Criminal Appeal

Reversal For Failure To Instruct The Jury That All Elements Must Be Proved Beyond A Reasonable Doubt

Applying the Chapman harmless error standard, Division One of California's Fourth District Court of Appeal held that because the jury in this case was not instructed that the defendant could not be found guilty unless all of the elements of the charged offense(s) were proved by the prosecutor beyond a reasonable doubt, the defendant was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt and therefore his convictions must be reversed.

In a concurring and dissenting opinion, Justice Alex C. McDonald, agreed that reversal was required but argued that a federal constitutional error in omitting an instruction that the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt is structural error under Sullivan v. Louisiana (1993) 508 U.S. 275 and is not subject to the harmless error analysis under Chapman.

The majority opinion was authored by Justice Richard D. Huffman and joined by Justice Joan K. Irion.

People v. Flores, no. D047249 (Cal.Ct.App. (4th Dist., Div. 1) filed 1/31/07)

Defective Indictment Subject To Harmless Error Review? What Defective Indictment?

In an 8-1 majority opinion authored by Justice Stevens, the U.S. Supreme Court held that a federal indictment charging the defendant with illegally attempting to reenter the United States was not defective because it failed to allege a specific overt act committed in seeking reentry. Thus, the Court did not reach the question for which it originally granted cert in United States v. Resendiz-Ponce: whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. According to the Court, the indictment implicitly alleged that the defendant engaged in the necessary overt act simply by alleging that he "attempted" to enter the United States. In the Court's view, the word "attempt" encompasses both the overt act and intent elements. Therefore, an indictment alleging attempted illegal reentry need not specifically allege a particular overt act or any other component part of the offense.

Justice Scalia, in his customary fashion, filed a dissent that failed to mask his incredulity with the majority's approach, which he twice referred to as "certainly irrelevant and probably incorrect." Justice Scalia maintained that the government was required to allege in the indictment not only that the defendant knowingly and intentionally attempted to enter the United States but also that he took a substantial step toward that end. Because Justice Scalia would have held the indictment defective, he proceeded to address the question for which the Court originally granted cert. By reference only to his own opinions in other cases, Justice Scalia tersely noted that he, as the Ninth Circuit concluded, would find the error to be structural and therefore not subject to harmless error analysis.

Cert Grant: Does Brecht Apply When the State Court Failed to Apply Chapman?

Ironically, had I written my previous post a day earlier I might have included another issue on my list of cert-worthy issues overlooked by the Court. But yesterday the Court granted certiorari in a case, Fry v. Pliler, no. 06-5247, presenting the question of whether the  Brecht v. Abrahamson, 507 U.S. 619 (1993) federal habeas prejudice standard applies when the state court failed to recognize the constitutional nature of the error and did not review the error for prejudice under the Chapman standard applicable to most federal constitutional errors.

The Split. The split on this issue has existed for years; I raised the issue in a cert petition in 2001. Most of the federal circuits had held that Brecht applies even when the state court failed to apply Chapman, with only the Eighth Circuit and a couple district courts holding otherwise. But, as I wrote in my 2001 cert petition, federal judges were more deeply divided on the issue than that split reflected: three-judge panels in the Fifth and Tenth Circuits, as well as a dissenting judge in the Eleventh Circuit were convinced that their decisions are incorrect.

The Reasoning. The weakness with the majority rule is the logic of Brecht doesn't apply when the state court failed to apply Chapman. As Chief Justice Rehnquist wrote in Brecht, “it scarcely seems logical to require federal habeas corpus courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” But that reasoning does not apply when the state court did not review the error for prejudice under Chapman.

Background on Fry. In the Ninth Circuit, the majority (Judges Dorothy Nelson and Bea) tersely rejected Fry's claim that Brecht should not apply because the state court failed to apply it:

Fry contends that this court should not apply the Brecht harmless error standard because the state appellate court failed to conduct a meaningful prejudice review. We have held, however, that the Brecht standard applies uniformly in all federal habeas corpus cases under § 2254 regardless of the error standard, if any, applied by the state court. Bains v. Cambra, 204 F.3d 964, 976 (9th Cir. 2000); see also Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005).

Judge Rawlinson dissented, on the ground that she would hold that the error was not harmless under Brecht. Fry was convicted of murder in Solano County California. The California Court of Appeal (1st Dist., Div. 3) affirmed his conviction in an unpublished decision filed on March 30, 2000.  (People v. Fry, no. A072396.) Unfortunately, that decision was issued before the court began making all unpublished decisions available electronically. Fry is represented by Victor Haltom of Sacramento, California.

Trivia: The Seventh Circuit case touching on this issue was Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. denied, 516 U.S. 1041 (1996), Mike Tyson's federal habeas appeal.

 

Right to Put on a Defense. In catching up on my opinion reviews, I came across this nugget on harmless error:

U.S. v. Boulware, no. 02-10287 (9th Cir. Sept. 14, 2004).

The district court abused its discretion by excluding evidence of a state-court judgment that directly supported the defense to tax charges and directly contradicted the government’s theory. The state court judgment was relevant and not excludable under the hearsay rule. Interestingly, the 9th Circuit applied the Chapman standard of prejudice because the evidence was crucial and the defendant was denied the right to put on a defense:

the state-court judgment was crucial to Boulware’s defense on the tax counts, and the judgment directly contradicted the government’s theory of the case. The district court’s exclusion of the judgment denied Boulware “a meaningful opportunity to present a complete defense,” Lopez-Alvarez, 970 F.2d at 587-88, and thus violated his due process rights. We must therefore reverse unless the error was harmless beyond a reasonable doubt.

The court, however, rejected sufficiency of the evidence claims as to the tax evasion convictions.

Judge Silverman dissented, concluding that the state court judgment was not relevant.

Chapman Applies to Erroneous Burden of Proof Instruction at Competency to Stand Trial Hearing; State Can Challenge Unauthorized Sentence In Defendant's Appeal. People v. Johnwell, no. F041899 (Cal.Ct.App. (4th Dist.), Aug. 30, 2004).

Competency Proceedings.

Error. Court erred in giving modified version of CALJIC No. 2.01 (sufficiency of circumstantial evidence – generally), at competency trial. The court agreed this was error because it raised the defendant's burden above the preponderance standard:

By adding its modified version of CALJIC No. 2.01, however, the trial court effectively placed on defendant the burden not only of producing evidence of his incompetence that was more convincing than not, but also the additional burden of disproving every rational conclusion and reasonable interpretation of the evidence except that which pointed to incompetence. That burden conflicts with, and is higher than, the preponderance standard dictated by California’s competency scheme (§ 1369, subd. (f)) and sanctioned by the United States Supreme Court (Medina v. California, supra, 505 U.S. at pp. 446-453). Accordingly, and considering the instructions as a whole (see People v. Smithey (1999) 20 Cal.4th 936, 963), the giving of the modified version of CALJIC No. 2.01 at defendant’s competency trial constituted error.

Prejudice. Although the right to a jury trial on competency is a state statutory right only (i.e. no constitutional right), the error, nevertheless is reviewed for prejudice under standard for constitutional error (Chapman) because the error affects the constitutional right not to be tried when incompetent.
Relief: If, upon remand, a doubt arises as to his present competence to stand trial, the trial court shall proceed as set out in section 1368 et seq. If no such doubt arises or upon such time as defendant is found competent to stand trial, and assuming the People elect to retry him, a new trial on the issue of guilt shall be held.
Sentencing Error
State can challenge unauthorized sentence in defendant's appeal, without separately appealing. Striking of special circumstance finding was unauthorized.