Brief Bank # B-815a (Re: F 2.50.01a [Evidence Of Other Sexual Offenses (EC 1108): Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
________________________________________/
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of Ventura
The Honorable Vincent J. O’Neill
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
D. CALJIC No. 2.50.01
CALJIC No. 2.50.01, given to implement Evidence Code section 1108 (RT 3870), has a special problem of its own that mandates reversal of the convictions: It permitted the jurors to find appellant guilty of all sex offense counts without having actually found that he committed any of the underlying charged acts, let alone found them beyond a reasonable doubt.
CALJIC No. 2.50.01, as given, said that if jurors find the defendant committed one or more other sexual offenses, then they may infer he had a disposition to commit similar sexual offenses; and from that disposition, they may infer he was likely to and did commit the charged offenses. (RT 3869:21-3870:13; ante, p. .) In other words: If jurors find the defendant committed one or more other sex offenses, they may infer directly–from that alone–that he committed all of the current charged sex offenses. No instruction stopped the jurors from convicting appellant on this alone.
Furthermore, the jury was also instructed under CALJIC Nos. 2.50.1 and 2.50.2 that the uncharged offenses only had to be proved by a preponderance of the evidence. (RT 3870:21-3871:14.) Thus in conjunction with the above, the jury was told it could convict appellant of the charged sex offenses solely by finding, by a preponderance of the evidence, that appellant committed the uncharged sex offenses. This itself vitiates the constitutional requirement of proof beyond a reasonable doubt of the charged offenses. (In re Winship, supra, 397 U.S. at p. 364.)
Thus as given here, CALJIC 2.50.01 alone, and especially with CALJIC 2.50.1 and 2.50.2, are so broad as to do away with the need for proof of the current offense. They violate the Sixth Amendment right to a jury trial and the Fourteenth Amendment Due Process Clause, by impairing the requirement of proof beyond a reasonable doubt of the current offense. (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281.) Such an error is reversible per se. (Id., at pp. 279-281.) It is also prejudicial for the reasons set forth ante, pp. -. On this ground as well, the judgment as to the sex offense charges should be reversed. And as discussed ante, p. , the judgment as to the other charges should also be reversed.
[4/21/99]
LAW OFFICES OF
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
June 30, 1999
The Honorable Presiding Justice Arthur Gilbert and the
Honorable Associate Justices of the Court of Appeal
Second Appellate District – Division Six
200 E. Santa Clara St.
Ventura CA 93001
Re: People v. Doe – No. B000000 (Ventura No. CR00000)
Dear Presiding Justice Gilbert and Associate Justices:
As counsel for appellant John Doe, I am writing to inform the Court of a recently decided case which is directly on point to one of the arguments made in the Appellant’s Opening Brief. I would respectfully ask that this letter be transmitted to the Court for its consideration, and that permission be granted to file this letter as a supplemental brief. Appellant does not object to the Attorney General responding in his respondent’s brief or in a supplemental brief of his own.
The case is People v. Guzman (No. A079259, June 28, 1999) ___ Cal.App.4th ___ [99 C.D.O.S. 5158, 1999 Cal.App. LEXIS 619]. The argument to which it is directly on point is at pages 79-80 of the AOB, that CALJIC No. 2.50.01, as given, permits a finding of guilt of the charged sex offenses based solely on the uncharged sex offenses; and furthermore, that this meant appellant could be found guilty of the charged sex offenses based solely on the jury finding the uncharged sex offenses by a preponderance of the evidence. That is precisely what Guzman held:
Turning to the instruction, the version of CALJIC No. 2.50.01 given to the jury permitted it to make a two-step inference. The instruction first enabled the jurors to infer that Guzman had a disposition or propensity to commit sex crimes based upon the commission of uncharged crimes similar to or the same as those for which he was on trial. The instruction goes one step further and permits the jury, based on the inference that Guzman had such a criminal propensity, to infer that he was likely to and “did commit the crime or crimes of which he’s accused.” (See CALJIC No. 2.50.01, italics added.) Furthermore, CALJIC No. 2.50.1 allowed the jury to find the predicate fact, that he committed the other uncharged offenses, by a preponderance of the evidence. We conclude that the two instructions, when read together, authorize a determination of guilt based purely on a finding by a preponderance of the evidence that Guzman committed other uncharged sex offenses. . . .
The jury may well have been convinced beyond a reasonable doubt that Guzman had the necessary specific intent without the “other sexual offenses” evidence, and may have in fact considered the uncharged sexual offense evidence superfluous. The problem remains, however, that we cannot say how the jury went about its determinations. Because the instructions as a whole erroneously permitted the jury to find that Guzman had the necessary specific intent based on facts established by a mere preponderance of the evidence, the instructions were erroneous.
(People v. Guzman, supra, __ Cal.App.4th at p. ___ [1999 Cal.App. LEXIS 619, at pp. 25-26, 38].) Appellant’s similar argument is at AOB 79-80, based on the same instruction–CALJIC No. 2.50.01; both by itself, and in conjunction with another instruction mentioned in the passage above, CALJIC No. 2.50.1. (See AOB 79-80.) Appellant adopts the analysis and result of Guzman in its entirety.
Appellant also argued that this type of error was Sixth and Fourteenth Amendment structural error, reversible per se. (AOB 79-80 [citing Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281 [113 S.Ct. 2078, 124 L.Ed.2d 182]].) Guzman also held this type of error was Sixth and Fourteenth Amendment structural error and reversible per se, a holding which, as appellant argued here, is properly based on Sullivan v. Louisiana, supra:
While most constitutional errors during trial are subject to a harmless error analysis, misinstruction on the burden of proof necessary to find the defendant guilty is reversible per se. (Sullivan, supra, 508 U.S. at p. 279.) The reason is that a harmless error analysis looks to the basis on which “the jury actuall rested its verdict.” (Yates v. Evatt (1991) 500 U.S. 391, 404-405 [111 S.Ct. 1884, 114 L.Ed.2d 432].) Where the jury receives wrong instructions on the burden of proof constitutionally required for a conviction, “there has been no jury verdict within the meaning of the Sixth Amendment, [and] the entire premise of [a Chapman v. California (1967) 386 U.S. 18 harmless error] review is simply absent. There being no jury verdict of guilty beyond a reasonable doubt, the question whether the same verdict of guilty beyond a reasonable doubt would have been rendered is utterly meaningless. There is no object, so to speak, upon which harmless error scrutiny can operate.” (Sullivan, supra, 508 U.S. at p. 280; People v. Kobrin (1995) 11 Cal.4th 416, 429.) It is not enough that a reviewing court concludes that a jury would surely have found the defendant guilty beyond a reasonable doubt had it been instructed correctly. “The Sixth Amendment requires more thna appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. . . .” (Sullivan, supra, 508 U.S. at p. 280.) A trial court’s misdirection on the reasonable doubt standard is accordingly structural error. (Ibid.)
We cannot say in the present case that the trial court’s defective instructions resulted in a jury verdict of guilty beyond a reasonable doubt. We have no basis for determining how the jury resolved the contradictory instructions. As likely as not, the jury used a lower standard of proof to convict Guzman. Like those cases involving defective reasonable doubt instructions, a finding in this case that the erroneous instruction was harmless would rest on pure conjecture, “effectively substituting this court for the jury as the trier of fact.” (Kobrin, supra, 11 Cal.4th at p. 429; see Sullivan, supra, 508 U.S. at pp. 279-280.) Because a harmless error analysis is impossible, the error was of a magnitude that it infected the integrity of the trial process, and reversal is required. (See Sullivan, supra, 508 U.S. at pp. 281-282; Kobrin, supra, 11 Cal.4th at p. 428.)
(Guzman, supra, __ Cal.App.4th at p. ___ [1999 Cal.App. LEXIS 619, at pp. 40-42].)
Appellant again agrees, and adopts the analysis and result of Guzman in its entirety. That analysis makes the sex crime convictions (Counts 1-9 and 11-14) reversible per se. Appellant has also argued that once the sex crime convictions fall on that ground, the rest of the convictions must fall as well, as they could not possibly withstand Chapman analysis. (See AOB 76-78, 80.) That is self-evident as to the other convictions, Counts 10, 15 and 16, since they are most directly related to the sex crime charges; but in the end, all of the counts must fall for the reasons appellant has already discussed. Appellant reiterates his previous argument here.
Finally, appellant notes an unusual aspect of Guzman that also existed in this case. In Guzman, the trial court did something trial courts do not usually do–it warned the prosecutor that requesting these instructions was not a good idea. (Id., __ Cal.App.4th at p. ___, fn. 8 [1999 Cal.App. LEXIS at p. 17, fn. 8].) Even more unusually, the trial court did the same thing repeatedly in appellant’s case, as appellant has already discussed. (AOB 71.) While that is not what makes the error reversible, appellant would be remiss if he didn’t note that in the end, what was true in Guzman was also true here: this was a problem the prosecution could have avoided by heeding the warnings of the trial judge.
Appellant greatly appreciates the Court’s consideration of this letter, and would be pleased to provide further information or authority should that be desired.
Sincerely
S. Michelle May
State Bar No. 111072
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
LAW OFFICES OF
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
August 3, 1999
The Honorable Presiding Justice Arthur Gilbert and the
Honorable Associate Justices of the Court of Appeal
Second Appellate District – Division Six
200 E. Santa Clara St.
Ventura CA 93001
Re: People v. Doe – No. B000000 (Ventura No. CR00000)
Dear Presiding Justice Gilbert and Associate Justices:
As counsel for appellant John Doe, I am writing to inform the Court of a recently decided case which is directly on point to one of the arguments made in the Appellant’s Opening Brief. I would respectfully ask that this letter be transmitted to the Court for its consideration, and that permission be granted to file this letter as a supplemental brief. Appellant does not object to the Attorney General responding in his respondent’s brief or in a supplemental brief of his own.
The case is People v. Bersamina (July 27, 1999) ___ Cal.App.4th ___ [99 Daily Journal D.A.R. 7607, 1999 Cal.App. LEXIS 691]. The argument to which it is directly on point is at pages 79-80 of the AOB, that CALJIC No. 2.50.01, as given, permits a finding of guilt of the charged sex offenses based solely on the uncharged sex offenses; and furthermore, that this meant appellant could be found guilty of the charged sex offenses based solely on the jury finding the uncharged sex offenses by a preponderance of the evidence. This is the same issue which was addressed by People v. Guzman (June 28, 1999) ___ Cal.App.4th ___ [86 Cal.Rptr.2d 164, 99 Daily Journal D.A.R. 6613]), a case appellant discussed in a supplemental brief filed on July 2, 1999. Bersamina, like Guzman, held that the instruction was unconstitutional. In addition, Bersamina held that it was not authorized by Evidence Code section 1108. (See id., __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 7610].)
Bersamina held that CALJIC No. 2.50.01 created a permissive presumption, by allowing the jury to conclude that the defendant committed the sex crimes of which he was accused (the “ultimate fact”) if the jury found, by a preponderance of the evidence, that he committed the prior sexual offense (the “basic fact”). (Id., __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 7609].) Bersamina then addressed the “fundamental question of whether, when the ultimate fact to be reached through a permissive presumption is a fact the prosecution is required to prove beyond a reasonable doubt (such as whether the defendant committed the charged crime), due process requires that the basic fact must also be proven beyond a reasonable doubt.” (Id.) The Bersamina Court held that the answer was yes. (Id.) It therefore held that CALJIC No. 2.50.01 was unconstitutional because that instruction took the answer to be no, and permitted the jury to find the basic fact by only a preponderance of the evidence, rather than beyond a reasonable doubt as is constitutionally required. (Id. at p. ___ [99 Daily Journal D.A.R. at p. 7610].)
Appellant agrees entirely with this analysis and result in Bersamina, and adopts them in their entirety.
Appellant also argued that this type of error was Sixth and Fourteenth Amendment structural error, reversible per se. (AOB 79-80 [citing Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281 [113 S.Ct. 2078, 124 L.Ed.2d 182]].) Bersamina, like Guzman, also held this type of error was Sixth and Fourteenth Amendment structural error and reversible per se based on Sullivan v. Louisiana. (See Bersamina, supra, __ Cal.App.4th at p. ___, fn. 6 [99 Daily Journal D.A.R. at p. 7612] [noting that Guzman had reached the same result, that the instruction was error and was reversible per se under Sullivan].) As Bersamina held:
Here, we have no assurance that the jury reached its verdict beyond a reasonable doubt. The jury was not instructed to presume that Bersamina “did commit” the charged crime based on predicate facts that it was required to find true beyond a reasonable doubt. Because it found these predicate facts only to be true by a preponderance of th evidence, its conclusion that Bersamina “did commit” the charged crime was not a conclusion reached beyond a reasonable doubt. Therefore, we cannot apply a harmless error analysis to this verdict and must instead apply the more exacting standard set out in Sullivan.
[In arguing for the Chapman standard], the People do not acknowledge that, in fact, the jury had before it two routes to a guilty verdict, one which required it to travel a lesser and therefore unconstitutional distance than the other. It is quite evident that when this occurs, we cannot assume that the jury chose the constitutional route over the unconstitutional one. [The Bersamina Court then discussed Sandstrom v. Montana (1979) 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39], where the U.S. Supreme Court’s analysis was to like effect.]
Similarly, here, the jury could have found Bersamina guilty on the basis of the instruction set out in 2.50.01, or it could have reached its verdict after following the more general instructions regarding the prosecution’s burden of proving guilt beyond a reasonable doubt. Because we do not know which is the case, this jury’s guilty verdict cannot be subject to harmless error scrutiny. (Sullivan, supra, 508 U.S. at p. 280.) . . . .
(Bersamina, supra, __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 7612].)
Appellant again agrees, and adopts the analysis and result of Bersamina in their entirety. That analysis and result render the sex crime convictions (Counts 1-9 and 11-14) reversible per se.
Appellant has also argued that once the sex crime convictions fall on that ground, the rest of the convictions must fall as well, as they could not possibly withstand Chapman analysis. (See AOB 76-78, 80.) That is self-evident as to the other convictions, Counts 10, 15 and 16, since they are most directly related to the sex crime charges; but in the end, all of the counts must fall for the reasons appellant has already discussed. Appellant reiterates his previous argument here. Appellant did not and does not make the secondary argument made by Bersamina, that CALJIC No. 2.50.01 could have been read to apply to non-sex offense charges. Appellant agrees with the Bersamina opinion that the instruction clearly applied only to sex offense charges. (Id., __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 7612].) Appellant’s argument here is that when the sex offense charges fall as being based on a constitutionally deficient standard of proof, that error results in prejudice as to every other count as well, under the particular circumstances of this case. However, at the very least, the sex offense convictions must all be reversed.
Appellant greatly appreciates the Court’s consideration of this letter, and would be pleased to provide further information or authority should that be desired.
Sincerely
S. Michelle May
State Bar No. 111072
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
LAW OFFICES OF
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
November 11, 1999
The Honorable Presiding Justice Arthur Gilbert and the
Honorable Associate Justices of the Court of Appeal
Second Appellate District – Division Six
200 E. Santa Clara St.
Ventura CA 93001
Re: People v. Doe – No. B000000 (Ventura No. CR00000)
Dear Presiding Justice Gilbert and Associate Justices:
As counsel for appellant John Doe, I am writing to inform the Court: (i) that two cases which appellant had cited in supplemental briefs have recently been depublished, and (ii) of a case decided a week ago in Division Two of this Court which is directly on point to an argument made in the Appellant’s Opening Brief. For both reasons, I would respectfully ask that permission be granted to file this letter as a supplemental brief. Appellant does not object to the Attorney General responding in his respondent’s brief or in a supplemental brief of his own.
1. The Depublications
On October 20, 1999, the Supreme Court depublished People v. Guzman (No. S081184/A079259, June 28, 1999 [printed at 73 Cal.App.4th 103]) and People v. Bersamina (No. S081794/A082268, July 27, 1999 [printed at 73 Cal.App.4th 930]). Guzman and Bersamina were the subjects of appellant’s previous supplemental letter briefs filed with permission of this Court. Appellant thus withdraws his reliance on the Guzman and Bersamina opinions. Appellant has, however, also contended that the reasoning and analysis in both opinions is correct, and he thus continues to adopt that reasoning and analysis. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, fn. 9 [citing a depublished opinion to indicate that the Court’s analysis had been adapted form that opinion]; Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, fn. 2 [discussing Cynthia D.].)
2. The Recent Second District Case
The newly decided case from Division Two of this Court is People v. Vickroy (No. B127891, Nov. 4, 1999) __ Cal.App.4th ___ [99 Daily Journal D.A.R. 11347]. The argument to which Vickroy is directly on point is at pages 79-80 of the AOB, that CALJIC No. 2.50.01, as given, permits a finding of guilt of the charged sex offenses based solely on a finding of guilt of the uncharged (prior) sex offenses. Appellant adopts and incorporates the reasoning and result of Vickroy in its entirety.
The convictions in Vickroy involved three convictions for forcible and nonforcible lewd acts with the defendant’s 13-year-old stepdaughter, which included threats of violence or death if she told what happened, and a sentence of 60 years to life for a defendant with seven prior “strikes.” Division Two reversed the entire judgment because CALJIC No. 2.50.01, as given (see footnote 6 of the Vickroy opinion), violated the fundamental requirement that the jury must find the charged offenses proved beyond a reasonable doubt:
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 of the 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…
(Vickroy, supra, __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 11349].) Appellant respectfully asks this Court to follow Vickroy, in reasoning as well as result.
Appellant also notes that the modification of CALJIC No. 2.50.01 given in Vickroy differs from CALJIC No. 2.50.01 as given in this case, in two primary respects. Both of these factors were more favorable to the defendant in Vickroy than was the instruction in this case.
First, the Vickroy instruction required the jury to find the uncharged (prior) sex offenses beyond a reasonable doubt, while in this case the jury was only required to find the uncharged (prior) offenses merely by a preponderance of the evidence. (See id., __ Cal.App.4th at p. ___, fn. 6 [99 Daily Journal D.A.R. at p. 11349, fn. 6].) Appellant has already argued that CALJIC No. 2.50.01, as given in his case, was constitutionally infirm because it permitted the jury to return convictions based solely on (a) finding the uncharged (prior) offenses true (b) by a preponderance of the evidence. Argument (b), the preponderance of the evidence argument, was unavailable in Vickroy. But the Vickroy Court still reversed because of argument (a), that the jury was permitted to return convictions based solely on finding the uncharged (prior) offenses true. (Vickroy, supra, __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 11349].) That point applies here as well.
Second, the Vickroy instruction included a passage which stated: “You may not convict [the defendant] merely because you believe he committed . . . another offense or because you believe he has a character trait that tends to predispose him to committing the charged offense. [¶] The question before you is whether the defendant is guilty of the crime charged in this case, not whether he is guilty of any other offense.” (Vickroy, supra, __ Cal.App.4th ___, fn. 6 [99 Daily Journal D.A.R. at p. 11349, fn. 6].) The instruction in appellant’s case did not have such a passage.
Division Two found that this extra passage in the Vickroy instruction, though favorable to the defendant, only created a conflict in the instructions and did not cure the constitutional infirmity:
We conclude that CALJIC No. 2.50.01 is constitutionally infirm. 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.
(Vickroy, supra, __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. at p. 11349].) As noted above, appellant’s instruction had the same constitutional infirmity, without the extra effort to cure it that was used in Vickroy.
Appellant has already set forth his argument on what the results should be in his case, if the sex offense convictions are reversed based on the constitutional infirmity of CALJIC No. 2.50.01. (AOB 76-78, 80; Supp. Ltr. Brs. dated June 30, 1993 and August 3, 1993, both at p. 3.) Appellant refers to and incorporates those discussions here, in lieu of repeating them.
Appellant greatly appreciates the Court’s consideration of this letter, and would be pleased to provide further information or authority should that be desired.
Sincerely,
S. Michelle May
State Bar No. 111072
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
