Brief Bank # B-568
NOTE: The text of the footnotes appears at the end of the document.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, Crim. C000000
Plaintiff and Respondent, Sacramento County Superior Court
No. CR 000000
v.
JOHN DOE,
Defendant and Appellant.
__________________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
Honorable Cecily Bond, Judge
APPELLANT’S OPENING BRIEF
JANET J. GRAY
ATTORNEY AT LAW
P.O. Box 51962
Pacific Grove, CA 93950
(408) 375-6263
Attorney for Appellant
IV
IT IS REVERSIBLE ERROR FOR THE COURT TO HAVE INSTRUCTED THE JURY WITH RAPE INSTRUCTIONS WHERE THE CHARGING INFORMATION GAVE NO NOTICE OF THE CLAIM OF RAPE
A. Introduction/Facts
Appellant was charged and convicted of two counts of Penal Code, section 459, unlawful entry with intent to commit larceny or any felony. (CT 239-249.) The information charges in counts one and ten that appellant violated section 459 of the penal Code as follows: “That on the 8th day of April, 1991, at and in the county of Sacramento, State of California, the defendant …. did willfully and unlawfully enter the inhabited dwelling house of Ms. B, located at 0000 Anytown Avenue, with the intent to commit larceny and any felony.” (CT 117, 122.)
Although the appellant was not charged with rape or attempted rape, the jury was instructed as follows:
Every person who enters any inhabited dwelling with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property or with the specific intent to commit kidnapping, robbery, and/or rape, is guilty of the crime of burglary in violation of Penal Code, section 459.
It is immaterial whether the intent with which the entry was made was thereafter carried out. In order to prove such crime, each of the following elements must be proved:
One, a person entered an inhabited dwelling.
Two, at the time of the entry, such person had the specific intent to steal and take away someone else’s property and intended to deprive the owner permanently of such property, or;
Three, at the time of the entry, such person had the specific intent to commit the crime of kidnapping, robbery, and/or rape.
For purposes of the prior instruction, “rape” is defined as engaging in an act of sexual intercourse with a person who is not the spouse of the perpetrator, accomplished against such person by means of force, violence or fear of immediate and unlawful bodily injury to such person or to another person.” (RT 662,663.)
Defense counsel objected to the jury being instructed on what was in essence attempted rape because the pleadings did not charge within the two burglary counts that rape was the specified felony, and because the use of the term “rape” refocused the jury’s attention away from the primary charges of kidnapping because of the highly inflammatory content of a rape charge that was unfairly prejudicial to the defense. (RT 513, 514.) Appellant also objected because it had not had the opportunity to defend against a charge of rape. (RT 514.) The court overruled the objection. (RT 518.)
The two burglary charges related to Mr. Doe’s two separate entries into Ms. B’s residence. (RT 553.) The first entry occurred when he knocked on the door and entered when she opened the door, (RT 97, 99, 553.) There was no evidence that appellant ever mentioned performing any type of sexual acts upon Ms. B, a small white woman, during this initial encounter, consensual or otherwise. (RT 99, 125.) There was no evidence that appellant ever touched her prior to leaving the premises for the Trinity Street address. (RT 292.)
The second alleged unlawful entry occurred after appellant had returned to Ms. B’s home, sans children and entered the residence with the keys that he had demanded of Ms. B. (RT 554.) Ms. B had testified prior to this time that appellant had threatened to kill her on at least three other occasions while with appellant. Appellant told her he was going to kill her so she had better cooperate with him to avoid harm to her children; second he said he would kill her unless she gave him one hundred dollars, and third, he said he was going to kill her because her husband had testified against him for triple murder for which he had been incarcerated. (RT 123, 125, 127, 136.) Yet Ms. B testified that she interpreted the appellant’s direction to go lay on her bed, evidently clothed, after returning to the house because he was “going to take care of her his way” meant that he was going to rape her. (RT 145, 292.) Ms. B acknowledged there was no sexual touching or sexual advances made by appellant. ( RT 292.)
B. Instructing the Jury With Rape Instructions to Satisfy the Intent Requirement of the
Burglary Charges Violated A12pellant’s Due Process Right to Notice of the Charges
Against Him
It is well established that “(d)ue process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (In re Hess (1955) 45 Cal.2d 171, citing In re Oliver (1948) 333 U.S. 257, 273, 68 S.Ct. 499, 92 L. Ed. 682; Cooke v. United States, 267 U.S. 517, 536-537; 45 S.Ct. 390, 69 L.Ed. 767; (additional citations omitted).) This right stems from the sixth amendment right ‘to be informed of the nature and cause of the accusation’ against one in a criminal action. (U.S. Const. amend. VI.) The United States Supreme Court has held that this sixth amendment right to be informed of the nature and cause of the accusation requires in part than an information state the elements of an offense charged with sufficient clarity to put a defendant on notice of what his must defend against. (Russell v. United States (1962) 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240.)
In the present case the government’s charge of two counts of unlawful entry to commit larceny and “any felony’ was inadequate to put the appellant on notice that the “any felony” of the accusation included a charge of rape, which had never been charged as a separate crime. Given the status of the information appellant was denied the opportunity to defend against the charge that his intent in coming into the Ms. B’s home was to rape Ms. B inasmuch as the first mention of such a charge was made after the close of all evidence while reviewing jury instructions. (RT 518.)
This case is akin to a federal circuit court case that required reversal of the defendant’s first degree murder conviction because the jury was erroneously instructed with an unpled theory upon which first degree murder could be found. (Givens v. Housewright (1986) 786 F.2d 1378, 1381.) In Givens the state had pled that the defendant was guilty of first degree murder because he had “with malice aforethought, willfully and feloniously kill(ed)…, a human being, by striking her about the head and body with his fists.” (Id., at p. 1380.) Even though the information cited two Nevada statutes which defined murder and its two degrees, this was insufficient notice to have instructed the jury with the offense of murder by torture, a first degree murder crime, The information only was suff icient to provide notice of a charge of ordinary first-degree murder, (Id., at pp. 1380-1381.)
C. The Instructional Error Was Highly Prejudicial Requiring Reversal
As in Givens the present information did nothing to suggest that appellant had unlawfully entered Ms. B’s premises to commit rape. Because the error is constitutional in magnitude, the error must be reviewed under the Chapman standard which permits the court to aff irm only if the court finds the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L. Ed.2d 705; See also Givens v. Housewright, supra, 786, F.2d 1378, 1381.)
Because appellant was not apprised of the prosecution’s intent to seek a rape instruction until after the close of the case appellant would have little purpose in highlighting Ms. B’s statements that she believed appellant was going to rape her with any type of intensive cross-examination, Appellant had no reason to present evidence that he had not entered her house to commit a sexual assault upon Ms. B.
The inflammatory nature of a charge of rape cannot be ignored when considering the prejudicial. Ms. B is a small white woman, a single mother of two, suggesting that appellant’s, a black male, purpose in entering her home was to rape her without any affirmative evidence of such an intent. Such an claim could hardly be ignored by a jury in light of lingering myths regarding black men’s alleged lust for white women. [Footnote 1] As defense counsel aptly argued to the court below, this charge was so inflammatory that the jury could not be expected to consider the evidence not only on this charge, but also on the aggravated kidnapping charges. (RT 513, 514.)
Another indicia of harmful error in this case is the prosecutorial reliance upon the erroneous instruction in his closing argument to the jury. (See People v. Roder (1983) 33 Cal.3d 491.) The prosecution relied heavily on appellant’s alleged intent to rape Ms B. (RT 563, 567.) For example he argued that, “at the time he entered Ms. B’s residence, he intended to kidnap her– I mean, he intended to rob her, he intended to rape her, if he was going to go ahead do it. So nothing says he has to have one motive.” (RT 563.) The rape theme was repeated again when the prosecution argued that…”(h)e removed her again; this time leaving her children at Trinity Court. Going back, just him and her, those two back to her house. When he gets back to her house, what does he tell her? ‘Go to the bed. I am going to do you up my way, [Footnote 2] or words to that effect. Clearly, ladies and gentleman, this man’s intent on the night in question was to rape her. It was to take whatever money was available, anything of value while he was doing it, whether by force, fear or just picking it up if he had to, kidnap, to do these things. He was going to do it.” (RT 567.) The rape theory was mentioned at least two more times in the prosecution’s argument. (RT 570, 585.)
In the prosecution’s rebuttal argument the prosecution acknowledged that “[t]here is no question but there is insufficient evidence to convict, let alone to charge the defendant, with attempted rape. He would have had to have gone a lot farther than he did to have been rightfully charged with that offense or rightfully convicted, but that is a different issue than the issue of what he was intending to do at the time of crossing the threshold into her home, Entirely different issue. You can intend to do something and not do it. That’s not a defense…” (RT 636, 637.) The prosecution’s argument demonstrates that even though there was not enough evidence to even charge appellant with any form of rape, because the victim subjectively thought this black man was going to rape her that he should be convicted. Before the prosecution should be allowed to present this speculative sideshow to the jury, it had at a minimum the obligation to put appellant on notice of his intent by way of the charging document.
Inasmuch as appellant was not on notice that he would have to defend against allegations of rape, due process considerations requires that the two burglary convictions be reversed.
FOOTNOTES:
A good discussion of this myth and how it has been applied in this society can be found in Why Block Peop/e Tend to Shout, Ralph Wiley (1991) Penguin Books, pp. 81-83.
The victim testified that appellant said ‘ I am going to take care of you my way’ and not ‘do you up’ as represented by the prosecution. (RT 145.)
