Brief Bank # B-769
NOTE: The text of the footnotes appear at the end of the document.
EXCERPT FROM BRIEF:
THE TRIAL COURT VIOLATED APPELLANT’S PROCEDURAL DUE PROCESS RIGHTS UNDER BOTH THE UNITED STATES AND CALIFORNIA CONSTITUTIONS BY INSTRUCTING THE JURY THAT PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT HE HAD SEXUALLY ASSAULTED MS. B YEARS EARLIER, RATHER THAN PROOF BEYOND A REASONABLE DOUBT THAT HE HAD RAPED MS. S IN THE INSTANT CASE, WAS SUFFICIENT FOR CONVICTION
The Due Process Clause of the United States Constitution, and similar California Constitutional provisions, require that, in criminal cases, the state prove every factual and legal element of the offense charged beyond a reasonable doubt (In re Winship) (1970) 397 U.S. 358, 363-364.) Jury instructions relieving state prosecutors of this burden violate a defendant’s due process rights, subvert the presumption of innocence and invade the truth finding task assigned solely to juries in criminal cases. (Francis v. Franklin (1985) 471 U.S. 307; Sandstrom v. Montana (1979) 442 U.S. 510; Carella v. California (l989) 491 U.S. 263, 265; Ulster County Court v. Allen (1979) 442 U.S. 140; People v. Roder (1983) 33 Cal.3d 491; People v. Figueroa (1986) 41- Cal.3d 714, 726; People v. Hedgecock (1990) 51 Cal.3d 395, 407; People v. Korbin (1995) 11 Cal.4th 416.)
While the prosecution needs to prove prior misconduct by only a preponderance ofthe evidence rather than proof beyond a reasonable doubt, the jury instructions concerning the prior crimes must not abrogate the requirement of proof beyond a reasonable doubt of all of the elements of the chargedoffenses. Due process still requires that the jury be convinced beyond a reasonable doubt of the “ultimate fact” of the defendant’s guilt of the crime for which he is currently on trial. (People v. Medina (1995) 11 Cal.4th 694, 763-764; see also People v. Lisenba (1939) 14 Cal.2d 403, 430.)
The instructions given the jury in the instant case violated the above recited due process principles reiterated in Medina since they permitted the jury to find Appellant guilty of raping Ms. S based merely on proof by a preponderance of the evidence that he had sexually assaulted Ms. B years earlier. [Footnote 1]
The jury was instructed in pertinent part:
Evidence has been introduced for the purpose of showing the defendant engaged in a sexual offense other than team charged in the case. ‘Sexual offense’ means a crime under the laws of this state or of the United States that. involves . . .
Contacts, without consent, between the genitals or anus of the defendant and any part of another person’s body.
If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused.
Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of evidence that the defendant committed a sexual offense other than that for which he is on trial.
You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other sexual offense.
‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding an that issue must be against the party who has the burden of proving it.
You should consider all of the evidence bearing upon every issue regardless of who produced it. (CALJIC No. 2.50.01, 250.1, and 250.2; C.T. 167-168; R.T. 544-546.)
Thus, under the court’s instructions, the jury could (1) find by a preponderance of the evidence that Appellant had sexually assaulted Ms. B in 1991, (2) infer from this fact that Appellant was Predisposed to commit sexual assaults, and (3) further infer that he was not only likely to commit, but did in fact- commit the rape of Ms. S in 1996 of which he was accused. If the jury engaged in this chain of reasoning, they could convict Appellant of raping Ms. S even though they were not convinced beyond a reasonable doubt that he had perpetrated this crime.
Moreover, unlike in some recent cases, the constitutional error was not cured by other instructions. Unlike in People v. Fitch, supra, the jury was not instructed that it could not convict Appellant simply because it found that he had a character trait that tended to predispose him to commit the crime now charged. (Cf. People v. Fitch, supra, 55 Cal.App.4th at p. 183.)
Moreover, unlike in People v. Watts (lst D.C.A. August 28, 1998), ____ Cal.App.4th ___ , 98 Daily Journal D.A.R. 9337, neither the court nor counsel ever bothered to even attempt todisabuse the jury of the idea that, by using the chain of reasoning described in the. above quoted instructions, they could find Appellant guilty under a standard less than beyond a reasonable doubt. Although the court gave the standard “beyond a reasonable doubt” instruction (CALJIC No. 2.90; C.T. 169-170; R.T. 549-550), told the jury nothing that would help them resolve the apparent conflict between that instruction and the instructions concerning prior crimes evidence and predisposition.
Moreover, the prosecutor, during both his opening and closing arguments, did everything he could to convince the jury to convict Appellant as an habitual “rapist . . . [who] takes advantage of women” and who simply “must” be guilty of rating Ms. S because he sexually assaulted Ms. B five years earlier pursuant to the above quoted instructions. (R.T. 475-476, 524-527.)
Thus, even when the instructions are considered in their entirety, and the relevant arguments of counsel are taken into consideration, the jury may well have believed that the appropriate standard was less than the constitutionally required one of beyond a reasonable doubt and convicted Appellant utilizing that lesser standard. The court’s instructions offended Appellant’s due process right to be convicted only by a jury unanimously convinced of his guilt beyond a reasonable doubt.