Brief Bank # B-969 (Re: F 17.02a [Series Of Wrongful Taking Acts May Constitute Only A Single Offense].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA, No. B000000
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Ventura
The Honorable Herbert Curtis
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By Appointment of the Court of Appeal
IV. ALL CONVICTIONS BEYOND THE FIRST SHOULD BE REVERSED, BECAUSE THE VERDICTS DO NOT SHOW COMMISSION OF MORE THAN ONE CRIMINAL ACT
A. Multiple Convictions Are Not Permitted For A Single Act Violating A Single Statute
Many cases, including recent ones, hold that a defendant cannot stand convicted (not just sentenced) on multiple counts for the same act in violation of the same law. Here, the jury returned four guilty verdicts, but the verdicts don’t show the jury convicted appellant of more than one crime, so 3 of the 4 convictions must be reversed. (Alternatively, 3 convictions must be reversed for failure to give an instruction preventing this problem. (Post, Arg. V.))
To protect the 6th Amendment right to a jury trial, the record must show the jury found facts sufficient to support its actual verdicts. The trial court cannot fill in gaps in a jury’s verdicts with its own findings or theories at sentencing, where the record doesn’t show the jury actually decided an issue. (People v. Coelho (2001) 89 Cal.App.4th 861.) “The trial court must find what possible unlawful acts shown at trial could have formed the basis for the jury’s verdicts. However, this determination is based solely on the evidence introduced at trial….[T]he trial court’s subjective views about the weight of the evidence and the credibility of the witnesses at trial are not relevant because those matters were for the jury to determine.” (Id. at pp. 878-79.)
This record raises a legal question beyond the inherent validity of any convictions: Of how many different acts in violation of the same charged statute, § 273d, did the jury actually convict appellant?
The five-count information in this case was highly unusual. It didn’t charge five different criminal acts. Rather, it charged five different body parts–skull, foot, wrist, ribs, and cuts and bruises. (CT 1.) The jury returned “verdicts” declaring appellant “guilty” of 4 of those body parts, and deadlocked on the 5th body part. (CT 158.)
If one barroom brawler injures another’s hand with one punch, can he stand convicted of five counts of assault, one for each finger? If a single bullet passes through a victim’s arm and leg, is that two crimes?
Our laws have no such concept as “one conviction per unlawful body part.” A person is only subject to conviction for a crime based on a particular charged wrongful act. (Pen. Code, § 20; See, e.g., Hamling v. United States (1974) 418 U.S. 87, 117-18; United States v. Hess (1888) 124 U.S. 483, 487; People v. Madden (1981) 116 Cal.App.3d 212, 215.) The requirement of criminal actus reus is universal. (People v. Vogel (1956) 46 Cal.2d 798, 801.)
“A defendant may not be subjected to multiple convictions based on a single, indivisible act or omission in violation of a single statute.” (People v. Gardner (1979) 90 Cal.App.3d 42, 47-48 [reversing extra convictions for theft of multiple articles].) “A defendant may not be convicted twice for the same act and charge.” (People v. Aresen (1949) 91 Cal.App.2d 26, 37 [reversing second conviction for selling same stock].) “A single crime cannot be fragmented into more than one offense.” (People v. Rouser (1997) 59 Cal.App.4th 1065, 1073 [reversing second conviction for possessing controlled substances where statute didn’t differentiate among them].)
The actus reus of a violation of § 273d, which must be done with the required mens rea, is an act resulting in a traumatic condition. (People v. Campbell (1999) 76 Cal.App.4th 305, 308; People v. Thurston (1999) 71 Cal.App.4th 1050, 1054; People v. Jackson (2000) 77 Cal.App.4th 574, 578-80.) By contrast, the traumatic condition itself isn’t part of the actus reus (or mens rea) at all. It is a separate element, as the required result for violation of § 273d. (Ibid.) Four different body parts injured by only one actus reus in violation is still only one crime.
Even taking the record favorably to the People, the record shows no valid jury conviction for more than one such act.
The jury, as instructed, could have had reasonable doubt that appellant performed more than one act that injured Ms. D (that one act might have been using too much force in trying CPR, or dropping Ms. D.) And even if the jury concluded there was more than one potentially harmful act, it could have had reasonable doubt that more than one act actually caused injury. For example, dropping or throwing Ms. D once (as among of the many prosecution theories of malevolence) could have caused all of the injuries at once. Further, most everyone agreed the injuries were “fresh,” all occurring at roughly the same, recent time. And since the trial court and the experts all seemed to agree the CPR probably caused both the rib fractures (Count 4) and the chest bruises (Count 5), it seems very likely that the jury could conclude that those two injuries, at the very least, resulted from the same actus reus.
B. Reviewability
As an issue of insufficiency of evidence–here, sufficiency of record evidence to support the convictions beyond one–this issue may be raised on appeal. (People v. Rodriguez, supra, 17 Cal.4th at pp. 261-62; Tahoe National Bank v. Phillips, supra, 4 Cal.3d at p. 23, fn. 17.)
(In the alternative, the issue would also be reviewable as 6th Amendment ineffective assistance with no tactical basis. Defense counsel objected to the multiple charges at closing argument and at sentencing (RT 889:11-18, 959:27-960:1), was clearly ignorant of this body of law, and thought only multiple punishments were barred. (RT 959:27-960:1.))
Appellate opinions have found the issue freely reviewable on appeal, with no indication it was raised below. In People v. Rowland (1999) 75 Cal.App.4th 61, the defendant did not even raise the issue on appeal; the Court considered it sua sponte during Wende review. Similarly in all but one (Gardner) of the reversals cited above, there is no indication that the defendant raised this issue in the trial court. For all these reasons, the issue is reviewable.
V. IN THE ALTERNATIVE TO PART IV, ALL CONVICTIONS BEYOND THE FIRST SHOULD BE REVERSED FOR INSTRUCTIONAL ERROR, BECAUSE THE JURY WAS NOT REQUIRED TO FIND MULTIPLE CRIMES TO RETURN MULTIPLE VERDICTS
A. Discussion
Even if arguendo this record had shown the existence of multiple convictions, instructional error would still require reversal. No instruction was given to require the jury to distinguish among different acts, as would be necessary to return legally permissible multiple convictions.
A unanimity instruction (e.g., CALJIC 17.01) wouldn’t have fixed this problem. It would have ensured jurors were unanimous on a single act, but not that the jury would only return multiple convictions based on different acts.
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) How many convictions the law permits on given evidence is such a principle, as also shown by the cases ante, p. 2.
A trial court’s error in omitting an instruction required sua sponte is freely reviewable. (Pen. Code, § 1259.) (Also, purely in the alternative, since defense counsel showed on the record that she didn’t understand the law in this area (RT 955:27-960:1), failure to request an instruction would have been 6th Amendment ineffective assistance without tactical basis. (People v. Asbury (1985) 173 Cal.App.3d 362, 365; see ante, p. 3.) However, one need not go that far. The error is plainly reviewable as any other erroneous instruction.)
C. Prejudice
The omission of instructions on an issue essential for conviction–here, for convictions beyond the first–is federal constitutional error, reversible if it had any effect on the jury’s actual verdict. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-81.) Here, the effect on the jury’s actual verdict was 100% certain, because the jury was simply never asked to make the findings necessary to support any convictions beyond the first. (See, e.g., People v. Kobrin, supra, 11 Cal.4th at p. 429; People v. Bell (1996) 45 Cal.App.4th 1030, 1067.) Moreover, a properly instructed jury could have had reasonable doubt on convictions above the first, so the exception for uncontestable findings in Neder v. United States (1999) 527 U.S. 1, doesn’t apply.
While it shouldn’t matter because the jury was simply never required to make a finding on the issue, a properly instructed jury could well have returned only one conviction, even if it concluded intentional abuse was proved beyond a reasonable doubt. (See ante, p. 2.) And again, the evidence must be construed in a light most favorable to appellant. (Ante.)
The judgment of conviction for all counts above 1 should be reversed.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA, No. B000000
Plaintiff and Respondent,
v.
John Doe,
Defendant and Appellant
APPELLANT’S REPLY BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Ventura
The Honorable Herbert Curtis
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By Appointment of the Court of Appeal
IV. ALL CONVICTIONS BEYOND THE FIRST SHOULD BE REVERSED, BECAUSE THE VERDICTS DO NOT SHOW COMMISSION OF MORE THAN ONE CRIMINAL ACT [AOB Part IV {1st}, pp. 45-48]
A. Respondent’s Major Misstatement Of Appellant’s Issue
Respondent has severely misstated and rewritten appellant’s argument. Because respondent has offered no discussion, authority, or anything else with respect to appellant’s actual argument, it has waived any opposing argument on appeal. (See post, p. ___, and authority cited.) In any event, respondent has offered nothing to rebut what appellant actually argued.
Appellant did not argue that “the evidence presented at trial showed he committed only a single criminal act.” (RB 74.) Respondent seriously errs in claiming that if arguendo such evidence existed under the usual sufficiency of evidence standard, it would be “contrary to appellant’s assertion.” (RB 75.) That has nothing to do with appellant’s argument at all.
Rather, appellant’s argument is that the record–even construed favorably to the People–does not show jury verdicts for more than one separate crime. Over and over again, that is what appellant said his argument was: “[T]he jury returned four guilty verdicts, but the verdicts don’t show the jury convicted appellant of more than one crime, so 3 of the 4 convictions must be reversed.” (AOB 45.) “This record raises a legal question beyond the inherent validity of any convictions: Of how many different acts in violation of the same charged statute, § 273d, did the jury convict appellant?” (AOB 46.) “Even taking the record favorably to the People, the record shows no valid jury conviction for more than one such act [violative of § 273d].” (AOB 47.)
Part of appellant’s discussion was his showing–with which respondent never disagreed–that multiple convictions under § 273d legally require multiple acti rei, and cannot be predicated solely on the number of injured body parts. (See AOB 47.) That matters because this jury was instructed only on different injured body parts. The jury was never instructed that multiple convictions could only be predicated on different acts. Therefore, the jury was never instructed on any need to find separate acts for separate convictions.
Because the jury was never instructed that it had to find separate acts in order to return separate convictions, the jury’s actual verdicts reflect no findings of separate acts, i.e., no findings beyond a reasonable doubt of any criminal acts above one. That is appellant’s argument.
B. Multiple Convictions Are Not Permitted For A Single Act Violating A Single Statute [AOB Part IV(A) {1st}, pp. 45-47]
Respondent doesn’t dispute appellant’s showing that Penal Code § 273d does not permit separate convictions based solely on separate injured body parts of the same person, with no finding of separate acts. That is dispositive.
Respondent claims there is substantial evidence which–hypothetically–would have supported the jury in returning multiple convictions based on multiple acts if the jury had been instructed that multiple convictions required multiple acts, which it wasn’t. That doesn’t help respondent, because there is no legal basis for post hoc judicial creation of findings and verdicts that the jury never rendered. The prosecution is responsible for submitting instructions that lawfully support the result it seeks. If the prosecution fails to submit proper instructions (or verdict forms), and the resulting jury verdicts do not lawfully support the result sought, and the prosecution fails to seek correction in the trial court, the error is the prosecution’s, and it must bear the risk of loss. (People v. Fields (1996) 13 Cal.4th 289, 311; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 77-78; People v. Mancebo (2002) 27 Cal.4th 735, 749; People v. Najera (1972) 8 Cal.3d 504, 508-512.)
The reason appellant discussed the sufficiency of evidence standard was not what respondent claims, that this was an argument of insufficiency of evidence of multiple acts. Appellant is willing to assume arguendo there would have been legally sufficient evidence of multiple acts, had the jury returned verdicts containing such a finding. The point here is that it didn’t.
Rather, appellant discussed the sufficiency of evidence standard in establishing the reviewability of his actual issue: How many different jury findings of criminal acts violating § 273a does this record show? He construed that as a type of sufficiency of evidence argument (albeit one much different from what respondent claims), and thus reviewable.
Appellant also went on to say it didn’t matter, because in at least three published opinions, the issue was reviewed on appeal with no indication it was raised below. Respondent hasn’t contested reviewability of appellant’s issue; but then again, respondent hasn’t discussed appellant’s issue.
When it is impossible to tell from the record (including instructions and verdicts) whether a defendant was convicted of or found liable under a legally valid theory, the judgment must be reversed. (E.g., People v. Farley (1996) 45 Cal.App.4th 1697, 1709-1710; Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 900; Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 887, 900; People v. Barnes (1997) 57 Cal.App.4th 552, 553-554.) That is this case, for the second through fourth convictions here.
Under the Sixth Amendment, this jury’s actual verdicts are all that matter. What a hypothetical properly instructed jury might have done in a hypothetical trial is irrelevant. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278-281.) Similarly under state law, a court cannot create verdicts that the jury did not actually return while it was constituted. (People v. Thornton (1984) 155 Cal.App.3d 845, 859-860; People v. Coehlo (2001) 89 Cal.App.4th 861, 878-879.) This jury’s actual verdicts reflect no findings of charged criminal acts greater than one. Therefore, the rest of the convictions must be reversed.
C. Further Discussion
The only reason that appellant went on to say the jury could have had reasonable doubt as to the number of criminal acts (AOB 47), was merely to say that the jury could have rationally concluded there was reasonable doubt as to any more than one criminal act, even if it had been instructed that multiple verdicts require multiple acts (as it wasn’t). However, appellant doesn’t need to show that. The law would require reversal of the second through fourth convictions even if the record had strongly indicated that a hypothetical properly instructed jury which returned these four convictions would likely have found four criminal acts.
In fact, even the most extreme situation (not this case) where the record shows clearly what verdict the jury would have returned on a charge for which there was no verdict, even that would require reversal. (People v. Keltie (1983) 148 Cal.App.3d 773, 786.) If reversal is required in the extreme case where the evidence, instructions and other verdicts would have pointed to only one rational conclusion, it is certainly required in this case where that is not so.
Here, we have four verdicts finding appellant committed an act causing corporal injury resulting in a traumatic condition–but there are no verdicts finding there were different acts. This is not a sufficiency of trial evidence issue; it is an issue of what verdicts the record shows the jury returned, i.e., what findings the record shows the jury made in its verdicts based on its instructions. With no record showing of verdicts that constituted a finding of more than one act, there is no legal basis for more than one conviction.
Appellant doesn’t disagree with respondent’s statement that when the law permits it, “dual convictions may result from one physical act.” (RB 74-75, quoting People v. Valdez (1994) 23 Cal.App.4th 46, 49.) Conversely, when the law doesn’t permit it, dual convictions may not result from one physical act.
Respondent fails to point to a law that permitted it here. Respondent’s cited case of Valdez deals with a much different situation, the legality of two convictions for something the jury never found to be more than a single act, but under two different statutes. Here, we’re talking about two convictions for something the jury never found to be more than a single act against a single person, but under exactly the same statute of § 273d, based solely on different injured body parts. Respondent points to no law permitting that.
Actually, respondent’s cited case of Valdez was overruled on exactly the point for which respondent offered its quotation, by People v. Johnson (2002) 28 Cal.4th 240, 244-247 & fn. 6. Respondent doesn’t mention that. Nonetheless, in the abstract, what respondent says is certainly true when the law permits it; multiple convictions can be based on a single act when the law permits it. Appellant can offer a different citation to like effect, such as People v. Pearson (1986) 42 Cal.3d 351, 354-356.
But in any case, multiple convictions aren’t permissible unless the law permits it. That might seem self-evident, but respondent seems to suggest the law always permits it. If so, the suggestion is certainly not true.
The law permitted what the court did in Pearson; a single act simultaneously violated two different criminal statutes (there, sections 286(c) and 288(a)). The same would have been true if Valdez had been right on the law; Valdez posited that a single act simultaneously violated two different criminal statutes (there, sections 288 and 288.5).
However, the Supreme Court in Johnson overruled Valdez, and held that the law did not permit dual convictions for the same act under the pair of statutes charged in that case. (People v. Johnson, supra, 28 Cal.4th at pp. 244-247 & fn. 6.) Thus the law in Johnson (which would have been the correct law in Valdez) was that dual convictions under sections 288 and 288.5 could not “result from one physical act.”
In other words, respondent’s own cited case (Valdez), leads directly to a case it didn’t cite (Johnson) which directly refutes any suggestion that the law always permits multiple convictions based on a single act.
Thus, respondent’s authority doesn’t get it past square one: Does the law permit it here?
Pearson, Valdez and Johnson all have something in common, which doesn’t exist in this case: The issue was whether a single act could result in two separate convictions under two different statutes. Clearly, when the law permits it, it can. When the law doesn’t permit it, it can’t.
In this case, unlike Pearson, Valdez and Johnson, there aren’t two different statutes involved; all the charges were under the same statute. Nor are there multiple victims. There are just different injuries charged under the same statute (§ 273d) involving the same person, with no charge or jury instructions involving different acts. Respondent cites no authority that the law permits multiple convictions under these circumstances.
Respondent’s quotation of Penal Code section 954 (RB 74) doesn’t change that. Obviously, section 954 doesn’t permit double convictions for the same act merely because the prosecution wants them or charges them. Otherwise, the Supreme Court in Johnson could never have overruled respondent’s cited Valdez case. (See People v. Johnson, supra, 28 Cal.4th at p. 246.) Rather, section 954 is merely a procedural device (People v. Duane (1942) 21 Cal.2d 71, 78) which ensures that each of multiple counts is considered separately and each verdict is separate. (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657.) Since section 954 is merely procedural, it doesn’t change the substantive law governing any count. So it doesn’t affect any legal issues of how many convictions can be obtained based on a particular set of charges.
If anything, section 954 works in appellant’s favor, not respondent’s.
When the contents of a verdict are in doubt, they can only be determined by ascertaining what the jury actually found under the instructions it was given. On this record including its instructions, the jury found that appellant committed an act resulting in a traumatic condition, and so found for four different traumatic conditions. (See AOB 47.) The jury was never asked to find that appellant committed more than one different act, and it never so found.
As discussed above, the contents of one verdict cannot be construed by reference to the contents of any other verdict; each verdict stands on its own. (People v. Amick, supra, 20 Cal.2d at pp. 251-252; People v. Keltie, supra, 148 Cal.App.3d at pp. 785-786.) Here, each verdict was a finding that appellant violated § 273d by inflicting corporal injury resulting in a traumatic condition. Under the jury’s instructions, the four convictions stated four different injured body parts, but there was no instruction requiring the jury to find more than one act to return the four convictions. Each verdict stands on its own, and none can be construed by inference from other verdicts. Thus once again, under the law, the jury never found more than one act.
In this case, we don’t have what Pearson, Valdez and Johnson had, questions of dual convictions for what the jury never found to be more than a single act, based on two different statutes. Rather, we have a question of multiple convictions–four, to be exact–for what the jury never found to be more than a single act, based on the same statute, just multiple body parts. Respondent has not proffered any legal basis for this.
Under the Sixth Amendment and state law, appellant cannot stand convicted of something the record doesn’t show the jury actually found. The jury’s actual verdicts, not what a jury might hypothetically have done in a different and legally correct situation, are what control. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281; see ante, p. 3.) There are no jury verdicts reflecting jury findings of more than one criminal act with the requisite intent. All convictions beyond the first should be reversed.
D. Reviewability [AOB Part IV(B) {1st}, pp. 47-48]
Respondent doesn’t contest the reviewability of this issue.
V. IN THE ALTERNATIVE TO PART IV, ALL CONVICTIONS BEYOND THE FIRST SHOULD BE REVERSED FOR INSTRUCTIONAL ERROR, BECAUSE THE JURY WAS NOT REQUIRED TO FIND MULTIPLE CRIMES TO RETURN MULTIPLE VERDICTS [AOB Part V {1st}, pp. 48-49]
Respondent doesn’t disagree with appellant’s showing that the law doesn’t permit multiple section 273a convictions for the same act.
Given that, respondent cannot prevail here. For due to the prosecution’s charges and requested instructions, the jury was never told it had to find more than one act, no matter how many convictions it returned under its instructions. The instructions submitted by the prosecution, like the prosecution’s complaint and information, told the jury it could return separate convictions for multiple body parts. Nothing told the jury that multiple convictions could only be based on multiple acts.
Respondent offers nothing more than a cursory ipse dixit that appellant’s argument is incorrect. (RB 76-77.) Nowhere does respondent point to any instruction that required the jury to find multiple acts in order to return multiple convictions. None existed in this case.
Specifically, respondent says the following:
1. “The jury was instructed that appellant was charged in counts 1 through 5 with the crime of corporal injury to a child resulting in a traumatic condition.” (RB 76.) True (RT 853:16-23), but merely introductory. The question here is what instructions were given the jury on what constituted the five charged counts of corporal injury resulting in a traumatic condition.
2. “The jury was instructed . . . that each count charged a distinct crime.” (RB 76 [citing CT 118, 132].) Such an instruction would merely beg the question of what the jury was instructed a “distinct crime” was. The jury wouldn’t know that law itself; that’s why juries are given instructions. (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) The jury’s law was its instructions.
The instructions given the jury were that each body part charged in the information was a separate count, and thus a separate charge of a “distinct crime.” Thus to the jury’s knowledge, that was what a “distinct crime” was. The jury had no way to know that was legally erroneous. There were no instructions that multiple acts were required for multiple convictions.
3. The jury was instructed “that each count must be decided separately.” (RB 76.) The jury did indeed decide each count separately–under the instructions it was given. But again, the instructions it was given was that each count only stated a separate body injury. There were no instructions that multiple acts were required for multiple convictions.
4. The jury was instructed “that appellant could be convicted or acquitted of any or all of the charged crimes.” (RB 76.) But the “charged crimes” on which the jury was instructed were, again, merely one count per injured part of the body charged in the information. There were no instructions that multiple acts were required for multiple “charged crimes,” or for multiple convictions.
5. The jury was instructed that its “finding as to each count must be stated in a separate verdict.” (RB 76.) But since the jury’s instructions were one injured part of the body per count, that meant the separate verdicts were one injured part of the body per verdict. The jury was never instructed that separate verdicts required separate acts.
In short, respondent cannot point to any particular instruction that required a finding of multiple acts to support multiple convictions, and there was no such instruction.
Appellant also here incorporates by reference his discussion in Part IV above.
