Brief Bank # B-962 (Re: F 4.51 n6 [Alibi: Aider And Abettor Or Conspirator: Prejudicial To Include Conspiracy When Not Presented By The Evidence].)
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Date of Brief: January, 2003
EXCERPT FROM BRIEF
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SAN BENITO, STATE OF CALIFORNIA,
THE HONORABLE ALAN HEDEGARD, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
Attorneys for Appellant,
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GIVING CALJIC NO. 4.51.
As the foregoing discussion reveals, the central weakness in the government’s case was the absence of evidence that appellant performed any act which assisted in the commission of the burglary. Indeed, the government’s eyewitnesses, Ms. C and Mr. D, testified that the SUV was not present while the burglary was in progress. (RT 380, 410.)
Given this evidence, defense counsel argued to the jury that there was insufficient evidence in support of the government’s theory that appellant had served as a lookout. In this regard, defense counsel cited Black’s Law Dictionary for the proposition that a lookout is one who engages in “careful and vigilant watching.” (RT 812.) Counsel then argued:
“A lookout, other than the definition I’ve put up here that comes from the legal dictionary, would typically be someone who’s standing watch, who’s looking at what is happening, who is standing at the scene of the crime to warn the principals in the crime as to what is going on, the approach of the police. Somebody’s coming, ‘We need to get out of here.’ That didn’t happen.” (RT 815.)
Regrettably, the trial court gave an erroneous jury instruction which served to eviscerate the defense theory of the case. Pursuant to CALJIC No. 4.51, the court instructed the jury that:
“[I]f the evidence establishes beyond a reasonable doubt that the defendant aided and abetted the commission of or was a conspirator in the commission of the crime charged in this case, the fact, if it is a fact, that he was not present at the time and place of the commission of the alleged crime for which he is being tried does not matter and does in itself entitle the defendant to an acquittal.” (RT 775, emphasis added.)
As is readily apparent, No. 4.51 was an inappropriate instruction in this case. This is so for two reasons.
First, the instruction advised the jury that appellant’s absence from the scene of the burglary did “not matter” if he “was a conspirator in the commission of the crime . . . .” (RT 775.) However, the jury was not given any further instruction on the meaning of a criminal conspiracy. Thus, it is quite possible that the jury completely disregarded appellant’s theory of the case by conjuring up its own erroneous definition of conspiracy. (See People v. Earnest (1975) 53 Cal.App.3d 734, 745; conspiracy is a technical term which the trial court must define sua sponte since it is “not generally understood by the lay public.”)
Second, the instruction was highly misleading in the context of this case since the government’s only theory of aiding and abetting was that appellant acted as a lookout. Thus, under the government’s theory of the case, appellant could not be held liable if he was absent from the scene when the burglary was committed.
In short, the use of No. 4.51 effectively allowed the jury to ignore appellant’s defense that he did not aid and abet since he was not present when the burglary was in progress. In the words of the instruction, appellant’s absence did “not matter” and did not “itself entitle [him] to an acquittal.” (RT 775.)
With respect to this last point, the government is certain to argue that the jury could not have misapplied the instruction since it was qualified by the use of the word “if” (i.e. the instruction states that appellant’s absence was irrelevant only “if” the jury otherwise concluded the he “aided and abetted the commission” of the offense). (RT 775.) This technical reading of the instruction cannot save the day for the government. This is so for two reasons.
First, as was discussed above, the jury was told that it could ignore appellant’s absence if it found that he was a member of a conspiracy. Thus, the jury may well have ignored appellant’s defense based on the conspiracy reference in the instruction.
Second, there was simply no basis in the evidence for the jury to conclude that appellant aided and abetted the burglary if he was not acting as a lookout. Thus, the instruction could only have confused the jury. Indeed, the record otherwise establishes that the jury was struggling with the legal ramifications of the factual question of whether appellant was present at the scene.
While it was deliberating, the jury propounded a written question concerning CALJIC No. 3.01. (CT 265.) Specifically, the jury inquired whether the “mere presence” language in the instruction applied to appellant. (CT 265.) In replying to the question, the court gave a correct explanation of the meaning of No. 3.01. (RT 835-837.) However, the court made no reference to No. 4.51 nor did it advise the jury that it was required to make a factual determination as to whether appellant was present at the scene.
The error in giving No. 4.51 must be deemed reversible per se. This is so since the effect of the instruction was to cause the jury to ignore appellant’s defense that he did not serve as a lookout. Viewed from this perspective, the error is tantamount to a complete failure to instruct on a defense. (People v. Stewart (1976) 16 Cal.3d 133, 141; failure to instruct on an affirmative defense compels per se reversal unless “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ [Citation.]” ) [Footnote 1]
In the instant case, No. 4.51 specifically directed the jury that it did “not matter” if appellant was absent from the scene of the crime. (RT 775.) Since no other instruction cured this fundamental misinstruction, reversal is required. (Stewart, supra, 16 Cal.3d at p. 141.)
Aside from California law, per se reversal is required under the due process clause of the federal Constitution. In United States v. Escobar De Bright (9th Cir. 1984) 742 F.2d 1196, the defendant was charged with the conspiracy to sell drugs. Although there was substantial evidence that the defendant had conspired with a government agent, the trial court refused to instruct the jury on the defendant’s theory that a conspiracy conviction cannot be found where the only co-conspirator is a government agent. After finding that the instruction should have been given, the Court of Appeals held that the error was reversible per se:
“The right to have the jury instructed as to the defendant’s theory of the case is one of those rights ‘so basic to a fair trial’ that failure to instruct where there is evidence to support the instruction can never be considered harmless error. Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (Escobar De Bright, supra, 742 F.2d at pp. 1201-1202.)
Importantly, the analysis in Escobar De Bright is entirely consistent with that which has been subsequently posited by the Supreme Court. In this regard, the court has indicated that per se reversal is required when an error “vitiates all the jury’s findings.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 281, emphasis in original.) Or, stated otherwise, per se reversal is compelled when the consequences of an error “are necessarily unquantifiable . . . .” (Id., at p. 282; accord, Neder v. United States (1999) 527 U.S. 1, 10-11.) Since it is impossible to know whether a jury would have accepted a defense which it never had occasion to consider, the conclusion is inescapable that the effect of the instructional omission is “necessarily unquantifiable.” (See Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 740-741; structural error found where the defense was precluded from presenting its “theory of the case;” United States v. Sarno (9th Cir. 1995) 73 F.3d 1470, 1485; “failure to instruct a jury upon a legally and factually cognizable defense is not subject to harmless error analysis. [Citations.]”)
Should this court hold that per se reversal is not required, the error is reviewable under the standard of Chapman v. California (1967) 386 U.S. 18. This is so since the due process clause of the federal Constitution is implicated whenever the defendant is denied the opportunity to present a meaningful defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.)
Under Chapman, reversal is required unless the government can “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) In applying the Chapman standard, the appellate court must examine the impact of the error on the jury.
“[T]he question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279, emphasis in original.)
As the foregoing quotation reveals, the mere existence of strong government evidence does not ipso facto lead to a conclusion of harmless error. To the contrary, if the trial court has committed a fundamental constitutional error bearing a substantial impact, reversal is compelled. This is so since it is the government’s burden to show that the guilty verdict “was surely unattributable to the error.” (Sullivan, supra, 508 U.S. at p. 279; accord, People v. Quartermain (1997) 16 Cal.4th 600, 621.) Stated otherwise, an error must be deemed prejudicial when it has a tendency to influence the jury. (United States v. Harrison (9th Cir. 1994) 34 F.3d 886, 892; “[r]eview for harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also ‘”the most perceptive reflections as to the probabilities of the effect of error on a reasonable trier of fact.”’ [Citation.]”
Here, the error cannot possibly be deemed harmless. As has been discussed above (pp. 6-11, supra), there was a paucity of evidence that appellant performed an act which assisted in the commission of the crime. Given the weakness of the government’s case, it cannot be said that the guilty verdict “was surely unattributable to the error.” (Sullivan, supra, 508 U.S. at p. 279.)
Assuming arguendo that this court should find that error occurred solely under state law, the question is whether there is a reasonable probability that an acquittal would have been returned absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under Watson, a reasonable probability “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, emphasis in original.) Prejudice must be found under Watson whenever the appellate court lacks “‘confidence’” that the error was harmless. (Ibid.)
The jury provided an objective indication that it was struggling with the case when it requested clarification of the “mere presence” language found in CALJIC No. 3.01. (CT 265.) Obviously, the jury was troubled. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295; juror questions provide an indication that the deliberations were close.)
Moreover, it must be emphasized that the error negatively impacted on the essence of the defense case. In her closing argument, defense counsel focused on the lack of evidence that appellant was present while the burglary was in progress. (RT 815.) However, No. 4.51 directed the jury to disregard the argument. The resulting prejudice is manifest.
This court can have little confidence in the result reached below. The judgment must be reversed. (College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th 704, 715.)
Two Court of Appeal opinions have said that the failure to instruct on a defense does not require reversal per se. (People v. Gonzales (1999) 74 Cal.App.4th 382, 391; People v. Elize (1999) 71 Cal.App.4th 605, 616.) However, these cases cannot be followed since this court is required to adhere to the rule stated by the state Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)