Brief Bank # B-827 (Re: F 2.50.01a [Evidence Of Other Sexual Offenses (EC 1108): Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
V.
JOHN DOE,
Defendant and Appellant.
________________________________________________)
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF KERN
Honorable Gary Friedman, Presiding
APPELLANT’S SUPPLEMENTAL BRIEF
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95518-4956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the Court of
Appeal under the Central
California Appellate Program’s
Independent Case System
ARGUMENT
I
UNDER THE HOLDING OF A RECENTLY PUBLISHED CASE, AND THE AUTHORITIES AND REASONING RELIED UPON THEREIN, THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GIVING FORMER CALJIC No. 2.50.01.
As explained in Appellant’s Opening Brief (“AOB”), the trial court allowed Ms. W to testify, pursuant to Evidence Code section 1108, that appellant had previously raped her in his motel room. (AOB 10-15; see Augmented RT 5/26/98, pp. 23-34.) Later, in reference to Ms. W’s testimony, the court gave CALJIC No. 2.50.01, thereby instructing appellant’s jury as follows:
Evidence has been introduced for the purpose of showing that the Defendant engaged in a sexual offense other than that charged in the case. [Par.] “Sexual offense” means a crime under the laws of the State or of the United States that involves any of the following:
(1) Any conduct made criminal by Penal Code Section 261(a)(2), Forcible Rape. The elements of this crime are set forth elsewhere in these instructions.
(2) Contact, without consent, between any part of the Defendant’s body or an object and the genitals or anus of another person.
(3) Contact, without consent, between the genitals or anus of the Defendant and any part of another person’s body.
If you find that the Defendant committed a prior sexual offense, you may, but are not required to, infer that the Defendant had a disposition to commit the same or similar type of sexual offenses. If you find that the Defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.
Unless you are otherwise instructed, you must not consider this evidence for any other purpose. (RT 263-264, emphasis added.)
In AOB, appellant acknowledged Ms. W’s testimony was precisely the sort of evidence authorized by section 1108. (AOB 20.) Appellant went on to assert, however, that section 1108 violates the Fourteenth Amendment’s Due Process Clause, since use of other-crimes evidence to show criminal propensity violates fundamental principles and traditions in our society and its justice system. (AOB 20-22.)
On the first day of this month, our Supreme Court decided People v. Falsetta (1999) ____ Cal.4th ____ [99 C.D.O.S. 8768, 8769-8772], in which it rejected a similar due process argument. The Court further ruled, however, that the trial court erred by refusing to modify and give “a special limiting instruction” on section 1108 evidence. (Id., at 8772-8773.) In so ruling, the Court noted the proper portions of the limiting instruction are now in CALJIC No. 2.50.01, the 1999 version of which admonishes jurors as follows:
However, if you find [by a preponderance of the evidence] that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove [beyond a reasonable doubt] that [hel [shel committed the charged crime[s]. The weight and significance of the evidence, if any, are for you to decide. (Ibid.)
Hence, the Falsetta Court approved the above-quoted portion of the 1999 version of CALJIC No. 2.50.01. What it did not do was decide if the previous version of CALJIC No. 2.50.01–which was given at Mr. Doe’s trial, and did not contain the above language–was constitutionally proper.
Three days after Falsetta was decided, the Second District answered this question in the negative. In People v. Vickroy (1999) ____ Cal.App.4th _____ [99 C.D.O.S. 8888, 8889], the Second District agreed section 1108 does not per se violate the Fourteenth Amendment’s Due Process Clause. The Second District further noted, however, that Mr. Vickroy’s jury was given a pre-1999 version of CALJIC No. 2.50.01, which instructed it as follows:
Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense [on one or more occasions] other than that charged in this case. [Par.] “Sexual offense” means a crime under the laws of a state or of the United States that involves: [Par.] [Any conduct made criminal by Penal Code section 647.6(a). The elements of [this crime] are set forth elsewhere in these instructions.] [Par.] If you find beyond a reasonable doubt that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit [the same or similar type] of sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime [or crimes] of which [he] is accused. (Id., at 8889, emphasis added.)
The Second District deemed this instruction violative of due process. Specifically, the Second District ruled as follows:
“The due process clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (In re Winship (1970) 397 U.S. 358, 364.)” (People v. Fitch [(1997) 55 Cal.App.4th 172, 182].)
We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as “proxy” or substitute for proof of the ultimate fact, i.e., appellant’s guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges. (Id., at 8890.)
The Second District additionally concluded the giving of this defective instruction was prejudicial. In so doing, it noted the jury was properly instructed on reasonable doubt pursuant to CALJIC No. 2.90, and on circumstantial evidence pursuant to CALJIC No. 2.01. (Id., at 8890.) The Second District further noted, however, that [t]hese instructions did nothing to clarify that the jurors were not to convict appellant of the current charges simply because they concluded beyond a reasonable doubt that he had committed prior sexual offenses.” (Ibid.) Although another instruction was given which did suggest the jury could not convict the defendant solely because of his prior sex crimes, the Second District said it could not “assume the jury followed the constitutionally correct conflicting instruction.” (Ibid.) Accordingly, the Second District reversed the judgment against Mr. Vickroy. (Ibid.)
Eleven days later, the Second District modified in several respects its ruling in Vickroy. (See _____ Cal.App.4th _____ [99 C.D.O.S. 9062].) None of the modifications, however, affected the above-described portions of the holding.
In the case at bar, the trial court gave a version of CALJIC No. 2.50.01 containing the same language condemned in Vickroy. (See p. 2, supra.) Indeed, the instructions given here were worse, as the instructions in Vickroy at least required the prosecution to prove the prior sex offense beyond a reasonable doubt before it could be unconstitutionally used as the sole evidence of guilt. The instructions given here did not so require, but instead required, perhaps properly, that the prosecution prove the prior sex crimes by a mere preponderance of the evidence. (See RT 263 et seq.)
Appellant submits the decision in Vickroy is not only directly on point, but also well-reasoned and correct. Moreover, even if Vickroy is subsequently depublished, the reasoning which it employed and the authorities on which it was based will remain valid. Accordingly, if Vickroy is later depublished, appellant hereby incorporates as his own the Second District’s above-noted arguments and citations, all of which show that the previous version of CALJIC No. 2.50.01, as given here, was constitutionally defective.
Finally, appellant notes the giving of this defective instruction was prejudicial for all the same reasons for which it was prejudicial in Vickroy. That is, like the jury in Vickroy, appellant’s jury was given CALJIC Nos. 2.01, 2.90, etc., but those instructions cannot be confidently said to have erased the suggestion in CALJIC No. 2.50.01 that appellant could be convicted of the charged offense solely because of prior sex crime. Moreover, as explained in detail in AOB, the case against appellant was exceedingly marginal. (AOB 23-26.) Accordingly, the giving of this defective instruction must be deemed prejudicial. The judgment against appellant must be reversed.
CONCLUSION
For the reasons set forth in this brief, appellant asks that the judgment against him be reversed.
DATED: November 23, 1999
Respectfully submitted,
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95518-4956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the Court of
Appeal under the Central
California Appellate Program’s
Independent Case System
