PG X(B) Standards Of Prejudice.
PG X(B) Standard Of Review vs. Standard Of Prejudice.
See FORECITE PG X(A).
PG X(B)(1) The Three Traditional Standards Of Prejudice.
Once it is determined that the trial court committed error, the reviewing court must consider whether the error requires reversal. The first step in this process is to determine the standard of prejudice which applies. There are three standards by which error is usually assessed: (1) reversible per se; (2) the Chapman standard, which applies to “ordinary trial errors” implicating the federal constitution (Arizona v. Fulminante (91) 499 US 279 [113 LEd2d 302, 329-30; 111 SCt 1246]), and requires reversal unless the prosecution demonstrates the error was harmless beyond a reasonable doubt; and (3) the Watson standard, which requires reversal if the record demonstrates that, but for the error, a reasonable probability that the defendant would have obtained a more favorable verdict (People v. Watson (56) 46 C2d 818, 836 [294 P2d 243]). In the realm of jury instructions, there often is confusion regarding the appropriate standard of prejudice.
PG X(B)(1.1) Standards Of Prejudice: Structural Error.
See FORECITE PG X(B)(2).
PG X(B)(1.2) Standards Of Prejudice: Chapman Standard Imposes Burden On Prosecution To Prove Harmlessness Beyond A Reasonable Doubt.
For federal constitutional errors which are not structural, the burden shifts to the prosecution to establish that the error was harmless beyond a reasonable doubt. (Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824].)
This standard places an affirmative burden on the prosecution to establish harmlessness. See People v. Roybal (98) 19 C4th 481, 520 [as to federal constitutional error, prejudice “is presumed” unless the government shows that the defect was harmless beyond a reasonable doubt]; see also People v. Johnwell (2004) 121 CA4th 1267, 1278 [“The People have not made the slightest attempt to meet this standard, an omission we view as a tacit concession they cannot do so.”].)
To meet its burden under Chapman, it is not enough for the prosecution to establish that “any reasonable jury” would have convicted even absent the error:
The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.
(People v. Lewis (2006) 139 CA4th 874, 887.)
PG X(B)(1.3) Non-Constitutional Error: Presumption Of Prejudice.
When reviewing non-constitutional trial error, the appellate court should “begin with a presumption of prejudice.” (Obrey v. Johnson (9th Cir. 2005) 400 F3d 691, 700-701; see also United States v. Gonzalez-Flores (8/12/2005, 9th Cir. No. 03-10656) 418 F3d 1093.) This rule “is in keeping with the original common-law harmless error rule [that] put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.’“ (Citation to Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824); Obrey, 400 F3d at 700.)
Moreover, appellate courts have three possible standards of review: harmless beyond a reasonable doubt; high probability of harmlessness; and more probably than not harmless.” (Haddad v. Lockheed Cal. Corp. (9th Cir. 1983) 720 F2d 1454, 1458 n.7 (citing ROGER TRAYNOR, THE RIDDLE OF HARMLESS ERROR (1972)); see also Neder v. United States (99) 527 US 1, 7 [144 LEd2d 35; 119 SCt 1827] [noting that in criminal cases “structural” errors require automatic reversal, and all other constitutional errors are disregarded only if harmless beyond a reasonable doubt]; United States v. Valle-Valdez (9th Cir. 1977) 554 F2d 911, 915-16 [recognizing the same three possible standards and applying the more-probable-than-not standard to nonconstitutional errors in criminal cases].) “Each of these possible formulations implies a presumption of prejudice; none presumes harmlessness.” (Obrey v. Johnson, 400 F.3d at 700.)
Additionally, presuming prejudice, rather than harmlessness, is required by Supreme Court precedent. In O’Neal v. McAninch (95) 513 US 432, 438-39 [130 LEd2d 947; 115 SCt 992], the Court rejected both the premise and conclusion of the argument that a presumption of harmlessness applies in civil cases and that such a presumption, therefore, should apply in habeas cases. Although Payton and O’Neal evaluated harmless error in the context of a habeas case, the reasoning applies to a review of non-constitutional error on direct appeal. (United States v. Seschillie (9th Cir. 2002) 310 F3d 1208, 1216 n5.) The Court held:
Precedent suggests that civil and criminal harmless-error standards do not differ in their treatment of grave doubts as to the harmlessness of errors affecting substantial rights…. Even if, for argument’s sake, we were to assume that the civil standard for judging harmlessness applies to habeas proceedings (despite the fact that they review errors in state criminal trials), it would make no difference with respect to the matter before us. For relevant authority rather clearly indicates that, either way, the courts should treat similarly the matter of “grave doubt” regarding the harmlessness of errors affecting substantial rights, and as Kotteakos provides.
(O’Neal, 513 US at 441-42 [referring to Kotteakos v. United States (46) 328 US 750 [90 LEd 1557; 66 SCt 1239].) Kotteakos provides that “[if] the error itself had substantial influence … or if one is left in grave doubt [i.e., equipoise], the conviction cannot stand.” (328 US at 764-65.) Thus, the harmless error standard for nonconstitutional errors in criminal cases is the following: “[the reviewing court] must reverse … unless it is more probable than not that the error did not materially affect the verdict.” (United States v. Morales (9th Cir. 1997) 108 F3d 1031, 1040 (en banc); see also Obrey, 400 F3d at 701.) “The party benefitting from the error has the burden of persuasion….” (Obrey, supra; see alsoUnited States v. Seschillie (9th Cir. 2002) 310 F3d 1208, 1214-15.)
The same reasoning should apply in state appeals. (See also e.g., People v. Lopez (2005) 129 CA4th 1508, 1526 [Had Officer Bui merely mentioned defendant’s statement, it would be easier to determine that defendant was not prejudiced by it].)
PG X(B)(2) Per Se Reversal Rule Applies To “Structural” Errors And Errors Which Preclude Meaningful Review.
In Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment), and is reversible per se. The court’s reasoning was as follows: Because it is the prosecution’s burden to show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California (1967) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]), certain errors, “whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function are reversible per se.” (Sullivan, 124 LEd2d at 191; see also U.S. v. Gonzalez-Lopez (2006) 548 US 140 [165 LEd2d 409;126 SCt 2557, 2563-66]; Bank of Nova Scotia v. United States (1988) 487 US 250, 257 [101 LEd2d 228; 108 SCt 2369] [structural error presumption of prejudice appropriate where any inquiry into harmless error would require unguided speculation]; United States v. Navarro-Vargas (9th Cir. 2005) 408 F3d 1184, 1216; Doe v. Busby (9th Cir. 2011) 661 F3d 1001 [giving the 1996 versions of CJ 2.50.1 and 2.50.02 was structural error under Sullivan v. Louisiana and Hedgpeth v. Pulido (2008) 555 US 57, did not “undercut” this structural-error analysis.].) Thus, an instructional error which misdescribes the burden of proof, and thus “vitiates all the jury’s findings,” can never be shown to be harmless. In short, the consequences of such an error “are necessarily unquantifiable and indeterminate” (Sullivan, 124 LEd2d at 191), and thus the prosecution can never meet its burden of proving that such an error is harmless. (See also Arizona v. Fulminante (1991) 499 US 279 [113 LEd2d 302, 331; 111 SCt 1246] [per se reversal for “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless error’ standards”]; see also People v. Mello (2002) 97 CA4th 511 [118 CR2d 523] [by encouraging prospective jurors to lie regarding their racial bias, the trial court committed structural error].) [See for a discussion of how Sullivan provides helpful guidance regarding federal constitutional error.] As opposed to a “structural error,” a “trial error” can be “quantitatively assessed” in order to determine whether or not it was harmless. (Rice v. Wood (9th Cir. 1996) 77 F3d 1138, 1141.)
In other words, structural errors are ones that “defy analysis by ‘harmless-error’ standards” because they “affect the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” (See also U.S. v. Gonzalez-Lopez (2006) 548 US 140 [165 LEd2d 409; 126 SCt 2557, 2563-66]; Arizona v. Fulminante (1991) 499 US 279, 309-310 [113 LEd2d 3002; 111 SCt 1246]; see also Neder v. United States (1999) 527 US 1, 7-9 [144 LEd2d 35; 119 SCT 1827].)
(See also FORECITE PG VII(C)(38).)
PG X(B)(2.1) Precluding Defendant From Arguing Theory Of Case Is Structural Error.
(See United States v. Miguel (9th Cir. 2003) 338 F3d 995, 1003 [structural (reversible per se) error to bar the accused from arguing that a third party fired fatal shot].)
PG X(B)(2.2) Structural Error: Denial Of Counsel At Critical Stage.
Complete denial of counsel at a critical stage is structural error. (See U.S. v. Cronic (84) 466 US 648, 659 fn. 25 [80 LEd2d 657; 104 SCt 2039]; see also United States v. Navarro-Vargas (9th Cir. 2005) 408 F3d 1184, 1209 , dissenting opn., for a list of examples.)
PG X(B)(3.1) Standard Of Prejudice When Instructions Include Legally Incorrect Theory.
The traditional rule is that reversal is required where it is unknown whether the jury relied upon an improper instruction which states an improper legal theory. (See People v. Guiton (1993) 4 CA4th 1116, 1130 [instruction on legally invalid theory requires reversal unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory”]; People v. Morales (2013) 212 CA4th 583 [record fails to disclose whether or not the jurors relied on the incorrect theory]; People v. Wade (2012) 204 CA4th 1142, 1152-53; People v. Morgan (2007) 42 CA4th 593, 612-13; People v. Perez (2005) 35 CA4th 1219, 1232-34; People v. Morales (2001) 25 CA4th 34, 52-53; People v. Green (1980) 27 CA3d 1, 69-70; People v. Calderon (2005) 129 CA4th 1301, 1306-07.) Under this rule the prosecution must establish that “no juror relied upon the erroneous instruction.” (People v. Smith(1984) 35 CA3d 798, 809; see also Cabana v. Bullock (1986) 474 US 376, 383, fn 2 [88 LEd2d 704]; Stromberg v. California (1931) 283 US 359, 369-70 [75 LEd 1117].) Although Green has been subjected to some scrutiny, it remains viable. (See People v. Morris (1988) 46 CA3d 1, 24; see also People v. Swain (1996) 12 CA4th 593, 607 [reversing when record did not establish whether or not the jury relied on the incorrect theory]; People v. Brown (1991) 226 CA3d 1361, 1372;People v. Landry (1989) 212 CA3d 1428 [error due to conflicting instructions on felony murder rule held prejudicial under harmless beyond a reasonable doubt standard where it was uncertain whether the jury relied on the right or wrong instruction].) If there is a possibility that even one juror might have relied on the legally erroneous theory, the conviction must be invalidated. (See Fields v. Woodford (9th Cir. 2002) 309 F3d 1095, 1103-05; see also Keating v. Hood (9th Cir. 1999) 191 F3d 1053; Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, 669.)
For example, in Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, the court held, on federal habeas, that instruction upon felony murder in violation of the Ireland rule (People v. Ireland (1969) 70 CA2d 522, 539) was reversible even though the erroneous legal theory was not argued by the prosecutor and the evidence of malice was “very strong.” A harmless error determination cannot be based on “the seemingly overwhelming weight of the evidence” pointing to guilt when it is impossible to tell which theory of culpability the jury followed in reaching a general verdict. Similarly, in U.S. v. Aguilar (9th Cir. 1996) 80 F3d 329, 333, the jury was alternatively instructed upon a correct and incorrect theory of liability. The 9th Circuit held the error to be prejudicial because it could not “tell whether the jury found the facts necessary to support a conviction.” (U.S. Aguilar, 80 F3d at 333; see also People v. Swain (1996) 12 CA4th 593 [improper implied malice theory required reversal where it could not be “determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions … and [nothing] else discoverable from the verdicts … enable[d] us to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory …. [Citation.]”].)
Chun’s Gloss On Green/Guiton – In People v. Chun (2009) 45 CA4th 1172, 1204-1205, the verdicts strongly suggested the jury based its murder conviction on a valid theory, but, under the circumstances, the California Supreme Court did not believe that the verdicts alone showed reliance on the valid theory. Nevertheless, the Court affirmed the conviction using the test from Justice Scalia’s concurring opinion in California v. Roy (1996) 519 US 2 [136 LEd2d 266; 117 SCt 337]. This test provides that the error “can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.” (Id. at p. 7.)
The California Supreme Court adopted this test as follows: “Without holding that this is the only way to find error harmless, we think this test works well here, and we will use it. If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless.” (45 CA4th at 1204-05.) The California Supreme Court then reviewed the evidence and held the error harmless because “on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice.” (Ibid.)
PG X(B)(3.2) Standards Of Prejudice: Overwhelming Evidence Of Guilt Does Not Preclude Reversal For Instruction On Erroneous Legal Theory.
“Although overwhelming evidence supports a finding of second degree murder on the basis of implied malice, we must reverse the conviction because it is conceivable that the conviction was based only on the erroneous theory of second degree felony murder. And once again, we quote the astute observation of Justice George Hopper in People v. Houts (78) 86 CA3d 1012. ‘The lesson to be learned’ is in their zeal to obtain convictions; prosecutors must be extremely careful to not advance an alternate theory of guilt that turns out to be erroneous: ‘[t]he use of a well aimed and finely honed blade, rather than the scattergun with its dangerous spray effect, is often the most effective method of assuring a successful and final victory.’ [Citations.]” (People v. Williams (2005) 130 CA4th 1440, 1443.)
PG X(B)(4) Standard of Prejudice When Instructions Include Factually Insufficient Theory: Green Rule Upheld as to Legal Theories and Overturned as to Factual Theories.
In People v. Guiton (93) 4 C4th 1116 [17 CR2d 365], the Supreme Court discussed the Green (People v. Green (80) 27 C3d 1 [164 CR 1]) rule regarding the standard of prejudice to be utilized by the reviewing court when the jury has been instructed upon both correct and incorrect theories. The court predicated its determination of the question upon the purported distinction between legal theories and factual theories. (But see concurring opinion of Mosk (4 C4th at 1132), arguing that while jurors may be “well-equipped” to determine pure questions of fact, their expertise does not extend to mixed questions of law and fact which includes the sufficiency of the evidence.) The Court held that instruction on an unsupported factual theory is prejudicial only if “a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (Guiton 4 C4th at 1129.) On the other hand, in the case of incorrect legal theories, the error is reversible unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations].” (Id. at 1131.) (The court left open the question of whether there may be “additional ways by which a court can determine the error in the Green situation is harmless.”) (Ibid.)
PG X(B)(5) Trial And Appellate Strategies Now That Defendant Has Burden To Show Prejudice From A Factually Insufficient Theory.
In People v. Guiton (93) 4 C4th 1116 [17 CR2d 365], the Supreme Court limited the Green (People v. Green (80) 27 C3d 1 [164 CR 1]) rule regarding the standard of prejudice to be utilized by the reviewing court when the jury has been instructed upon both correct and incorrect theories. The court predicated its determination of the question upon the U.S. Supreme Court decision of Griffin v. U.S. (91) 502 US 46 [116 LEd2d 371, 380-83; 112 SCt 466] and the purported distinction between legal theories and factual theories. (But see dissenting opinion of Mosk, J., arguing that while jurors may be “well-equipped” to determine pure questions of fact, their expertise does not extend to mixed questions of law and fact which includes the sufficiency of the evidence.) The Court held that instruction on an unsupported factual theory is prejudicial only if “a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (Guiton 4 C4th at 1129.) On the other hand, in the case of incorrect legal theories, the error is reversible unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations].” (Id. at 1131.) (The court left open the question of whether there may be “additional ways by which a court can determine the error in the Green situation is harmless.”) (Ibid.)
PG X(B)(5)(a) Distinction Between Factual and Legal Theory.
Guiton opens up a pandora’s box of legal and strategic considerations both at trial and on appeal. For example, the difference between a factual and legal theory within the meaning of Guiton is not totally clear. If the jury is simply faced with a factual question as to what the defendant did or intended to do, then the issue is factual (see, e.g., People v. Houts (78) 86 CA3d 1012 [150 CR 589],) whereas if the insufficiency is based upon an appellate court’s legal determination that the acts committed by the defendant were insufficient to satisfy the elements of the statute, then the insufficiency is legal (see e.g., People v. Green (80) 27 C3d 1, 67-71 [164 CR 1]). (Green and Houts are the Guitoncourt’s examples (4 C4th at 1128, 1129, fn 1.)
This distinction may be clear-cut in some cases. However, in cases where the appellate courts have adopted technical legal standards of sufficiency (e.g., torture), which may differ from the jury’s common understanding, the factual/legal distinction is fuzzy.
PG X(B)(5)(b) Proving a Reasonable Probability of Jury Reliance.
Several other potential issues relate to how the defendant may show a reasonable probability that the jury relied on the insufficient theory. To show a “reasonable probability” it is not necessary to prove that the jury “more probably than not” relied on the improper theory. (See People v. Howard (87) 190 CA3d 41, 48 [235 CR 223] [applying Strickland test]; see also Boyde v. California (90) 494 US 370, 379-80 [108 LEd2d 316; 110 SCt 1190] [discussing Strickland test and the “reasonable likelihood” standard of review for jury instructions].) Hence, in statistical terms, a reasonable probability is a “significant” — but something less — than fifty percent likelihood. (Howard 190 CA3d at 48.)
To determine whether such a showing has been made, it is necessary for the reviewing court to consider the entire record including the arguments of counsel, inquiries of the jury and the verdicts. (See Guiton 4 C4th at 1130.) However, judging from the hypothetical showing of reasonable probability suggested by Guiton — that the D.A. only argued the insufficient theory and the jury submitted inquiries regarding the insufficient theory (4 C4th at 1129) — it may be difficult to meet the Guiton test.
PG X(B)(5)(c) Strategy Ideas.
In light of the potential difficulty of satisfying the Guiton test on appeal, trial counsel may wish to request a special verdict (see FORECITE PG VIII “Special Verdicts”) which could supply definitive evidence to meet the Guiton test. The utility of special verdicts as an aid to appellate review has long been recognized: “And of outstanding importance is the fact that definite factual findings furnish a practical, concrete basis for the appellate court’s evaluation of the case on review. (Lipscomb “Special Verdicts Under the Federal Rules,” (1940) 25 Wash. U.L.Q. 184, 213-14; [quoted in Devitt, et al., Fed. Jury Prac. and Inst. (1992) § 603 p. 181; see also People v. Hernandez (88) 47 C3d 315, 351 [253 CR 199] [special circumstance finding allowed reviewing court to “‘determine from the record on which theory the ensuing general verdict of guilt rested ….’” [Citation].)
Moreover, now that Guiton has imposed an appellate burden upon the defendant, fundamental fairness and due process require that defendant be given an opportunity to obtain a special verdict since the burden has been placed upon the defendant to show juror reliance upon an insufficient theory.
CAVEAT: Before requesting a special verdict counsel should verify that the insufficient theory is factual rather than legal. If the erroneous theory is a legal theory then a special verdict could aid the prosecution in meeting its burden to establish that the jury did not rely upon the erroneous legal theory.
Another possible strategy which could be used after trial is to obtain juror declarations (or at least seek leave to do so in a motion for new trial.) Notwithstanding EC 1150, in cases where a request for a special verdict has been denied, or in pre-Guiton cases on appeal where no special verdict was requested, due process and fundamental fairness principles should allow the defendant to interview and present statements from the jurors regarding their reliance upon the insufficient theory. (See e.g., California Rules of Court, Rule 8.256 (formerly Rule 23) which allows production of additional evidence on appeal.)
PG X(B)(5)(d) Potential Constitutional Challenges to Guiton.
A constitutional argument may also be mounted against the Guiton standard as being too strict. Griffin held that the defendant’s constitutional rights are not implicated by submission of an insufficient theory of conviction to the jury when the chance of reliance upon such a theory was “remote.” (116 LEd2d at 383.) When reliance upon the insufficient theory is not remote, the federal constitution should be invoked due to the danger that the jury may have convicted the defendant in the absence of proof beyond a reasonable doubt. This right is so fundamental that the failure to correctly instruct upon this standard of proof is reversible error per se. (Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182, 191]; 113 SCt 2078.) Hence, in any case where there is a greater than remote risk (e.g., a reasonable possibility) of jury reliance on an insufficient theory, it should be the prosecution’s burden to prove such an error harmless beyond a reasonable doubt. (Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824].)
Retroactive application of Guiton may also be challenged on fundamental fairness and due process grounds. The Green rule — which required the prosecution to show non-reliance on the insufficient theory — was a well settled doctrine of appellate review prior to Guiton. (See People v. Henderson (77) 19 C3d 86, 96 [137 CR 1]; People v. Cantrell (73) 8 C3d 672, 686 [105 CR 792]; People v. Robinson (64) 61 C2d 373, 406 [38 CR 890]; People v. Houts (78) 86 CA3d 1012, 1091 [150 CR 589].) In cases tried prior to Griffin and Guiton, counsel had no reasonable basis for anticipating that the defendant would have any obligation on appeal to demonstrate juror reliance upon an insufficient theory. In other words, Guiton changed the rules in the middle of the game, thus adversely impacting trial counsel’s strategic decisions. (See Coleman v. McCormick (9th Cir. 1989) 874 F2d 1280, 1285-88; People v. Beardslee (91) 53 C3d 68, 110 [279 CR 276].) For example, if Guiton had been extant at the time of trial, counsel could have requested special verdicts or findings. (See above discussion of special verdicts as a trial strategy.) Therefore, retroactive application of Guiton would violate state and federal due process principles. (14th Amendment; see People v. Collins (86) 42 C3d 378, 388-89 [228 CR 899]; Evangelatos v. Superior Court (88) 44 C3d 1188, 1217 [246 CR 629]; Parrott v. Furesz (57) 153 CA2d 26, 30 [314 P2d 47] and cases cited therein.)
Retroactive application of Guiton could also constitute an impermissible arbitrary action in violation of 14th Amendment due process and equal protection principles. Those defendants whose cases were decided on appeal beforeGuiton did not have to meet the Guiton burden. Thus, cases which were tried before Guiton should not be affirmed simply because the appeal was heard later. (See Myers v. Ylst (9th Cir. 1990) 897 F2d 417.)
Finally, a federal challenge to Guiton could be advanced based upon the dissent of Justice Mosk in Guiton, arguing that it is an “illegitimate” assumption to assume that the jury will always infallibly recognize insufficient evidence. However, such an argument has already been implicitly rejected by the U.S. Supreme Court in Griffin. [Additional briefing on these Guiton issues is available to FORECITE subscribers. Ask for Brief Bank # B-575.]
PG X(B)(5.1) Standards Of Prejudice: Equal Reliance On Factual Theories Requires Reversal.
Instructions on a factually unsupported theory of guilt are reversible if the prosecution relied equally on both theories. (People v. Perez (2005) 35 C4th 1219.)
PG X(B)(5.2) Standards Of Prejudice: “Reasonable Probability” vs. “More Likely Than Not.”
The reasonable likelihood and reasonable probability standards are little different. “[W]hile ‘reasonable possibility’ or ‘reasonable likelihood [ ]’ . . . and ‘reasonable probability’ express distinct levels of confidence concerning the hypothetical effects of errors on decisionmakers’ reasoning, the differences among the standards are slight . . . [T]he gap between all three of those formulations and ‘more likely than not’ is greater than any differences among them.” (Strickler v. Greene (1999) 527 US 263, 300 [144 LEd2d 286; 119 SCt 1936] (conc. & dis. opn. of Souter, J.).)
PG X(B)(6) Standard Of Prejudice On Federal Habeas.
See FORECITE PG VII(E).
PG X(B)(7) No Appellate Issue Where Instructional Error Favors Defendant.
It has long been the rule in this state that, in the absence of prejudice, a defendant many not complain of error favorable to the defendant, including the giving of correct, but inapplicable, instructions and return of a verdict of an offense less than that which the evidence shows. (PC 1258; People v. Lee (99) 20 C4th 47, 57 [82 CR2d 625] see also People v. Powell (49) 34 C2d 196, 206-207 [208 P2d 974]; People v. Tuthill (47) 31 C2d 92, 102 [187 P2d 16]; People v. Finch (63) 213 CA2d 752, 777 [29 CR 420]; People v. Thompson (61) 193 CA2d 620, 626 [14 CR 512]; People v. Kelly (1914) 24 CA 54, 61 [140 P 302].)
“[E]ven if it be assumed that the trier of fact erred here when he found defendant guilty only of manslaughter, defendant cannot invoke reversal on an error which is favorable to him. [Citations.] An appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (Powell,supra, 34 C2d at 205-206.)
PG X(B)(8) Standard Of Prejudice: Prophylactic Reversal — Necessity Of Reversing Conviction To Avoid Future Error.
“Considering the emphasis the state placed on [defendant’s] gang affiliation, the state would most likely repeat the error with impunity if we were to find it harmless.” (Macias v. State (TX 1997) 959 SW2d 332, 340.)
PG X(B)(9) Prejudicial Error: The Applicable Tests And How To Satisfy Them.
See Article Bank # A-84 for the article, “A Primer On Prejudicial Error: The Applicable Tests And How To Satisfy Them,” by Dallas Sacher.
PG X(B)(10) Standard Of Prejudice: Habeas Corpus — No “Presumption Of Correctness” As To Harmless Error Analysis.
Whether a constitutional error was harmless is “not a factual determination entitled to statutory presumption of correctness under [28 USC 2254(d)].” (Lawson v. Borg (9th Cir. 1995) 60 F3d 608, 612; see also Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 776.)
PG X(B)(11)Standard Of Prejudice: Improper Presumptions.
In People v. James (2000) 81 CA4th 1343, 1361 [96 CR2d 823] the California Supreme Court concluded that the United States Supreme Court has repeatedly held that the Chapman test may be applied to verdicts rendered by juries instructed on mandatory presumptions violating the defendant’s right to proof beyond a reasonable doubt of each element of the charged offense. [Citations.] On the other hand, if the jury is instructed erroneously on a permissive presumption the reviewing court may “conclude the error did not contribute to the verdict either if the evidence is so strong that the effect of the inference from propensity alone is insignificant, or if the evidence is such that [the reviewing court] is convinced beyond any reasonable doubt the jury did not actually draw the improper inference.”(Ibid.)
However, this conclusion conflicts with the United States Supreme Court precedent which applies the more stringent standard enunciated in Carella and further refined in Yates v. Evatt (91) 500 US 391 [114 LEd2d 432; 111 SCt 1884], should be utilized. (See People v. Cummings (93) 4 C4th 1233, 1316 [18 CR2d 796].) Yates requires the reviewing court to look to the evidence available to the jury, “and presumably considered by the jury in accordance with the instructions,” on the omitted issue to determine if the evidence is so overwhelming as to leave no reasonable doubt. (Yates 114 LEd2d at 449.) Under Yates, the reviewing court may no longer consider the strength of the evidence and determine whether it is so clear that the jury would have found the element to exist had it been properly instructed, but the reviewing court must determine whether the jury was actually able to consider the evidence under the instructions of the court. (Ibid.) Hence, Yatesestablishes a two-pronged test: (1) the reviewing court must determine what evidence the jury actually considered and (2) whether that evidence is so overwhelmingly as to leave no reasonable doubt. (Ibid.)
As the California Supreme Court recognized in People v. Kobrin (95) 11 C4th 416 [45 CR2d 895], in reliance upon Yates:
“[When the] jury evaluates evidence ‘with the wrong question in mind’ it is impossible to say beyond a reasonable doubt that the error was harmless.” (Kobrin, 11 C4th at 429 [original emphasis].)
In sum, the Yates standard is actually more stringent than the Chapman standard.
PG X(B)(12)Standards Of Prejudice: Burden Of Proof As To Specific Defense Theory.
It may be argued that the failure to properly instruct the jury on the prosecution’s burden of proof as to a specific defense theory is federal constitutional error. (See FORECITE PG VII(C)(3); see also PG VII(C)(14).)
However, the California Supreme Court has “left open” this question. (See People v. Mower (2002) 28 C4th 457, 484 [122 CR2d 326].)
PG X(B)(13) Standard Of Prejudice: Failure To Instruct On Special Circumstance.
See People v. Prieto (2003) 30 C4th 226, 256-57 [“an erroneous instruction that omits an element of a special circumstance is subject to harmless error analysis pursuant to [Chapman]”]; see also People v.Turner (2004) 34 C4th 406, 423.
PG X(B)(14) Standard Of Prejudice: Misinstruction Or Conflicting Instructions On An Element Of The Offense.
Conflicting instructions or instructions that misdescribe an element of an offense are harmless “only if it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question as revealed in the record.” (People v. Mayfield (97) 14 C4th 668, 774, internal citations and quotation marks omitted; see also People v. Hudson (2006) 38 C4th 1002, 1013; People v. Jeter (2005) 125 CA4th 1212, 1217; People v. Maurer (95) 32 CA4th 1121, 1128-29.)