Charles W.

Barnes (SBN 175151)

1017 L St. #781
Sacramento, CA
(916) 283-7991
FAX (916) 880-5401

Attorney For Appellant

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. xxx

Plaintiff, APPELLANT’S OPENING BRIEF

Dept: 12
vs. Date: Feb 15, 2008 10:00 a.m.

LEAH MORITZ,

Defendant and Appellant.

APPELLANT’S OPENING BRIEF

Appeal from the Judgment of

The Sacramento Superior Court, Dept. 12
The Hon. Judge William Gallagher, presiding

APPELLANT’S OPENING BRIEF - CASE NO. XXX

 TABLE OF CONTENTS

I. INTRODUCTION 1
II. STATEMENT OF FACTS 1
III. STATEMENT OF THE CASE 2
IV. ARGUMENT 3
A. The court misinstructed the jury on an essential element of the charged
crime, requiring reversal 3

1. Standard of review on appeal 3

2. The Court's Defective Criminal Negligence Jury Instruction Permitted
the Jury to return a guilty verdict under an impermissibly vague
and LOW standard 3
3. A properly instruction read aloud to the jury does not eliminate the
prejudice caused by the defective written instruction. 4
4. Reversal is required for failure to instruct on an element of an offense
unless the error is harmless beyond a reasonable doubt, and the
record establishes the element as a matter of law 5
5. The record in the case at bar fails to establish the missing element as a
matter of law or fact 5
B. Prosecutorial Misconduct Compounded the Legal Error 7
1. Argument that lack of due care explains lack of evidence 7
2. Prosecution’s disingenuous argument that a critical witness was
legally “unavailable” 8
3. Improper references to inapplicable standards of care 9
4. Prosecution’s Mischaracterization of reasonable doubt 9
5. Prosecution suggestions that a legal presumption of custody follows
from ownership 10
6. Prosecution’s Implication that Appellant is culpable through
principles of Joint Custody 10
7. Repeated misstatements of fact 10

i
APPELLANT’S OPENING BRIEF - CASE NO. XXX
 TABLE OF AUTHORITIES
Page(s)
Cases

Rose v. Clark (1986) 478 U.S. 570, 580-582 3

People v. Riederer (1990) 217 Cal. App. 3d 829, 829-830 4
People v. Jarrell (1987) 196 Cal. App. 3d 604, 607-608 3
People v. Thornton (1974) 11 Cal. 3d 738, 769 n.20, cert. denied, 420 U.S. 924 5
People v. Cantrell (1973) 8 Cal. 3d 672 4
United States v. Knapp (9th Cir. 1997) 120 F.3d 928, 930 5
United States v. Stapleton (9th Cir. 2002) 293 F.3d 1111, 1118 n.3 6
United States v. Romo-Romo (9th Cir. 2001) 246 F.3d 1272, 1274 4
People v. Flannel (1979) 25 Cal. 3d 668, 684 n.12 3

Statutes
California Penal Code § 597 (B)

ii
APPELLANT’S OPENING BRIEF - CASE NO. XXX
I. INTRODUCTION
In this case, appellant Leah Moritz, after one mistrial, was convicted of animal neglect

arising out of an incident in which two dogs were seized by animal control personnel from the

yard of the house where she lives with her husband and several children.

The dogs were found to be suffering from hyperthermia, and were treated and eventually

returned to the appellant.

At trial there was no evidence adduced to show that Ms. Moritz had care and custody of

the animals, as the statute required. Rather, the prosecution argued that because Ms. Moritz was

the owner it could be inferred that she was responsible for the dogs’ care at any given time.

When the jury was given the case for deliberation, it was provided with a jury instruction

that materially misstated the essential elements of criminal neglect. Because of this legal error,

the court must make an independent review of the record, to determine if it supports a finding of

the missing elements as a matter of law. However, due to the barren factual landscape of the

prosecution’s case, the record does not support this finding, and the judgment must be reversed.

II. STATEMENT OF FACTS

On June 4th 2007, animal control Officer Sarah Bicking reported to the home of

defendant Leah Moritz and her family, responding to a report of possible animal neglect. (RT

56:23-27) When Ms. Bicking arrived at the residence, she found no one at home (RT 58:19-23),

and she found two puppies in an enclosure in the front yard. (RT 57:26-28) Their enclosure was

in the direct sun, and while it contained water bowls, these had been flipped over and were

empty. Ms. Bicking transported the puppies to a veterinary hospital where they were treated for

hyperthermia due to sun overexposure. (RT 66:1-9) The veterinarian who treated the puppies

found the puppies to be in a state of hyperthermia, and at risk of serious harm or worse. (RT

-1-
202:17-27)

Arriving at the Moritz household at approximately the same time as Ms. Bicking was

animal control officer Kenneth Douglas. While at the Moritz home, Douglas spoke to a man at

the site, Spencer Perdue, who told the animal control officer that for the previous three days he

had been moving the puppy enclosure for his sister to keep it out of the sun. (RT 141:10-14)

Perdue also stated that on that particular day he had not moved the puppies into the shade since

he had been away watching a football game. (RT 151:13-16) At the same time, Perdue placed a

telephone call to defendant/appellant Leah Moritz, who had been away from her home, caring for

her horses. (RT 151:2-6) She arrived at the scene soon after the telephone call, and spoke with

the animal control officer. She identified herself as the owner of the dogs. (RT 143: 15-19)

Neighbor Stephanie Perdue testified that on the day of the incident, and on the two days

prior she had heard a car leaving the Moritz home early in the morning, and had seen no one

return until late at night. (RT 162:18-26) She also testified that in the past she had seen the

puppies being cared for generally by the children of the Moritz family. (RT 165:12-15)

No testimony as to who moved the puppies’ enclosure into the area of the yard where it

was found on the day of the charged offense was elicited. Additionally, no testimony was elicited

on the question of who put the dog enclosure into the front yard on either of the two previous

days.

III. STATEMENT OF THE CASE

On August 25, 2006, appellant Leah Moritz was arraigned in Department 3 of the

Sacramento County Superior Court on three counts of PC 597 (B), Misdemeanor Complaint No.

06M08769. (CT:07)

The case was tried on October 26 in department 26. On November 2 the court declared a

mistrial after the jury deadlocked. (CT:06)

-2-
 The defendant was retried on two counts of violation of PC 597 (B), commencing on

March 1, 2007. The trial was held in Department 12, the Hon. Judge William Gallagher

presiding. On March 7, 2007, the jury returned a verdict of guilty on both counts. (CT:02)

On March 29, 2007, in department 23, Judge Gallagher sentenced the defendant to 2

years informal probation, and 20 days of county jail with 120 hours of alternative sentencing

recommended. Restitution fines were also imposed. (CT:01)

IV. ARGUMENT
A. THE COURT MISINSTRUCTED THE JURY ON AN ESSENTIAL
ELEMENT OF THE CHARGED CRIME, REQUIRING REVERSAL

The court’s instruction to the jury on the elements of criminal negligence materially

misstated the law, permitting the jury to find defendant guilty under an erroneously vague and

low standard. Error in instructing on an essential element of a crime requires reversal unless the

record establishes the element as a matter of law.

1. STANDARD OF REVIEW ON APPEAL

Whether jury instructions omit or misstate elements of a statutory crime is a pure

question of law, and is reviewed de novo. United States v. Stapleton (9th Cir. 2002) 293 F.3d

1111, 1118 n.3; United States v. Romo-Romo (9th Cir. 2001) 246 F.3d 1272, 1274 (“Whether a

jury instruction misstates elements of a statutory crime is a question of law reviewed de novo.”);

United States v. Knapp (9th Cir. 1997) 120 F.3d 928, 930.

2. THE COURT'S DEFECTIVE CRIMINAL NEGLIGENCE JURY

INSTRUCTION PERMITTED THE JURY TO RETURN A GUILTY
VERDICT UNDER AN IMPERMISSIBLY VAGUE AND LOW
STANDARD

Prior to deliberations the court provided the jury with a written definition of criminal

negligence which due to a clear typographical error grossly misstated the law.

Under CALCRIM 590, a person acts with criminal negligence when:

-3-
 1) He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2) A reasonable person would have known that acting in that way
would create such a risk.
In this case, the relevant written jury instructions rendered part 1 above as follows:
He or she acts in a reckless way that creates a high risk or death or
great bodily injury… (emphasis added) (CT:55)

This error, the substitution of OR for OF, materially misstates the law in a way that poses

a substantial risk of misleading the jury by permitting a finding of criminal negligence under any

of three scenarios, including one where a person creates a high risk of some wholly undefined

kind – e.g., a risk of trivial physical injury, or a risk of physical discomfort.

While it is impossible to know if the jury mistakenly relied on this misstatement of the

law during its deliberations, assuming that they approached their task with due seriousness, the

possibility that they were misled is impossible to discount, and unless the court can find that the

record sustains a finding of the missing element of criminal negligence as a matter of law, the

judgment must be reversed.

3. A PROPERLY INSTRUCTION READ ALOUD TO THE JURY

DOES NOT ELIMINATE THE PREJUDICE CAUSED BY THE
DEFECTIVE WRITTEN INSTRUCTION.

Although the record does not disclose whether or not the court gave a correct definition

of criminal negligence when it delivered that instruction aloud, even assuming arguendo that

such correct instructions were given, this fact would not in any way mitigate the prejudice

suffered by the appellant as a result of the defective written instruction, because of the remaining

potential for juror confusion posed by inconsistent jury instructions. A juror who found his

attention lapsing for a few seconds at the close of a trial might realize that he has not paid full

attention to the judge’s reading of the applicable law, but may also have chosen not to ask that

-4-
the instructions be read again, believing that trustworthy and accurate written instructions will be

available during deliberations – as indeed the judge said would be the case.

Indeed, even if accurate instructions were given orally, and each juror understood these

instructions at the time that they were read aloud, providing the jury with a grossly inaccurate

statement of the law to consult during deliberations simply poses too great of a danger that the

deliberations will be compromised or tainted by juror confusion concerning the true state of the

law.

4. REVERSAL IS REQUIRED FOR FAILURE TO INSTRUCT ON AN

ELEMENT OF AN OFFENSE UNLESS THE ERROR IS
HARMLESS BEYOND A REASONABLE DOUBT, AND THE
RECORD ESTABLISHES THE ELEMENT AS A MATTER OF
LAW

Where the trial court has failed to instruct the jury on an essential element of an offense,

the judgment must be reversed unless the error is harmless beyond a reasonable doubt. Rose v.

Clark (1986) 478 U.S. 570, 580-582; People v. Riederer (1990) 217 Cal. App. 3d 829, 829-830;

People v. Jarrell (1987) 196 Cal. App. 3d 604, 607-608.

Error in instructing on an essential element of the offense will be harmless beyond a

reasonable doubt only if: (1) the parties recognized that the element was in issue, and presented

all the evidence at their command on it; and (2) the record not only establishes the necessary

element as a matter of law, but also shows that any contrary evidence was not worthy of

consideration. People v. Thornton (1974) 11 Cal. 3d 738, 769 n.20, cert. denied, 420 U.S. 924;

People v. Cantrell (1973) 8 Cal. 3d 672, overruled on other grounds by People v. Wetmore

(1978) 22 Cal. 3d 318, 324 n.5; People v. Flannel (1979) 25 Cal. 3d 668, 684 n.12.

5. THE RECORD IN THE CASE AT BAR FAILS TO ESTABLISH

THE MISSING ELEMENT AS A MATTER OF LAW OR FACT

Here, the court’s defective formulation of the law is a de facto wholesale failure to

-5-
instruct on the elements of criminal negligence, since the erroneous inclusion of a lower standard

of generic, undefined risk nullifies the requirement that the jury find, at the very minimum,

conduct that creates risk of death or risk of great bodily harm. In order to avoid reversal, the

record would have to show that this missing element was established as a matter of law.

However the record manifestly does not establish that the appellant engaged in conduct

that created a risk of death or great harm, either as a matter of law or fact. This is because the

exact nature of defendant’s criminal conduct is never defined in the prosecution’s case, beyond

the bare argument that because appellant is the owner of the dogs, she is impliedly liable for their

wellbeing at all times, no matter to whom she has entrusted their care at any given time.

In fact, the prosecution at trial never even attempted to prove that Ms. Moritz, out of the

six members of her household, so much as touched the puppy pen or the dogs’ water bowls on

either the day of the offense, or ever. To the contrary, the evidence did suggest that one or more

of Ms. Moritz’ children were the only persons to be seen regularly taking care of the dogs before

the date of the alleged offense.

Additionally, only two persons were identified at trial as having moved the puppy pen in

appellant’s yard on the day of the offense, as well as on the two previous days: prosecution

witness Stephanie Perdue, and her husband Spencer – who, according to prosecution-elicited

testimony, told animal control officers that he had been caring for the dogs for the last few days,

but had failed to move their enclosure out of the sun on the day of the alleged offense because he

had been watching a football game at the house of a friend.

In short, the jury was invited to infer care and custody of the dogs from the fact of Ms.

Moritz’s ownership, and from that fact alone. However, under the statute itself, the mere fact of

ownership is irrelevant, since PC 597 (B) regulates the behavior of persons “having the charge

-6-
or custody of any animal, either as owner or otherwise.” (Emphasis added.)

The record simply does not give the merest hint as to what appellant did that caused the

harm – whether it was personally placing the pen in the sun, or delegating the job to an distracted

child, or delegating the job to a slovenly neighbor-relative. Again, the prosecution at trial never

even attempted to provide evidence of Ms. Moritz’ care and custody of the animals, other than

the care and custody that can be weakly inferred from the fact of legal ownership.

B. PROSECUTORIAL MISCONDUCT COMPOUNDED THE LEGAL

ERROR
The prejudice wrought by this mistaken formulation of the law can only be fully

appreciated when viewed in the context of the trial itself, which was steeped in various

inaccurate and unsupported statements of the law provided by the prosecution’s closing

argument. The cumulative effect of the court’s misstatement of the law, and the prosecution’s

similar misstatements could only have been to confuse the jury—and confusion alone could

explain the second jury could vote to convict in the absence of an evidence whatsoever.

A partial list of the prosecutions misstatements is given below.

1. Fallacious Argument that Lack of Due Care explains Lack of

Evidence

Apparently to blunt the potential damage to the prosecution’s case from the wholesale

lack of evidence that Ms. Moritz had “care and custody” of the puppies on the precise day of the

alleged offense, the prosecution offered in closing argument the following non-sequiters:

The reason I bring up circumstantial evidence is because this case is not

a direct evidence omission case. It’s a neglect case, Neglect cases are
essentially omission cases. That means there’s an absence of something,
okay? So you don’t have the eyewitnesses seeing it all happen, because
the claim is that the puppies were left, the puppies were abandoned…and
because of that, there’s no, you know, there’s hardly going to be any
direct evidence that shows that because that’s what the charge is. Do you

-7-
 follow? (RTA 23:4-12)

If an argument can be wrung from these words, it would appear to amount to this:

criminal neglect can be based on a defendant’s omissions, or the absence of legally required acts.

In this case there is an absence of witnesses to the charged conduct; but lack of such evidence

should not trouble the jurors because in a neglect case, absence of something is the norm.

The only conceivable effect of such a logically-challenged statement would be to

obfuscate the issues and further confuse the jury. While a defendant may be guilty of animal

neglect due to an absence of proper care for a pet in his or her custody and charge, this has

nothing to do with the absence of witnesses to that alleged breach of duty. Nothing in law or

reason suggests that where someone is charged with neglect, a finder of fact should expect that

percipient witnesses to the neglect will not exist.

2. Prosecution’s disingenuous argument that a critical witness was

legally “unavailable”

In its closing argument for the defense, defense counsel challenged the jury to consider
why Spencer Perdue, the defendant’s brother and putative caretaker for the dogs on the date of
the alleged crime, was not himself charged with the offense.
In responding to that point, the People responded as follows:
Ladies and gentleman, Mr. Casey is engaging in improper
argument before you… You are not to speculate why (Spencer
Perdue) is not here. If you want to know…he is an unavailable
witness and the People are not allowed to call him, okay?... We are
not permitted to do that… I have a few responses to Mr. Casey’s
argument. He did exactly what I thought he was going to do. He’s
going to blame it on the person who couldn’t be called… (RTA
50:20 – 51:5)

Here, in the space of a few breaths, the prosecution (a) directs the jury not to speculate as
to why a certain individual didn’t appear in the proceedings; then (b) supplies the jury with the
grounds for such speculation by making a vaguely legalistic assertion that the person in question

-8-
is “unavailable” – which, it just so happens, is flatly untrue; then (c) impugns defense counsel’s
fairness by insinuating that it was the defense who was being duplicitous by trying to pin the
blame for the puppies injuries on an individual who was simply unable to appear to dispute the
allegations and clear his name.
Notably, this last claim – that Spencer Perdue was “unavailable” – is not even supported
by the record. Thus, it was the prosecution who was in this instance being duplicitous, making a
vague reference to an inapplicable legal doctrine in another attempt to justify a lack of evidence
of appellant’s culpable conduct.
3. Improper references to inapplicable standards of care
The prosecution’s repeated characterizations of the appellant’s dogs as “babies” was
combined with allusions to standards of care not at issue in this case, as in the following
prosecution argument:
I’m telling you that there’s an extra special duty of care to these
babies… because the condition that they were in was not such that they
could take care of themselves. (RTA 54:7-11)

This reference to “extra special” duties of care is yet another example of a legal-sounding
proposition that, in combination with the defective jury instruction, muddied the state of the law
that the jurors were duty-bound to apply to the facts of this case.
4. Prosecution’s Mischaracterization of reasonable doubt
During closing, the prosecutor asked the jury:
What’s reasonable doubt? Different versions of the story is not
reasonable doubt, unanswered questions is not reasonable doubt, nor is
missing pieces. (RT 37:5-10)

It is not the prosecutor’s job to state the law for the jury. However, if he or she does,
fairness dictates that it not be done capriciously or disingenuously, as was done here. Different
versions of a story do constitute reasonable doubt, if one reasonable version of the story is
consistent with a finding of not guilty. Also, unanswered questions can and do constitute
reasonable doubt in a case like this where the question “But who actually left the puppies in the

-9-
sun, and failed to give them water?” remains unanswered. Missing pieces do often constitute
reasonable doubt for the very same reason.
5. Prosecution suggestions that a legal presumption of custody follows
from ownership

In its closing, the prosecution argued that custody and care is implied by ownership (RTA

56: 12-15) and that

When Leah Moritz said the dogs belong to me, she was at that time claiming the duty of a
caregiver and claiming that she is responsible for the dogs. (RTA 13:18-24)

Note that, here, the prosecution is not merely arguing that custody and care can be
factually inferred from Ms. Moritz’s claims of ownership, but that her statement itself is legally
operative language that creates an obligation of duty. No authority for this proposition was
offered throughout these proceedings.
6. Prosecution’s Implication that Appellant is culpable through
principles of Joint Custody

Defense argued that Leah Moritz’s brother and neighbor, through words attributed to
him, may have in fact been the individual with care and custody of the dogs on the date of the
charged offense. Prosecution in closing argued as follows:
Let me ask you, ladies and gentlemen, if Mr. Perdue was responsible for those dogs, why
are they in (the appellant’s) yard day after day? And just so you know, there is such a
thing called joint custody, and I’m not claiming that there is joint custody. (RT 30:25 –
31:1)

This seemingly throwaway comment further demonstrates the sheer audacity of the
prosecutor’s gambit: toss out a vague reference to some legal concept – in this case, “joint
custody,” a concept normally relegated to child custody cases – then immediately disavow its
relevance to the issues before the jury, leaving them, if anything, increasingly confused as to
what the applicable law is.
7. Repeated misstatements of fact
In addition to misstatements of the law, the prosecution made repeated misrepresentations

-10-
of the evidence, as in the following instance:
PEOPLE: She (the defendant) doesn’t get to pick and choose,
ladies and gentlemen. She picked she was the owner [sic] on June
4th. She said talk to me. These are my puppies….but now when
we’re in court of law, she says (the dogs are) not mine.

DEFENSE: Your honor, I’m going to object. My client never

testified to that.

THE COURT: Sustained.

PROSECUTION: I’m sorry, defense counsel says not mine.

MR. CASEY: I’m going to object. I never argued that.
THE COURT: Sustained.
PROSECUTION: The only time (defendant’s brother) Spencer
Perdue’s name was brought up as the owner was in this courtroom.

MR. CASEY: I object. Again, I never claimed Mr. Perdue was the
owner.

THE COURT: Sustained.

PROSECUTION: Okay. (RTA 57:24 – 58:2)

In three consecutive statements, the prosecutor asserts first that the defendant disavowed
ownership at trial, second that the defense’s argument is that the defendant was not in fact the
owner of the dogs, and, third, that the defense’s position is that the defendant’s brother was the
actual owner of the dogs. Each prosecution assertion is objected to timely, on the grounds that it
is simply not true. Each objection is sustained, and each time the prosecutor responds by making
a slight variation to the assertion, and attributing the evidence to a different source in the hope
that at some point the allegation will stick. This shows at best a cavalier attitude to the evidence
and at worst a complete disregard for it.
In any case, this kind of conduct can only serve to further confuse the jury as to what the
facts are, and what the law that must be applied to the facts actually is.
Furthermore, although the judge sustained most of the defense’s objections to the
people’s misstatements of the law, and instructed the jury to consider only the court’s version of

-11-
the law in its deliberations, this “corrective” measure can not be considered sufficient given that
even the court’s statement of the law turned out to be equally inaccurate and inadequate.
Conclusion
The defective jury instruction potentially misled the jury as to the proper standard of
negligence in this case of alleged criminal negligence. Moreover, even if the court orally
presented an accurate statement of the law, the jury was likely to be confused by the inconsistent
instructions – especially as they were given in the context of a trial where the prosecution itself
repeatedly subjected the jury to additional misstatements of the law.
Because the missing element of negligent conduct cannot be established by an
independent review of the record, the judgment of the trial court must be reversed.

Dated: December 4, 2008 Respectfully submitted,

Charles W. Barnes
Attorney for Defendant and Appellant

-12-