Brief Bank # B-892 (Re: F 8.27 n5; F 9.52.1 n4; F 10.65 n4 [Felony Murder: Aider And Abettor — Failure To Give CJ 8.27 Sua Sponte As Reversible Error; Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established; Failure To Give Mistake As To Consent Instruction Sua Sponte As Reversible Error].)
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NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
NO. H000000
Plaintiff and Respondent,
(SAN BENITO CO.
vs. SUPERIOR COURT
NO. CRF00-00000)
JOHN DOE,
Defendant and Appellant.
____________________________________________/
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SAN BENITO, STATE OF CALIFORNIA,
THE HONORABLE MANUEL C. ROSE, JR., JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorneys for Appellant,
JOHN DOE
STATEMENT OF APPEALABILITY
This appeal is taken from a final judgment after a jury trial. The judgment is appealable pursuant to Penal Code section 1237.
STATEMENT OF THE CASE
On March 29, 2000, appellant was charged in an information filed in the Superior Court for San Benito County. (CT 220-223.) In count 1, appellant was charged with murder (Penal Code section 187). (CT 220.) In count 2, appellant was charged with kidnapping with the intent to commit rape (Penal Code section 209, subd. (b)(1)). (CT 221.) In count 3, appellant was charged with forcible rape (Penal Code section 261, subd. (a)). (CT 221.) In count 4, appellant was charged with forcible rape in concert (Penal Code section 264.1). (CT 222.) In count 5, appellant was charged with torture (Penal Code section 206). (CT 222.)
On January 24, 2001, a jury trial commenced. (CT 267.) On January 29, 2001, the court granted the People’s motion to dismiss counts 4 and 5. (RT 645-646.) The court also granted the People’s motion to amend count 2 to reflect a violation of Penal Code section 208, subd. (d). (RT 646.)
On the afternoon of January 29, 2001, the jury began its deliberations. (CT 334.) On January 30, 2001, the jury posed two questions regarding the murder charge. (ACT 2-3.) At 4:50 p.m. on the afternoon of January 30, 2001, the jury returned guilty verdicts on all counts. (CT 424.)
On March 6, 2001, appellant was sentenced to a term of 25 years to life for his murder conviction. (CT 455.) The punishment on the kidnapping and rape counts was stayed pursuant to Penal Code section 654. (CT 455.)
On March 9, 2001, a notice of appeal was filed. (CT 457.)
STATEMENT OF FACTS
On August 22, 1997, Mr. Q was living with Ms. P and their three young children. (RT 580-581.) In the morning, the couple had sex. (RT 583.) Mr. Q did not wear a condom. (RT 583.)
At approximately 10:30 p.m., Mr. Q left for his job working the night shift. (RT 582.) When Mr. Q departed, Ms. P was a “little drunk.” (RT 582.) At 10:50 p.m., Mr. Q called home and learned that Ms. P had gone out. (RT 582-583.) Ms. P never returned home. (RT 584-585.)
At 1:52 a.m. on the morning of August 23, 1997, Officer Edward Escamilla observed Ms. P sitting on the sidewalk at the corner of East and Fifth Streets in Hollister. (RT 239-240.) Officer Escamilla knew Ms. P from having previously encountered her at the Smokehouse bar. (RT 251.) In Officer Escamilla’s judgment, Ms. P was under the influence of alcohol since she had “glassy, watery eyes” and “slurred speech.” (RT 242, 247.)
When Officer Escamilla first saw Ms. P, she was in the company of three men. (RT 240.) However, one of the men walked away before he could contact the group. (RT 240.) Upon Officer Escamilla’s inquiry, the other two men identified themselves as John Doe and Mr. S. (RT 241-242, 248-249.)
Officer Escamilla was concerned for Ms. P’s welfare since she was intoxicated. (RT 250-251.) However, Ms. P indicated that she was fine and that the group was going to take a taxi. (RT 249, 251.) Upon receiving this information, Officer Escamilla determined that there was no need to further detain the group. (RT 251.) After he released the detainees, Officer Escamilla saw them enter a taxi. (RT 249.)
Mr. G was driving the taxi. (RT 258.) He identified Ms. P as one of his passengers. (RT 259.) In addition to Ms. P, three men entered his cab. (RT 260.) Ms. P sat in the front of the taxi with one of the men and held his hand. (RT 277-278.) The other two men sat in the rear of the car. (RT 260-261.) When Mr. G offered to drive Ms. P home, she did not respond to his offer. (RT 260.) Mr. G was directed to drive to the San Benito labor camp which was ten to twelve minutes away. (RT 260, 278.)
When Mr. G arrived at the entrance to the labor camp, the man in front exited the cab. (RT 261, 267.) Mr. G then turned around and drove back toward town. (RT 269.) Mr. G stopped the car before he arrived at Southside Road. (RT 269.) While one of the men in the back seat paid the fare, Ms. P began walking toward Southside Road. (RT 270.) The man who paid the fare walked after Ms. P. (RT 720.) When Mr. G departed, one of the men was 10 feet from Ms. P and the other man was about 40 to 50 feet from her. (RT 280-282.)
On the morning of August 26, 1997, Mr. A was leveling the ground in an orchard on Southside Road. (RT 305-306.) When his tractor rode over a lump, Mr. A found Ms. P’s body buried in the dirt. (RT 307-308.) The body was ten tree rows from Southside Road. (RT 341.) The body was located about a quarter of a mile from the labor camp. (RT 318.)
While examining the orchard, the police found Ms. P’s blue jeans which had been buried in a gully approximately ten to twelve feet below Southside Road. (RT 326.) The jeans were twenty five feet from the road. (RT 329.) Ms. P’s shoes were located on a nearby embankment. (RT 339.)
During their investigation, the police observed drag marks which ran almost from Southside Road to the area where the body was found. (RT 317, 341.) Sergeant Mike Stephens offered his opinion that Ms. P had been dragged by her arms with her knees taking the brunt of the force. (RT 343-344.) Sergeant Stephens further opined that there were shoe prints from two people alongside the drag marks. (RT 344.) Sergeant Stephens saw “numerous” shoe prints at the scene. (RT 363-364.)
Sergeant Stephens was extensively cross-examined regarding the shoe prints. He admitted that his photographs depicted only a single shoe print even though he had photographed “a lot of them, . . . .” (RT 358, 368.) In addition, Sergeant Stephens conceded that the shoe prints were not mentioned in any police report. (RT 365, 368.) Sergeant Stephens attributed this omission to his colleague, Sergeant Williams, who was writing down the shoe print measurements. (RT 369.) Sergeant Williams did not testify at trial since he was dead. (RT 363.) Finally, Sergeant Stephens acknowledged that he had testified at the preliminary hearing that it was “hard to tell” how many shoe prints were present since the ground was uneven and had just been rolled for the walnut harvest. (RT 364.)
Dr. John Hain conducted the autopsy on Ms. P. Dr. Hain categorized the cause of death as “strangulation coupled with blunt force injuries.” (RT 418.) Dr. Hain found bruising on Ms. P’s head, neck, collar bones and chest. (RT 412, 417.)
Dr. Hain also testified that Ms. P had suffered bruising to the posterior wall of the vagina as well as bruising of the cervix. (RT 417.) Dr. Hain indicated that this bruising was consistent with “very forceful sexual penetration.” (RT 418.) However, Dr. Hain acknowledged that the bruising might have been caused by something other than a penis. (RT 429-430.)
Maosheng Ma tested a semen sample which was taken from Ms. P. Ms. Ma determined that there were major and minor donors of the sperm. (RT 534-535.) Appellant was the major donor. (RT 534-535.) Mr. Q was the minor donor. (RT 568-570.)
Mr. D is a labor contractor who managed the labor camp on Southside Road. (RT 395-396.) Mr. D reviewed a roster which indicated that appellant, Mr. S and Mr. M were all registered at the camp in August 1997. (RT 397.) When the police went to the labor camp on August 28, both appellant and Mr. M had moved out. (RT 345-347.)
At 1:30 a.m. on August 28, 1997, Sergeant John Stevens was dispatched to Highway 25 in the area of Willow Grove School. (RT 437.) This is a rural area where pedestrians would not be found at that hour. (RT 438.) Sergeant Stevens detained two men who identified themselves as Mr. R and Mr. M. (RT 438-439.) Although the men indicated that they were going to work at a ranch, Sergeant Stevens found this explanation to be “unusual.” (RT 438.)
On September 4, 1997, appellant was located in Gilroy. (RT 348.) Appellant identified himself as Mr. R. (RT 349.) Following his arrest, appellant was taken to the San Benito County Jail. (RT 455.) At that time, appellant was in possession of a social security card in the name of Mr. M. (RT 456.)
At 2:20 a.m. on September 5, 1997, Deputy Sheriff Edward Nino began an interview with appellant. (RT 457-459.) At first, appellant denied that he had seen Mr. M at the labor camp. (RT 464.) Appellant also denied that he had gone to a bar in Hollister on August 22. (RT 468.) Appellant then changed his story and admitted that he had been in Hollister that evening and had gotten a taxi by himself. (RT 470-471.)
As the interview progressed, appellant acknowledged that he had taken a taxi with Ms. P and other people. (RT 473-474.) Upon arriving at the labor camp, appellant walked with Ms. P. (RT 474.) However, he left her with two other men and returned to his room alone. (RT 474.)
On the evening of September 5, 1997, appellant was interviewed again. (RT 477.) In this interview, appellant indicated that Mr. M had told him that he wanted to have sex with Ms. P. (RT 479.) Although appellant wanted to take Ms. P home, he relented and left her with Mr. M. (RT 480-481.) Appellant denied that he had sex with Ms. P. (RT 481.) Appellant also denied that he had killed Ms. P. (RT 483.)
By way of a stipulation, the jury was told that Mr. M was dead. (RT 363.) The cause of death was cancer. (RT 363.)
Defense Testimony
Appellant testified in his own behalf. In August 1997, he was staying at the San Benito Camp while he was picking apples. (RT 607.)
On the evening in question, appellant went to the Smokehouse Bar in Hollister. (RT 608.) He returned to the labor camp in a taxi in the company of Mr. M, Mr. S and Ms. P. (RT 610.) Appellant sat in the rear of the cab with Mr. M. (RT 610.)
When they arrived at the camp, Mr. S went inside. (RT 610.) Appellant paid the fare and he and Mr. M stood outside the taxi. (RT 610.) The taxi drove a short distance with Ms. P. (RT 611.) Ms. P then alighted from the cab. (RT 611.)
Appellant testified that he had consensual sex with Ms. P. (RT 612.) At first, Ms. P said that she did not want to have sex since appellant was a stranger. (RT 612.) However, Ms. P changed her mind and voluntarily removed her own clothing. (RT 625-626.) The sex act occurred on the side of the road and took about seven minutes. (RT 613.)
After the sex act was completed, appellant intended to walk Ms. P home. (RT 614.) However, Mr. M was extremely angry with him. (RT 613-614.) Mr. M was upset since he had been talking and dancing with Ms. P at the bar. (RT 613.) Rather than fight with Mr. M, appellant left him with Ms. P and went to the labor camp. (RT 615.)
Appellant categorically denied that he had hit or harmed Ms. P. (RT 615.) He also denied that he had killed her or moved her body. (RT 615-616.)
Appellant acknowledged that he had not been truthful in his pretrial statements to the police. (RT 616-618.) He lied because he was scared since he did not have an attorney with him. (RT 616-618.)
Appellant was impeached with two prior felony convictions. (RT 618.) He admitted that he had been convicted of first degree burglary and attempted burglary. (RT 618-619.)
INTRODUCTION
Without doubt, the Bill of Rights exists to ensure that a citizen cannot be punished unless he or she has had a fair trial. Although the parameters of fairness are, of course, subject to case-by-case adjudication, it is manifest that a criminal defendant is entitled to certain basic protections in every case. Unfortunately, those protections were not afforded in the instant case.
As will be demonstrated in this brief, a series of fundamental constitutional errors occurred at appellant’s trial: the court failed to instruct on an element of the charge of felony murder; the court failed to instruct on an affirmative defense to the charge of rape; the evidence is insufficient to support the kidnapping conviction; the jury heard a police officer’s inadmissible opinion that he believed appellant was guilty; and the court erroneously stated that it had no discretion to exclude appellant’s prior convictions. Given the number and significance of these errors, it is impossible to conclude that appellant received a fair trial. Thus, appellant is confident that this court will vindicate his rights under the Constitution by granting him a new trial.
ARGUMENT
I. APPELLANT WAS DENIED DUE PROCESS UNDER THE FEDERAL CONSTITUTION WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY WITH CALJIC NO. 8.27.
In his testimony, appellant admitted that he had sex with Ms. P. He also implied that Mr. M had killed Ms. P since she had been left alone with the enraged Mr. M. This implication was supported by the additional circumstantial evidence that Mr. M left the labor camp within days of Ms. P’s murder.
Based on the foregoing evidence, both of the attorneys commented on Mr. M’s culpability during closing argument. Defense counsel told the jury that Mr. M was the perpetrator of the killing. (RT 684.) For his part, the prosecutor told the jury:
“Then Doe and Mr. M, who eventually caught up, took her into that field, down that 10-to-12-foot gully and brutally raped her and killed her.” (RT 666.)
“And after Doe raped her, him and Mr. M beat her. They drug her. They drug her into that field further and then buried the body, hoping she wouldn’t be found.” (RT 666-667.)
In light of this evidence and argument, the trial court instructed the jury that appellant could be found liable for first degree felony murder based on his commission of rape. (RT 706.) Importantly, this was the only theory of murder liability upon which the jury was instructed.
On this record, there were two factual scenarios which would support appellant’s guilt for rape felony murder: (1) he raped Ms. P and then he killed her; or (2) he raped Ms. P and then Mr. M killed her. The second scenario was amply supported by appellant’s testimony that Mr. M was “very angry” when he was left alone with Ms. P. (RT 615.)
Without doubt, the trial court committed a fatal instructional error with respect to the second scenario. Under settled law, appellant could be liable for felony murder based on Mr. M’s act of killing Ms. P only if Mr. M maintained the specific intent to aid and abet the rape. This principle of law is found in CALJIC No. 8.27. [Footnote 1] Although appellant requested No. 8.27 (CT 259, 262), the trial court neglected to give it. As will now be shown, reversal is required.
As is well settled, a trial court has the duty to instruct sua sponte on the elements of the offense charged. (People v. McDaniel (1979) 24 Cal.3d 661, 670.) This rule extends to the principles of aiding and abetting which are deemed to be elements of the offense. (People v. Prettyman (1996) 14 Cal.4th 248, 271.) In this case, the trial court fatally erred by failing to instruct the jury on the principles of aiding and abetting.
Under the felony murder doctrine, a defendant who does not kill the victim can be found liable for murder so long as both he and the perpetrator of the killing shared the intent to commit the felony which implicates the felony murder rule. (People v. Pulido (1997) 15 Cal.4th 713, 721.) As explained by the Supreme Court:
“‘[I]f a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional or unintentional, or accidental, each and all of such persons so jointly engaged in the perpetration of, or attempt to perpetrate such crime of robbery, are guilty of murder of the first degree.’ [Citations.]” (Pulido, supra, 15 Cal.4th at p. 721.)
People v. Anderson (1991) 233 Cal.App.3d 1646 illustrates the application of the principle at issue. There, Novak and Anderson conspired with Chen to commit a robbery against certain drug dealers. During the robbery, Chen’s underling, Lee, shot the drug dealers. Novak and Anderson sought to avoid liability for the murders by contending that Chen and Lee had acted outside the scope of the robbery plan. In holding that Novak and Anderson were appropriately found liable for felony murder, the Court of Appeal noted that the jury had been “properly instructed” pursuant to CALJIC No. 8.27. (Anderson, supra, 233 Cal.App.3d at pp. 1656-1657.)
In the instant case, it is manifest that No. 8.27 was a necessary instruction. Based on the evidence, the jury could have reasonably found that: (1) appellant raped Ms. P; and (2) Mr. M, acting alone, killed her. Indeed, the record unequivocally shows that the jury actively considered this theory. While it was deliberating, the jury propounded the following question to the judge:
“We are unclear of the criteria of the statute. To find Doe guilty of felony murder (187). Did Doe only need to be present at the time of Ms. P’s death, or did he need to kill her himself. We are clear about the rape element.” (ACT 2.)
In response to the question, the judge merely instructed the jury to reread CALJIC Nos. 8.10 and 8.21. [Footnote 2] (ACT 2.) These general instructions were entirely silent on the aiding and abetting principles which appear in No. 8.27. As a result, the jury was given incomplete instructions.
As was discussed above, appellant could be found liable for Mr. M’s act of killing Ms. P only if Mr. M maintained the specific intent to assist in the rape. Since the jury was not instructed on this element of the offense, error occurred. (People v. Prettyman, supra, 14 Cal.4th 248, 271.)
Turning to the issue of prejudice, the error must be deemed reversible per se under California law. The jury was given two theories of liability: (1) appellant killed Ms. P in the commission of a rape; or (2) Mr. M killed Ms. P. However, as to the second theory, the jury was not told that Mr. M had to share appellant’s intent to rape Ms. P. Absent knowledge of this critical principle, the jury was allowed to rely on an erroneous legal theory. Viewed from this perspective, per se reversal is required.
In People v. Guiton (1993) 4 Cal.4th 1116, the court discussed the situation where the jury has been given both correct and incorrect legal theories. When a reviewing court cannot determine whether the jury relied on the erroneous legal theory, per se reversal is required. (Id., at pp. 1122, 1128-1129; accord, People v. Marshall (1997) 15 Cal.4th 1, 37-38.)
Here, the jury was instructed on an erroneous legal theory since they were allowed to return a finding of felony murder based on a killing committed by Mr. M even if he lacked the intent to commit a rape. On this record, per se reversal is required. (Guiton, supra, 4 Cal.4th 1116, 1128-1129.)
If this court should find that per se reversal is not required, it must still analyze the question of prejudice under the federal Constitution. This is so since the failure to give aiding and abetting instructions constitutes federal constitutional error. (People v. Prettyman, supra, 14 Cal.4th 248, 271.)
Under the familiar federal test, the question is whether the instructional omission was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) In applying this test, the appropriate inquiry is to focus on the effect of the error on the instant jury.
“[T]he question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, emphasis in original.)
As the foregoing quotation reveals, the mere existence of strong government evidence does not ip so facto lead to a conclusion of harmless error. To the contrary, if a significant constitutional error has occurred at trial, reversal is compelled. This is so since it is the government’s burden to show that the guilty verdict “was surely unattributable to the error.” (Sullivan supra, 508 U.S. at p. 279; accord, People v. Quartermain (1997) 16 Cal.4th 600, 621.)
In this case, there is absolutely no doubt that the instructional omission constitutes prejudicial error under the Chapman standard. As was noted above, the deliberating jury propounded a question in which it inquired whether appellant could be found guilty even if he did not personally kill Ms. P. (ACT 2.) Thus, the record establishes that the jury was actively considering the possibility that Mr. M, not appellant, killed Ms. P. Since the judge failed to properly instruct the jury on the necessary principles of aiding and abetting, the “effect” of the error is clearly prejudicial. (Sullivan, supra, 508 U.S. at p. 279.)
In this regard, the trial court has a mandatory duty to “clear up any instructional confusion expressed by the jury. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) Where, as here, the court fails to cure the jury’s confusion, the instructional error must necessarily be deemed prejudicial.
People v. Gavin (1971) 21 Cal.App.3d 408 illustrates this rule. In Gavin, the defendant was charged with possessing drugs “on or about October 25, 1969.” The jury heard testimony that the defendant had possessed drugs in late September as well as on October 25. In its instructions, the court advised the jury that a guilty verdict could be returned if the crime occurred “on or about” the date alleged in the charging document. When the jury asked for clarification of the meaning of the phrase “on or about,” the court failed to tell the jury that the drugs possessed in late September could not be used to return a conviction. In reversing the judgment, the Court of Appeal reasoned:
“The court’s failure to clear up the jury’s confusion regarding the September 27 ‘possession’ was fundamentally unfair to the defendant. It is understandable that no one anticipated the problem until the jury came in with its requests for more information. When this occurred, defendant’s attorney pointed out what the difficulty was. Apparently some juror or jurors were not convinced that defendant was responsible for the drugs found in her house on the night of October 24-25, but were willing to find her guilty of possessing amphetamines on September 27. The judge’s comments reflect his recognition of that situation, and his belief that he was powerless to relieve it. The abstract definitions of ‘on or about’ which the court read to the jury did not enlighten them at all on this matter. The simple and proper solution would have been for the court to tell the jury directly that the People’s evidence had been offered to prove that defendant unlawfully possessed drugs on October 24 and 25, 1969; and defendant was not charged with possession on any other date.” (Gavin, supra, 21 Cal.App.3d at p. 418.)
The case at bar is quite similar to Gavin. The instant jury was confused as to whether appellant could be convicted if Mr. M committed the killing. Instead of referring the jury to inapplicable instructions, the court should have directly answered the jury’s question by giving No. 8.27 or an equivalent instruction. In failing to do so, the court committed reversible error. (Gavin, supra, 21 Cal.App.3d at p. 418.)
Aside from the court’s failure to properly answer the jury’s question, there is another objective indication that the error is prejudicial. The jury deliberated for a full day before returning its verdicts. (CT 334, 424.) Given the many hours of deliberation, it is apparent that the jury was troubled by the case. (People v. Cardenas (1982) 31 Cal.3d 897, 907; six hours of deliberations is evidence of a close case.)
Finally, appellant presumes that the People will seek affirmance by arguing that any error was harmless due to the strength of the prosecution case. While there is concededly substantial evidence in support of the conviction, the reality remains that the weight of the government’s evidence cannot be used as the means to affirm the judgment. The reasoning in Chapman proves this proposition.
Although the facts were not recited by the U. S. Supreme Court, they can be found in the antecedent opinion of the California Supreme Court. (People v. Teale (1965) 63 Cal.2d 178.) At 2 a.m. on the morning of October 18, 1962, Ms. Chapman, Mr. Teale and Mr. Adcox were seen outside the bar where Mr. Adcox was employed as a bartender. Later that morning, Mr. Adcox’ body was found in a remote area. He had been shot in the head three times. Mr. Adcox was killed with .22 caliber bullets and Ms. Chapman had purchased a .22 caliber weapon six days earlier. In close vicinity to the body, the police found a check which had been signed by Ms. Chapman.
The most important evidence against the defendants was of a forensic nature. According to the government’s expert, blood found in the defendants’ car was of Mr. Adcox’ type. In addition, hairs matching those of Mr. Adcox were found in the car along with fibers from his shoes.
If this evidence was not enough, the government also presented an informant who testified to Mr. Teale’s statements. Essentially, Mr. Teale told the informant that he and Ms. Chapman had robbed and killed Mr. Adcox.
For her part, Ms. Chapman gave a statement to the police. In so doing, she lied and claimed that she was in San Francisco at the time of the killing. The falsity of this account was proved by the fact that Ms. Chapman had registered at a Woodland motel shortly after Mr. Adcox’ demise.
At trial, neither defendant testified. In manifest violation of the federal Constitution, the prosecutor repeatedly argued to the jury that the silence of the defendants could be used against them. On this record, the Supreme Court found reversible error:
“[A]bsent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to petitioners’ convictions.” (Chapman, supra, 386 U.S. at p. 26.)
Without doubt, the foregoing recitation of the Chapman facts and holding leads to an inescapable conclusion: The Supreme Court intended that it would be very difficult for the government to show that a federal constitutional error was harmless. As is readily apparent, the government had a very strong case in Chapman including a confession, evidence of the opportunity to commit the crime, highly incriminating forensic evidence and consciousness of guilt evidence. Nonetheless, the strength of this evidence was not sufficient to avoid reversal.
It cannot be seriously contended that the People’s evidence in this case is any stronger than that in Chapman. Thus, reversible error must be found.
In short, the record yields the distinct possibility that the jury returned a guilty verdict based on its conclusion that Mr. M killed Ms. P. Since the jury was not properly instructed in support of this theory, reversal is required.
II. APPELLANT WAS DENIED DUE PROCESS UNDER THE FEDERAL CONSTITUTION WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY WITH CALJIC NO. 10.65.
As is well settled, “a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. [Citation.]” (People v. Williams (1992) 4 Cal.4th 354, 360.) The jury must be instructed on the defense so long as there is “substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (Id., at p. 362.) In an appropriate case, the court must instruct on the defense sua sponte. (People v. Castillo (1987) 193 Cal.App.3d 119, 125.)
In the case at bar, there was ample evidence in support of the defense. Thus, as will now be shown, the trial court committed reversible error when it failed to give CALJIC No. 10.65 sua sponte. [Footnote 3]
The record demonstrates that Ms. P gave conflicting suggestions as to whether she wished to have sex with appellant. On the one hand, Ms. P voluntarily traveled to the labor camp even though she could have told both Officer Escamilla and Mr. G (the taxi driver) that she wished to go home. Once she was at the labor camp, Ms. P apparently first decided to return home since she drove a short distance in the taxi after the men got out. (RT 611.) After alighting from the taxi, Ms. P told appellant that she did not want to have sex with him since he was a stranger. (RT 612-613.) However, she apparently changed her mind and had sex with appellant after voluntarily removing her clothes. (RT 613, 633-634.)
A trial court has the obligation to instruct sua sponte on the defense of reasonable good faith belief in consent whenever “‘there is substantial evidence supportive of such a defense . . .’,” (People v. Castillo, supra, 193 Cal.App.3d 119, 125.) In this context, substantial evidence is that evidence which is deserving of consideration by the jury. (People v. Williams, supra, 4 Cal.4th 354, 361.) Doubts as to the sufficiency of the evidence must be resolved in favor of instructing on the defense. (People v. Flannel (1979) 25 Cal.3d 668, 685.)
Here, Ms. P’s behavior can fairly be categorized as “equivocal.” At first, she voluntarily accompanied appellant to a remote location. Then, she gave the appearance that she was leaving when she rode a short distance alone after appellant got out of the cab. After exiting the taxi, Ms. P told appellant that she did not want to have sex. Then, she appeared to consent to having sex. On these facts, jurors could certainly find that there was “equivocal” conduct which supported the defense of a reasonable good faith belief that consent had been given.
People v. May (1989) 213 Cal.App.3d 118 supports this conclusion. There, a woman went to the defendant’s home after meeting him in a bar. When the defendant told her to disrobe, the woman grabbed a steak knife and told him “no.” When the defendant disarmed her and slapped her, the woman went to the bedroom and took off her clothes. When the couple got on the bed, the woman tried to roll off. Oral copulation was then performed. On these facts, the Court of Appeal found there was ample evidence of equivocal conduct by the woman. (Id., at pp. 125-126.)
Here, a similar situation is presented. Like the woman in May, Ms. P willingly traveled with appellant. However, she twice signaled that she did not want to have sex (i.e. she started to leave in the taxi and she initially said that she did not want to have sex). However, like the woman in May, she put aside her initial reluctance and voluntarily removed her clothes. This pattern of conduct was “equivocal” and required the court to instruct with CALJIC No. 10.65. (May, supra, 213 Cal.App.3d at pp. 125-126.)
The court’s failure to give No. 10.65 requires per se reversal. The controlling rule is that the omission to instruct on an affirmative defense constitutes reversible error unless “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ [Citation.]” (People v. Stewart (1976) 16 Cal.3d 133, 141; accord, People v. Lee (1987) 43 Cal.3d 666, 675, fn. 1.) [Footnote 4]
In the instant case, the jury was not given any instruction on the subject of reasonable good faith belief in consent. Thus, reversal is compelled. (May, supra, 213 Cal.App.3d 118, 128; “[a]lthough the jury resolved the issue of actual consent against May, that determination says nothing about how they would have resolved the issue of reasonable belief in consent, since they were never asked to consider it. [Citations.],” emphasis in original.)
Importantly, the instructional error impacts on all three counts. The commission of a rape was the predicate underlying both the felony murder conviction and the kidnaping with intent to commit rape conviction. Thus, all three counts must be reversed. (May, supra, 213 Cal.App.3d at pp. 128-129; failure to instruct on the defense of reasonable good faith belief required reversal of oral copulation conviction and conviction for assault with intent to commit rape.)
Aside from California law, per se reversal is required under the due process clause of the federal Constitution. In United States v. Escobar De Bright (9th Cir. 1984) 742 F.2d 1196, the defendant was charged with the conspiracy to sell drugs. Although there was substantial evidence that the defendant had conspired with a government agent, the trial court refused to instruct the jury on the defendant’s theory that a conspiracy conviction cannot be found where the only co-conspirator is a government agent. After finding that the instruction should have been given, the Court of Appeals held that the error was reversible per se:
“The right to have the jury instructed as to the defendant’s theory of the case is one of those rights ‘so basic to a fair trial’ that failure to instruct where there is evidence to support the instruction can never be considered harmless error. Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (Escobar De Bright, supra, 742 F.2d at pp. 1201-1202.)
Importantly, the analysis in Escobar De Bright is entirely consistent with that which has been subsequently posited by the Supreme Court. In this regard, the court has indicated that per se reversal is required when an error “vitiates all the jury’s findings.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 281, emphasis in original.) Or, stated otherwise, per se reversal is compelled when the consequences of an error “are necessarily unquantifiable . . . .” (Id., at p. 282; accord, Neder v. United States (1999) 527 U.S. 1 [144 L.E.2d 35, 48].) Since it is impossible to know whether a jury would have accepted a defense which it never had occasion to consider, the conclusion is inescapable that the effect of the instructional omission is “necessarily unquantifiable.” (See Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 740-741; structural error found where the defense was precluded from presenting its “theory of the case;” United States v. Sarno (9th Cir. 1995) 73 F.3d 1470, 1485; “failure to instruct a jury upon a legally and factually cognizable defense is not subject to harmless error analysis. [Citations.]”)
Assuming arguendo that this court should find that error occurred solely under state law, the question is whether there is a reasonable probability that an acquittal would have been returned absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under Watson, a reasonable probability “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, emphasis in original.) Thus, prejudice must be found under Watson whenever the appellate court lacks “‘confidence’” that the error was harmless. (Ibid.)
Without belaboring the analysis which has already been presented, it is manifest that prejudice must be found in this case. Although the case was factually simple, the jury deliberated for an entire day. (CT 334, 424.) Given this objective indication that the case was close, reversal is mandated. (People v. Cardenas, supra, 31 Cal.3d 897, 907; six hours of deliberations is evidence of a close case.)
Moreover, it must be emphasized that appellant’s testimony was strongly supported by Ms. P’s own conduct. As Officer Escamilla and Mr. G testified, Ms. P voluntarily accompanied appellant to a remote area. Given Ms. P’s behavior, it was entirely reasonable for appellant to believe that she wished to have sex with him. Thus, there is certainly a substantial possibility that the jury would have accepted the defense of reasonable good faith belief in consent had an appropriate instruction been given. (College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th 704, 715.)
As has been shown above, the trial court erred by failing to instruct the jury on the substantial defense theory which was supported by appellant’s testimony. Such being the case, the judgment must be reversed.
III. UNDER THE FEDERAL DUE PROCESS CLAUSE, THE KIDNAPPING CONVICTION MUST BE REVERSED SINCE IT IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
In his closing argument, the prosecutor contended that appellant was guilty of kidnapping for the purpose of rape since Ms. P was forcibly taken off the road and down a ten to twelve foot hill into an orchard. (RT 663.) As will be shown below, the kidnapping conviction cannot stand since the People failed to establish that Ms. P was moved a sufficient distance to satisfy the asportation element of the offense.
The People’s evidence established that Ms. P’s blue jeans were found buried in a gully approximately ten to twelve feet below Southside Road. (RT 326.) The jeans were twenty five feet from the road. (RT 329.) Ms. P’s shoes were located on a nearby embankment. (RT 339.) Ms. P’s body was dragged “almost” from Southside Road to the interior of the orchard. (RT 341-342.)
Although the record is less than clear on this point, it was apparently the People’s theory that Ms. P was asported from the road to the place where her blue jeans were found. She was raped and killed at that spot. Then, Ms. P’s body was dragged to its resting place. On this record, the kidnapping conviction must be reversed.
Under the federal Constitution, a judgment must be reversed when it is not supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In measuring the sufficiency of the evidence, the question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Ibid., emphasis in original.) Here, the asportation element of kidnapping was not established.
This is true in two respects. First, under the law as it existed in 1997, a kidnapping could not be committed if the victim was asported less than ninety feet. Since Ms. P was not moved this distance, the evidence is insufficient to prove the asportation element of kidnapping. Second, in the case of kidnapping for the purpose of rape, the People must prove that the degree of asportation was more than incidental to the commission of the sex offense. Here, there is no such proof. Each of these points will be separately addressed below.
A. The Asportation Element Of Kidnapping Was Not Established Since Ms. P Was Not Moved A Sufficient Distance.
At the time of the offense, Penal Code section 208, subd. (d) [Footnote 5] provided that a person committed a crime when he “kidnapped” someone with the intent to commit rape. As the Supreme Court has indicated, use of the word “kidnapped” compels the conclusion that “asportation” of the victim was an element of section 208, subd. (d). (People v. Rayford (1994) 9 Cal.4th 1, 11.) Importantly, the “asportation” element found in section 208, subd. (d) must be at least as stringent as that found in section 207 which defines simple kidnapping. This is so since: (1) simple kidnapping is a lesser included offense of kidnapping for the purpose of rape (People v. Jackson (1998) 66 Cal.App.4th 182, 189); [Footnote 6] and (2) a lesser included offense must, by definition, contain all of the elements of the greater offense (People v. Pearson (1986) 42 Cal.3d 351, 355).
The events in this case occurred in 1997. At that time, California law provided that asportation of ninety feet was in all cases insufficient to sustain a conviction for simple kidnapping. (People v. Martinez (1999) 20 Cal.4th 225, 238-241.) [Footnote 7] In this case, the evidence reveals that Ms. P was not asported more than ninety feet.
The record shows that Ms. P’s shoes and blue jeans were found within twenty five feet of the road. (RT 329.) The drag marks began near the road. (RT 341-342.) Obviously, this evidence is clearly insufficient to show that Ms. P was asported more than ninety feet. Thus, the asportation element has not been satisfied. (Martinez, supra, 20 Cal.4th at pp. 238-241.)
In setting forth the foregoing analysis, appellant is fully aware that there are Court of Appeal opinions which have upheld aggravated kidnapping convictions based on an asportation of twenty nine to forty feet. (People v. Jones (1999) 75 Cal.App.4th 616, 628-630; People v. Salazar (1995) 33 Cal.App.4th 341, 346-349.) These cases were wrongly decided.
As this court has implicitly held, simple kidnapping is a lesser included offense of kidnapping for the purpose of rape. (People v. Jackson, supra, 66 Cal.App.4th 182, 189.) Since a 1997 simple kidnapping required asportation of more than ninety feet, the conclusion is inescapable that an aggravated kidnapping committed at that time also required asportation of more than ninety feet. Since the Court of Appeal cases ignored this fundamental proposition, they should not be followed. (See People v. Smith (1992) 18 Cal.App.4th 1192, 1196; “an aggravated kidnapping requires at a minimum that the defendant’s acts constitute a simple kidnapping.”)
B. There Is Insufficient Proof That The Movement of Ms. P Was More Than Incidental To The Commission Of The Rape.
In order to satisfy the asportation element of kidnapping for the purpose of rape, the People must prove that the movement of the victim was “for a distance which is more than that which is merely incidental to the commission or attempted commission of rape, . . . .” (People v. Rayford, supra, 9 Cal.4th 1, 22.) In applying this test, a reviewing court must examine the “‘scope and nature’” of the movement. (Id., at p. 12.) “This includes the actual distance a victim is moved.” (Ibid.)
Here, the de minimis movement of Ms. P was clearly incidental to the commission of the rape. When the incident began, the parties were on the road. Obviously, a sex act could not be performed on the road for two reasons: (1) it would be physically dangerous to lie on the public road should a car come by; and (2) the road was too hard to be comfortable. Thus, Ms. P was moved a short distance (approximately twenty five feet) to a safer, more comfortable environment. This movement was therefore incidental to the commission of the rape.
People v. Stanworth (1974) 11 Cal.3d 588 establishes this conclusion. There, the following facts were adduced in a prosecution for kidnapping for the purpose of robbery.
The victim, Mrs. D., was walking home from a shopping center in the early evening. Defendant approached her on the road, grabbed her from behind and while holding an ice pick at her throat, threatened to have sexual intercourse with her. He dragged her onto an open field approximately 25 feet from the road, bound her hands with wire and forcibly raped her. Before fleeing, defendant took approximately $15 from the victim’s purse.” (Stanworth, supra, 11 Cal.3d at p. 597, fn. omitted.)
On this record, the Supreme Court concluded that the conviction for aggravated kidnapping was insupportable. “[T]he asportation of the victim was for a distance slightly less [than thirty feet] and was accomplished for the specific purpose of raping and robbing her. Thus the movement of the victim cannot be regarded as substantial and was merely incidental to the commission of those crimes.” (Stanworth, supra, 11 Cal.3d at p. 598.)
The instant case is indistinguishable from Stanworth. Here, as in Stanworth, the victim was moved off the road approximately twenty five feet for the purpose of raping her. Reversal is required. (Stanworth, supra, 11 Cal.3d at p. 598.)
IV. APPELLANT WAS DEPRIVED OF DUE PROCESS UNDER THE FEDERAL CONSTITUTION WHEN THE JURY HEARD SERGEANT STEPHENS’ INADMISSIBLE OPINION THAT APPELLANT WAS ONE OF THE PEOPLE WHO DRAGGED MS. P’S BODY.
Sergeant Stephens testified that he saw two sets of shoe prints along the path where Ms. P’s body had been dragged. (RT 344.) During his cross-examination of Sergeant Stephens, defense counsel sought to impeach his testimony that there were two sets of shoe prints. (RT 357-380.) During the course of the cross-examination, Sergeant Stephens stated his opinion that:
“I have no doubt in my mind that Mr. M and John Doe drug that body through that orchard.” (RT 379.)
Subsequently, defense counsel moved to strike Sergeant Stephens’ opinion that appellant was one of the people who had moved Ms. P’s body. (RT 504.) In response to the motion, the court noted that it was “a little worried about the chance that a jury could rely on that statement to decide the case.” (RT 507.) As a result, the court struck the testimony and admonished the jury as follows:
“On motion to strike that from the record, the Court has granted that motion, because the Court believes that that is an improper opinion on the ultimate question before the jury and it was not responsive to the question asked. So I’m ordering that stricken from the record of this case.
“And I will be admonishing you generally later further on this point, but you are admonished now not to consider that piece of evidence in your deliberations.” (RT 514.)
Without doubt, the court ruled correctly in striking Sergeant Stephens’ opinion that appellant had dragged the body. Under California law, a police officer “cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.]” (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) “[O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Id., at p. 47.)
In the case at bar, Sergeant Stephens testified to his opinion that appellant was guilty since he had dragged Ms. P’s body. The opinion was of no value to the jury. Insofar as Sergeant Stephens did not witness the dragging of the body and could not identify any of the shoe prints as belonging to appellant, his personal opinion concerning appellant’s guilt was flatly inadmissible. (Torres, supra, 33 Cal.App.4th at pp. 46-47.)
As always, the remaining question is whether the error was prejudicial. Insofar as Sergeant Stephens’ opinion was completely irrelevant, the Chapman standard is applicable. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384; due process is violated when the jury hears prejudicial testimony from which no relevant inference can be drawn.)
In assessing the prejudice flowing from the error, it bears emphasis that Sergeant Stephens’ opinion went to the central issue in the case. It was the People’s theory that appellant participated in Ms. P’s killing and helped to conceal her body. For his part, appellant denied that he had either killed Ms. P or moved her body. Given the fact that Sergeant Stephens emphatically stated his opinion to the contrary, the credibility of appellant’s case was greatly weakened. (People v. Wagner (1975) 13 Cal.3d 612, 620-621; prejudice is shown when the credibility of the defendant’s testimony is unfairly tarnished.)
In this regard, it cannot be overlooked that Sergeant Stephens had a special status since he is a police officer. There is a substantial danger that the jury would have placed great trust in Sergeant Stephens’ opinion since “‘the expert testimony of a law enforcement officer, . . . often carries an aura of special reliability and trustworthiness.’ [Citation.]” (United States v. Gutierrez (9th Cir. 1993) 995 F.2d 169, 172.)
Aside from the foregoing factors, appellant would again note that the jury gave two objective indications that the case was a close one. First, the jury deliberated for a full day. (People v. Cardenas, supra, 31 Cal.3d 897, 907; six hours of deliberations is evidence of a close case.) Second, the jury posed a question which demonstrated that it was contemplating the possibility that appellant did not kill Ms. P. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295; submission of questions by the jury demonstrates the “closeness of the case . . . .”)
As a final point, appellant presumes that the People will contend that there was minimal prejudice since the trial court instructed the jury to disregard Sergeant Stephens’ testimony. This contention must fail for two separate reasons.
First, the admonition was not promptly given. Sergeant Stephens gave the offending testimony on the morning of January 25, 2001. (CT 269-270.) However, the jury was not instructed to disregard the testimony until the following morning. (CT 320.) Thus, given the fact that the jurors were allowed to think about Sergeant Stephens’ opinion for nearly twenty four hours, it is manifest that the admonition simply came too late to cure the harm.
Second, there are certain types of evidence which are so prejudicial that an admonition cannot cure the harm. For example, an admonition cannot cure the prejudice once the jury learns that the defendant has a criminal record. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935; court’s immediate admonition to disregard testimony that defendant was on parole did not cure the prejudice; People v. Ozuna (1963) 213 Cal.App.2d 338, 342; admonition was not sufficient to avoid reversal where the jury learned that the defendant was an “ex-convict.”) The nature of Sergeant Stephens’ opinion is such that the court’s admonition was ineffectual.
As was discussed above, a police officer has a special status in the eyes of jurors. Given his professional expertise, the jury was no doubt highly impressed with Sergeant Stephens’ view that appellant was guilty. As a result, the court’s belated admonition did not cure the severe prejudice to appellant’s cause.
V. THE TRIAL COURT ERRED WHEN IT ERRONEOUSLY DECLARED THAT IT HAD NO DISCRETION TO EXCLUDE APPELLANT’S PRIOR FELONY CONVICTIONS.
Before appellant testified, defense counsel broached the subject of whether he would be impeached with his prior felony convictions for burglary, attempted burglary and possession of cocaine. (RT 597-598.) During the discussion, the court declared that it had no discretion to exclude any of the prior convictions.
“The Court: I don’t believe the Court has any discretion on the felony convictions.
“Mr. Howell: That they have to come in to impeach.
“The Court: I think so.”
(RT 598.)
Subsequently, appellant was impeached with his prior convictions for attempted burglary and burglary. (RT 618-619.) The court instructed the jury that it was to consider the prior convictions only insofar as they bore on appellant’s credibility. (RT 703.)
The court erred in stating its view that it had no discretion to exclude appellant’s prior convictions. Pursuant to Evidence Code section 352, the court had ample authority to exclude the prior convictions. (People v. Castro (1985) 38 Cal.3d 301, 306-313.)
Notwithstanding the court’s patent error, the People will no doubt contend that the issue has not been preserved for appeal since appellant never formally moved to exclude his prior convictions. While it is true that no such motion was made, the issue is still cognizable on appeal.
As a simple matter of fairness, a defendant cannot be faulted for failing to make a motion which the court has already declared that it will deny. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; issue is not waived if defense counsel fails to make futile objection.) Here, the court unequivocally stated that it had no power to exclude prior convictions. On this record, appellant was not required to futilely seek exclusion of his prior convictions.
Turning to the issue of prejudice, the test is whether it is reasonably probable that appellant would have been acquitted in the absence of the error. (People v. Castro, supra, 38 Cal.3d 301, 317-319.) Here, substantial prejudice flowed from the court’s error.
During his closing argument, the prosecutor made a pointed reference to appellant’s prior convictions. In the course of discussing appellant’s liability for the murder, the prosecutor asserted:
“Doe has no history of abuse or mistreatment of individuals? A couple of felony convictions would prove otherwise.” (RT 666.)
As is readily apparent, the prosecutor used appellant’s prior convictions for an improper purpose. Rather, than using the prior convictions to address appellant’s credibility, the prosecutor posited that appellant was guilty of murder since he has a propensity to abuse and mistrust people. (RT 666.)
Under California law, prejudice must be found when the prosecutor exploits improperly admitted prior convictions. (People v. Woodard (1979) 23 Cal.3d 329, 341; reversal ordered since the prosecutor’s closing argument may have persuaded the jury that the defense witness “was such an unsavory character due to his prior convictions that his testimony should be disregarded.”) Given the closeness of the case, the prosecutor’s exploitation of the evidence must be deemed reversible error. (Ibid.)
VI. WHEN VIEWED CUMULATIVELY, THE NUMEROUS ERRORS REQUIRE REVERSAL.
As has been established above, a series of errors occurred at appellant’s trial. The jury was misinstructed regarding both the murder and rape charges. In addition, the People’s case was unfairly enhanced when the prosecutor adduced inadmissible evidence concerning Sergeant Stephens’ opinion and appellant’s criminal record. Given the sheer number of errors, a finding of cumulative and reversible prejudice is required. (People v. Hill (1998) 17 Cal.4th 800, 844; a number of errors, though independently harmless, will require reversal when the totality of the record shows that the defendant was denied a fair trial.)
In seeking reversal, appellant must once again emphasize that this was a close case. Appellant offered the substantial factual defense that he did not commit the crimes. As a result, the jury evidenced its discomfiture by asking questions and by deliberating for a full day. Given these objective indications that the case was a close one, reversal is mandated. (People v. Holt (1984) 37 Cal.3d 436, 458-459; the “cumulative effect” of evidentiary errors and prosecutorial misconduct compelled reversal.)
CONCLUSION
For the reasons expressed above, the judgment must be reversed with directions to dismiss the kidnapping charge. Assuming that the counts of conviction are not reversed, the trial court should be directed to amend the abstract of judgment by deleting the $22,200 restitution fines and by awarding 89 days of presentence conduct credit.
Dated: October___, 2001
Respectfully submitted,
DALLAS SACHER
Attorney for Appellant,
JOHN DOE
FOOTNOTES:
Footnote 1: CALJIC No. 8.27 provides:
“If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of ___________, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.
“[In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the _______ at the time the fatal [blow was struck] [wound was inflicted].] [However, an aider and abettor may still be jointly responsible for the commission of the underlying ________________ based upon principles of law which will be given to you.]”
Footnote 2: Pursuant to Nos. 8.10 and 8.21, the court instructed the jury as follows:
“The defendant is accused in Count 1 of the information of having committed the crime of murder in violation of Penal Code Section 187. Every person who unlawfully kills a human being during the commission or attempted commission of rape is guilty of the crime of murder in violation of Section 187 of the Penal Code. In order to prove this crime, each of the following elements must be proved:
“The human being was killed and the killing occurred during the commission or the attempted commission of the crime of rape. The unlawful killing of a human being, whether intentional or unintentional or accidental which occurred during the commission or attempted commission of the crime of rape is murder in the first degree when the perpetrator had a specific intent to commit the crime. Specific intent to commit rape and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.” (RT 706.)
Footnote 3: CALJIC No. 10.65 provides:
“In the crime of [unlawful] [forcible rape] [oral copulation by force and threats] [forcible sodomy] [penetration of the [genital] [or] [anal] opening by a foreign object, substance, instrument or device by force, [violence] [fear] [or] [threats to retaliate]], criminal intent must exist at the time of the commission of the ________________. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge.
“[However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another is not a reasonable good faith belief.]
“If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the [sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device], you must find [him] [her] not guilty of the crime.”
Footnote 4: Two Court of Appeal opinions have said that the failure to instruct on a defense does not require reversal per se. (People v. Gonzales (1999) 74 Cal.App.4th 382, 391; People v. Elize (1999) 71 Cal.App.4th 605, 616.) However, these cases cannot be followed since this court is required to adhere to the rule stated by the state Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Footnote 5: Effective January 1, 1998, the crime of kidnapping for the purpose of rape was moved to Penal Code section 209, subd. (b). (See Stats. 1997, ch. 817, section 2.)
Footnote 6: In People v. Jackson, supra, 66 Cal.App.4th 182, the defendant was convicted of violating former Penal Code section 208, subd. (d). This court held that simple kidnapping is a lesser included offense of kidnapping to commit sodomy or oral copulation. (Id., at p. 189.) Since kidnapping to commit rape was located in the same statute as kidnapping to commit sodomy and oral copulation at the time of the instant offense (Penal Code section 208, subd. (d)), it is manifest that simple kidnapping is a lesser included offense of kidnapping to commit rape. (See also People v. Bigelow (1984) 37 Cal.3d 731, 755, fn. 14; simple kidnapping is a lesser included offense of kidnapping to commit robbery.)
Footnote 7: In Martinez, the Supreme Court abrogated the rule that the asportation element of kidnapping required movement of at least ninety feet. (Martinez, supra, 20 Cal.4th at pp. 235-238.) However, the opinion was given only prospective effect. (Id., at pp. 238-241.)
