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accountant：
我还有别的案例，我明天发给你。我需要睡觉了。 BYE-BYE
jshi6210 发表于 2009-6-21 13:53 
你先看看这个案例.
The People had the burden of establishing beyond a reasonable doubt that defendant had not acted in self-defense.
The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable."
If the jury had a reasonable doubt on the issue the jury must acquit.
[url=]2007 Cal. App. Unpub. LEXIS 5039, *[/url]
THE PEOPLE, Plaintiff and Respondent, v. BERTRAN LEE WILSON, Defendant and Appellant.
B190290
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2007 Cal. App. Unpub. LEXIS 5039
June 22, 2007, Filed
[url=]NOTICE:[/url] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
[url=]PRIOR HISTORY:[/url] [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA279262. Rand S. Rubin, Judge.
[url=]DISPOSITION:[/url] Reversed.
[url=]CORE TERMS:[/url] self-defense, reasonable doubt, burden of proof, living room, assault, knife, burden of proving, bodily injury, jury's question, use of force, disprove, deadly weapon, defense counsel, prosecutor's, incomplete, misleading, stabbing, bag, key issue, closing argument, bedroom, cocaine, kitchen, couch, reasonably believed, reasonably necessary, imminent danger, burden to prove, deliberation, correctly
COUNSEL: James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
JUDGES: WILLHITE, J.; EPSTEIN, P.J., SUZUKAWA, J. concurred.
[url=]OPINION BY:[/url] WILLHITE
[url=]OPINION[/url]
INTRODUCTION
Using a butcher knife, defendant Bertran Wilson eviscerated his roommate Steven Traylor. The People prosecuted defendant for attempted murder and assault with a deadly weapon or by means of force likely to produce great bodily injury. The People further alleged that defendant had personally used a deadly weapon and inflicted great bodily injury. At trial, the key issue was whether defendant acted in self-defense. Both men testified to their respective versions of the events; both were impeached by inconsistent statements and contradictory evidence.
In instructing the jury, the trial court correctly defined the elements of self-defense: at the time of the crime, the defendant must reasonably [*2] believe that he is in imminent danger of suffering bodily injury; the defendant must reasonably believe that immediate use of force is necessary to defend against the danger; and the defendant must use no more force than is reasonably necessary for his defense. The court also correctly told the jury, pursuant to CALJIC No. 9.00, that the People had the burden of establishing beyond a reasonable doubt that defendant had not acted in self-defense. In closing argument, however, the prosecutor incorrectly stated that it was the defense burden to establish self-defense.
During deliberations, the jury asked for clarification as to which party bore the burden of proof on the issue of self-defense and what that evidentiary burden was. The trial court's response first directed the jury to review the pattern instructions about self-defense. These instructions did not explain the burden of proof. Next, the court gave the following instruction on the prosecution's burden: "The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable." The court did not inform the jury that the People also had the burden of proving that the defendant's use [*3] of force was not in self-defense, and that if the jury had a reasonable doubt on the issue the jury must acquit. Very shortly thereafter, the jury found defendant guilty of assault and found the two enhancement allegations to be true. (The jury acquitted defendant of the attempted murder charge.)
On this appeal, defendant contends that the trial court's response to the jury's question requires reversal. We agree. The trial court's incomplete response was misleading. It informed the jury only that the prosecution had the burden of proving that defendant used unreasonable force. Although this response was correct insofar as it went, it failed to inform the jury that the prosecution also had the burden of proof on the other elements of self-defense - i.e., whether defendant reasonably believed that he was in imminent danger of suffering bodily injury, and whether defendant reasonably believed that immediate use of force was necessary to defend against the danger. The response thereby left the impression that defendant bore the burden of proof on those issues, and permitted the jury to convict if it concluded that defendant had not met that burden.
We cannot say that this error was harmless [*4] beyond a reasonable doubt. The parties framed self-defense as the key issue. The record contains evidence from which a properly instructed jury could entertain a reasonable doubt about whether defendant acted in self-defense. We therefore conclude that the trial court's error in answering the jury's inquiry with an incomplete and misleading statement about the burden of proof was prejudicial. Accordingly, we reverse the judgment.
STATEMENT OF FACTS
1. The Prosecution's Case-in-Chief
Defendant, Steven Traylor (the victim), and Gregory Swanson shared a house together. Defendant slept on the couch in the living room; Traylor and Swanson each had his own bedroom.
Swanson did not witness the stabbing but did testify to his earlier interactions with defendant on the day in question, February 23, 2005. According to Swanson, defendant arrived home around 6:00 p.m. He had been drinking heavily. Defendant, who carried knives on a daily basis, had three butcher knives in his pants. Swanson explained that defendant normally laid the knives out next to him before he went to sleep. For approximately two hours, defendant initiated hostile and incoherent arguments with Swanson but no physical confrontation [*5] occurred. 1 During this time, Traylor remained in his room. Around 8:00 p.m., Swanson retired to his bedroom.
FOOTNOTES
1 When defendant testified, he denied that he had arrived home at 6:00 p.m. and that he had had these arguments with Swanson.
Traylor testified that he encountered defendant at approximately 10:00 p.m. He (Traylor) had drunk three or four cans of beer earlier that day, between noon and 4:00 p.m. 2 Traylor, conceding that he used crack cocaine on a regular basis, testified that he had not smoked any that day and that he was not drunk when defendant later stabbed him. 3
FOOTNOTES
2 In contrast, Swanson testified that Traylor started drinking after 6:00 p.m.
3 As will be set forth later, the defense impeached Traylor's testimony on this issue. An expert testified that Traylor had ingested cocaine the day of the stabbing and had a .11 blood alcohol level. In rebuttal, Swanson testified that Traylor did not appear to be "high" "on cocaine" the night of the stabbing.
According to Traylor, defendant began cussing at him for no reason. Traylor yelled back at defendant and then went to the kitchen where he had been cooking tacos with a fork. Defendant remained in the adjacent living room and continued [*6] to yell at Traylor. The lights were on in both the kitchen and the living room. Traylor came out of the kitchen and yelled a profanity at defendant who was lying on the couch. Traylor was not carrying a fork or any other object and made no threatening gestures. Suddenly, defendant sat up and, in a quick swinging motion, stabbed Traylor in the stomach. As a result, Traylor's intestines came out of his body. Traylor yelled: "[Defendant] cut my guts out." Traylor never saw the knife.
Swanson, who had been in his bedroom during the altercation, heard Traylor's cry and came to the living room. Swanson saw the eviscerated Traylor bleeding heavily. Defendant was seated on the couch. Defendant calmly placed some items in a bag and left without saying anything.
Swanson immediately telephoned 911. Within five minutes, the police and the paramedics arrived. Swanson told the police that defendant had stabbed Traylor and had left their home on foot. The police sent out a radio broadcast of defendant's physical description. Within 15 minutes, Los Angeles Police Officer Hugh Ogara saw defendant walking down the street, carrying a white plastic bag. The officer arrested him. Defendant's left hand was [*7] bloody and there was a half-inch cut on his left thumb. The officer opened the plastic bag and found a bloody knife.
2. The Defense Case
Defendant testified and claimed he had stabbed Traylor in self-defense.
According to defendant, he arrived home at approximately 10:00 p.m. on the evening of the stabbing. He was drunk. 4 Defendant began to watch television in the living room which also served as his bedroom. Traylor left his room and began walking back and forth through the living room, going to either the kitchen or the bathroom. Defendant thought that Traylor had used cocaine because he could not stay still. Defendant and Traylor had several profane arguments because Traylor's constant movements blocked defendant's view of the television. Defendant eventually turned the television off and laid down on the couch to go to sleep. Traylor continued to pace back and forth through the living room. The living room was dark, with the only light coming from the adjacent kitchen and bedroom. 5 In an angry tone, Traylor twice taunted defendant: "Call me a punk again, now just call me a punk again." Defendant, who was lying on the couch, replied: "Okay, then, punk." Traylor came at defendant [*8] with a shiny metal object. 6 Defendant put his hand up to protect himself. Traylor cut defendant's left hand between the thumb and forefinger, causing it to bleed. Instinctively acting to protect himself, defendant picked up the nearby butcher knife and swung it around "to keep [Traylor] from attacking [him] again." Traylor fell to his knees, exclaiming that defendant had cut him. Defendant, in shock, dropped the knife and replied: "Hang on, you had cut me." Defendant put on his clothes, placed some personal items into his bag, and left the house. Defendant opined that the butcher knife had fallen into the bag when he had dropped it. Defendant left because he was afraid he would go to jail.
FOOTNOTES
4 The pattern instructions about voluntary intoxication and its relationship to general and specific intent crimes were submitted to the jury. (CALJIC Nos. 4.20, 4.21, 4.21.1, 4.22.)
5 In rebuttal, Swanson testified that the lights were on in living room when he entered after hearing Traylor scream.
6 In his trial testimony, defendant never identified that object. The police did not find such any such object in the living room.
In addition to defendant's testimony, the defense presented expert testimony [*9] that Traylor had used cocaine shortly before the stabbing and that Traylor's blood alcohol level was .11
3. The Prosecution's Rebuttal Case
The prosecution offered evidence that defendant had given conflicting versions of the stabbing to the police after his arrest.
First, Officer Ogara testified he interviewed defendant at the police station on the day of his arrest, February 23, 2005. At that time, defendant claimed that Traylor had come into the living room while he was asleep. Traylor yelled at him and slapped him. Defendant picked up a knife to defend himself and cut Traylor. Defendant said he sustained a cut on his hand as a result of his fight with Traylor. However, defendant never told Officer Ogara that Traylor had been armed with a weapon and had cut him.
Next, Detective Jerome Code (the investigating officer) testified that he interviewed defendant on February 24, 2005. Defendant told him that Traylor had cut him with a knife. Defendant also claimed that he had left the knife he used to stab Traylor in the living room and that the police would not find a knife in the bag he was carrying when arrested.
4. The Jury Instructions
Before counsel presented their arguments, the court [*10] instructed the jury. It submitted, inter alia, CALJIC No. 9.00, the pattern instruction defining assault. Its last paragraph reads: "A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense. The People have the burden to prove that the application of physical force was not in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty." (Italics added.)
In addition, the court gave five standard instructions defining self-defense: CALJIC Nos. 5.30 ("Self-Defense Against Assault"), 5.31 ("Assault with Fists--When Use of Deadly Weapon Not Justified"), 5.50 ("Self-Defense-Assailed Person Need Not Retreat"), 5.51 ("Self-Defense-Actual Danger Not Necessary"), and 5.52 ("Self-Defense-When Danger Ceases").
5. Closing Arguments
The prosecutor began her closing argument by noting that the jury would be required to evaluate and determine the credibility of both the victim and the defendant. In regard to defendant's claim of self-defense, she urged his explanation of the events was not credible. Then, without any objection from the defense, she stated: "But [*11] the reason why this is not self-defense is because the defense has to prove two things: that [defendant] actually did believe that injury was imminent to him and that the force he used was necessary." 7
FOOTNOTES
7 Although defense counsel did not object below to these statements, defendant now contends that the comments constitute prejudicial prosecutorial misconduct. While we agree with the Attorney General that a timely and specific objection and request for a curative instruction would have cured the harm caused by this misstatement of law, we cannot see any satisfactory explanation for defense counsel's failure to object. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Nonetheless, we need not decide whether prosecutorial misconduct or ineffective assistance of trial counsel would be a sufficient basis to reverse the judgment since, as will be explained, the trial court's incomplete and misleading response to the jury's question was an error which was not harmless beyond a reasonable doubt.
Defense counsel's closing argument conceded that an assault had occurred. He argued that the key issue was self-defense and that the case came down to a credibility determination. During his [*12] explanation of the prosecution's burden of proof, he stated: "[I]f you have a doubt, for example, you're not sure but think maybe this is self-defense, and it's caused you to doubt whether or not the prosecution has proven to you that it's not self-defense, you have a reasonable doubt at that point and you have to return a verdict of not guilty." At another point, he said: "It is not okay to allow the burden of proof to be shifted onto [the defendant]. He doesn't have to prove anything to you. Not a thing. . . . If anything that [the defendant] said to you or if any other evidence that was presented to you by the defense causes you to doubt the evidence of the prosecutor, then you have a reasonable doubt and you must return a verdict of not guilty."
In her rebuttal argument, the prosecutor reiterated that credibility and self-defense were the key issues the jury had to address. She made no specific reference to burden of proof.
6. The Jury's Question and The Court's Response
During deliberations, the jury sent the following question to the trial court: "When considering the self-defense issue of Count 2 [assault with a deadly weapon], whose responsibility is it to prove or disprove self-defense, [*13] and to what level?"
The court met with counsel to discuss the jury's inquiry. The following exchange occurred:
"[Defense Counsel]: The defense would propose, beyond just reading the self-defense instructions over again, particularly because this is sometimes a confusing issue for jurors regarding whose burden it is to prove or disprove self-defense, my understanding of the law is that if they have a reasonable doubt as to whether or not self-defense applies then they must return a verdict of not guilty.
"In other words, unless the People have proven beyond a reasonable doubt that the defendant did not act in self-defense, they're mandated by law to return a verdict of not guilty.
"THE COURT: I don't think that's an accurate statement of the law.
"[Deputy District Attorney]: I don't either.
"THE COURT: I think an accurate statement of the law is that the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. I think that's an accurate statement of the law.
"[Defense Counsel]: I think that's also an accurate statement of the law.
"[Deputy District Attorney]: And that he believed - that he believed - isn't it the prong, that he actually [*14] believed an injury and that he didn't use more than -
"THE COURT: No. I think the jury instruction talks about the use of reasonable force in self-defense. I think the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable.
"If the two of you want time to look into this, you can look into it. So my response would be to reread [CALJIC Nos.] 5.30, 5.31, 5.50, 5.51, and 5.52, and that the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable.
"[Defense Counsel]: Submitted.
"[Deputy District Attorney]: Submit.
"THE COURT: Okay. That's the response they'll get then."
Thereafter, the court sent the jury the following written response: "Please re-read Jury Instructions 5.30, 5.31, 5.50, 5.51, and 5.52. [P] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable." Twenty-seven minutes later, the jury returned with its verdicts. It convicted defendant of assault with a deadly weapon with true findings on the enhancement allegations of personal use of a deadly weapon and infliction of great bodily injury. It acquitted [*15] defendant of attempted murder as well as the lesser included offense of attempted voluntary manslaughter (act committed during a sudden quarrel or in heat of passion).
DISCUSSION
Defendant contends that reversal is required because the trial court failed to answer adequately the jury's question about which party carried the burden to prove or disprove self-defense. We agree.
"For self-defense, the defendant must actually and reasonably believe in the need to defend, the belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury." (People v. Lee (2005) 131 Cal.App.4th 1413, 1427.) Further, the defendant may use only that amount of force which is reasonably necessary to defend against the danger. (People v. Clark (1982) 130 Cal.App. 3d 371, 380.) When, as here, there is sufficient evidence to warrant instructions on self-defense, the prosecution must prove beyond a reasonable doubt that the defense does not apply. (People v. Adrian (1982) 135 Cal.App.3d 335, 340-341; People v. Pineiro (1982) 129 Cal.App.3d 915, 920; People v. Banks (1976) 67 Cal.App.3d 379, 384.) In other words, if there is a reasonable doubt whether the defense applies [*16] - i.e., a reasonable doubt whether the defendant reasonably believed he was in imminent danger of bodily injury, reasonably believed immediate use of force was necessary to defend, and used no more force than was reasonably necessary - the jury must acquit.
The parties agree that CALJIC No. 9.00-which was submitted to the jury--correctly applied the concept of self-defense to the charge of assault. Where the parties disagree is on the question of the sufficiency of the trial court's response to the jury's question. 8 Defendant's attack on the trial court's response is two fold. First, defendant urges that because the trial court failed to instruct the jury to review CALJIC No. 9.00, it did not properly direct the jury to any instruction explaining that the prosecution had the burden of proving beyond a reasonable doubt that he did not act in self-defense and that if the jury entertained a reasonable doubt about the application of the defense, it was required to acquit him. Defendant's claim is well-taken. None of the five instructions cited by the trial court in its response addressed those issues. The instructions simply explained the elements of and exceptions to self-defense.
DISPOSITION
The judgment is reversed.
WILLHITE, J.
We concur:
EPSTEIN, P.J.
SUZUKAWA, J. |
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楼主: 空气稀薄
狗仔卡
发表于 2009-6-21 14:39
显身卡
某个黄皮白心的香蕉佬 不知道在中国大陆 法院办案是以“三个至上”为原则 根本谈不上什么独立审判。
啦. 
,我可以肯定:在美国的所有案例中,找不到一个案例,在所有涉案人员中,有一个人象你知道这么多的此案"内部事实".
