In People v. Gonzalez , District: 2 DCA , Division: 4 , Case #: B255375 the prosecutor charged appellants with malice murder but tried the case solely on a felony murder theory. The trial court did not instruct the jury on malice murder, its LIOs, or the defenses of accident and self-defense. “[U]nder the accusatory pleadings test, appellants were entitled to instructions on malice murder and the lesser included offenses to murder, if warranted by substantial evidence.”
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Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder?
People v. Campbell (2015) 233 CA4th 148, suggested that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson:
While in the present case we are not dealing with the failure to give a lesser included on the underlying felony charge, the analysis is substantially the same. In Ramkeesoon [People v. Ramkeesoon (1985) 39 C3d 346] and here, there was substantial evidence that the underlying felony was not committed. In Ramkeesoon, it was the after-formed intent; here, it is whether Fort had the intent to aid and abet the robbery. In both cases, it is clear that the defendant killed another person. Because the Ramkeesoon court assumed for purposes of the appeal that the murder conviction was based on felony murder, the only way the jury in that case and in the present case could convict the defendant of the homicide was to find that the underlying felony had been committed by the defendant. As in Ramkeesoon, the jury here was left with an “‘unwarranted all-or-nothing choice.’” (People v. Ramkeesoon, supra, 39 C3d at p. 352.)
However, People v. Gonzalez (2016) 246 CA4th 1358, disagreed with Campbell.
CC 105 Is Correctly Given When Evidence Is Conflicting as to Whether a Witness’s Character for Untruthfulness Was Discussed
In People v. Jimenez (2016) 246 CA4th 726 the trial court properly instructed jury that it could conclude the character for truthfulness of a witness (the alleged victim) was good based on lack of discussion of character in community where one witness (Hoffman) testified regarding lack of discussion, but other witnesses testified that the witness was known to lie.
The optional language in CC 105 states that “if the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.” This optional language is not legally erroneous because it reiterates the principle articulated in People v. Adams (1902) 137 Cal. 580, and a number of subsequent decisions, that the lack of discussion in the community regarding a person’s character trait may be used by the trier of fact to infer that the person’s character for that trait is good.
Hoffman’s testimony provided evidence which, if believed by the jurors, would have allowed them to conclude that the witness’s character had not been discussed in the community.
Self Defense: Presumption of Reasonableness Applies Even If Judge Finds That Defendant Was Not Legally Subletting the Residence
People v. Grays (2016) 246 CA4th 679 held that the trial court erred when it refused to instruct the jury that a person using force within his residence against a person who forcibly enters shall be presumed to have held a reasonable fear of injury to self or another member of the household (PC 198.5). The court refused the instruction on the ground that the presumption does not apply to a person who is not a lawful resident of the home.
The reviewing court concluded that PC 198.5 was intended to give residential occupants additional protection where they are confronted by unlawful intruders in their home. The Legislature did not intend to restrict the application of section 198.5 to those who actually own their homes. If the jury believed Grays’ testimony that he was living in the residence, it could have found he had a reasonable expectation of protection against unwanted intruders. Although the trial court found that Grays was not legally subletting the unit, the evidence showed he had been living in the home for months, paid rent, kept his belongings there, and had access to a key to the home. The trial court therefore erred in refusing to instruct pursuant to section 198.5.
Jury Should Consider Defendant’s Mental Impairment in Deciding Whether False Statements Showed Consciousness of Guilt
In People v. McGehee (2016) 246 CA4th 1190 the defense argued that McGehee suffered from schizophrenic delusions involving demons and that he killed his mother during such an episode. The jury was instructed that if McGehee made any false or misleading statements related to the crime, that conduct may show consciousness of guilt. (CC 362.) The jury was also instructed that it could not use evidence of his mental illness for any purpose other than to decide if he possessed the required mental state for murder. (CC 3428.)
However, People v. Wiidanen (2011) 201 CA4th 526 held that the jury should have been allowed to consider the defendant’s voluntary intoxication when determining whether false statements he made were knowingly false and therefore evidence of consciousness of guilt. See Consciousness of Guilt: False Statements: Defense Theory of Intoxication
The same logic applies to evidence of mental illness. “Like intoxication, mental illness or impairment has obvious relevance to the question of ability to perceive or recall events.” (246 CA4th at 1204-05.) Thus, the jury should have been allowed to consider the mental state evidence for purposes of assessing consciousness of guilt.
Chiu Doctrine Not Applicable to Transferred Intent
People v. Chiu (2014) 59 C4th 155 held that an aider and abettor could not be found guilty of premeditated murder under the natural and probable consequences doctrine because the mental state for premeditation and deliberation is “uniquely subjective and personal.” (See The Chiu Doctrine Explained.)
However, People v. Vasquez (2016) 246 CA4th 1019 held that a prosecution theory of transferred intent does not implicate the concerns raised in Chiu because under the transferred intent doctrine, the intent required for the crime at issue is already established with respect to one victim and is transferred to the ultimate victim.
Was the Maiden Voyage of the Titanic Merely “Incomplete”?
In People v. Cortez (2016) 63 C4th 101 the prosecutor effectively told the jury that a non-imaginary belief is proof beyond a reasonable doubt:
“The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, ‘I believe I know what happened, and my belief is not imaginary. It’s based in the evidence in front of me.’ …That’s proof beyond a reasonable doubt.”
The four-justice majority concluded that the prosecutor’s definition was “incomplete at best.” (63 C4th at 131.)
However, Justice Werdegar, joined by Justices Liu and Cuéllar, concluded that the prosecutor’s definition of reasonable doubt effectively reversed the burden of proof:
The vice in the prosecutor’s explanation was that it reversed the standard of proof beyond a reasonable doubt, telling the jury that their belief in guilt need only be nonimaginary, rather than that the evidence must exclude all reasonable doubts.” [Emphasis in original.] (Id at 134.)
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The majority characterizes the prosecutor’s remarks as “correct” but “incomplete.” (Maj. opn., ante, at p. 131.) This is a bit like describing the maiden voyage of the Titanic as “incomplete.” The essence of the proof beyond a reasonable doubt standard is its specification of a particular level of certainty on the fact finder’s part; omitting mention of that level from an explanation of the standard, as the prosecutor did here, makes the explanation not merely incomplete but wrong. “Proof to a nonimaginary degree” is not equivalent to proof beyond a reasonable doubt, and the prosecutor erred in saying it is. [emphasis added.] (Id. at 135.)
The remark could not “reasonably … be understood in an unobjectionable manner.” (Ibid.)
Instruction Concerning Double-Counting of Aggravating Factor must Be Requested
People v. Salazar (2016) 63 C4th 214, 254 held that the double counting instruction must be requested:
“Defendant claims his prior murder conviction was improperly used both as a special circumstance under section 190.2, subdivision (a) and as an aggravating factor under section 190.3, factors (b) and (c). He contends the jury should have been instructed not to ‘double count’ the conviction in this fashion. He acknowledges that in People v. Proctor (1992) 4 C4th 499, 550, we held such an instruction is only available upon request…. To the extent defendant argues that the same incident may not be considered as a special circumstance and as an aggravating factor, he is incorrect. To the extent he argues that an instruction on double counting an aggravating factor is required in the absence of a request, we are not persuaded to change our settled view.” [Citations omitted.]
Lesser Related Offenses: Conflict Between Birks and the Right to Present a Defense
In People v. Salazar (2016) 63 C4th 214, 251 the defendant unsuccessfully sought instruction on accessory after the fact as a lesser related offense. The Court, in reliance on People v. Birks (98) 19 C4th 108 [Birks], held that such an instruction is permissible only on stipulation of the parties. (See also People v. Rangel (2016) 62 C4th 1192, 1230 [same]; People v. Yeoman (2003) 31 C4th 93,129 [same].)
However, both Birks and Hopkins v. Reeves (1998) 524 US 88, upon which it relied, considered uncharged lesser related offenses in the context of traditional lesser offense analysis under standard cases such as Beck v. Alabama (80) 447 US 625 and People v. Sedeno (74) 10 C3d 703. Thus, the issue was framed in terms of what alternatives may be presented to the jury and whether the process is sufficiently reliable. This analysis does not expressly consider and address the fact that a lesser offense can be a “defense” (see Delaney v. Superior Court (90) 50 C3d 785, 809) and, hence, restriction of instruction on a lesser offense may be a restriction of the defendant’s right to present a defense.
While Reeves (in which the lesser offense was requested in reliance upon Beck) may be read to have implicitly held that the state may so restrict the defense, it did not confront the issue head-on. Reeves did not discuss whether there was a factual basis for such an argument (i.e., strong evidentiary support for the lesser offense and explicit defense reliance upon such evidence as a primary defense theory). Nor did Reeves confront the well-developed body of federal law establishing a federal constitutional basis under the 6th and 14th amendments to instruct the jury on the theory of the defense.
Similarly, Carter v. United States (2000) 530 US 255 reaffirmed the general rule that under FRCP 31(c) the defendant is not entitled to a jury instruction on lesser offense when elements of offense are not a subset of charged offense. However, in Carter the Court limited its discussion to Rule 31. It did not address the question of whether the defendant’s constitutional rights require instruction on a non-included lesser offense as a defense theory.
Hence, the cases which have limited lesser offenses to statutorily included offenses should not preclude an argument that instruction on a lesser related offense may be required by the defendant’s right to instruction on the defense theory of the case which is founded on the federal constitutional rights to due process, compulsory process and fair trial by jury. (5th, 6th and 14th Amendments; Mathews v. United States (1988) 485 US 58, 63 citing Stevenson v. United States (1896) 162 US 313[refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213; People v. Wright (1988) 45 C3d 1126, 1141-43; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.)
For example, in Sanborn v. Commonwealth (1988, Kentucky) 754 SW2d 534, the defendant in a rape case had a right to an instruction on the lesser related offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead. That was so because reliance on a lesser charge is a defense which the defendant has the right to present to the jury. (See also U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004 [defendant’s testimony that he only assisted after the crime necessitated instruction on defense theory of accessory after the fact which is not a lesser included].)
Moreover, the U.S. Supreme Court has consistently held that domestic rules of evidence or procedure may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (87) 483 US 44; Green v. Georgia (79) 442 US 95; Davis v. Alaska (74) 415 US 308; Chambers v. Mississippi (73) 410 US 284;Washington v. Texas (67) 388 US 14.) The Supreme Court has applied a balancing test in resolving conflicts between such domestic rules and the federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.)
Because Birks is a domestic rule it should not control in a situation where the defendant will be denied the fundamental right to defend against the charge. Thus, in a case where the lesser related offense is a primary focus of the defense theory of the case, there may be a basis for challenging the state rule enunciated in Birks and Reeves as a violation of the defendant’s federal constitutional rights.
See also, FORECITE LRO II Theories For Instruction On Lesser Related Offenses Notwithstanding Birks
Cautionary Instruction on Defendant’s Statements Not Required Sua Sponte
In People v. Diaz (2015) 60 C4th 1176 the California Supreme Court reconsidered the requirement that the cautionary principle reflected in CALJIC 2.71.7 [now CC 358] must be given sua sponte. The Court decided that “in light of a change in the law that requires the general instructions on witness credibility to be given sua sponte in every case, the cautionary instruction is not one of the general principles of law upon which a court is required to instruct the jury in the absence of a request. The cautionary instruction does not reflect a legal principle with which jurors would be unfamiliar absent the instruction, and the defendant may not always want the instruction to be given.” (60 C4th at 1189.)
However, the Court has still not decided whether this holding applies retroactively, finding no prejudice to Diaz from the court’s failure to give the instruction. (Id. at 1195; see also People v. Salazar (2016) 63 C4th 214, 250 [same].)
See generally FORECITE PG V(A) [trial judge’s sua sponte duties to instruct].
See also, FORECITE F 362.1 Inst 9 Consciousness Of Guilt From False Statements: Defense Objection Precludes Instruction Which Benefits Defendant.