Petition for Writ of Certiorari — Brian Gonzales, Petitioner v. California
Supreme Court briefJul 7, 2022
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No. ______________
(21A649)
IN THE
SUPREME COURT OF THE UNITED STATES
BRIAN GONZALES,
Petitioner,
v.
PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA
FOR THE SECOND APPELLATE DISTRICT
PETITION FOR WRIT OF CERTIORARI
MARK YANIS
2151 Pacific Avenue, No. B101
Costa Mesa, CA 92627
(949) 769-4872
markyanis@gmail.com
Counsel of Record for Petitioner
QUESTION PRESENTED
Per In re Winship, 397 U.S. 358 (1970), the state must
prove each element of the offense beyond a reasonable doubt
“and a jury instruction violates due process if it fails to give
effect to that requirement.” Middleton v. McNeil, 541 U.S.
433, 437 (2004).
California has cut this “each element” requirement
from its criminal jury instructions. They now only say that
the prosecution must prove a defendant “guilty” beyond a
reasonable doubt.
California, which holds more felony jury trials than
any U.S. jurisdiction, is the lone jurisdiction that does not
include “each element” or equivalent language in its
instructions. The California Supreme Court holds that this is
not error, squarely conflicting with the high courts of New
York and Pennsylvania on the question presented:
Does the failure to instruct juries in criminal trials
that the prosecution must prove each element of the charged
crime beyond a reasonable doubt violate Winship?
i
TABLE OF CONTENTS
QUESTION PRESENTED ....................................................... i
INDEX TO APPENDIX .......................................................... iv
TABLE OF AUTHORITIES .................................................... v
PETITION FOR A WRIT OF CERTIORARI .......................... 1
PARTIES ................................................................................. 1
OPINIONS BELOW ................................................................ 1
JURISDICTION ...................................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED .................. 2
INTRODUCTION.................................................................... 2
STATEMENT OF THE CASE ................................................ 7
A.
Trial ....................................................................... 7
B.
Appeal.................................................................. 10
REASONS FOR GRANTING THE PETITION .................... 12
I.
II.
The California Supreme Court’s Holding Conflicts
With The High Courts Of New York And
Pennsylvania ................................................................ 12
A.
California Supreme Court .................................. 12
B.
New York, Pennsylvania, and other
jurisdictions ......................................................... 13
California Courts Are Actively Defying Winship ........ 17
A.
Legal principles ................................................... 18
ii
B.
III.
IV.
California’s jury instructions fail to give effect
to Winship’s requirement that the state prove
each element beyond a reasonable doubt ........... 19
1.
The reasonable doubt instruction
describes the burden only in holistic
terms .......................................................... 19
2.
The substantive instructions are at best
ambiguous as to whether the burden
extends to each element or to the
elements in the aggregate.......................... 22
3.
The instructions dilute the state’s
burden of proof by permitting
conviction on a finding of cumulative
guilt beyond a reasonable doubt even
where one or more elements are not so
proved ......................................................... 26
4.
The instructions mislead jurors into
shortcutting the deliberative process by
failing to consider each element of the
crime before reaching a verdict ................. 29
This Issue Is Vitally Important Because California
Holds More Criminal Jury Trials Than Any Other
U.S. Jurisdiction And Its Defective Instructions
Are Given In Virtually All Those Trials ...................... 32
A.
The defective instructions affect thousands of
felony defendants tried by jury every year ......... 32
B.
California will continue giving these
defective instructions unless this Court
grants review....................................................... 33
This Is A Suitable Vehicle............................................ 34
CONCLUSION ...................................................................... 36
iii
INDEX TO APPENDIX
Document
Description
APPENDIX A
Opinion of the California Court
of Appeal (November 23, 2021). ......... 1a–29a
APPENDIX B
Order of California Supreme
Court denying petition for review
(February 9, 2022).................................... 30a
APPENDIX C
Instructions given to the jury .......... 31a–92a
APPENDIX D
Survey of pattern criminal jury
instructions of U.S. jurisdictions ... 93a–120a
APPENDIX E
Excerpt from U.S. District Court
statistics (Table 5.4) ............................... 121a
APPENDIX F
Excerpt from Judicial Council of
California 2021 Court Statistics
Report ........................................... 122a–123a
APPENDIX G
Excerpts from Judicial Council of
California Report Summary
(July 13, 2006) .............................. 124a–125a
APPENDIX H
Order appointing counsel on
appeal filed October 7, 2020 .................. 126a
iv
Page#
TABLE OF AUTHORITIES
Federal Cases
Apprendi v. New Jersey,
530 U.S. 466 (2000) ........................................................... 18
Cabana v. Bullock,
474 U.S. 376 (1986) ....................................................... 2, 19
Coffin v. United States,
156 U.S. 432 (1895) ........................................................... 18
In re Winship,
397 U.S. 358 (1970) .............................................. i, 2, 18, 29
Jones v. United States,
526 U.S. 227 (1999) ....................................................... 4, 28
Kansas v. Marsh,
548 U.S. 163 (2006) ........................................................... 22
Middleton v. McNeil,
541 U.S. 433 (2004) .................................................. i, 19, 25
Mullaney v. Wilbur,
421 U.S. 684 (1975) ........................................................... 29
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ....................................................... 31
Sandstrom v. Montana,
442 U.S. 510 (1979) ..................................................... 19, 25
Speiser v. Randall,
357 U.S. 513 (1958) ........................................................... 29
Sullivan v. Louisiana,
508 U.S. 275 (1993) ........................................................... 18
v
United States v. Ali,
63 F.3d 710 (8th Cir. 1995) ......................................... 16, 17
United States v. Alston,
551 F.2d 315 (1976) .......................................................... 16
United States v. Gaudin,
515 U.S. 506 (1995) ........................................................... 18
United States v. Powell,
449 F.2d 994 (1971) .......................................................... 17
United States v. Rowland,
826 F.3d 100 (2d Cir. 2016) .............................................. 19
California Cases
People v. Andersen,
26 Cal. App. 4th 1241 (1994) ............................................ 10
People v. Covarrubias,
1 Cal.5th 838 (2016).................................................... 11, 13
People v. Henning,
178 Cal. App. 4th 388 (2009) ............................................ 34
People v. Ochoa,
26 Cal.4th 398 (2001).............................................. 5, 13, 33
People v. Orchard,
17 Cal. App. 3d 568 (1971)................................................ 12
People v. Ramos,
163 Cal. App. 4th 1082 (2008) .......................................... 10
People v. Reed,
38 Cal.2d 423 (1952) ..................................................... 5, 12
People v. Thomas,
52 Cal.4th 336 (2011)........................................................ 13
vi
Other State Cases
Commonwealth v. Bishop,
372 A.2d 794 (Pa. 1977) ............................ 13, 14, 15, 23, 26
People v. Newman,
385 N.E.2d 598 (N.Y. 1978) ........................................ 15, 16
United States Constitution
Sixth Amendment ......................................................... 2, 10
Fourteenth Amendment ............................................... 2, 10
Federal Statutes
28 U.S.C. § 1257(A) ............................................................. 2
California Statutes
Penal Code
§ 1259 ................................................................................ 10
California Civil Jury Instructions (CACI)
No. 5022 (Directions for Use) (2022) ................................ 30
No. 5022 ............................................................................ 31
California Criminal Jury Instructions (CALCRIM)
No. 220 ...................................................................... 3, 9, 20
No. 520 .......................................................................... 9, 22
No. 540A ............................................................................ 22
No. 570 .......................................................................... 9, 22
No. 1215 ........................................................................ 9, 22
California Jury Instructions, Criminal (CALJIC)
No. 8.10 ............................................................................. 13
vii
Law Review Articles
Dale Nance, Probability and Inference in the Law of
Evidence: Postscript: A Comment on the Supposed
Paradoxes of a Mathematical Interpretation of the
Logic of Trials,
66 B.U.L. Rev. 947 (1986) ................................................. 24
Dan Simon, A Third View of the Black Box:
Cognitive Coherence in Legal Decision Making,
71 U. Chi. L. Rev. 511 (2004)...................................... 27, 35
David S. Schwartz & Elliot Sober, The Conjunction
Problem and the Logic of Jury Findings,
59 Wm. & Mary L. Rev. 619 (2017) ...................... 21, 24, 25
Michael S. Pardo, Comment, Juridical Proof, Evidence,
and Pragmatic Meaning: Toward Evidentiary
Holism,
95 Nw. U.L. Rev. 399 (2000) ............................................. 20
Nancy Pennington & Reid Hastie, A Cognitive Model
of Juror Decision Making: The Story Model,
13 Cardozo L. Rev. 519 (1991) .......................................... 21
Internet Sources
Judicial Council of California, 2021 Court
Statistics Report,
https://www.courts.ca.gov/documents/2021Court-Statistics-Report.pdf .............................................. 33
Judicial Council of California, Task Force on
Criminal Jury Instructions, Report Summary,
(July 13, 2006)
https://www.courts.ca.gov/documents/082506it
em2.pdf.............................................................................. 31
viii
U.S. District Courts, Criminal Judicial Facts and
Figures (Sept. 30, 2021)
https://www.uscourts.gov/statistics/table/54/jud
icial-facts-and-figures/2021/09/30 .................................... 32
Table 5.4
https://www.uscourts.gov/sites/default/files/dat
a_tables/jff_5.4_0930.2021.pdf ......................................... 32
ix
PETITION FOR A WRIT OF CERTIORARI
Petitioner Brian Gonzales respectfully seeks a writ of
certiorari to review the judgment of the California Court of
Appeal, District Two.
PARTIES
Brian Gonzales was the defendant/appellant in the
proceedings below. The State of California was the
plaintiff/appellee in the proceedings below.
OPINIONS BELOW
The California Court of Appeal issued its unpublished
opinion in Cause Number B306537 on November 23, 2021.
App. 1a-29a. Petitioner filed a timely petition for review in
the California Supreme Court on December 30, 2021. App.
30a.
JURISDICTION
The California Supreme Court denied review on
February 9, 2022. App. 30a. On April 26, 2022, this Court
issued an order extending the time for filing a petition for a
writ of certiorari to 150 days from that date, thus to and
1
including July 9, 2022. This Court has jurisdiction under 28
U.S.C. § 1257(A).
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amendment VI:
“In all criminal prosecutions, the accused shall
enjoy the right to a . . . trial, by an impartial
jury[.]”
United States Constitution, Amendment XIV, Section 1:
“No state shall . . . deprive any person of life,
liberty, or property, without due process of law[.]”
INTRODUCTION
“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 363-64 (1970). As a
corollary, “a jury’s verdict cannot stand if the instructions
provided the jury do not require it to find each element of the
crime” beyond a reasonable doubt. Cabana v. Bullock, 474
U.S. 376, 384 (1986).
California has deleted from its criminal pattern jury
2
instructions the requirement that the prosecution prove each
element of the crime beyond a reasonable doubt. Its
reasonable doubt instructions only state in relevant part
that the prosecution must “prove a defendant guilty beyond
a reasonable doubt.” App. 44a; CALCRIM 220. Because the
burden of proof extends to each element, not just “guilt”
holistically, this instruction sets out a necessary but not
sufficient condition for juries to convict.
This defect is worsened when considering the charge as
a whole. California’s instructions for substantive counts only
state “the People must prove,” followed by the elements.
Jury instructions scholars find this “aggregate elements”
pattern is ambiguous because it fails to specify whether
“prove” applies to each element or the elements as a whole.
Because
empirical
research
shows
that
jurors
are
predisposed to assess cases holistically, they are even more
likely to be misled by these holistic instructions.
California’s defective instructions deprive defendants
of a fair trial in at least two ways. First, the instructions
3
allow jurors to convict upon proof the defendant is
holistically “guilty beyond a reasonable doubt,” even if they
would have found one or more elements were not proved
beyond a reasonable doubt. Second, by omitting the “each
element” requirement, California created a danger that
jurors will shortcut the deliberative process of considering
each element of the offense and simply vote on the outcome,
thus undermining a critical procedural safeguard.
These defects are especially problematic in emotionally
charged cases such as petitioner’s, where he confessed to
double homicide. Though that conclusively established those
elements, he contested others going to intent and special
circumstances, which were more susceptible to reasonable
doubt. But California’s instructions allow jurors to overlook
weaker elements and convict where satisfied that the
aggregate elements were proved beyond a reasonable doubt.
This Court has held that “a State cannot manipulate
its way out of Winship.” Jones v. United States, 526 U.S. 227,
241, 243 (1999). California manipulated its way out of
4
Winship by eliminating this constitutionally mandated
requirement. There was no legitimate reason for this. It
needlessly made clear instructions ambiguous, creating what
should be an intolerable risk of misleading jurors into voting
to convict on a lesser standard of proof.
Despite this, the California Supreme Court has ratified
its pre-Winship precedent and held that defendants are “not
entitled” to an instruction that the People must prove each
element of the offense beyond a reasonable doubt. People v.
Ochoa, 26 Cal.4th 398, 444 n.13 (2001) (citing People v. Reed,
38 Cal.2d 423, 430 (1952)).
This directly conflicts with high courts of New York
and Pennsylvania, which held that failing to give this
instruction is reversible error. There are not more conflicts
only because every federal circuit and state but California
has long recognized Winship is unambiguous settled law and
complied with it by incorporating “each element” or
equivalent language (e.g., “every element”) into their
5
criminal pattern instructions. App. 93a-120a.1
Though
California
is
the
lone
jurisdiction
that
disregards Winship, this issue is vitally important because
California holds more felony jury trials annually than any
other U.S. jurisdiction, and almost double all federal district
courts
combined.
App.
121a-123a.
And
because
this
instruction is given in death penalty prosecutions2 as well as
in life-without-parole prosecutions such as petitioner’s, the
stakes for these defendants are enormous.
California is actively defying bedrock constitutional
requirements this Court crystallized over 50 years ago.
Unless this Court grants review, California’s defective
instructions will continue to dilute the burden of proof and
taint
the
deliberation
process
for
the
thousands
of
This is a survey conducted by petitioner’s counsel of
every state and federal jurisdiction’s relevant pattern
criminal instructions. All but California have at least
substantially complied with Winship by stating the burden
of proof beyond a reasonable doubt extends to “each,” “all,”
“every,” or “the following” element(s).
1
California has issued a moratorium on executions but
not on death penalty prosecutions.
2
6
defendants who exercise their right to trial by jury every
year.
STATEMENT OF THE CASE
A.
Trial
After an abusive relationship, Emily Fox broke up with
petitioner and told him to move his things from her
apartment. App. 7a-8a. Weeks later, while driving his
nephew home, petitioner decided to stop at Fox’s apartment
to pick up his clothes and for his nephew take a bathroom
break. App. 8a.
Fox met them in the hallway outside the apartment
accompanied by Jerred Scott. App. 9a. Fox told petitioner
that Scott was her new boyfriend. Petitioner, who was
depressed over the breakup and believed he and Fox would
reunite, drew a pistol from his waistband. Petitioner
testified that he always armed himself in that neighborhood
because it was a gang area. App. 9a. Scott ran, petitioner
caught up to him in the stairwell, and forced him to return to
the hallway at gunpoint. App. 9a-10a. On return, when
7
petitioner realized Fox was calling police on him, he
“snapped” and “blacked out and started shooting,” killing
Fox and Scott. App. 10a.
Petitioner was charged with two counts of murder with
kidnapping and double-murder special circumstances. App.
2a-3a. Petitioner conceded criminal liability but contested
two of the prosecution’s claims. First, he asserted that his
blacking out from emotional trauma negated deliberation
and constituted heat of passion under California law, thus
he was guilty of a lesser homicide offense than first degree
murder. App. 6a, 14a-15a. In support, petitioner moved to
introduce a psychologist’s testimony that in persons such as
petitioner, when facing overwhelming emotional trauma, the
brain’s limbic system overcomes their ability to deliberate.
This was offered to counter jurors’ “commonsense” belief that
such claims are incredible. The court denied the request.
App. 6a, 13a-15a.
Second, petitioner asserted that the prosecution did not
prove the kidnapping special circumstance because he had
8
only forced Scott to return from the stairwell to the hallway
where the encounter began, thus he did not move Scott a
substantial distance. See App. 9a-10a.
The post-evidence instructions required the jurors to
resolve several multi-element issues. But the jurors were
nowhere informed that the prosecution must prove each
element of the offenses and special circumstances beyond a
reasonable doubt; the reasonable doubt instructions in
pertinent part only stated that the People must “prove a
defendant guilty beyond a reasonable doubt.” App. 44a;
CALCRIM 220 (emphasis added). The instructions for the
substantive counts stated, “To prove that the defendant is
guilty of this crime [or special circumstance], the People
must prove that,” followed by the elements. App. 68a, 75a,
84a; CALCRIM 520, 570, 1215. The jury was not instructed
whether the burden of proof beyond a reasonable doubt
applied to each element or the aggregate elements.
Petitioner did not object to the instructions, but
California law holds that the appellate court “may review
9
any instruction . . . even though no objection was made
thereto in the lower court, if the substantial rights of the
defendant were affected thereby.” Cal. Pen. Code, § 1259;
People v. Andersen, 26 Cal. App. 4th 1241, 1249 (1994)
(“Ascertaining whether claimed instructional error affected
the substantial rights of the defendant necessarily requires
an examination of the merits”); People v. Ramos, 163 Cal.
App. 4th 1082, 1087 (2008) (addressing merits of this issue
despite no objection).
The jury found petitioner guilty of both counts and
both special circumstances true. Petitioner was sentenced to
life imprisonment without the possibility of parole. App. 13a.
B.
Appeal
In the California Court of Appeal, petitioner argued
that the trial court violated his Sixth and Fourteenth
Amendment rights for failing to instruct the jury that the
prosecution was required to prove each element of the
charged offenses and special circumstances beyond a
reasonable doubt. App. 28a.
10
Petitioner also argued, among other things, the court
violated his right to present a defense by excluding his
psychological expert. App. 13a-17a.
The court rejected those claims. As to the instructional
issue, it held that because the California Supreme Court
already held that failing to instruct the jury that each
element must be proved beyond a reasonable doubt was not
error, People v. Covarrubias, 1 Cal.5th 838 (2016), it was
bound to follow that precedent. App. 28a.
Petitioner filed a petition for review in the California
Supreme Court raising the above federal constitutional
issues and, alternatively, arguing that because the Judicial
Council of California had improvidently deleted the “each
element” requirement from criminal pattern instructions,
the court should instruct the Council to redraft it. The court
denied the petition on February 9, 2022. App. 30a.
11
REASONS FOR GRANTING THE PETITION
I.
The California Supreme Court’s Holding
Conflicts With The High Courts Of New York And
Pennsylvania
A.
California Supreme Court
The California Supreme Court has never analyzed this
issue under Winship and never changed its pre-Winship
stance that defendants are not entitled to an “each element”
instruction. In 1952, the court rejected the defendant’s claim
that California’s “general” instructions were erroneous for
failing to specify that “each element of the crime must be
proved beyond a reasonable doubt.” People v. Reed, 38 Cal.2d
at 430. The year after Winship, citing Reed but not Winship,
the court again held that “an instruction respecting proof of
each element beyond a reasonable doubt need not have been
given.” People v. Orchard, 17 Cal. App. 3d 568, 576-77
(1971). Three decades later, again citing Reed and ignoring
Winship, the court held, “It would be correct to instruct that
the People must prove every element of the offense beyond a
reasonable doubt, but a defendant is not entitled to that
12
instruction.” People v. Ochoa, 26 Cal.4th at 444 n.13; see also
People v. Thomas, 52 Cal.4th 336, 356 & nn.21-22 (2011)
(same); Covarrubias, 1 Cal.5th at 911 (same). The court has
repeatedly declined to review the current CALCRIM version
of the instructions,3 most recently when it denied petitioner’s
request. App. 30.
B.
New York,
jurisdictions
Pennsylvania,
and
other
Directly conflicting with the California Supreme Court,
the high courts of Pennsylvania and New York held that
omitting “each element” language from criminal jury
instructions is reversible error.
In Commonwealth v. Bishop, 372 A.2d 794 (Pa. 1977),
the trial court denied a defense request to instruct the jury
“that the Commonwealth has the burden to prove ‘each and
every element’ (of murder of the first degree) beyond a
The court in Thomas referred to murder instruction
CALJIC 8.10, “In order to prove this crime, each of the
following elements must be proved.” Thomas, 52 Cal.4th at
356 n.22 (emphasis added). But CALJIC has been
superseded and that language was deleted from CALCRIM.
3
13
reasonable
doubt.”
Id.
at
795.
Citing
Winship,
the
Pennsylvania Supreme Court emphasized that the burden of
proof beyond a reasonable doubt “extends to every material
element of the crime charged and that if the Commonwealth
fails to carry this burden beyond a reasonable doubt as to
any one element, the accused must be acquitted.” Id. at 796
(emphasis in original). The court observed that even though
the jury had been instructed on the presumption of
innocence, the burden of proof generally, and the elements of
the crime were accurately set out, “[n]owhere . . . in the
entire charge did the court explain that the presence of each
of the elements of the conduct charged must be proven by
the Commonwealth beyond a reasonable doubt.” Id. at 796.
Indeed, it said, “no direction at all was given as to the proper
application of the burden to the component parts of the
crime
in
question.”
Ibid.
The
court
rejected
the
Commonwealth’s claim that “convincing evidence of guilt”
rendered this harmless error. Id. at 797. The court held that
“the refusal to charge the jury that the Commonwealth has
14
the burden to prove beyond a reasonable doubt every
essential element of the criminal conduct charged was
prejudicial error” because the defense had “an absolute right
to have the jury instructed not only as to the quantum of
proof required to establish guilt but also that the
requirement extended to each of the material elements of the
offense.” Id. at 796-97 (citations and footnote omitted).
New York’s high court reached the same conclusion in
People v. Newman, 385 N.E.2d 598 (N.Y. 1978). There, the
trial court gave pretrial instructions stating the prosecution
must prove each element of the crime beyond a reasonable
doubt, but it failed to so instruct the jury after the close of
evidence. Id. at 599. Citing Winship, the court stated that
“[i]t hardly seems necessary to point to the fundamental
nature of the constitutional precept that each essential
element of a crime must be proved beyond a reasonable
doubt.” Ibid. The court observed that “at no point was the
jury advised in the charge that the burden of proving guilt
beyond a reasonable doubt attached to each material
15
element of the crimes rather than merely to some
generalized concept of the crimes as a whole.” Id. at 600.
Because this “fundamental . . . constitutional precept” was
not explained to the jury after the close of evidence, the court
reversed. Id. at 599-601.
Finally, though not properly characterized as conflicts,
several federal circuit opinions have recognized that failure
to instruct juries that each element must be proved beyond a
reasonable doubt is error. In United States v. Alston, 551
F.2d 315 (1976), the court found that the trial court made
several instructional errors, including the “failure to include
in its charge . . . that each [element] must be proved beyond
a reasonable doubt.” Id. at 320. But the court concluded that
because other errors warranted reversal, it “need not decide
whether it alone would constitute reversible error.” Ibid.
(footnote omitted). In United States v. Ali, 63 F.3d 710 (8th
Cir. 1995), the court found that failure to give an “each and
every element” instruction in the charge would have been
plain error, but it was cured by the trial court’s giving the
16
instruction during deliberations after receiving an unrelated
jury question. Id. at 715. And in United States v. Powell, 449
F.2d 994, (1971) Chief Judge Bazelon stressed that the
“standard of persuasion is so important at criminal trials
that I consider it to be an error for the judge ever to omit
such an instruction.” Id. at 999 (Bazelon, C.J., concurring)
(emphasis in original).
II.
California Courts Are Actively Defying Winship
The fundamental principles this Court crystallized in
Winship and progeny plainly govern this issue’s resolution.
This likely explains why there are not more conflicts with
California’s anachronistic holding. Every U.S. jurisdiction
but California recognized that Winship established a bedrock
constitutional rule, which they enshrined in their criminal
pattern jury instructions, most decades ago. App. 93a-120a.
Scholarly
works
confirm
that
California’s
defective
instructions allow jurors to convict defendants on a diluted
standard of proof.
17
A.
Legal principles
The reasonable-doubt standard “provides concrete
substance for the presumption of innocence—that bedrock
‘axiomatic and elementary’ principle whose ‘enforcement lies
at the foundation of the administration of our criminal law.’”
In re Winship, 397 U.S. at 363 (quoting Coffin v. United
States, 156 U.S. 432, 453 (1895)). Winship thus “explicitly
h[e]ld” that “the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.” 397 U.S. at 364.
This
Court
has
repeatedly
underscored
that
“constitutional protections of surpassing importance . . .
indisputably entitle a criminal defendant to ‘a jury
determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.’”
Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000)
(footnote omitted) (citing United States v. Gaudin, 515 U.S.
506, 510 (1995); Sullivan v. Louisiana, 508 U.S. 275, 278
18
(1993)).
A corollary of these bedrock principles is that “a jury’s
verdict cannot stand if the instructions provided the jury do
not require it to find each element of the crime” beyond a
reasonable doubt. Cabana v. Bullock, 474 U.S. at 384.
Similarly, in criminal trials, “the State must prove every
element of the offense, and a jury instruction violates due
process if it fails to give effect to that requirement.”
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (citing
Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979)); see also
United States v. Rowland, 826 F.3d 100, 115 (2d Cir. 2016)
(“A jury instruction is erroneous if it misleads the jury as to
the correct legal standard or does not adequately inform the
jury on the law”).
B.
California’s jury instructions fail to give
effect to Winship’s requirement that the
state prove each element beyond a
reasonable doubt
1.
The reasonable doubt instruction
describes the burden only in holistic
terms
California’s reasonable doubt instruction repeatedly
19
describes the state’s burden in holistic terms while giving no
hint that it extends to each element. First, it states that the
presumption of innocence “requires that the People prove a
defendant guilty beyond a reasonable doubt.” App. 44a;
CALCRIM 220 (emphasis added). After this, the instruction
uses several other holistic terms: “an abiding conviction that
the charge is true,” “whether the People have proved their
case beyond a reasonable doubt,” and “[u]nless the evidence
proves the defendant guilty beyond a reasonable doubt.”
App. 44a (emphasis added). Because the burden extends to
each element and not just “guilt” holistically, this instruction
sets out a necessary but not sufficient condition for
conviction.
This holistic language is even more misleading to
jurors because “[e]mpirical research confirms that fact
finders process evidence holistically in the form of theories or
stories.” Michael S. Pardo, Comment, Juridical Proof,
Evidence, and Pragmatic Meaning: Toward Evidentiary
Holism, 95 Nw. U.L. Rev. 399, 402 nn.10 & 18 (2000) (citing
20
studies).4 Indeed, jurors “impose a whole claim condition . . .
on themselves unless expressly instructed not to.” David S.
Schwartz & Elliot Sober, The Conjunction Problem and the
Logic of Jury Findings, 59 Wm. & Mary L. Rev. 619, 680
(2017). So by couching the state’s burden solely in holistic
rather than elemental terms, this instruction fuels biases
that laypeople bring into the jury room.
The plain text of the instruction thus fails to comply
with Winship. It tells the reader they need only to find that
the defendant is “guilty” of the “crime” or “charge” beyond a
reasonable doubt while giving no hint that the burden
extends to each of the elements. And given jurors’
preexisting biases, they are even more likely to understand
this instruction as directing them to convict based on a
holistic finding of guilt beyond a reasonable doubt.
Of course, a single instruction “may not be judged in
See also Nancy Pennington & Reid Hastie, A Cognitive
Model of Juror Decision Making: The Story Model, 13
Cardozo L. Rev. 519 (1991) (presenting findings that jurors
impose narrative story organization on trial information,
which can determine jurors' verdicts).
4
21
artificial isolation, but must be viewed in the context of the
overall charge.” Kansas v. Marsh, 548 U.S. 163, 179 n.6
(2006) (citation omitted). But as shown below, this defect is
only magnified when considering the whole charge.
2.
The substantive instructions are at
best ambiguous as to whether the
burden extends to each element or to
the elements in the aggregate
The other relevant instructions set out the substantive
crimes and special circumstances. The pattern consistently
used in these instructions is “the People must prove that,”
followed by the elements. The murder instruction stated in
pertinent part, “To prove that the defendant is guilty of this
crime, the People must prove that,” followed by the
elements. App. 68a; CALCRIM 520. The kidnapping special
circumstance
stated,
“To
prove
that
the
defendant
committed kidnapping, the People must prove that,” followed
by the elements. App. 84a; CALCRIM 1215; see also App.
73a; CALCRIM 540A (first degree felony murder); App. 75a;
CALCRIM 570 (voluntary manslaughter).
Here again, the instructions reference the burden
22
holistically (e.g., “guilty” of “this crime”). They continue, “the
People must prove,” followed by the elements, but jurors
were given no guidance whether “prove” applied to each
element individually or to the elements in the aggregate.
The Pennsylvania Supreme Court recognized this defect
when it observed there that “no direction at all was given as
to the proper application of the burden to the component
parts of the crime in question.” Bishop, 372 A.2d at 796.
This defect is also confirmed by Professors Schwartz
and Sober, who analyzed patterns in state and federal
instructions. They explained how instructions employing an
“aggregate elements” pattern can lead jurors into reaching a
verdict based on the totality of the elements rather than as
to each element:
The pattern we identify as “aggregate elements”
consists of jury instructions that break out the
elements but use language suggesting that the
finding requires the elements to be viewed in the
aggregate. [T]he aggregation language implies a
whole claim condition [as opposed to an each
element condition].5
5
As an example of the aggregate elements pattern,
23
Schwartz & Sober, supra, 59 Wm. & Mary L. Rev. at 683.
They found this pattern ambiguous because it “merely
list[s] elements without stating whether the burden of proof
applies to the elements individually or as a whole.” Id. at
683. Another scholar observed that the “ambiguities” of an
instruction using the same pattern6 “are legion and obvious.”
Dale Nance, Probability and Inference in the Law of
Evidence: Postscript: A Comment on the Supposed Paradoxes
of a Mathematical Interpretation of the Logic of Trials, 66
Schwartz and Sober quoted Alaska's civil negligence
instruction:
In order to find that the plaintiff is entitled to recover, you
must decide it is more likely true than not true that:
1. the defendant was negligent;
2. the plaintiff was harmed; and
3. the defendant's negligence was a substantial factor in
causing the plaintiff's harm.
Id. at 683-84.
“In order to prove the essential elements of plaintiff's
claim, the burden is on the plaintiff to establish, by a
preponderance of the evidence in the case, the following
facts: First, that the defendant was negligent in one or more
of the particulars alleged; and second, that the defendant's
negligence was a proximate cause of some injury and
consequent damage sustained by the plaintiff.”
6
24
B.U.L. Rev. 947, 951 (1986).
California’s
substantive
instructions
are
formally
identical to “aggregate elements” patterns in these scholars’
research because, by merely stating that “the People must
prove, then listing the elements, they “break out the
elements but use language suggesting that the finding
requires the elements to be viewed in the aggregate.”
Schwartz & Sober, supra, 59 Wm. & Mary L. Rev. at 683.
California’s substantive instructions are at best ambiguous
as to whether the burden applies to each individual element
or the elements in the aggregate.
Therefore, the charge as a whole fails to “give effect” to
this Court’s requirement that the prosecution prove each
element beyond a reasonable doubt. Middleton v. McNeil,
541 U.S. at 437 (holding that the state “must prove every
element of the offense, and a jury instruction violates due
process if it fails to give effect to that requirement) (citing
Sandstrom, 442 U.S. at 520-21).
As shown below, these defective instructions have at
25
least two practical effects that deny defendants a fair trial.
3.
The instructions dilute the state’s
burden
of
proof
by
permitting
conviction on a finding of cumulative
guilt beyond a reasonable doubt even
where one or more elements are not so
proved
The Supreme Court of Pennsylvania explained how
failing to give an “each element” instruction renders jurors
susceptible to convicting defendants even where one or more
elements weren’t sufficiently proved. The court held that
without such an instruction, it is
entirely possible that . . . the jury concluded that
the Commonwealth might meet its burden if the
cumulative evidence of guilt was such that they
were convinced beyond a reasonable doubt
although they were not convinced beyond a
reasonable doubt as to one or more of the
elements of the offense. This is not the correct
standard and differs significantly from the
requirement that each and every element of the
crime meet this same measure of substantiation.
Bishop, 372 A.2d at 796-97 (emphasis in original, citations
and footnote omitted).
California’s holistic instructions likewise allow jurors
to convict where they conclude the state proved its case
cumulatively beyond a reasonable doubt even if they would
26
have had reasonable doubt as to one or more elements. In
such cases, jurors would be voting to convict where acquittal
is proper.
This scenario is even more likely where some elements
are overwhelmingly established while others have far less
support. As Professor Simon observed, “In cases where the
evidence is overwhelming with respect to some elements of
the crime, but there is only scant evidence to establish a
specific element, there is a danger that, due to coherence
effects [holistic reasoning], the fact-finder will find the
defendant guilty despite the absence of evidence on the
particular element.” Dan Simon, A Third View of the Black
Box: Cognitive Coherence in Legal Decision Making, 71 U.
Chi. L. Rev. 511, 585 n.283 (2004).
That danger is particularly acute in highly charged
cases where jurors focus on more lurid evidence and are less
likely to consider more “mundane” elements unless explicitly
instructed to do so. Here, while elements alleging petitioner
unlawfully killed the victims were conclusively established,
27
he contested others that were far more amenable to
reasonable doubt. This included whether he deliberated
before shooting, as required to establish first degree murder,
and whether he moved Scott a substantial distance, as
required by the kidnapping special circumstance.7 But jurors
conscientiously applying California’s pattern instructions are
free to overlook these weaker elements and convict where
satisfied that the crime or special circumstance was
cumulatively proved beyond a reasonable doubt.
California had no legitimate reason to delete this
constitutionally required instruction. When Maine amended
its homicide statute to relieve it “of its due process burden to
prove every element of the crime beyond a reasonable
doubt,” this Court held that “a State cannot manipulate its
way out of Winship.” Jones v. United States, 526 U.S. at 243
The deliberation element was susceptible to reasonable
doubt because petitioner testified at length that he blacked
out due to emotional trauma. App. 2a-3a, 6a, 14a-15a. The
asportation/substantial distance element was susceptible to
reasonable doubt because petitioner forced Scott to move a
short distance back to the hallway where he first
encountered petitioner. App. 2a, 9a-10a.
7
28
(citing Mullaney v. Wilbur, 421 U.S. 684, 692-96 (1975)).
California “manipulate[d] its way out of Winship” by
creating what should be an intolerable risk of misleading
jurors to convict on a diluted burden of proof rather than
Winship’s more stringent standard. In re Winship, 397 U.S.
at 364 (“It is critical that the moral force of the criminal law
not be diluted by a standard of proof that leaves people in
doubt whether innocent men are being condemned”).
4.
The instructions mislead jurors into
shortcutting the deliberative process
by failing to consider each element of
the crime before reaching a verdict
Along with the above, Winship’s “each element”
requirement necessarily implies that, rather than simply
vote on the outcome, deliberating jurors should consider and
decide whether each element of a charge is proved beyond a
reasonable doubt. But when the California Judicial Council,
the body overseeing California’s pattern jury instructions,
deleted this requirement, it subverted this procedural
safeguard. Cf. Speiser v. Randall, 357 U.S. 513, 520-21
(1958) (holding that the state “must provide procedures
29
which are adequate to safeguard against infringement of
constitutionally protected rights” and “the procedures by
which the facts of the case are determined assume an
importance fully as great as the validity of the substantive
rule of law to be applied”).
This is best illustrated by the Judicial Council’s own
rationale when it added this requirement to California’s civil
instructions. The Judicial Council recognized that the
absence of an “each element” requirement where general
verdicts are used created “a danger that the jury will
shortcut the deliberative process of carefully looking at each
element of each claim or defense and simply vote” on the
outcome. CACI 5022 (Directions for Use) (2022). To obviate
that danger, the Judicial Council added this requirement to
its civil instructions to ensure jurors would approach their
task as if “questions on each element of each claim or
defense had to be answered.”8 Ibid.
The Judicial Council stated that this instruction
“lessen[s] the possibility that the ’paradox of shifting
majorities’ will happen,” which occurs with non-unanimous
8
30
The Judicial Council excised the “each element”
requirement from its pattern criminal instructions, asserting
“the reference to the elements is not legally necessary.”9 App.
124a-125a. Still, its reasoning confirms that the “each
element” requirement preserves an essential procedural
safeguard for criminal defendants, even while refusing to
extend it to them.
An “each element” instruction thus at a minimum
informs jurors that they should engage in more thorough
deliberations by considering and deciding each element of
the state’s case before reaching a verdict. In Ramos v.
Louisiana, 140 S. Ct. 1390, 1401 (2020), this Court
recognized that “more thorough deliberations” was a benefit
of
unanimous
juries.
It
seems
that
more
thorough
verdicts. CACI 5022. This shows that the “each element”
requirement provides another procedural safeguard to civil
juries. But it does not change the fact that, without that
requirement, there is a danger that jurors will fail to
separately consider each element of the claim.
Judicial Council of California, Task Force on Criminal
Jury Instructions, Report Summary, 4, 10 (July 13, 2006)
https://www.courts.ca.gov/documents/082506item2.pdf (last
accessed July 2, 2022).
9
31
deliberations is not just a benefit flowing from Winship, but
a requirement of it.
III. This Issue Is Vitally Important Because
California Holds More Criminal Jury Trials Than
Any Other U.S. Jurisdiction And Its Defective
Instructions Are Given In Virtually All Those
Trials
A.
The defective instructions affect thousands
of felony defendants tried by jury every
year
Though California is the lone outlier that fails to even
substantially comply with Winship, this case merits review
because California holds thousands of felony jury trials every
year, more than any other state and about double all federal
district courts combined. For example, according to official
reports, in pre-pandemic fiscal year 2019, all federal district
courts held 1,689 felony jury trials10 while California held
3,221 felony jury trials, as well as 2,030 misdemeanor jury
U.S. District Courts, Criminal Judicial Facts and
Figures, tbl. 5.4 (Sept. 30, 2021) https://www.uscourts.gov/
sites/default/files/data_tables/jff_5.4_0930.2021.pdf,
https://www.uscourts.gov/statistics/table/54/judicial-factsand-figures/2021/09/30 (last accessed July 2, 2022).
10
32
trials.11 App. 121a-123a.
Because
California
gives
these
constitutionally
defective instructions in virtually all those trials, the issue is
vital to the thousands of California defendants who put their
fate in the hands of juries every year.
B.
California will continue giving these
defective instructions unless this Court
grants review
There is little chance that California authorities will
fix these instructions on their own. As already shown, the
California Supreme Court has repeatedly held to its preWinship view that defendants are “not entitled” to an
instruction “that the People must prove every element of the
offense beyond a reasonable doubt.” Ochoa, 26 Cal.4th at 444
n.13. The court has also repeatedly declined to review the
current CALCRIM version of the instructions, most recently
when it denied petitioner’s request.
Judicial Council of California, 2021 Court Statistics
Report, 87 https://www.courts.ca.gov/documents/2021-CourtStatistics-Report.pdf (last accessed July 2, 2022).
11
33
California’s lower appellate courts also uniformly find
no error. Some, despite recognizing this is a federal
constitutional issue, have declared it frivolous. See, e.g.,
People v. Henning, 178 Cal. App. 4th 388, 406 & n.3 (2009)
(“The time has come for appellate attorneys to take this
frivolous contention off their menus,” adding that “taxpayers
will not have to pay [court-appointed] appellate counsel for
having made this argument”).
IV.
This Is A Suitable Vehicle
This case presents a clean legal question asking
whether California’s pattern criminal jury instructions
violate Winship and progeny. The relevant instructions
given at petitioner’s trial tracked CALCRIM instructions
given to all California criminal juries, thus this Court’s
ruling here would conclusively resolve the statewide
problem.
The question presented needs no further development
in state court because those courts have spoken. Further, the
issue involves a straightforward application of this Court’s
34
principles to the instructions’ text.
Since petitioner admitted to the shootings, most
historical facts were undisputed, also facilitating resolution
of the legal issue.
The issue is also outcome determinative. Given that
jurors assess guilt holistically, they were more likely to
misapply California’s holistic instructions where, as here,
the most emotionally compelling elements were conclusively
established while elements he contested and that jurors
might view as less consequential (such as asportation) were
far more
amenable to
reasonable
doubt. California’s
instructions allowed jurors to overlook this and convict
petitioner of the greatest charges based on a holistic
assessment of them. See Simon, supra, 71 U. Chi. L. Rev. at
585 n.283.
Federal constitutional rights should not vary by
geography. But because California courts have never
meaningfully addressed this issue, these constitutionally
defective instructions leave thousands of defendants who put
35
their fate in the hands of juries vulnerable to wrongful
convictions, longer sentences, and truncated deliberations.
Even if this Court does not ultimately find the instructions
unconstitutional, these people are at the very least entitled
to have this issue fairly resolved under the law.
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: July 6, 2022
Respectfully submitted
MARK YANIS
2151 Pacific Avenue, No. B101
Costa Mesa, CA 92627
(949) 769-4872
markyanis@gmail.com
Counsel of Record for Petitioner
36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.