Brief Bank # B-978 (Re: F 5.55 n1 [The Contrived Self-Defense Instruction Should Not Be Given Absent Evidence That The Defendant’s Conduct Warranted The Decedent In Taking Defensive Action].) CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
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Date of Brief: June 2004
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT, COUNTY OF SANTA CLARA,
THE HONORABLE JOYCE ALLEGRO, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241 -6171
Attorneys for Appellant,
JOHN DOE
I.
APPELLANT WAS DEPRIVED OF DUE PROCESS UNDER THE FEDERAL CONSTITUTION WHEN THE TRIAL COURT GAVE CALJIC NO. 5.55.
Before instructing the jury, the trial court conducted a conference with the parties. The prosecutor asked the court to give CALJIC No. 5.55. (RT 1497.) In support of his request, the prosecutor argued that “[o]ne could make the argument that he was swerving at them; he started to shoot at them; how it starts, it is a question for the fact finder to determine.” (RT 1497.)
Defense counsel objected to the inclusion of No. 5.55. (RT 1497.) Counsel asserted that “I don’t think there is any evidence that my client sought to quarrel on this particular day.” (RT 1497.)
The court overruled the defense objection. (RT 1497-1498.) In so doing, the court reasoned that there was “plenty of evidence” that appellant “sought a quarrel” on the day in question. (RT 1497-1498.) As a result of its ruling, the court instructed the jury as follows:
“The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” (RT 1540, CT 456.)
The legal principle found in No. 5.55 has deep roots in the common law and contains a correct statement of the law. (People v. Hinshaw (1924) 194 Cal. 1, 41; People v. Conkling (1896) 111 Cal. 616, 625-627.) However, as will be quickly demonstrated, No. 5.55 had no application to the facts of the case at bar.
The common sense basis for the legal principle embodied in No. 5.55 is that a defendant cannot commence a conflict with someone and then use a contrived plea of self defense in order to retroactively justify what was essentially an unprovoked criminal assault. However, contrary to the language of No. 5.55, the principle does not apply to any “quarrel.” Rather, No. 5.55 is to be used solely in those cases where the conduct of the defendant is such that it would warrant the other person in taking defensive action against the defendant.
People v. Conkling, supra, 111 Cal. 616 establishes this conclusion. There, the decedent came into possession of certain real property. The decedent placed a fence across the road on the property even though residents of the neighborhood had commonly traversed the road. One day, the decedent prevented the defendant from using the road and a heated argument ensued. Subsequently, the defendant tore down the fence and traveled the road while carrying a rifle. Upon being confronted by the decedent, the defendant shot and killed him. At the defendant’s murder trial, the trial court instructed the jury:
“‘And, if you believe from the evidence beyond a reasonable doubt, that the defendant killed the deceased, then, to render such killing justifiable, it must appear that the defendant was wholly without fault imputable to him by law in bringing about the commencement of the difficulty in which the mortal wound was given; and while it is true that an honest apprehension of danger to life or limb may justify a man for taking the life of another, yet that apprehension must arise out of a reasonable cause; but a cause which originates in the fault of the person himself, in a quarrel which he has provoked, or in a danger which he has voluntarily brought upon himself by his own misconduct, cannot be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger to his person. Error of apprehension the law overlooks when a man is called upon to act on appearances, but it does not overlook dishonesty of apprehension. Hence, a real or apparent necessity, brought about by the design, contrivance, or fault of the defendant, cannot be availed of as a defense for the commission of a crime or homicide.’” (Conkling, supra, 116 Cal. at pp. 624-625, emphasis added.)
On the facts before it, the Supreme Court held that the instruction was erroneous. This was so since the instruction unfairly restricted the defendant’s right to act in self defense.
“Aside from any question as to the immediate cause which at the time of the killing precipitated the affray, this language of the instruction is broad enough to justify the jury in believing that it was such a fault or misconduct upon the part of the defendant, in attempting to travel this road under existing circumstances, as to deprive him of the right of self defense if attacked by deceased at the point where the road was obstructed. Such, certainly, is not the law, and neither court nor counsel for the people would so contend.” (Conkling, supra, 111 Cal. at pp. 625-626.)
In People v. Keys (1944) 62 Cal.App.2d 903, the holding in Conkling was applied. There, as in Conkling, the decedent sought to bar the defendant from traversing a road on the decedent’s property. The defendant shot and killed the decedent when they had a confrontation on the road. As in Conkling, it was held that the trial court had erred by instructing the jury that the defendant had no right to self defense if his own acts created the volatile situation. (Id., at pp. 914-915.)
Subsequently, in People v. Garnier (1950) 95 Cal.App.2d 489, Conkling was again followed. There, the defendant and the decedent spent the afternoon quarreling. When the decedent went to his bedroom, the defendant followed. While in the bedroom the defendant shot and killed the decedent. At the People’s request, the jury was instructed:
“‘The right of self defense is not available to a person who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault, for in such a case the original intent would control.’” (Garnier, supra, 95 Cal.App.2d at p. 496.)
The Court of Appeal first noted that the instruction was “proper in form.” (Garnier, supra, 95 Cal.App.2d at p. 497.) However, citing Conkling, the court concluded that the use of the instruction was probably error, albeit harmless. (Id., at pp. 496-497.)
Applying the foregoing authorities to the case at bar, it is manifest that No. 5.55 should not have been given. This is so for the simple reason that appellant’s conduct did not rise to the level of a “quarrel” which would cause him to forfeit his right to self defense.
Viewing the evidence in the light most favorable to the People, appellant exchanged “what’s up” hand gestures with Mr. C as they stood at adjacent gas stations. Then, appellant drove away without taking any further action. Subsequently, the car driven by Mr. T followed appellant and drove abreast of him. On these facts, it was Mr. T, not appellant, who created the conditions for the eventual shooting.
Given these circumstances, Conkling demonstrates that No. 5.55 should not have been given. In Conkling, the defendant precipitated a confrontation by traveling a road notwithstanding the decedent’s warning that he was trespassing. Nonetheless, the Supreme Court held that the defendant retained his right to self defense. Here, rather than encouraging a face to face confrontation, appellant sought to avoid trouble by driving away. If the trespasser in Conkling retained his right to self defense, it necessarily follows that appellant did as well.
Should there be any doubt about this conclusion, one need only change the roles of the parties in order to reach the same result. If Mr. C had pursued appellant onto the freeway and shot him, Mr. C could not have done so in self defense. This is so since appellant did not engage in any conduct at the gas station which would have given rise to Mr. C’s right to act in self defense. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [right to act in self defense exists only as against “the initiation of a physical assault or the commission of a felony . . . .”].) Thus, since Mr. C had no right to shoot appellant based on what occurred at the gas station, it necessarily follows that appellant did not forfeit his right to self defense based on what occurred at the gas station.
The error in giving No. 5.55 is reversible per se. The plain effect of the instruction was to advise the jury to disregard appellant’s claim of self defense if it was determined that he had initiated a “quarrel.” Since the instruction thereby eliminated the defense theory of the case, reversal per se is required.
In this regard, the controlling rule is that the omission to instruct on the defense theory of the case constitutes reversible error unless “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ [Citation.]” (People v. Stewart (1976) 16 Cal.3d 133, 141; accord, People v. Lee (1987) 43 Cal.3d 666, 675, fn. 1.) [Footnote 1] Insofar as the jury may well have given no consideration to the issue of self defense, per se reversal is compelled. (People v. Lemus (1988) 203 Cal.App.3d 470, 478 [per se reversal ordered where no instruction was given on self defense].)
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.]”].)
Notwithstanding the foregoing authority, appellant recognizes that there is a recent Court of Appeal case which holds that a similar error implicated the harmless error test found in Chapman v. California (1967) 386 U.S. 18. (People v. Quach (2004) 116 Cal.App.4th 294, 303.) In Quach, the Court of Appeal held that CALJIC No. 5.56 is erroneous insofar as it provides that an original aggressor always forfeits his right of self defense unless he first apprises his adversary that he wants to stop fighting. Although the defendant argued that the error was reversible per se, the court held that the Chapman standard was applicable since there was some instruction on the defense theory. (Ibid.) With all due respect for the Quach court, this holding is insupportable.
As has been argued above, the effect of the error in Quach (and here) was to advise the jury to disregard the defense theory of the case. If a jury is told to disregard the defense theory, it is as if no instruction was given. Quach was wrongly decided.
Assuming arguendo that the Chapman standard is applicable, it is the government’s burden to establish that the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18, 24.) The People cannot shoulder their burden in this case. This is so for two reasons.
First, the prosecutor specifically cited No. 5.55 during his closing argument and advised the jury that the “right of self-defense [was] not available” to appellant. (RT 1593.) Given this argument, the People can scarcely claim that the error was harmless. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876-877 [judgment reversed where counsel argued the erroneous instruction to the jury].)
Second, it simply cannot be said that there is proof beyond a reasonable doubt that the jury did not employ the instruction to disregard the theory of self defense. On its face, No. 5.55 told the jury that appellant had no right to self defense if he sought “a quarrel” with Mr. C. (RT 1540; CT 456.) There was certainly evidence that appellant insulted Mr. C on the day in question. Given the plain language of No. 5.55 that self defense is not available to one who has sought “a quarrel,” the People cannot plausibly contend that the error in giving No. 5.55 was harmless beyond a reasonable doubt.
The use of No. 5.55 improperly and unfairly eliminated appellant’s only defense from the jury’s consideration. Reversal is required.
FOOTNOTES:
Footnote 1: 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.)
