Brief Bank # B-980
BY ANALOGY TO RECENT COURT OF APPEAL CASE LAW,
THE STANDARD MOTIVE INSTRUCTION AS GIVEN HERE VIOLATED FEDERAL DUE PROCESS,
PERMITTING THE JURY TO INFER DEFENDANT’S GUILT FROM EVIDENCE OF MOTIVE ALONE.
In instructing the jury, the trial court read CALJIC No. 2.51 on motive:
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or the lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.
(RT 1157; CT 852.)
On appeal (§§ 1259, 1469), defendant argued this instruction erroneously misled the jury by suggesting that motive alone could establish guilt, thereby reducing the prosecution’s burden of proof and violating defendant’s fundamental rights. The Court of Appeal disagrees, relying on its own earlier decision and a recent one from this Court. (Discussion part V, App. A 30-32, citing People v. Snow (2003) 30 Cal.4th 43, 97-98; People v. Petznick (2003) 114 Cal.App.4th 663, 684-685.) Defendant requests review, because the cited decisions did not resolve the issue as he frames it. Moreover, two recent decisions adopt this very framework in rejecting an instruction permitting an improper inference of guilt. Finally, the issue is important, as it involves a constitutional challenge to the propriety of a standard jury instruction used in many criminal cases.
A. In Context, the Instruction Permitted an Unconstitutional Shortcut to Conviction.
Defendant begins with the premise that motive alone is as a matter of law insufficient to prove guilt. “[T]he Due Process Clause 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.” (In re Winship (1970) 397 U.S. 358, 364.) Motive does not meet this standard, because a conviction based on such evidence would be speculative and conjectural. (See, e.g., People v. Hall (1986) 41 Cal.3d 826, 833, 835 [motive insufficient to support third-party culpability defense]; United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 [motive to obtain money insufficient to prove guilt of robbery].)
Unfortunately, in the context of the entire set of instructions, CALJIC No. 2.51 likely informed the jury that motive as a circumstance could indeed be the basis for a finding of guilt. “In assessing defendant’s claim of error, we consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instruction. [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 649.)
Of the evidentiary instructions given to the jury, the motive instruction was the only one identifying a single circumstance which “may tend to establish the defendant is guilty.” (Italics added.) “Instructing the jury that the People have introduced evidence ‘tending to prove’ appellant’s guilt carries the inference that the People have, in fact, established guilt.” (People v. Owens (1994) 27 Cal.App.4th 1155, 1158, italics added.) Every other instruction covering an individual evidentiary circumstance included an admonition that it is insufficient to establish guilt or otherwise made that point clear. (CALJIC Nos. 2.23 (RT 1156; CT 849), 2.23.1 (RT 1156; CT 850), 2.52 (RT 1157; CT 853), 3.01 (RT 1162; CT 865), 6.13 (RT 1168; CT 881), 6.18 (RT 1169; CT 885).
To the extent that the motive instruction was startlingly anomalous in this context, it prejudiced defendant. To reasonable minds evaluating the above instructions, CALJIC No. 2.51 would have appeared to include an intentional omission: If motive were insufficient by itself to establish guilt, the instruction would say so. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusio alterius, the deductive concept is commonly understood, and if applied in this context could mislead a reasonable juror . . . .” (People v. Castillo (1997) 16 Cal.4th 1009, 1020 (conc. opn. of Brown, J.); see also United States v. Crane (9th Cir. 1992) 979 F.2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense”].)
That is how this Court reasoned in People v. Dewberry (1959) 51 Cal.2d 548, 557; see also People v. Salas (1976) 58 Cal.App.3d 460, 474 [when generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another, the inconsistency may be prejudicial error].)
Effectively, the context highlighted the omission, so the jury learned it could use a motive finding to establish guilt. This violated defendant’s federal and state constitutional rights to due process and jury trial.
In the context of defendant’s trial and the other instructions, there is a “‘reasonable likelihood that the jury . . . applied the [motive] instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) As given, the motive instruction allowed the jury to infer a finding of guilt from evidence of motive. “Permissive inference jury instructions are disfavored because they ‘tend to take the focus away from the elements that must be proved.’ [Citation.]” (Hanna v. Riveland (9th Cir. 1996) 87 F.3d 1034, 1037.) Nevertheless, a permissive inference instruction comports with due process unless, “under the facts of the case, there is no rational way for the jury to make the connection permitted by the inference.” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.) Under those circumstances, there is an unacceptable “risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Ibid.)
As noted above, the courts have recognized that motive alone is not a rational basis upon which to infer guilt. Accordingly, the instruction effectively lowered the prosecution’s standard of proof, violating due process. (Ulster County Court v. Allen, supra, 442 U.S. at 157 [60 L.Ed.2d at 792]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 315-316.)
B. Recent Case Law Does Not Resolve, But Is Supportive of, Defendant’s Position.
In Snow, this Court did not address defendant’s contextual argument. But the opinion actually comes close to supporting his position: “If the challenged instruction somehow suggested that motive alone was sufficient to establish guilt, defendant’s point might have merit.” (30 Cal.4th at 97, italics in original, underscoring added.) In the preceding section, defendant showed how in context, the motive instruction indeed made the improper suggestion.
Petznick acknowledged this contextual argument (id. at 685), but excused the instruction’s fatal omission (no admonition that motive alone does not prove guilt) with the observation that the instruction serves an “additional purpose of clarifying that motive is not an element of a crime.” (114 Cal.App.4th 663, 685.) Additional purpose or not, the problem in the instruction’s comparative wording remains the same for the jury. Unfortunately, Petznick did not resolve it. Defendant’s claim is not directed at the instruction’s purposes, but at its likely impact on the jury.
In a recent capital appeal, this Court briefly rejected a contextual attack on the motive instruction by finding the claim “merely goes to [its] clarity[.]” (People v. Cleveland (2004) 32 Cal.4th 704, 750.) But defendant’s complaint is not that the instruction was insufficiently clear; it is that, in context, the instruction all too reasonably allowed the jury to infer his intent to kill (for practical purposes here, his guilt; App. A 25) based on motive alone.
More recently, a pair of Court of Appeal decisions relied on the precise reasoning argued by defendant, albeit in another context. In People v. Bell (2004) 118 Cal.App.4th 249, Division Three of the First District found prejudicial error in CALJIC No. 2.28 as given (re late disclosure of defense witness statements). The court found the same comparative, contextual analysis “[s]ignificant[]”:
Significantly, other instructions [CALJIC Nos. 2.03, 2.04, 2.05, 2.06, 2.52] that address a defendant’s consciousness of guilt “ma[k]e clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson [(1996)] 13 Cal.4th [1164,] 1224, italics added.) No such clarification was included here. As a result, the jurors may have concluded they were free to find Bell guilty merely because he failed to comply with the discovery statute.
(118 Cal.App.4th at 256, original italics; underscoring added; followed by Fifth District in People v. Cabral (2004) 121 Cal.App.4th 748.)
Defendant urges review to examine the Bell and Cabral reasoning in light of the motive instruction issue.
