Brief Bank # B-815b (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 SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S PETITION FOR REVIEW
To The Fourth District Court of Appeal, Division Two
Decision Filed October 8, 1999
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Counsel for the Appellant
TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:
Appellant John Doe respectfully requests that this Court grant review of the decision of the Court of Appeal, Fourth Appellate District, Division Two, filed on October 8, 1999. A copy of the opinion of the Court of Appeal is attached as Exhibit “A.”
ISSUES PRESENTED FOR REVIEW
Review Sought Under Rule 29
1. Did CALJIC No. 2.50.01, as given, violate the Sixth and Fourteenth Amendment requirements of a jury verdict on the charged offense beyond a reasonable doubt, by permitting a jury verdict on the charged offense based solely on proof of uncharged (prior) offenses by a preponderance of the evidence?
2. Is a mistrial of a 19-day trial declared for “manifest necessity” when (a) defense counsel once represented a potential witness, (b) it is unknown whether the potential witness will testify and she never does, and (c) the trial court (i) decides to declare the mistrial based on convenience of witnesses, and (ii) does not tell the defendant a mistrial is being contemplated, or give him a knowing opportunity to avoid a mistrial?
3. Did the trial court err in dismissing a juror for briefly attending to his wife’s medical emergency, without any indication that the juror would be unavailable for the afternoon session?
4. Did the trial court err by admitting prior sex offense evidence under Evidence Code section 1108?
5. Did the trial court err by giving the revised CALJIC No. 2.90?
Issue One. Review is sought under Cal. R. Ct. 29(a)(1), to resolve a conflict among the courts and to settle an important question of law.
The conflict on this issue is severe. On the issue presented by the version of CALJIC No. 2.50.01 (or its sibling 2.50.02) given in appellant’s case (RT 610, 612-613), the opinions which have received wide public dissemination are split. Two depublished opinions, People v. Guzman (No. S081184/A079259 [Div. 3], June 28, 1999 [73 Cal.App.4th 103]) and People v. Bersamina (No. S081794/A082268 [Div. 5]), July 27, 1999 [73 Cal.App.4th 930]), [Footnote 1] agreed that the instruction undermines the requirement of a jury verdict beyond a reasonable doubt, and is thus reversible error. So did the most recent opinion, People v. Vickroy (No. B127891 [Div. 2], Nov. 4, 1999) __ Cal.App.4th ___ [99 Daily Journal D.A.R. 11347]. One opinion depublished by review, People v. Acosta (No. S079731/H017642, May 3, 1999; rev. gtd. Aug. 18, 1999 [71 Cal.App.4th 1206]) held to the contrary; as did one opinion currently before this Court, People v. Van Winkle (No. F030661, Sept. 24, 1999, rev. pending [75 Cal.App.4th 133]). [Editor’s Note: Acosta was remanded and review was denied in Van Winkle on 12/15/99.]
The version of CALJIC No. 2.50.01 given in appellant’s case is no longer in CALJIC, since there is now a January 1999 revision to the instruction. However, that does not change the deep division in appellate opinions from pre-1999 trials. Moreover, there remains a serious question of whether the 1999 revision to CALJIC No. 2.50.01 cures the constitutional infirmity, as it only creates another conflict within the instructions. The Second District, Division Two, recently held that CALJIC No. 2.50.01 remains unconstitutional and reversible after the 1999 revision. (People v. Vickroy, supra, __ Cal.App.4th at p. ___ [99 Daily Journal D.A.R. 11347].) This Court reserved that issue in People v. Falsetta (Nov. 1, 1999) __ Cal.4th ___ [1999 Cal. LEXIS 7197], noting that issues not before the Court were not being considered. (Id., 1999 Cal. LEXIS 7197, p. 42.)
This issue will continue to vex intermediate courts until this Court resolves it. Moreover, as Vickroy indicates, the constitutional principles used to decide the validity of one instruction may apply equally to deciding the validity of the other, irrespective of how the issues are ultimately decided. A grant of review in a 1998 case would likely resolve the validity of the 1999 instruction as well. (The reverse probably is not true, because the 1998 instruction also presents subissues the 1999 instruction does not.)
This is an extremely important issue, because of its fundamental nature which goes to the heart of our criminal justice system, the requirement of a jury verdict on the charged offense beyond a reasonable doubt. It is also an issue with potentially profound consequences, because of the significant possibility that whenever the prosecution requests a standardized instruction, it may open itself up to reversal of sex crime convictions due to a fundamental infirmity in the instruction. [Footnote 2]
Issue Two. Review is sought under Cal. R. Ct. 29(a)(1), to settle an important question of law.
The doctrine of “manifest necessity” (“legal necessity”) is one of the cornerstones of the Double Jeopardy Clause. It is implicated thousands of times each year, every time a court declares a mistrial in a criminal case. Its proper scope thus presents an issue of widespread importance.
This Court has called the Double Jeopardy Clause a “fundamental ideal in our constitutional heritage,” to which this Court “continue[s] to eschew a parsing attitude.” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 79.) In that regard, this Court stated: “To be watchful for the constitutional and individual rights of the citizen against any encroachment thereon is one of the primary duties and obligations of the courts, and it is by unrelenting watchfulness and zeal in this regard that the conviction of the innocent will be averted.” (Id.)
It appears this Court has not granted review in 20 years—not since People v. Larios (1979) 24 Cal.3d 324—to decide any issue on the doctrine of “manifest necessity” (“legal necessity”). The issue is especially worthy of review here, because the Court of Appeal opinion is contrary to the opinions and analyses of sister States and federal courts. Cases such as United States v. Givens (8th Cir. 1996) 88 F.3d 608, 613-614; Wynn v. Pound (Fla.Ct.App. 1995) 653 So.2d 1116, 1117-1118; Cross v. State (Alaska 1991) 813 P.2d 691, 695-696; United States v. Dixon (8th Cir. 1990) 913 F.2d 1305, 1315 and Douglas v. United States (D.C. Ct. App. 1985) 488 A.2d 121, took a different approach to manifest/legal necessity in potential attorney conflict cases, reversing convictions where the trial court made no effort to explore alternatives short of a mistrial. These opinions furthered the defendant’s “valued right to have his trial completed by a particular tribunal.” (Wade v. Hunter (1949) 336 U.S. 684, 689 [69 S.Ct. 834, 93 L.Ed. 974]; People v. Marshall (1996) 13 Cal.4th 799, 824.)
Because of the importance and widespread use of the law of manifest/legal necessity; because there is a serious question of whether California’s approach to manifest/legal necessity is incompatible with approaches in other jurisdictions; and because this Court has not granted review in this important and often-utilized area in 20 years, review is requested as to Issue Two.
Issues Three through Five. Review is sought under this Court’s power as this state’s highest court to correct errors below. (See O’Sullivan v. Boerckel (June 7, 1999) ___ U.S. ___ [119 S.Ct. 1728, 144 L.Ed.2d 1].)
SUMMARY OF RELEVANT FACTS
The Court of Appeal’s statement of the case, and facts taken favorably to the prosecution, are in the Court of Appeal opinion at pp. 2-3. Other relevant procedural statements and facts of record will be discussed as necessary.
I. CALJIC NO. 2.50.01, AS GIVEN, VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS
By its very language, CALJIC No. 2.50.1, 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 a preponderance of the evidence.
Appellant agrees with the analysis in People v. Vickroy: “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…” (__ Cal.App.4th at p. __ [99 Daily Journal D.A.R. at p. 11349].)
Whether or not Vickroy remains published, the analysis is correct. The analyses contained in Bersamina and Guzman are to like effect and equally correct, even though those cases of course cannot be relied on as precedent. (See ante, p. , fn. 1.)
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. An instruction which undermines the Sixth and Fourteenth Amendment requirement of a jury verdict finding the charged offenses proved beyond a reasonable doubt is reversible error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278-281 [113 S.Ct. 2078, 124 L.Ed.2d 182].) 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.)
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 (a) the correct instructions do not specifically reference the incorrect ones (see Francis v. Franklin (1985) 471 U.S. 307, 322 [105 S.Ct. 1965, 85 L.Ed.2d 344]), and in addition (b) if then jury perceived 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 didn’t do so. [Footnote 3]
Again, the analysis found in Vickroy, whether or not that opinion remains published, is correct: “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].)
The prosecution’s closing argument here only exacerbated the problem. The prosecution never discussed the legal requirement of proof beyond a reasonable doubt, in either its closing or its rebuttal argument. In fact, the prosecution never even mentioned the words “reasonable doubt.” Instead, the prosecution began its argument with a theme based on the uncharged offenses, that appellant had sexually abused three women—the one in the charged offenses (Lilly), and the two in the uncharged offenses (Christy Miller and Lynette Williams) (RT 567.) The prosecution then discussed evidence and its theory of the uncharged offenses (RT 567-568), before discussing the charged offenses. It discussed the uncharged offenses again later (RT 581-582), and ended its closing argument with a plea for a guilty verdict to vindicate all three women, the one in the charged offenses and the two in the uncharged offenses. (RT 582:18-583:1.)
In its rebuttal, the prosecution again never discussed or mentioned the legal requirement of proof beyond a reasonable doubt. Instead, the prosecution discussed the uncharged offenses again. (RT 600:22-601:25.) In particular, the prosecution made a detailed argument asking the jury to focus on the uncharged offense instructions including CALJIC No. 2.50.01, to draw the inference that if appellant committed the uncharged offenses, he committed the charged offenses as well. (RT 600:26-601:13.)
In short, the prosecution relied substantially on the infirm instruction, and never tried to “cure” it by specific reference to the reasonable doubt instruction and its definitions. Appellant disagrees that mere prosecution argument could do so; jurors are always told that jury instructions prevail over arguments of counsel. (CALJIC No. 1.00.) But the prosecution’s reliance on the infirm instructions and the evidence relating to them only further underscores the constitutional violations by the instructions.
Finally, appellant respectfully submits he has not yet had a full and fair opportunity to obtain review on the issue. Appellant was permitted to file a supplemental brief as soon as Guzman was issued, and the People answered by relying on Acosta. The tentative opinion picked Acosta over Guzman, without any explanation or effort at comparison. Then, Bersamina was issued, so appellant sought to present it in a supplemental brief, especially because Bersamina discussed why Acosta—on which the tentative relied—was wrongly decided or inapplicable. (Cf. Cal. R. Ct. 29.3(a) [permitting such briefs in cases in this Court].) However, the Court of Appeal rejected appellant’s brief. At oral argument, appellant noted Acosta had been depublished, but respondent relied on Van Winkle which had just been issued—so the final opinion picked Van Winkle over Guzman and Bersamina, again without explanation or effort at comparison. Based on all of this, appellant respectfully submits he has not obtained meaningful review, contrary to the Fourteenth Amendment Due Process Clause.
However, that should be irrelevant, because the unconstitutionality of the instruction should be manifest. CALJIC No. 2.50.01, and particularly the version given in this case, permits conviction based on something less than proof beyond a reasonable doubt of the current offenses.
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.)
Footnote 1: Depublished opinions are not relied on as precedent, but are cited as a factual matter, to show the split among the courts. (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 from that opinion]; Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, fn. 2 [discussing Cynthia D.].) Even though no court can rely on the depublished opinions, courts can nonetheless adopt the reasoning of those opinions. (See ibid.) Moreover, the courts which issued them are likely to continue to reach the same conclusion in similar cases. (See Mangini v. J.G. Durand Int’l (1995) 31 Cal.App.4th 214, 219-220 [citing depublished opinions on the same issue to indicate recurring nature of the issue].)
Footnote 2: In Guzman, the trial court took the unusual step of repeatedly warning the prosecution that it questioned the wisdom of the instruction. (Id., reprinted at 73 Cal.App.4th at p. 114, fn. 8.) The undersigned also has another pre-1999 case involving this issue (still on direct appeal) where a trial court in another part of the state did the same thing, and said the prosecution risked an appellate issue by requesting the instruction. (People v. Linnihan (No. B118886), RT 995, 3705, 3707, 3715.)
Footnote 3: The Court in People v. Van Winkle, supra, 75 Cal.App.4th 133, disagreed based on the premise that evidentiary facts need only be proven by a preponderance of evidence. (Id. at p. 148.) The premise is true, but irrelevant here. The jury was given a direct path of inferences that it was expressly permitted to follow, whereby the jury was permitted to metamorphose the evidentiary fact—proved by a preponderance of the evidence—directly into a finding that the defendant committed the charged offenses, i.e., a guilty verdict. That presents the same two problems: (i) permitting the jury to use facts found by a preponderance of the evidence as the sole basis for a guilty verdict, and (ii) permitting the jury to based a guilty verdict solely on a finding of uncharged offenses (even if arguendo the uncharged offenses had been found beyond a reasonable doubt, despite the jury instructions permitting a far lesser finding).