PEOPLE v. COVARRUBIAS (DANIEL SANCHEZ)Appellant’s Third Supplemental BriefCal.May 24, 2016SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE Case No. 8075136 OF CALIFORNIA, (Monterey Superior Court No. SC942212(C)) Plaintiff and Respondent, SUPREME COURT DANIEL SANCHEZ COVARRUBIAS, FE | [ E D Defendant and Appellant. / MAY 24 2016 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 THIRD 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 COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE Case No. S075136 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 THIRD 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 — TABLE OF CONTENTS THEMULTIPLE MURDERSPECIALCIRCUMSTANCE SHOULDBE REVERSED BECAUSE THE INSTRUCTIONS DID NOT REQUIRE THE JURY TO FIND THAT APPELLANT ACTUALLY KILLED OR INTENDED TO KILL ............ 0... cece eee eee eens 1 CONCLUSION ....eecnet cence cence eenaes 5 TABLE OF AUTHORITIES Cases Page People v. Mil (2012) 53 Cal 4" 400 2... 0... cc cece cece eet cece eas 3 Nederv. U.S. (1999) 527 U.S.1 .. 6. cee ccc cee cece eee eee ees 3 Ring v. Arizona (2002) 536 US. 584 2... eeeee eee eens 3 Statutes Penal Code § 190.2(c) 20... . cc eee ccc cece cece teen te eeeees 2 California Constitution Article I, Section 15 0.0... ccc ccc cette teeters reeees 3 United States Constitution 5"6" and 14" Amendments ........... 0.0.0 ccc cece eee cceeeeees 3 Jury Instructions CALCRIM No. 702 ..... cecc cc cece eee ee ee eee eeeees 3 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE Case No. S075136 OF CALIFORNIA, (Monterey Superior Court No. 8C942212(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 THIRD SUPPLEMENTAL BRIEF THE MULTIPLE MURDER SPECIAL CIRCUMSTANCE SHOULD BE REVERSED BECAUSE THE INSTRUCTIONSDID NOT REQUIRE THE JURY TO FIND THAT APPELLANT ACTUALLY KILLED OR INTENDED TO KILL A. Before Returning A Multiple Murder Special Circumstance The Jury Must Find An Accomplice Was An Actual Killer Or Intended To Kill The prosecutor relied on several theories of vicariousliability in alleging that appellant was guilty of first degree murder. (See AOB,pp. 1-5.) Even though the prosecutor also relied on a personal perpetrator theory of first degree murder (i.e., that appellant formed a premeditated and deliberate intent to kill) it is more likely that the jury relied on vicariousliability since they returned felony murder special circumstance verdicts (4 CT 968, 972, 975) and they failed to agree that appellant wasguilty of conspiracy to commit murder. (4 CT 997; 56 RT 11046.) ae: Es ee Been oe te com Accordingly,the failure of the judge to instruct that the multiple murder special circumstance could not be found without finding that appellant was the actual killer or intended to kill' warrants reversal of the multiple murderspecial circumstance. B. The Instructions Erroneously Permitted The Jurors To Return A Multiple MurderSpecial Circumstance Based On Reckless Disregard Of Human Life The jurors were instructed that any special circumstance -- including multiple murder-- could not be found unless: ...you are satisfied beyond a reasonable doubt that such defendant [1] with the intent to kill aided, abetted, and counseled, commanded,induced, solicited, requested, or assisted any act during the commission ofthe murder in the first degree, or [2] with reckless indifference to humanlife and as a major participant aided, abetted, counseled, commanded, induced,solicited, requested or assisted in the commission of the crime of burglary or robbery whichresulted in the death of a human.... [Emphasis and bracketed numbers added.] (53 RT 10457; 6 CT 1293.) Asa result, the jurors were permitted to return the multiple murder special 'Penal Code Section 190.2(c) provides as follows: Every person,not the actualkiller, who, with the intentto kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonmentin the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been foundto be true under Section 190.4. [Emphasis added.] ? Nordid the specific definition ofthe multiple murderspecial circumstance require ajury finding that appellant was an actual killer or intended to kill. Per CALJIC 8.81.3 the judge instructed as follows: “Tofind the special circumstancereferred to in these instructions as multiple murder convictions, is true, it must be proved: The defendanthasin this case been convicted of at least one crime ofmurderofthe first degree and one or more crimesofthefirst degree or second degree.” (6 CT 1295.) circumstance without finding that appellant actually killed or intended to kill a human being.’ By giving this instruction the judge violated his obligation to instruct the jurors that they mustfind appellantactually killed a human beingor intended to kill before returning the multiple murder special circumstance. (Penal Code Section 190.2(c); cf., CALCRIM No. 702.) Thusthe judgefailed to instruct on an essential element of a death eligibility special circumstance charge which violated the Due Process and Trial By Jury Clauses ofthe California Constitution (ArticleI, section 15 ) andthe federal constitution. (6th and 14th Amendments;see also, Ring v. Arizona (2002) 536 U.S. 584.) C. The Error Warrants Reversal Of The Multiple MurderSpecial Circumstance 1. Standard Of Prejudice: Could A Rational Juror Have Found That The Omitted Element Was Not Proved Nederv. U.S. (1999) 527 U.S. 1 reviewing courts to “conduct a thorough examinationofthe record.If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absentthe error--for example, where the defendant contested the omitted element and raised evidencesufficient to support a contrary finding--it should not find the error harmless.” (Neder, supra, 527 U.S.at p. 19; see also People v. Mil (2012) 53 Cal.4th 400, 417.) In other words, the appellate court in assessing prejudice, must determine “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (Jbid.) See e.g., 52 RT 10251 [DAtells jury that if appellant was not an actualkiller then the multiple murderspecial circumstance requires a finding of “intentto kill or ... reckless indifference....”]. 2. The Record Contains Substantial Evidence Upon Which A Rational Juror Could Have Found That Appellant Was Not An Actual Killer And Did Not Intend ToKill Therewas substantial evidence upon whicha rational juror could have concluded that appellant was notan actual killer and did not intend to kill. A rational juror could have simply disbelieved the accomplice testimony that appellant stated he intendedto kill, doubted that appellant intendedto kill due to his intoxication, and/or doubted that appellant was the type ofperson who would knowingly buy into a plan to steal from and murderan entire family. The jury heard no evidence that appellant was a violent person or otherwise predisposed to committing violent crimes. By all accounts appellant was a “nice” person who got along with everyone. (See e.g., 44 RT 8711-14.) When intoxicated, appellant was ““very happy, a dancer.” (43 RT 8429; 8447.) Nor was he involvedinselling or distributing drugs. (41 RT 8063.) Moreover, the ability of a hypothetical rational juror to find that appellant neither actually killed nor intended tokill is demonstrated by the fact that the jurors whoactually heard the evidencefailedto find three special allegationsall ofwhich were predicated on the prosecutor’s theory that appellant acted with violent intent.° In sum,there is no assurancein the record that the jurors unanimously found either that appellant was an actualkiller or that he acted with intentto kill. The jury * As to all Counts, the jurors unanimously foundthe use ofa knife allegation untrue (4 CT 969-70; 973-74; 977-78; 981; 983; 985; 988; 991; 994). Thejurors could notagree on a verdict as to the special allegation that appellant used a firearm. (56 RT 11019; 11021; 11026; 11032; 11036; 11047-48; 4 CT 970; 974; 978; 981; 983; 985-86; 988-89; 991-92; 994-95.) Furthermore, the jurors did not reach a verdict on the conspiracy to commit murder allegation. (4 CT 997; 56 RT 11046.) ° The numerical breakdown was11 to 1 as to the use offirearm allegation in Counts 1 and 2. (56 RT 11022; 11047-48.) wasableto return all of its verdicts based on theories of vicarious liability which did not require a finding that appellant personally shot the victims or intended to kill. (See AOB,pp. 172-78.) Moreover,the special verdicts that the jurors failed to return regarding conspiracy to commit murderand personaluse ofa firearm suggest that they did not unanimously agree oneither the actual killer or intent to kill theories of guilt. Under these circumstancesa rational juror could have concluded that appellant did not actually kill and did not intend to kill. Accordingly the error warrants reversal. CONCLUSION For the foregoing reasons, as wellas those set forth in the earlier briefing, the judgment should be reversed. Dated: May 16, 2016 Thomas Lundy Attomey for Appellant Daniel Sanchez Covarrubias CERTIFICATION OF WORD COUNT Pursuant to 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 1320 p 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 andnot a party to the within action. My business address is: 2777 Yulupa Avenue, PMB 179, Santa Rosa, CA 95405. On May 16, 2016, I served APPELLANT’S THIRD SUPPLEMENTALBRIEFin Peoplev. Covarrubias Case No. S075136 on the interested parties in said cause, by placing a true copy thereofenclosed in a sealed envelope withfirst 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 of perjury under the laws of the State of California that the foregoing is true and correct and executed on May 16, 2016, at Santa Rosa, California. Thomas Lundy