PEOPLE v. COVARRUBIAS (DANIEL SANCHEZ)

Appellant’s Pre-Argument Supplemental Brief

Cal.May 24, 2016

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE Case No. S075136 OF CALIFORNIA, (Monterey Superior Court No. $C942212(C)) Plaintiff and Respondent, DANIEL SANCHEZ COVARRUBIAS, SUPREME COURT FILED MAY 24 2016 Defendant and Appellant. Frank A. McGuire Clerk Deputy AUTOMATIC APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF MONTEREY HONORABLE ROBERT MOODY, JUDGE, PRESIDING APPELLANT’S PRE-ARGUMENT SUPPLEMENTAL BRIEF THOMAS LUNDY Attorney at Law State Bar No. 57656 2777 Yulupa Avenue, PMB 179 Santa Rosa, CA 95405 Telephone: (707) 538-0175 Tlundy@juryinstruction.com Attorney for Defendant and Appellant DANIEL SANCHEZ COVARRUBIAS Under Appointment by the Supreme Court of California DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE Case No. 8075136 OF CALIFORNIA, (Monterey Superior Court No. SC942212(C)) Plaintiff and Respondent, DANIEL SANCHEZ COVARRUBIAS, Defendant and Appellant. AUTOMATIC APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF MONTEREY HONORABLE ROBERT MOODY, JUDGE, PRESIDING APPELLANT’S PRE-ARGUMENT SUPPLEMENTAL BRIEF THOMAS LUNDY Attorney at Law State Bar No. 57656 2777 Yulupa Avenue, PMB 179 Santa Rosa, CA 95405 Telephone: (707) 538-0175 Tlundy@juryinstruction.com Attorney for Defendant and Appellant DANIEL SANCHEZ COVARRUBIAS Under Appointment by the Supreme Court of California 5 M M M E B TABLE OF CONTENTS I. IS LARCENOUS INTENT AN ELEMENT OF ROBBERY?..... l II. COULD A RATIONAL JURY HAVE FOUND THAT APPELLANT DID NOT ACT WITH LARCENOUSINTENT? ................. 2 III. DOES THE RECORD DEMONSTRATE THAT THE JURORS RELIED ON A THEORY OTHER THAN ROBBERY? ........... 4 IV. CONCLUSION ... 00... eee ccc eect eee neaes 6 TABLE OF AUTHORITIES Cases Page Apprendi v. New Jersey (2000) 530 U.S. 466 .......... 0. cee eee eee 5 In re Lopez (2016) 246 Cal.App.4th 350 2.0... cee cece eee eee eee 5 People v. Aguilera (2016) 244 Cal.App.4th 489 20.0.0... cece cee 2 People v. Anderson (2011) 51 Cal.4th 989 2.0... 0.0... ccc cee cee eee 1 People v. Bacon (2010) 50 Cal.4th 1082... 0... cee eee eee eee 2 People v. Bailey (2012) 54 Cal. 4th 740 0... eee eee ee 2-3 People v. Boyce (2014) 59 Cal. 4th 672 2.0... ccc cece ee eee 2 People v. Chiu (2014) 59 Cal. 4" 155 2.0... ccc ccc cc cee eee eee eens 5 People v. Chun (2009) 45 Cal.4th 1172... ... 0... eee eee eee eee ee 2,4 People v. Figueroa (1986) 41 Cal.3d 714 20... cece ee eee 5 People v. Ford (1964) 60 Cal.2d 772 2... 0... ee ee ee ce eee eee I People v. Gonzalez (2016)=Cal. App.__—, 200 Cal.Rptr.3d607..... 3 People v. Johnson (2015) 234 Cal.App.4th 1432 .................4.. 4 People v. Spencer (1963) 60 Cal.2d 64 1.0.0.0... cece eee ee eee 1 People v Perez (2005) 35 Cal.4th 1219 2.0.0... cee eee eee 4 “ie a N People v. Rivera (2015) 234 Cal.App.4th 1350 1.0... ... cc cc eee ee eee 5 People v. Whitmer (2014) 230 Cal.App.4th 906 ................000. 4,6 People v. McDonald (2015) 238 Cal.App.4th 16 .................04. 4 People v. Mil (2012) 53 Cal 4400 0.0.0... ccc ccc cece ee eee eee ees 2 People v. Pearson (2012) 53 Cal. 4th 306... 0... . cece cece eee 3 People v. Valenti (2016) 243 Cal.App.4th 1140 ................0006. 2 People v. Williams (2013) 57 Cal.4th 776 0.0... 0. ccc cece cee eee 1 Statutes Penal Code § 211 2... ccc cece cette ene ee ences l California Constitution Article I, Section 15 2.0... 0. cece ccc eee eee eee eee nee eens 5 United States Constitution 6" and 14" Amendments ........0... ccc cece eee eect eee een eeeees 5 Jury Instructions CALJIC No. 72-B ow. ceeccc eee eee e eee tenn e nee 1 CALCRIM No. 1600 ............6.-. vc eceseueueueueeseeueneee, 2 -ji- Pursuant to the California Rules of Court, Rules 8.520(d) and 8.630(d), appellant Daniel Sanchez Covarrubias submits the following supplemental briefing to address new authorities which werenot available when appellant's reply briefwas filed. These new authorities relate to three questions raised by appellant’s opening Claim 10 (AOB,pp, 136-179; RB 58-64; ARB 21-37.) I. IS LARCENOUS INTENT AN ELEMENT OF ROBBERY? In his opening brief appellant contended that an essential element of robbery is “a specific intentto steal, i.e., to permanently deprive an owner of his property [citations].” (See e.g., People v. Ford (1964) 60 Cal.2d 772, 792- 793 [judge must go beyondthe literal language ofPC 211 to include specific intent to steal when defining robbery by giving former CALJIC No. 72-B “even without a request therefore by defendant”].) Former CALJIC No. 72-B provided,interalia, as follows: ...[I]Jn the crime of robbery, a necessary elementis the existence in the mind of the perpetrator of the specific intent to permanently deprive an ownerof his property; and, unless such intent so exists, that crime is not committed.” [Emphasis added] (People v. Spencer (1963) 60 Cal.2d 64, 87.) Appellate decisions since completion of the briefing in the present case confirm that Spencer, Ford, and former CALJIC No. 72-B correctly defined the mensrea of robbery: — People v. Williams (2013) 57 Cal.4th 776, 786-787 — “Because California's robbery statute (§ 211) uses the common law's phrase “felonious taking,” and because at common law “felonious taking” was synonymouswith larceny, we conclude that larcenyis a necessary element of robbery.” — People vy. Anderson (2011) 51 Cal.4th 989, 1002 [Justice Kennard asserts that “[r]obbery includes the mental element necessary to prove theft, the specific intent to permanently deprive the ownerofthe property”and then observes: “No one disputes this here.”}.) —People v. Bacon (2010) 50 Cal.4th 1082, 1117 [“Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property.”] — People v. Chun (2009) 45 Cal.4th 1172, 1183-1184 [the intent-to- permanently-deprive requirement, although nonstatutory in the limited sense that no California statute uses those words, is based on statute.] —People v. Aguilera (2016) 244 Cal.App.4th 489, 502 [“‘Here, the jury was properly instructed pursuant to CALCRIM No. 1600 that the requisite intent for robbery existed ifthe defendant intended ‘to deprive the owner of [the property] permanently....’ ”] Il. COULDARATIONALJURYHAVEFOUNDTHATAPPELLANTDID NOT ACT WITH LARCENOUS INTENT? Respondent contendsthat anyerror in removing the intentto permanently deprive issue from the jury was harmless because there was “substantial evidence,” that appellant, planned to rob andkill. (RB 64.) Decisions since completion ofthe briefing have expressly rejected substantial evidence as the standard of prejudice for the omission of an essential element of the charge. Instead the reviewing court must determine whetheror not “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. [Citations].” (People v. Mil (2012) 53 Cal.4th 400, 417.) “This is the converse ofthe substantial evidencetest. Ifthe record shows some evidentiary basis for a finding in the defendant's favor on the omitted element, the People have not met their burden and [the reviewing court] must reverse. [Citation to Mil at pp. 417-19].” (People v. Valenti (2016) 243 Cal.App.4th 1140, 1166; see also, People v. Boyce (2014) 59 Cal. 4th 672, 729 [“on this record we cannot conclude with confidence how thejury would have resolved [the omitted issue] had it been presented to them.”]; People v. Bailey (2012) 54 Cal. 4th 740, 754 [record contained evidence that could have lead a rational jury to find the omitted elementlacking].) In other words, if the omitted elementis a “live issue” the reviewing court is not in a position to conclude with confidence how the jurors would have resolved that issue had it been presented to them. (People v. Pearson (2012) 53 Cal. 4th 306, 323-324.) In the present case the question ofwhetherappellant acted with larcenous intent was a “live issue.” The prosecution relied on plea bargained accomplice testimony to allege that appellant knowingly joined a plot to steal from and murderan entire family. The defense challenged this testimony by exposing its inconsistencies and the accomplice’s willingnessto tell outrightlies in order to secure his extremely favorable plea bargain. (See AOB,pp. 41-44.) And, the special verdicts demonstrated that the jury substantially discredited the accomplice testimony by unanimously rejecting the knife-use allegation and failing to return verdicts on the allegations ofuse-of-a-firearm and conspiracy- to-commit-murder. (See AOB,pp 10-11.) Furthermore, even without considering the accomplice’s lack of credibility appellant’s recorded statementthat he did not have larcenous intent and intended only to help recover property belongingto his cousin, Antonio, constituted substantial evidence that he did not act with larcenous intent. “‘The testimony of a single witness, including the defendant, can constitute substantial evidence....’[Citations]” (People v. Gonzalez (2016) __Cal. App. __, 200 Cal.Rptr.3d 607,slip opn p. 45.) The jury also could have doubted that appellant formed larcenous intent based on evidence such as appellant’s intoxication, the items of value which were not taken from the crime scene, and the evidence of appellant’s non-violent nature which was inconsistent with the prosecution’s theory that appellant knowingly joined a plotto rob and kill an entire family. In sum, it cannot be determined with confidence howthejurors would have resolved the “live issue” of larcenous intent had that issue been before them. III. DOES THE RECORD DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THE JURORS RELIED ON A THEORY OTHER THAN ROBBERY? A. The Record Must Demonstrate Juror Reliance On A Valid Theory “When oneofthe theories presented to a jury is legally inadequate, such as a theory which fails to come within the statutory definition of the crime the jury cannot reasonably be expectedto divineits legal inadequacy. The jury mayrendera verdict on the basis of the legally invalid theory without realizing that, as a matter of law,its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.” [emphasis added]. (People v. Johnson (2015) 234 Cal.App.4th 1432, 1456 [citing and quoting People v Perez (2005) 35 Cal.4th 1219, 1233; see also People v. McDonald (2015) 238 Cal.App.4th 16, 27[“reversal is required unless the record demonstrates, beyond a reasonable doubt, that the verdict wasactually based on a valid ground. [Citations]”]; see also (People v. Whitmer (2014) 230 Cal.App.4th 906, 920-921; People v. Chun, supra, 45 Cal.4th at 1201.) 3 In the present case, the prosecution expressly relied on three theories offirst degree murder: (1) premeditation and deliberation, (2) burglary felony murder, and (3) robbery felony murder. (See e.g., 52 RT 10226)! However, the record does not demonstrate beyond a reasonable doubt that all jurors reached their verdicts without relying on robbery. B. Premeditated and Deliberate Murder The record does not demonstrate that the jurors unanimously relied on a valid theory ofpremeditation and deliberation to convict appellant of first degree murder. Noneofthe verdicts included an express or implied finding that appellant personally premeditated and deliberated ordirectly aided and abetted a premeditated murder. Moreover, the jurors’ problems with the credibility ofthe accomplice testimonyandtheir inability to return a conspiracy to commit murder verdict are logically inconsistent with the supposition that all the jurors found beyond a reasonable doubt that appellant acted with a deliberate and premeditated intentto kill. Noris premeditated and deliberate murder based on the natural and probable consequences doctrine a valid alternative theory of first degree murder.’ First, the target offense of robbery was not valid due to the omission of larcenous intent from the definition of robbery and the burglary was also an invalid target offense because the jurors could have ' The felony murder theories were based on direct commission ofthe felony, aiding and abetting the felony, and conspiracy to commit the felony. (6 CT 1278-80.) ? The judge instructed on this theory of murder (6 CT 1256; 1264 [conspiracy]; 53 RT 10435-36; 10440 [conspiracy]) and the prosecutorrelied on it during argumentto the jury. (52 RT 10221, 10225 [conspiracy]; 10234-35.) 4 relied on intent to commit robbery as the predicate for finding burglary. (See Section C, below.) Second, first degree murder predicated on the natural and probable consequencesdoctrine is precluded by this Court’s decision in People v. Chiu (2014) 59 Cal. 4" 155. This is so regardless of whetherthe natural and probable consequencesliability is predicated on conspiracy or aider and abettorliability.’ Affirmance of appellant’sfirst degree murder convictions based on the natural and probable consequences doctrine would violate the state (Art. I, sections 7 and 15) and federal (6th and 14th Amends.) constitutional rights to due process and public trial by jury. The rights to due process and to a public trial before an impartial jury “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which heis charged... .’ [Citation.]” (Apprendi v. New Jersey (2000) 530 U.S. 466; 476-77; People v. Figueroa (1986) 41 Cal.3d 714.) C. Burglary Felony Murder Although the jury found conspiracy to commit burglary and the burglary felony murder special circumstance, the record does not demonstrate that the jury relied on a non-robbery based theory of burglary. The instructions gave the jury the option offinding burglarybased on intent to commit robbery. (6 CT 1311-12; 53 RT 10466:1-2,15-16; 56 RT 11004:12-13, 27-28.) Thus, it cannot be determined if the burglary-based 3 <¢[When the California Supreme Court in Chiu was explaining the natural and probable consequences doctrine,it understoodits applicability to both aiding and abetting and conspiracy theories.” (People v. Rivera (2015) 234 Cal.App.4th 1350, 1356.) Thus,it is error to allow the jury to reach a verdict of first degree murder by finding “the defendant conspired to commit the target crime and first degree murder was a natural and probable consequenceofthe target crime.” (/d. at p. 1357; see also In re Lopez (2016) 246 Cal.App.4th 350, 357.) -5- verdicts were founded on legally valid theory. (See People v. Whitmer, supra, 230 Cal.App.4th at 920-921. Moreover, respondent has concededthatfirst degree burglary felony murder was an invalid theory under the /re/and doctrine. (Respondents Briefat p. 70.) IV. CONCLUSION Thedisposition of appellant’s Claim 10 depends on the answersto three straight forward questions: (1) Is larcenous intent an element of robbery? (2) Could a rational jury have found that appellant did not act with larcenousintent? (3) Did all jurors rely on a valid theory to reach their verdict? The answers to these questions demonstrate that appellant Daniel Sanchez Covarrubiasis to be executed for crimes the jury never found he committed. Dated: May _, 2016 THOMAS LUNDY Attorney for Appellant DANIEL SANCHEZ COVARRUBIAS CERTIFICATION OF WORD COUNT Pursuantto California Rules of Court, Rule 8.630(b)(2), I certify that the attached Appellant’s Reply Brief uses 13 point Times New Roman font and contains 2025 words in WordPerfect computerized format. Dated: May 16, 2016 Thomas Lundy Attorney for Appellant Daniel Sanchez Covarrubias PROOF OF SERVICE I DECLARE THAT: I am a resident of Sonoma County and employed in the County of Sonoma,State of California. I am over the age of eighteen and nota party to the within action. My business address is: 2777 Yulupa Avenue, PMB 179, Santa Rosa, CA 95405. On May 16, 2016, I served an APPELLANT’S PRE-ARGUMENT SUPPLEMENTALBRIEF in People v. Covarrubias Case No. 8075136 on the interested parties in said cause, by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon, fully prepaid, in the United States mail, at Santa Rosa, California, addressed as follows: Daniel Sanchez Covarrubias P-19600 Office of the Attorney General CSP-SQ 4-EY-35 . 455 Golden Gate Avenue, Suite 11000 San Quentin, CA 94974 San Francisco, CA 94102-7004 Office of the District Attorney The Honorable Robert F. Moody Monterey County Salinas Courthouse Post Office Box 1131 240 Church Street Salinas, California 93902 3rd Floor, West Wing Salinas, CA 93901 California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 I certify under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct and executed on May 16, 2016, at Santa Rosa, California. Thomas Lundy W R SE E A e r e n a e 0 O M E N