4DCA Division 1 Oral Argument - 2026/04/16 - Apr 16, 2026

argument

4DCA Division 1 Oral Argument - 2026/04/16

California Fourth District Court of Appeal, Division One 3h 2m 8 chapters transcribed 1 month ago official recording ↗

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What is the issue with the unanimity instruction in the Hewn case?

5:14

Thank you.

Russell Babcock 8:00

This is attorney Babcock. I just want to do a fast sound check.

Martha 8:33

Good morning. This is Martha from the clerk's office. I will be doing a quick check-in for those of you appearing remotely. If you can please unmute yourselves and turn on your videos. And please state your presence when I call your name. So I have Attorney Russell Babcock.

Russell Babcock 8:50

Good morning. I'm Russell Babcock.

Martha 8:53

Attorney John Rorabaugh.

Russell Babcock 8:56

Good morning. John

Daniel Pasek 8:56

Rorabaugh.

Martha 8:58

And Attorney Daniel Pasek.

Daniel Pasek 9:01

Good morning. Daniel Pasek.

Martha 9:03

Okay, so I ask that you please keep your microphones and videos off during the session. I'm going to ask you that if you have any experience or any technical difficulties during the oral argument session, immediately exit the video conference and use the phone number and the access code that I emailed you this morning. So please turn off your microphones and your videos and court will be with you shortly. Thank you.

Unknown 26:43

I'm joined by Justice Rubin to the left and Justice Daidle to my right. First matter we're going to hear this morning is people versus whom.

Danielle Needlework 26:53

Unknown 26:53

have Russell Babcock appearing remotely, do we? Yes, you do, Your Honor. Here I am. Good morning, Mr. Babcock. Good morning. Now, you've requested a mere nine minutes. Do you want to reserve part of that?

Russell Babcock 27:08

Let's reserve two minutes, please.

Unknown 27:09

Two minutes, all right. You want to state your appearance for our recording, please?

Russell Babcock 27:15

Yes, sir. Good morning, members of the Court. I'm Russell Babcock. I represent Malcolm Hewn on appeal. Your Honors, this case, there's several issues in the case. I think it's been pretty thoroughly briefed. I just want to touch upon issue number one and two and perhaps issue five for a second and answer any questions the Court might have. Starting with issue number one, that's the unanimity instruction. I think all the parties agreed that the prosecutor initially basically misstated the law. He indicated that they, and this is on page 21 of my AOB, you do not need to all agree on which injury. And we had a situation where there were some thumbnails that were ripped off and some bite marks. And I think the question is whether or not the correction here by the court was adequate under the circumstances.

Russell Babcock 28:11

What happened is that defense counsel, instead of requesting guidance from the court or a curative instruction from the court, decided to handle this on her own. and basically argued to the jury. I think the case law is pretty clear that the arguments of counsel don't have the same effect as the law as given by the court. And, you know, as I've pondered this, I cannot see any tactical reason that defense counsel would not have asked the court to instruct and say, no, this is not the law. The law says there has to be unanimity on this. The prosecutor addressed this as well in his argument, but again, as I mentioned in my briefing, I think it was a little bit convoluted what the prosecutor said. It wasn't exactly clear.

Russell Babcock 28:55

And so I think what we've got is we've got the jury being left with the prosecutor's initial statement very strongly that there doesn't have to be unanimity. And then we've got defense counsel basically saying, no, that isn't exactly true. And I think that if it comes down to a credibility contest, it's probably a good chance that the jury is going to believe what the prosecutor says.

Justice Rubin 29:14

Mr. Babcock, this is Justice Rubin. First of all, good morning. Good morning, Your Honor. I want to take a step back, if it's all right. I want to talk about the unanimity issue to start. So we have basically two counts for two different events. We have an event that occurs in the closet. We have an event that occurs in the living room, correct? Correct. All right. So with respect to the event that occurs in the living room, there's only really one injury there, correct? Correct. So we don't need unanimity on that, do we?

Russell Babcock 29:51

No, honestly, I don't think we

Justice Rubin 29:53

do. All right. So now let's talk about what happened in the closet. How do we cut that in to different events? Why isn't that just a course of conduct issue? And in the course of that particular charge, there could be multiple injuries.