# Petition for Writ of Certiorari — Wenzel v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1160

## Text

02 843 DE 4 2002

OFFICE OF THE CLERK
No.

In the Supreme Court of the United States

George Wenzel,
Petitioner

¥.

State of California,
Respondent

PETITION FOR WRIT OF CERTIORARI TO
THE CALIFORNIA COURT OF APPEAL
(Fourth Appellate District, Div. One)

Petition for Writ of Certiorari

Charles M. Sevilla

Cleary & Sevilla

1010 Second Ave., Ste. 1825
San Diego, CA 92101-49026
Telephone: (619) 232-2222
Attorneys for George Wenzel

QUESTIONS PRESENTED FOR REVIEW

1. DOES THE CALIFORNIA BURDEN OF PROOF
INSTRUCTION, DEFINING REASONABLE DOUBT AS A
FEELING OF “AN ABIDING CONVICTION IN THE
TRUTH OF THE CHARGE” BASED UPON
“SATISFACTORILY SHOWN” EVIDENCE, AUTHORIZE
CONVICTIONS ON INSUFFICIENT EVIDENCE AND THUS
DENY DUE PROCESS OF LAW AND THE RIGHT TO
JURY TRIAL?

II. IS PETITIONER ENTITLED TO RELIEF WHEN HE
SPECIFICALLY OBJECTED i110 IE
UNCONSTITUTIONAL INSTRUCTIONS AND OFFERED
AN INSTRUCTION WITH A CORRECT PROBABILITY
STANDARD EXCERPTED FROM THIS COURT'S
PRECEDENT?

TABLE OF CONTENTS |

QUESTIONS PRESENTED FOR REVIEW ............
TABLE OF AUTHORITIES ...............eecee eee iv |
OPINION BELOW (Rule 14.1.(d)) ......2eeeeeeeeeeees :
JURISDICTIONAL STATEMENT (Rule 14.1.(e)) ....... 1 |
CONSTITUTIONAL & STATUTORY PROVISIONS |
Rat MLD occ eee l |
STATUTES. 5 is ccsicargusth eee :
|
STATEMENT OF THE CASE (Rule 14.1.(g)) ........00- 2 |
FEDERAL QUESTION RAISED Rule 14(g)(i) ........-. 5 |
REASONS FOR GRANTING CERTIORARI .........-. 6 :

1. THE FUNDAMENTAL CONCEPT DETERMINATIVE OF
GUILT OR INNOCENCE -- THE STATE’S BURDEN OF |
PROOF -— IS NOT CONVEYED IN- CALIFORNIA’S |

REASONABLE DOUBT INSTRUCTIONS. ............ 8 |
A. The Definition is Unconstitutional ........... 10
B. Victor Does not Support the State’s Version of
RGMIOND TINGE 5 bs i eae ee 14
C. This Court’s Precedent Rejects Such a Minimalist
Definition of Reasonable Doubt ............ 21

D. No State Has Reduced Reasonable Doubt to a Feeling
of an “Abiding Conviction” in the Truth of the Charge
as “Satisfactorily” Shown ...............05. o4

li

2. PETITIONER IS ENTITLED TO REVERSAL BECAUSE
HE OBJECTED TO THE UNCONSTITUTIONAL
INSTRUCTION AND OFFERED AN INSTRUCTION WITH
A PROBABILITY STANDARD EXCERPTED FROM THIS

cae eersesesecsenses 25
A. The Issue Was Preserved ..............-6-- 25
B. Examination of the Whole Record ........... 26

C. There Was A Reasonable Likelihood That
the Jury Understood the Instruction to
Allow a Conviction on Proof Insufficient to Meet

the Requirements of Due Process ..........-. 28
cab phe eb ak eessssee a adevesaens re
APPENDICES

A: June 7, 2002 Opinion of the California Court of Appeal

B. Sept 11, 2002 Order of the California Supreme Court
Denying Review

C. Chart: Survey of 50 State’s reasonable doubt definitions.

iil

TABLE OF AUTHORITIES

FEDERAL CASES

Addington v. Texas, 441 U.S. 418 (1979) ............. 18
Cage v. Louisiana, 498 U.S. 39 (1990) ......... 6, 7, 16, 23
Colorado v. New Mexico, 467 U.S. 310 (1984) ... 17, 18, 19
Dunbar v. United States, 156 U.S. 185 (1885) .......... 21
Estelle v. McGuire, 502 U.S. 62(1991) ................ 6
Holland v. United States, 348 U.S. 121 (1954) ....... 12,22
Hopt v. Utah, 120 U.S. 430 (1886) ............... passim
Jackson v. Virginia, 443 U.S. 307 (1979) ......... 7, 10, 23
Lisenbee v. Henry, 166 F.3d 997 (9th Cir. 1999) ..... 17, 18
Mathews v. United States, 485 U.S. 58 (1988) .......... 26
Miles v. United States, 103 U.S. 304................ 9, 22
Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir. 1998) ...... 17
Sullivan v. Louisiana, 508 U.S. 275 (1993) .... 10, 14, 28, 29
Taylor v. Kentucky, 436 U.S. 478 (1978) .............. 26
U.S. v. Walton (4th Cir. 2000) 207 F.3d 694............ 25
United States v. Nolasco, 926 F.2d 869

Coe Sa NE UE Svc ccc chev cren}teestens 1]
Victor v. Nebraska, 511 U.S. 1 (1994)............. passim
Wilson v. United States, 232 U.S 563 (1914)........... 21
In re Winship, 397 U.S. 358 (1970) ..... ae eer passim

STATE CASES

Patzwald v. United States, 7 Okla. 232, 54 P. 458 (1898)... 9
People v. Brigham, 25 Cal. 3d 283, 599 P.2d 100 (1979) .. 20
People v. Engelman, 28 Cal. 4th 436, 49 P.3d 209 (2002) . 28

iV

People v. Freeman, 8 Cal. 4th 450, 882 P.2d 249 (1994) 8, 13

New Mexico v. House, 127 N.M. 151 (1999) ........--- 8
Williams v. State, 73 Miss. 820 (1896) .......----++++5> a
FEDERAL STATUTES
WB USL. LISD 5 a vod cade de tecesevcdveteteneserns l

CALIFORNIA STATUTES
Calif. Penal Code § 1096 ........ 2. e cece reece eens 1, 26
Calif. Penal Code § 1096a ........-. ce eee eee ee ees yy
MISCELLANEOUS

Diamond, Note, "Reasonable Doubt: To Define, or Not to
Define," 90 Colum. L. Rev. 1716 (1990) .......-. 23

Note, "Reasonable Doubt: An Argument Against Definition,"
108 Harv. L. Rev. 1955, 1964-1967 (1995) ........ 23

Scheck, Neufeld, and Dwyer, Actual Innocence
(Signet 2001) .... 0... cee eee ee eee eee ee eens 10-11

PETITION FOR WRIT OF CERTIORARI

Petitioner George Wenzel respectfully requests a writ
of certiorari issue to review the judgment of the California
Court of Appeals entered on June 7, 2002 (Appendix A), with
review denied in the California Supreme Court on September
11,2002. Appendix B.

OPINION BELOW (Rule 14.1.(d))

The opinion of the California Court of Appeal of June
7, 2002, by the Fourth Appellate District, Division One, which
affirmed petitioner's conviction for second degree murder of
his wife, is not published in the official reporter. Appendix A,
No. DO37914. A petition for review to the California
Supreme Court was denied on September 11, 2002. Appendix
B, No. $108214.

JURISDICTIONAL STATEMENT (Rule 14.1.(e))

The judgment of the court of appeals was entered on
June 7, 2002. As noted, a petition for review in the California
Supreme Court was denied on September 11, 2002. The
jurisdiction of this court is based upon 28 U.S.C. 1257(a).

CONSTITUTIONAL & STATUTORY PROVISIONS

(Rule 14.1.(f))
The Fifth and Fourteenth Amendments provide in part that no

person shall be denied liberty except by due process of law.
The Sixth Amendment guarantees the right to a jury trial.
STATUTES
Calif. Penal Code § 1096 states:
A defendant in a criminal action is presumed

l

to be innocent until the contrary is proved, and
in case of a reasonable doubt whether his or
her guilt is satisfactorily shown, he or she is
entitled to an acquittal, but the effect of this
presumption is only to place upon the state the
burden of proving him or her guilty beyond a
reasonable doubt. Reasonable doubt is defined
as follows: "It is not a mere possible doubt;
because everything relating to human affairs 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 jurors in that
condition that they cannot say they feel an
abiding conviction of the truth of the charge.
West Pub. 2002; emphasis added.

Calif. Penal Code § 1096a states that “...no further instruction
on the subject of the presumption of innocence or the definition

of reasonable doubt need be given.” Ibid.

STATEMENT OF THE CASE! (Rule 14.1.(g))

Petitioner was convicted of the murder of his wife. The

State argued that he was an active participant in causing her
death based, in part, on the physical evidence, his statements,
and a suicide pact that called upon one spouse to help the other
die if health conditions deteriorated so as to become complete-
ly unbearable. Petitioner did not deny the agreement, but
argued that the evidence of any physical assistance he provided

‘In what follows, "CT" stands for the state Clerk's Record.

"RT" stands for the references to the state trial transcript.

2

to his wife was not proven beyond a reasonable doubt to be the
cause of her death. During lengthy deliberations, one juror’s
belief that there was insufficient evidence that appellant caused
his wife’s death was strongly contradicted by the trial court.

By all accounts, Lyn and George Wenzel (petitioner)
were a loving married couple ard devoted to one another. But
Lyn suffered increasingly from a variety of painful ailments
over the last twenty years of her life. Since 1981, she suffered
from chronic low back and joint pain. RT 620. In 1992, she
was diagnosed with incurable fibromyalgia, an untreatable and
painful disease. RT 607. Her doctor testified she also suffered
from irritable bowel syndrome, migraine headaches, chronic
low-back pain secondary to osteoarthritis, spinal stenosis, gall
bladder stones, mild hypertension, and arthritis in her lower,
middle, upper spine, shoulders and hips. RT 649.

Shortly before her death, she complained to her doctor
of “pins and needles in her toes and numbness in her feet ... a
relatively new symptom for her.” RT 611-612. She sawa
podiatrist complaining, as he testified, of “neuropathic or
neurological symptoms in her lower extremity.” RT 684. The
new diagnosis made her, as her son testified, “hysterical” and
crying shortly after that visit. RT 778.

As a result of her chronic pain, Lyn Wenzel was angry
and depressed about her health. RT 616, 628. She had tried
both conventional medicine and unconventional approaches to
ease her pain, all to no avail. She said to co-worker Anita
Mareschal on the afternoon of her death, she had “tissue pain

3

all over her body.” RT 473.

During the progress of her diseases, she and petitioner
talked about helping each other die if existence became
unbearable. On the day of her death and after the emotional
and depressing talk with Ms. Mareschal, she came home and
told petitioner “it was time” and asked if he were strong
enough to help her die. He said he was if he had to be.

The Jay following Lyn’s death, petitioner reported to
the police and confessed his conduct stating that “I did this
because she is the love of my life and I wanted to stop the pain
and suffering. I have no regrets because this is what she
wanted.” RT 201.

Petitioner told the police that when she saw the “foot
doctor” about the “numbness from her thighs down,” she was
told that it was “only going to get worse and she’ll end up
being a cripple.” Trial Exhibit 27, p. 29. She asked why no
one had told her this before because her legs were “paralyzed
and ... numb and all that for months and months.” Jbid. She
came home from the podiatrist crying and didn’t want to talk
about it (id. at 20-21), “broken up,” and told petitioner “‘all
the things we planned to do... I won’t be able to do.’” Id. at
30-31. After this they discussed their agreement about helping
one another die. Id. at 29-30.

On February 26, 2001, the case was given the jury. CT

442-443. The jury deliberated seven days.” The trial judge
remarked, "in all my years on the bench, I have never had a
jury out this long in anything." RT 1060. The verdict came on
the seventh day of deliberations. The deliberations were often
interrupted with juror notes and questions (CT 327-334),
including one by the foreperson indicating that one juror stated
her position during deliberations as, “I have a reservation. I
can never know because I wasn’t there. I’m not sure that she
[Lyn] wasn’t already dead.” CT 329. The trial court
responded by commenting on the evidence, over objection (RT
1046), that there was no evidence of Lyn Wenzel being dead at
the time appellant entered their bedroom. RT 1048.

On March 7, 2001, the verdict was returned. The jury
acquitted appellant of first degree murder and convicted of
second. CT 335, 336. He was sentenced to 15 years to life in
prison.

FEDERAL QUESTION RAISED (Rule 14(g)(i))

The issue presented is whether a contested reasonable
doubt definition that reduces the standard to a feeling of an
abiding conviction on evidence satisfactorily shown states the
constitutional standard. The issue was first raised in the state

* The jurors deliberated on February 26, 2001 (CT
442), February 27, 2001 (CT 444), February 28, 2001 (CT
445), March 1, 2001 (CT 446), March 5, 2001 (CT 447),
March 6, 2001 (CT 448), and returned a verdict mid-morning
of March 7, 2001. CT 449.

trial court by petitioner’s written pre-trial motion stating that
to instruct on the statutory “abiding conviction” language
deprived petitioner of his right to a due process jury trial under
Cage v. Louisiana, 498 U.S. 39, 41 (1990), disapproved on
other grounds, Estelle v. McGuire, 502 U.S. 62, 73, fn.4.
(1991)), or, and Victor v. Nebraska, 511 U.S. 1, 14, 15
(1994), and other precedent of this Court. When jury
instructions were considered during the trial, petitioner again
requested the court to insert the words “evidentiary certainty”
or “near certainty” in the pattern reasonable doubt instruction
so that the jury would have a definition with requirement of a
very high probability (quantitative) standard of proof. The
motion was denied. Petitioner then unsuccessfully raised the
issue in the appellate and California Supreme Court
proceedings in briefing. See Appendix A, pp. 57-58; see
Appendix B.

REASONS FOR GRANTING CERTIORARI

Pursuant to Supreme Court Rule 10 and 14(h), as
amplified in the following arguments, compelling reasons
warrant review of the two questions presented. By misreading
this Court’s direction in Victor v. Nebraska, 511 U.S. 1
(1994), California, by statutory amendment in 1995, reduced
the burden of proof in criminal cases well below constitutional
minimums: satisfactorily shown evidence leading to a feeling of
an abiding conviction of the truth of the charge. No state

appears to define reasonable doubt in California’s minimalist

fashion. See Appendix C, petitioner’s survey of States’
reasonable doubt definitions. Petitioner objected to the trial
court’s instruction on reasonable doubt. He proposed a jury
definition taken from this Court’s case law, by inserting into
the instruction a probability standard telling the jury that it
should have an abiding conviction to an “evidentiary certainty”
(Cage v. Louisiana, supra, at 41), or, as this Court stated in
Victor v. Nebraska, 511 U.S. 1, 14, 15 (1994), and Jn re
Winship, 397 U.S. 358, 364 (1970), a "subjective state of near
certitude of the guilt of the accused."

In Jackson v. Virginia, 443 U.S. 307 (1979), this
Court held that a fundamental “substantive constitutional
standard must also require that the factfinder will rationally
apply that [reasonable doubt standard] to the facts.” That
cannot be done when the reasonable doubt definition
approximates a mere preponderance of evidence. _

While a reasonable doubt instruction must be given in
each case, this Court has not yet mandated a formulaic
definition also be provided so long as the words conveyed to
the jury do not understate the meaning of reasonable doubt.
(Victor, supra at 1243) Petitioner is entitled to reversal given
his objection, his proposed language taken from this Court’s
cases, and the high likelihood that the jury used the challenged
unconstitutional standard to convict him. The jury deliberated
an extraordinary amount of time demonstrating this was a close

case. Further, it was instructed during deliberations (when a

juror said she had doubts as to the State’s proof and was
reported to the court by others) that any juror who decided the
case for “improper reasons” should be reported to the court by
the other jurors. Other instructions told the jurors to determine
the facts by probabilities, so that in combination with the
defective reasonable doubt definition, the entire instructional
message told the jury that a conviction could be returned on a
mere probability.

1. THE FUNDAMENTAL CONCEPT DETERMINATIVE
OF GUILT OR INNOCENCE -- THE STATE’S BURDEN
OF PROOF - IS NOT CONVEYED IN CALIFORNIA’S
REASONABLE DOUBT INSTRUCTIONS.

California stands alone in its minimalist definition of
reasonable doubt. See Appendix C. In an overreaction to this
court’s decision in Victor v. Nebraska, 511 U.S. 1,5, 127 L.
Ed. 2d 583, 114 S. Ct. 1239 (1994), the California Legislature,
acting at the suggestion of the California Supreme Court
(People v. Freeman, 8 Cal.4th 450, 504, fn. 9, 882 P.2d 249
(1994)), eliminated the probability standard from the
reasonable doubt definition (formerly “abiding conviction fo a
moral certainty’’) by striking “moral certainty” and not
replacing it with a probability (or a quantitative) standard.
That left the standard as permitting a conviction based on
evidence “satisfactorily shown” sufficient that a jury has a
feeling, instead of an evidence-based belief, of an abiding
conviction the truth of the charge. No other state has a

definition of reasonable doubt that says it is a feeling of an

abiding conviction in the truth of the charge based upon
evidence “satisfactorily shown.” The constitutional
quantitative requirement of proof beyond a reasonable doubt is
not based on a “touchy-feely” emotion, is not proof merely
“satisfactorily shown,” and it is far more than just a lasting
belief.

One need not be a linguist to understand that the
combination of phrases — a lasting feeling (i.e., a feeling of
“abiding conviction”) based on satisfactory evidence is
something shown by, at most’, a preponderance of evidence,
and hardly approaches the “evidentiary certainty,” or
“subjective state of near certitude” that this Court has explicitly
stated as the meaning of the proof required for a conviction
when established beyond a reasonable doubt.

This Court observed in 1880 in Miles v. United States,
103 U.S. 304, 312, "attempts to explain the term 'reasonable
doubt' do not usually result in making it any clearer to the

> Several older state decisions find the “abiding conviction”
definition insufficient. E.g., Williams v. State, 73 Miss. 820, 823
(1896) (“abiding conviction” alone is not an appropriate
standard); Patzwald v. United States, 7 Okla. 232, 236, 54 P.
458 (1898)(“It is certainly true that, before a jury can convict a
person charged with a crime, they must have an abiding faith of
the truth of the charge of his guilt. But what degree of faith? How
strong must that faith be, before it crosses the line which
separates the realm of doubt from that of moral certainty?”)
Times have not changed such that the phrase has taken on the
meaning necessary to convey the constitutional burden.

9

minds of the jury." Here, the attempt inflicted constitutional
harm. The California definition dilutes meaning, does not
convey a reasonable doubt standard, and thus invites
convictions based upon suspicion or mere probability. That is
what happened in petitioner’s case, as will be shown.

A. The Definition is Unconstitutional. The right to
a proper instruction on the State’s burden of proof is
"indispensable, for it 'impresses on the trier of fact the necessity
of reaching a subjective state of certitude of the facts in issue.'
[Citation omitted].” Jn re Winship, 397 U.S. 358, 364 (1970).
The reasonable doubt standard gives substance to the
presumption of innocence and instills confidence in the
community that the innocent will not be condemned. Jd. at
363-64. Further, a defective reasonable doubt instruction
undermines both Fifth and Fourteenth Amendment Due
Process of Law (forbidding a State to convict a person of a
crime without proving every element of the crime beyond a
reasonable doubt (Jackson v. Virginia, 443 U.S. 307, 316
(1979)), and the Sixth Amendment jury trial right. Sullivan v.
Louisiana, 508 U.S. 275, 277 (1993)("It would not satisfy the
Sixth Amendment to have a jury determine that the defendant
is probably guilty, and then leave it up to the judge to
determine (as Winship requires) whether he is guilty beyond a
reasonable doubt.")

With the revelation of wrongful convictions in serious
criminal cases (See Scheck, Neufeld, and Dwyer, Actual

10

Innocence (Signet 2001)), the single most important bulwark
against that phenomena is the reasonable doubt standard. In
re Winship, 397 U.S. 358, 363 (1970)("It is a prime
instrument for reducing the risk of convictions resting on
factual error.")

There is no better way to bring about false convictions
than to tell juries they can convict based upon mere feelings of
lasting belief in guilt resting on “satisfactorily shown” evidence.
These concepts gut the meaning of the State’s burden of proof
which is to prove its case to a very high probability, described
by this Court as “evidentiary certainty” or a subjective state in
the minds of the jurors of near certainty. The right to a proper
instruction on the burden

... beyond a reasonable doubt is "indispensable,
for it ‘impresses on the trier of fact the necessity
of reaching a subjective state of certitude of the
facts in issue."" In re Winship, 397 U.S. 358,
364, 90S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
The reasonable doubt standard gives substance
to the presumption of innocence and instills
confidence in the community that the innocent
will not be condemned. Id. at 363-64. A
defendant in a criminal case therefore has a
constitutional right to have the jury instructed
that guilt must be established beyond a
reasonable doubt. [Citation]. United States v.
Nolasco, 926 F.2d 869, 871 (9th Cir. en banc
1990).

Over petitioner’s objection, his jury was told that

1]

reasonable doubt meant such a state of belief that the jury
could not say that based upon satisfactory proof it had a
feeling of “an abiding conviction of the truth of the charge.”
RT 961-962. This Court has stated that “taken as a whole, the
instructions [must] correctly convey the concept of reasonable
doubt to the jury."" Victor v. Nebraska, 511 U.S. 1, 5 (1994)
(quoting Holland v. United States, 348 U.S. 121, 140 (1954))
(internal citation omitted). As will be discussed, the rest of the
instructions only reaffirmed a mere probability standard.

Petitioner’s defense counsel filed a lengthy pre-trial
brief setting forth the issue presented here (CT 153-159), and
proposing at trial a simple amendment to the pattern California
instruction to add the missing, but essential, probability
standard found in the precedent of this Court. He asked the
court “on the instruction of reasonable doubt... I’m requesting
that pursuant to the points an [sic] authorities that the court
add in the words either near certainty, evidentiary certainty, or
near certitude of the guilt of the person charged within the
second paragraph of CALJIC 2.90.” (CALJIC stands for the
Calif. Jury Instruction Committee, criminal instruction book
(West. 2002), and 2.90 embodies the instruction found in Penal
Code section 1096, quoted supra.) The trial court rejected the
request. RT 926.

The words should have been added to make
constitutional the burden of proof standard given petitioner’s

12

jury.* The trial court rejected the request because California’s
appellate courts hold there is nothing erroneous in the current
“feeling” of an “abiding conviction” reasonable doubt
instruction. The California Court of Appeal in petitioner’s case
wrote that it had to follow the California Supreme Court on the
issue:

We conclude that CALJIC No. 2.90 [the
pattern reasonable doubt instruction] properly
defines the reasonable doubt standard of proof
because it substantially adopts language
suggested by the California Supreme Court in
People v. Freeman (1994) 8 Cal.4th 450, 504,
footnote 9. Other courts have consistently
upheld this instruction against similar
constitutional attacks. [Citations omitted] We
decline to adopt a contrary position and
conclude the trial court properly instructed on
reasonable doubt with CALJIC No. 2.90. As
we stated in People v. Carroll (1996) 47
Cal.App.4th 892, 896: "We consider the
opinion in People v. Freeman, supra, 8 Cal.4th
450 to be dispositive of this issue. The
instruction comports with the Supreme Court's
determination of what is the appropriate
definition of reasonable doubt. It is for the
Supreme Court to reconsider such definition if

* The defense proposed instruction would have inserted -
the words “evidentiary certainty” or “subjective state of near
certitude” in the pattern instruction after the words “abidin
conviction.” CT 153-159. The court rejected the propose
modification, “the modified 2.90 contained in [defense
counsel’s] Mr. Phillips’ motion will not be given.” RT 926.

13

it chooses to do so. Our task is simple: we will

apply the law as the Supreme Court has stated

it." Appendix A-57.

Yet, the defect exists and the definition of reasonable
doubt now has been diluted below constitutional minimums set
by this Court. CALJIC 2.90's language of “satisfactorily
shown” evidence leading to a feeling of an “abiding conviction”
in the truth of the charge does not in any way relay this high
probability requirement to the trier of fact. To give reasonable
doubt its special meaning, California has chosen to use a
dictionary out of Alice in Wonderland.’ This is a due process
defect and warrants reversal per se under Sullivan v.
Louisiana, 508 U.S. 275 (1993).

B. Victor Does not Support the State’s Version of
Reasonable Doubt. Respondent may claim that Victor v.
Nebraska, 511 U.S. 1, 14 (1994), holds that an instruction
with only the “abiding conviction” terminology is
constitutional. Not so. Victor upheld a California conviction
where the “abiding conviction fo a moral certainty” version of
CALJIC 2.90 was challenged. In its discussion, the Court

noted that the essential requirement of a reasonable doubt

* Lewis Carroll nicely describes how words can be given
preposterous meaning. In Alice's Adventures in Wonderland
and Through the Looking-Glass (Collier Books 1962) p. 247,
Alice and Humpty Dumpty are debating the very special meaning
Humpty Dumpty’s gives the word "glory." He states it means,
"a nice knock-down argument.”

14

instruction is to convey the very high probability of guilt so
that a jury understands it raust have a "subjective state of near
certitude of the guilt of the accused." Jd. at 15. In dictum,
the opinion states: “an instruction cast in terms of an abiding
conviction as to guilt, without reference to moral certainty
correctly states the government’s burden of proof. Hopt v.
Utah, 120 U.S. at 430.” The sentence makes perfect sense
when understood for what it was meant — “moral certainty” is
an outmoded and confusing concept and unnecessary to a
proper definition of reasonable doubt. Victor cites Hopt as an
example of an instruction without such language that passes
constitutional muster. In Hopt v. Utah (1886) 120 U.S. 430,
this Court ruled approvingly of the language of an “abiding
conviction” but only in the context of an instruction which
connected the abiding conviction concept (i.e., a fixed belief)
to a level of a very high probability — a decision involving a
juror’s own important affairs.

Thus, Hopt says “‘it is difficult to conceive what amount
of conviction would leave the mind of a juror free from a
reasonable doubt, if it be not one which is so settled and fixed”
as to control his action in the more weighty and important
matters relating to his own affairs.” Id. at 339; italics added.
This is because “[i]f the evidence produced be of such a
convincing character that they would unhesitatingly be
governed by it-in such weighty and important matters, they
may be said to have no reasonable doubt....” (Jd. at 441.)

15

This Court did not suggest that a feeling of “abiding
conviction” in the truth of the charge alone states the proper
degree (or any degree) of certainty. As noted, the phrase at
issue in Victor was “abiding conviction to a moral certainty,”
which sets a much higher standard than does the naked phrase
“abiding conviction” coupled with juror feelings based on
satisfactory evidence.

Victor noted that in 1850, the phrase “moral certainty”
meant “the state of subjective certitude about some event or
occurrence.” Jd. at 12. That level of certainty was appropriate,
but the Court believed the phrase had lost its meaning over the
next century. Jd. at 23. Certainly, the meaning of “abiding
conviction” has no contemporary meaning synonymous with
proof beyond a reasonable doubt, that is, proof to an
evidentiary certainty.

The instructions given in petitioner’s case only
conveyed that the jury should acquit unless the evidence, as
“satisfactorily shown” produced a feeling of a lasting belief in
the truth of the charge. The concept does not come close to
requiring the required high level of “evidentiary certainty"
(Cage, supra at 41), or a "subjective state of near certitude of
the guilt of the accused." (Victor, supra at 15.) It permits
convictions without the high probability proof, that is proof
beyond a reasonable doubt. Without an instructional
requirement of a “high probability” (such as an abiding
conviction in proof concerning the most important of one’s

16

own affairs, or to an evidentiary certainty), this instruction
violated due process and violated the Sixth Amendment right
to have a jury trial on each element of the offense.

There are many examples of State reasonable doubt
instructions that employ “abiding conviction” plus a probability
standard. See Appendix C. Thus, in Ramirez v. Hatcher, 136
F.3d 1209, 1219 (9th Cir. 1998), the circuit court upheld a
Nevada state formulation that contained “abiding conviction”
language plus a probability standard that there must be “such
a doubt as would govern or control a person in the more
weighty affairs of life.” Jd. at 1210-1211. This was not an
instruction that merely used a feeling of an “abiding
conviction” as the determinative concept of the instruction.
Nevada’s formulation is derived from Hopt v. Utah, 120 U.S.
430 (1886).

Relying on Ramirez, another Ninth Circuit panel
upheld the California “abiding conviction” reasonable doubt
instruction in the context of a federal habeas corpus review.
Lisenbee v. Henry, 166 F.3d 997 (9th Cir. 1999), a ruling that
Victor “expressly condoned the use of a jury instruction that
only uses the term "abiding conviction" to define the
reasonable doubt.” Jd. at 999. That case attempted to
distinguish this Court’s holding in Colorado v. New Mexico,
467 U.S. 310, 316 (1984). There, this Court held that there
must be a standard higher than mere preponderance for settling
a water dispute between two states. It selected the standard

17

of “clear and convincing evidence” which it defined as an
abiding conviction in the truth of the matter shown to a high
probability. Ibid. See also State v. House, 127 N.M. 151
(1999) (defining “clear and convincing” evidence as “an
abiding conviction”).

Lisenbee “distinguished” the Colorado definition of
clear and convincing evidence by stating,

Although the Court did use the phrase "abiding
conviction" in its definition of the clear-and-
convincing-evidence standard, it did so in
tandem with the use of the phrase "highly
probable." Colorado, 467 U.S. at 316, 104 S.
Ct. at 2437-38, 81 L. Ed. 2d 247. The language
in the jury instruction in this case, on the other
hand, does not.

Precisely. The California standard does not add the
term “highly probable” to the phrase “abiding conviction.”
How then would the omission of the “highly probable” phrase
convey a higher standard of proof (beyond a reasonable
doubt) than that involved in the Colorado civil dispute?
Obviously, the absence of a probability standard could not
possibly elevate a feeling of lasting belief in the charge to one
of near certitude.

This is no mere semantic discussion. Addington v.
Texas, 441 U.S. 418, 425 (1979)(a standard of proof is more
than an empty semantic exercise.) In In re Winship, supra at
363, this Court emphasized the “vital role in the American
scheme of criminal procedure” of the reasonable doubt

18

standard, one that insures persons are not convicted based on

the same lower level of proof for a civil judgment:

It is a prime instrument for reducing the risk of
convictions resting on factual error. The
standard provides concrete substance for the
presumption of innocence -- that bedrock
"axiomatic and elementary" principle whose
"enforcement lies at the foundation of the
administration of our criminal law." Coffin v.
United States, supra, at 453. As the dissenters
in the New York Court of Appeals observed,
and we agree, "a person accused of acrime...
would be at a severe disadvantage, a
disadvantage amounting to a lack of
fundamental fairness, if he could be adjudged
guilty and imprisoned for years on the strength
of the same evidence as would suffice in a civil
case." 24 N. Y. 2d, at 205, 247 N. E. 2d, at
259.

As this Court stated Colorado v. New Mexico, supra

at 315-316:

It is the function of any standard of proof is to
"instruct the factfinder concerning the degree of
confidence our society thinks he should have in
the correctness of factual conclusions for a
particular type of adjudication." In re Winship,
397 U.S. 358, 370 (1970) (Harlan, J.,
concurring). By informing the factfinder in this
manner, the standard of proof allocates the risk
of erroneous judgment between the litigants and
indicates the relative importance society
attaches to the ultimate decision.

19

California’s instructions allocate the standard of proof
so low that the risk of erroneous judgments is unconstitu-
tionally high. They convey nothing more than a feeling of a
“fixed belief” on proof “satisfactorily shown.” At best this
definition sets an intensity level for juror belief (abiding), but it
not only does not state a probability standard; it undermines
the quantitative requirement of a very high probability of proof.
Taken in tandem with the other probability based instructions,
the jury was misled to convict on less than the required
amount of proof. .

The late Justice Stanley Mosk of the California
Supreme Court noted that the “abiding conviction” phrase was
defective in his concurring opinion in People v. Brigham, 25
Cal.3d 283, 299, 599 P.2d 100 (1979). He asked, “what is an
‘abiding’ conviction?” and observed that “it has long since
fallen into disuse and is no longer part of our daily speech” It
is a phrase connoting the “duration of the jury’s velief.” Ibid.
Justice Mosk rightly stated that “the duration of a juror’s belief
in guilt is essentially irrelevant.” Jd. at 300. Adding the word
“conviction” is not only of no help; it adds to the confusion
because that word has a meaning of an adjudication of guilt.
Id. at 300, n. 5.

Jurors can have a fixed belief in hunches, possibilities,
probabilities, or matters shown by clear and convincing
evidence. None of these satisfies the required due process
higher level of "evidentiary certainty" or a "subjective state of

20

near certitude of the guilt of the accused." The instructions
trigger convictions without proof shown by a high level of
probability. That is unconstitutional.

C. This Court’s Precedent Rejects Such a
Minimalist Definition of Reasonable Doubt.

Examining the decisions of this Court after Hopt v.

Utah, one finds that the Court has approved of reasonable

doubt definitions with some form of language conveying a high
probab lity of proof requirement.

in Wilson v. United States, 232 U.S. 563, 570 (1914),
the court approved a definition that read: "reasonable doubt is
that frame of mind which forbids you to say, all the evidence
considered and weighed, 'I have an abiding conviction of the
defendants’ guilt,' or as it has been expressed, 'I am convinced
of the defendants' guilt to a moral certainty.' If you can say
that you have such a conviction, then you have no reasonable
doubt, and your verdict should be guilty. On the contrary, if
that is your frame of mind, if you are in the frame of mind
where if it was a matter of importance to you in your own
affairs, away from here, you would pause and hesitate, before
acting, then you have a reasonable doubt." Emphasis added

In Dunbar v. United States, 156 U.S. 185, 199 (1885),
the court approved the following definition, "I will not
undertake to define a reasonable doubt further than to say that
a reasonable doubt is not an unreasonable doubt -- that is to
say, by a reasonable doubt you are not to understand that all

21

doubt is to be excluded; it is impossible in the determination of
these questions to be absolutely certain. You are required to
decide the question submitted to you upon the strong
probabilities of the case, and the probabilities must be so
strong as, not to exclude all doubt or possibility of error, but
as to exclude reasonable doubt".

Emphasis added.

In Miles v. United States, 103 U.S. 304, 309, 311
(1880), the court approved the following language: "The
prisoner's guilt must be established beyond reasonable doubt.
Proof 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 feel certain that it
-exists. A balance of proof is not sufficient. A juror ina
criminal case ought not to condemn unless the evidence
excludes from his mind all reasonable doubt; unless he be so
convinced by the evidence, no matter what the class of the
evidence, of the defendant's guilt, that a prudent man-would
feel safe to act upon that conviction in matters of the highest
concern and importance to his own dearest personal
interests." Emphasis added.

In Holland v. United States, 348 U.S. 121, 140
(1954), the Court rejected a challenge to this.definition: "'the
kind of doubt . . . which you folks in the more serious and
important affairs of your own lives might be willing to act
upon." We think this section of the charge should have been in
terms of the kind of doubt that would make a person hesitate

22

to act [citation], rather than the kind on which he would be
willing to act. But we believe that the instruction as given was
not of the type that could mislead the jury into finding no
reasonable doubt when in fact there was some. A definition of
a doubt as something the jury would act upon would seem to
create confusion rather than misapprehension."

The Court’s more recent cases (Winship, Jackson,
Cage and Victor) suggest the essential meaning to be conveyed
by a reasonable doubt definition is a “subjective state of near

”

certitude.” California’s definition is so far from requiring

that high probability of proof for a conviction it falls far short
of the constitutional due process limit-line. Studies on juror
interpretation appear to show their confusion on the meaning
of reasonable doubt.® See Diamond, Note, “Reasonable
Doubt: To Define, or Not to Define,” 90 Colum. L.Rev. 1716,
1723 (1990); cf, Note, “Reasonable Doubt: An Argument
Against Definition,” 108 Harv. L.Rev. 1955, 1964-1967

* The instruction is so low-probability based that jurors would
reasonably interpret it as requiring a preponderance of evidence
to convict. Two authors, Saunders and Genser, in the
September/October 1999 magazine, The Sciences, “Trial and
Error,” 18, did a survey of business executives on the meaning of
California’s instruction. One-third of this “relatively sophisticated
and homogeneous population of business people” (id. at 20),
thought the instruction meant that probabilities ranging from 50%
to 80% were good enough to convict someone beyond a
reasonable doubt.

23

(1995). Whatever the merits of general studies on juror under-
standing, the definition given in this case was clearly wrong,
insured constitutionally inadequate meaning, and virtually
guaranteed a conviction on less than the required proof.

D. No State Has Reduced Reasonable Doubt to a
Feeling of an “Abiding Conviction” in the Truth of the
Charge as “Satisfactorily” Shown.

Appellant’s survey of the fifty states in Appendix C
shows the following: Several States have retained the “moral
certainty” language in their definitions (Alabama, Idaho,
Minnesota, Tennessee). A plurality of States use a variant of
the Hopt v. Utah definition — proof such that a juror would
not hesitate to act in their own important affairs (Alaska,

Arkansas, Colorado, Conn., D.C., Maryland, Montana,
Nebraska, Nevada, New Hampshire, New Mexico, New York,
Ohio, Pennsylvania, South Carolina, South Dakota, West
Virginia, Wisconsin).

Other States employ definitions with a requirement of
some form of high probability (Arizona, Hawaii, Virginia), or
“firmly convinced” (Delaware, Louisiana, Missouri, Rhode
Island), “firm and abiding” (North Dakota), “full and abiding”
(Iowa), “reasonable certainty” (Georgia), that “almost certain”
(Maine), “near certainty” (Massachusetts), or “more powerful
than more likely true than not true.” (New Jersey, Indiana),
“fully satisfies or entirely convinces you of the defendant’s
guilt” (North Carolina), “proof which satisfies the mind,
convinces the understanding of those who are bound to act.”

24

(Utah)

A number of States dictate that there either be no
definition given (accord U.S. v. Walton (4th Cir. 2000) 207
F.3d 694), or that there is no definition that the court requires.
(Illinois, Kansas, Kentucky, Michigan, Mississippi, Oklahoma,
Oregon, Texas, Vermont, Wyoming).

Two States veer close to California’s minimal, defective
definition -- Washington (“a doubt as would exist in the mind of
a reasonable person ... abiding belief in the truth of the charge),
and Florida (“if there is not an abiding conviction of guilt, or if
having a conviction, it is one which is not stable, but one which
wavers and vacillates, then the charge is not proved beyond
every reasonable doubt”), but California’s instructions, taken
as a whole, mandate convictions on mere probabilities. No
State appears to have gone so far as California in reducing the
definition of reasonable doubt simply to juror feelings of a
lasting belief established by evidence satisfactorily shown.

2. PETITIONER IS ENTITLED TO REVERSAL WHEN
HE OBJECTED TO THE UNCONSTITUTIONAL
INSTRUCTION AND OFFERED AN INSTRUCTION
WITH A PROBABILITY STANDARD SUGGESTED IN
THIS COURT’S PRECEDENT.

A. The Issue Was Preserved. Failure to object is a
standard basis for waiver of a claim on appeal. See, e.g.,
F.R.Cr.P. 30. Calif. Penal Code § 1096a gives notice that
“..no further instruction on the subject of the presumption of

innocence or the definition of reasonable doubt need be given”

25

other than that found in Penal Code § 1096. The statute does
not state that amendments to the language in § 1096 cannot be
made if requested. Petitioner did that. CT 153-159.

While defendants who fail to object and proffer their
Own instruction or who affirmatively request the deficient

instruction likely have waived their right to complain about this
issue, petitioner affirmatively sought to have a constitutional
instruction given. "[A] defendant is entitled to an instruction
as to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor [citation]."
Mathews v. United States, 485 U.S. 58, 63 (1988); see also
Taylor v. Kentucky, 436 U.S. 478, 490 (1978)("We hold that
on the facts of this case the trial court's refusal to give
petitioner's requested instruction on the presumption of
innocence resulted in a violation of his right to a fair trial.")

B. Examination of the Whole Record. This Court
has stated that the whole record must be examined to
determine if the instruction at issue correctly conveyed the
concept of reasonable doubt to the jury. Victor v. Nebraska,
supra at 511 U.S. 5. Reading the instructions as a whole here
could not save the defective definition. This is because of the
other instructions that reinforced the idea that the law
mandated that mere probabilities are a sufficient basis upon
which to decide guilt. The jury would believe a preponderance
of evidence is sufficient to convict based on the reasonable

26

doubt definition and these other instructions.’

Taken as a whole, petitioner’s jury was primed to
convict based upon a mere probability. In this close case
involving nearly seven days of deliberations in which the jury
had questions on the issue of malice, the instructions had to be
decisive. The length of time and jury questions during the
deliberations demonstrate that the jury was having difficulty
finding that the State proved that petitioner guilty even under
the diluted definition of reasonable doubt given them.

In sum, the extraordinary length of the jury
deliberations, the other mere probability based jury
instructions, the jury questions on the instructions during
deliberations, the fact that the offending instruction were sent
into the jury room (RT 1031), and that the court told the jury it
had to follow it (RT 950), shows that the instructions, taken
as a whole, reveal a reasonable likelihood that the jury
understood the instructions to allow conviction on proof
insufficient to meet the requirements of Winship’s due process
standard. Victor, supra, at 1243.

One additional factor is that during jury deliberations,

’ E.g., 1) the jury should not believe the defendant to be more
likely guilty than not guilty based solely on his arrest, charge and
standing trial (RT 950); 2) if one interpretation of the evidence is
reasonable and another unreasonable, the jury must accept the
reasonable (RT 954-55); 3) jury may reject a witness’s testimony
if false in part unless it finds the probability of truth favors the
witness’s version. RT 957.

27

the court was told that one of the jurors had severe doubts the
State had proven a criminal cause of death. The trial court
responded by telling the jury that there was no cause for such
concern and then told the jury for the second time* to report to
the court any juror who was deciding the case on unstated
“improper reasons.” Appendix A-19-20, 22. Under this
instruction, one juror’s demand for proof to an evidentiary
certainty would have been an “improper reason” to be
repudiated by the majority and a source of a threat to report
the juror to the court for misconduct. See People v.
Engelman, 28 Cal. 4th 436, 49 P.3d 209 (2002) (recently
banning the “improper reason” instruction in future cases.)

C. There Was A Reasonable Likelihood That the
Jury Understood the Instruction to Allow a Conviction on
Proof Insufficient to Meet the Requirements of Due
Process. Victor v. Nebraska, 511 U.S. at 6. Given the nature
of this instruction given, its central importance in this (and all)
criminal cases, and the manner in which this instruction merged
with other low probability instructions, there is every |
reasonable likelihood that petitioner’s jury interpreted it to
allow a conviction based on proof insufficient to meet the
requirements of due process. The error is reversible per se.
Sullivan v. Louisiana, 508 U.S. 275 (1993).

In Sullivan, supra, this court focused on the

' The first being during the delivery of instructions prior to
jury deliberations. RT 1030-1031.

28

speculation a reviewing court would engage in if it attempted
to apply harmless error review when a defective burden of
proof directive to the jury “vitiate[d] all the jury's findings.”
508 U.S. at 281. Sullivan also focused on the serious nature of
a denial of the right to trial by jury, without which a criminal
trial cannot reliably serve its function. Ibid. The error, once
determined, is structural. Here, the instructional error
undermined the State’s burden to prove malice aforethought
beyond a reasonable doubt. Relief is required.
CONCLUSION

Reducing reasonable doubt to a feeling of an “abiding
conviction in the truth of the charge” based on evidence
“satisfactorily shown” gave petitioner’s jury the means to
resolve their lengthy deadlock on less proof than is
constitutionally required. Petitioner had proposed a correct
instructional definition with a high probability concept. It was
improperly denied and so was due process of law.

It is respectfully requested that the Court grant
certiorari on the question presented.
December 2, 2002 Respectfully submitted, _

flanks M. Sede.

CHARLES M. SEVILLA
Cleary & Sevilla, LLP
Attorneys for George Wenzel

29

APPENDIX A: June 7, 2002 Opinion of the California
Court of Appeal

Appendix A, |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA
io 7,20
Court of Appeal Fourth District
THE PEOPLE D037914
Plaintiff and Respondent
V. (Superior Ct. No.

SCD147241)
George Wenzel,

Defendant and Appellant

APPEAL from a judgment of the Superior Court of
San Diego County, William D. Mudd, Judge. Affirmed.

In a one-count amended information filed in July 2000,
the San Diego District Attorney charged defendant and
appellant George Martin Wenzel (Wenzel) under Penal Code'
section 187, subdivision (a) with the murder of his wife Lyn

All further statutory references are to the Penal Code
unless otherwise specified.

Appendix A, 2

Wenzel (Lyn).’ It was also alleged that in committing the
murder Wenzel inflicted great bodily injury on Lyn.

In February 2001, a jury trial commenced. In March
2001, the jury found Wenzel guilty of second degree murder.
The jury also found true the great bodily injury allegation. In
May 2001, the court sentenced Wenzel to 15 years to life in
prison.

On appeal, Wenzel asserts that the court erred by (1)
failing to exclude a videotaped statement by Wenzel taken in
violation of his Miranda’ rights; (2) improperly commenting to
the jury on the evidence; (3) failing to instruct the jury on
voluntary manslaughter; (4) failing to define malice in response
to a question from the jury; (5) instructing the jury under
CALJIC No. 17.41.1; (6) excluding expert testimony
concerning his mental state for the purpose of showing a lack
of malice; (7) instructing the jury on the Wenzel's failure to
submit to a court ordered psychiatric examination; and (8)
instructing the jury under CALJIC No. 2.90. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. People's Case

‘ For the sake of clarity, we refer to the victim and

certain members of her family by their first names. We intend
no disrespect.

Miranda y. Arizona (1966) 384 U.S. 436.

Appendix A, 3

Wenzel and his wife Lyn lived in the Loma Riviera
condominium complex in San Diego, California. To others,
Wenzel and Lyn appeared to have a loving marriage.

In 1999,* Lyn was 57 years old and worked at the
Department of Veteran Affairs Medical Center. Lyn's doctor,
Rebecca Le Vasseur, testified that Lyn had been suffering from
chronic low back pain and joint pain since 1981. In 1992, Lyn

was diagnosed with fibromyalgia, a condition of chronic,
widespread muscular pain. Dr. Le Vasseur also testified that
Lyn suffered from irritable bowel syndrome, migraine
headaches, osteoarthritis, spinal stenosis, gall bladder stones
and mild hypertension. More recently, Lyn reported to her
doctor "pins and needles in her toes and numbness in her feet."
A neurologist tested Lyn and concluded that she did not suffer
from neuropathy, a disease of the nerve endings. He believed
the pain was related to Lyn's spine problems.

Lyn was examined by a podiatrist, Dr. Michael Simons,
who denied that he diagnosed her with neuropathy. The notes
of Dr. Simons did mention "peripheral neuropathy" but
according to Dr. Simons that referred to her symptoms, not a
diagnosis. On cross-examination, Dr. Simons stated that he
was not sure if he told Lyn that she had neuropathy.

None of Lyn's ailments was life threatening. Moreover,
despite Lyn's medical problems, "she was an optimist, and she

a

All further references to dates are to the calendar year
1999 unless otherwise specified.

Appendix A, 4

carried on." Friends and coworkers described her as a very
strong and outgoing woman, who was upbeat and a hard
worker.

Wenzel was self-employed as a pool cleaner. Although
he appeared to be a loving person, he was also "volatile." At
times, he would "lose his temper, get very angry." He was on
medication to control his aggression and mood instability at the
time of Lyn's death.

The day before Lyn's death, she was "great" and in a
"good mood." On July 19, the morning of her death, Lyn
spoke to her sister-in-law, Sheilah Wenzel (Sheilah), and told
her she was "feeling good." According to Sheilah, Lyn told her
a podiatrist had said the pain in her feet was from her back
problems. Lyn laughed about her meeting with the podiatrist.
Lyn told Sheilah she was planning to attend a business
conference in Austin, Texas, in three weeks. Sheilah, who
lived in Texas, was going to stay with Lyn while she was in
Austin, and they talked about arrangements that needed to be
made. They also discussed Lyn's plans to take a trip to Hawaii
in October.

Lyn also spoke to her daughter Trudy Levy (Trudy) on
July 19, approximately six hours before she was killed. Lyn
and Trudy discussed a business idea Lyn had. Lyn wrote down
notes of this conversation on a piece of paper. Lyn and Trudy
also discussed plans for Lyn's mother's birthday. Lyn also told 4

Trudy she was planning on going to Palm Springs in October .

Appendix A, 5

for her high school reunion. Lyn had already purchased tickets
for that event.

Later in the afternoon of July 19, a few hours before
she was killed, Lyn was seen swimming in the condominium
complex pool. She was swimming back and forth and enjoying
herself.

The following morning, Wenzel picked up his pool
cleaning helper, Patrick O'Brien, at approximately 4:15 a.m.,
their ordinary start time for work. O'Brien told police that
Wenzel was in a good mood and appeared fine. Wenzel and
O'Brien had an ordinary workday, cleaning 25 to 27 pools.

Later that day, at approximately 1:40 p.m., Wenzel
went to the downtown San Diego police station and asked to
speak with a homicide detective. When San Diego Police
Sergeant Howard Williams greeted Wenzel, Wenzel handed
Sgt. Williams a note he had authored and a house key, and
asked Sgt. Williams to read the note. The note read:

"My name is George Wenzel. Lyn
Wenzel is my wife of more than 29 '4
years. We have had a pack [sic] that we
would help each other end [our] life
when the time had come. Last Saturday
Lyn took some sleeping pills from her
mother and on Monday nite [sic] took
many pills with dinner. After she went
to sleep, I went up and stopped the
breathing. I did this because she is the
love of my life and I wanted to stop the
pain and suffering. I have no regrets

Appendix A, 6

because this is what she wanted. My
pain and suffering will start now and last
the rest of my life. Her body is in bed
upstairs at 4072 Loma Riviera Circle."

Two San Diego Police Department homicide
detectives, John Young and Joseph Cristinziani, then took
Wenzel to a detention room where they conducted a
videotaped interview with him. Detective Cristinziani first

asked Wenzel, "I was just curious if there's anybody you want
us to call right now?" Wenzel shook his head "no." Detective
Young then advised Wenzel of his Miranda rights, and Wenzel
responded that he understood each right. The following
exchange then took place between Wenzel and the detectives:

"(Detective Young]: ... Do you want
to tell us what happened?

"[Wenzel]: It's all right here. [Pointing
to the note. |

"[Detective Young]: Well, the note is
pretty brief and life is pretty long... .
[Clan you start to teil me first of all how
long you've been married, where you
got married, that sort of thing.

f

"[Wenzel]: [Shakes head in the
negative.] . .:. [D]idn't you say that I
could be silent if I wanted to?

"[Detective Young]: Yeah.

Appendix A, 7

"[Wenzel]: Yeah.

"(Detective Young]: So you don't want
to talk to us?

-"[Wenzel]: [Shakes head 'no']

"[Detective Young]: I'm sure there's a

lot of questions that we don't. . . aren't
gonna know until we talk to you about
‘em. I mean we don't even . . . we're not

even at the scene yet.

"[Wenzel]: Maybe I'll talk to ya later. I
don't want to talk right now."

"[Detective Young]: Okay.

"[Wenzel]: Okay [nodding head in
affirmative]." (Italics added.)

Thereafter, the detectives ceased questioning Wenzel
concerning the killing of his wife and questioned Wenzel
concerning Lyn's medical condition and obtaining her records,
with which Wenzel cooperated. The detectives had Wenzel
sign a form consenting to a search of his residence and a
release form for Lyn's medical records.

Six minutes later, the following exchange occurred:

"(Detective Young]: I guess my
question [Wenzel] is you wrote the
letter and you did come down, I mean
you're taking responsibility for what

Appendix A, 8 -

happened here, uh, is it just right now
you don't feel like talkin' or you just
don't want to tell us what happened
Wisce

"[Wenzel]: J don't know what else I
could say. I mean it's all right here.
[Pointing to note. |

"(Detective Young]: Well I have a lot
of questions.

"[Wenzel]: /'m sure you do.
"(Detective Young]: Okay.

"[Detective Cristinziani]: It's like
[Detective Young] said[,] your letter is
pretty short but life is pretty long.

"(Detective Young]: And there's a

lot .. . of things that are going on here
in 29 years that we'd like to have some
background on and... on your wife's
condition, her medical problems and
what [led] up to yesterday?

"[Wenzel]: Well you have to... check :
out Kaiser. 4

" [Detective Young]: Okay."

The detectives then had Wenzel fill out another form

and discussed with him the process of what was going to

Appendix A, 9

happen. Wenzel was reminded by the detectives twice more
that, although they had questions they wanted to ask him, it
was "entirely up to [him]" if he wanted to tell them what
happened. Wenzel responded, "Okay, well maybe later."

Twenty-five minutes later, Detective Young said to
Wenzel:

"[Detective Young]: "You know [our
fact gathering] is based on the
cooperation of the people we're dealing
with. You know, you have absolutely
every right not to talk to us.... I have
a lot of questions... ."

Shortly thereafter, Wenzel began talking to the
detectives about what occurred. Wenzel stated that he and
Lyn had made a pact. According to Wenzel, Lyn came home
from work on July 19 and, although she did not say anything,

he knew she was in pain. Before dinner, Lyn asked Wenzel
"[i]f [he] was strong enough." Wenzel replied, "Yes" or "If 1
have to be." Wenzel explained that Lyn had fibromyalgia and
on July 15 was told by a podiatrist that she had neuropathy.
. Lyn was "broken up" over the diagnos’s of neuropathy. Lyn
told Wenzel that night that she had taken some pills. Wenzel
told police that when Lyn went upstairs to their bedroom, he
stayed downstairs for approximately 30 minutes. He then went
upstairs and found Lyn asleep. Wenzel could hear her
breathing and snoring. He lay down next to her and watched

her for approximately one hour. Wenzel demonstrated for the

Appendix A, 10

detectives how he placed his hand over Lyn's mouth and
pinched her nose with his fingers to stop her breathing. He did
this for 30 to 45 minutes. He knew when she was dead
because he heard the "last bit of air in her . . . bubbling out."
Wenzel explained to police that he did it because "I love my
wife" and "I did it for her." Wenzel stated that she asked him
to do it, stating "it's time." Wenzel stated that when he woke
up the following morning he drank coffee, walked the dog and
went to work.

A pathologist's examination of Lyn's body showed she
died of asphyxiation by smothering. Her eyes, eyelids and
upper lip showed petechial hemorrhages consistent with being
asphyxiated. These small hemorrhages indicate an attempt to
breathe. A bruise was found on Lyn's lower lip that was
caused while she was still alive. Beyond the bruised lip, Lyn's
body showed no signs of trauma. Lyn did not die from an
overdose of sleeping pills. No pills or pill fragments were
found in Lyn's stomach. 2.1 nanograms per millimeter of
triazolam, a sleeping pill, were found in Lyn's blood. The
therapeutic amount of triazolam is between 2.0 and 20.0
nanograms per milliliter. The pathologist concluded that Lyn's
death was a homicide.

Days later, at a memorial service for Lyn, Wenzel told
his stepdaughter Trudy and a family friend, Judy Collins, the |
circumstances of Lyn's death. Wenzel told them essentially the
same story as in his note and confession to the police. He also

Appendix A, 11

told Judy Collins that he knew a good attorney that could "get
[him] off."

On October 13, 12 weeks after killing Lyn, Wenzel
married Nancy Rehm, a woman who lived in the same
apartment complex as Wenzel and Lyn. According to Rehm,
they had started dating 12 days prior to their marriage.
However, Rehm testified that she first met Wenzel before Lyn's
death, when she asked him to flip her mattress in her bedroom.
Rehm described herself as very lonely for a long time prior to
meeting Wenzel. Shortly after they met, Wenzel told Rehm
how Lyn died. Again, Wenzel's story matched the statements
he had given to police and others.

Wenzel and Rehm were seen together within a few
weeks of Lyn's death, and Wenzel was seen going into Rehm's
apartment. Wenzel did not tell his stepson, Ted Levy, that he
had remarried until the summer of 2000. Although Wenzel
told his brother, John Wenzel, in November about his marriage
to Rehm, Wenzel told him not to tell anybody about it and got

mad at John for discussing the marriage.

Appendix A, 12

B. Defense Case

Lizabeth Keith, a neighbor of Wenzel and Lyn, testified
that in early 1999 Lyn told her that she had a durable power of
attorney for healthcare.’ Keith was going through
chemotherapy, and she and Lyn agreed that there were some
things worse than death. Leslie Satz, a coworker of Lyn's,
testified that Lyn told her that she would not want to live if she
were ever "gravely disabled." Lyn had a similar conversation
with her sister Sheilah in 1995 or 1996, while they were
discussing a 95-year-old man who could no longer care for
himself. Lyn's son Ted Levy testified that on July 15, 1999, he
called Lyn and "she was crying and upset about something and
said she had just been to the doctor." However, Lyn would
not tell Ted Levy what it was that had upset her.

Several witnesses testified that Wenzel and Lyn had
what appeared to be a very loving and devoted relationship.
Lyn told her boss that she was in pain and was disappointed
over her failed efforts to lessen that pain. Lyn's mother-in-law
Olive Wenzel testified that Lyn had a lot of problems with her
health, many times being unable to throw a ball to her pet dog.
Virginia Hemond, a friend of Lyn's, testified that Lyn
complained to her about the pain she was suffering. A couple
of days before her death, O'Brien observed Lyn as being

5

According to John Wenzel, Lyn did not in fact have a
durable power of attorney for healthcare, nor any similar
provision in her will.

NN Eo I Ae RG Bt AD

Ne ee ae ea wed ‘

SANGALO ILA

Appendix A, 13

"pretty down as far as this neuropathy . . . she just found out
she had." John Wenzel knew Lyn had fibromyalgia, was in
pain, and was not getting any satisfaction from medical
attention. Several others also testified to Lyn's ailments and
pain.

Wenzel called Dr. Clark Smith, a board-certified
psychiatrist, who diagnosed Wenzel as suffering from bipolar
mood disorder, with a dependent personality trait. Dr. Smith
testified that Wenzel was prone to form dependent
relationships and that his reality testing was "unrealistic and
poor." Dr. Smith further stated that Wenzel's moods would go
up and down rapidly and unexpectedly. Dr. Smith also opined
that under stress Wenzel was "unable to think it through
rationally and make rational choices."

Wenzel also sought to examine Dr. Smith as to the
mental state of a hypothetical person with Wenzel's mental
disorder at the time of a killing such as Lyn's. However, the
court excluded this evidence as going to an ultimate issue that
the jury was to decide: Wenzel's intent at the time he killed
Lyn.

Dr. Le Vasseur testified that she prescribed two drugs
to Wenzel, Depakote and Trazodone, for his mood instability.

Rehm testified that she and Wenzel did not begin dating
until September 30. The next day they walked on the beach
and Wenzel told her the details about how he killed his wife.
After dinner that night, she and Wenzel talked about having
sex. Rehm insisted that Wenzel get tested for HIV before they

Appendix A, 14

had sex. Four days later, Wenzel called Rehm at work and
asked her to go on a trip with him to Big Bear, Yuma and Palm
Springs. When they went on the trip, Wenzel brought a
certificate showing he did not have HIV and asked Rehm to
marry him.

Dr. Stephen Shuchter, a psychiatrist specializing in
depression and bereavement, testified that after the loss of a
loved one, men remarry more quickly than women do. Dr.
Shuchter testified that one out of every eight men become
involved in a romantic relationship within two months after the
death of a loved one.

C. People's Rebuttal

The parties stipulated that before trial the court ordered
Wenzel to make himself available for a psychiatric or
psychological examination in the presence of an expert selected
by the People. When Wenzel showed up at the appointment,
he handed the state's psychiatrist, Dr. Steven Ornish, an
envelope and said he would be right back. However, instead of
coming back, Wenzel got into his car and drove off. Dr.
Ornish opened the letter, which read:

"I understand I've been ordered to meet
with you and provide you information
about myself. You should have 2,000
pages of discovery, videotaped
statement I gave police, along with a
note, Dr. Smith's two reports, and Dr.
Lipsom's testing. I do not want to speak

Appendix A, 15

with you further because I believe you're
not a neutral expert."

Based upon Wenzel's failure to appear for his court-
ordered

CALJIC No. 17.41.1 contains no language suggesting
that a juror is exposed to personal sanctions if he or she refuses
to follow the law, so there is no coercive aspect to this
instruction. (Cf. People v. Sanchez (1997) 58 Cal.App.4th
1435, 1446 & fn. 2.)

a

Appendix A, 46

knowledge, premeditation, deliberation,
or malice aforethought, with which the
accused committed the act. Evidence of
mental disease , mental defect, or mental
disorder is admissible solely on the issue
of whether or not the accused actually
formed a required specific intent,
premeditated, deliberated, or harbored
malice aforethought, when a specific
intent crime is charged."

Section 29 provides:

"In the guilt phase of a criminal action,
any expert testifying about a defendant's
mental illness, mental disorder, or
mental defect shall not testify as to
whether the defendant had or did not
have the required mental states, which
include, but are not limited to, purpose,
intent, knowledge, or malice
aforethought, for the crimes charged.
The question as to whether the
defendant had or did not have the
required mental states shall be decided
by the trier of fact."- (Italics added.)

Section 29 thus forbids a defense expert from testifying
on the ultimate issue of whether a defendant had the requisite
mental state at the time he committed the charged offense.
(People v. McCowan (1986) 182 Cal.App.3d 1, 13, 14.) "The
Legislature has determined that judges and jurors are capable

of deciding whether a defendant's mental illness resulted in an

Appendix A, 47

inability to form the mental state required to sustain the charge.
Such testimony is not ‘sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact... .'
[Citation.]" (/d. at p. 14.)

Wenzel asserts that the proposed testimony of Dr.
Smith that was excluded by the court did not run afoul of
section 29 because it was couched in terms of whether a
hypothetical person, suffering from the same disorder as
Wenzel, would have formed the requisite malice necessary to
be found guilty of murder. However, regardless of whether a
hypothetical person was used as the basis of Dr. Smith's expert
testimony, it was improper under section 29. Dr. Smith was
required to assume facts identical to Wenzel's case and assume
a hypothetical person with the identical psychological makeup
as Wenzel. Dr. Smith would then be asked whether, at the
time this hypothetical person put his hands over his wife's
mouth and nose, he would have (1) carefully thought out what
he was doing; (2) weighed the considerations for and against
his conduct; (3) been acting based on reasoned judgment; (4)
been deliberating his conduct; and (5) been acting under the
emotion of the moment. Changing the subject of the testimony
to a hypothetical person does not change the fact that Dr.
Smith was going to testify whether Wenzel, at the time he
killed Lyn, had the requisite intent necessary for murder.

In People v. Nunn (1996) 50 Cal.App.4th 1357, the

trial court excluded the expert opinion of a defense witness

that, based upon the defendant's inebriation and tendency to

Appendix A, 48

overreact to stress, he fired his rifle "impulsively" at the time of
the offense. (/d. at pp. 1361-1362.) The defendant argued on
appeal that this was proper because the expert avoided the use
of the legal name of the mental state in question. (/d. at p.
1364.) However, in affirming the trial court's ruling, we
rejected such "game playing." (/bid.) As we stated there, "An
expert may not evade the restrictions of section 29 by couching
an opinion in words which are or would be taken as synonyms
for the mental states involved." (People v. Nunn, supra, at p.
1364.)

Likewise in this case, Wenzel cannot evade the terms of
section 29 by offering an opinion as to the mental state of a
hypothetical person with the same mental condition at the time
he or she committed an identical crime. To hold otherwise
would render the limits imposed by section 24 meaningless.
The court did not err in excluding that portior of defense
expert Dr. Smith's testimony concerning Werzel's mental state
at the time he killed his wife Lyn.

G. Court's Instruction Re Wenzel's Refusal To
Cooperate with the Court-Ordered Psychiatric Exam

Wenzel contends that the court erred mn instructing the
jury concerning his refusal to participate in a sourt-ordered
psychological exam because such an examinétion was barred
by the terms of Proposition 115 (§§ 1054-1054.8). We reject
this contention.

Section 1054, subdivision (e) provides that "no

discovery shall occur in criminal cases excep: as provided by

Appendix A, 49

this chapter, other express statutory provisions, or as mandated
by the Constitution of the United States." (Italics added.)
Evidence Code section 730 provides in part:

"When it appears to the court, at any
time before or during the trial of an
action, that expert evidence is or may be
required by the court or by any party to
the action, the court on its own motion
or on motion of any party may appoint
one or more experts to investigate, to
render a report as may be ordered by the
court, and to testify as an expert at the
trial of the action relative to the fact or
matter as to which the expert evidence is
or may be required."

Under Evidence Code section 730, a court may, in its
discretion, order a psychiatric or psychological examination
where a party's mental state is at issue. (Jn re Marriage of Kim
(1989) 208 Cal.App.3d 364, 372; People v. Ayala (2000) 23
Cal.4th 225, 264.) Further, the California Supreme Court has
upheld an instruction almost identical to the one challenged
here where the defendant refused to abide by a court's order to
submit to a mental examination after the defendant put his
mental state in issue. (People v. Carpenter (1997) 15 Cal.4th
312, 412-413.) In upholding the instruction, the high court
stated, "Defendant had no right to refuse to cooperate with the
psychologist, so the jury could properly consider his refusal.
[Citation.] The jury could properly infer that defendant wanted

only his self-chosen experts, not others, to evaluate him, an

Appendix A, 50

inference relevant to its consideration of all evidence of his
mental condition." (/d. at p. 413.)

Wenzel claims that the order compelling a psychiatric
examination was improper as there is no express authority for
such an examination, and therefore it violated the terms of
section 1054, subdivision (e). Wenzel asserts that Evidence
Code section 730 at most only allows the appointment of an
expert, not a forced psychiatric examination. However, this
ignores the terms of Evidence Code section 730. Evidence
Code section 730 allows the court to appoint an expert to
"investigate" an issue that the court deems should be the
subject of expert testimony. Section 730 thus provides express
authority for a court to compel a psychiatric examination. (See
In re Marriage of Kim, supra, 208 Cal.App.3d at p. 372.) The
court did not err in instructing the jury concerning Wenzel's
failure to comply with a court ordered psychiatric examination.

H. Instruction under CALJIC No. 2.90

Wenzel contends that the court erred in instructing the
jury under CALJIC No. 2.90, defining reasonable doubt,
claiming that instruction is unconstitutional as it fails to instruct
the jury that they must find Wenzel's guilt by a standard of
"evidentiary certainty" or "subjective state of near certitude."
We reject this contention.

We conclude that CALJIC No. 2.90 properly defines
the reasonable doubt standard of proof because it substantially

adopts language suggested by the California Supreme Court in
People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9.

Appendix A, 51

Other courts have consistently upheld this instruction against
similar constitutional attacks. (People v. Hearon (1999) 72
Cal.App.4th 1285, 1286-1287; People v. Miller (1999) 69
Cal.App.4th 190, 213; People v. Sanchez (1997) 58
Cal.App.4th 1435, 1451; People v. Aguilar (1997) 58
Cal.App.4th 1196, 1207-1209; People v. Godwin (1996) 50
Cal.App.4th 1562, 1571-1572; Lisenbee v. Henry (9th Cir.
1999) 166 F.3d 997, 998-1000.) We decline to adopt a
contrary position and conclude the trial court properly
instructed on reasonable doubt with CALJIC No. 2.90. As we
stated in People v. Carroll (1996) 47 Cal.App.4th 892, 896:
"We consider the opinion in People v. Freeman, supra, 8
Cal.4th 450 to be dispositive of this issue. The instruction
comports with the Supreme Court's determination of what is
the appropriate definition of reasonable doubt. It is for the
Supreme Court to reconsider such definition if it chooses to do
so. Our task is simple: we will apply the law as the Supreme
Court has stated it."

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:
McDONALD, J.
McCONNELL, J.

APPENDIX B

Sept 11, 2002 Order of the
California Supreme Court
Denying Review

Appendix B |

Court of Appeal, Fourth Appellate District, Division One - No. DO37914
$108214

IN THE SUPREME COURT OF CALIFORNIA
-En Banc

THE PEOPLE, Plaintiff and Respondent,
SUPREME COURT
FILED

. SEP | 7
V ft ore K. Ohlrich Clerk
— ec

GEORGE MARTIN WENZEL, Defendant and Appellant

Petition for review DENIED.

Kennard, J., is of the opinion the petition should be granted.

GEORGE
Chief Justice

APPENDIX C

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(S661) 9S9 YIN} ay} UI Jatjaq Suipiqe’uossad ajqeuoseas
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0813%3A1. Public record. Not legal advice.