. Ibid. She then invited counsel for the co-appellant to “put on the record” an additional request, to which he said:
“I would ask that the jury be instructed based on the whole question[:] [‘D]oes the fact that a killing occurred render the charge involuntary manslaughter or does that fact alone allow battery?’ That should be answered[:] ‘A killing by itself without a causal connection does not render the charge involuntary manslaughter and battery ….’”
Ibid. The trial judge cut him off, and the following colloquy ensued:
[The Court]: “I think I have encompassed it by referring to what the voluntary [sic] manslaughter instruction is and they can refer to that.”
. . . .
[Co-appellant’s counsel]: “‘Does the fact that a killing occurred render the charge involuntary manslaughter,’ [–] that should be answered ‘no’.”
[The Court]: “I don’t see it as a question itself, I see it connected to the next clause or does that fact alone allow battery, and I was answering the entire question.”
[Counsel for Appellant]: “I have a solution. You could cite them to – which number was it – that one-sentence instruction, ‘in order for there to be murder or manslaughter there must be the death of a human being caused by an unlawful act. I think that was ….”
[The Court]: “If they keep wondering about it I can do that also.”
The trial court’s response was provided to the jurors, and almost immediately afterward they returned verdicts finding co-appellant Mr. W guilty of voluntary manslaughter, and finding Appellant guilty of involuntary manslaughter. [Footnote 4] Ibid.; CT 738.
C. The Involuntary Manslaughter Instruction Did Not Clearly Or Accurately Set Out The Elements Of The Crime
As the United States Supreme Court has reiterated:
“The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without ‘due process of law’; and the Sixth, that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”
United States v. Gaudin, 515 U.S. at 509-10 [citations omitted]. It follows that “‘a jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof.’” People v. Figueroa (1986) 41 Cal.3d 714, 726, quoting, Cabana v. Bullock (1986) 474 U.S. 376, 384-85. In this case, the standard instruction governing the offense of conviction failed to inform the jury of some of the necessary elements of that offense, and as such deprived Appellant of his constitutional rights to due process and a fair trial.
The instruction governing the offense of which Appellant was convicted – involuntary manslaughter – purports to list all of the elements of the crime which the jury must find in order to convict (“[i]n order to prove this crime, each of the following elements must be proved:”), and then sets forth just two: “One, a human being was killed. And two, the killing was unlawful.” CT 514 [CALJIC 8.45(2001 revision)]. On its face, this supposedly exhaustive list would permit anyone to be convicted of manslaughter anytime someone else was killed “unlawfully.” In short, it is obviously not a complete or accurate list of the necessary elements of the crime.
Specifically, the list omits at least two other well-established elements of the crime. First, both the list and the instruction as a whole leave out the requirement of causation – i.e., that the killing was the result of the defendant’s conduct – a fundamental element of involuntary manslaughter in this jurisdiction and every other. People v. Penny (1955) 44 Cal.2d 861, 867-68; 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §221, p. 883; see also, United States v. Main (9th Cir. 1997) 113 F.3d 1046, 1049 , and authorities discussed therein. Second, the list itself skips the elemental requirement that the “unlawful act” in question “was dangerous to human life or safety under the circumstances of its commission.” People v. Cox (2000) 23 Cal.4th 647, 675; People v. Wells (1996) 12 Cal.4th 979, 986; People v. Stuart (1956) 47 Cal.2d 167, 173. While other language in that same instruction does purport to clarify that element, on examination the language is inaccurate, confusing and ultimately self-negating – in short, no help at all. We address each of these defects in turn.
1. The Omitted Element of Causation
The glaring omission of the element of causation from recent iterations of CALJIC 8.45 has prompted criticism from the most thorough analyst of California jury instructions. See, 1 FORECITE: Latest Developments in Criminal Jury Instructions (3d ed. 2002) F 8.45a, p.657 [suggesting that the omission comprises federal constitutional error]. It is not surprising, however, that the issue has not previously been addressed in a published case. In most cases, the failure to set out causation as a separate element in a list of the elements of involuntary manslaughter would be of little consequence, for the facts would leave no room for doubt that there was some causative link, and other standard instructions regarding causation would in any event fill the gap. In this case, although it was clear that Appellant engaged in an offensive touching of the victim, it was far from clear whether his actions – as opposed to the clearly unlawful conduct of the other defendant, or some other cause – brought about Mr. S death. Moreover, the other instructions that were given the jury generally served only to reinforce the uncertainty and confusion engendered by the absence of causation from the list of elements.
The obvious problem with omitting causation from the list of “elements” (and from the involuntary manslaughter instruction as a whole) is that doing so gives rise to the inference that causation was intentionally excluded because it is not in fact an element of the offense. This is the inference classically referred to in the law as “expressio unius est exclusio alterius.” See, People v. Anzalone (1999) 19 Cal.4th 1074, 1078-79. In the instant case, that inference was emphatically underscored by the parallel language of the instruction on voluntary manslaughter which was also before the jury. CT 510 [CALJIC 8.40]. The voluntary manslaughter charge used virtually the identical construction, starting with the same promise that all elements would be set forth (“[i]n order to prove this crime, the following elements must be proved:”), and then setting out the same two elements, in exactly the same language used in the involuntary manslaughter instruction (“1. A human being was killed [and] 2. The killing was unlawful ….”). The “voluntary” instruction, however, next set out two further elements that were not included in the companion “involuntary” instruction: mens rea (“3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life) and causation (“4. The perpetrator’s conduct resulted in the unlawful killing.”).
Thus the two instructions, read together, dramatically reinforce the conclusion that the element of causation – the requirement that Appellant’s conduct must have played a precipitant part in the victim’s death – was intentionally omitted from the involuntary manslaughter instruction because it is not a predicate for that crime. And there can be no doubt that the jury was reading the two instructions at pretty much the same time, for just minutes after they expressed their confusion about this issue, they returned verdicts of voluntary manslaughter against Mr. W, and involuntary manslaughter against Appellant DOE.
The unfortunate inference (that causation was somehow not an element of involuntary manslaughter) was similarly bolstered by the very instruction that should have set the matter straight: the standard pattern instruction on “but for” causation that is given in every case, CALJIC 3.40. Due to an obvious oversight, the instruction as given in this case referred only to the charged offense – murder – and made no mention of the lesser included offenses, including involuntary manslaughter. [Footnote 5] CT 473. Thus that instruction and the other causation instructions given along with it served only to point up the absence of causation as an listed element of the crime of conviction. See RT 2045-46 [CALJIC 3.40, 3.41]
Similarly, the instruction titled “CALJIC 8.55[:] ‘Homicide – Cause – Defined,’” provides simply that “[t]o constitute murder or manslaughter there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.” CT 519. The passive construction of that sentence renders it useless for these purposes, for in this case it was absolutely clear that there was “an unlawful act which was a cause of [Mr. S’s] death.” What was far from clear – and what the jury still was not required to determine under this instruction – was whether Appellant’s unlawful act was that cause.
The best that can be said is that the instructions given to the jury regarding causation as an element of the crime of involuntary manslaughter were ambiguous and contradictory. That is not saying enough to preclude a finding of error, for conflicting instructions regarding an essential element of the offense of conviction – just like instructions that remove such an element entirely – are “constitutionally infirm.” People v. Lee (1987) 43 Cal.3d 666, 673-74; discussing, inter alia, Francis v. Franklin (1985) 471 U.S. 307, 322; cf., United States v. Main, 113 F.3d at 1050 [invalidating Ninth Circuit Model Criminal Jury Instruction on involuntary manslaughter for failure fully to instruct on causation].
2. Instruction Negating the “Dangerous Act” Requirement
Another established, essential element of the crime of involuntary manslaughter is that death occur as the result of an act that is “dangerous to human life or safety under the circumstances of its commission.” 1 Witkin & Epstein, California Criminal Law, supra, §221 at 833-34, quoting, People v. Cox, 23 Cal.4th at 671. Like the (related) element of causation, this element is omitted from the seemingly complete list at the end of CALJIC 8.45, but (unlike causation) it is at least dealt with elsewhere in the text of the pattern instruction. Unfortunately, the other language in the instruction misstates the law and effectively eliminates the required element.
The instruction first correctly specifies that, “a killing is unlawful within the meaning of [the law governing involuntary manslaughter] if it occurred … [d]uring the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission ….” RT 2066 [CALJIC 8.45]. As given in this case, the instruction specified that the “unlawful act” at issue “consists of a battery ….” Ibid. Next, the instruction specifies as follows:
“The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission.”
RT 2067 [CALJIC 8.45].
There are two problems with the last quoted formulation: It is logically defective, and it effectively negates the “dangerous act” element. As such, the pattern instruction is directly contrary to the Supreme Court’s decision in People v. Cox, 23 Cal.4th 665.
To the extent it is coherent at all, the quoted sentence appears to be saying: “If one performs an unlawful act without due caution, [s]he has necessarily done something that is dangerous to human life.” The statement is just not true. There are a multitude of “unlawful acts” that can be “committed without due caution and circumspection,” but that are not necessarily “dangerous to human life” – from littering to driving a truck over the neighbor’s hen house. That range of unlawful and uncircumspect behaviors includes all sorts of acts that would constitute the crime of battery, for (as Witkin summarizes), “[i]t has long been established that ‘the least touching’ may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” 1 California Criminal Law, supra, §12, pp. 645-46 [citations omitted]. Certainly, Appellant’s description of what he did in this case, in knocking Mr. S down and pressing a crutch against his chest, could qualify as such an unlawful act – a battery – performed without due caution. But that combination of facts did not render the conduct “dangerous to human life” within any usual meaning of those words.
Just as the quoted formulation offends logic, it also defies the teachings of both the United States and California Supreme Courts. It creates a “conclusive presumption” (i.e., that all unlawful acts performed without caution are necessarily “dangerous to life”) which removes an element from the jury’s consideration, in violation of the principles enunciated in Sandstrom v. Montana (1979) 442 U.S. 510, 522-24 and progeny.
More specifically, the formulation commits the very error condemned in People v. Cox, 23 Cal.4th 665. In that case (as in this one) there was evidence that the defendant committed a battery on the victim, who died not long afterward. Id. at 668-69. At Cox’s trial, “[t]he jury was instructed that, as a matter of law, battery is an inherently dangerous offense and therefore a predicate for involuntary manslaughter without any further proof regarding the circumstances surrounding commission of that underlying misdemeanor.” Id. at 669. The Supreme Court reversed, noting that:
“[t]he involuntary manslaughter instruction given below was incorrect … insofar as it informed the jury that misdemeanor battery is an inherently dangerous offense in the abstract. The instruction further removed from the jury’s determination the question of the dangerousness of the predicate misdemeanor battery under the circumstances of its commission, thus permitting the jury to find defendant guilty of involuntary manslaughter on a finding that he committed the battery with general criminal intent. ‘Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions.’”
Id. at 676 [citations omitted].
In essentially the same fashion, the instruction given in this case “removed from the jury’s determination the question of the dangerousness of the predicate misdemeanor battery under the circumstances of its commission.” It permitted the jury to find Appellant guilty on a finding that he committed “the predicate battery” without “due caution and circumspection” – a standard necessarily met in finding that he committed a battery at all, since that in turn entails a finding that he acted with general criminal intent. As such, it removed an element of the offense from the jury’s consideration, in violation of both the state and federal Constitutions. Ibid.; United States v. Main, 113 F.3d at 1050.
D. The Instructional Errors Cannot Be Considered “Harmless”
Whether treated as a failure to instruct on all required elements, or as the submission of conflicting instructions to the jury, the instructional error in this case requires reversal unless “it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict.” People v. Flood (1998) 18 Cal.4th 470, 504; quoting, Yates v. Evatt (1991) 500 U.S. 391, 403; People v. Lee, 43 Cal.3d at 676. It would be absurd to suggest that the State could meet that standard in the case at bar. If anything, it appears beyond a reasonable doubt that the error did contribute to the verdict entered against Appellant JOHN DOE.
This is certainly not a case in which the defendant has conceded or admitted the elements in question. See, People v. Flood, 18 Cal.4th at 504. On the contrary: The questions regarding causation and the dangerousness of Appellant’s conduct were the most hotly disputed issues in the trial. Similarly – to paraphrase and contrast the Court’s opinion in Lee – this is “a case presenting a significant conflict in the evidence [in which] a reasonable juror could give credence to the defendant’s version of what he did ….” People v. Lee, 43 Cal.3d at 678. Like a kaleidoscope, the evidentiary record in this case presents a dramatically different picture every time it is slightly turned. What is clear, however, is that the jury did not accept the picture that the prosecution tried to assemble – a picture of Appellant slowly strangling the victim with a crutch, and then hauling him off to a watery grave – or they would have convicted him of murder (or at the least, of voluntary manslaughter). Rather, the jury on the whole adopted the version set out in Appellant’s own testimony, in which he accidently injured his friend by holding a crutch against his chest in the course of attempting, unsuccessfully, to save him from a savage beating at the hands of an enraged Mr. W. [Footnote 6]
It was thus entirely possible for a reasonable juror to doubt that Appellant’s battery of Mr. S was “dangerous to human life under the circumstances of its commission” and to doubt that Appellant’s actions actually caused Mr. S’s demise. But we need not linger in the realm of “possibility,” for concrete reality – in the form of the notes submitted by the jury – demonstrates that these jurors actively doubted both of those premises. In fact, one or more of the jurors apparently believed that JOHN DOE’s actions did not result in Mr. S’s death.
The instructional lacuna and outright misstatements clearly left the jury confused, however, as to whether they were nonetheless required by law to presume that Appellant’s conduct was “dangerous to human life” and whether (having thus found all the stated predicates for involuntary manslaughter) they were required to convict Appellant of that crime simply because he battered the victim in the course of a struggle that finally ended in the victim’s death – even if his actions did not cause that death.
Simply put, the failure to instruct fully and correctly regarding the causation elements of involuntary manslaughter cannot be deemed harmless when causation was in dispute and the jury pled – without success – for clear instruction on the issue, saying that they did not “believe [the Appellant’s] actions resulted in the killing.” As will be discussed presently the trial court’s failure to answer the jury’s plea was prejudicial error, in and of itself. But the unsatisfied jury inquiries are also sufficient to demonstrate that the inaccurate, incomplete and incoherent instruction given on involuntary manslaughter – CALJIC 8.45 – was error that deprived Appellant of due process, and that mandates reversal for a new, fair trial.
E. The Trial Court’s Failure to Answer the Jury’s Questions Was Prejudicial Error
Despite its attempts to assist the jury, the trial court simply did not answer the question they asked – or at least the part of the question that was most significant, both for the jurors and for Appellant. Because a correct answer to that question would have made the difference between acquittal and prison for Appellant, the trial court again committed prejudicial error.
Penal Code, §1138 is “virtually unchanged from the form in which it was originally enacted in 1872.” People v. Butler (1975) 47 Cal.App.3d 273, 279. It provides as follows:
After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.
Pen. Code, § 1138.
The statute codifies the most important function of the trial court: “the primary duty to help the jury understand legal principles it is asked to apply.” People v. Beardslee, 53 Cal.3d at 97, citing, People v. Thompkins, 195 Cal.App.3d at 250-51; People v. Moore (1996) 44 Cal.App.4th 1323, 1331. “Moreover, when constitutional requirements are involved, the proper execution of this duty is a matter of insuring due process of law as guaranteed by the Fourteenth Amendment.” McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 839 [en banc], cert. denied (1998) 523 U.S. 1103; see also, Bollenbach v. United States (1946) 326 U.S. 607, 612-13, 615. As the California Court of Appeal explained:
The trial judge’s instructions to the jury have always been recognized to be a fundamentally important stage of the criminal proceeding. (See, e.g., People v. Dagnino (1978) 80 Cal.App.3d 981, 988.) Indeed, one can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve. In this role, the trial judge acts much like a teacher or a guide; it is no accident that we refer to the trial court’s obligation to “instruct” the jury on the applicable law. It is not sufficient that the trial judge be an adequate legal lecturer. Jurors are not first year law students with some independent motive for legal study. At best, they are well-meaning but temporary visitors in a foreign country attempting to comprehend a foreign language.
To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judge’s function to facilitate such an understanding by any available means. The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts. A jury’s request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept?
* * *
[N]othing results in more cases of reversible error than mistakes in jury instructions. And if jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury’s inquiry during deliberations.
People v. Thompkins, 195 Cal.App.3d at 250, 252-53.
This is a case in which the judge made a mistake in responding to the jury’s inquiry, and a crucial mistake at that. Despite the terrible syntax of the two final jury notes, it is not difficult to discern what they wanted to know. [Footnote 7] The question – “Does the fact that a killing occurred render the charge involuntary manslaughter, or does that fact (alone) allow battery” (CT 547) – lends itself to obvious translation as: “[Assuming we find criminal conduct by the defendant], does the fact that the victim died mean that we must return a verdict of [nothing less than] involuntary manslaughter, or can we convict the defendant of battery?” The vital core of that question is in the first part, which asks whether the unlawful touching, coupled with the subsequent death of the victim, necessarily constitutes homicide – even in the absence of a casual link between the battery and the victim’s death. [Footnote 8] If there was any doubt about the jurors’ real concern, it was erased by the second note, which emphasized that they wanted to know what to do about the fact that, although the defendant surely was liable for something, they “d[id]n’t believe his actions resulted in the killing.” CT 549.
As such, the jury unerringly pointed to the fatal lacuna in the court’s jury charge: namely, the lack of adequate instruction on the elements of involuntary manslaughter related to causation. We have already set out the errors committed in this regard in the trial court’s charge to the jury. But irrespective of whether the trial court erred by failing to give more and better instruction on causation in the first instance, it was certainly required to illuminate the matter for the jurors when they asked. People v. Solis (2000) 90 Cal.App.4th 1002, 1015-16; People v. Miller (1981) 120 Cal.App.3d 233, 236.
As counsel accurately pointed out, the trial court was obligated to tell the jury that, unless they found that there was a casual connection between the offensive touching and the victim’s death, they could not convict the defendant of any form of homicide. The trial judge shrugged off counsel’s interpretation, choosing instead to read the jury’s notes as merely asking the second part of the question, i.e., whether they had the power to return a verdict of battery as a lesser included offense. While it certainly seems that the jury wanted to know that as well, the notes make clear that their interest in a non-homicide verdict was not born merely out of an impulse toward lenity. Rather, as the second note made plain, the jurors (or at least some of them) did not believe that the defendant’s actions brought about the victim’s death, and were uncertain about whether they were legally obliged to bring in a homicide verdict, given that the defendant’s actions were unlawful and were certainly connected to the death. The only responsible answer that the trial court could have given in those circumstances was: “If you don’t believe (in fact, if you are not convinced beyond a reasonable doubt) that the defendant’s actions caused the ‘killing,’ then you must acquit the defendant of all charges.” The trial court’s refusal to so instruct was manifestly erroneous.
In so asserting, we distinguish this case from those in which trial courts fulfilled their duties under §1138 by referring juries back to “‘original instructions [that were] themselves full and complete ….’” E.g., People v. Smithey (1999) 20 Cal.4th 936, 983-84; People v. Davis (1995) 10 Cal.4th 463, 522-23; both quoting, People v. Beardslee, 53 Cal.3d at 97. As we have already demonstrated, the pertinent instructions in this case were at best conflicting and confusing, and at worst utterly erroneous. Moreover, the jury in this case was demonstrably confused about the original instructions, and, “[u]nder the circumstances of this case, it [would] not [have been] enough to inform the jurors they must rely on the very instructions that had confused them.” People v. Cordero (1989) 216 Cal.App.3d 275, 283; see also, People v. Solis, 90 Cal.App.4th at 1015-16; People v. Miller, 120 Cal.App.3d at 236; McDowell v. Calderon, 130 F.3d at 839, and cases cited therein.
But even worse: The trial court did not refer the jury back to the pertinent general instructions – even after trial counsel suggested that it should. RT 2303. We can grant, arguendo, some small possibility that the jury could have untangled the web in which it was caught if it was reminded of the admonition that “[t]o constitute manslaughter there must be, in addition to the death of a human being, an unlawful act which was the cause of that death.” CT 519 [CALJIC 8.55]. Perhaps they somehow could have extrapolated from that vague wording the requirement that the act in question needed to be Appellant’s unlawful act, [Footnote 9] and the related requirement that the act needed to be one that was “dangerous to human life in its commission.” The sad fact remains that the trial court did not even throw the jury that tenuous line. Rather, “[t]he trial court left the jury in this case floundering.” People v. Gonzales (1999) 74 Cal.App.4th 382, 391.
“[I]f jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a a jury’s inquiry during deliberations.” People v. Thompkins, 195 Cal.App.3d at 252-53. As in Gonzales, this Court need not determine whether the applicable standard of prejudice is whether the trial court’s failure to answer the jury’s questions (a related but distinct error) “was harmless beyond a reasonable doubt or the less stringent standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836.” People v. Gonzales, 74 Cal.App.4th at 391.[Footnote 10] The court in that case noted a number of factors – including the jury’s request for a readback of testimony pertinent to their question; the jury’s notes indicating that they were confused about the pertinent point of law; and the fact that the jurors had difficulty agreeing about whether the element in question was factually satisfied – demonstrating that it was “reasonably probable that appellant would have obtained a more favorable result” if the trial court had fully and accurately responded to the jury’s inquiry. Ibid. The same factors are present in this case: The jury sought extensive readbacks of the testimony concerning causation; their notes demonstrated that they were confused about the law governing that element; and at least one of the jurors plainly did not believe that it was factually satisfied.
To these can be added other classic indicia of prejudice. The case was extremely close. Although it was not a very complicated matter, the jury deliberated for nearly two full days before reaching its verdict. See, e.g. People v. Rucker (1980) 26 Cal.3d 368, 391 [nine hours of deliberations demonstrated that case was close]; People v. Woodard (1979) 23 Cal.3d 329, 341 [six hours deemed a long time]; People v. Bennett (1969) 276 Cal.App.2d 172, 176 [ten hours showed case was close]; see also, People v. Filson (1994) 22 Cal.App.4th 1841, 1852 [two days of deliberations, focused on very question at issue, demonstrates error not harmless]. And the fact that the jurors returned their verdicts just minutes after the trial court responded to (but did not answer) their inquiries strongly suggests that the trial court’s response sealed Appellant’s fate. See, Rogers v. United States (1975) 422 U.S. 35, 40. Under these circumstances, the trial court’s erroneous failure to answer the jury with full and accurate instruction cannot be considered harmless under any standard, and Appellant’s conviction must be reversed.
F. The Trial Court Also Erred By Failing To Instruct Fully On The Law Governing Proximate and Intervening Causes
Even if the instructions given in this case had not mangled the elements of involuntary manslaughter bearing on causation, the trial court would nonetheless have been duty-bound to give specific instruction, sua sponte, on the doctrines of proximate and intervening causes as those doctrines related to the facts of this unusual case. See, People v. Hebert (1964) 228 Cal.App.2d 514, 518-21.
The law governing this point is laid out superbly and at length in the Appellant’s Opening Brief filed on behalf of co-appellant Mr. W, at pp. 29-40 and 46-57. It would be pointless and an undue imposition on this Court’s attention for Appellant to reiterate the principles that have been so ably stated by counsel for the co-appellant. Accordingly, we respectfully ask the Court to permit Appellant to adopt, by this reference, the doctrinal analysis set forth in the noted portions of that brief.
Needless to say, Appellant does not adopt the co-appellant’s application of that law to the record facts of the instant case. The co-appellant’s brief quite naturally attempts to highlight evidence to the effect that Appellant JOHN DOE (rather than co-appellant Mr. W) directly caused the death of Mr. S, by “strangling” Mr. S with the crutch or by drowning him. Thus, for instance, the co-appellant relies heavily on portions of the testimony of prosecution eyewitnesses to the effect that Appellant applied the crutch to Mr. S’s throat, intentionally and for a prolonged period, after Mr. W had already quit the fight; and on portions of the pathologist’s testimony that would support such a version of events.
Suffice it to say that the jury, by its verdicts (and by its inquiries of the trial court) clearly rejected that version of the fatal incident. If they had believed that he acted with such intention, the jurors would not have acquitted Mr. DOE of murder and voluntary manslaughter. If the jurors believed that Mr. DOE was so obviously the sole causative agent of Mr. S’s demise, they never would have suggested (in their notes to the court) that he did not cause the death at all, and it seems unlikely they would have convicted Mr. W of voluntary manslaughter – even under the deficient instructions received. To have arrived at a verdict of involuntary manslaughter for Appellant DOE, the jurors instead must have credited his own testimony to the effect that he used the crutch only in an effort to restrain Mr. S by placing it across Mr. S’s chest; that he certainly did not intend to harm Mr. S; and that Mr. S got up and fought on with Mr. W after being restrained with the crutch. [Footnote 11] As such, the jurors saw through the testimony of the prosecution’s percipient witnesses as being generally implausible and patently dishonest, and understood the defects in the pathologist’s conclusions stemming from the influence of erroneous police accounts of the crime on that witness’s thought processes.
Appellant submits that, had proper instruction been given on proximate and intervening causation, the jurors could reasonably have found that Mr. S’s death was proximately caused by any one of a number of “supervening” causes that either were not put in motion by Appellant or were not reasonably foreseen by him: Mr. S’s re-engagement in the fight with W, which culminated in an incredible beating at the latter’s hands (or, more precisely, his feet); sudden congestive heart failure, brought on by Mr. S’s large heart, cocaine intoxication, and his own physical exertions; even the workings of the tide tables. If the jurors harbored even a reasonable doubt in regard to any of these matters, they were obliged to acquit Appellant entirely; and had they been properly instructed, they would have done so. In this regard, as in those already discussed, the failure properly to instruct the jury deprived Appellant of due process and a fair trial, and those errors merit reversal. United States v. Gaudin, 515 U.S. at 509-10.
For the reasons set forth above, the judgment of conviction entered against appellant JOHN DOE for the crime of involuntary manslaughter must be reversed.
Dated: October 2, 2002
Attorney for Appellant
Footnote 1: The trial court reported that the jurors asked “‘to hear specifically from Dr. Herrmann’s testimony all pertaining to photograph [sic] the cause of death including the findings of all areas with trauma, the findings around the superior thyroid horn, the theory on drowning, the theory about tongue blocking the airway, the theory about causes of unconsciousness and actual findings or possibility of findings and the theory about heart attack.’” RT 2298.
Footnote 2: In response to an earlier note regarding the relationship between battery and CALJIC 3.30 (“Concurrence of Act and General Criminal Intent”), the court had instructed the jurors that “Instruction 3.30 is applicable to any general intent crime. Battery is a general intent crime.” CT 546.
Footnote 3: Curiously, although both notes are “signed” by the foreperson – “#1” – at least three distinct handwritings are employed. The writing in the first note is quite different from the hand that begins the second note; a third person completes the second note, starting at the end of the strikeout portion of that note. See, CT 547, 549.
Footnote 4: According to the clerk’s minutes, at 3:50 p.m. the trial court received the final note and then responded to the jury; verdicts were returned at 4:35 p.m. CT 738.
Footnote 5: The following was given to the jury as “CALJIC 3.40[:] CAUSE – ‘BUT FOR’ TEST”:
“To constitute the crime of murder there must be in addition to the death an unlawful act which was a cause of death. [¶] The criminal law has its own particular way of defining cause. A cause of death is an act that sets in motion a chain of events that produces as a direct, natural, and probable consequence of the act the death and without which the death would not occur.”
CT 473 [CALJIC No. 3.40] (emphasis supplied).
Footnote 6: At sentencing, the trial judge expressed a similar view of the facts, finding “that Mr. DOE’s participation was basically that … he did not have the intent to kill, he did not have the intent to injure, he entered this fray primarily to serve as a peacemaker. [He] did not participate in this fray until well into the episode, [and] the victim was an initiator and a willing participant in the combat ….” RT 2332-33.
Footnote 7: Of course, if the trial court was not completely certain about what the jurors were asking, “[s]he should have begun by asking the jury to clarify their questions.” People v. Thompkins, 195 Cal.App.3d at 519.
Footnote 8: Stripped to its mathematical rudiments, the jury’s core question was: “Does unlawful physical contact + death of victim = homicide, where death did not result from that contact?”
Footnote 9: We do not address the permutations involving aider-and-abettor liability here or elsewhere in these arguments, for there is no indication that the jury premised its verdict on such a theory, and in fact, the verdicts they reached would be difficult or impossible to explain under such a theory.
Footnote 10: The California Supreme Court has held that “[a] violation of section 1138 does not warrant reversal unless prejudice is shown” (People v. Beardslee, 53 Cal.3d at 97), but has not specified the standard under which prejudice is to be measured. Ibid. The appellate courts that have addressed the issue have held that “[f]ailure to give this type of amplifying instruction is analyzed under the standard for prejudice enunciated in Chapman v. California (1967) 386 U.S. 18; that is, whether the instructional error was harmless beyond a reasonable doubt.” People v. Cordero (1989) 216 Cal.App.3d 275, 283; see also, People v. Hill (1992) 3 Cal.App.4th 16, 26 [holding failure to respond to substantive jury inquiry “harmless beyond a reasonable doubt.”]. Most, however, have simply done what the Supreme Court did in Beardslee – that is, they have decided whether or not the failure was “prejudicial” without ever identifying the standard by which prejudice was measured. E.g., People v. Giardino (2000) 82 Cal.App.4th 454 [failure to clarify instructions “prejudicial” error where substantial evidence would permit reasonable jury to resolve issue in defendant’s favor under proper instruction]; People v. Moore (1996) 44 Cal.App.4th 1323, 1332 [no prejudice found].
Footnote 11: Appellant’s account was also largely consistent with the evidence of Mr. M, who was arguably the most reliable of the prosecution percipient witnesses (and certainly the only sober one in the lot). Mr. M testified that he missed the beginning of the fight, and never saw Mr. DOE use the crutch; but he did see what seemed to be the end of the fight, which consisted of Mr. W repeatedly kicking the victim in the head. According to Mr. M, nothing happened for several minutes after that, and then – as he was leaving – W and DOE were lifting Mr. S up. RT 687-94; 702; 987; 1106; 1115. That generally matches the chronology set out by Appellant, suggesting that the next thing that happened was that the two defendants, and then DOE alone, dragged Mr. S to the water. By the same token, it makes no sense to suggest (as W’s brief implies) that it was not until after Mr. M left that Appellant placed the crutch on the (then completely inert) Mr. S, causing the fatal injury. Also – for what it is worth – Appellant’s chronology was supported by some of the many, conflicting versions given by the lead prosecution witness, Mr. C, who at times testified that Mr. S got up, fought more with W, and received his final injuries after DOE used the crutch to restrain him. RT 391, 395, 409.