Carella v. California Page 2

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Audio Transcription for Oral Argument - April 26, 1989 in Carella v. California

Christopher D. Cerf:

--It is certainly subject to that construction.

We believe that Rose v. Clark, uh, does not control this case.

But let me stress at the outside, before explaining that position, that ultimately the error here, in our judgment, so clearly was harmful that there really is no reason for the Court to address that more abstract threshold issue, and we think the error was harmful for a number of reasons.

Assuming that the standard of Rose v. Clark does apply in this case, the issue would be whether the, it, whether permanent intent to deprive the owner of automobile, which is the central element to this, uh, crime, whether a reviewing court could conclude beyond a reasonable doubt that the evidence of that intent was so overwhelming that it could conclude that the jury must not have even relied on the presumption, and we don't think the state has made that argument, and we don't think that the state can make that argument.

Indeed, we think the error here was prejudicial under that standard for two reasons.

First of all, the evidence of, and by the way, let me, let me make something clear, that this jury was told on four occasions.

It was told four occasions that in order to convict appellant of grand theft it had to find an intent to deprive the owner of permanent possession, and that's the crucial element here.

Now the evidence--

Sandra Day O'Connor:

Oh, the state now says, well, embezzlement in California requires less.

Christopher D. Cerf:

--It, it does say that now.

It certainly didn't say that at trial when the trial judge gave the standard pattern jury instructions that operate and are presumptively correct, correct in California, and those instructions on four separate occasions said grand theft requires a specific intent to keep the car permanently, and embezzlement is a species of grand theft.

I think that at this point, it's too late in the day for the state to come forward and suggest that the law of California is different from the law that was applied by a California court.

William H. Rehnquist:

Well, doesn't this suggest the desirability of letting the California Court of Appeal make this determination?

They can speak with final authority, uh, make the determination on harmless error.

They can speak with final authority on what embezzlement requires under California law.

We can't.

Christopher D. Cerf:

They, they certainly can speak with final authority on that.

I don't think as a matter of harmless error jurisprudence that makes any difference at all.

I think the central issue here is the crime with which this individual was charged, and here the jury was told four times, grand theft, of which embezzlement is a, is a variety, requires an intent to keep the car permanently.

I don't think harmless error analysis entitles a review in court to return to the scene and find, well, in any event, he is guilty of a lesser crime than that, which the jury was told to find the crime.

For that reason, it would be our suggestion that regardless of what the crime of embezzlement may or may not be in California, nothing turns on that as a matter of harmless error analysis.

On this issue of intent, uh, the evidence, uh, we would suggest, was really quite equivocal.

This is not a case in which, uh, the evidence suggested that the car had been abandoned, that the person who had leased the car had been caught trying to sell it, that he'd been trying to cross a border or anything of that nature.

This automobile was found down Wilshire Boulevard from the place where it was rented, and it was found at an address that had been provided at the, by appellant at the time he had leased the car.

Now, we would suggest that the jury could very reasonably conclude that whatever else was going on in this case, that did not suggest an intent to keep the car permanently.

Moreover, this is a somewhat unusual case, as harmless error cases go, even assuming that Rose applies, in that the jury need not, rather, in that the Court need not really speculate as to what the jury would have done, whether in fact it found a need to rely on the presumptions.

Indeed, uh, we have included in the Joint Appendix a question, and I think it's found on page 23, but it's a question that was submitted to, uh, the court after the period had been deliberating for a while.

And that question asks the court in no uncertain terms, what about this requirement of intent to keep the car permanently, and just how do these presumptions work with respect to that element.

The jury, so far as the record reveals, was reinstructed pursuant to the offending instructions, and nine minutes later came back with a verdict of not, of, of guilty.

And we think that that chain of events is, simply as a matter of logic and reason, inconsistent with the suggestion that the jury did not find it necessary to rely on the presumptions.