Opinion Bank # O-262 (Re: F 17.01 n26 [Unanimity As To Act Constituting Murder]).
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Filed April 14, 2000
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
THE PEOPLE, )
Plaintiff and Respondent, ) A085426
NAYAMKA JACKSON, ) (Alameda County
) Super. Ct. No. 131037)
Defendant and Appellant. )
Appellant Nayamka Jackson was convicted by jury of second degree murder. (Pen. Code, § 187.) She appeals, contending the trial court erred in not instructing the jury sua sponte pursuant to CALJIC No. 17.01 that, in order to return a guilty verdict, all jurors must agree the defendant committed the same culpable act or acts. We find it was prejudicial error for the trial court to have failed to include CALJIC No. 17.01, or its equivalent, in its instructions and we reverse appellant’s conviction.
FACTS AND PROCEDURAL HISTORY
The victim in this case, Kenya Williams, was appellant’s friend and coworker at Cory’s Adult Video Store in Oakland (hereafter, Cory’s). Appellant testified that on March 16, 1997, a dispute arose between the two women regarding appellant’s desire to report to work 15 minutes late, necessitating the victim’s agreement to stay at work past the termination of her shift. The victim did not wish to remain late at work, and requested that appellant show up for work on time. This dispute spawned a number of argumentative phone calls between appellant and the victim during the course of the day.
At approximately 3:40 p.m., 20 minutes before her shift was scheduled to begin, appellant arrived at Cory’s. She was accompanied by her friend, Van Smith, and her four-year-old cousin, whom she was babysitting. Smith and the child waited outside the store as. appellant entered. She stood opposite the counter from the victim and began arguing with her. Appellant admitted her diatribe “probably” included referring to the victim as a “whore,” “bitch,” and a “slut,” but she denied threatening to kill her. [Footnote 1] Throughout the verbal assault, appellant challenged the victim to come out from behind the counter and fight. The victim at first refused to do so. During their argument inside the store, the victim threw a videotape at appellant, hitting her in the chest. Appellant then pushed a low, swinging door in the counter towards the victim, which caused her to step back two or three steps.
When the victim stepped toward appellant, appellant removed a knife she kept in her jacket pocket for protection. Appellant admitted stabbing the victim but claimed she did so out of fear that the victim had obtained a weapon from behind the counter. Appellant testified that she did not know exactly how many times she stabbed the victim with the knife or the location of the stab wounds. However, she admitted on cross-examination that she hit the victim “on her body with the knife.”
Appellant testified that after a few seconds, the two “separated just on our own,” and appellant left the store, intending to go home. The victim grabbed a baseball bat, which was kept in the store for employee protection, and followed appellant out of the store. Appellant testified that as she walked away, someone yelled, “watch out!” Appellant turned around and saw the victim running at her, carrying the baseball bat over her shoulder, getting ready to swing it. The victim swung the bat and struck appellant in the back with it. Appellant testified that she stabbed the victim because “I had to kill her or she would have killed me.” She could not identify the location of the stab wounds inflicted on the victim.
When the fight broke up, appellant was in a daze. She started walking away, toward downtown Oakland. She realized she was carrying the knife and dropped it. In the meantime, the victim collapsed at the entrance to the store and bled to death. After a few days, appellant turned herself in to the Oakland Police Department.
The victim suffered a total of six separate stab wounds. The fatal wounds were a wound to the victim’s back, which punctured her aorta, and a wound to the victim’s chest, which punctured her left lung. At trial, the medical evidence was inconclusive as to the sequence of the wounds inflicted on the victim.
The eyewitness testimony reflected considerable confusion surrounding the altercation. Smith, the friend who accompanied appellant to Cory’s, testified that as he waited outside he heard the two women arguing loudly. He witnessed the two women “kind of wrestling” inside the store. Then, appellant came outside and said, “Let’s go,” and started walking away. Smith then saw the victim run out of the store with a bat, getting ready to swing at appellant. Smith saw no blood on the victim at this time. Smith told appellant to watch out, because her back was toward the victim. Appellant turned around and ran toward the victim. The victim swung the bat and missed appellant but hit appellant’s four-year-old cousin. Appellant then flipped the victim onto the ground, whereupon she dropped the bat. Smith saw appellant swing at the victim three to five times while the victim was on the ground.
Timothy Gutter, a customer who was in Cory’s during the altercation, testified that he witnessed the verbal altercation between appellant and the victim turn into a physical fight, with “wild swinging . . . by both of them.” Gutter and another customer decided to intervene. Before they could do so, the women stopped fighting, and appellant walked out of the store. The victim had a cut on her left cheek and stated, “That bitch cut me.” Gutter saw no other injury to the victim at this time. The victim picked up a bat, rushed past Gutter, and went outside the store. Gutter testified appellant “was outside waiting,” and that “[s]he was not on her way anywhere.” Although the victim approached appellant as if she was going to swing the bat, she never did. Instead, appellant started swinging wildly at the victim’s torso area. After a few seconds, the victim walked back into the store and collapsed in the doorway. She was bleeding profusely.
Appellant defended herself on the theory that neither of the two lethal wounds was inflicted inside the store. Counsel argued: “I think the circumstantial evidence in that points only one way; that those blows took place outside . . . .” As to the fight outside the store, appellant maintained that both lethal wounds were inflicted then. Defense counsel argued that she had the right to use lethal self-defense when the victim came after her swinging a baseball bat because she had effectively withdrawn from the conflict and was walking away.
The prosecutor argued that both lethal knife wounds were inflicted inside the store. He urged the jury to watch the surveillance video taken inside Cory’s, which contained brief footage of the altercation, and “you will see that fist of hers [appellant] containing that knife-kind of like the shower scene in ‘Psycho,’ jabbing and jabbing and jabbing. . . .” But, the prosecutor also told the jury that it could return a murder conviction if it concluded the fatal wounds were inflicted outside the store, contending the facts did not support appellant’s self-defense theory. He argued, “It’s for you folks to decide whether this occurred inside or outside, but it truly does not matter.”
After being found guilty and sentenced to 16 years to life, appellant filed this appeal.
Appellant contends the court erred in not instructing sua sponte with CALJIC No. 17.01 [Footnote 2] or a comparable unanimity instruction, because the jury heard evidence of two distinct events or acts during which the lethal wounds could have been inflicted-the altercation inside the store, and the altercation outside the store. Appellant argues that the facts of the altercation inside the store differed materially from those outside the store, with the possibility of “many jurors rejecting the right to self-defense inside the store, but accepting the right to self-defense outside the store.” Because either altercation could arguably have formed the basis for the jury’s conviction, appellant asserts the court erred in not instructing that all 12 jurors had to agree appellant committed the same act as the basis for their finding of guilt. This error was allegedly prejudicial because it permitted the jury to find her guilty based on conduct less than 12 jurors agreed was criminally culpable, and based on a combination of alternative findings on whether to accept or reject appellant’s defense as to each act.
Appellant relies on the general rule that “[w]hen a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.]” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499; see also People v. Thompson (1995) 36 Cal.App.4th 843, 850; People v. Von Villas (1992) 10 Cal.App.4th 201, 258-259.)
CALJIC No. 17.01 is “an appropriate instruction when conviction on a single count could be based on two or more discrete criminal events. In such cases it is appropriate the jurors all agree the defendant is responsible for the same discrete criminal event.” (People v. Davis) (1992) 8 Cal.App.4th 28, 45.) CALJIC No. 17.01 focuses the. jury’s attention on a specific act and requires the jury to determine guilt as to that act beyond a reasonable doubt.’ [Citation.]” (People v. Robbins) (1989) 209 Cal.App.3d 261, 264-265.) A trial court must give this instruction sua sponte where. it is applicable. (People v. Melhado) (1998) 60 Cal.App.4th 1529, 1534.)
It has been observed that, “[w]hether or not a homicide is punishable as a crime in the first instance, and the degree of punishment which is imposed in the case of a criminal homicide depends upon the mental culpability of the person causing the death.” (Barber v. Superior Court) (1983) 147 Cal.App.3,d 1006, 1012.) Here, the jury was instructed on first degree murder, second degree murder, voluntary and involuntary manslaughter, and justifiable homicide. The state of mind, defined as malice, which the law considers sufficiently culpable to make an unlawful killing murder rather than some lesser form of criminal homicide such as manslaughter was explained to the jury. The instructions informed the jury that malice, as related to murder, is the state of mind of a person who “manifested an intention unlawfully to kill a human being” or who acts with a “conscious disregard for human life” and commits an act likely to kill. The jury was told second degree murder was “the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” The trial court also instructed: “To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.”
Tracking these instructions, appellant’s unanimity argument has two distinct components: Error is claimed because the jury was never instructed that it needed to be unanimous as to which fight, or which episode of the fight, was the one in which appellant inflicted the fatal wounds. Because the facts surrounding the two fights were so different, the jury could have reasonably concluded ap appellant’s state of mind was very different during each fight, raising the possibility that the jurors were not unanimous as to the conjunction of the material elements of the crime of second degree murder. Similarly, the jury was not instructed that it had to be unanimous that the lethal wounds were not justified by self-defense during the specific fight during which they were inflicted. To summarize appellant’s argument, because both the evidence and the defenses as to the two fights were so different, she argues there is a reasonable likelihood of juror disagreement as to which specific acts caused the victim’s death and as to whether those specific acts were justified.
Appellant argues a passage from People v. Crandell (1988) 46 Cal.3d 833, “contains the clearest word from the California Supreme Court on the question of whether a unanimity instruction is required under the factual scenario presented here, namely, (a) when one specific crime is committed, (b) when more than one set of acts by the defendant might have caused the crime, and (c) when the defenses, or the weight of the defenses, as to each set of acts are different.” (Fn. omitted.) In Crandell, the unanimity issue was discussed in the context of a case where there were several hypotheses as to which act or acts caused the victim’s death and different defenses were advanced to each act: “The only plausible basis for requiring the unanimity instruction would be that the evidence regarding self-defense differed as to the two injuries. Under this hypothesis, a guilty verdict would require unanimous juror agreement on two points: first, that the .particular act (either shooting or strangulation) was a cause (either sole or concurrent) of the death of Ernest [the victim] and, second, that defendant did not have the privilege of self-defense when he committed the act.” (Id. at p. 875; see also People v. Diedrich (1982) 31 Cal.3d 263, 280-283.) Obviously, this passage from Crandell supports both prongs of appellant’s argument–that a unanimity instruction is necessary if the jurors could disagree on which act a defendant committed and yet still convict him or her of the crime charged; and that it is also necessary where the defendant offers a defense that could be accepted or rejected as to some but not all of the acts.
Respondent questions the continued viability of this passage from Crandell, characterizing it as mere dictum, and outdated dictum at that. However, we note that a consistent line of more recent decisions supports a requirement that the jury be given a specific unanimity instruction when there are differing defenses available as to each act constituting a criminal offense, and there is a reasonable possibility that jurors voted to convict based on differing applications of available legal defenses to the operative acts. (See extensive decision of the case law in this area in People v. Thompson (1995) 36 Cal.App.4th 843, 853 [prejudicial error in failing to give unanimity instruction where different defenses gave jury a rational basis to distinguish between various acts].)
Nevertheless, respondent argues that no unanimity instruction was needed on the theory that both acts (the altercation inside the store and the altercation outside the store) were a continuing course of conduct. This approach is belied by the following passage from People v. Crandell, supra, 46 Cal.3d 833, which explains an important limitation of the continuous conduct rule: “The unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.] This branch of the ‘continuous conduct’ exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them. [Citations.]” (Id. at p. 875, italics added; accord, People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The continuing course of conduct rule was more recently analyzed in People v. Harris (1994) 9 Cal.4th 407, using the same reasoning: “For purposes of guidance on remand, we observe that ‘[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.’ [Citation.] Even assuming a defendant, by and through the argument of counsel to the jury, suggests differing defenses to each of the alleged acts, still it must be determined whether there is any ‘reasonable basis’ for the jury to distinguish between them in determining whether the ‘continuous conduct’ rule applies. [Citation.]” (Id. at p. 431, fn. 14.)
We believe these Supreme Court cases demonstrate that the unanimity issue does not necessarily turn on whether the facts demonstrate a continuing course of conduct (although in some cases it may); it turns, more fundamentally, on whether there are distinct differences between the acts used to prove the charged offense which would permit the jury to return a guilty verdict even though there may have been significant disagreement among the jurors as to which act constituted the charged offense. Put simply, “‘A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’ [Citations.]” (People v. Beardslee (1991) 53 Cal.3d 68, 93; People v. Brown, supra, 42 Cal.App.4th at p. 1500.)
Appellant argues that the two altercations relied upon by the prosecutor to prove the single charge of murder are conceptually severable. She theorizes that under the evidence presented in this case, some of the jurors could have decided that the fatal wounds were inflicted inside the store where the self-defense evidence was weak (while believing appellant was entitled to use deadly force to defend herself outside the store), while others could have decided that the fatal wounds were inflicted outside the store but that appellant did not have the right to use deadly force to defend herself. This hypothetical jury could thereby arrive at a unanimous verdict even though neither theory was adopted by all 12 jurors. We find this argument persuasive and conclude it was error to omit a unanimity instruction.
The question becomes whether the error was harmless. There are many formulations of the harmless-error analysis when the trial court has failed to give CALJIC No. 17.01 when such an instruction was required. Our Supreme Court in People v. Stankewitz, supra, 51 Cal.3d.72 indicates that the test is whether the evidence “demonstrated beyond a reasonable doubt” that the defendant committed the charged offense with each unlawful act. (Id. at p. 100 .) In People v. Brown, supra, 42 Cal.App.4th 1493, the court held that “in order for the unanimity instruction to make a difference, there must be evidence from which jurors could both accept and reject the occurrence of at least the same number of acts as there are charged crimes. [Citation.]” (Id. at p. 1502, original italics.) In People v. Thompson, supra, 36 Cal.App.4th 843, the court indicated that failure to give the unanimity instruction is harmless “[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any. (Id. at p. 853.) Properly framed then, the question is whether a reasonable juror could have theoretically accepted appellant’s defense with regard to one of the acts comprising the charged offense while at the same time disbelieving her defense with regard to the other. If so, the verdict may not have been unanimous, and the instructional error would not have been harmless beyond a reasonable doubt.
Appellant clarifies the scope of the jury’s focus with regard to the evidence of each altercation: “As to the first fight, Appellant largely defended on the ground that neither of the two lethal wounds were inflicted then. Appellant largely relied upon that defense as to the first incident, both because it was true, and because her secondary defense of using deadly force in self-defense against a thrown videotape was not very strong. [¶] As to the second fight, outside the store, Appellant maintained that both lethal wounds were inflicted then, but that she had the right to use lethal force in self-defense against the attacker swinging a baseball bat. This claim of self-defense was quite strong.” Appellant further emphasizes respondent’s concession that the eyewitness and medical evidence was inconclusive as to exactly when the fatal wounds were inflicted–either inside or outside the store. In light of the inconclusive nature of the proof on this critical point, the prosecutor argued that the murder charge could be proven, whatever the jury found, by arguing different theories based on different evidence. On this record, we “cannot say that, beyond a reasonable doubt, each of the 12 jurors agreed unanimously that the same act constituted the commitment of the crime.” (People v. Melhado, supra, 60 Cal.App.4th at p. 1539 [conviction reversed for failure to give unanimity instruction].)
While jurors may not have to unanimously agree on alternative theories of criminal participation presented by the prosecution (see, e.g., People v. Majors (1998) 18 Cal.4th 385, 408), they must agree on which act or acts constituted the charged offense. (People v. Davis, supra, 8 Cal.App.4th at pp. 44-45.) Because we cannot determine which act formed the basis for appellant’s unanimous conviction, it is reasonable to question whether there was in fact juror unanimity on any one theory. Consequently, there is a risk the jury impermissibly convicted appellant of this crime without unanimously agreeing upon the conduct forming the basis for the second degree murder conviction. For this reason, the failure to instruct on unanimity in this case cannot be deemed harmless beyond a reasonable doubt, and we must reverse appellant’s conviction.
Because we reverse appellant’s conviction, we need not reach appellant’s other arguments, including whether the trial court erred in refusing to find a WheelerlBatson violation. (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.) However, for the guidance of the trial court in the event of a possible retrial, we briefly discuss appellant’s argument that the court failed to properly instruct the jury on the legal principles governing an original aggressor’s defense against a deadly counterattack.
The jury was instructed, in accordance with Penal Code section 197, subdivision (3), that the right of self-defense is not available to an original assailant, until the assailant really and in good faith endeavors to decline further combat and fairly and clearly informs the adversary of his or her desire for peace and abandonment of the contest. In imparting these principles to the jury, the trial court instructed in accordance with the language of CALJIC No. 5.54, as follows: “The right of self-defense is only available to a person who initiated the assault if she has done all of the following: [¶] One, she has actually in good faith refused to continue fighting; [¶] Two, she has clearly informed her opponent she wants to stop fighting and; [¶] Three, she has clearly informed her opponent that she has stopped fighting. [¶] After she has done these three things, she has the right to self-defense if her opponent continues to fight.” (Italics added.)
The ambiguity appellant posits is that “reasonable jurors could have thought that the term ‘inform’ as used in CALJIC 5.54 required verbal notification, especially as the prosecutor argued it.” [Footnote 3] As appellant points out, and respondent readily concedes, there is no requirement that an original aggressor verbally notify his or her adversary that he or she is withdrawing from the altercation. Instead, such notification can be accomplished by conduct as well as words. (See,. e.g., People v. Button (1895) 106 Cal. 628, 632; People v. Hecker (1895) 109 Cal. 451, 462.) Appellant claims that by using the words “clearly informed,” CALJIC No. 5.54 “makes it harder for the original assailant to establish self-defense than does the statute.” Appellant contends that “under CALJIC 5.54, the jury was essentially required to reject Appellant’s right of self-defense outside the store, simply because there was no evidence that Appellant spoke at all to [the victim] while leaving the store. Thus, CALJIC 5.54 effectively denied Appellant the right of self-defense outside the store.”
The record reflects that appellant never raised any objection or requested any modification or clarification of the allegedly defective language of CALJIC No. 5.54. Nevertheless, appellant claims the court had a sua sponte duty to adapt the language of this instruction to the facts of this case. Appellant suggests that “[o]ne way to revise the instruction” would be to omit all references to “informed” and to substitute in its stead the phrase “made known to” or “made known to, by acts or words.”
“`[I]t is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. . . . A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence . . . ; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law. . . (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) “The ‘general principles of law governing the case’ are those principles connected with the evidence and which are necessary for the jury’s understanding of the case. [Citations.] As to pertinent matters falling outside the definition of a ‘general principle of law governing the case,’ it is ‘defendant’s obligation to request any clarifying or amplifying instruction.’ [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574.)
Specifically, if an instruction relates” ‘particular facts to the elements of the offense charged,'” it is a pinpoint instruction and the court does not have a sua sponte duty to instruct. (People v. Middleton (1997) 52 Cal.App.4th 19, 30.) A trial court “‘has no sua sponte duty to give amplifying or clarifying instructions . . . where the terms used in the instructions given are “commonly understood by those familiar with the English language.” [Citation.]’ [Citation.]” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360; People v. Rowland (1992) 4 Cal.4th 23 8, 270-271.) In a criminal prosecution, the trial court cannot reasonably be expected to attempt to revise or improve accepted and correct jury instructions absent some request from counsel. (People v. Kelly (1992) 1 Cal.4th 495, 535; People v. Wolcott (1983) 34 Cal.3d 92, 108-109.).
Although a clarifying instruction such as that suggested by appellant would be desirable under the facts of this case, we do not think the trial court had a sua sponte duty to embellish the term “informed” for the jury. The term “informed” is not so technical, peculiar, or confusing that the jury required a supplementary description to understand that one can inform one’s adversary of withdrawal from combat by conduct as well as words. Nor, in our view, did the prosecutor’s argument create any ambiguity. The prosecutor never argued appellant could not, as a matter of law, regain her right to self-defense because she did not verbally inform the victim of her withdrawal from the fray. The prosecutor merely argued there was insufficient evidence, in both word and deed, that appellant had informed the victim of her withdrawal, or had indeed, actually withdrawn. Therefore, the meaning of “informed” was within the common understanding of the jury and in the absence of a specific request, required no sua sponte refinement.
However, we note “[t]he scope of a court’s duty to deliver instructions requested by the defense is greater than its obligation to instruct the jury sua sponte on the general principles of law applicable to a case. [Citation.]” (People v. La Fargue (1983) 147 Cal.App.3d 878, 886, italics omitted.) In the event of a retrial, the court should look favorably on a specific request by the defense that CALJIC No. 5.54 be, modified to make the jury aware that the term “informed” does not require verbal notification.
A085426, People v. Jackson
Footnote 1: A customer who was in Cory’s and witnessed the dispute testified that appellant made a comment to the effect that she would not kill a lady, but she would kill a whore or a slut.
Footnote 2: CALJIC No. 17.01, modified to fit the facts of this case, provides, in pertinent part: “. . . The prosecution has introduced evidence tending to prove that there is more than one act upon which a conviction . . . may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that she committed any one or more of such acts. However, in order to return a verdict of guilty . . . , all jurors must agree that she committed the same act. It is not necessary that the particular act agreed upon be stated in your verdict.”
Footnote 3: The offending portion of the prosecutor’s argument reads, in part: “[T]he law requires” the attacker to “back away and communicate, inform that victim, ‘I don’t want to do this anymore. I’m sorry. I don’t want to do it anymore. it’s over. It’s over.’ Throw the knife down to the ground. ‘It’s over. I don’t have it any more.’ [¶] She kept that knife in her hand. She pulled it out in the store, walked outside, never dropped that knife till she tossed it under a car after she stabbed Kenya Williams to death. Is that retreating? Is that informing the person that you no longer wish to be involved in that conflict? ‘I am sorry I just stabbed you. Let me put my knife down. Let’s make friends.’ No.”