Brief Bank # B-981
By Allowing The Jury To Rely On Others’ Flight In Determining Appellant’s Guilt,
The Instruction Denied Defendant His Substantial Rights And Requires Reversal
In the trial of a single defendant for crimes committed with others, the standard instruction has the potential to cause serious prejudice to the defendant’s right to a fair trial. In appellant’s case, where the prosecutor relied on evidence and argument of an uncharged coperpetrator’s flight to support a finding of the defendant’s guilt, that potential was realized.
This error may be raised on appeal. Defense counsel objected to the instruction, noting among other points that other people fled from the scene. And because the error affected appellant’s substantial rights – inviting jurors to base a guilty verdict on improper considerations – no objection was necessary to preserve the issue for review. (§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Alternatively, appellant asks this court to review the error in the context of ineffective assistance, there could have been no tactical justification for permitting the jury to find appellant guilty based on a prejudicially erroneous instruction that counsel opposed.
Appellant repeats the instruction as given, adding emphasis to highlight the issue he presents:
The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in light of all other proved . . . facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.
The problem is alarmingly simple, and as alarmingly serious. Essentially, the instruction gives the jury two rules in plain language”
(1) “A person’s” – any person’s – flight after a crime, bu itself, does not establish that person’s guilt.
(2) Any person’s flight after a crime is relevant and ay be considered in drawing an inference that the defendant is guilty.
There is nothing ambiguous about the instruction; it sets forth both rules in straightforward fashion. Of course, in a trial of a single defendant, where evidence of flight involves only that person, the distinction emphasized above is meaningless. But where, as here, the prosecutor expressly relies on a non-defendant’s flight to argue the defendant’s guilt, the distinction becomes significant, and there is no reason why a jury would ignore it.
Even if the instruction is viewed as ambiguous with respect to the “person-defendant” distinction, “[t]he relevant question in reviewing defendant’s challenge is whether there is a ‘reasonable likelihood’ that the jury understood the charge as defendant asserts. [Citations.]” (People v. Petznick (2003) 114 CA4th 663, 678; Estelle v. McGuire (91) 502 U.S. 62, 72 [116 LEd2d 385; 112 SCt 475].) Because appellant relies on a logical and literal reading that is consistent, or not inconsistent, with the prosecutor’s reliance on the instruction, such a reasonable likelihood exists.
The defect in the instruction as given here may be seen by analogy to two deficient instructions noted in People v. Petznick, supra.
The Petznick case involved a trial of a single defendant for conspiracy to murder and other crimes. Based on the evidence, the jury understood there were four alleged conspirators, including the defendant. (114 Cal.App.4th at 679.) In instructing on the requisite specific intent to kill for conspiracy to murder, the trial court stated that “[a]t lease two of the persons” must have had that intent. (Id. at 680.) The Court of Appeal found reversible error.
[The revised instruction] says only that “at least two” of the participants must have intended to kill and does not specify that defendant must have been one of them. Since the jury was aware that there were four participants, the instruction erroneously permitted the jury to find defendant guilty of conspiracy to commit murder without regard to whether or not he personally intended to kill so long as they found that at least two of the other participants harbored that intent.
(Id. at 681.)
Similarly, in instructing the jury on the torture-murder special circumstance, the trial court explained that “a defendant” must have had the requisite specific intent. (Id. at 685, italics added by Court of Appeal.) Once again, this was error, requiring reversal.
The Attorney General argues that the instruction was not erroneous since defendant was the only defendant at trial. While that may be so, the jury was aware of the participation of three other persons. The other three participants, although not technically defendants, were referred to as defendants throughout the instructions. Thus, the jury could easily have understood a defendant as referring to any one of the four participants.
(Ibid., italics in original.)
While the flight instruction at issue here did not involve the elements of the charged crimes, as in Petznick, the appropriate analysis should be identical. That is, although appellant was the only defendant on trial, the instruction reasonably informed the jury that his guilt could be inferred in part from anyone’s flight shown by the evidence. Such an inference has no basis in law or logic.
The point of the flight instruction is to permit the jury to rely on that fact as showing consciousness of guilt. “[T]here is a rational basis for inferring that if a person flees immediately after a crime to avoid detection, he may do so because he believes himself to be guilty . . . .” (People v. Pensinger (1991) 52 Cal.3d 1210, 1244, italics added.) But there is no rational basis for inferring that if one person flees immediately after a crime to avoid detection, someone else believes himself to be guilty. Alternatively, it would be equally irrational to infer that because one person flees a crime scene to avoid detection, believing himself to be guilty, another person is more likely to be guilty. Accordingly, the instruction was erroneous.
The error was not limited to state law. As given, the flight instruction allowed the jury to infer a finding of appellant’s guilt in material part from evidence of another person’s flight. “Permissive inference jury instructions are disfavored because the ‘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 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 cause the presumptively rational factfinder to make an erroneous factual determination. (Ibid.)
Such a risk was realized here, as shown above. Thus, the instruction effectively lowered the prosecution’s standard of proof, in violation of due process. (Ibid.; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 315-16.)
“A constitutionally deficient jury instruction requires reversal unless the error is harmless beyond a reasonable doubt. [Citation.] An error is harmless beyond a reasonable doubt when ‘there is no reasonable possibility that the error materially affected the verdict.’ [Citation.]” (Id. at 316 [permissive inference irrational under circumstances, error not harmless; Rose v. Clark (1986) 478 U.S. 570, 582.) The error is not cured by ample evidence in support of the verdict, as this is not a sufficiency of evidence issue. (Schwendeman v. Wallenstein, supra, 971 F.2d at 316.) Instead, the reviewing court must determine “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, original italics.)
Such a determination is impossible, given the presumption that the jury follows instructions. (People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) This presumption is no less applicable where the instruction is erroneous. (Buzgheia v. Leasco Sierra Grove (1977) 60 Cal.App.4th 374, 395.) In reaching a guilty verdict, jurors were free to rely on evidence of the perpetrators’ flight from the crime scene – whether or not appellant was among them – and of JoJo’s flight afterward.
This problem was exacerbated by the fact that although appellant offered evidence to rebut consciousness of guilt with respect to his own “flight,” he was on no notice and had no opportunity to do so as to others’ flight. JoJo, for example, refused to testify at appellant’s trial.
Finally, the prosecutor devoted a substantial portion of his flight argument to evidence of JoJo’s flight, both with and without appellant. Following this argument, the jury needed only to apply the erroneous instruction to reach an improper guilty verdict.
Given these factors, even under that state standard of review, it is reasonably probable that the error contributed to the verdicts against appellant in count 1-6; they must be reversed.