Brief Bank # B-882 (Re: F 10.55 n1 [Aggravated Sexual Assault Of A Child (PC 269): Lewd And Lascivious Act On Child Under 14 (PC 288) As Lesser Included Offense].)
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Date of Brief: July 2000
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, HO00000
v. (Santa Clara County
Superior Court
JOHN DOE, No. 000000)
Defendant and Appellant.
__________________________________/
On Appeal from the Superior Court of the State of California
in and for the County of Santa Clara
Honorable Diane Northway, Judge
APPELLANT’S OPENING BRIEF
RICHARD L. RUBIN
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
John Doe
II. THE TRIAL COURT COMMITTED ERROR IN FAILING TO INSTRUCT THE JURY WITH REGARD TO LESSER INCLUDED OFFENSES OF PENAL CODE SECTION 269
A. The Trial Court Erred in Failing to Provide Instructions on Lesser Offenses
Appellant asserts that the trial court had a sua sponte duty to instruct on section 288, subdivision (a); 288a, subdivision (c); and section 289, subdivision (j) as lesser included violations of section 269. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) The failure to instruct on necessarily included offenses violates a defendant’s right under the Fifth, Sixth and Fourteenth Amendments to have the jury determine all material issues presented by the evidence. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [124 L.Ed.2d 182, 113 S.Ct. 2078]; In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068].)
The matter of lesser included offenses was recently addressed by the California Supreme Court in People v. Lopez (1998) 19 Cal.4th 282, which stated:
A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [], . . . .) This sua sponte obligation extends to lesser included offenses if the evidence “raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [] . . . .) As we stated recently, “a criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871 [] . . . .) [¶.] The requirement that courts give sua sponte instructions on lesser included offenses “is based on the defendant’s constitutional right to have the jury determine every material issue presented by the evidence. [Citations.]” (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.)
(People v. Lopez, supra, 19 Cal.4th at 287-288 [original emphasis omitted].)
The Lopez court also delineated the tests to be applied to determine whether a particular offense is a lesser included violation of the charged offense. “To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met.” (Id. at 288.) The elements test is met where all of the legal requirements of the corpus delicti of the lesser offense are included in the elements of the greater offense. “Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Id. at 288 [citations omitted].) Alternatively, the accusatory pleading test is met if the charging allegations of the information include language describing the charged offense in such a way that if the charged offense was committed as specified the lesser offense was necessarily committed. (Id. at 288-289.) Applying these tests, as explained below, the trial court had a duty to instruct the jury on the lesser included options of finding appellant guilty of violating section 288, subdivision (a); section 288a, subdivision (c); and/or section 289, subdivision (j). [Footnote 1]
Pursuant to count 2 of the amended (and final) information, appellant [Footnote 2] was charged as follows:
On and between December 24, 1996 and April 30, 1997, . . . the crime of aggravated sexual assault of a child, in violation of Penal Code section 269, a felony, was committed by John Doe, who did commit a violation of Penal Code section 261(a)(2) or 288(a) or 289(a), upon Jane Doe, a child under 14 years of age, to wit: 5 years of age, and 10 and more years younger than the defendant. (CT 76.)
Section 288, subdivision (a) provides:
Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child, is guilty of a felony . . . .
Section 288, subdivision (a) is a lesser included offense to section 269, under the elements test described in Lopez, because if a defendant violates section 269 by committing rape, rape in concert, forcible sodomy, forcible oral copulation or forcible penetration with a foreign object upon a victim who is under 14 years of age and at least 10 years younger than the defendant (as required for section 269) the defendant must necessarily have violated section 288, subdivision (a) by having committed a lewd or lascivious act upon a child under the age of 14 years. In other words, a violation of section 288, subdivision (a) is a lesser included violation of section 269, because section 269 differs by “the additional element[s]” that the lewd or lascivious conduct involved is, specifically, oral copulation or some form of sexual penetration, and that the act be accomplished by means of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Section 288, subdivision (a) was also a lesser included offense under the accusatory pleading test because if appellant violated section 269 as charged — by committing forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288, subd. (a)) or forcible digital penetration (§ 289, subd. (a)) upon the five-year-old victim — then appellant necessarily committed the lesser offense defined by section 288, subdivision (a) in committing a lewd or lascivious act upon a child under 14 years of age.
Also, under the accusatory pleading test, the court below should likewise have instructed the jury on the lesser offenses of violating section 288, subdivision (c) (non-forcible oral copulation upon a victim under 14 years of age and over 10 years younger than the defendant) and section 289, subdivision (j) (non-forcible penetration with a foreign object upon a victim under 14 years of age and over 10 years younger than the defendant). By way of count 2 (as quoted hereinabove), appellant was accused of having violated 269 by means of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288, subd. (a)), or forcible penetration with a foreign object (§ 289, subd. (a)) involving the minor victim. If the jurors were to conclude that appellant committed oral copulation or penetration with a foreign object of the victim, but this act was not accomplished by means of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury,” then the jurors should have been permitted the option of finding appellant guilty of non-forcible oral copulation upon a minor (§ 288a, subd. (c)) or non-forcible penetration with a foreign object upon a minor (§ 289, subd. (j)). [Footnote 3]
B. Prejudice
The California Supreme Court has recently indicated that the appropriate standard for review for error in failing to instruct upon a lesser included offense is that of People v. Watson (1956) 46 Cal.2d 818, necessitating reversal where an examination of the entire record establishes a reasonable probability that such error affected the verdict. (People v. Braverman, supra, 19 Cal.4th at 178.) However, appellant would assert that because this error deprived appellant of his due process rights under the Fifth, Sixth and Fourteenth Amendments of the federal constitution to have the jury determine all factual issues relating to the charged offense (Sullivan v. Louisiana, supra, 508 U.S. at 277-278; In re Winship, supra, 397 U.S. at 364) the present error should be reviewed under the Chapman [Footnote 4] harmless error standard and reversal is required unless this error was “harmless beyond a reasonable doubt.” (Sullivan v. Louisiana, supra, 508 U.S. at 278-279; Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [89 L.Ed.2d 674, 106 S.Ct. 1431].)
In any event, whether this error is evaluated under Watson or Chapman, reversal is required. As set forth in the previous argument, appellant disputes that there was any evidence establishing the force element as to any sexual act committed upon Ms. L. Even if this Court were to disagree that such evidence was totally nonexistent, it is submitted that, at the very least, reasonable jurors could find that, while appellant had engaged in illicit sexual activities with Ms. L, appellant had not done so by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. In fact, any juror who accepted appellant’s tape-recorded statement to Detective Warburton as true would have to conclude that Ms. L not only consented to the sexual activities but, in fact, initiated them. Although this state of the evidence would have rendered appellant liable for conviction under section 288, subdivision (a); section 288a, subdivision (c); and/or section 289, subdivision (j); it would not have rendered him liable for the more serious offense defined by section 269. Furthermore, no given jury instructions resolved the factual issue of whether appellant was guilty of lewd or lascivious acts upon a child, oral copulation and/or penetration with a foreign object absent the means of force, violence, duress, menace, or fear of immediate and unlawful bodily. (See Yates v. Evatt (1991) 500 U.S. 391, 404-405 [114 L.Ed.2d 432, 111 S.Ct. 1884].)
Therefore, reversal is required.
OPENING BRIEF FOOTNOTES (Footnote 1-4):
Footnote 1: This was certainly not a case of “invited error” by defense counsel, which may constitute a limited exception to this issue being preserved for appeal. There was no discussion on the record regarding the trial court’s obligation to instruct on lesser included offenses to section 269. (See People v. Barton (1995) 12 Cal.4th 186, 198; People v. Avalos (1984) 37 Cal.3d 216, 229.)
Footnote 2: Count 1 of the amended information was applicable only to co-defendant Mr. A. (CT 76.)
Footnote 3: There was no showing that appellant had penetrated the victim with his penis; therefore there was no evidence to support a finding that appellant had committed rape, per section 261, subdivision (a).
Footnote 4: Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, HO00000
v. (Santa Clara County
Superior Court
JOHN DOE, No. 000000)
Defendant and Appellant.
___________________________________/
On Appeal from the Superior Court of the State of California
in and for the County of Santa Clara
Honorable Diane Northway, Judge
APPELLANT’S REPLY BRIEF
RICHARD L. RUBIN
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
John Doe
II. THE TRIAL COURT COMMITTED ERROR IN FAILING TO INSTRUCT THE JURY WITH REGARD TO LESSER INCLUDED OFFENSES OF PENAL CODE SECTION 269
Respondent initially claims that this issue was waived, stating, “Doe was required to have requested a special instruction on lessers, and he failed to do so.” (RB 55.) Respondent cites no authority supporting its “waiver” argument. However, a cursory amount of legal research would have revealed that the California Supreme Court has recently affirmed that a trial court possesses a sua sponte duty to instruct on lesser included offenses. (People v. Lopez (1998) 19 Cal.4th 282, 287-288; People v. Breverman (1998) 19 Cal.4th 142, 162.) Given this controlling authority, respondent’s waiver argument should be rejected.
Respondent’s alternative arguments fair no better. Respondent asserts that instructions on lesser included sexual offenses involving a minor, but not requiring a force element, were not called for because “consent is not a defense to child sexual abuse.” (RB 54 [citation omitted].) Of course, consent is not a “defense” to section 269, but that is completely irrelevant to the issue of lesser included offenses. If appellant engaged in oral copulation or penetration with a foreign object with five-year old Ms. L then he certainly committed a crime; however, if appellant did not accomplish this by means of force, violence, duress, menace or fear then it follows that the crime he committed was a lesser crime than that defined by section 269. [Footnote 5]
By way of analogy, it is the element of force which distinguishes robbery (§ 211) from the lesser included offense of grand theft from the person (§ 487, subd. (c)). (People v. Williams (1992) 9 Cal.App.4th 1465, 1471-1472.) Similarly, the force element distinguishes section 269 from the lesser included offenses defined by section 288, subdivision (a); 288a, subdivision (c); and section 289, subdivision (j). The point is not that “consent” is a defense to sexual activity with a minor; rather, it is that the Legislature has decided as a general proposition to punish offenders who employ force as a means to engage in such activities more severely than offenders who do not employ force. (Compare e.g., § 288, subd. (a) and § 288, subd. (b).)
Respondent further asserts that sua sponte instructions on lesser offenses to section 269 “would have directly conflicted with Doe’s defense of complete innocence” as to any crime. (RB 55-56.) In point of fact, appellant’s principal defense at trial, as reflected in defense counsel’s closing argument to the jury, was that whatever acts of sexual molestation appellant committed occurred prior to appellant’s 18th birthday on December 24, 1996. Defense counsel argued that if the evidence did not establish beyond a reasonable doubt that appellant committed any sexual act upon Ms. L after that date then the jury was required to acquit. (RT 492-493.) It would hardly have been conflicting for appellant to assert that all sexual activities occurred prior to December 24 and, alternatively, if this were not the case that no sexual activities were accomplished by means of the force element. Furthermore, respondent’s underlying legal premise is incorrect. Appellant was entitled to jury instructions based upon theories of mitigation which were inconsistent so long as they were supported by a portion of the evidence presented at trial. (People v. Atchison (1978) 22 Cal.3d 181; People v. Glenn (1991) 229 Cal.App.3d 1461, 1467.) Appellant’s conviction on the lesser offenses was certainly supported by evidence presented at trial. Any juror who accepted appellant’s tape-recorded statement to Detective Warburton as true would have to conclude that Ms. L not only consented to the sexual activities but, in fact, initiated them. Although this state of the evidence would have rendered appellant liable for conviction under section 288, subdivision (a); section 288a, subdivision (c); and/or section 289, subdivision (j); it would not have rendered him liable for the more serious offense defined by section 269. [Footnote 6] Furthermore, even if the jury failed to believe appellant’s statements that Ms. L initiated the sexual activity, the balance of the evidence presented at trial, including Ms. L’s testimony, raised serious doubts as to whether appellant accomplished the sexual acts by means of force, violence, duress, menace or fear. (See sufficiency of evidence arguments at Doe AOB Argument I and Mr. A’s AOB Argument II.)
In a final flourish, respondent interposes the following legally incorrect argument:
Since section 269 does not expressly state that appellant’s proposed lesser offenses are viable alternatives to the predicate crimes, proof those lesser offenses had occurred instead of the predicate offenses would theoretically have been a defense to the charge. (See People v. Martinez, supra, 11 Cal.4th at p. 443, fn. 7 [commission of rape, sodomy or other sex crimes had traditionally operated as a defense to section 288 (a)].) If anything, appellant’s proposed lessers and the enumerated predicate crimes in section 269 are mutually exclusive. (RB 56-57.)
Respondent’s argument makes no legal sense. It has never been a test for a lesser included offense that the statute defining the greater offense “expressly state that . . . lesser offenses are viable alternatives.” Rather, controlling caselaw sets forth two tests: the elements test and the accusatory pleadings test. (People v. Lopez, supra, 19 Cal.4th at 288-289; see discussion at AOB 14-15.) There is no requirement that a lesser included offense be specifically named in the statute defining the greater offense.
Furthermore, contrary to respondent’s representation, People v. Martinez (1995) 11 Cal.4th 434 does not indicate that proof of the occurrence of a specific lesser offense constitutes a defense to the greater charge. In fact, Martinez says precisely the opposite:
[T]he early version of [Penal Code Section 288] encouraged defendants to argue that it only applied to lewd acts “other than” those prescribed in other statutes, and that commission of a rape, sodomy or other proscribed sex act operated as a defense to a conviction under section 288. Such a scenario apparently was not intended by the Legislature. As a result, section 288 was amended in 1937 to delete the troublesome phrase and to specifically “includ[e]” within the statute’s reach acts constituting other sex crimes. “Thus, it has long been settled that commission of a sex act constituting a crime under another section of the code is neither a defense to, nor a requirement of, conviction under section 288.”
(People v. Martinez, supra, 11 Cal.4th at 443, fn. 7 [emphasis added; citations and original emphasis omitted].)
Thus, the very footnote in Martinez cited by respondent contradicts respondent’s assertion that “appellant’s proposed lessers and the enumerated predicate crimes in section 269 are mutually exclusive.” (RB 57.) In other words, appellant could certainly not have defended himself against the section 269 charge by arguing that his conduct with Ms. L specifically amounted to oral copulation or penetration with a foreign object. Respondent’s argument to the contrary makes no sense whatsoever. It is clear that appellant was entitled to instructions on lesser included offenses encompassing non-forcible sexual acts committed upon a minor and the trial court failed in its sua sponte obligation to provide appropriate instructions to the jury.
With regard to the matter of prejudice, respondent provides no discussion beyond citing People v. Breverman, supra, 19 Cal.4th at 192 for the proposition that this error is not per se reversible. (RB 57.) Appellant does not contend otherwise. However, appellant does assert that the proper standard of review is that of Chapman [Footnote 7] and that reversal is warranted regardless of whether the Chapman or Watson [Footnote 8] test of prejudice applies. (See AOB 18-20.)
REPLY BRIEF FOOTONOTES (FOOTNOTE 5-8):
Footnote 5: Respondent harps on the concept of “consent” but that is clearly a red herring. Obviously, a five-year old may not “consent” to a sexual act for purposes of rendering the act legal. However, if the victim did express consent then the act was committed without the presence of the force element and the crime defendant committed was a lesser crime than section 269. However, consent or lack of consent is not synonymous with the presence or absence of the force element. Even if the minor victim did not “consent,” it would still be possible that a sexual act was committed absent means of force, violence, duress, menace or fear, if these means were not employed to engage the minor victim in sexual activity. (See People v. Bolander (1994) 23 Cal.App.4th 155, 161.)
Footnote 6: Respondent, in a burst of overheated rhetoric, describes Doe’s statement to the police as “unbelievable” and “completely preposterous and . . . refuted by credible evidence [that] the victim was afraid of him.” (RB 54-55.) Contrary to respondent’s underlying assumption, it was not the province of the trial court (or respondent on appeal) to weigh the credibility of appellant’s account in his statement to the police — that was for the jury. (People v. Flannel (1979) 25 Cal.3d 668, 684; People v. Glenn, supra, 229 Cal.App.3d at 1465.)
Footnote 7: Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].
Footnote 8: People v. Watson (1956) 46 Cal.2d 818.
