Brief Bank # B-776 (Re: FORECITE F 10.61a [Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent])
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AS PRESENTLY WORDED, CALJIC No. 10.61 IS
SERIOUSLY DEFECTIVE. ON THE FACTS OF
THIS CASE, THE TRIAL COURT’S GIVING OF THIS
DEFECTIVE INSTRUCTION WAS PREJUDICIAL.
A. Relevant procedural history
While testifying, Ms. A was questioned at length by both attorneys not only about the charged sex act, but also about other sex acts appellant committed with her while they and her husband were living together. In cross-examining Ms. A, defense counsel initiated this exchange:
Q: Now when you talked with us about what you did as far as putting your mouth on [appellant’s] penis?
Q: –that wasn’t the very fist time it happened, was it?
Q: In fact, you had done it on other occasions, right?
Q: You had done it on at least two occasions?
Q: One occasion?
Q: Three occasions?
[THE PROSECUTOR]: Vague as to time.
THE COURT: Sustained.
Q: The very first time, the time that we are talking about right now–
Q: –when [appellant] put his penis in your mouth–
Q: –that wasn’t the very first time or day that it had happened, right?
Q: Do you know the days when it had happened before this date?
Q: You do know the dates?
Q: What days are they?
A: On the 10th.
Q: Of May?
A: Yes, May.
Q: So the first time you had sex with [him]?
Q: You put your mouth around his penis, is that what you are saying?
Q: Okay, and then it happened on other occasions?
A: Yes. (RT 192-193; see also RT 195.)
The prosecutor subsequently told the jurors appellant had subjected Ms. A to an extended odyssey of non-consensual sexual horrors, culminating in the charged oral copulation. (RT 204 et seq.) In response, defense counsel argued Ms. A and appellant had engaged in numerous consensual sex acts, including three acts of oral copulation, prior to the date of the alleged offense. (RT 220-221.) As to the alleged offense, counsel told the jury as follows:
I may be wrong, ladies and gentlemen, but if you look at your notes, that was the very last question I asked her on cross-examination. “Ma’am, did you scream?” “No, but I was thinking about it” or “I was going to.” Either you were going to scream or you were not going to scream but I will tell you what, ladies and gentlemen. [Par.] Remember about this time, she had already elbowed [appellant], kicked him in the groin, told him, “Get out of my face.” If she didn’t want to have oral sex with him, she could have screamed. If…Big J cares for her as much as she thought, more likely than not, J would come to her aid and at that time, it would be two against one.
Did she scream? No, she did not scream. That is the act that we are talking about, that is the act of forced oral copulation at one point in time and what I am going to ask you to do after the noon hour, I am going to put this down into law and explain how the law applies and why you should find…my Defendant not guilty of this case.
Because there is evidence by the victim herself that they engaged in this act in the past, there is evidence by the victim herself they had engaged in sexual intercourse numerous times in the past and if you take those…numerous instances of sexual acti-vity and given the…explicit nature of everything, one would reasonably believe the sex was consensual and assuming arguendo, it wasn’t consensual, that she placed him in a position that it was consensual due to the numerous times they had sex in the past…. (RT 223-224; see also at RT 230-234.)
The court thereafter gave four jury instructions pertaining to appellant’s consent defense. The first was CALJIC No. 1.23.1, which correctly stated that if appellant and Ms. A had engaged in a “dating relationship,” this fact per se did not prove the charged act was consensual. (RT 259-260.) Also given were CALJIC Nos. 4.35 and 10.65, which correctly indicated that if appellant honestly and reasonably believed Ms. A consented to the charged act, he must be acquitted. (RT 262-263.) Additionally, the court gave CALJIC No. 10.61, the only instruction on the relevance of the sex acts which occurred between appellant and Ms. A before the charged act. (See text in Section B, infra.) As will appear, this last instruction was prejudicially defective.
B. Relevant law; application to this case
It is a vast understatement to say that in the last quarter of a century, our legal system has become more humane in its treatment of complaining witnesses in sex-crime cases. Previously, a complaining witness realistically could expect to experience all sorts of degradations, insults and intrusions, including the following ones:
(1) having the jury instructed that such a charge is easily fabricated and hard to defend against, making it deserving of special scrutiny–as though complaining witnesses in sex cases were somehow inherently less credible than other witnesses (see, e.g., former CALJIC No. 10.22);
(2) having the jury instructed that a previously “unchaste” woman is more likely to have consented to a charged sex act than a previously “chaste” one;
(3) being required by the trial court to undergo a psychiatric examination; and
(4) being extensively cross-examined about her prior “unchaste” behavior, as though a culture which admires such behavior by men has any business decrying it by women.
In this environment, it is surprising anyone was ever prosecuted for a forcible sex crime. In the mid-1970’s, however, California began curbing the practices described above. In People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882-883, our Supreme Court dealt an overdue death blow to the ancient instruction described above in Item (1), abjuring the notion “victims of sexual offenses are presumptively entitled to less credence than those who testify as the alleged victims of other crimes.” (Id., at 877.)
Our Legislature likewise took steps in support of complaining witnesses. For one thing, it barred jury instructions to the effect an “unchaste” woman is more apt to have consented to a sex act than a “chaste” one. (Penal Code section 1127d and 1127e; see People v. Barnes (1986) 42 Cal.3d 284, 301.) For another, it barred trial courts from making complaining witnesses undergo psychiatric evaluations to assess their credibility. (Penal Code section 1112.)
The most important change in the law, however, has probably been the steps our courts and Legislature have taken to keep complaining witnesses from being bombarded with questions about their sexual pasts. By statute and case law, a complaining witness’s sexual past is now inadmissible, with one exception: If the defendant raises a claim of consent, and if he/she has previously committed consensual sex acts with the complaining witness, those acts are relevant to show that the complaining witness consented to the charged act and/or that the defendant reasonably believed she did. (Evidence Code section 1103, subdivision (c); People v. Blackburn (1976) 56 Cal.App.3d 685, 689-692.) Acknowledging the common-sense raison d’etre for this rule, this Court stated as follows in one case:
The dual defenses of actual consent and reasonable, good faith belief of consent may be inextricably bound up with one another. [Citations.] Here, under appellant’s version of facts, consent was manifested, as it historically had been, by conduct–acquiescence–and not by words. Lucy’s prior consensual intercourse was highly relevant on the issue of appellant’s reasonable, good faith belief of consent. (People v. Perez (1987) 194 Cal.App.3d 525, 529.)
In rape cases, CALJIC No. 10.61.1 accurately and completely summarizes the relevant law on this point. It provides as follows:
Evidence has been introduced for the purpose of showing that the defendant and [the complaining witness] engaged consensually in sexual intercourse on one [or more] occasions prior to the charge against the defendant in this case. If you believe this evidence, you should consider it only for the limited purpose of tending to show that [the complaining witness] consented to the act[s] of intercourse charged in this case] [, or] [the defendant had a good faith reasonable belief that [the complaining witness] consented to the act of sexual intercourse]. You must not consider that evidence for any other purpose. (CALJIC No. 10.61.1 (6th Ed., 1996); italics added.)
Under California law, however, the term “sexual intercourse” applies to penile penetration of a woman’s vagina, but not to sodomy and thus presumably not to oral copulation. (People v. Holt (1997) 15 Cal.4th 619, 675-676.) Hence, the above instruction applies to prosecutions for rape, but not to prosecutions for other forcible sex crimes. (See Use Notes to CALJIC Nos. 10.61 and 10.61.1.) In such prosecutions, CALJIC No. 10.61 is given instead. (Ibid.)
As noted previously, the trial court gave CALJIC No. 10.61 this case. It thereby told the jury as follows:
Evidence has been introduced for the purpose of showing that the Defendant and the alleged victim engaged in sexual activity on one or more occasions other than that charged in the case. If you believe this evidence, you should consider it only for the limited purpose of tending to show the disposition or intent of the Defendant toward the other person. You must not consider that evidence for any other purpose. (RT 260, italics added.)
Perusal of the above instructions reveals a big difference between the two. CALJIC No. 10.61.1, used in rape cases, tells jurors evidence of prior consensual “sexual intercourse” between the defendant and the complaining witness may show that the woman consented to the charged act, and/or that the defendant honestly and reasonably believed she did. CALJIC No. 10.61, on the other hand, tells jurors proof of prior sexual acts may be considered “to show the disposition or intent of the defendant toward the other person,” and not for any other purpose.
There are only two possible explanations for the discrepancy between CALJIC Nos. 10.61.1 and 10.61. One is that for whatever reason, a woman’s prior consensual oral and/or vaginal sex with a defendant should not be seen as evidence she consented to a charged instance of oral sex with him. The other is that CALJIC No. 10.61 is simply defective for failing to contain the language in CALJIC No. 10.61.1.
Appellant has found no published case directly on point, but has found one case which persuasively supports the conclusion CALJIC No. 10.61 is defective. In People v. Peterson (1981) 126 Cal.App.3d 396, 397, the defendant was charged with having oral sex with a female under the age of 18. At trial, he testified he reasonably believed the female was over 18, and he requested an instruction on this good-faith-belief defense. (Ibid.; see People v. Hernandez (1964) 61 Cal.2d 529.) The trial court refused the instruction, however. (Ibid.) The Fourth Appellate District reversed, stating as follows:
We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation within the rationale of Hernandez based upon which orifice of the human body is used. The refusal to so instruct was prejudicial error. It not only deprived the defendant of a crucial de-fense, it deprived him of his only defense. (Ibid.)
The soundness of the Peterson court’s reasoning is difficult to deny, as is its significance here. If a woman’s prior consensual vaginal sex with a man is relevant to whether a charged act of such sex was rape, it is hard to see why the same is not true of prior consensual oral and/or vaginal sex in a forcible oral copulation case. In both situations, the prior consensual sex may suggest, but does not prove, that the charged act was consensual and/or that the defendant reasonably and honestly believed it was.
As noted, however, CALJIC No. 10.61 fails to inform a jury of this crucial principle. Worse yet, it forbids a jury to consider prior consensual sex acts in determining anything other than “the disposition or intent of the defendant toward the other person.” In other words, it forbids the jury to consider such prior acts in determining if the complaining witness consented to the charged act(s), and/or if the defendant reasonably believed she did.
This, appellant submits, is not only an error but a grievously prejudicial one. In a sex-crime case where the defendant raises consent as his sole defense, this error has the same effect as the one identified in Peterson–i.e, it deprives him of his only defense. Such an error violates the defendant’s Sixth and Fourteenth Amendment right to submit his affirmative defense to the jury. (See, e.g., United States v. Unruh (9th Cir. 1988) 855 F.2d 1363, 1372; United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.)
Under the circumstances, it is debatable whether this error should be subject to harmless-error analysis, even under the beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. at 24. Assuming arguendo that the error is subject to such analysis, however, it cannot be redeemed as harmless here. There was ample evidence to support the jury’s verdict, but there was also abundant evidence to undermine Ms. A’s bizarre version of events. Had it not been for the error in CALJIC No. 10.61, the jury would have considered Ms. A’s allegedly consensual prior acts in assessing the voluntariness of the charged act. Had they done so, it is probable they would had a reasonable doubt the charged act was consensual. Instead, because of the error, they were specifically forbidden to consider the prior acts in this respect.
On the facts of this case, this error must be considered prejudicial under any standard. Appellant respectfully asks that this Court reverse his conviction.