People v. Dillon

¶1 I fully concur in parts I, II and IV of the lead opinion. Further-although I would rely more heavily on a century of precedent in addition to the rather slender legislative history as a basis for the existence of a statutory first degree felony-murder rule-I concur in the conclusions reached in part III.

¶2With respect to part V, although my views concerning the seriousness of defendant’s conduct parallel those of Justices Richardson and Broussard, it is evident that they were not shared by the jury. The facts recited in part V, B of Justice Mosk’s opinion leave no doubt that the trial court’s instructions—both before and during deliberations—caused an unwilling jury to return a verdict of first degree murder. In fact, the record compels the conclusion that if the trial court had fully answered the jury’s question posed in its second note—whether it “had to” bring in a verdict of first degree murder if it found that the victim was killed during an attempted robbery— at worst, defendant would have been found guilty of second degree murder.

¶3When the jury asked whether it was compelled to find defendant guilty of first degree murder if it found certain facts to be true, it was obviously looking for a way to avoid the harsh consequences of the felony-murder rule. The court reiterated its earlier instruction on the law, concluding that if “this killing occurred during the attempted robbery, then it would be murder of the first degree.” When this instruction is coupled with the court’s earlier standard admonition that it is the jury’s duty “to apply the rules of law that I state to you to the facts as you determine them ...” (CALJIC No. 1.00) this left the jury no choice. As far as the average lay juror is concerned, failure to follow the court’s instructions invites legal sanctions of some kind and unless the juror is willing to risk a fine, jail or heaven knows what, he or she feels bound to follow the instructions. Yet the essence of the jury’s power to “nullify” a rule or result which it considers unjust is precisely that the law cannot touch a juror who joins in a legally unjustified acquittal or guilty verdict on a lesser charge than the one which the proof calls for.1 It seems to me that when the jury practically begged the court to show it a way by which to avoid a first degree verdict, *491its immunity from legal harm if it followed its conscience was a fact of legal life on which the court was bound to instruct. 2

¶4The power of a jury to nullify what it considers an unjust law has been part of our common law heritage since Bushell’s Case (1670) 6 Howell’s State Trials 999. Bushell had been the foreman of a jury which—against all the evidence and in defiance of the direction of the court—acquitted William Penn and William Mead for preaching to an unlawful assembly. Imprisoned for their disobedience, the jurors were eventually freed on a writ of habeas corpus. The case established for all practical purposes, that thenceforth a jury was immune from legal sanctions for rendering a perverse acquittal.

¶5Judicial attitudes toward jury nullification run the gamut from grudging acceptance to enthusiastic endorsement. For example, in United States v. Dougherty (D.C.Cir. 1972) 473 F.2d 1113, the defense claimed that it was entitled to an instruction that the jury could disregard the law as stated by the court. The majority disagreed. After recalling some of the shining moments of jury nullification in American history—the acquittal of Peter Zenger and the many refusals to convict in prosecutions under the fugitive slave law—the court stated: “What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury’s prerogative, and approval of its existence as a ‘necessary counter to case-hardened judges and arbitrary prosecutors,’ does not establish as an imperative that the jury must be informed by the judge of that power.” (473 F.2d at p. 1136.) The dissent failed to understand why a doctrine that “permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice” (id., at p. 1142 (dis. opn. of Bazelon, J.)) should not be brought to the attention of the jury which may be bursting with a desire to be fair and render particularized justice, but does not know how.3

¶6One does not have to be as starry-eyed about jury nullification as the Doughertydissent to appreciate that the issue here is different than the one presented in Dougherty. To instruct on nullification at the outset of deliberations affirmatively invites the jury to consider disregarding the law. I understand the arguments against such a course and do not advocate it. What happened here, however, is that the court was faced with a jury which, after *492some deliberation and of its own accord, in effect asked; “May we nullify?” The answer it was given was obviously incorrect.

¶7I know of no case which has turned on the question whether such an answer is error which may affect the eventual jury verdict. Perhaps Sparf and Hansen v. United States (1895) 156 U.S. 51 [39 L.Ed. 343, 15 S.Ct. 273] comes closest. There the defendants were charged with capital murder. During deliberations several jurors returned to ask whether they could return a verdict of manslaughter. The court, in effect, said that they could not. On appeal the issue was formulated as being whether questions of law, as well as of fact, should be left to the jury. The answer was, predictably, in the negative.4 The United States Supreme Court did, however, note that the trial court had, after stating the applicable legal rules, instructed as follows: “In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court.” (Italics added and deleted.) (156 U.S. at p. 62, fn. 1 [39 L.Ed. at p. 348].) While nothing in the court’s analysis suggests that it was the recognition of the jury’s power that saved the day, it is significant that the trial court had obviously thought it proper to mention it.

¶8Actually, Doughertyitself suggests that if the jury spontaneously feels the urge to nullify, a different situation is presented. The “occasional medicine . . . daily diet ...” passage quoted above, continues in this fashion: “On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions.” (473 F.2d at pp. 1136-1137.) (Italics added.) While this language does not visualize that a spontaneous “call of high conscience” will result in a note to the trial court asking “what do we do now?” it is clear that even in the opinion of the Doughertymajority it creates a situation quite different from the one it had previously discussed—the jury which, absent judicial nudging, may be perfectly content to apply the strict letter of the law.

¶9That shoving the jury in the direction of nullification is something the trial court need not do does not mean that it is permitted to pressure the jury *493into stifling a spontaneous urge to nullify. In United States v. Spock (1st Cir. 1969) 416 F.2d 165, the convictions were reversed because the trial court had asked the jury to answer several “special questions” concerning the various elements of the crimes charged. The court felt that this procedure amounted to undue judicial pressure because it infringed on its power to arrive at a general verdict without having to support it by reasons. “There is no easier way to reach, and perhaps to force, a verdict of guilty, than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.” (Id. at p. 182.)

¶10The point of Spockis that it considers jury nullification not as a sick doctrine that has occasional good days, but as a positive value which must not be smothered by procedural gimmicks.

¶11As I have said, I do not share the lead opinion’s relatively benign view of defendant’s crime. The jury, however, did. It asked whether it could put its assessment of defendant’s culpability into effect. The court said “no” when the correct answer was plainly “yes.” Under the circumstances the error clearly calls for a reversal.

¶12If three of my colleagues agreed with me, we would face a knotty problem of disposition: Reversal? Modification to second degree murder? Modification to manslaughter? I am not sure what the proper answer would be. Under the circumstances, however, I am convinced that the only practical solution for me is to concur in the reduction of degree. I so concur.