GUITON ALERT : Trial And Appellate Strategies Now That Defendant Has Burden To Show Prejudice From A Factually Insufficient Theory

(July 1993)

    In People v. Guiton (93) 4 C4th 1116 [17 CR2d 365], the Supreme Court limited the Green (People v. Green (80) 27 C3d 1 [164 CR 1]) rule regarding the standard of prejudice to be utilized by the reviewing court when the jury has been instructed upon both correct and incorrect theories. The court predicated its determination of the question upon the U.S. Supreme Court decision of Griffin v. U.S. (91) 502 US 46 [116 LEd2d 371; 112 SCt 466] and the purported distinction between legal theories and factual theories. (But see dissenting opinion of Mosk, J., arguing that while jurors may be "well-equipped" to determine pure questions of fact, their expertise does not extend to mixed questions of law and fact which includes the sufficiency of the evidence.) The Court held that instruction on an unsupported factual theory is prejudicial only if "a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory". (Guiton 4 C4th at 1129.) On the other hand, in the case of incorrect legal theories, the error is reversible unless "it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [citations.]" (Id. at 1131.) (The court left open the question of whether there may be "additional ways by which a court can determine the error in the Green situation is harmless.") (Ibid.)

    Guiton opens up a pandora's box of legal and strategic considerations both at trial and on appeal. For example, the difference between a factual and legal theory within the meaning of Guiton is not totally clear. If the jury is simply faced with a factual question as to what the defendant did or intended to do, then the issue is factual (see, e.g., People v. Houts (78) 86 CA3d 1012 [150 CR 589],) whereas if the insufficiency is based upon an appellate court's legal determination that the acts committed by the defendant were insufficient to satisfy the elements of the statute, then the insufficiency is legal (see e.g., People v. Green (80) 27 C3d 1 [164 CR 1].). (Green and Houts are the Guiton court's examples (4 C4th 1128, 1129, fn 1.)

    This distinction may be clear-cut in some cases. However, in cases where the appellate courts have adopted technical legal standards of sufficiency (e.g., torture), which may differ from the jury's common understanding, the factual/legal distinction is fuzzy.

    Several other potential issues relate to how the defendant may show a reasonable probability that the jury relied on the insufficient theory. To show a "reasonable probability" it is not necessary to prove that the jury "more probably than not" relied on the improper theory. (See People v. Howard (87) 190 CA3d 41, 48 [235 CR 223]: applying Stricklandtest; see also Boyde v. California (90) 494 US 370, 379-80 [108 LEd2d 316]: discussing Strickland test and the "reasonable likelihood" standard of review for jury instructions. Hence, in statistical terms, a reasonable probability is a "significant" but something -- less -- than fifty percent likelihood. (Howard 190 CA3d at 48.)

    To determine whether such a showing has been made, it is necessary for the reviewing court to consider the entire record including the arguments of counsel, inquiries of the jury and the verdicts. (See Guiton 4 C4th at 1130.) However, judging from the hypothetical showing of reasonable probability suggested by Guiton -- that the D.A. only argued the insufficient theory and the jury submitted inquiries regarding the insufficient theory (4 C4th at 1129) -- it may be difficult to meet the Guiton test.

    In light of the potential difficulty of satisfying the Guiton test on appeal, trial counsel may wish to request a special verdict (see FORECITE National™: Special Verdicts) which could supply definitive evidence to meet the Guiton test. The utility of special verdicts as an aid to appellate review has long been recognized: "And of outstanding importance is the fact that definite factual findings furnish a practical, concrete basis for the appellate court's evaluation of the case on review. (Lipscomb "Special Verdicts Under the Federal Rules," (1940) 25 Wash. U.L.Q. 184, 213-14; [quoted in Devitt, Blackmar, Wolff & O'Malley, Fed. Jury Prac. and Inst. (1992) § 603 p. 181; see also People v. Hernandez (88) 47 C3d 315, 351 [253 CR 315]: special circumstance finding allowed reviewing court to "`determine from the record on which theory the ensuing general verdict of guilt rested ...' [citation].")

    Moreover, now that Guiton has imposed an appellate burden upon the defendant, fundamental fairness and due process require that defendant be given an opportunity to obtain a special verdict now that the burden has been placed upon the defendant to show juror reliance upon an insufficient theory. CAVEAT:Before requesting a special verdict counsel should verify that the insufficient theory is factual rather than legal. If the erroneous theory is a legal theory then a special verdict could aid the prosecution in meeting its burden to establish that the jury did not rely upon the erroneous legal theory.

    Another possible strategy which could be used after trial is to obtain juror declarations. Notwithstanding Evid. Code § 1150, in cases where a request for a special verdict has been denied, or in pre-Guiton cases on appeal where no special verdict was requested, due process and fundamental fairness principles should allow the defendant to interview and present statements from the jurors regarding their reliance upon the insufficient theory. (See e.g., Rule 23 which allows production of additional evidence appeal.)

    A constitutional argument may also be mounted against the Guitonstandard as being too strict. Griffin held that the defendant's constitutional rights are not implicated by submission of an insufficient theory of conviction to the jury when the chance of reliance upon such a theory was "remote." (116 LEd2d at 383.) When reliance upon the insufficient theory is not remote, the federal constitution should be invoked due to the danger that the jury may have convicted the defendant in the absence of proof beyond a reasonable doubt. This right is so fundamental that the failure to correctly instruct upon this standard of proof is reversible error per se. (Sullivan v. Louisiana (93) 508 U.S. 275 [124 LEd2d 182; 113 SCt 2078].) Hence, in any case where there is a greater than remote risk (e.g., a reasonable possibility) of jury reliance on an insufficient theory, it should be the prosecution's burden to prove such an error harmless beyond a reasonable doubt. (Chapman v. California (67) 386 US 18.)

    Retroactive application of Guiton may also be challenged on fundamental fairness and due process grounds. The Green rule -- which required the prosecution to show non-reliance on the insufficient theory -- was a well settled doctrine of appellate review prior to Guiton. (See People v. Henderson (77) 19 C3d 86, 96 [137 CR 1]; People v. Cantell (73) 8 C3d 672, 686 [105 CR 792]; People v. Robinson (64) 61 C2d 373, 406 [38 CR 890]; People v. Houts (78) 86 CA3d 1012, 1091 [150 CR 589].) In cases tried prior to Griffin and Guiton, counsel had no reasonable basis for anticipating that the defendant would have any obligation on appeal to demonstrate juror reliance upon an insufficient theory. In other words, Guitonchanged the rules in the middle of the game, thus adversely impacting trial counsel's strategic decisions. (See Coleman v. McCormick (9th Cir. 1989) 874 F2d 1280; People v. Beardslee (91) 53 C3d 68, 110 [279 CR 276].) For example, if Guiton had been extant at the time of trial, counsel could have requested special verdicts or findings. (See above discussion of special verdicts as a trial strategy.) Therefore, retroactive application of Guitonwould violate state and federal due process principles. (14th Amendment; see People v. Collins (86) 42 C3d 378, 388-89 [228_ CR 899]; Evangelatos v. Superior Court (88) 44 C3d 1188, 1217 [246 CR 629]; Parrott v. Furesz (57) 153 CA2d 26, 30 [314 P2d 47] and cases cited therein.)

    Retroactive application of Guiton could also constitute an impermissible arbitrary action in violation of 14th Amendment due process and equal protection principles. Those defendants whose cases were decided on appeal before Guiton did not have to meet the Guiton burden. Thus, cases which were tried before Guiton should not be affirmed simply because the appeal was heard later. (See Myers v. Ylst (9th Cir. 1988) 897 F2d 417.)

    Finally, a federal challenge to Guiton could be advanced based upon the dissent of Justice Mosk in Guiton, arguing that it is an "illegitimate" assumption to assume that the jury will always infallibly recognize insufficient evidence. However, such an argument has already been implicitly rejected by the U.S. Supreme Court in Griffin. (For additional briefing on these Guiton issues see Brief Bank # B-575, available to subscribers. To become a subscriber, click here.)

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