People v. Scott

¶1I respectfully dissent in order to register my concern the formal charge against appellant appears constitutionally insufficient to support a felony-murder conviction. As an additional and independent ground for dissenting, I am concerned there was an absence of any timely, reasonable notice appellant was being prosecuted for this crime. Either of these failures constitutes a denial of appellant’s due process rights and requires reversal.

¶2I. The Failure to Charge Defendant With a Felony or With Felony Murder

¶3It is clear a state has the right to establish forms of pleading to be observed in its own courts, provided the guaranties of the federal Constitution involving the protection of life, liberty, and property are obeyed. (Ex Parte Reggel (1885) 114 U.S. 642, 651 [29 L.Ed. 250, 253, 5 S.Ct. 1148]; People v. Covington (1934) 1 Cal.2d 316 [34 P.2d 1019]; People v. Robinson (1930) 107 Cal.App. 211 [290 P. 470].) Thus, the California Legislature is free to charge a defendant of a crime in the “short form,” without technical averments, in “substantially” the language of the Penal Code, and meet the sufficiency of pleading standard necessary to pass constitutional, and particularly due process, concerns (People v. Quinn (1949) 94 Cal.App.2d 112 [210 P.2d 280]; People v. O’Neal (1934) 2 Cal.App.2d 551 [38 P.2d 430], cert. den. 295 U.S. 731 [79 L.Ed. 1680, 55 S.Ct. 646]).

¶4Counterbalanced against the state’s freedom to interpose its own pleading standards, however, is the constitutional requisite that the pleading *721adequately advise the defendant of the nature and cause of the charges against him. (U.S. Const., Amends. VI, XIV; Rogers v. Peck (1905) 199 U.S. 425 [50 L.Ed. 256, 26 S.Ct. 87]; Garland v. Washington (1914) 232 U.S. 642 [58 L.Ed. 772, 34 S.Ct. 456].) Notions of substantial justice underlie this express mandate of notice. Ultimately, the advisement of charges ensures defendants will have a reasonable opportunity to prepare and present their defenses and not be taken by surprise by evidence offered at trial (In re Hess (1955) 45 Cal.2d 171 [288 P.2d 5]; In re Oliver (1948) 333 U.S. 257, 273 [92 L.Ed. 682, 694, 68 S.Ct. 499]).

¶5The constitutional necessity of notice was aptly set forth in People v. Jones (1990) 51 Cal.3d 294 [270 Cal.Rptr. 611, 792 P.2d 643]. There, the California Supreme Court elucidated these concepts by stating: “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Thomas (1987) 43 Cal.3d 818, 823 [239 Cal.Rptr. 307, 740 P.2d 419], and cases cited.) ffl] Thus, the right to defend has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges.” {Id. at p. 317.)

¶6The People’s argument that appellant received the constitutionally mandated notice of the felony-murder charge in this action, despite the absence of either a charge of felony murder or an underlying felony, is twofold. First, relying on People v. Watkins (1987) 195 Cal.App.3d 258 [240 Cal.Rptr. 627], the People assert that the Watkins reasoning, which is based upon its own interpretation of People v. Witt (1915) 170 Cal. 104 [148 P. 928], supports the proposition a defendant may be convicted of felony murder when the information only charges murder with malice.

¶7But Watkins erroneously interprets, and unconstitutionally expands the Wittholding. The Wittdecision is limited. It determined only that the trial court did not err in instructing the jury that where the killing is done in the perpetration or attempt to perpetrate one of the felonies specified in section 189 of the Penal Code, the jury has no option but to find the killing to be murder in the first degree. Wittis necessarily premised upon an assumption the defendant was placed on notice of the charge against him. Therefore, it did not (and, in fact, could not) decide whether the failure to charge or notify defendant would preclude a trial judge from instructing, and, therefore, convicting, as to that count. Yet, Watkins so holds.

¶8The instant case would be a different one if the People had initially charged appellant with the underlying felony and with malice aforethought *722murder without charging felony murder, as the prosecution did in Witt. Given that factual setting, appellant would be on notice as to a possible charge of felony murder.1 But here, neither robbery, nor another underlying felony, nor felony murder was ever charged, despite ultimate prosecution and conviction for the crime of felony murder. Appellant therefore was deprived of his constitutional right to be formally notified of the felony-murder charge, and of the ability to adequately defend against it.

¶9The prosecution attempts to remedy this flaw by coupling Witt/Watkins with the decision in People v. Dillon, supra,34 Cal.3d 441. They argue, and the majority holds, that Dillon does not attempt to characterize felony murder and malice aforethought murder as two separate crimes. Therefore, because of the purported identity of these two crimes, appellant was sufficiently on notice of the felony-murder charge despite its absence in the information.

¶10But the language of the Dillon decision suggests otherwise. The court noted: “. . . (T)he two kinds of first degree murder in this state differ in a fundamental respect-, in the case of deliberate and premeditated murder with malice aforethought, the defendant’s state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt; in the case of first degree felony murder it is entirely irrelevant and need not be proven at all.” (34 Cal.3d at pp. 476-477, italics added.) Thus, malice is no longer presumed; it is simply not an element of the crime of felony murder. Meanwhile, in felony murder the prosecution must prove an element not required for malice aforethought murder, i.e., that the murder arose out of the commission of a felony of a certain sort.

¶11The constitutional challenge the Supreme Court faced in Dillon was based upon the holding set forth in In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068]. Winshipruled that an accused is protected against conviction “except upon proof of every fact necessary to constitute the crime with which he is charged.” It held no element of a *723crime can be “presumed.” In order to comply with this constitutional mandate, the Dillon court determined malice was not an element of felony murder, and, in doing so, necessarily destroyed the presumption of malice created by and relied on in Wittand its progeny. Winship, and Dillon's rationale for avoiding it, further support the principle that felony murder and malice aforethought murder are separate and distinct crimes. To find otherwise would be constitutionally impermissible.

¶12While Dillon correctly suggests felony murder and malice aforethought murder can both be murder in the first degree, their similiarity ceases there. As stated in Dillon, the two crimes are fundamentally different: malice aforethought murder requires an examination of defendant’s state of mind for the presence of malice, felony murder does not.

¶13Neither Dillon nor Wittnor Watkins, then, stands for the proposition that notice is given of potential liability for another crime where, as here, the crimes instructed on contain an element different from that included in the crime charged. Because of the elemental differences between malice aforethought murder and felony murder, a defendant must necessarily modify the position he takes with regard to defenses interposed, witnesses called, questions asked, objections made and overall posturing of his case. Thus, he will assuredly be prejudiced by the absence of a charge in the information notifying him as to which of these two distinct crimes the prosecution intends to pursue. Just as the prosecution would not present a malice aforethought murder charge to the jury in the same fashion as a felony murder, neither would defendant present his defense in the same way. Deprived of adequate notice, a defendant will be forced to “shoot from the hip,” and, as such, will be denied the opportunity to present his best defense. This result is not only intrinsically unfair, but as discussed above, clearly unconstitutional.

¶14II. The Failure to Provide Timely, Actual Notice of the Felony-murder Charge

¶15As a second and independent reason for dissenting in this case, I am concerned the prosecution gave untimely actual notice it was intending to attempt to convict appellant of felony murder. Even if the failure to charge felony murder in the information did not deny appellant due process, the failure to apprise him in any way of the intent to base liability on that crime—rather than malice aforethought murder—until the trial itself deprived him of the opportunity to prepare a defense to this entirely different basis of liability. As pointed out in Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, error of this nature is so fundamental as to be reversible per se.

¶16*724While Sheppard v. Reesis not controlling law in this jurisdiction, it is entitled to great weight (Central Bank v. Superior Court of Sacramento County (1973) 30 Cal.App.3d 962 [106 Cal.Rptr. 912]). I find it persuasive as well, particularly given the similarity in the timing of notice.

¶17In Sheppard, as here, defendant was charged only with one count of murder under Penal Code section 187. At no time during pretrial proceedings was the felony-murder allegation raised, and it was not until a request for jury instructions was made that defendant became aware of the state’s reliance on that crime. Despite defendant’s vehement objection, the jury was instructed on felony murder. The defendant was ultimately convicted of murder in the first degree by way of a general verdict.

¶18The defendant’s argument in Sheppardwas similar to the one raised at bar, that is, because neither felony murder nor an underlying felony was charged, he did not receive adequate notice to prepare a proper defense to felony murder.

¶19The main question before the Sheppardcourt was not whether there was adequate notice, since it was clear, and the state ultimately conceded, that there was not. Sheppardpremised its finding on that threshold issue on the decision in Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 571. In that case the Ninth Circuit had held “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense —a right to his day in court—are basic in our system of jurisprudence . . . .” (Quoting In re Oliver (1948) 333 U.S. 257, 273 [92 L.Ed. 682, 694, 68 S.Ct. 499].) The failure to give actual notice of the intent to seek to convict defendant of felony murder until late in the trial deprived Sheppard of that basic right.

¶20The Sheppardcourt focused most of its attention on the question of whether the harmless error rule applied to this denial of due process. It held that despite Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065], the harmless error rule did not apply, since the constitutional error in Sheppardwas of a fundamental nature. The court stated:

“A trial cannot be fair unless the nature of the charges are adequately made known to him or her in a timely fashion. . . . Here, the prosecutor ‘ambushed’ the defense with a theory of culpability after the evidence was already in (and) after both sides had rested .... This new theory then appeared in the form of unexpected jury instructions permitting the jury to convict on a theory that was neither subject to adversarial testing, nor *725defined in advance of the proceeding. []}] Moreover, the right to counsel is directly implicated. That right is next to meaningless unless counsel knows and has a satisfactory opportunity to respond to the charges against which he or she must defend. Sheppard’s counsel had no occasion to defend against a felony-murder theory during the evidentiary hearing phase of the trial. This error affected the composition of the record. . . . Defense counsel would have added an evidentiary dimension to his defense designed to meet the felony-murder theory had he known at the outset what he was up against.” (Sheppard v. Rees, supra,909 F.2d at p. 1237.)

¶21Sheppardis precisely on point, and its rationale is even more persuasive here since, as appellant suggests, the case at bar gave even less notice of a felony-murder charge than did the facts in Sheppard. Here, there was virtually no evidence of robbery at appellant’s preliminary hearing, and very weak evidence of robbery brought out at trial that the victim’s guns were missing. Further, the prosecution first expressly mentioned its reliance upon a felony-murder charge after its initial jury instruction discussion with appellant's counsel and the court. This mention came after both sides had rested and far too late for appellant to counter the charge before the jury. It is precisely this sort of “back door” notice against which the due process clause protects.

¶22The People attempt to claim appellant had notice of the intent to charge felony murder early in the trial proceedings because the prosecutor mentioned the definition of felony murder during voir dire of the jury. However, read in context it is clear the prosecutor was only mentioning felony murder in the course of explaining the concept of malice aforethought. A reasonable defendant or reasonable defense lawyer listening to this explanation during voir dire would not anticipate the prosecution was planning on seeking a conviction for felony murder instead of or in addition to malice aforethought murder. (This even assumes that notice of such a fundamental shift in charges which comes as late as jury voir dire provides a defendant with his due process right to prepare and present a defense to the new offense.)

¶23Contrary to the majority’s representations, when the prosecution does not notify the defendant of a charge until immediately before trial, evidence supplied at trial of that charge will not, post facto, serve as notification. (In re Hess (1955) 45 Cal.2d 171 [288 P.2d 5]; In re Carlos S. (1979) 94 Cal.App.3d 377, 380 [156 Cal.Rptr. 442], and cases cited therein.) In any event, because of the prosecution’s failure to notify defendant of the felony-murder charge until late in the trial, defendant was misled to his prejudice and prevented from preparing an effective defense (People v. Lohbauer (1981) 29 Cal.3d 364, 370 [173 Cal.Rptr. 453, 627 P.2d 183]). He was, therefore, unconstitutionally deprived of a fair trial.

¶24*726For the reasons discussed above, and because error of this fundamental nature cannot be harmless {Sheppard v. Rees, supra,909 F.2d 1234), I would reverse the conviction.

¶25Appellant’s petition for review by the Supreme Court was denied August 1, 1991. Mosk, J., was of the opinion that the petition should be granted.