Brief Bank # B-974 (Re: PG X(G)(8)/F 2.90 n18 [Effect of Argument on Instructional Error: Improper For Counsel To Argue Only Favorable Portion Of An Instruction / CALJIC 2.90 Unconstitutionally Admonishes the Jury That a Possible Doubt Is Not a Reasonable Doubt])
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Date of Brief: August 2003
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
_________________________________)
AUTOMATIC APPEAL FROM THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
HONORABLE LAURA PALMER HAMMES, JUDGE, PRESIDING
HONORABLE FRANKLIN B. ORFIELD, MOTIONS JUDGE
HONORABLE WILLIAM H. KENNEDY, MOTIONS JUDGE
____________________________
APPELLANT’S OPENING BRIEF
____________________________
THOMAS LUNDY
Attorney at Law
State Bar No. 57656
2500 Vallejo Street, Suite 105
Santa Rosa, CA 95405
Telephone: (707) 524-8112
Attorney for Defendant and Appellant
JOHN DOE
Under Appointment by the Supreme Court of California
ARGUMENT 2.10.6
CALJIC 2.90 UNCONSTITUTIONALLY ADMONISHED THE JURY THAT A POSSIBLE DOUBT IS NOT A REASONABLE DOUBT
A. Introduction
The judge gave the standard CALJIC definition of reasonable doubt which provided as follows:
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (CT 14285; CALJIC 2.90 (5th Ed. 1988).)
The language admonishing the jury that “reasonable doubt . . . is not a mere possible doubt . . .” was unconstitutional because it failed to adequately limit the scope of possible doubt.
B. Legal Principles
“In state criminal trials, the Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ [Citations.]” (Cage v. Louisiana (1990) 498 U.S. 39; see also In re Winship (1970) 397 U.S. 358, 364.) The reasonable-doubt standard “plays a vital role in the American scheme of criminal procedure.” (Winship, 397 U.S. at 363; see also Cage, 498 U.S. at 40.) “Among other things, ‘it is a prime instrument for reducing the risk of convictions resting on factual error.’ [Citation.]” (Ibid.)
C. A Possible Doubt May Be Reasonable
Unlike an imaginary doubt, [Footnote 1] a possible doubt may be based on fact. When driving on a two-lane road reasonable drivers do not pass on a blind curve because it is “possible” that a car may be coming in the other lane. Cautious investors regularly eschew the higher returns and opt for the lower return of an insured bank account because it is “possible” they may lose principal in a more lucrative but riskier investment.
In other words, merely because a doubt is only possible does not make it unreasonable or insignificant. In the final analysis, the question of reasonable doubt should be measured by reasonable reliance rather than possibility. If the doubt is sufficient to cause a juror to reasonably rely on it in making important decisions then the doubt is reasonable, even if it is merely possible. (See e.g., Victor v. Nebraska, supra, 511 U.S. 1, 20-21 [hesitate to act language “gives a commonsense benchmark for just how substantial such a [reasonable] doubt must be”].) This formulation of reasonable doubt was approved in United States v. Wilson (1914) 232 U.S. 563, 570 and has since been endorsed by a number of state and federal courts. (See e.g., Holland v. United States (1954) 348 U.S. 121, 140; Hilbish v. State (Alaska Ct. App. 1995) 891 P.2d 841, 850-51.) The federal circuits that provide for definition of reasonable doubt and many states use the Wilson/Holland hesitation concept. For example, the Eighth Circuit clarifies the “possible doubt” by relating it to the notion of reliance:
A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
(8th Circuit Model Jury Instructions – Criminal 3.11 [Reasonable Doubt] (2000); see also O’Malley, Grenig & Lee, Federal Jury Practice and Instructions 12:10 [Presumption Of Innocence, Burden Of Proof, And Reasonable Doubt] para. 3 (West, 5th ed. 2000).)
Other jurisdictions include similar definitions. (See e.g., Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 7.01, [Presumption Of Innocence: Burden Of Proof; Reasonable Doubt] ¶ 3, sent. 2 (Pennsylvania Bar Institute, PBI Press, 06/75); South Carolina Criminal Jury Instructions 1-14 [Reasonable Doubt Charge] (South Carolina Bar, 1995); McClung, & Carpenter, Texas Criminal Jury Charges 1 (II)(B)(2) [proper.chg] ¶ 4 (James Publishing, 1999); Criminal Jury Instructions For The District of Columbia 2.09, [Reasonable Doubt] sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993); South Dakota Pattern Jury Instructions – Criminal, SDCL 1-6-3 [Reasonable Doubt (Alternate 2)] (State Bar of South Dakota, 2000); Alaska Pattern Criminal Jury Instructions 1.52 [Presumption Of Innocense, Burden Of Proof Beyond A Reasonable Doubt] para. 2 (Alaska Bar Association, 1987); Arkansas Model Jury Instructions – Criminal, AMCI 2d 110 [Introductory Instructions-Reasonable Doubt] (Lexis, 2nd ed. 1997); Colorado Jury Instructions, COLJI – Crim 3:04 [Presumption Of Innocense-Burden Of Proof Generally-Reasonable Doubt] para. 3 (West, 1983); Connecticut Selected Jury Instructions – Criminal 2.8 [General Jury Instructions-Reasonable Doubt] para. 1 (The Commission on Official Legal Publications – Judicial Branch, 3rd ed. 1996); Idaho Criminal Jury Instructions, ICJI 103A [Reasonable Doubt (Alternative)] para. 3 (Idaho Law Foundation, Inc., 1995); Maryland Criminal Pattern Jury Instructions, MPJI-Cr 1.04 [Reasonable Doubt] para. 3 (Micpel, 1999); New Mexico Uniform Jury Instructions – Criminal, UJI Criminal 14-5060 [Presumption Of Innocense; Reasonable Doubt; Burden Of Proof] para. 2 (Lexis, 1998); South Dakota Pattern Jury Instructions – Criminal, SDCL 1-6-2 [Reasonable Doubt (Alternate 1)] para. 1 (State Bar of South Dakota, 2000); South Dakota Pattern Jury Instructions – Criminal, SDCL 1-6-3 [Reasonable Doubt (Alternate 2)] (State Bar of South Dakota, 2000); Instructions for Virginia & West Virginia 24-401 [Reasonable Doubt Defined Generally] para. 1 (Lexis, 4th ed. 1996); Wisconsin Jury Instructions – Criminal, WIS-JI-Criminal 140 [Burden Of Poof And Presumption Of Innocence] para. 5 (University of Wisconsin Law School, 2000); 6th Circuit Pattern Jury Instructions – Criminal 1.03 [Presumption Of Innocence, Burden Of Proof, Reasonable Doubt] ¶ 5 (1991).)
Alternatively, it may be said that reasonable doubt “does not mean a captious or speculative doubt, or a doubt from mere whim, caprice, or groundless conjecture.” (Siberry v. State, supra, 133 Ind. 677, 687.)
However, in the present case reasonable doubt was not so defined. Instead, the jury was admonished that a doubt is not reasonable if it is “merely possible.” Such a definition unconstitutionally allowed the jurors to reject a doubt as unreasonable even if they would reasonably have relied on a similar degree of doubt in their own important affairs. [Footnote 2]
Moreover, by stating that merely possible doubt was unreasonable, the instruction unconstitutionally implied some obligation on the part of the accused to raise a probable doubt as to his or her guilt. It is unconstitutional to require the accused to assume any burden of proof as to reasonable doubt. (See e.g., In re Winship, supra; § 2.10.1, pp. 633-42 above, incorporated herein.)
Yet, if doubt which is merely possible is insufficient, then the jurors could only have concluded that the doubt must be at least probable to elevate it above a mere possibility.
D. The Error Violated The Federal Constitution
The failure to properly instruct on the prosecution’s burden to prove every essential element of the charge beyond a reasonable doubt violated Doe’s state (Art. I, sections 1, 7, 15, 16 and 17) and federal (6th and 14th Amendments) constitutional rights to due process and fair trial by jury. (In re Winship (1970) 397 U.S. 358; see also Sullivan v. Louisiana (1993) 508 U.S. 275; Neder v. United States (1999) 527 U.S. 1; Cage v. Louisiana (1990) 498 U.S. 39; Jackson v. Virginia (1979) 443 U.S. 307.)
Moreover, the error also violated the Due Process and Cruel and Unusual Punishment Clauses of the federal constitution (8th and 14th Amendments) which require heightened reliability in the determination of guilt and death eligibility before a sentence of death may be imposed. (See Beck v. Alabama (1980) 447 U.S. 625, 627-46; see also Kyles v. Whitley (1995) 514 U.S. 419, 422; Burger v. Kemp (1987) 483 U.S. 776, 785; Gilmore v. Taylor (1993) 508 U.S. 333, 342.)
Furthermore, verdict reliability is also required by the Due Process Clause (14th Amendment) of the federal constitution. (White v. Illinois (1992) 502 U.S. 346, 363-64; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.)
Further, because Doe was arbitrarily denied his state created right to proper instruction on the burden of proof, under the state constitution and Evidence Code including Evidence Code sections 500, 501 and 502, the error violated his right to due process under the Fourteenth Amendment to the United States Constitution. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; see also People v. Sutton (1993) 19 Cal.App.4th 795, 804; Hernandez v. Ylst (9th Cir. 1991) 930 F.2d 714, 716.)
E. The Error Was Prejudicial
The failure to properly instruct the jury on the prosecution’s burden of proving guilt beyond a reasonable doubt is fundamental structural error which requires reversal per se. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281.) In the present case the deficiencies in the burden instructions individually and cumulatively require reversal because they fundamentally undermined the presumption of innocence.
The guilt judgment should be reversed under the state harmless-error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) “‘In a close case . . . any error of a substantial nature may require a reversal and any doubt as to its prejudicial character should be resolved in favor of the appellant.’ [Citation].” (People v. Von Villas (1992) 11 Cal.App.4th 175, 249.) In the present case the error was substantial and the Jacobs charges were closely balanced. (See § 2.3.1(I)(2), pp. 209-11 above, incorporated herein.) Therefore the judgment should be reversed under the Watson standard.
Moreover, because the error violated Doe’s federal constitutional rights, the judgment should be reversed unless the prosecution demonstrates beyond a reasonable doubt that there is no reasonable possibility the error could have affected the proceedings. (Chapman v. California (1967) 386 U.S. 18, 23-24; see also In re Rodriguez (1987) 119 Cal.App.3d 457, 469-70 [Chapman standard applied to combined impact of state and federal constitutional errors]; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [same].) Given the closeness of the evidence and the substantial impact of the error, the prosecution cannot meet this burden. Therefore, the judgment should be reversed under the federal harmless-error standard.
Finally, even if the error was not prejudicial as to guilt, it was prejudicial as to penalty, under both the state and federal standards of prejudice because it undermined the mitigating theory of lingering doubt. (See Volume 1, § 1.4.2(H), p. 48, incorporated herein.)
FOOTNOTES:
Footnote 1: Obviously, a doubt based on imagination rather then the evidence should not be validated.
Footnote 2: Victor v. Nebraska (1994) 511 U.S. 1 briefly addressed this issue and concluded that the “mere possible” language was used in the sense of a “fanciful doubt.” (Victor, supra, 511 U.S. at 18.) The Court reached this conclusion without analysis of the actual language instead relying on the argument of counsel to provide a limiting definition of the “mere possible” language. That is, defense counsel told the jury: “Anything can be possible . . . [A] planet could be made out of blue cheese. But that’s really not in the realm of what we’re talking about.” (Victor, supra, 511 U.S. at 17.) In the present case, by contrast, there was no such argument by counsel. Therefore, the instruction improperly diluted the burden of proof.
