Brief Bank # B-854 (Re: F 2.50.01 n9 [Instruction On Other Sexual Offenses: Constitutional Challenge Based On Inability To Adequately Instruct The Jury].)
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Date of Brief: July 2000
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) Court of Appeal No. B000000
)
vs. ) Los Angeles County
) Superior Court
JOHN DOE, ) NO. 0000000
)
Defendant and Appellant. )
___________________________________)
)
In re )
JOHN DOE, ) Court of Appeal No. B000000
on Habeas Corpus. )
___________________________________)
PETITION FOR REVIEW
From an Appeal and Writ of Habeas Corpus in Division Three
of the Second District Court of Appeal,
Reversing in Partand Affirming in part,
Petition for a Writ of Habeas Corpus Denied
the Judgment of the Los Angeles County Superior Court,
Hon. Judith M. Ashmann, Presiding
MARYLOU HILLBERG
State Bar No. 88645
P.O. Box 1879
Sebastpol, CA 95473
Tel: (707) 575-0393
Fax: (707) 829-1197
TO: THE HONORABLE RONALD M. GEORGE, PRESIDING JUSTICE,
AND TO THE HONORABLE ASSOCIATE JUSTICES
OF THE CALIFORNIA SUPREME COURT
INTRODUCTION
Pursuant to Rule 28, California Rules of Court, petitioner, John Doe, hereby petitions for review of the decision of the Court of Appeal for the Second Appellate District, Division Three, filed on June 9, 2000 which reversed the judgment of the trial court on the charge of attempted rape, but affirmed the judgment as to the remaining counts. The companion petition for a writ of habeas corpus was denied. A copy of the decision of the Court of Appeal is attached hereto as Appendix A.
The issue presented herein– whether the pre-1999 edition of CALJIC 2.50.01 violated the Sixth and Fourteenth Amendment requirements of a jury verdict on the charged offense beyond a reasonable doubt, by permitting the jury to convict based solely on proof of uncharged (prior) offenses by a preponderance of the evidence– was left open by this Court’s opinion in People v. Falsetta (1999) 21 Cal. 4th 903. It should now be addressed as there are currently a multitude of differing published opinions on this issue.
To date, this Court has declined to grant review in any of these cases. Each remain published authority with very different reasoning and results. The consequence is a very mixed bag of case law which is leaving counsel, and the judiciary of the lower courts, all scratching their heads. This is an issue of substantial importance on which there are at least nine published opinions, none of which agree with each other. (See e.g. Rule of Court, Rule 29, subdivision (a) which asks this Court to grant review where necessary to secure uniformity of law.)
ISSUES PRESENTED
1) Does the version of CALJIC 2.50.01 given in this case violate the Sixth and Fourteenth Amendments to the United States Constitution as it allowed the jury to convict appellant solely on the basis of the proof of the prior offenses by a preponderance of the evidence?
2) What is the proper standard of review to be applied to this error?
3) Can the prosecution claim sentencing error on appeal where no objection was made in the trial court?
STATEMENT OF THE CASE
The information charged appellant with residential burglary (section 459; count 1); child molestation (section 647.6, subd.(b); count 2); another residential burglary with a different victim (section 459; count 3); and attempted forcible rape (sections 664/261, subd. (a)(2); count 4). (CT 65-67.)
The following enhancements were alleged:
1) that appellant had previously been convicted of forcible rape pursuant to section 667.71 (this enhancement was alleged as to count 4.);
2) that appellant committed the acts charged in count 4 during the commission of a residential burglary, pursuant to sections 667.61, subds. (a) and (d);
3) also to count 4, that appellant had previously been convicted of violating section 261.2, pursuant to section 667.6, subd. (a);.
4) that appellant had three prior convictions for serious felonies that were five year enhancements under section 667, subd. (a)(1);
5) that appellant had three prior convictions that also qualified as one year enhancements under section 667.5, subd. (b). and
6) that appellant had three prior strike convictions within the meaning of sections 1170. 12, subd. (a) through (d) and 667, subd. (b) through (I); (CT 67-69.)
Written notice was given of the people’s intent to introduce evidence of appellant’s prior conduct from his rape and burglary convictions under Evidence Code sections 1101, subd. (b) and 1108. (CT 83-93.) The court granted this motion over the objection by the defense. (CT 95.)
Trial was by jury. (CT 101.) The prior convictions were bifurcated and appellant waived his right to a jury trial on the priors. (CT 110.)
The jury convicted appellant of all four counts. (CT 167-70.) The court found the prior convictions to be true. (CT 210.)
Appellant was sentenced to sixty years to life in prison. (CT 215.) He was given terms of twenty five years to life on each count; the term on count four was ordered to run consecutive to the term on count one, but the terms on counts two and three were stayed. (CT 212.) Two five year enhancements were added under section 667, subd. (a). (Ibid.)
Appellant was given credit for time served in the amount of 245 days. (Ibid.)
Notice of appeal was timely filed. (CT 216.) A companion writ of habeas corpus raised the issue of incompetence of counsel, due to trial counsel’s failure to request a limitation on the jury instruction regarding the prior sex offenses admitted under Evidence Code section 1008; so that the jury was told that they could not convict petitioner based solely on the prior conduct. In an unpublished opinion filed on June 9, 2000, the court of appeal reversed appellant’s conviction on count 4, but affirmed the conviction for the remaining counts. The petition for a writ of habeas corpus was considered concurrently with the appeal, but denied in the same opinion. (Appendix A., at pp. 1-2.)
STATEMENT OF FACTS
The Court of Appeal’s statement of the facts, taken favorably to the prosecution, are in the Court of Appeal opinion at pp. 2-8. Other relevant procedural statements and facts of record will be discussed, as necessary.
ARGUMENT
I.
CALJIC 2.50.01, AS GIVEN HERE, VIOLATED APPELLANT’S RIGHTS UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
By its very language, CALJIC No. 2.50.01, as given, permitted jurors to engage in a three-step process: (1) find the defendant committed the uncharged (prior) offenses by a preponderance of the evidence; (2) from that alone, find the defendant had a propensity to commit the current offense; and (3) from that alone, find the defendant was likely to commit and did commit the current offense. This created two separate federal constitutional violations: (a) the jury was permitted to return convictions (“did commit the current offense”) based solely on a finding that the defendant committed uncharged (prior) offenses, and (b) it was permitted to do that on finding the prior offenses committed by only apreponderance of the evidence.
This Court in People v. Falsetta, supra, 21 Cal.4th 903, touched on this issue. It noted that the 1999 revision of CALJIC 2.50.01, which informs the jury they may not convict based solely on the evidence of his other sexual offenses, insures that the jury will not convict on the lesser standard of proof necessary to prove the commission of the evidence admitted under Evidence Code section 1108. (Id. at p. 920.) The Court specifically directed that an admonishment “not to convict defendant solely in reliance on the evidence that he committed prior sex offenses,” will help “assure that the defendant will be tried and convicted for his present, not his past, offenses.” (Id. at p. 923.) Since this decision there has been a myriad of opinions from the courts of appeal which have split on the issue presented herein.
Last month, the First District Court of Appeal decided People v. James (June 9, 2000, A083198) Cal. App. 4th ; 96 Cal. Rptr. 2d 823; 2000 Cal. Daily Op. Service 4668; 2000 Daily Journal DAR 615; 2000 Cal. App. LEXIS 459 wherein it stated that the older version of CALJIC 2.50.01 was constitutionally infirm as it allowed the jury to base its verdict directly on an inference from the propensity evidence and so undermined the state’s obligation to prove each element of the charged offense beyond a reasonable doubt. (c.f. People v. Brown (2000) 77 Cal. App. 4th 1324, 1335 (rev. den. May 10, 2000, 2000 Cal. LEXIS 4119) which addressed the companion statute, Evidence Code section 1109, applicable in cases of domestic violence and found that Evidence Code section 1109 did not improperly lower the burden of proof to a preponderance of the evidence because the jury was told that “evidence that the defendant committed the prior offenses involving domestic violence is not sufficient by itself to prove that he committed the charged offenses.” Then the same division which decided People v. James, supra, Cal. App. 4th ; 96 Cal. Rptr. 2d 823; 2000 Cal. Daily Op. Service 4668; 2000 Daily Journal DAR 615, three weeks later reached a contrary result from that decision in People v. Jennings (June 30, 2000, A084322, A087469) 2000 Cal. App. LEXIS 531. The opinion in Jennings found the trial court had no duty to limit the application of the older version of CALJIC 2.50.01 so that the jury did not convict the defendant based upon the proof of his prior conduct by a preponderance of the evidence.
Another division of Second District Court of Appeal has decided the identical issue from the case at bar in a very different fashion in People v. Vichroy (1999) 76 Cal.App.4th 92 (rev. den. 2/2/2000, 2000 Cal. LEXIS 871). The Vichroy court concluded: “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 ofthe 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 p. 99.)
This is the precise problem here and appellant urges this Court to adopt the better reasoning from Vichroy. Appellant’s jury was instructed with the same version of CALJIC 2.50.01 which was found to be constitutionally defective in Vichroy. The jury was told that the prosecution needed to prove the prior sexual offenses by a preponderance of the evidence; they were then told that they could use those prior sexual offenses as proof of the charged crime and they were not told there had to be any other evidence than the prior offenses. (CT 149; RT 395; People v. Vichroy, supra, 76 Cal.App.4th at pp. 100-101.) Thus, this instruction as given violated the due process clause of the Fourteenth Amendment which requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (In re Winship (1970) 397 U.S. 358, 364.)
The Second District again reached this issue in People v. Orellano, (2000) 79 Cal. App. 4th 179 (rev. and request for depub. denied, June 14, 2000, 2000 Cal. LEXIS 4924). Once again, the court of appeal found: “appellant was denied his due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crimes. A ‘constitutional infirmity arises’ because taken literally these instructions authorized a conviction of the current charges based ‘solely’ upon a finding that appellant committed the prior crimes.” (Id. at pp. 184-85; citations omitted.) In this opinion, the court of appeal found that the revision to CALJIC 2.50.02 was “more than just a desirable improvement or ‘useful nugget’ of additional information it is essential to the jury’s proper understanding of disposition evidence.” (Id. at p. 185, citations omitted.)
Two other District Courts of Appeal have taken opposing views. The Fourth District in People v. Regalado (2000) 78 Cal. App. 4th 1056 (rev. denied 4/26/2000 (2000 Cal. LEXIS 4050) came to the conclusion that this prior incarnation of CALJIC 2.50.01 was not constitutionally infirm. The court of appeal surmised that, despite the defective instruction, the jurors should have realized that disposition evidence must be assessed along with all the other evidence to determine whether every element of the offense was proven beyond a reasonable doubt. Another division of that court came to the same conclusion in People v. Waples (2000) 79 Cal. App. 4th 1389, 1397-98 (petn. rev. pending).
The Fifth District decided two cases in a similar vein. That court of appeal held that the former instruction 2.50.01 should be considered together with the instructions on reasonable doubt and the elements of the charged offense. If these instructions were considered in toto, juries were not reasonably likely to return a conviction based on an unconstitutionally lenient standard of proof or on evidence of unchargedoffenses alone; hence, no error arose from the use of former CALJIC No. 2.50.01 and CALJIC No. 2.50.1. (People v. O’Neal (2000) 78 Cal. App. 4th 1065, 1078-1079 (rev. denied 6/2/2000, 2000 Cal. LEXIS 4797.); accord, People v. Van Winkle (1999) 75 Cal.App.4th 133, 146-149 (rev. denied 12/15/99.))
Appellant urges this court to adopt the better reasoning used by the Second District Court of Appeal in People v. Vickroy, supra, 76 Cal.App.4th 92 and People v. Orellano, supra, 79 Cal. App. 4th 179. Proof of prior sexual offenses cannot be permitted to substitute for proof of appellant’s guilt of the currently charged offenses.
Here, one cannot tell how the jury reached its guilty verdicts. The instructions permitted the jury to do so on something less than proof beyond a reasonable doubt of the current offenses. The jury could have reached its guilty verdicts based solely on proof of the prior offenses, which required only a preponderance.
It is true that other instructions, such as CALJIC No. 2.90 or 2.01, were given which would normally point the jury toward this constitutional requirement. However, those instructions do not cure the constitutional infirmity because they do not refer to it. At best, they create an instructional conflict, which is not cured as a matter of constitutional law for the separate reasons that the correct instructions do not specifically reference the incorrect ones (see Francis v. Franklin (1985) 471 U.S. 307, 322). Additionally, if the jury did perceive a conflict, then as a matter of common sense it would be more likely construe the more specific instruction, CALJIC No. 2.50.01, to prevail over the more general ones. (See, e.g., Civ. Code, §§ 3534; Code Civ. Proc., §§ 1859; National Insurance Underwriters v. Carter (1976) 17 Cal.3d 380, 386 [maxim that specific prevails over general, as applied to dealings among nonlawyers].)
In any event, there is nothing to indicate a jury would engage in this type of minute legal dissection. The judge instructs the jury on principles of law, and the jury does not question the judge or try to ascertain the legal reasoning behind the instructions. Here, the jury was told that if it found the defendant committed the prior (uncharged) offenses by a preponderance of the evidence, that sufficed to prove disposition, and disposition was sufficient to prove the charged offenses beyond a reasonable doubt. The jury was expressly permitted to do exactly what the Constitution forbids, and there is nothing to show the jury did not do so.
II.
THIS ERROR IS A STRUCTURAL ERROR MANDATING REVERSAL.
This error amounted to a structural error at trial in the misinstruction on the burden of proof that mandates reversal. Any instruction which undermines the requirement of the Sixth and Fourteenth Amendments–that a jury verdict find the charged offenses proved beyond a reasonable doubt–is reversible error. (Sullivan v.Louisiana (1993) 508 U.S. 275, 278-281.) Regardless of the evidence, there can be no “harmless error” analysis when the actual jury verdict may not have been a finding that the evidence proves the charged offenses beyond a reasonable doubt. “There is no object, so to speak, upon which harmless-error scrutiny can operate.” (Id. at p. 280.)
The fundamental importance of the requirement of proof beyond a reasonable doubt as a component of the right to trial by jury was clearly deliniated in Sullivan v. Louisiana, supra, 508 U.S. 275. The Sullivan decision is “straightforward and uncompromising. The court held that a constitutionally deficient reasonable doubt instruction cannot be harmless error.” (People v. Crawford (1997) 58 Cal. App. 4th 815, 821, emphasis added.) Sullivan “concluded that the giving of a constitutionally deficient reasonable doubt instruction is among those constitutional errors that require reversal of a conviction, rather than those that are amenable to harmless-error analysis. . . .The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt–not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.” (Id. at p. 822, fn. omitted, quoting Sullivan, supra, 508 U.S. at p. 280.) Justice Scalia explained the necessity for a reversal per se standard with a defective instruction on reasonable doubt in Sullivan v. Louisiana, supra, when he wrote: “[W]here the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings. A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, `the wrong entity judge[s] the defendant guilty’.” (Id. at p. 281; emphasis added; See also People v. Vann (1974) 12 Cal. 3d 220; People v. Phillips (1997) 59 Cal.App. 4th 952; and People v. Elguera (1992) 8 Cal. App. 4th 1214 [in all of these cases the misinstruction on the prosecution’s burden, to prove his case beyond a reasonable doubt, and the defendant’s right to the presumption of innocence, has been held to be reversible error notwithstanding reference to the proper standard in other instructions and during the argument of counsel].) This Court cannot employ any lesser standard.
Without an explicit discussion of the standard of review employed, the Vichroy Court reversed, stating: “The instruction permitted the jury to find appellant guilty of the current charges solely because he had committed prior sexual offenses. Because we cannot assume the jury followed the constitutionally correct conflicting instruction, the judgment must be reversed.” (People v. Vichroy, supra, 76 Cal. App. 4th at p. 101.) The court in People v. Orellano, supra, 79 Cal.App.4th 179 openly relied on Sullivan v. Louisiana (1993) 508 U.S. 275, 281 in concluding that reversal was mandated by the very nature of the error: “The danger that the jury leaped to a verdict of guilty is too great forus to confidently assume the jurors arrived at a verdict beyond a reasonable doubt by a careful reasoning process involving all the other instructions. . . . Since we have no way of knowing whether the jury applied the correct burden of proof, the convictions must be reversed.” (Id. at p. 186.) This application of a reversible per se standard is the correct standard of review for error in a criminal case where the jury is incorrectly instructed on the burden of proof necessary to sustain a criminal conviction. (c.f. People v. Regalado, supra, 78 Cal. App. 4th at pp. 1063-1064 [holding that any error under former CALJIC No. 2.50.01 could be held harmless if there was no reasonable probability the error affected the result].)
Due process requires that the prosecution prove a defendant’s guilt beyond a reasonable doubt. (In re Winship, supra, 397 U.S. 358, 364.) The Sixth Amendment requires that the jury, not the trial court, find the defendant guilty beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. 275, 278.; People v. Avila (1995) 35 Cal. App. 4th 642, 655.) Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard” of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) “The Due Process Clause requires the government to prove a criminal defendant’s guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires.” (Id. at p. 22.)
If this Court chooses to look to the jury instructions as a whole to see if other instructions convey correctly the concept of reasonable doubt to the jury, reversal is still mandated. (Francis v. Franklin, supra, 471 U.S. 307, 315; see Victor v. Nebraska, supra, 511 U.S. at pp. 22-23; People v. Avila, supra, 35 Cal. App. 4th at p. 658, fn. 9.) CALJIC No. 2.90 was given here by the trial court and it instructed the jury, in general terms, to both presume that a defendant is innocent and that the prosecution has the burden of proving guilt beyond a reasonable doubt. However, CALJIC 2.90 did not tell the jury that it superseded the uncharged crimes instructions, nor did the CALJIC 2.50.01 refer to CALJIC No. 2.90. There is a reasonable likelihood, therefore, that the jury concluded that the uncharged crimes instructions were more specific than the reasonable doubt instruction, and that they provided an alternate method of proving Appellant guilty. This general instruction on the prosecution’s burden of proof thus did not clarify the uncharged crimes instructions. (See Francis v. Franklin, supra, 471 U.S. at pp. 319-320; see also, United States v. Sanchez-Lima (1998) 161 F.3d 545, 549 [“A specific instruction which is defective in respect to the burden of proof is not remedied by correct general statements of law elsewhere given in the charge unless the general statement clearly indicates thatits consideration must be imported into the defective instruction”].)
Reversal of the remaining counts is constitutionally mandated under either approach.
III.
THE PEOPLE HAVE WAIVED THE SENTENCING ISSUES THEY NOW RAISE BY
THEIR FAILURE TO OBJECT IN THE TRIAL COURT.
The decision in People v. Deptowicz (1999) 69 Cal.App.4th 979 held the issue of the parole revocation fine was waived since the District Attorney did not request it at sentencing. (See also People v. Parker (1998) 67 Cal.App.4th 200, 202-03.) Like, Deptowicz, supra, the District Attorney in this case did not object at sentencing to the trial court’s omission of the parole revocation fine under Penal Code section 1202.45. (c.f. People v. McCoy (2000) 80 Cal.App.4th 57, 69-70; People v. Hannah (1999) 73 Cal.App.4th 270, 272, and People v. Hong (1998) 64 Cal.App.4th 1071, 1084.) This Court should deem it waived.
Likewise, the issue of the registration requirement under section 290 was not raised in the trial court and should not be addressed on appeal. If appellant is ever released from prison, presumably he is already under a duty to register under section 290 from his prior conviction. (See e.g. Evidence Code section 664.)
The People do not have an absolute right to enforce statutory provisions despite a lack of objection in the trial court. (See People v. Tillman (2000) 22 Cal. 4th 300; People v. Scott (1994) 9 Cal.4th 774.)
There is a fundamental issue of fairness and balance in our adversarial system that is essential to our constitutional system of government. (Wardius v. Oregon, (1973) 412 U.S. 470, 473-474.) The constitution was not enacted solely to preserve the right of the government in criminal proceedings.
CONCLUSION
Based on all of the foregoing, CALJIC No. 2.50.01, as given in this case, vitiated the Sixth and Fourteenth Amendment requirement of proof beyond a reasonable doubt. Accordingly, the judgment should be reversed in full. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282.) Further those sentencing issues raised by the people for the first time on appeal should now be deemed waived.
Dated: July 12, 2000
Respectfully submitted,
_______________________________
Marylou Hillberg,
Attorney for Appellant
