Category Archives: Blog

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Merger Doctrine Not Applicable to First Degree Felony Murder

In People v. Ireland (1969) 70 Cal.2d 522 the CSC held that “the crime of assault with a deadly weapon cannot be used as the sole predicate crime for a second degree felony-murder conviction because, when a firearm is used in a killing, such an assault is “an integral part of the homicide.” In People v. Powell (2018) 5 Cal.5th 921, 941-42 the defendant contended that the Ireland holding — which has come to be known as the “merger doctrine” — should preclude a verdict of first degree murder in the course of the crimes of mayhem or torture because the commission of these crimes was an integral part of his heat of passion killing.

The CSC rejected this contention.

In two post-Ireland decisions the merger doctrine was extended to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underlying the burglary was the assault that led to the homicide. (People v. Sears (1970) 2 Cal.3d 180, 188-189 and People v. Wilson (1969) 1 Cal.3d 431, 440 [precluding application of the felony-murder rule when “the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide”].) Although second degree felony murder is grounded in an interpretation of PC 188, no statute specifically addresses second degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1182-1183.) In contrast, first degree felony murder, along with the predicate crimes underlying it, is expressly described in PC 189. Citing this distinction, People v. Farley (2009) 46 Cal.4th 1053 reconsidered and disapproved the extension of the merger doctrine to first degree felony murder.

Accordingly, the merger doctrine is inapplicable to first degree murder including torture murder and murder during the commission of mayhem. (People v. Powell, supra, at 942-43.)

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Judge Has Sua Sponte Duty to Instruct on Lesser Offense of Involuntary Manslaughter Based on Commission of Inherently Dangerous Assaultive Felony

The court has a sua sponte duty to instruct on involuntary manslaughter based on the commission of an inherently dangerous assaultive felony and to instruct on the elements of the predicate offense(s). (People v. Brothers (2015) 236 Cal.App.4th 24, 33–34; see also People v. Bryant (2013) 56 Cal.4th 959, 964.)

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CALCRIM IS NOT “THE LAW”

Jury instructions “are not themselves the law,” “are not authority to establish legal propositions or precedent,” and “should not be cited as authority for legal principles in appellate opinions. [Citation] “At most, when they are accurate , … they restate the law.” ([citation], italics added by Montoyo court.) (People v. Montoya (2021) 68 Cal.App.5th 980, 999-1000.)

For example, in People v. Burgess (2021) 60 Cal.App.5th 885, 893 the defendant maintained that his PC 29815 conviction must be reversed because no evidence showed his firearm restriction probation condition was ordered by a court. He pointed to the language in two jury instructions, CALCRIM Nos. 2512 and 3500, the first stating the jury must find a court ordered the firearm restriction and the second stating that his charge was “possession of a firearm by a person prohibited by a court order.” From these, Burgess argued that an essential element of the offense—a court-ordered firearms restriction probation condition—had not been met.

The reviewing court rejected the defense contention because CALCRIM is “not the law….” (Ibid.) “Because the instructions are not binding, whatever the Judicial Council intended by them does not affect our analysis. [Citation]” People v. Burgess (2021) 60 Cal.App.5th 885, 893

See also PG I(B) – Duty of Court to Go Beyond the Standard Pattern Instructions

https://forecite.com/forecite-practice-guide/pg-xa

 

CALCRIM Is Not the Law June 3rd, 2021

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Justice Liu Again Calls for the CSC to Revisit the Question of Whether PC 190.3 Factor(b) Violates Apprendi

The Due Process Clause of the federal constitution (Fifth and Fourteenth Amendments) protect the accused against conviction except upon proof beyond a reasonable doubt of every essential fact and element of the charge. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)

 

In People v. McDaniel (2021) 12 Cal.5th 97, 176, Justice Liu concluded that “the 20-year arc of the high court’s Sixth Amendment jurisprudence [since Apprendi] raises serious questions about the constitutionality of California’s death penalty scheme.” (Id. at p. 176 [“this court, as well as other responsible officials sworn to uphold the Constitution, [should] revisit this issue.”].)

 

See also Justice Liu Identifies Defect in California Death Penalty Process
October 20th, 2021

 

In People v. Pineda; S150509 (6/27/22), Justice Liu issued a concurring opinion which restated the concerns he expressed in McDaniel.

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Does Robbery Justify the Use of Deadly Force in Self Defense?

PC 197 permits use of deadly force to prevent a felony only if the felony is “forcible and atrocious.” (People v. Morales (2021) 69 Cal.App.5th 978, 991.)

Forcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos (1974) 12 Cal.3d 470, 479.) In Ceballos, the court identified murder, mayhem, rape, and robbery as examples of forcible and atrocious crimes. (Id. at p. 478.) However, as noted in People v. Morales, supra, 69 Cal.App.5th at 992–993, Ceballos involved a burglary, not a robbery, and contemplated the traditional common law robbery, which, unlike the modern understanding of robbery in California, did not include situations where very little force or threat of force is involved. Morales concluded that “[a] robbery therefore cannot trigger the right to use deadly force in self-defense unless the circumstances of the robbery gave rise to a reasonable belief that the victim would suffer great bodily injury or death.” (Id. at 992.)

 

Accordingly, the CALCRIM committee has proposed a revision of CC 505 to address “noninherently forcible and atrocious” crimes such as robbery by limiting their applicability to “circumstances in which [the defendant] reasonably believed that (he/she) would suffer great bodily injury or death.”

 

See https://www.courts.ca.gov/documents/calcrim22-01.pdf

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Revised Kill Zone Instruction Is Still Defective

People v. Canizales (2019) 7 Cal.5th 591, 607-09 concluded that CC 600 [September 2019 version] was deficient and recommended revisions of that instruction. (See CSC Calls For Revision Of Kill Zone Instruction (CC 600).)

Canizales explained that the instruction was flawed because it did not adequately define the term “kill zone” and failed to direct the jury to consider the circumstances of the attack in determining whether the defendant’s attempt to kill everyone around the primary target was undertaken as a mean of killing the primary target. (Ibid.)

CC 600 was heavily revised in light of Canizales, and it is now considerably longer and more complex. (CC 600, Revised April 2020.) But even this revised version of the instruction largely retains a defect:

 

“In articulating the elements of the kill zone theory, the revised instruction does not require the jury to find that the defendant intended to kill everyone in the area around the primary target in order to ensure the death of the primary target. Instead, the revised version provides: ‘A person may intend to kill a primary target and also [a] secondary target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an area in which the defendant used lethal force that was designed and intended to kill everyone in the area around the primary target.’ {Quoting CC 600.]” (In re Sambrano (2022) 79 Cal.App.5th 724, [pp 8-11]; Emphasis by Sambrano.)

Canizales held that unless the defendant intended to kill everyone in the area around the primary target in order to effectuate the killing of the primary target, the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at 607 [a kill zone is “an area in which the defendant intended to kill everyone present to ensure the primary target’s death”].)

However,

The revised instruction’s only allusion to that requirement appears in the last sentence of the instruction, which tells the jury, “If you have a reasonable doubt whether the defendant . . . intended to kill [the primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [the other people in the zone].” (CALCRIM No. 600.) But jurors might well be confused when they discover in the final sentence that a reasonable doubt about whether the defendant intended to kill the primary target by killing everyone in the kill zone requires them to find the defendant not guilty, given that nowhere else does the instruction say an intent to kill the primary target by killing everyone in the kill zone is required. (Sambrano, supra.)

Furthermore, Sambrano questioned whether “it would ever be prudent” to give a kill-zone instruction:

Given the Supreme Court’s words of caution, the apparently ongoing difficulty in crafting an error-free instruction on the kill zone theory, and the absence of any requirement to give a kill zone instruction, it is not clear why it would ever be prudent to give such an instruction. It appears easy to commit error by instructing the jury on the kill zone theory, but it is literally impossible to err by declining to do so.

In re Sambrano (June 9, 2022, E078147) [pp. 8-11]; but see Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory

And,

If a court deems it appropriate to instruct a jury on the kill zone theory, the instruction could arguably be reduced to a single sentence (and without use of the term “kill zone”) along something like the following lines: If, having considered all the circumstances of the attack, you find beyond a reasonable doubt that the defendant intended to kill <insert name of primary target> by killing everyone in the area in which <insert name of primary target> was located, then you may infer, but are not required to infer, that the defendant intended to kill everyone in that area.

(In re Sambrano, supra at _____, fn. 3 [pp. 11 fn. 3].)

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Defendant’s Previous Conviction: Cautionary Instruction

It is beyond dispute that it is improper and prejudicial to permit the jurors to consider the fact that the defendant was previously tried and convicted for the same allegations. For example, in People v. Kessler (1963) 221 Cal.App.2d 187, 191, the court concluded that the unnecessary calling and identifying of a probation officer as a witness as an indirect method of using and referring to defendant’s former trial: “Unquestionably…denied [defendant] a fair trial.”

 

Juror exposure to information of the adverse result of a previous trial creates a presumption that prejudice had been generated by such conduct. (See Holmgren v. U.S. (1910) 217 US 509, 522 [30 SCt 588; 54 LEd2d 861]; see also Fullwood v. Lee (4th Cir. 2002) 290 F3d 663 [jury awareness that previous penalty verdict had been reversed on a “technicality” provided the basis for investigation of a potential jury misconduct claim].) Hence, every effort should be made to prevent the jury from learning about the prior trial and/or verdict.

 

Juror consideration of extraneous evidence regarding the result of a prior trial constitutes consideration of “testimonial assertions of persons whom defendant obviously had no opportunity to question.” (People v. Modesto (1967) 66 Cal.2d 695, 715.) In such a case the prior jurors are “enlisted as highly persuasive witnesses for the prosecution, witnesses whom the defendant could neither confront nor cross-examine.” (Ibid.) Hence, juror consideration of such extraneous evidence violates the defendant’s state (Article I §§15 and 16) and federal (6th and 14th Amendments) constitutional rights to confrontation. (See Pointer v. Texas (1965) 380 US 400; see also U.S. v. Bagley (1985) 473 US 667; Davis v. Alaska (1974) 415 US 308; Smith v. Illinois (1968) 390 US 129; Brookhart v. Janis (1966) 384 US 1.)

Reference to a former verdict is also prohibited by Penal Code 1180. (See People v. Peckham (1967) 249 Cal.App.2d 941, 946; see also People v. Burgener (2003) 29 C4th 833 [“proper solution” to potential prejudice from a previous trial is to “exclude any reference to the prior verdict”].)

Compare People v. Bloom (Apr. 21, 2022, S095223) [pp. 23-24]:

[Bloom] contends that the prosecution improperly asked questions that either obliquely referred to, or solicited responses that referred to, Bloom’s prior incarceration. But contrary to Bloom’s arguments, none of these references violated either Penal Code section 1180, which forbids references to former verdicts or findings, or his due process rights. None of the references to witnesses’ prior testimony directly revealed the verdict reached in Bloom’s prior trial. Nor did they encourage the jury to draw inferences that risked “implying prior criminality,” thus “prejudicing] defendant in the eyes of the jury.” (People v. Kessler (1963) 221 Cal.App.2d 187, 192.) It is true that the references would have led jurors to assume Bloom had previously been tried and that he had been detained before the retrial, but as both sides in the case acknowledged, that information was inevitably going to come out and on its own raised no unacceptable risk of prejudicing Bloom in the eyes of the jury.

 

SAMPLE INSTRUCTION # 1:

You may hear reference to a previous trial of this case. A previous trial did occur. But the defendant and the government are entitled to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proven, beyond a reasonable doubt, that the defendant committed the crime.

[Source: 1st CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 1.03 [Previous Trial] (1998).]

SAMPLE INSTRUCTION # 2:

You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.

[Source: 9th CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 2.14 [Defendant’s Previous Trial] (2000).]

SAMPLE INSTRUCTION # 3:

During the course of this trial, you have heard that the defendant was on trial before. That is true. The defendant and the government are entitled, however, to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 14 [Defendant’s Previous Trial: Jury Not To Consider] (1988).]

SAMPLE INSTRUCTION # 4:

The defendant has been tried before. However, this fact must not enter into or influence your deliberations in any way.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 1.06 [Retrial of Case] (Bar Association of the District of Columbia, 4th ed. 1993).]

SAMPLE INSTRUCTION # 5:

The case has been tried before. It has been submitted to you in this second trial as a result of proper legal procedures. The fact that there has been a previous trial, and the legal reasons why the case is being tried again, have no bearing whatever upon the issues presented to you or upon the decision you face.

To you this is a new case, and you must treat and consider it as such. Do not speculate about the previous trial, nor allow it to affect your consideration of this case.

[Cf. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:71 [General Instructions-Retrial] (West, 1999).]

SAMPLE INSTRUCTION # 6:

You have heard evidence that there was a previous trial of the defendant(s) for the crime(s) charged here. However, you must decide this case solely on the evidence presented to you in this trial.

Do not consider the fact of a previous trial in any way when you decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL SDCL 4-1-6 (State Bar of South Dakota, 2000).]

SAMPLE INSTRUCTION # 7:

You have heard references to a previous trial of this case. Do not in any manner consider this fact or speculate as to the reason why the case is being tried again.

[Cf. CRIMINAL JURY INSTRUCTIONS – NEW YORK, CJI 5.40 [Reference From Prior Trials] (The New York Office of Court Administration, 1983).]

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CC 1141 Distributing Matter Showing Sexual Conduct by Minor: Commercial Benefit Defined

People v. Wimer (2022) 74 Cal.App.5th 113, 134-35 concluded that the trial court misstated the law when it instructed the jury on the fourth element of [PC 311.2(b).

Element four of CALCRIM-1141-A stated: “When the defendant acted, he intended to distribute, show, or exchange the matter to someone else for money or other commercial benefit.” The trial court equated “commercial benefit” with “the trade of obscene matter through the internet” and later responded to a jury question by stating: “The dissemination of obscene matter, as defined, on the internet with the intent to trade or induce others to trade the pornographic material is a ‘commercial purpose.’ To disseminate such material on the internet without such intent to trade or induce others to trade is ‘non commercial.’ ” (Italics added.) The court’s instructions to the jury made clear that the element of commercial consideration required nothing more than an intent to trade or induce others to trade in obscene matter over the Internet. As we have explained, that is an erroneous construction of [PC 311.2(b).] Commercial consideration requires proof that when the defendant disseminated the obscene matter, he intended to receive money or some other form of recompense as part of a commercial or profitmaking venture.

Accordingly, a definition such as the following should be added to CC 1141:

Commercial benefit means receipt of, or intent to receive, financial value or       compensation.

 

* The CALCRIM committee has recommended adding such a definition in September 2022. See https://www.courts.ca.gov/documents/calcrim22-01.pdf

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Substitution of Alternate Juror After Partial Verdict

When an alternate juror is substituted during deliberations, CALCRIM 3575 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (1995) 10 C4th 1, 64-65.) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In fact, it has been suggested that the problem is so difficult that substitution should not be permitted. (See People v. Aikens (1983) 207 CA3d 209, 215-20, dissenting opn, [danger of undue influence is so high that no further deliberation should occur].)

In People v. Thomas (1990) 218 CA3d 1477, 1488, the court suggested that the predecessor of CALCRIM 3575, CJ 17.51, should be supplemented with a “strong admonition” to both the regular jurors and alternates that they are to “consider the facts unconstrained by any prior determination.” (See also, People v. Aikens, supra. at 211-215, majority opn, [CJ 17.51 good enough under the circumstances]; State v. Miley (OH 1992) 603 NE2d 1070, 1076 [substitution of a juror, after a partial verdict has been returned, for the purpose of continuing deliberations in order to reach a final verdict on the remaining count was plain error in violation of federal constitutional right to trial by jury].)

In light of these special considerations, a supplement to CALCRIM 3575 should be given when the substitution occurs after a partial verdict.

 

Sample Instruction [Add at end of CC 3575]:

 

You must also disregard the prior verdict(s) and deliberations upon which they were founded in deliberating upon the remaining unresolved verdict(s).

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Courtroom Restraint of Defendant May Create “Racialized Presumption of Dangerousness and Guilt”

Ervine Davenport was shackled without case-specific justification at his murder trial in state court in Kalamazoo, Michigan. The Michigan Supreme Court found a violation of Deck v. Missouri (2005) 544 U.S. 622 and remanded for an evidentiary hearing on prejudice under Chapman v. California (1967) 386 U.S. 18.

 

“On remand, the trial court conducted an evidentiary hearing in which it heard from all 12 jurors. Five remembered seeing Davenport’s restraints; the remaining seven did not. All 12 testified that Davenport’s shackles did not enter into their deliberations or influence their unanimous verdict. Based on this evidence, the trial court found that the State had carried its burden to show harmlessness beyond a reasonable doubt.” The Michigan Court of Appeals affirmed, and the MSC denied review.

 

With the state conceding error and contesting only prejudice, the 6th Circuit reversed on habeas corpus in reliance, inter alia, on a concern that the shackling of Davenport raised a “racialized presumption of dangerousness and guilt.”

 

“If a practice ‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process,’ like shackling a defendant without case-specific reasons, ‘little stock need be placed in jurors’ claims to the contrary. Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.’ [Quoting Holbrook.] Since Holbrook was decided, a voluminous body of social-science research has demonstrated support for Holbrook’s conclusion. See generally Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice that Shapes What We See, Think, and Do (2019). This research suggests that the shackling of Davenport, a 6’5” tall Black man weighing approximately 300 pounds, would tend to ‘prime’ racialized presumptions of dangerousness and guilt. See, e.g., Mark W. Bennett & Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. 745, 785 (2018) (‘Repeated studies indicate Blacks with darker skin tones and stronger Afrocentric facial features “activate automatic associations with negative behavioral stereotypes of Black men, such as aggression, violence, and criminality.”’ (Citations omitted)); Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 207 (2010) (‘[W]e found that participants held implicit associations between Black and Guilty…. [T]hese implicit associations were meaningful – they predicted judgments of the probative value of evidence.’)” [Footnote integrated into text.]

 

(Davenport v. MacLaren (6th Cir. 2020) 964 F.3d 448, 466 and footnote 13.)

 

Although the Davenport case was ultimately reversed by the USSC (Brown v. Davenport, 142 S.Ct. ___ [2022 WL 1177498] (April 21, 2022), the concerns identified by the 6th circuit may enter into counsel’s decision as to whether to request CC 204 or an alternative such as those suggested in FORECITE F 204 Inst 2 (a-g) Cautionary Instruction Regarding Physical Restraints.