Respondents Brief — Sandoval v. California

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No. 92-9049 i |

V pynioe Of THE GN

In the eet = -~- ; ;

SUPREME COURT OF THE UNITED STATES

October Term, 1993

Alfred Arthur Sandoval, Petitioner,

State of California, Respondent.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

RESPONDENT'S BRIEF ON THE MERITS

*DANIEL E. LUNGREN

Attorney General of California

GEORGE WILLIAMSON

Chief Assistant Attorney General

CAROL WENDELIN POLLACK

Senior Assistant Attorney General

SUSAN LEE FRIERSON

Deputy Attorney General

SHARLENE A. HONNAKA

Deputy Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

SHARON WOODEN RICHARD

Deputy Attorney General

300 South Spring Street

Los Angeles, ornia 90013

Telephone: (213) 897-2382

Attorneys for Respondent

*Counsel of Record

|BEST AVAILABLE COPY

ON S

Did California’s pattern jury instruction on

reasonable doubt deprive petitioner of due process and

a fair jury trial by inviting his jury to base its verdict on

improper “moral” considerations rather than on an

evidentiary evaluation?

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

California’s Standard Jury Instruction on

Reasonable Doubt Comports with the

Constitutional Burden of Proof in

Criminal Cases

A. Introduction

B. CALJIC 2.90 is Constitutional

General analytical approach:

The instruction must be viewed

in its entirety, not in out-of-

context fragments

CALJIC 2.90 adopts no "plainly"

distorting standard of proof

a. Moral Certainty

b. Moral Evidence

c. Not A Mere Possible

Doubt

II. Any Invalidation of the California

Instruction Should Apply Only

Prospectively 38

CONCLUSION 46

APPENDIX App. 1 - App. 15

TABLE OF AUTHORITIES

Cases

Addington v. Texas,

441 U.S. 418 (1979)

Allman v. State,

571 So. 2d 244 (Miss. 1990)

Apodaca v. Oregon,

406 U.S. 404 (1972)

Bieghler v. State,

481 N.E.2d 78 (Ind. 1985)

Bowen v. State,

715 P.2d 1093 (Okla. Crim. App. 1%84)

Boyde v. California,

494 U.S. 370 (1990)

Bradford v. State,

412 S.E.2d 534 (Ga. 1992)

Cage v. Louisiana,

498 U.S. 39 (1990)

Canton v. Harris,

489 US. 378 ( 1989)

City of Minot v. Rubbelke,

456 N.W.2d 511 (N.D. 1990)

7, 17, 18

6, 10

24, 27

Commonwealth v. Banks,

311 A.2d 576 (Pa. 1973)

Commonwealth v. Beldotti,

567 N.E.2d 1219 (Mass. 1991)

Commonwealth v. Dinkins,

615 N.E.2d 570 (Mass. 1993)

Commonwealth v. Webster,

59 Mass. (5 Cush.) 295 (1850)

Cool v. United States,

409 U.S. 100 (1972)

Cupp v. Naughten,

414 U.S. 141 (1973)

Dowling v. United States,

493 US. 342 (1990)

Egantoff v. State,

208 So. 2d 843 (Fla. App. 1968)

Ellis v. State,

356 S.W.2d 426 (Ark. 1962)

Estelle v. McGuire,

112 S. Ct. 475 (1991)

Ex Parte Adkins,

600 So. 2d 1067 (Ala. 1992)

6, 7, 9, 12

Ex parte McWilliams,

1993 Ala. LEXIS 316 at *29

(Mar. 19, 1993)

Gaskins v. McKellar,

111 S.Ct. 2277 (1991)

Griffith v. Kentucky,

479 US. 314 (1987)

Hardin v. State,

355 S.W.2d 105 (Tenn. 1962)

Hatheway v. Secretary of Army,

641 F.2d 1376 (9th Cir. 1981)

Hicks v. State,

425 S.E.2d 877 (Ga. 1993)

Hockenbury v. Commonwealth,

565 S.W.2d 448 (Ky. 1978)

Holland v. United States,

348 U.S. 121 (1954)

Hopt v. Utah,

120 U.S. 430 (1887)

Illinois v. Krull,

480 U.S. 340 (1987)

In re Winship,

397 U.S. 358 (1970)

10, 13

39, 40

6, 7, 9, 32

6, 21, 23, 31, 32

41, 42

5, 9, 18

Jackson v. Virginia,

443 US. 307 (1979) 18, 36

Lanigan v. Maloney,

853 F.2d 40 (1st Cir. 1988) 15, 21-23, 26, 35

Lee v. State,

813 P.2d 1010 (Nev. 1991) 24

Linkletter v. Walker,

381 U.S. 618 (1965) 46

Marshall v. State,

528 S.W.2d 823 (Tenn. Crim. App. 1975) 24

Miles v. United States,

103 U.S. 304 (1881) 23

Monk v. Zelez,

901 F.2d 885 (10th Cir. 1990) 14

Momissey v. Brewer,

408 U.S. 471 (1972) 42

People of Terntory of Guam v. Yang,

800 F.2d 945 (9th Cir. 1986) 24, 26

People v. Brigham,

599 P.2d 100 (Cal. 1979) 21, 38

People v. Hewlett,

519 N.Y.S.2d 555 (App. Div. 1987) 25

People v. Jennings,

807 P.2d 1009 (Cal. 1991)

People v. Palumbo,

555 P.2d 521 (Colo. 1976)

People v. Rawlins,

569 N.Y.S.2d 635 (App. Div. 1991)

People v. Simmons,

95 N.E.2d 477 (Ill. 1950)

People v. Turner,

298 N.W.2d 848 (Mich. App. 1980)

Perez v. Irwin,

963 F.2d 499 (2d Cir. 1992)

Rivett v. State,

578 P.2d 946 (Alaska 1978)

Roberts v. State,

620 P.2d 425 (Okla. Crim. App. 1980)

State v. Bernal,

330 N.W.2d 219 (Wis. App. 1983)

State v. Brewer,

197 N.W.2d 409 (S.D. 1972)

State v. Bult,

351 N.W.2d 731 (S.D. 1984)

Vil

13, 24

State v. Bush,

569 P.2d 349 (Haw. 1977)

State v. Butler,

543 A.2d 270 (Conn. 1988)

State v. Cage,

554 So. 2d 39 (La. 1989)

State v. Caruolo,

524 A.2d 575 (R.1. 1987)

State v. Castrejon,

856 P.2d 616 (Or. 1993)

State v. Chavama,

1993 Ariz. App. LEXIS 165

(Aug. 19, 1993)

State v. Donovan,

419 A.2d 1102 (N.H. 1980)

State v. Duzan,

1993 Ariz. App. LEXIS 58 at "19

(Apr. 13, 1993)

State v. Finnegan,

237 N.W.2d 459 (lowa 1976)

State v. Flores,

566 P.2d 1281 (Wash.App. 1977)

State v. Franklin,

163 N.W.2d 437 (lowa 1968)

vill

State v. Harris,

481 P.2d 504 (Ariz. 1971)

State v. Johnson,

774 P.2d 1141 (Utah 1989)

State v. Lane,

244 A.2d 108 (N.J. 1968)

State v. Manning,

409 S.E.2d 372 (S.C. 1991)

State v. Morley,

474 N.W.2d 660 (Neb. 1991)

State v. Olkon,

299 N.W.2d 89 (Minn. 1980)

State v. Pratt,

853 P.2d 827 (Or. 1993)

State v. Rhoades,

822 P.2d 960 (Idaho 1991)

State v. Schmeig,

322 N.W.2d 759 (Minn. 1982)

State v. Seneff,

435 N.E.2d 680 (Ohio App. 1980)

State v. Tanzymore,

340 P.2d 178 (Wash. 1959)

13, 24

State v. Udstuen,

345 N.W.2d 766 (Minn. 1984)

State v. Varela,

1993 Ariz. App. LEXIS 226 at *20

(Oct. 5, 1993)

State v. Watson,

240 S.E.2d 440 (N.C. 1978)

State v. Wilkerson,

291 A.2d 8 (N.J. 1972)

State v. Wilkins,

523 P.2d 728 (Kan. 1974)

State v. Williams,

828 P.2d 1006 (Or. 1992)

Stewart v. State,

601 So.2d 491 (Ala. Crim. App. 1992)

Stovall v. Denno,

388 U.S. 293 (1967)

Sullivan v. Louisiana,

113 S. Ct. 2078 (1993)

Taylor v. Kentucky,

436 U.S. 478 (1978)

Teague v. Lane,

489 U.S. 288 (1989)

13, 25, 37

40, 42

12, 43

14, 17

39, 44

Uniiea States v. Byrd,

352 F.2d 570 (2d Cir. 1965)

United States v. Del Toro Soto,

676 F.2d 13 (1st Cir. 1982)

United States v. Drake,

673 F.2d 15 (1st Cir. 1982)

United States v. Indorato,

628 F.2d 711 (1st Cir. 1980)

United States v. Johnson,

457 U.S. 537 (1982)

United States v. Moss,

756 F.2d 329 (4th Cir. 1985)

United States v. Peltier,

422 U.S. 531 (1975)

United States v. Russell,

971 F.2d 1098 (4th Cir. 1992)

United States v. Smaldone,

485 F.2d 1333 (10th Cir. 1973)

Walker v. City of New York,

974 F.2d 293 (2d Cir. 1992)

Watson v. State,

521 So.2d 1290 (Miss. 1988)

41, 45

23, 27

Williams v. Florida,

399 U.S. 78 (1970)

Williams v. United States,

401 U.S. 646 (1971)

Wilson v. United States,

232 U.S. 563 (1914)

Young v. Anderson,

513 F.2d 969 (10th Cir. 1975)

Statutes

Cal. Penal Code § 1096

Cal. Penal Code § 1096a

Cal. Penal Code § 1259

Cal. Penal Code § 1382

Other Authorities

CALJIC 1.00

CALJIC 1.01

CALJIC 2.90

CALJIC 8.10

13, 16, 17, 33

to > Bae BF

4, 5, 7-11, 13-18, 21,

31-34, 37, 38, 42, 43

6 Abraham P. Ordover,

Cnminal Law Advocacy,

Argument to the Jury, (1993)

F. Lee Bailey & Henry B. Rothblatt,

Successful Trial Techniques for

Criminal Trials (2d ed. 1985)

Judicial Council of California,

1993 Annual Report, Volume II, p. 25

Oxford American Dictionary,

432 (1980 ed.)

Richard H. Fallon & Daniel J. Meltzer,

New Law, Non-Retroactivity,

and Constitutional Remedies,

104 Harv. L. Rev. 1731 (1991)

Standard College Dictionary,

Sidney I. Landau et al. eds.,

Funk & Wagnalls (1973)

STATEMENT OF THE CASE

On October 14, 1984, petitioner shot and killed both

Gilbert Martinez and Anthony Aceves during a gang-

related fight in Los Angeles. Petitioner also attempted

to kill Manuel Torres during the gang fight. Several

eyewitnesses saw petitioner kil] his unarmed victims.

(Rep.’s Tr. 2354-2650.) Petitioner’s theory of defense at

trial was that he had killed in self-defense. (Rep.’s Tr.

4369-70, 4404.)

Seventeen days later, on October 31, petitioner shot

and killed Ray and Marlene Wells in their home,

because they had given police information concerning the

location of the car petitioner had used on the night of

the Martinez and Aceves murders. Petitioner telephoned

Benjamin Verduzco after the murders and told him that

he had killed the Wellses because they had "snitched” to

the police about his car. (Rep.’s Tr. 3264-97.) As to

these crimes, petitioner at trial presented an alibi

defense. (Rep.’s Tr. 4569, 4958-66, 5031-54.)

A jury convicted petitioner of four counts of first

degree murder and one count of attempted murder.

(Clerk’s Tr. 1495-96, 1608.) The jury also found that

petitioner had committed multiple murders, rendering

him subject to the death penalty. Cal. Penal Code

§ 190.2. After the penalty phase of the trial, the jury

found death to be the appropriate punishment for

petitioner’s murder of Marlene Wells, and life

imprisonment without possibility of parole to be the

appropriate punishment for his murders of Gilbert

Martinez, Anthony Aceves, and Raymond Wells.

(Clerk’s Tr. 1733.)

The California Supreme Court affirmed the judgment

and penalty in its entirety.

S YO G

In California, state statutes set forth the

prosecution’s burden of proving a criminal defendant

guilty beyond a reasonable doubt, define “reasonable

doubt," and specifically allow state courts to instruct on

reasonable doubt in the statutory language. In accord

with the statutes, the standardized set of pattern jury

instructions, almost invariably employed in California

criminal trials, includes an instruction on reasonable

doubt in that same statutory language.

Petitioner Sandoval, relying primarily upon this

Court’s decision in Cage v. Louisiana, 498 U.S. 39 (1990),

now claims that this standardized jury instruction on

reasonable doubt deprived him of the fair trial

guaranteed by the Due Process Clause. To prevail in

this claim, however, he must show a reasonable likelihood

that his jury interpreted the instruction in a way that

lightened the prosecution’s burden of proving guilt

beyond a reasonable doubt. Estelle v. McGuire, 112 S.

Ct. 475, 482 & n.4 (1991).

California’s reasonable doubt instruction differs

dramatically from the one this Court held

unconstitutional in Cage. The infirm instruction in Cage

directly redefined "reasonable doubt" - as “actual

substantial doubt," and "grave uncertainty" -- in ways that

plainly increased the level of doubt that should trigger

an acquittz'. Cage, 498 U.S. at 41. The California

instruction, in contrast, nowhere re-quantifies the degree

of acquittal-triggering doubt in any way that "plainly"

suggests a higher degree of doubt than simple

“reasonable” doubt.

The California instruction’s references to the terms

"moral evidence," "moral certainty," and "mere possible

doubt," the main targets of petitioner’s criticisms, do not

Operate in a way that makes it reasonably likely a juror

would apply an erroneous standard for "proof beyond a

reasonable doubt." The instruction first merely

acknowledges the truism that the prosecution, engaged in

an enterprise that always must admit the potential effect

of human fallibility, is not required to prove the

defendant’s guilt to an absolute certainty beyond all

possible or imaginary doubt. Then it emphasizes the

solemnity of the juror’s decision to find a criminal

defendant guilty and the heightened degree of subjective

certainty required to sustain a verdict of guilt. In doing

so, the instruction promotes -- and, more important, does

not undermine -- the constitutional goal of “impress[ing]

on the trier of fact the necessity of reaching a subjective

state of certitude of the facts in issue.” Jn re Winship,

397 U.S. 358, 364 (1970).

Petitioner’s own criticism of these terms is a failure.

He improperly removes and isolates words and phrases

out of their proper context in the instructions. And he

implausibly ascribes to them meanings inconsistent with

their contextual meanings. Finally, petitioner ignores

other standard instructions that render the risks he

discerns in the reasonable-doubt instruction especially

improbable.

: Even if this Court were to hold the California

instruction unconstitutional, such a holding should apply

prospectively only. This Court should recognize, given

the uniqueness of this case, an exception to the normal

rule of retroactivity in non-final cases. Griffith v.

Kentucky, 479 U.S. 314 (1987).

ARGUMENT

I. California’s Standard Jury Instruction on

Reasonable Doubt Comports with the Constitutional

Burden of Proof in Criminal Cases.

A. Introduction.

Since 1927 in California, state statutes (a) have set

forth the prosecution’s burden of proving a criminal

defendant guilty beyond a reasonable doubt, (b) have

amplified the concept of "reasonable doubt," and (c)

specifically have allowed state courts to instruct on

reasonable doubt in the statutory language. Cal. Penal

Code §§ 1096, 1096a. The statutory description of

reasonable doubt finds its roots in a well-known 1850

case decided by the Supreme Judicial Court of

Massachusetts. Commonwealth v. Webster, 59 Mass. (5

Cush.) 295, 320 (1850). In accord with the statutes, the

standardized set of pattern jury instructions almost

invariably employed in California criminal trials includes

an instruction, CALJIC 2.90,’ that describes reasonable

doubt in that same statutory language.

The judge in petitioner’s trial, therefore, instructed

the jury about the prosecution’s burden of proving guilt

beyond a reasonable doubt in the language of CALJIC

2.90:

1. The Committee on Standard Jury Instructions, Criminal, of

the Superior Court of Los Angeles County, California, California

Jury Instructions Crimina!, (Phillip H. Richards ed., 4th ed. 1979)

(hereinafter CALJIC). Where excerpts of CALJIC instructions are

quoted in this brief with portions italicized, the emphasis has been

added by respondent.

A defendant in a criminal action is presumed

to be innocent until the contrary is proved, and

in case of a reasonable doubt whether his guilt

is satisfactorily shown, he is entitled to a verdict

of not guilty. This presumption places upon the

State the burden of proving him guilty beyond a

reasonable doubt.

Reasonable doubt is defined as follows: It is

not a mere possible doubt; because everything

relating to human affairs, and depending on

moral evidence, is open to some possible or

imaginary doubt. It is that state of the case

which, after the entire comparison and

consideration of all the evidence, leaves the

minds of the jurors in that condition that they

cannot say they feel an abiding conviction, to a

moral certainty, of the truth of the charge.

(J.A. 49.)

This instruction states correctly that the prosecution

bears the burden of proving the defendant guilty "beyond

a reasonable doubt." Jn re Winship, 397 U.S. 358, 364

(1970). In fact, it employs the phrase "reasonable doubt"

three separate times. And other standard instructions,

given to the jury in petitioner’s case, repeat that standard

many more times. (J.A. 49-50, 56-57, 63.)

Petitioner never objected to CALJIC 2.90 at trial or

sought modification of it. That is not surprising, given

the benefits to the defense that trial lawyers discern in

the instruction. See infra pp. 26-31. Perhaps recognizing

those benefits, petitioner’s trial lawyer repeatedly

employed the challenged language of the instruction in

his arguments to the jury. (J.A. 79, 84-86; see infra note

9.) It was not until] the supplemental briefing stage of

the state appeal -- two years after this Court’s decision

in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) -

that petitioner voiced any dissatisfaction with this

traditional instruction.

Nevertheless, petitioner now claims that this

standardized jury instruction on reasonable doubt,

notwithstanding its roots in tradition, deprived him of the

fundamentally fair trial guaranteed by the Due Process

Clause. Indeed, he does so notwithstanding his

concession that, at least until some point in the past,

"the crucial" challenged portions of the instruction carried

meaning “consistent with the then-existing and with

today’s understanding of proof beyond a reasonable

doubt." (Pet’r’s Br. 5; see id. 34.)

This Court, however, has “defined the category of

infractions that violate "fundamental fairness" very

narrowly.” Dowling v. United States, 493 U.S. 342, 352

(1990). “Beyond the specific guarantees enumerated in

the Bill of Rights, the Due Process Clause has limited

operation." Jd. Because this Court remains mindful of

these restrictions in reviewing claims of unconstitutional

jury instructions, Estelle v. McGuire, 112 S. Ct. 475, 482

(1991), petitioner’s success in this case requires him to

meet a heavy burden. It would not be enough for him

to show that the challenged instruction is unhelpful or

subject to valid criticism, see Hopt v. Utah, 120 US. 430,

440-41 (1887), or that it is confusing on the reasonable-

doubt standard, see Holland v. United States, 348 U.S.

121, 140 (1954), or that it is undesirable or disfavored,

or even that it is universally condemned, Cupp v.

Naughten, 414 U.S. 141, 146 (1973). Instead, he must

show a reasonable likelihood that his jury interpreted the

instruction in a way that lightened the prosecution’s

burden of proving guilt beyond a reasonable doubt.

McGuire, 112 S. Ct. at 482 & n.4; see Holland, 348 U.S.

at 140.

B. CALJIC 2.90 is Constitutional.

1. General analytical approach: The instruction must

be viewed in its entirety, not in out-of-context

fragments.

As the focus of an attack intended to demonstrate

a reasonable likelihood that his jury misinterpreted the

instruction to dilute the standard of proof, petitioner

cites the references in CALJIC 2.90 to "moral evidence"

and "moral certainty," and the reference to reasonable

doubt as something other than "mere possible" or

"imaginary" doubt. His critique, however, is misplaced

in a constitutional analysis. Instead of trying to

demonstrate unconstitutionality in the meaning imparted

by the entirety of the instruction, with ali of the

challenged language viewed in full context, see Boyde v.

Calijornia, 494 U.S. 370, 380-81 (1990); Naughten, 414

U.S. at 146-47, petitioner concentrates myopically on

individual words divorced from phrases and on abstract

phrases divorced from the relevant sentences.

Petitioner’s jury was instructed "not to single out any

certain sentence or any individual point or instruction

and ignore the others," but instead to consider "all the

instructions as a whole and . . . to regard each in light of

all the others." CALJIC 1.01; J.A. 39. Yet petitioner

stubbornly proceeds to dissect a trio of phrases -- "moral

evidence," "moral certainty," and "some possible or

imaginary doubt" -- in sterile isolation. He concludes

from this lifeless autopsy that these three phrases invite

the jurors (1) to rely on extra-evidentiary sources, (2) to

render a mere moral judgment about the defendant and

his conduct, and (3) to do so under a watered-down

“standard of proof prohibiting acquittal unless innocence

appears “probable.” But he never deals with the phrases

in the context of the entire active instruction - the

organic whole — and it is the entire functioning

instruction rather than mere disembodied components of

it that petitioner must try to defeat in this case.

In the actual instruction, these phrases operate to

convey ideas quite different from those petitioner

ascribes to them in abstract isolation. After informing

the jury of the presumption of the defendant’s innocence,

CALJIC 2.90 functions as a whole to state the

prosecution’s burden of proof as "beyond a reasonable

doubt," to impart some helpful but non-controversial

observations about reasonable doubt, and to emphasize

the high level of subjective certainty required to

overcome reasonable doubt. Viewed in full context, the

instruction virtually self-defines "moral evidence," not as

having anything to do with the defendant’s or the jurors’

morality, but as the potentially fallible kind of courtroom

evidence with which jurors unavoidably must reckon in

determining which retrospective version of the events at

issue is true. And, by distinguishing reasonable doubt

from “mere possible" or "imaginary" doubt, the

instruction in no way implies that a defendant's

innocence must be probable in order to require acquittal.

The instruction merely signals that not every imaginable

doubt jurors might conjure will necessarily amount to a

reasonable doubt.

The California instruction then emphasizes the high

standard of proof in criminal cases by likening

reasonable doubt to "that state of the case which, after

the entire comparison and consideration of all the

evidence, leaves the minds of the jurors in that condition

that they cannot say they feel an abiding conviction, to

a moral] certainty, of the truth of the charge." The

instruction therefore endorses no source for the jury’s

verdict other than "the case" and "the evidence"; and,

indeed, a separate standard instruction requires the jury

to determine the facts “from the evidence" and "not from

any other source." CALJIC 1.01; J.A. 38. It poses no

question of the defendant’s morality to be resolved, but

only the question of "the truth of the charge." And it

provides no standard of proof other than "beyond a

reasonable doubt." In fact, "reasonable doubt" appears

as the standard three times in the challenged instruction

and numerous other times in the surrounding

instructions, so it is not likely the jurors were unmindful

of it as the core concept guiding their deliberations.

A proper analysis of the California instruction in its

entirety and in context with other instructions — rather

than when broken apart into unrecognizable fragments -

will show that the instruction comports with the

Constitution’s goal of assuring that jurors reach a

"subjective state of certitude" that guilt has been proved

beyond a reasonable doubt. Jn re Winship, 397 U.S. 358,

364 (1970). Even more to the point, proper analysis of

the instruction will refute petitioner’s claim that there is

a "reasonable likelihood" the jurors in his case

interpreted CALJIC 2.90 to dilute the constitutional

standard of proof applicable to criminal cases. McGuire,

112 S. Ct. at 482 & n.4; Holland, 348 US. at 140.

2. CALJIC 2.90 adopts no "plainly" distorting standard

of proof.

Petitioner’s constitutional attack on CALJIC 2.90

relies for its foundation upon this Court’s opinion in

Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam).

There, this Court struck down Louisiana’s reasonable

doubt instruction as unconstitutional. | California’s

reasonable doubt’ imstruction, however, differs

dramatically from the one invalidated in Cage.

Most important, the California instruction avoids the

serious error of employing terms that are themselves

dangerous and distorting as direct analogues or

equivalents of "reasonable doubt." The Louisiana

instruction fell into that mistake, for it allowed the

particularly dangerous terms "substantial doubt" and

"grave uncertainty" to operate as direct substitutes for

"reasonable doubt." This Court’s condemnation of those

descriptions was crucial to its decision in Cage: "[i}t is

plain to us that the words ‘substantial’ and ‘grave,’ as

they are commonly understood, suggest a higher degree

of doubt than is required for acquittal under the

reasonable doubt standard." 498 U.S. at 41. The

California instruction, in contrast, does not distort the

definition of reasonable doubt by defining it as "actual

substantial doubt," or "grave uncertainty," or as any other

similar kind of doubt. Indeed, the California instruction

does not even depart from the traditional expression of

the core concept of "reasonable doubt" as "doubt" that is

anything other than "reasonable." The plainly dangerous

choice of the terms "substantial" and "grave" in the

Louisiana instruction, and the absence of any such

terminology in CALJIC 2.90, fundamentally distinguishes

this case from Cage. See Gaskins v. McKellar, 111 S. Ct.

2277, 2277 (1991) (Stevens, J., concurring) (order

denying petition for certiorari).

Petitioner, of course, claims to detect similar

dangerous distortion in the phrases "moral certainty,"

"moral evidence," and "not a mere possible doubt" found

in CALJIC 2.90. But he cannot substantiate his

assertions. He acknowledges that, at least up to some

point in the past, California’s instruction and its use of

these terms comported fully with the standard of proof

beyond a reasonable doubt. (Pet’r’s Br. 5.) His

argument that the isolated phrases have undergone some

gradual] transformation in the meantime, however, is

generally beside the point. Instead, when those phrases

are used even today in the context of CALJIC 2.90, the

entire instruction continues to pass constitutional muster.

a. Moral Certainty.

1. Moral Certainty and Evidentiary Certainty: The

reference to "moral certainty" in CALJIC 2.90

does not suggest that the jurors are to

determine guilt upon any basis other than the

evidence in the case.

It is true, of course, that this Court in Cage

questioned the Louisiana instruction’s statement -- that

“(wjhat is required is not an absolute or mathematical

certainty, but a moral certainty” -- and pointed out that

the statement referred to "moral certainty" rather than to

“evidentiary certainty." 498 U.S. at 40-41. But, as noted

above, the gravamen of the Cage holding was the

distorting effect worked by the "actual substantial doubt"

and "grave uncertainty” language. To the extent this

Court questioned the "moral certainty" language in Cage,

it did so in light of the obvious deleterious impact the

other condemned reformulations of reasonable doubt

exerted on it.

The charge . . . equated a reasonable doubt with

a "grave uncertainty" and an "actual substantial

doubt,” and stated that what was required was a

"moral certainty” that the defendant was guilty.

It is plain to us that the words "substantial" and

"grave," as they are commonly understood,

suggest a higher degree of doubt than is

required for acquittal under the reasonable

doubt standard. When those statements are then

considered with the reference to "moral certainty,"

rather than evidentiary certainty, it becomes

clear that a reasonable juror could have

interpreted [?/] the instruction to allow a finding

of guilt based on a degree of proof below that

required by the Due Process Clause.

498 U.S. at 41 (emphasis added). California’s

instruction, as noted above, does not repeat those

erroneous formulations of reasonable doubt as "grave

uncertainty" and "actual substantial doubt." The absence

2. Since the decision in Cage, this Court has expressly

disapproved the standard of review for jury instructions used in

Cage and determined that the proper constitutional inquiry is

whether there is a “reasonable likelihood" the defendant’s jury has

misinterpreted the instruction in a way incompatible with the

Constitution, rather than whether a reasonable juror “could have

interpreted" the instruction in the constitutionally condemned way.

McGuire, 112 S.Ct. ut 482 n.4. Given this new standard of review,

it is an Open question whether even the Louisiana instruction at

issue in Cage, or an instruction equivalent to it, still would be

deemed unconstitutional today. Sullivan v. Louisiana, 113 S. Cr

2078, 2081 n.1 (1993).

of those other condemned descriptions of reasonable

doubt brings the California instruction, notwithstanding

its employment of the term "moral certainty," outside the

ambit of Cage’s condemnation of the Louisiana

instruction as unconstitutional. See Ex Parte Adkins, 600

So. 2d 1067, 1071 (Ala. 1992); People v. Jennings, 807

P.2d 1009, 1041-42 (Cal. 1991); State v. Rhoades, 822

P.2d 960, 979-80 (Idaho 1991); Commonwealth v. Beldotti,

567 N.E.2d 1219, 1225 (Mass. 1991); State v. Williams,

828 P.2d 1006, 1020-21 (Or. 1992); see also Gaskins v.

McKellar, 111 S.Ct. 2277, 2277 (1991) (Stevens, J.,

concurring) (order denying petition for certiorari).

In addition, the phrase "moral certainty" in the

California instruction, unlike in the Louisiana charge, is

explicitly linked to the jurors’ evaluation of the evidence

in the case. Reasonable doubt thus is equated in

CALJIC 2.90 with "that state of the case which, after the

entire comparison and consideration of all the evidence,

leaves the minds of the jurors in that condition that they

cannot say they fee] an abiding conviction, to a moral

certainty, of the truth of the charge." A second standard

California instruction, which the jury in petitioner’s trial

was told to regard "in light of all the others," expressly

confirmed that the jury was to "determine the facts of

the case from the evidence received in the trial and not

from any other source." CALJIC 1.00, 1.01; J.A. 38, 39.

The reference to "moral certainty" rather than to

"evidentiary certainty" in the California instruction, then,

does not pose a risk comparable to that in the Louisiana

instruction.

Respondent acknowledges that some courts have

criticized use of the term "moral certainty" in similar

contexts on grounds, for example, that the phrase has

been subjected to "mixed reviews" and "could be

interpreted to mean that the certainty is based on

feeling, ie, moral conviction, rather than facts." Those

views were expressed in the First Circuit opinion in

United States v. Indorato, 628 F.2d 711, 721 & n.8 (1st

Cir. 1980), an opinion cited by this Court in Cage» But

mere "mixed reviews" and mere _ possible

misinterpretations do not establish the unconstitutional

"reasonable likelihood" that petitioner’s jury misapplied

the instructions in his case in a way that diminished the

prosecution’s burden of proof. Even in IJndorato the

court found no “legal or constitutional error." 628 F.2d

at 721.

Moreover, in United States v. Drake, 673 F.2d 15, 21

n.6 (1st Cir. 1982), the same Circuit tempered its

criticism of the "moral certainty" language. Drake noted

the term was "less objectionable" (1) when it is phrased,

as it is in CALJIC 2.90, as a "negative" description of the

inability of jurors to attain certainty, rather than in a

3. The other cases cited by this Court in Cage lend petitioner

scant support in his attack on California's instruction. In Monk v.

Zelez, 901 F.2d 885, 889-90 (10th Cir. 1990), the appellate court

concluded, not that "moral certainty” language was objectionable, but

only that it was not enough to cure other errors in the instruction

at issue. On the validity of the "moral certainty” language itself, the

court characterized it as the strongest language in the charge that

might have served to correct the diluting effect of the other errors.

United States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985), took the

position that judges should not try to define reasonable doubt to

the jury. In United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1965),

the jury was instructed that it could acquit only if they harbored a

"doubt to a moral certainty." That is the opposite of the California

instruction. In Taylor v. Kentucky, 436 U.S. 478, 488 (1978), this

Court criticized, not “moral certainty" language, but an instruction

that referred to reasonable doubt as "substantial" and “real,” and that

did so in the absence of any presumption-of-innocence instruction.

"positive" way as a direct definition of "proof beyond a

reasonable doubt" and (2) when the context makes clear,

like it also does in CALJIC 2.90, that the jury must

make its decision “after careful and impartial

consideration of the evidence." Id. at 20, 21 n.6.

Finally, a later First Circuit opinion in Lanigan v.

Maloney, 853 F.2d 40, 43 (1st Cir. 1988) applauded the

Massachusetts Webster instruction, the model for

California’s, finding it "hard... to imagine a charge

more reflective of the solemn and rigorous standard

intended." Lanigan, indeed, criticized an attempted

departure from the “moral certainty" language that

watered the phrase down to reflect only "a degree of

moral certainty." Unlike the phrase "moral certainty”

itself, Lanigan recognized, the departure from the phrase

‘failed to convey the critical point that, while absolute

certainty is unnecessary, a belief in guilt at least

approaching certainty was required." 853 F.2d at 47 &

n.4 (emphasis in original). Although acknowledging the

Circuit’s prior criticisms of the unadorned phrase "moral

certainty,” Lanigan noted that the instruction there at

issue -- like the one at issue in this case — linked the

phrase “with other terms emphasizing the high degree of

proof needed." Jd. at n. 4. Thus, as in this case, the

instruction in Lanigan referred not merely to moral

certainty, but to “an abiding conviction to a moral

certainty.” Jd.

Petitioner cites dictionary definitions and examples of

contemporary usage of "moral certainty" in newspapers

and magazines to try to show that, as used nowadays, the

phrase commonly conveys the strength of beliefs founded

upon sources other than empirical evidence. (Pet’r’s Br.

25-30.) The pertinent question for this source-of-

certainty argument, however, is not what a dictionary

might say "moral certainty" means in the abstract and in

isolation. Nor is the question what people mean by

"moral certainty” when they use the phrase in informa!

situations where their certitude happens not to be based

upon a formal courtroom evidentiary demonstration.

The real question is what jurors in a criminal case

would understand by an instruction setting out the

prosecution’s burden of proof as "beyond a reasonable

doubt” and offering them a way of thinking about proof

beyond a reasonable doubt in the language of CALJIC

2.90. Phrased in the way most relevant to this appeal,

the crucial question is, again, whether it is reasonably

likely that petitioner’s jury - despite being instructed

specifically of the necessity of having an abiding

conviction to a moral certainty of "the truth of the

charge” after full consideration of “all the evidence" —

nevertheless felt authorized somehow to base their

factual conclusions on anything but the factual evidence

adduced at trial.

Petitioner’s dictionary and usage examples do not

materially aid in answering that question. They in no

way suggest that the phrase "moral certainty" becomes

incomprehensible when explicitly premised upon a

foundation of objective evidence. One who is morally

certain that heroin use among children is bad, or that

cannibalism is wrong, logically and naturally may also be

equally "morally certain" about the existence of certain

facts. The California instruction asks jurors to be certain

of evidentiary facts in that way, ie., to have an abiding

conviction to a moral certainty of the truth of the

charges based upon all the evidence at tial.

Even if CALJIC 2.90 by itself risked the unlikely

misinterpretations suggested by petitioner, that would not

be the end of the inquiry. Instead, a challenged

instruction may not be judged in artificial isolation, but

must be considered in the context of the instructions as

a whole. Boyde v. California, 494 U.S. 370, 380-81

(1990). In this case, the jury received other standard

instructions, besides the reasonable-doubt charge

contained in CALJIC 2.90, that further insured against

the risk of extra-evidentiary verdicts that petitioner

perceives. As already noted, petitioner’s jury was

specifically instructed "to determine the facts of the case

from the evidence received in the trial and not from any

other source." CALJIC 1.00; J.A. 38. Further, the jury

was instructed to accord the defendant a presumption of

innocence. CALJIC 2.90; J.A. 49. As this Court

recognized in Taylor v. Kentucky, 436 U.S. 478, 485-86

(1978), the "purging" effect of such an instruction helps

safeguard the accused’s right to be judged solely on the

evidence at trial. In addition, the jury was instructed

not to be influenced by "pity" or "prejudice," or by

"sentiment, conjecture, sympathy, passion, prejudice,

public opinion or public feeling." CALJIC 1.00; J.A. 39.

And they were told to consider all these instructions “as

a whole and . . . to regard each in the light of all the

others." CALJIC 1.01; J.A. 39.

2. Moral Certainty as a Level of Certainty: The

use of moral certainty in the instruction does

not diminish the standard of proof beyond a

reasonable doubt.

Petitioner also makes the unusual claim that CALJIC

2.90’s reference to "moral certainty” is invalid because it

diminishes the high degree of certainty required to

convict under the beyond-a-reasonable-doubt standard.

(Pet’r’s Br. 17-21.) Again, in pressing this attack,

petitioner seeks to treat the phrase “moral certainty” in

isolation, divorced from its context in the challenged

California instruction. And, again, he cannot be allowed

to do so. Boyde, 494 U.S. at 380-81; Naughten, 414 U.S.

at 146-47. CALJIC 2.90 provides the context:

Reasonable doubt is defined as follows: It is

not a mere possible doubt.... Itis that state

of the case which, after the entire comparson and

consideration of all the evidence, leaves the minds

of the jurors in the condition that they cannot say

they feel an abiding conviction, to a moral

certainty, of the truth of the charge. .

This instruction is fully consonant with the policy

that underlies the reasonable doubt rule itself. As

reflected in the holding of this Court in Jn re Winship,

397 U.S. 358 (1970), which first recognized the

constitutional status of the beyond-a-reasonable-doubt

standard, proof of criminal convictions requires 4a

standard that “impresses on the trier of fact the

necessity of reaching a subjective state of certitude of the

facts in issue.” Id. at 364 (emphasis added). Such a

standard must surpass any lesser standard that is

“susceptible to the misinterpretation that it calls on the

trier of fact merely to perform an abstract weighing of

the evidence in order to determine which side has

produced the greater quantum, without regard to us

effect in convincing his mind of the truth of the proposition

asserted.” Id. at 367-68 (emphasis added); see Addington

v. Texas, 441 US. 418, 423 (1979) (the function of

standards of proof under the Due Process Clause is to

instruct the factfinder concerning the degree of confidence

our society thinks he should have in the correctness of his

factual conclusions); see also Jackson v. Virginia, 443 US.

307, 330 (1979) (Stevens, J., concurring) (reasonable

doubt standard sets burden of proof "regarding the

subjective state of mind that persons charged with the

responsibility of evaluating the credibility of evidence

must possess before they find the defendant guilty . . . .")

(emphasis added). The California instruction emphasizes -

the solemnity of the juror’s decision to find a criminal

defendant guilty and the especially high degree of

subjective certainty required to sustain a verdict of guilt.

It is hard to imagine, first, how any instruction

requiring a criminal conviction to be founded only upon

the jurors’ "certainty" — regardless of what kind of

category of certainty - can plausibly be said to ease the

prosecution’s burden of proving guilt beyond "reasonable

doubt." The word "certainty," unaccompanied by any

quantifying adjective that might work to minimize the

required level] of certainty, can hardly present an

unacceptable likelihood that jurors will not only

misunderstand it but misunderstand it in a way that

reduces the prosecution’s burden.

Nor is there anything in the phrase "moral certainty"

that would suggest a reduction, rather than an

intensification, of the certainty requisite under the

instruction or of the prosecution’s duty to prove guilt

beyond reasonable doubt. One who is morally certain

of the "truth of the charge” is not Jess certain of it than

one who is simply described as certain. The word

"moral" in this context does not operate to minimize any

level of certainty. Quite differently, it describes an

especially strong kind of subjective certainty that reflects

a deeply important personal decision. It emphasizes the

solemnity of the decision a juror makes when he

determines a defendant’s criminal culpability. In doing

this, the instruction serves the purpose of the reasonable

doubt rule and does not detract from it.

This Court itself recently used the very phrase

"moral certainty," in a commonsense and natural way

that illustrates the extraordinarily high degree of certainty

use of the phrase conveys. In Canton v. Harris, 489 US.

378, 390 n10 (1989), this Court stated: "[C]ity

policymakers know to a moral certainty that their police

officers will be required to arrest fleeing felons." See

also Walker v. City of New York, 974 F.2d 293, 297, 300

(2d Cir. 1992) (district attorneys know to a “moral

certainty” that their trial prosecutors sometimes will find

themselves in possession of exculpatory Brady evidence).

No criminal defense lawyer would object to an

instruction that the prosecution was bound to prove guilt

to an elevated degree of certainty comparable to that

ascribed to the city policymakers in Harris. As reflected

in this Court’s own use of the phrase in that case, moral

certainty connotes the highest degree of certainty.

Petitioner, as noted above, cites dictionary

definitions*/ and examples of contemporary usage of the

phrase "moral certainty" from newspapers and magazines.

(Pet’r’s Br. 25-30.) Through these citations, of course,

he means to support his separate assertion that people

4. One cannot rely purely on dictionaries, of course, to provide

definitive statements of the meanings jurors ascribe to words and

phrases employed in jury instructions. “Candor suggests that, to a

degree, efforts to analyze what lay jurors understand concerning the

differences among [various standards of proof] or the nuances of a

judge’s instructions on the law may well be largely an academic

exercise ...." Addington v. Texas, 441 U.S. 418, 424 (1979). But

it is nevertheless noteworthy that "moral" and “moral certainty” have

been defined in dictionaries as indicating heightened rather than

diminished certainty. “Moral certainty” itself has been defined as

“probability so great that no reasonable doubt is possible.” Oxford

American Dictionary 432 (1980 ed.). (Pet’r's Br. 25 n. 18.)

often use the phrase to convey beliefs founded on

sources other than empirical evidence. See supra p. 15.

But the striking, albeit unintended, effect of petitioner’s

citations, in the context of this novel level-of-certainty

argument, is to confirm that people commonly use the

phrase "moral certainty" to denote their thorough and

utter conviction that a given proposition is true. Still less

do those citations imply that people would interpret

"moral certainty" as suggesting an inferior level of

certainty when they are asked to achieve "an abiding

conviction, to a moral certainty," before returning a

verdict of criminal guilt in solemn judicial proceedings.

In any event, petitioner’s fixation on the isolated

phrase "moral certainty" ignores the larger picture. The

California instruction requires something more than the

“moral certainty" treated in isolation by petitioner.

CALJIC 2.90 affords the jurors guidance on reasonable

doubt by likening it to an inability to attain "an abiding

conviction, to a moral certainty, of the truth of the

charge." “Abiding” means "settled and fixed," Hopt v.

Utah, 120 USS. at 439, and "strongly" and "deeply" held,

People v. Brigham, 599 P.2d 100, 104 (Cal. 1979). And

surely there is nothing in the word "conviction" that

connotes anything but the highest degree of certainty.

“Abiding conviction" language thus helps assure that, by

emphasizing the high degree of the juror’s conviction and

certainty in "the truth of the charge," the instruction is

conforming with the policy behind the reasonable-doubt -

rule rather than undermining it. Lanigan v. Maloney, 853

F.2d 40, 43, 47 n. 4 (1st Cir. 1988); Ex parte Adkins, 600

So. 2d 1067, 1071 (Ala. 1992).

Not even petitioner claims that “abiding conviction"

language tends to suggest a standard incompatible with

the constitutional one. Even he grudgingly acknowledges

that phrase at least informs the jurors they must be "very

sure." (Pet’r’s Br. 17.) So, instead, he tries to avoid the

phrase’s pro-defense effect by reading it out of the text

of the instruction entirely. In petitioner’s strange view of

the text, "abiding conviction’ does not have any

independent effect in conveying the standard of proof.

[I]t simply indicates that the trier of fact must be very

sure that the standard of proof, otherwise defined [as

moral certainty], has been met." (Pet’r’s Br. 17.) But

it is useless for petitioner to deny the literal wording and

structure of the instruction. The instruction explicitly

equates the absence of reasonable doubt, not just with

"moral certainty," but with "an abiding conviction, to a

moral certainty, of the truth of the charge" based on all

the evidence. The instruction does not simply require, as

petitioner says, that the jurors be "very sure” that some

variable standard of proof has been met. It requires

them to be deeply and lastingly sure (abiding conviction)

of the "truth of the charge," and requires that this

“conviction” itself attain the highest level of certitude

(moral certainty). The linking of "abiding conviction"

and "moral certainty” properly emphasizes the high

degree of proof needed to convict. Lanigan, 853 F.2d

at 47 n.4. It implies that the determination of proof

beyond a reasonable doubt requires-an intensified and

heightened degree of subjective certainty. The California

reasonable doubt instruction is in accord with the

mandate of Winship, for it reflects the need for

subjective certainty.

Outside the particular context of the Louisiana

instruction disapproved in Cage, this Court has upheld,

against a claim that it erroneously defined reasonable

doubt, an instruction containing the statement that

“{p]roof beyond a reasonable doubt is such as will

produce an abiding conviction in the mind to a moral

certainty that the fact exists that is claimed to exist, so that

you fee] certain that it exists.” Miles v. United States,

103 U.S. 304, 309, 312 (1881) (emphasis added); see also

Wilson v. United States, 232 US. 563, 570 (1914). The

similarity with the California instruction in this regard —

"an abiding conviction, to a moral certainty, of the truth

of the charge" — is obvious.2/

And, in the modern era, many courts continue to

approve the use of "moral certainty" in jury instructions

as descriptive of the subjective state of mind requisite to

a jury determination of the defendant’s guilt "beyond a

reasonable doubt." Federal courts have done so. E.g.,

Lanigan v. Maloney, 853 F.2d at 47 n.4 (1st Cir.);

Hatheway v. Secretary of Army, 641 F.2d 1376, 1384 (9th

Cir. 1981); Young v. Anderson, 513 F.2d 969, 972 (10th

Cir. 1975); United States vy. Smaldone, 485 F.2d 1333,

1348 (10th Cir. 1973); see also United States v. Russell,

971 F.2d 1098, 1109 (4th Cir. 1992) (suggesting "moral

certainty” is either redundant or implies a level of proof

even greater than beyond a reasonable doubt). And

State courts in California and at least seventeen other

jurisdictions elsewhere have done so. E.g., Ex parte

5. This Court in Hopt v. Utah, 120 U.S. at 440, indicated that

equating “beyond a reasonable doubt" with “reasonable and moral

certainty” was redundant. California’s language is, of course, quite

different, particularly in avoiding any Suggestion that only

"reasonable" certainty is required to convict. Even if California’s

instruction were deemed redundant, however, it could hardly be

Said to be unconstitutional for such a trivial reason. As this Court

determined in Hopt, an instruction containing the “moral certainty”

phrase, as well as others challenged by the defendant, might be

“open to criticism" but could not have misled the jury in an

unconstitutional way. 120 U.S. at 440-41.

McWilliams, 1993 Ala. LEXIS 316 at *29-32 (Mar. 19,

1993); Stewart v. State, 601 So. 2d 491, 505 (Ala. Crim.

App. 1992); Ellis v. State, 356 S.W.2d 426, 429 (Ark.

1962); People v. Jennings, 807 P.2d 1009, 1041-42 (Cal.

1991); Egantoff v. State, 208 So. 2d 843, 845-846 (Fla.

App. 1968); Hicks v. State, 425 S.E.2d 877, 878 (Ga.

1993); Bradford v. State, 412 S.E.2d 534, 536 (Ga. 1992);

State v. Bush, 569 P.2d 349, 350-51 (Haw. 1977); State v.

Rhoades, 822 P.2d 960, 979-80 (Idaho 1991) (adopting

California’s reasonable doubt instruction as the only

appropriate one); State v. Franklin, 163 N.W.2d 437, 441

(Iowa 1968); State v. Wilkins, 523 P.2d 728, 735 (Kan.

1974); Commonwealth v. Dinkins, 615 N.E.2d 570, 575

(Mass. 1993); People v. Turner, 298 N.W.2d 848, 852

(Mich. App. 1980); State v. Morley, 474 N.W.2d 660, 669-

70 (Neb. 1991); Lee v. State, 813 P.2d 1010, 1011 (Nev.

1991); City of Minot v. Rubbelke, 456 N.W.2d 511, 514-

15 (N.D. 1990); Commonwealth v. Banks, 311 A.2d 576,

581 (Pa. 1973); State v. Caruolo, 524 A.2d 575, 583 (R.1.

1987); State v. Brewer, 197 N.W.2d 409, 411 (S.D. 1972);

Hardin v. State, 355 S.W.2d 105, 108 (Tenn. 1962);

Marshall v. State, 528 S.W.2d 823, 825 (Tenn. Crim. App.

1975); see also People of Territory of Guam v. Yang, 800

F.2d 945 (9th Cir. 1986) (territorial statute importing

California’s reasonable doubt instruction); Rivett v. State,

578 P.2d 946, 949-950 (Alaska 1978); State v. Donovan,

419 A.2d 1102, 1105-1106 (N.H. 1980); State v. Wilkerson,

291 A2d 8, 11-12 (N.J. 1972); People v. Rawlins, 569

N.Y.S.2d 635, 638 (App. Div. 1991) (circumstantial

evidence instruction); Bowen v. State, 715 P.2d 1093,

1097-1098 (Okla. Crim. App. 1984) (same); State v.

Flores, 566 P.2d 1281, 1282-1283 (Wash. App. 1977).£/

Courts that criticize "moral certainty” language also

recognize that the reference, notwithstanding its alleged

deficiencies, does not diminish the prosecution’s burden

of proof and thus does not render the instruction

unconstitutional. Among the cases petitioner cites in his

brief on the "moral certainty” question, none invalidates

a reasonable doubt instruction on constitutional

grounds.’ (Pet’r’s Br. 20-21.) Moreover, to the extent

6. Even in jurisdictions that for whatever reason no longer

refer to "moral certainty" in their instructions, courts in the modern

era have recognized the validity of the formulation or discerned in

the phrase a special additional guarantee protective of the

reasonable-doubt standard. E.g., State v. Cage, 554 So. 2d 39 (La.

1989) (reversed by this Court on other grounds, as argued above, in

Cage v. Louisiana); State v. Williams, 828 P.2d 1006, 1018-21 (Or.

1992) (reference to “moral certainty” not invalid under Cage, and

may convey the idea to the jury that absolute certainty is required

Or mitigate the impact of other wording that might have lessened

the state’s burden of proof); State v. Seneff, 435 N.E.2d 680, 684-

685 (Ohio App. 1980).

7. In Perez v. Irwin, 963 F.2d 499 (2d Cir. 1992), "moral

certainty” was used in an Opposite way from its use in California.

In Perez, the instructions equated "reasonable doubt" with "doubt to

a moral certainty” rather than with proof to a moral certainty. Jd

at 501. “By using the expression in this fashion the trial court

placed the burden of the moral Certainty requirement on the

defendant rather than on the prosecution." Jd at 502. In United

States v. Del Toro Soto, 676 F.2d 13, 17 (1st Cir. 1982), the federal

court found no constitutional error in “moral certainty” language.

In State v. Manning, 409 S.E.2d 372, 374-75 (S.C. 1991), the

court found the reference to "moral certainty” might allow the jurors

to base a guilty verdict on Subjective feeling rather than the

evidence, but found the criticism insufficient to give rise to a

constitutional violation. In People v. Hewlett, 519 N.Y.S.24 555, 557

(App. Div. 1987), the instruction contained the glaring error of

petitioner’s cited cases criticize "moral certainty" language

at all, they do not do so on petitioner’s unique theory

that the phrase signals a diminution of the constitutional

standard of proof.

Contrary to petitioner’s position, criminal defendants

often argue that it is the omission of the phrase "moral

certainty” in a reasonable doubt instruction, rather than

its inclusion, that renders the instruction erroneous. E.g.,

People v. Palumbo, 555 P.2d 521, 525 (Colo. 1976); State

v. Butler, 543 A.2d 270, 278 (Conn. 1988); People v.

Simmons, 95 N.E.2d 477, 481 (Ill. 1950); Bieghler v. State,

481 N.E.2d 78, 95 (Ind. 1985); State v. Finnegan, 237

N.W.2d 459, 460 (Iowa 1976); Hockenbury v.

Commonwealth, 565 S.W.2d 448, 451 (Ky. 1978); State v.

Udstuen, 345 N.W.2d 766, 768 (Minn. 1984); State v.

Schmeig, 322 N.W.2d 759, 760 (Minn. 1982); State v.

Olkon, 299 N.W.2d 89, 105 (Minn. 1980); Allman v.

State, 571 So. 2d 244, 252 (Miss. 1990); Watson v. State,

defining the required degree of certainty not simply as moral

certainty, but as a mere “reasonable degree of certainty."

Petitioner’s citation to Lanigan v. Maloney, 853 F.2d 40, is

obviously misplaced. The opinion in that case, if anything,

applauded the "moral certainty” language and condemned instead the

significant nullification of it -- "a degree of moral certainty —

reflected in the instructions in that case. Jd at 47 n4. Also odd

is petitioner’s reliance upon People of Territory of Guam v. Yang, 800

F.2d 945 (9th Cir. 1986). There, the majority opinion allowed a

departure from Guam’s legislatively-mandated California-style

instruction without expressing any opinion about the validity of the

California instruction at all, id. at 947; and the dissenting opinion,

quoted in petitioner’s brief, took the position that it was the

departure from the statutorily-adopted California-type instruction,

not adherence to it, that amounted to error, id at 950-51 (Ferguson,

J., dissenting). Further, the dissent never indicated that the Ninth

Circuit was “inclined” to reject the “moral certainty” language.

521 So. 2d 1290, 1295-1296 (Miss. 1988); State v. Lane,

244 A2d 108, 109 (N.J. 1968); State v. Watson, 240

S.E.2d 440, 446 (N.C. 1978); City of Minot v. Rubbelke,

456 N.W.2d 511, 513 (N.D. 1990); State v. Castrejon, 856

P.2d 616, 618 (Or. 1993); State v. Pratt, 853 P.2d 827,

836 (Or. 1993); State v. Bult, 351 N.W.2d 731, 736-37

(S.D. 1984); State v. Johnson, 774 P.2d 1141, 1146 (Utah

1989) (defendant argued for reasonable doubt instruction

virtually identical to that of California); State v.

Tanzymore, 340 P.2d 178, 179 (Wash. 1959); see also,

Russell, 971 F.2d at 1109; State v. Haris, 481 P.2d 504,

508 (Ariz. 1971); Roberts v. State, 620 P.2d 425 & nl

(Okla. Crim. App. 1980); Commonwealth v. Banks, 311

A.2d 576, 581 (Pa. 1973); State v. Beal, 330 N.W.2d

219, 220-221 (Wis. App. 1983). Defense manuals, also,

in apparent recognition that "moral certainty" language

protects the defense, suggest ways for trial lawyers to

emphasize that language to the defendant’s advantage.*/

8. For example, two well-known defense lawyers recommend

that their colleagues at the defense bar argue to juries along these

lines:

"Reasonable doubt is a real doubt -- real as

distinguished from imaginary -- which an honest juror will

have after considering all the circumstances of the case.

You as a juror, must be able to say, ‘T am morally certain

of the accused's guilt.’

"Moral certainty, however, does not necessarily mean

absolute certainty. In our daily affairs we constantly act on

probabilities and we seldom act on moral certainty. But it

is elementary that you can never convict simply because you

think the accused is probably guilty. You must Say that he

is really guilty, and of that you are morally certain."

F. Lee Bailey & Henry B. Rothbiatt, Successful Trial Techniques for

Criminal Trials, § 20:6 at 471 (2d ed. 1985) (emphasis added).

Another defense manual offers as a standard the jury argument

In fact, in this case, petitioner’s trial counsel

repeatedly made beneficial use of the very instructions

petitioner now challenges in this appeal. The defense,

arguably, manipulated the instruction to suggest that it

imposed a burden of proof on the prosecution even

higher than "beyond a reasonable doubt." Defense

counsel repeatedly told the jurors to make a decision

that not only satisfied their consciences, but one that

they could live with for the rest of their lives?’ As

of defense attorney Leonard Weinglass in a case called People v.

Skyhorse:

"That is the attitude you should have in the

presumption of innocence. You would be of a mind set

that resists this accusation, that has disbelief in it. That

insists that proof, solid proof, quality proof be given you

that would enable you to have a moral conviction to an

abiding certainty of guilt.

*.. . [I]f at the end of this case you have a suspicion

of guilt or you think there’s a possibility of guilt, or even

a probability of guilt, under the law that the court will

give you, you cannot vote for a guilty verdict unless you

have an abiding conviction to a moral certainty of guilt,

which transcends and is much beyond the question of

possibility, probability, a maybe, a perhaps, and speculation."

6 Abraham P. Ordover, Criminal Law Advocacy, Argument to the

Jury, 1 5:08 at 5-99, 5-101 (1993) (emphasis added).

9. During the voir dire of the jury, the defense attorneys

repeatedly discussed the prosecution’s high burden of proof:

If, for example, . . . . [yJou just have a gut feeling

that maybe he is involved. Maybe he did it, but you

didn’t hear something to really convince you beyond a

reasonable doubt and to a moral certainty. Are you going

to let that gut feeling or that intuition take over or will

you require the rules of the court to be met?

(Rep.’s Tr. 2044; J.A. 29-30 (emphasis added).)

Now when I ask that, in other words, there i

. : .

ett proving a pepe -pchgeer ema deste one

certainty in each and i

(Rep.’s 7 2047; J.A. 31 (emphasis — soy

Ow would you have any difficulty in

prosecutor to meet the burden of proof as prescribed by

law? In other words, to prove the truth of these charges

beyond a reasonable doubt and to a moral certainty?

(Rep.'s Tr. 2056; J.A. 31 (emphasis added).)

If, after he rested and we rested, you were not

convinced beyond a reasonable doubt and to a moral

met” in your heart, would you be able to vote not

(Rep.’s = 2057; J.A. 32 (emphasis added).)

Ow when we talk about the presumpti

ption of

me that’s a legal presumption that everyone,

uding you and everyone else in this room has that you

are legally presumed to be innocent until the contrary is

proven beyond a reasonable doubt and to a moral

certainty.

— Tr. 2207; J.A. 32-33 (emphasis added).)

euuioner also emphasized the “moral certain

the California reasonable doubt instruction during » Mp am at “9

The prosecution has the burden of proof. And again 7

you have to look at this burden of proof and what is

reasonable doubt. It's not a mere possible doubt.

wae — The moon could be made out

ep ay guess. | guess not. We have been there.

What we're talking about is an abiding convicti

' viction to a

Se Ee SORE ae Gap I am not sure

: t means exactly. | guess that you kind of know

when you see it. Do I have a doubt? Is that doubt

reasonable? That is the question you have to ask.

(Rep.’s Tr. 5385-86; J.A. 79 (emphasis added).)

Do I have a doubt and is that doubt reasonable?

Going down the line to each and every charge and each

and every element of each and every charge. Do I have

an abiding conviction? This is what you ask yourself.

noted by now-Chief Justice Rehnquist in his dissenting

opinion in Cool v. United States, 409 U.S. 100, 107

Reasonable doubt is the state of the case which after

the entire comparison and consideration of all the

evidence leaves your minds in the condition that you

cannot say you feel an abiding conviction to a moral

certainty of the truth of the charge. An abiding conviction,

abide. To live with Abode. Comes from the word "house."

Abode. To live with You live in your house.

Do I have an abiding conviction to a moral certainty of

the truth of the charges? You have to think about when

you go in, and do | have a doubt and is the [sic}

reasonable, about what that means. Something that has

to Stay with you.

If you go in and vote on a conviction, let's say second

degree murder, manslaughter, the park charges October

14th and next week or next month or even next year, you

think you have been thinking about it on and off. You

Say, you know, | really do have a doubt. The more |

think about it, | have a doubt. Reasonable doubt. You

know, I have doubts about this case. Well, then it hasn't

lived with you. The strength of your conviction to a moral

certainty hasn't lived with you, an abiding conviction to a

moral certainty. That's what the standard is.

(Rep.’s Tr. 5392-93; J.A. 84 (emphasis added).)

If, after a consideration of all of the evidence, you have

a reasonable doubt that the defendant was present ai the

tume the crime was committed, he is entitled to an acquittal

Now something else that I think was touched upon by

[defense attorney] Seymour that it’s a decision when you say

beyond a reasonable doubt and to a moral certainty. That

means forever. That doesn't mean just today or the mood

you are in today. That means a decision that you are going

to live with forever. And it’s probably, if not the most

unportani decision you will ever make, certainly way up there

on the list

(Rep.’s Tr. 5539; J.A. 85-86 (emphasis added).)

(1972), “If the nuance of the instruction upon which

reversal is now based did not suggest itself to petitioner’s

trial counsel, it seems doubtful that it Suggested itself to

the jury either ...." Since petitioner’s trial counsel in

this case clearly recognized the pro-defendant benefit

afforded by the "moral certainty" language in the

California instruction, and used it to his advantage, it is

doubtful any improper anti-defendant nuance suggested

itself to the jury in this case.

b. Moral Evidence.

Petitioner next challenges the reference in CALJIC

2.90 to “moral evidence." (Pet’r’s Br. 30-31.) This

phrase, however, plays a relatively minor role in the

California instruction, nowhere operating as any

description or analogy for the concepts of reasonable

doubt or proof beyond a reasonable doubt themselves.

As is invariably true, the context of the phrase shows

how jurors likely understood it. Here, the instruction

States: "Reasonable doubt is . . . not a mere possible

doubt; because everything relating to human affairs, and

depending on moral evidence, is open to some possible or

umaginary doubt." In CALJIC 2.90, then, it is

immediately apparent that “moral evidence" does not

purport to describe in any way the jury’s possible degrees

of certainty or uncertainty about the defendant's guilt or

innocence at all. "M al evidence" simply describes the

kind of fallible evidence with which jurors are naturally

confronted, and the sentence in which it appears merely

States the virtual truism that proof of human events

carnes some inherent fallibility. See Hopt v. Utah, 120

U.S. at 441 ("the uncertainty that attends all human

evidence") 22 |

Petitioner nevertheless suggests that phrases like

"moral evidence” are anachronisms without meaning to

a modern jury. Even if this were true, it would not help

petitioner make out his due process claim; for, if the

phrase is meaningless, it could hardly be said that it is

likely to diminish the true burden of proof. See Holland,

348 U.S. at 140; Hopt, 120 US. at 441. But petitioner's

suggestion really is not true at all. The meaning of the

phrase "moral evidence," anachronism or not, becomes

readily discernable from its context in the very sentence

in which it appears. That sentence almost sclf-

consciously explains what it means by "moral evidence.

Petitioner also asserts that the references to "mora!

evidence,” and perhaps to “moral certainty," somehow

will be taken by the jurors as an invitation to find a

defendant guilty because of their personal views of the

morality of his conduct. (Pet'r’s Br. 30-31.) First,

however, petitioner again ignores totally the explanatory

context in which these challenged phrases appear in

CALJIC 2.90. As used in the instruction, the phrase

merely denotes the potential fallibility of perception-

limited and recollection-limited courtroom proof. It

therefore does not call the jury’s attention to any

particular kind of "evidence" distinct in any way from the

10. This meaning is generally consistent with dictionary

definitions. "Moral" has been defined, for example, as “[bjased on

a probability or on a general knowledge of human nature rather

than on objective evidence or clear demonstration.” Standard

College Dictionary (Sidney |. Landau et al. eds., Funk & Wagnalls

1973). But, as with the challenged instructions in general, the best

indicator of the meaning imparted to the jurors lies in the context

of the language of the instruction. Here, the context makes the

meaning discernable.

entirety of the evidence in the case4!/

Petitioner’s complaint that "moral evidence" might be

mistaken for "character evidence" is a non sequitur.

First, the complaint is not germane to the Question

Presented, which concerns the standard of proof, and not

the admissibility or proper uses of character evidence.

Second, even if it were interpreted to mean that, nothing

in the way the term is employed in CALJIC 2.90 would

Suggest that character evidence was being specially

recommended for the jury’s consideration, for the

instruction acknowledges the limitations of “moral

evidence" instead. Third, where evidence bearing on a

person’s character is actually received in a criminal case

- either to show the defendant’s character when it itself

is a material issue or to show circumstantially some other

material fact -- there is nothing wrong with the jury

considering such evidence in arriving at a verdict.

Besides, other standard instructions reinforced the

notion that the jurors were not to let their personal

views of the morality of petitioner’s conduct influence

their verdict. The jurors were instructed that their duty

was, instead, "to apply the rules of law that I state to

you to the facts as you determine them and in this way

to arrive at your verdict." CALJIC 1.00; J.A. 39. Those

11. Nor does “moral certainty” suggest any judgment of the

defendant's morality rather than his factual guilt. The instruction

does not relate to the defendant's conduct; instead, the phrase

clearly employs “moral” as a description of the kind of certainty the

juror must possess to convict. The California instruction requires

the juror to have an abiding conviction to a moral certainty “of the

truth of the charge," based on the evidence. The instruction in its

entirety therefore in no way implies, as petitioner indicates, that the

jurors instead need be “certain" in any way of the “moral” nature of

the defendant and his actions.

Se ee ,

rules of law included the judge’s instructions describing,

not moral and religious factors, but the legal elements of

the crimes charged against petitioner; and _ the

instructions expressly required the jurors to find those

elements to exist as a prerequisite to a guilty verdict.

CALJIC 8.10; JA. 50 ("In order to prove the

commission of the crime of murder, each of the

following elements must be proved... ."). Thus, when

the entire corpus of the instructions is properly viewed

as a whole, it cannot be said that it is reasonably likely

that petitioner’s jurors based their verdict on religious or

moral beliefs rather than upon the factual] evidence and

the applicable law.

In sum: "moral evidence” plays a minor and non-

controversial role in CALJIC 2.90; its meaning is self-

explanatory from the context in which it appears; it does

not threaten any misuse of character evidence; and, most

important, its function in the instruction is extremely

remote from describing the prosecution’s burden of proof

beyond a reasonable doubt. It is not "reasonably likely"

that the jurors misunderstood the term in any way that

would have lightened that burden of proof.

c. Not A Mere Possible Doubt.

Petitioner, last, attacks the following language from

CALJIC 2.90 as further destructive of a proper

understanding of the concept of proof beyond a

reasonable doubt: "Reasonable doubt. . . is not a mere

possible doubt; because everything relating to human

affairs, and depending on moral evidence, is open to

some possible or imaginary doubt." (Pet’r’s Br. 21-24.)

He claims that it overstates the level of doubt that

requires an acquittal to the point of requiring the jurors

to be satisfied that a defendant is probably innocent.

Under this instruction, he says, "the jury is all too likely

to understand the magnitude of a reasonable doubt

necessary to acquit as the functional equivalent of ‘an

actual substantial doubt’ or a ‘grave uncertainty.”

(Pet’r’s Br. 22, footnote omitted.)

At a threshold level, the challenged instruction’s

Capacity to mislead on the question of proof beyond a

reasonable doubt appears limited. The challenged

language does not purport to describe, as a direct

substitute or as an analogy or as a simile, either the

standard of proof or reasonable doubt itself. It functions

instead at a subordinate level: that of assisting in the

Statement of the obvious non-controversial truth that all

things relating to human affairs and subject to

retrospective courtroom proof are open to possible or

imaginary doubt. The challenged language thus

addresses itself primarily to a function different from

Stating the burden of proof.

At that level, moreover, the instruction functions

correctly. By first distinguishing reasonable doubt from

"mere possible" or "imaginary doubt," and also equating

“mere possible doubt" with "imaginary doubt," the

instruction in no way implies that a defendant’s

innocence must be probable in order to require acquittal.

The instruction does not say that doubt based upon a

possibility cannot be reasonable. Instead, it properly

signals that not every imaginable, remote, and speculative

doubt automatically constitutes reasonable doubt.

Lanigan v. Maloney, 853 F.2d 40, 43 (1st Cir. 1988).

Jurors, as far as respondent is aware, are not required

by the Constitution to acquit every time the defendant

offers a physically possible exculpatory version of the

material facts ~- eg, every time he offers an alibi or

every time the testimony of witnesses conflict. Instead,

the jurors must determine if the possibility of innocence

is such as to create in their minds a reasonable doubt of

guilt.

Completely demonstrable or objective certainty is not

required for proof beyond a reasonable doubt, and

reasonable people may differ about whether reasonable

doubt exists in a given case. See Jackson v. Virginia, 443

U.S. 307, 313, 326 (1979). The inability to adduce

absolute proof in matters subject to courtroom evidence

is the essence of the reasonable-doubt problem that

confronts every jury. It is because of the insistence that

jurors must be extraordinarily certain of guilt —

notwithstanding the human inability to prove criminal

guilt with mathematical certainty — that reasonable doubt

instructions may speak of "certainty" short of

mathematical certainty, or "certainty" in the face of

merely unreasonable doubt, without being subject to

criticism as internally inconsistent.

Petitioner’s claim that the jury might equate the

phrase "possible doubt" with an "actual substantial doubt"

or a "grave uncertainty" is without merit. The jury in

Cage was instructed that a reasonable doubt is not a

mere possible doubt. 498 U.S. at 40. However, this

Court did not find the "possible doubt" language in the

Cage instruction problematic, and this Court certainly did

not equate the "possible doubt" language with the terms

"actual substantial doubt" and "grave uncertainty."

Further, the California instruction (1) ensures that,

before returning a verdict of guilt, jurors must be

convinced beyond a reasonable doubt, and (2) illustrates

reasonable doubt as "that state of the case which, after

the entire comparison and consideration of all the

evidence, leaves the minds of the jurors in that condition

that they cannot say they feel an abiding conviction, to a

moral certainty, of the truth of the charge." It is not likely

that, even if the "mere possible doubt" and "imaginary

doubt" language were susceptible to the wooden

inierpretation petitioner constructs for it, the jurors in his

case felt they had attained that high degree of conviction

even though they actually doubted the defendant’s

guilt.42/

Petitioner at the beginning of his brief calls CALJIC

2.90 a "jurisprudential dinosaur." (Pet’r’s Br. 6.) It is

not Surprising, however, that petitioner would

mischaracterize the instruction in that way: he is like the

blindfolded man who cannot recognize an elephant when

restricted to touching separately its trunk, its tusks, and

its tail. Because he refuses to comprehend CALJIC 2.90

in its entirety, and in connection with surrounding

instructions, he cannot reliably characterize it any way at

12. Petitioner's reliance upon State v. Chavarria, 1

App. LEXIS 165 (Aug. 19, 1993) and State vy. Wullem, 628 Pe

1006, 1019 (Or. 1992) is misplaced. Neither case supports

petitioner's claim that the "possible doubt” language renders a

reasonable doubt instruction constitutionally defective. Moreover

Williams specifically found the jury could not reasonably have

construed the "possible doubt" language either to decrease the state’s

burden of proof or to allow the jury to base its decision on anything

other than the evidence. Williams, 828 P.2d at 1019. And it is not

Clear that Chavarria is persuasive authority even in its own

jurisdiction, for two other appellate panels in Arizona have declined

to follow its critique of the Arizona instruction. State v. Varela

1993 Ariz. App. LEXIS 226 at *20 (Oct. 5, 1993); State|v. Duzan,

1993 Ariz. App. LEXIS 58 at *19 (Apr. 13, 1993).

all.

His attempt to show the instruction is

unconstitutional, for that same reason, was doomed from

the start. None of petitioner’s criticisms of the three

challenged parases in CALJIC 2.90 makes sense when

those phrases are considered in the explanatory context

of the instruction. And none would make sense to

jurors properly instructed, like the jurors in petitioner’s

case, to consider the instructions as a whole in the

solemn context of a criminal trial. Petitioner has not

carried his burden of demonstrating that — whatever

deficiencies might inhere in the instruction — it is

reasonably likely the jurors in his case actually

misunderstood CALJIC 2.90 to allow a verdict of guilt

based on anything less than their subjective certainty that

the evidentiary proof established petitioner’s guilt beyond

a reasonable doubt. Instead, the instruction provides

appropriate guidance emphasizing the high degree of

certainty the Constitution requires to justify a criminal

conviction. California’s standard reasonable-doubt

instruction, therefore, cannot be condemned as

unconstitutional.

Il. Any Invalidation of the California Instruction

Should Apply Only Prospectively.

In California, CALJIC 2.90 is given to the jury in the

exact wording of the pattern instruction in virtually every

criminal case. See People v. Brigham, 599 P.2d 100, 104

(Cal. 1979) (warning that most instructions on reasonable

doubt that “step outside of well-established bounds” are

found to be erroneous). And, under California law, the

instruction may be challenged on appeal even absent an

objection at trial. Cal. Penal Code § 1259. In fact, all

six of California’s Court of Appeal districts have issued

orders deeming the issue in this case raised and rejected

in all pending appeals. (Appendix.¥2/ If a judgment is

reversed, then California Penal Code section 1382 would

require retrials within 60 days of the remittitur being

issued on appeals from superior court judgments, and

within 30 days on appeals from municipal court

judgments.

If the California reasonable doubt instruction is

found to violate due process in this case, it would be

appropriate for this Court to determine if this ruling

should be applied to this case and to other cases not yet

final on appeal. See Teague v. Lane, 489 U.S. 288, 300

(1989) (plurality opinion) (Part IV (A)) ("In our view,

‘the question whether a decision announcing a new rule

should be given prospective or retroactive effect should

be faced at the time of that decision”).

The current standard of retroactivity for non-final

cases was established in Griffith v. Kentucky, 479 USS.

314, 328 (1987): "[A] new rule for the conduct of

criminal prosecutions is to be applied retroactively to all

13. The Judicial Council of California's most recent Annual

Report on Judicial Statistics discloses that 7,250 notices of appeal

were filed in criminal cases from superior court judgments in fiscal

year 1991-92. Judicial Council of California, 1993 Annual Report,

Volume II, p. 25. This figure does not include appeals in juvenile

delinquency cases or misdemeanor appeals resolved in the appellate

depariment of state superior courts. The Report shows that a total

Of 154,617 superior court defendants had their criminal cases

resolved in fiscal year 1991-92. Id, p. 61. According to the Capital

Case Coordinator of the California Attorney General’s Office, there

now are at least 214 non-final capital cases where the challenged

instruction presumably was given.

Cases, state or federal, pending on direct review or not

yet final, with no exception for cases in which the new

rule constitutes a ‘clear break’ with the past."

The Griffith standard for non-final cases and the

Teague standard for final cases are this Court’s latest

pronouncements on genera] standards for retroactive

applications of new rules of criminal procedure. The

federal] Constitution itself neither prohibits nor requires

retroactive application of a new rule, see Griffith, 479

U.S. at 320, and for some twenty years prior to Griffith

and Teague, the three part analysis of Linkletter v.

Walker, 381 U.S. 618 (1965), and Stovall v. Denno, 388

US. 293 (1967), controlled retroactivity issues in criminal

cases. The Linkletter/Stovall standard applied to both

non-final and final cases; retroactivity was determined on

a case-by-case basis, depending on three factors: (1) the

purpose to be served by the new rule; (2) the extent of

reliance by law enforcement on the old rule; and (3) the

effect on the administration of justice if retroactive

application was allowed. Stovall, 388 U.S. at 300.

In 1982, a plurality of this Court concluded that the

Linkletter/Stovall analysis should be “rethought" and

adopted a new standard of retroactivity for Fourth

Amendment cases. United States v. Johnson, 457 US.

537, 548 (1982). In 1987, a majority of this Court

adopted the current Griffith standard for al] non-final

cases. 479 US. at 3284+!

14. The Griffith rule has not received universal approval. One

survey of retroactivity law concluded that Griffith is "too unbending"

when considered in a remedial framework. The authors suggest a

return to a Linklerter/Stovall analysis, to allow consideration of the

unpredictability of the new rule; the nature and purposes of the

rule; and the disruption of the administration of justice. Richard

Respondent realizes that Griffith was the product of

this Court’s long struggle to determine how to apply

retroactivity principles. And respondent recognizes that,

in adopting the Griffith rule, this Court intended to

promote judicial integrity and ensure equal treatment of

defendants in non-final cases by applying new decisions

to all such cases. However, based on the unique

circumstances of this case, respondent asks for an

exception to Griffith’s normal rule of retroactivity +2/

H. Fallon & Danie] J. Meltzer, New Law, Non-Retroactivity, and

Constitutional Remedies, 104 Harv. L. Rev. 1731, 1731-1833 (1991).

15. An apparent exception to the Griffith rule has been created

in Fourth Amendment exclusionary rule cases. Without mentioning

Griffith, the majority opinion in Jilinois v. Krull, 480 U.S. 340, 355

n.11 (1987), denied relief to the defendant even though, in his state

court appeal, a state statute authorizing warrantless administrative

Searches was found to be unconstitutional. Recognizing the

difference between the substantive Fourth Amendment right and

the remedy of suppression, see Krull, 480 U.S. at 368 (O’Connor, J.,

dissenting), this Court’s analysis nevertheless invoked considerations

reminiscent of the Linkletter/Stovall standard -- Le., the deterrent

purpose to be served by the new standards and the extent of

reasonable reliance by law enforcement authorities on the old

Standards. Prior to Johnson and Griffith, exclusionary rule cases

such as Krull were analyzed using the Linklerter/Stovall factors, with

the distinction between remedy and constitutional right factored in

the "purpose of the rule." See United States v. Peltier, 422 U.S. 531,

538 (1975) (discussing the focus of retroactivity cases on purposes

served by the exclusionary rule). The effect of Kruil was to deny the

defendant, and others who suffered from the State’s reasonable

reliance on the unconstitutional Statute, any benefit from the new

rule, even if their convictions were not final when it was announced.

Krvull’s apparent departure from Griffith is remarkable since Johnson,

a pre-Griffith case, rejected the Linkletter/Stovall Standard and held

that, for Fourth Amendment Cases, new decisons would be

applicable to all non-final cases Subject to the “clear break"

Any decision invalidating CALJIC 2.90 should apply only

to defendants whose juries are instructed after the

decision is announced, see generally Krull, 480 USS. at

342-361; Mormissey v. Brewer, 408 U.S. 471, 490 (1972),

or, at the most, only to petitioner and such defendants,

see Stovall, 388 U.S. at 301. a

Most important, if CALJIC 2.90 is unconstitutional,

the error would exist in virtually every California case,

for the identical instruction is expected to be given in

every case. Application of Griffith and Sullivan would

Overturn every criminal conviction in thousands of

non-final cases. The catastrophic effect on California’s

criminal justice system itself justifies an exception to

Griffith’s normal rule of retroactivity.

Further, petitioner concedes that at least until the

mid-nineteenth century, reasonable doubt was correctly

explained by using the terms "moral evidence" and

"moral certainty." (Pet’r’s Br. 5, 34.) Petitioner claims

that this correct usage became incorrect at some

unspecified time because the meaning of those phrases

"changed dramatically during the past 150 years ....

Id. at 5; see also id. at 37. Therefore, if this Court

condemns California’s use of those phrases today based

upon such gradual evolution of language usage, it would

be impossible to determine exactly when the phrases

somehow evolved from accurately describing reasonable

doubt into unconstitutionally altering the burden of

proof. Prospective application would not offend Griffith’s

concerns of judicia] integrity and equal treatment of

exception. See Krull, 480 U.S. at 368 (O'Connor, J., dissenting)

(finding the Court’s ruling “at right angles, if not directly at odds

with Griffith).

similarly situated defendants, for it is impossible to

determine which defendants, petitioner included, actually

suffered from constitutional error. In other words, in

terms like those used by this Court in Sullivan v.

Louisiana, it cannot be ascertained with confidence which

defendants over time actually have suffered a 'Vitiation"

of “all the jury’s findings." 113 S.Ct. at 2082. Any

invalidation of CALJIC 2.90 should apply only to

defendants whose juries are instructed after the decision

Or, at most, only to petitioner and such defendants.

Another consideration favoring an exception to the

Griffith rule is the historical development of this

instructional issue. Although this Court has declared the

reasonable doubt standard itself to be a necessary

component of due process, it has allowed widely

divergent views to develop among the states and federal!

circuits as to what and whether clarifying, explanatory or

defining instructions might be given on the concept,

without providing clear guidance toward achieving one

consistent position. California’s response was a statute

on reasonable doubt and a related pattern jury

instruction. California’s instruction has been operative

for decades with no indication by this Court that it was

constitutionally infirm, even though other jurisdictions

treated the issue differently. The state made a reasoned,

good faith attempt to explain a concept that, so far, has

resisted a single universally accepted definition and

ultimately might be found to Support more than one

constitutionally acceptable definition. This is an

especially compelling case because, by petitioner’s own

concession, the challenged phrases correctly defined

reasonable doubt in the past.

Moreover, if the challenged California instruction js

found unconstitutional, the question would remain as to

what language should be substituted to cure the infirmity.

In view of the nationwide divergence on the propriety of

such an instruction, a ruling that finds the instruction

unconstitutional would not solve the state’s problem in

determining what instruction would pass constitutional

muster. In the absence of clear guidance from this

Court on what kind of clarifying language would survive

constitutional challenge, California would be left to

attempt yet another explanation of reasonable doubt.

While it may be appropriate for this Court "to allow the

various States to serve as laboratories in which the issue

receives further study," Teague, 489 U.S. at 296, it would

be extremely unfair to exact from the state the

tremendous penalty of automatic reversals now and at

the same time force the state to assume the same risk as

it faces the problem of how to craft an appropriate

reasonable doubt instruction for.future cases. A narrow

exception to Griffith is therefore justified in this unique

situation.

Prospective application of this decision would not be

unduly unfair to California defendants with non-fina!

convictions, because the California instruction correctly

and expressly stated the general proposition that guilt

had to be established by proof beyond a reasonable

doubt. The challenged "moral certainty" language has

been used by California defendants, including petitioner,

to suggest an increase, not decrease, of the prosecution’s

burden, as discussed above. The petitioner’s lack of

objection at trial to the California instruction, coupled

with authorities previously cited which approved of the

challenged California instruction, strongly indicate that

the alleged infirmity was not so serious as to require, as

a matter of fundamental fairness, that all defendants with

non-final convictions receive the benefit of automatic

reversal] under this decision.

Finally, respondent recognizes that retroactive

application serves a purpose in overcoming an aspect of

a criminal trial which “substantially impairs its truth-

finding function and so raises serious questions about the

accuracy of guilty verdicts in past trials,’...." United

States v. Peltier, 422 U.S. at 535 (quoting Williams v.

United States, 401 U.S. 646, 653 (1971)). However, the

likelihood of an accurate conviction in this case and in

past Cases was not seriously diminished by the allegedly

erroneous instruction. Defense attorneys in California

have used the alleged infirmity in the "moral certainty”

language in a manner that helps, not hurts, their clients,

as previously demonstrated by citations to petitioner’s

jury voir dire and jury argument and by reference to

defense manuals. A California jury in a criminal case

consists of twelve members who are required to reach a

unanimous verdict, although the federal Constitution

does not require either that many jurors or unanimity.

See Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v.

Florida, 399 US. 78 (1970). Considering these

circumstances, the accuracy of guilty verdicts in this and

past California trials, even given the allegedly erroneous

instruction, is not so impugned as to demand

retrospective application of this decision.

CONCLUSION

CALJIC 2.90, both on its own and in combination

with other standard instructions, provided proper

guidance to petitioner’s jury on the issue of reasonable

doubt. It is constitutional, moreover, for it is not

reasonably likely that the jury interpreted it in derogation

of the proper standard of proof. Last, any holding that

CALJIC 2.90 is unconstitutional should be applied

prospectively only. The California Supreme Court’s

judgment, upholding the conviction and death sentence,

should be affirmed.

Respectfully submitted,

*DANIEL E. LUNGREN

Attorney General of California

GEORGE WILLIAMSON

Chief Assistant Attorney Genera!

CAROL WENDELIN POLLACK

Senior Assistant Attorney General

SUSAN LEE FRIERSON

Deputy Attorney General

SHARLENE A. HONNAKA

Deputy Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

SHARON WOODEN RICHARD

Deputy Attorney General

Attorneys for Respondent

*Counsel of Record

APPENDIX

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

MISC. ORDER 93-1

THE COURT:

IT IS HEREBY ORDERED that in every

criminal appeal pending before this court and not yet

final from a judgment following a jury verdict, appellant

shall be deemed to have challenged the constitutionality

of CALJIC No. 2.90 based on Sandoval v. California

certiorari granted September 28, 1993, _ USS. a

(Dock. No. 92-9049), and this court shall be deemed to

have rejected that challenge on the ground that, pursuant

to Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455, the court is bound by the California

Supreme Court’s resolution of the issue. (People v. Sims

(1993) 5 Cal.4th 405, 457; People v. Sandoval (1992) 4

Cal.4th 155, 186; People v. Noguera (1992) 4 Cal.4th

599, 633-634; People v. Johnson (1992) 3 Cal.4th 1183,

1234; People v. Jennings (1991) 53 Cal.3d 334, 385-386.)

App. 1

The purpose of this order is to ensure that

this issue will be preserved for review after rendition of

the decision in Sandoval v. California without the need

for appellants in pending appeals to raise the issue in

opening, reply or supplemental briefs or in petitions for

rehearing on an individual basis.

Dated NOV 01 1993

[s/

Carl W. Anderson

Administrative Presiding Justice

App. 2

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

SECOND APPELLATE DISTRICT

MISCELLANEOUS ORDER 11-9-93

THE COURT:

IT IS HEREBY ORDERED that in every

criminal appeal pending before this court from a

judgment following a jury verdict and not yet final,

appellant shall be deemed to have challenged the

constitutionality of CALJIC No. 2.90 (4th ed. 1979) as

in Sandoval v. California, certiorari granted September

28, 1993, US. (62 U.S.L. Week 3241, Dock. No.

92-9049).

In every such case, this court shall be deemed

to have rejected appellant’s challenge to CALJIC No.

2.90 on the ground that, pursuant to Auto Equity Sales,

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, the

court is bound by the California Supreme Court’s

resolution of the issue. (People v. Sims (1993) 5 Cal.4th

405, 457; People v. Sandoval (1992) 4 Cal.4th 155, 186;

People v. Noguera (1992) 4 Cal.4th 599, 633-634; People

v. Johnson (1992) 3 Cal.4th 1183, 1234; People v.

Jennings (1991) 53 Cal.3d 334, pp. 385-386.)

App. 3

The purpose of this order is to ensure that

this issue will be preserved for review after rendition of

the decision in Sandoval v. California, supra, without the

need for appellants in pending appeals to raise the issue

in opening, reply or supplemental briefs or in petitions

for rehearing on an individual basis.

Dated: November 9, 1993.

[s/

LILLIE, A.P.J.

App. 4

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

MiSC. ORDER 93-1

THE COURT:

IT IS HEREBY ORDERED that in every

criminal appeal from a judgment after jury verdict

pending before this court and not yet final, appellant

shall be deemed to have challenged the constitutionality

of CALJIC No. 2.90 (4th ed. 1979) based on Sandoval v.

California, certiorari granted September 28, 1993,

US. (62 U.S.L. Week 3241, 3259, Dock. No. 92-

9049); and the Attorney General shal] be deemed to

have argued that this court must reject appellant’s

challenge to CALJIC No. 2.90 for the following reasons:

(1) the decisions in People v. Jennings (1991) 53 Cal. 3d

334 and Auto Equity Sales, inc. v. Superior Court (1962)

57 Cal.2d 450; (2) the critical difference in wording

between CALJIC No. 2.90 and the Louisiana instruction

implicated in Cage v. Louisiana (1990) 498 U.S. 39; and

(3) the absence of any reasonable likelihood that a jury

would apply the CALJIC No. 2.90 instruction in a way

that would violate the federal Constitution (Boyde v.

California (1990) 494 U.S. 370); and this court shall be

deemed to have rejected the challenge on the ground

that it is bound by the California Supreme Court’s

resolution of the issue (Auto Equity Sales, Inc. v. Superior

Court, supra, 57 Cal.2d at p. 455; People v. Sims (1993)

App. 5

5 Cal.4th 405, 457; People v. Noguera (1992) 4 Cal.4th COURT OF APPEAL OF THE STATE OF CALIFORNIA

599, 633-634; People v. Sandoval (1992) 4 Cal.4th 155,

186; People v. Johnson (1992) 3 Cal.4th 1183, 1234; FOURTH APPELLATE DISTRICT

People v. Jennings, supra, 53 Cal.3d at 385-386).

The purpose of this order is to ensure that DIVISION ONE

this issue will be preserved for review after rendition of

the decision in Sandoval v. California without the need MISC. ORDER 11-04-93

for appellants in pending appeals to raise the issue in

opening, reply or supplemental briefs or in petitions for

rehearing on an individual basis.

THE COURT:

Dated: 11/5/93 IT IS HEREBY ORDERED that in every

criminal appeal pending before this court from a

judgment following a jury verdict and not yet final as to

(s/ Puglia this court and in which appellant’s opening brief is on

Presiding Justice file on the date of this order, appellant shall be deemed

to have challenged the constitutionality of CALJIC No.

2.90 (4th ed. 1979) as in Sandoval v. California, certiorari

granted September 28, 1993, US. (62 US.L.

Week 3241, Dock. No. 92-9049). Unless the opinion

deals expressly with the issue, this court’s opinion in any

such case shall be deemed to reject that challenge on

the ground that, pursuant to Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455, the court is

bound by the California Supreme Court’s resolution of

the issue. (People v. Sims (1993) 5 Cal.4th 405, 456-

457; People v. Sandoval (1992) 4 Cal.4th 155, 185-186:

People v. Noguera (1992) 4 Cal.4th 599, 633-634; People

v. Johnson (1992) 3 Cal.4th 1183, 1234-1235; People v.

Jennings (1991) 53 Cal.3d 334, 385-386.)

App. 6 App. 7

The purpose of this order is to ensure that

this issue will be preserved for review in the cases

described after rendition of the decision in Sandoval v.

California without the need for appellants in those cases

to raise the issue in supplemental pleadings or petitions

on an individual basis. The order is without prejudice to

any appellant’s arguing the court is not bound by Auto

Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d

450.

ls/

KREMER, P.J.

App. 8

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FOURTH APPELLATE DISTRICT, DIVISION TWO

MISCELLANEOUS ORDER 93-1

THE COURT:

not yet final wherein the defendant. -* -2en found guilty

by a trier of fact, this Court deems that all appealing

defendants have raised the argument that the definition

of reasonable doubt, as set forth in CALJIC No. 2.90, is

unconstitutional. This Court further deems that the

Attorney General has opposed this argument on the

ground that the Court is bound to follow prior state

Supreme Court decisions upholding the constitutional

validity of the instruction under principles of stare decisis.

In those criminal proceedings wherein the defendant

has been found guilty by a trier of fact, this Court will

incorporate, in al] opinions and orders denying a petition

for rehearing issued after the date of this order,

reference to this argument having been deemed raised

and opposed in addition to its determination that it is

bound, under Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455, to follow prior state Supreme

Court decisions upholding the constitutional validity of

the definition of reasonable doubt as set forth in

CALJIC No. 2.90.

Based upon the above, until further notice or order

of this Court, parties are not required to raise this issue

in Opening, reply, or supplemental briefs or petitions for

rehearing in order to preserve it on the merits.

App. 9

Prior to the filing of this order, this Court has denied

appellants’ requests in a number of appeals for

permission to serve and file supplemental briefs raising

this argument in cases where no opinion has been filed.

This miscellaneous order also applies to all of those

cases, and, therefore, all of those requests are DEEMED

to have been reconsidered, and all orders denying those

requests are hereby VACATED. Pursuant to this order,

this Court will incorporate the above-described reference

in the opinion in each of these cases. The clerk of this

court is DIRECTED to place a copy of this

miscellaneous order in the miscellaneous documents file

of each of these appeals and mail copies to counse! of

record.

The purpose of this order is to ensure that this issue

will be preserved for review in the cases described after

rendition of the decision in People v. Sandoval (1992) 4

Cal.4th 155, certiorari granted September 28, 1993,

without the need for appellants in those cases to raise

the issue on an individual basis. The order is without

prejudice to any appellant’s arguing the Court is not

bound by Auto Equity Sales, Inc. v. Superior Court,

supra.

_/s/ Ramirez

> oe

App. 10

COURT OF APPEAL ----- STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA)G013849

Respondent )

)Orange

VS. )County

)No.

)C-94705

Appellant )

Defendant’s request to file a supplemental brief

challenging the constitutionality of CALJIC No. 2.90 is

granted. The proposed supplemental brief is deemed

filed this date. The Attogney General may file a

response if he wishes within |5 Gays of the filing of this

order, but is not required to do so. (Auto Equity Sales,

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see

People v. Jennings (1991) 53 Cal.3d 334, 385; People v.

Smith (1992) 9 Cal.App.4th 196, 202.)

Presiding Justice

App. 11

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIFTH APPELLATE DISTRICT

MISCELLANEOUS ORDER NO. 93-01

THE COURT:

IT IS HEREBY ORDERED that in every

criminal] appeal pending before this court from a

judgment following a jury verdict where the disposition

is not yet final, appellant shall be deemed to have

challenged the constitutionality of CALJIC No. 2.90

based on Sandoval v. California, certiorari granted

September 28, 1993, = US. __ (Dock. No. 92-9049).

It shall also be deemed in every such case

that the Attorney General argues that this court must

reject the appellant’s challenge to CALJIC No. 2.90

because of: (1) the decisions in People v. Jennings

(1991) 53 Cal. 3d 334 and Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450; (2) the critical

difference in wording between CALJIC No. 2.90 and the

Louisiana instruction implicated in Cage v. Louisiana

(1990) 498 U.S. 39; and (3) the absence of any

reasonable likelihood that a jury would apply the

CALJIC No. 2.90 instruction in a way that-would violate

the federal constitution. (Boyle /sic] v. California (1990)

494 US. 370.)

App. 12

In every such case, this court shal] be deemed

to have rejected appellant’s challenge to CALJIC No.

2.90 on the ground that, pursuant to Auto Equity Sales,

nc. v. Superior Court, supra, 57 Cal.2d 450, 455, the

court is bound by the California Supreme Court’s

resolution of the issue. (People v. Sims (1993) 5 Cal.4th

405, 457; People v. Sandoval (1992) 4 Cal.4th 155, 186;

People v. Noguera (1992) 4 Cal.4th 599, 633-634; People

v. Johnson (1992) 3 Cal.4th 1183, 1234; People v.

Jennings, supra, 53 Cal.3d at pp. 334, 385-386.)

The purpose of this order is to ensure that

this issue will be preserved for review after rendition of

the decision in Sandoval v. California, supra, without the

need for appellants in pending appeals to raise the issue

in opening, reply or supplemental briefs or in petitions

for rehearing on an individual basis.

Dated: November 4, 1993.

ls/

BEST, P.J.

App. 13

COURT OF APPEAL OF THE STATE OF CALIFORNIA Any prior orders of this court to the contrary in

individual cases are vacated and superseded by this

SIXTH APPELLATE DISTRICT order.

MISC. ORDER 93-1]

Dated: NOV. 5, 1993

BY THE COURT

Polk.

IT IS HEREBY ORDERED that in every criminal

appeal pending before this court and not yet final from

a judgment following a jury verdict, appellant shall be

deemed to have challenged the constitutionality of

CALJIC No. 2.90 based on Sandoval v. California,

certiorari granted September 28, 1993, —— =—s

(Dock. No. 92-9049), and this court shall be deemed on

the date of the filing of the opinion to have rejected that

challenge on the ground that, pursuant to Auto Equi

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455,

the court is bound by the California Supreme Court’s

resolution of the issue. (People v. Sims (1993) 5 Cal.4th

405, 457; People v. Sandoval (1992) 4 Cal.4th 155, 186;

People v. Noguera (1992) 4 Cal.4th 599, 633-634; People

v. Johnson (1992) 3 Cal.4th 1183, 1234; People v.

Jennings (1991) 53 Cal.3d 334, 385-386. )

The purpose of this order is to ensure that this issue

will be preserved for review after rendition of the

decision in Sandoval v. California without the need for

appellants in pending appeals to raise the issue in

opening, reply or supplemental briefs or in petitions for

rehearing on an individual basis.

App. 14 App. 15

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