PEOPLE v. BLACK

Appellant’s Reply Brief on the Merits

Cal.July 24, 2013

IN THE SUPREME COURTOF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. 206928) . Plaintiff arid Respondent, ) Court of Appeal ) No. A131693 ) V. ) Alameda County ). Superior Court ) No. C163946CHARLES ALEX BLACK, ) SUPREME COURT) FILED Defendant and Appellant. ) ) JUL 94 2013 Frank A, McGuire Clerk Appeal from the Superior Court of California, County ofAlameda Deputy Honorable Allan D. Hymer,Judge APPELLANT’S REPLY BRIEF ON THE MERITS ROBERT L.S. ANGRES Attorney at Law 4781 E. Gettysburg Avenue, Suite 14 Fresno, CA 93726 Telephone: (559) 348-1918 Fax: (559) 348-1926 Email: Robertangres@sbcglobal.net State Bar No. 178032 Attorney for Appellant by appointmentofthe Supreme Court IN THE SUPREME COURT OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CHARLES ALEX BLACK, Defendant and Appellant. Case No. S206928 Court of Appeal No. A131693 Alameda County Superior Court No. C163946 Appeal from the Superior Court of California, County of Alameda Honorable Allan D. Hymer, Judge APPELLANT’S REPLY BRIEF ON THE MERITS ROBERT L.S. ANGRES Attomey at Law 4781 E. Gettysburg Avenue, Suite 14 Fresno, CA 93726 Telephone: (559) 348-1918 Fax: (559) 348-1926 Email: Robertangres@sbcglobal.net State Bar No. 178032 Attorney for Appellant by appointmentofthe Supreme Court TABLE OF CONTENTS Page APPELLANT’S REPLY BRIEF ON THE MERITS............ceeececcscccsecsceesceccsceeccces, 1 ARGUMENT......... 0.00 cccccsseeeeeeceseeeeeeeeceeecceseeceeeseesestuaubbebecseensecesscce.2 I. A HOLDING THAT REVERSIBLE ERROR FLOWS FROM THE USE OF A PEREMPTORY CHALLENGE TO CORRECT AN IMPROPER DENIAL OF A CHALLENGE FOR CAUSE COUPLED WITH AN UNSUCCESSFUL REQUEST FOR AN ADDITIONAL CHALLENGE TO REMOVE AN OBJECTIONABLE JUROR DOES NOT RUN AFOUL OF THE CALIFORNIA CONSTITUTION..........ccccccsesseeeecccccceccccee.2 A. INTRODUCTION. esseececssecsecssseseessecseeeseeeeeeecceccecccc.2 B. A TRIAL COURT’S DEPARTURE FROM THE STATUTORY PROCEDURE PRESCRIBED FOR THE SELECTION OF A JURY RESULTSIN ERROR THATIS REVERSIBLE PER SE.......... 3 CONCLUSION... 00. cecccccsssseseccesueescsseuueeeesssereueecererccess seco eeteeenes 5 TABLE OF AUTHORITIES Page CASES(STATE) People v. Armendariz (1984) 37 Cal.3d 573... cccceccceeesseeceeeesessssssevettseteseesespttttteeecccc co.3 People v. Coleman (1988) 46 Cal.3d 749...iisceeesseeccecescsnsssersettrseeesessesesseteeeeecccee3 People v. O’Connor (1927) 81 Cal.App. 506.00... occ eeceeceseseesssseecesensrseeseeeritteeeeeeeeccecc.2-3 People v. Watson (1956) 46 Cal.2d 818.0...ieeeccecccceescssseeeeeerseteseesseeeeeeeeeeesec ce2 Wolfe v. State (Tex. Crim. App. 1944) V78 S.W.2d 274... ececcecetceeeesecensseeseeventrseeesessieteeeeteececccce5 CONSTITUTIONAL PROVISIONS (STATE) California Constitution Article VI, Section 13.......cccssssssssssssssssecsssssessssssssssstssssssssassssssssesssececceseeccc3 il IN THE SUPREME COURTOF CALIFORNIA Defendant and Appellant. PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) ) ) V. ) ) ) CHARLES ALEX BLACK, ) ) ) ) ) Case No. $206928 Court of Appeal No. A131693 Alameda County Superior Court No. C163946 APPELLANT’S REPLY BRIEF ON THE MERITS Appellant believes that the issues raised in his opening brief have beenfully joined by respondent’s brief. Appellant does not wish to reiterate the arguments putforth in his opening brief, but rather intends to addressin this reply brief only thosepoints raised by respondent on which hebelievesthat the Court will benefit from further argumentation. Specific points of argument whichare discussed in appellant’s opening brief, but not repeated in this reply brief, are by no means abandoned. ARGUMENT I. A HOLDING THAT REVERSIBLE ERROR FLOWS FROM THE USE OF A PEREMPTORY CHALLENGE TO CORRECT AN IMPROPER DENIAL OF A CHALLENGE FOR CAUSE COUPLED WITH AN UNSUCCESSFUL REQUESTFOR AN ADDITIONAL CHALLENGE TO REMOVE AN OBJECTIONABLE JUROR DOES NOT RUN AFOUL OF THE CALIFORNIA CONSTITUTION A. INTRODUCTION According to respondent, appellant’s “argument that when a challengefor causeis erroneously denied, prejudice results and reversalis required if [appellant], having exhausted his allotment of peremptory challenges, expresseddissatisfaction with a sitting juror andfailed in his or her attempt to obtain an additional peremptory challenge to ensure that person’s removalfrom the panel amountsto a requestfor perse reversal. That is inconsistent with the California Constitution.” (RBM 39.) In other words, respondentclaims that such anerroris one of procedure only from which no miscarriage ofjustice results, (RBM 40.) Asa result, argues respondent, the erroris not susceptible to reversal under California law. Appellant disagrees with respondentthat a rule classifying such error as per se reversible runs afoul of the California Constitution. Respondent is mistaken when he suggests that this Court is somehow barred from ruling in appellant’s favor. B. ATRIAL COURT’S DEPARTURE FROM THE STATUTORY PROCEDURE PRESCRIBED FOR THE SELECTIONOF A JURY RESULTS IN ERROR THATIS REVERSIBLE PER SE Respondentcorrectly notes that Article VI, section 13 of the California Constitution requires a reversal of the judgment in those instances wherethe record reveals a miscarriage ofjustice. (RBM 39-40; People v. Watson (1956) 46 Cal.2d 818, 836.) But with that said, no matter how conclusive or strong the evidence may be against a defendant, appellate courts in this state have nothesitated to reverse convictions where, in the contextofjury selection, the record merely reveals a departure from established procedure. Thus, in an analogous context, where a trial court denies jointly tried defendants their allotment of peremptorychallenges, the error could not be deemed harmless under any circumstance. (People v. O’Connor (1927) 81 Cal.App. 506, 517-519.) “From what has been said,” observed the O’Connorcourt, “the conclusion necessarily follows that the defendants were compelled to submitto a trial against which they had a legalright to object and against which theydid object and, therefore, that the jury was not impaneled in this case as provided by law andthetrial court wasnot authorizedto proceed with the trial with the jury in the impanelment of whichtherights of the defendants were not allowed to be exercised.” (Id. at p. 519.) The constitutional provision requiring reversal only upon a showing of a miscarriageofjustice did not apply, because the end result was not a mistake in procedure, butrather a substitution of procedure. (d. at p. 520.) Moreover,“the defendants were deprived ofthe right oftrial by jury, as it should have been constituted by law,in that they were compelled to go to trial before jurors whom 3 they were entitled to reject, which bringsit in principle on a parallel basis with decisions of courts relative to the rightoftrial by jury.” (People v. O’Connor, supra, 81 Cal.App. at p. 520.) According to the O’Connorcourt, to give the “miscarriage ofjustice” of language its proper application,“the juror impaneled must be such a Juror against whom the defendanthasno legal objection and against whom heis not deprived ofexercising any legal objection or right accorded him bylaw.(Id.at p. 521, italics added.) The O’Connorcourt’s analysis is not an anomaly. More recently, this Court has recognizedthat“[t]he failure to grant a defendantthe prescribed numberofperemptory challenges when therecordreflects his desire to excuse a juror before whom he wastried is reversible error." (People v. Armendariz (1984) 37 Cal.3d 573, 584, accord People v. Coleman (1988) 46 Cal.3d 749, 770 and cases cited therein.) Appellant submitsthat if reversible error results when a trial court erroneously denies a defendantthe use ofhis full panoply of peremptory challenges, no logical reason can exist for holding that a different standard applies in this case. Put another way, where a defendantis denied the use of a peremptory challenge in orderto correct an error that is notof his own making suchthat he is deprived of an opportunity afforded to him by law toassist in the formation of the jury and he complainsofthelossto thetrial court, the error necessarily results in a denial of a defendant’s full use of his panoply of peremptory challenges andshould bereversible, notwithstanding whether the target ofa lost peremptory is an objectionable or an incompetentjuror. Otherwise, “[i]f one of an accused’s peremptory challenges could be taken away from him, whynotfive be taken, and if five, why not ten, leaving none, andall jurors be acceptable save unfair and partial 4 ones.” (Wolfe v. State (Tex. Crim. App. 1944) 178 S.W.2d 274, 279-280, opn. on reh’g.) Significantly, appellant is aware of no casethat holdsthata trial court’s failure to grant a defendant his prescribed number of peremptory challenges is harmless in the absence of a showing that an incompetentjuror sat on the panel. Theerrorin this case was prejudicial as a matter of law. CONCLUSION For the foregoing reasons andthereasonsstated in appellant’s opening brief, appellant respectfully requests that this Court reverse the judgmentofthe Court of Appeal. f Dated: July12. 2013 Respectfully submitted, ROBERT L.S. ANGRES Attorney for Appellant CERTIFICATE OF LENGTH I, Robert L.S. Angres, counsel for appellant Charles Alex Black,certify pursuantto the California Rules of Court that the word count for this documentis 1,065 words, excluding the tables, this certificate, and any attachment permitted underrule 8.520(c)(1). This document was prepared in Microsoft Word, and this is the word count generated by the program for this document. I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed at Fresno, California on July A3 , 2013. Robert L.S. Angrfes Attorney for Appellant DECLARATION OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action; my business address is 4781 E. Gettysburg Avenue, Suite 14, Fresno, CA 93726. OnJuly___, 2013, I served the attached: APPELLANT’S REPLY BRIEF ON THE MERITS LJ BY MAIL I deposited a true copy thereof in an envelope addressed to the person(s) named below at the address(es) shown, and bysealing and depositing said envelope in the United States Mail in Clovis, California, with postage thereon fully prepaid. Thereis delivery service by United States Mail at each ofthe places so addressed, orthere is regular communication by mail between the place of mailing and eachof the places so addressed. Charles Black, AG4844 c/o SCC 5150 O’Byrnes Ferry Road Jamestown, CA 95327 District Attorney, County of Alameda 1225 Fallon Street, Room 900 Oakland, CA 94612 Public Defender, County of Alameda 1401 Lakeside Drive, 4" Floor Oakland, CA 94612 Superior Court of California, County of Alameda Attn: The Honorable Allan D. Hymer, Judge 1225 Fallon Street Oakland, CA 94612 L] (BY ELECTRONIC SUBMISSION) - I am personally and readily familiar with the preparation and process of documents in portable format (PDF)for e-mailing, and I caused said document(s) to be prepared in PDF and then served by electronic mail to the party listed below. First District Appellate Project 730 Harrison Street, Suite 201 San Francisco, CA 94107 eservice@fdap.org Office of the State Attorney General Counsel for Plaintiff and Respondent on Appeal 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664 SFAG.Docketing@doj.ca.gov Court of Appeal, First Appellate District Attn: Division One 350 McAllister Street San Francisco, CA 94102 I additionally declare that I electronically submitted a copy ofthis documentto the Court of Appealon its website at http://www.courts.ca.gov/9261 .htm#tab19738.in compliance with the court’s Terms of Use, as shown on the website. I declare under penalty of perjury of under the lawsofthe State of California that the foregoing is true and correct. Executed on July , 2013 at Clovis, California. ROBERT L.S. ANGRES il