When a jury states it has a verdict and submits signed and dated guilty and not guilty verdicts on the same count, the flaw is not merely one of inconsistency in the verdicts; the jury’s verdict on that count is simply unintelligible. (See People v. Carbajal (2013) 56 Cal.4th 521.) The court’s failure to notify counsel of the problem implicates the defendant’s right to counsel. If notified counsel may be able to guide the court to the proper response i.e., informing the jury that it cannot find defendant guilty and not guilty of the same first degree murder. (See People v. Brown (2016) 247 CA4th 211, 233.) The error was prejudicial. However retrial is not precluded because the jury’s unintelligible verdict was not the equivalent of a verdict of acquittal.
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Imperfect SELF DEFENSE AND DELUSIONS
A defendant who acts with the state of mind required for imperfect self-defense does not harbor express malice. “Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense.” (People v. Elmore (2014) 59 Cal.4th 121, 133. California law allows the jury to consider a defendant’s mental disabilities in deciding whether he or she had an actual but unreasonable belief in the need for self-defense.
In People v. Ocegueda (2016) 247 CA4th 1393 the judge instructed the jury it could consider evidence of defendant’s mental disabilities “only for the limited purpose” of deciding whether defendant harbored the “intent to kill.” However, PC 28 expressly makes evidence of mental disabilities admissible to consider whether a defendant harbored express malice. Therefore, by limiting the jury’s consideration of mental disability evidence to the question of whether defendant had an intent to kill—but not whether he harbored express malice—the judge’s instruction violated PC 28.
In Ocegueda the Attorney General contended that the instruction was correct because the standard instructions on attempted murder and attempted voluntary manslaughter “do not require a showing of malice per se, but instead, a showing of the specific intent to kill.” However, the reviewing court rejected this contention:
[CC 604], the pattern instruction on attempted voluntary manslaughter under a theory of imperfect self-defense, instructs jurors: “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense.” This properly places the burden on the prosecution to prove the existence of malice, not simply the intent to kill. Indeed, one of the requirements of imperfect self-defense as set forth in the pattern instruction is that the “[t]he defendant intended to kill when he acted.” But this does not make such a defendant guilty of attempted murder. To the contrary, a defendant acting in imperfect self-defense cannot be convicted of attempted murder because murder requires malice, and express malice requires “a deliberate intention unlawfully to take away the life of a fellow creature.” (Pen. Code, § 188, italics added.) A defendant who intends to kill in imperfect self-defense does not do so “unlawfully” within the meaning of Penal Code section 188. [Citation.] (Ocegueda, supra, at 1409.)
The Attorney General also relied on Elmore to contend that Ocegueda was not entitled to any instruction on imperfect self-defense because that defense can only be supported by a true mistake of fact, not mental disabilities:
“A defendant who makes a factual mistake misperceives the objective circumstances. A delusional defendant holds a belief that is divorced from the circumstances. The line between mere misperception and delusion is drawn at the absence of an objective correlate. A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation is not delusional. One who sees a snake where there is nothing snakelike, however, is deluded. Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant’s mind.” (Elmore, supra, at p. 137.)
However, the reviewing court in Ocegueda rejected the Attorney General’s contention:
We do not read Elmore as precluding imperfect self-defense in any case where mental disabilities affect the defendant’s beliefs or perceptions. The key distinction identified in Elmore is the “absence of an objective correlate.” (Elmore, supra, 59 Cal.4th at p. 137.) Here, defendant claimed he saw Garcia pull a metal object—which defendant believed to be a gun—out of his waistband. The Attorney General suggests that such a belief, even if genuine, must have been purely delusional because no other witness saw Garcia make such a motion, and no gun or gun-like object was found on Garcia. But a single witness, even if not inherently credible, may provide sufficient evidence to establish a fact. [Citations.] (Ocegueda, supra, at 1409-10.)
Accordingly, whether the defendant’s statements were sufficiently credible or his beliefs purely delusional were questions of fact for the jury to decide. There is no “heightened evidentiary standard requiring corroborating evidence independent of defendant’s statements to show his beliefs were not purely delusional.”
For these reasons, the trial court erred by precluding the jury from considering evidence of defendant’s mental disabilities in deciding whether he harbored the state of mind required for imperfect self-defense.
CC 207: Proof Need Not Show Actual Date: Ex Post Facto Violation
In People v. Rojas (2015) 237 CA4th 1298, 1306-07 the defendant argued that a modified version of CC 207 resulted in an ex post facto violation because the instruction allowed the jurors to convict Rojas of violating PC 288.7(a) based on events which occurred prior to the effective date of the statute.
“It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment.” (People v. Hiscox (2006) 136 CA4th 253, 256.)
Because the record in Rojas allowed for reasonable doubt over whether Count 2 was based on an act that occurred on or after the effective date of the statute, the conviction was reversed. (People v. Rojas, 237 Cal. App. 4th 1298, 1304-07.)
“Functional Equivalent” of LWOP and Juvenile Offenders
People v. Franklin (2016) 63 /c4th 261 held that juvenile homicide offenders may not be sentenced to the “functional equivalent” of LWOP without the protections outlined in Miller v. Alabama (2012) 567 U.S. __. Initially the CSC held that Miller’s prohibition on LWOP sentences for juvenile homicide offenders also prohibits sentences that are the “functional equivalent” of LWOP. The CSC notes that a similar question arose in the context of sentencing for juvenile nonhomicide offenders. In Graham v. Florida (2010) 560 U.S. 48, the Court held that no juvenile who commits a nonhomicide offense could be sentenced to LWOP. In People v. Caballero (2012) 55 Cal.4th 262, the CSC held that Graham also prohibited sentencing a juvenile nonhomicide offender to the functional equivalent to LWOP.
Note: Senate Bill No. 260, which added Penal Code section 3051, moots Miller claims, but remand was nevertheless ordered in Franklin to provide the parties with an opportunity to make an accurate record. The Legislature explicitly passed Senate Bill No. 260 to bring juvenile sentencing into conformity with Graham, Miller, and Caballero.
The CSC noted that its “mootness holding is limited to circumstances where, as here, PC 3051 entitles an inmate to a youth offender parole hearing against the backdrop of an otherwise lengthy mandatory sentence. The Court expressed no opinion on Miller claims by juvenile offenders who are ineligible for such a hearing under section 3051, subdivision (h), or who are serving lengthy sentences imposed under discretionary rather than mandatory sentencing statutes.”
Reversible Chiu Error: Not Clear Beyond A Reasonable Doubt That Jurors Rejected Natural and Probable Consequences Theory
People v. Brown (2016) 247 CA4th 211 reversed Brown’s first degree murder conviction in light of People v. Chiu (2014) 59 Cal.4th 155.
The jury was instructed on three first degree murder theories: (1) Brown was the actual killer, (2) he aided and abetted the actual killer with the intent to kill, and (3) he aided and abetted fighting and a first degree murder was the natural and probable consequence of the fight. However, the the third theory — based on the natural and probable consequences doctrine — was invalid.
When the judge instructs a jury on multiple theories of guilt, one of which was legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.]” (People v. Chiu, supra, 59 Cal.4th at p. 167.) Because the defendant in Chiu was prosecuted on a direct aiding and abetting theory—the permissible theory—and as an aider and abettor under the natural and probable consequences theory—the legally impermissible theory—(id. at p. 158), and the court could not “conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory,” reversal was required (id. at p. 167).
An instruction that relieves the prosecution of the obligation to establish a necessary element violates a defendant’s right to due process under the state and federal Constitutions, and is subject to harmless error analysis under [Chapman.] (People v. Cox (2000) 23 Cal.4th 665, 676–677.)
Accordingly, because the reviewing court in Brown could not conclude beyond a reasonable doubt that jury rejected natural and probable consequences doctrine as basis for first degree murder conviction the Chui error warranted reversal of the first degree murder conviction.
Mens Rea and PTSD
People v. Herrera (2016) 247 CA4th 467 held that exclusion of psychiatric testimony regarding the defendant’s post-traumatic stress disorder (PTSD) required reversal of his murder conviction. PC 28 and 29 limit the use of mental disorder evidence to negate a defendant’s capacity to form any mental state is prohibited, but may be offered on the issue of whether defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought (PC 28). Thus, an expert may not testify that the defendant had or did not have the required mental states for the charged crime (PC 29). However, the expert may permissibly testify regarding the defendant’s mental state at the time of the offense. Hence, the judge in Herrera erred by refusing to permit the defense expert to testify regarding defendant’s particular diagnoses and mental condition and their effect on him at the time of the homicide.
Moreover, the error was prejudicial because defendant admitted killing the deceased. The only trial issue was defendant’s mental state at the time of the homicide. The trial court’s evidentiary ruling vitiated the claim that defendant had lapsed into a dissociated stated in which he did not deliberately premeditate the stabbing. It also precluded the jury from effectively evaluating the doctor’s testimony regarding defendant’s PTSD and its relation to the issues of self-defense, imperfect self-defense, and heat of passion.
Chun Error: 9th Circuit overturns CSC Finding of harmless error
Chun was convicted of second-degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abetter. He appealed, arguing that felony murder was inapplicable under the merger doctrine. He also contended that improperly giving the jury the felony murder instruction allowed the jury to convict him of second-degree murder without finding malice, an element of the crime. The California Court of Appeal agreed and reversed Chun’s murder conviction. People v. Chun, UNPUBLISHED, 155 Cal. App. 4th 170, 65 Cal. Rptr. 3d 738 (Ct. App. 2007). Ultimately the CSC agreed that giving the felony murder instruction was error but held the error harmless. (People v. Chun (2009) 45 C4th 1172, 1199 [when underlying felony is assaultive in nature, felony merges with homicide and cannot be basis of a felony-murder instruction]; see also CC 541A “inserting appropriate “nonassaultive” felon(y/ies).)
Chun sought a writ of habeas corpus from the district court, which denied it. However, the 9th Circuit reversed under the harmless error standard for federal habeas corpus review established in O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995) and Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)) holding that the CSC’s finding that the error was harmless beyond a reasonable doubt was objectively unreasonable. (See Davis v. Ayala (2015) 135 S. Ct. 2187, 2198-99.)
The jury almost certainly based its conviction on Chun having aided and abetted the shooting because it found that Chun was a gang member present at the scene of a gang shooting who did not fire a weapon. The jury acquitted Chun of the felonies of shooting at a vehicle and firing from a vehicle (or aiding or abetting those acts). Both acquittals were inconsistent with the second-degree murder conviction.
When faced with inconsistent verdicts, the courts cannot know which one—the conviction or the acquittal—”the jury ‘really meant.'” United States v. Powell, 469 U.S. 57, 68, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). In such cases the jury may have convicted Chun through “mistake [or] compromise,” in which case proper instructions could easily have swayed the outcome. See Powell, 469 U.S. at 65; see also Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680 (1942) see also Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[A] verdict . . . only weakly supported by the record is more likely to have been affected by errors . . . “]; Parle v. Runnels, 505 F.3d 922, 928 & n.7 (9th Cir. 2007) [the Supreme Court’s analysis in Glasser and Strickland binds all fair-minded jurists].)
Hence the 9th Circuit concluded:
This is precisely the kind of case to which O’Neal’s “grave doubt” holding is meant to apply. We also find the state court’s harmlessness decision objectively unreasonable within the meaning of section 2254(d)(1). No fair minded jurist would conclude that it was correct to find the error harmless beyond a reasonable doubt, given the total absence of evidence of what Chun did to aid and abet and our resulting inability to assess the effect of the instructional error which permitted the jury to convict Chun absent a showing of malice.
Chun v. Lopez, No. 13-16466, 2016 U.S. App. LEXIS 10457, at *1-6 (9th Cir. June 9, 2016)
***Note: On June 24, the state filed a petition for panel rehearing and rehearing en banc.
Chiu Error: Review Granted to Reconsider People v. Favor (2012) 54 Cal.4th 868
The CSC has granted review in several cases to consider whether to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) ___ U.S. ___ [113 S.Ct. 2151] and People v. Chiu (2014) 59 Cal.4th 155?
See People v. Mateo (Feb. 10, 2015, B258333) [nonpub. opn.], review granted 5/11/2016 (S232674); see also People v. Gutierrez (Mar. 3, 2016, B250333) [nonpub. opn.], review granted 5/25/2016 (S233295); People v. Morales (Feb. 17, 2016, B253249) [nonpub. opn.], review granted 5/25/2016 (S233255).) Briefing in Gutierrez and Morales was deferred pending decision in Mateo. [NF]
CSC Review Granted: Lesser Included Offenses and Proposition 47
The CSC has granted review in three cases to consider whether Proposition 47 (“the Safe Neighborhoods and Schools Act”) applies to the offense of unlawful taking or driving a vehicle (Veh. Code, 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18.
See People v. Page (2015) 241 Cal.App.4th 714, review granted 1/27/2016 (S230793/E062760), see also People v. Casias (Mar. 22, 2016, H042065) [nonpub. opn.], review granted 5/25/2016 (S233979); People v. Gomez (Mar. 15, 2016, E062867) [nonpub. opn.], review granted 5/25/2016 (S233849)
Briefing in Casias and Gomez was deferred pending decision in Page.[NF]
Chiu Applies Retroactively to Convictions That Were Final on Appeal When Chiu Was Decided
In re Lopez (2016) 246 CA4th 350 concerned a conviction which was final on appeal when People v. Chiu (2014) 59 C4th 155 was decided. See The Chiu Doctrine Explained. The Chiu opinion did not state whether it applied retroactively to convictions that were final on appeal when it was decided.
Lopez concluded that Chiu applies retroactively based on the reasoning in People v. Mutch (1971) 4 C3d 389, 392.
A court’s new interpretation of a criminal statute, which had previously been misconstrued, is not a change in the law but a declaration of what the intent of the Legislature had been. “Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim.” (Woosley v. State of California (1992) 3 C4th 758, 794 [citations omitted].)
Murder, aider and abettor liability, and coconspirator liability are all statutory. “By limiting the scope of aider and abettor liability in the commission of murder, the court in Chiu was, in effect, engaging in statutory interpretation and declaring the Legislature’s intent . . . .” (246 CA4th at 359-60.) Accordingly, Chiu must be applied retroactively. (Ibid.)