Brief Bank # B-822 (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 TWO
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
____________________________________________)
Appeal From The Superior Court of Los Angeles County
Honorable Michael A. Cowell, Judge Presiding
____________________________________________________
APPELLANT’S OPENING BRIEF
____________________________________________________
SYLVIA KORYN, ESQ.
KORYN & KORYN
State Bar No. 90179
9454 Wilshire Boulevard
Suite 600
Beverly Hills, California 90212
Telephone: (310) 829-9195
Attorney for Defendant-Appellant
STATEMENT OF APPEALABILITY
This appeal is from a judgment that finally disposes of all issues between the parties, and is authorized by Penal Code section 1237.
STATEMENT OF THE CASE
Appellant, John Doe, was charged in an amended information with lewd acts upon a minor (Pen. Code, § 288, subd. (a)) in count 1, and forcible lewd acts upon a minor (Pen. Code, § 288, subd. (b)(1)) in counts 2 and 3. (C.T. 45-46.) It was further alleged appellant had suffered seven prior “strike” convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (b)-(i)), two serious prior convictions (Pen. Code, § 667, subd. (a)(1)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). (C.T. 46-48.)
At his arraignment, appellant pled not guilty and denied the further allegations. (C.T. 56.)
Prior to trial, appellant’s motion to bifurcate the priors from the case-in-chief was granted. (C.T. 61.)
Following a six-day jury trial, appellant was convicted as charged with lewd acts upon a minor (Pen. Code, § 288, subd. (a)) in count 1, and forcible lewd acts upon a minor (Pen. Code, § 288, subd. (b)(1)) in counts 2 and 3. (C.T. 120-122.) Appellant waived a jury trial on the priors. (C.T. 124.) Following a bifurcated trial, the court found true the allegations that appellant had suffered seven prior “strike” convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (b)-(i)) and two serious prior convictions (Pen. Code, § 667, subd. (a)(1)). (C.T. 124.) [Footnote 1]
After denying appellant’s motion to strike his prior “strike” convictions, the court sentenced appellant to 60 years to life, consisting of 25-year-to-life terms on counts 2 and 3, plus two 5-year terms for the prior serious felony convictions. (C.T. 125-127.) The sentence on count 1 was stayed pursuant to Penal Code section 654. (C.T. 126.) The court also ordered appellant to pay a $5,000 restitution fine (Pen. Code, § 1202.4, subd. (b)). (C.T. 125.) Appellant was given credit for 271 days spent in custody, consisting of 236 actual days and 35 good time/work time local conduct credits. (C.T. 126.)
Appellant filed a timely notice of appeal from the judgment of conviction and sentence. (C.T. 129.)
STATEMENT OF FACTS
Over defense counsel’s objection, the trial court allowed the prosecution to present testimony regarding two prior incidents as substantive evidence of the charged offenses. The facts underlying the charged offenses and the priors are discussed under separate headings.
A. The Charged Offenses
Ms. S., age 13, lived with appellant, her stepfather, in Bellflower from the time she was 11 or 12 until his arrest. (R.T. 78-79, 93.) [Footnote 2] Beginning in June, 1997, appellant told Ms. S to take off her clothes, lay on her bed, spread her legs and show him her genital area. (R.T. 80, 91, 94, 120.) She complied and appellant sat on the floor naked and masturbated in front of her. (R.T. 81, 90, 94-104, 118-119.) These episodes occurred three or more times during the months of June and July. (R.T. 81-84, 101, 105.) Appellant would often offer to buy Ms. S things if she complied with his requests. (R.T. 93, 99-100, 106, 113.) When she tried to refuse, he would get mad, speak loudly, and call her names. (R.T. 106-107, 121.) He also tried to convince her to comply by telling her this would be the last time. (R.T. 112-113.) However, on approximately three of four occasions when she tried to refuse, appellant threatened her by telling her he would blow up the house or kill her. (R.T. 80-89, 89, 98-108, 113, 121.) Ms. S did not tell anyone about these incidents because she was afraid appellant would hurt her or her family. (R.T. 82, 92, 100-101, 121-122.)
In January 1998, appellant again told Ms. S to show him her private parts. (R.T. 86-87, 89, 101, 115.) When she refused, appellant became very angry and raised his fist as though he were going to hit her. (R.T. 86-88, 108, 117.)
From June, 1997, until the last incident in January, 1998, appellant asked Ms. S to show herself to him approximately ten to fifteen times. (R.T. 89-92, 104, 109-118.) Appellant never touched her and never asked her to touch him during any of these incidents. (R.T. 89-90, 104.)
Mr. A, a Los Angeles County Deputy Sheriff, is an elder at the church that appellant and his family attend. (R.T. 128-136.) On March 27, 1998, Mr. A was at the Bellflower Sheriff’s Substation when he received a telephone call from appellant. (R.T. 129, 132, 134.) During the phone call, Mr. A instructed appellant to come to the station to turn himself in regarding violations of the law concerning his step-daughter. (R.T. 129-131, 134.) Appellant told Mr. A he could not turn himself in because if he turned himself in for what he believed Ms. S told the police, he would go to jail for the rest of his life. (R.T. 130, 137.) Mr. A did not tell appellant the alleged violations of law involved issues of a sexual nature. (R.T. 132.)
B. The Child Annoyance (Pen. Code, § 647.6, Subd. (A)) Prior
Ms. P, age 10, lived at her grandmother’s house in Downey in 1997. (R.T. 147, 155.) Appellant worked as a handyman at her grandmother’s house during a three-week period in August, 1997. (R.T. 147-148, 156-158.) While appellant was working, he asked Mr. P if he could touch her “private parts” on at least 10 to 15 occasions. (R.T. 148-153, 160.) Ms. P always refused and appellant never actually touched her. (R.T. 148, 152.)
C. The “Peeping Tom” Loitering (Pen. Code, § 647, Subd. (H)) Prior
Ms. O, age 14, and her sister, age 12, lived with their grandmother in her apartment in Downey in 1996. (R.T. 172.) Appellant was the manager and caretaker of the apartment complex. (R.T. 173, 187.) Their apartment was on the first floor of the apartment building and their bedroom window faced the alley. (R.T. 174, 185.) Appellant kept his tools in a shed in the alley. (R.T. 185-187.) The window had vertical blinds for a window covering, but some of the blinds were missing, which allowed someone to see inside the window when the blinds were closed. (R.T. 187, 193-194.) On one occasion in May of 1996, appellant went to the rear of their apartment and looked in the window while he was getting some tools from the alley. (R.T. 173-175, 188-189.) After he left, Ms. O found a pink note at the window which said, “A hundred dollars off rent if shown.” (R.T. 176.) Since appellant would come at night and try to look at the girls through the window, Ms. O believed “if shown” meant if she showed him her body. (R.T. 176-177.)
Appellant looked in her window a second time on the night of May 27, 1996. (R.T. 177, 189.) During this incident, appellant looked through her window for approximately ten minutes and repeatedly whispered her name, calling her to the window. (R.T. 178.) She did not go to the window because she was afraid. (R.T. 178.) Appellant then said he would be back in ten minutes and left a $20 bill in the window. (R.T. 178-179, 189.) A note written on the $20 bill stated, “There’s more where this came from. Show me.” (R.T. 179, 189.) Ms.O understood this to mean appellant wanted her to show him her body. (R.T. 179.)
The third time appellant went to the window was when Ms. O’s friend was spending the night at her house. (R.T. 180, 190.) After she heard appellant outside the window, Ms. O told her friend to look outside to see if he was still there. (R.T. 180.) When her friend looked outside, she started screaming and ran from the room. (R.T. 180.)
Ms. O recalled a fourth incident wherein appellant told her he could evict her while he was at the window. (R.T. 181, 190-191.) In response, Ms. O told him she was going to call the police. (R.T. 181.) Appellant then called her a”bitch.” (R.T. 182.)
ARGUMENT
I.
ADMISSION OF THE CHILD ANNOYANCE AND PEEPING TOM PRIORS TO PROVE APPELLANT’S DISPOSITION TO COMMIT SEX CRIMES VIOLATED HIS FEDERAL AND CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL
A. Factual and Procedural Background
Prior to the start of trial, a due diligence motion was heard regarding the availability of the victim, Ms. S. (R.T. 14-60.) After hearing testimony from Rinita Del-Ortiz, the witness coordinator for the District Attorney’s Office, Deputy District Attorney Martha Zepeda, Mr. B, Ms. S’s mother’s employer, and Detective Tony Lucia, the court found Ms. S was unavailable, and allowed her preliminary hearing testimony to be read to the jury during the trial. (R.T. 59-60.)
Following the court’s ruling, the prosecutor informed the court she intended to introduce evidence relating to appellant’s prior misdemeanor convictions for child annoyance (Pen. Code, § 647.6) and “peeping tom” loitering (Pen. Code, § 647, subd. (h)). (R.T. 60-61.) The court indicated the first conviction would be permissible because it was enumerated in Evidence Code section 1108, but the latter conviction would be inadmissible. (R.T. 61.)
Defense counsel objected to this evidence because she had not received the 30 days notice required by Evidence Code section 1108. (R.T. 62-64.) [Footnote 3] The court ruled that in spite of the noncompliance of 30 days notice to the defense, the People were prompt in disclosing this information and good cause existed for allowing the testimony under both Evidence Code section 1108, subdivision (b), as well as section 1101, subdivision (b). (R.T. 64.)
Defense counsel argued this evidence should be excluded under Evidence Code section 1101. The court overruled the objection, stating subdivision (a) of section 1101 was intended to work together with section 1108 and the evidence would be permissible to show intent, plan, and knowledge, regardless of whether it was relevant to the defense. (R.T. 65-66.)
Thereafter, the prosecutor requested the court to make a relevancy ruling under Evidence Code section 352. The court found that under section 352, the probative value of the 647.6 evidence outweighed its prejudicial effect. (R.T. 66-67.) Defense counsel argued against admission of this evidence, as its admission was highly prejudicial and would unfairly bolster the People’s case because of their inability to produce the complaining witness. (R.T. 71.) The court noted the objection for the record, but stated legislation dictated the ruling in permitting this evidence on the prior. (R.T. 71-72.)
The preliminary hearing testimony of Ms. S was then read to the jury. (R.T. 78-122.) The next court date, Mr. A, a Los Angeles County Deputy Sheriff, testified about a phone conversation he had with appellant wherein appellant stated he knew Ms. S’s accusations, if believed, would cause him to go to jail for the rest of his life. (R.T. 127-138.)
At the conclusion of proceedings on that date, the court reversed its previous ruling regarding the “peeping tom” loitering prior and ruled evidence concerning appellant’s conduct resulting in his previous conviction for “peeping tom” loitering (Pen. Code, § 647, subd. (h)) would be admissible. (R.T. 140.) The court overruled defense counsel’s objection pursuant to Evidence Code sections 352 and 1108, stating appellant’s conduct in that case was analogous to what was alleged in this case in that there was no direct touching alleged against appellant, and appellant was seeking to indulge his voyeuristic tendencies. (R.T. 141-142.)
Following the court’s ruling, Ms. P testified regarding the child annoyance (Pen. Code, § 647.6) prior (R.T. 146-165), and Ms. O testified regarding the “peeping tom” loitering (Pen. Code, § 647, subd. (h)) prior. (R.T. 171-194.)
During closing arguments, the prosecutor repeatedly argued to the jury that the two prior offenses demonstrated appellant had the disposition or character of a child molester. The prosecutor argued as follows:
Now, we also presented evidence of two other events concerning children, and concerning Mr. Doe. And you might ask yourself, well, why are you might ask yourself, well, why are you bringing in those prior events? He’s only charged with these three counts that we’ve just described against Ms. S. Well, the court is going to also instruct you as to the law in that area. And what has happened in the law is that the Legislature has determined that certain kinds of offenses, and offenses involving children, sexual offenses involving children are the kind of offenses the Legislature was looking at when it allowed, it made law that allows the prosecution to bring in prior acts of sexual misconduct in order to attempt to show you that the defendant is predisposed to commit the present charge. That means that the law allows me, as I did, to bring in the two prior acts that occurred with Ms. P and with the O. girls. (R.T. 211-212.)
. . .
Now, the law says — and the court will instruct you — that if you believe that evidence, if you believe that — that Ms. O, and Ms. P were telling the truth when they came in and testified as to those prior events, if you are convinced beyond a reasonable doubt that those events occurred, that you may view that evidence as a predisposition on the part of Mr. Doe to have committed the offense against Ms. S. [¶] And I submit to you that it clearly does that. It clearly shows an individual who, for whatever reason, his sexual gratification comes from viewing the body [sic] of little girls. That’s how he is gratified, and that’s clear from her conduct. (R.T. 214.)
. . .
She [defense counsel] wants you to believe that the People have brought in Ms. P and Ms. O to attempt to show you that he is a child molester. And my response to that is, you’re darn right. That’s exactly why we brought them in, to show you the conduct that he has engaged in on other occasions, to show you what his predisposition is, and that is to molest children. And that means he is a bad man. (R.T. 237-238.)
. . .
You can’t look at the behavior of this man and not be convinced that it was not of a sexual nature, that he did not have the intent to gratify himself sexually by using that child’s body, and that’s exactly what he did. And that is child molestation. That’s not just voyeurism, that’s just not looking, that is child molestation, and that’s why we’re allowed to bring in the other events, and that’s why it has been shown that he is predisposed to do this to little girls, and that is why he is a bad man, and that’s why he’s a child molester, and that’s why, Ladies and Gentlemen, you should find him guilty of all three counts as alleged. (R.T. 242.)
B. Admission Of Prior Sex Offenses To Prove Disposition Violates Due Process [Footnote 4]
The common law rule forbidding admission of prior offenses to prove propensity or disposition is a principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental. For over three centuries, courts in all jurisdictions of the United States have treated this rule as an essential component of the presumption of innocence and the right to a fair trial.
The intent and effect of Evidence Code section 1108 is to create an exception to this longstanding rule for sex offenses. Section 1108 allows admission of prior sex offenses to prove the defendant’s disposition to commit such offenses. Because section 1108 contravenes a firmly established principle of Anglo-American jurisprudence, it violates the due process clause of the Fourteenth Amendment.
Evidence Code section 1108, enacted in 1995 (Stats. 1995, ch. 439, § 2), provides that “evidence of the [criminal] defendant’s commission of another sexual offense . . . is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Subd. (a).) Section 1108 “shall not be construed to limit the admission or consideration of evidence under any other section of this code.” (Subd. (c).) The statute defines “sexual offense” as “a crime under the law of a state or of the United States that involved any of the following: [§] (A) Any conduct proscribed by Section 234.4, 261, 261.5, 262, 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.” (Subd. (d)(1).) [Footnote 5]
As noted recently in People v. Fitch (1997) 55 Cal.App.4th 172, “[t]he Due Process Clause has limited operation beyond the specific guarantees of the Bill of Rights, and the category of infractions that violates ‘fundamental fairness’ is defined very narrowly. [Citation.]” (Id., at p. 179.) Nonetheless, “‘[d]ue process draws a boundary beyond which state rules [of evidence] cannot stray.'” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) In this particular case, “[t]o succeed on his due process claim defendant must show that his right not to permit the jury to use character evidence to show disposition to commit the charged offense is a fundamental principle of justice.” (People v. Fitch, supra, 55 Cal.App.4th at p. 180.) The test of whether a due process violation has occurred is twofold: “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.'” (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920; [italics omitted].) That is, the evidence must be highly prejudicial.
The Fitch court concluded that Evidence Code section 1108 does not violate due process. (People v. Fitch, supra, 55 Cal.App.4th at pp. 180-184.) As the Fitch court correctly notes, “[o]ur guide in making this determination is historical practice. [Citation.]” (Id., at p. 180.) Nevertheless, appellant respectfully submits the historical analysis employed in Fitch is flawed.
In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the court noted that “[t]he use of ‘other acts’ evidence as character evidence is . . . contrary to firmly established principles of Anglo-American jurisprudence. In 1684, Justice Withins recalled a prior case in which the court excluded evidence of any forgeries, except the one for which the defendant was standing trial. [Citation.] Similarly, in Harrison’s Trial, the Lord Chief Justice excluded evidence of a prior wrongful act of a defendant who was on trial for murder . . . . [Citation.] Early American courts retained the rule against using ‘other acts’ evidence as character evidence to show action in conformity therewith. [Citations.]
“‘Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.’
“The rule against using character evidence to show behavior in conformance therewith, or propensity, is one such historically grounded rule of evidence. It has persisted since at least 1684 to the present . . . .” (McKinney v. Rees, supra, 993 F.2d at pp. 1380-1381.)
While acknowledging the import of the McKinney case, the Fitch court disingenuously states that “the Supreme Court has noted, ‘. . . the common law was far more ambivalent. [Citation.] Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, [citation], the common law developed broad, vaguely defined exceptions — such as proof of intent, identity, malice, motive, and plan — whose application is left largely to the discretion of the trial judge, [citation]. In short, the common law . . . implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.'” (People v. Fitch, supra, 55 Cal.App.4th at p. 181, quoting Marshall v. Lonberger (1983) 459 U.S. 422, 438 439, fn. 6.)
It is clear, however, that the Supreme Court was referring to nonpropensity uses of prior bad acts when it noted the ambivalence of the common law. The court made the reference in criticism of the dissent’s apparent position “that the common law regarded the admission of prior convictions as grossly unfair and subject to some sort of blanket prohibition.” (Marshall v. Lonberger, supra, 459 U.S. at p. 438, fn. 6.)
The United States Supreme Court has recognized elsewhere that there is no ambivalence in the common law regarding the use of character evidence to demonstrate disposition or propensity. In Michelson v. United States (1948) 335 U.S. 469, the court stated: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, [citation], but it simply closes the whole matter of character, disposition and reputation in the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” (Id., at pp. 475-476, fns. omitted; [italics added].) In other words, the disallowance of propensity evidence is a fundamental principle of Anglo-American jurisprudence.
The Supreme Court also has acknowledged directly the “‘deep roots in our common-law heritage'” that the prohibition against propensity evidence possesses. (Cooper v. Oklahoma (1996) 517 U.S. ___ [134 L.Ed.2d 498, 506].) The prohibition is founded on principles of “‘”fundamental fairness.”‘” (Id., at p. ___ [134 L.Ed.2d at p. 511.].)
Moreover, while the United State Supreme Court has not decided the issue presented here, its opinions do provide guidance on the subject. As noted by Chief Justice Warren, its decisions “suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” (Spencer v. Texas (1967) 385 U.S. 554, 572-574, conc. and dis. opn. of Warren, C.J.)
The Fitch court next states that “ambivalence about prohibiting character evidence is greatest in sex offense cases. Courts have liberally interpreted evidence rules to permit the admission of uncharged sexual misconduct under the rubric of motive, identity and common plan, or more directly admitted it under an exception known as the ‘lustful disposition’ rule. (1A Wigmore on Evidence [Tillers rev. 1983] § 62.2, pp. 1334-1335 [‘Do such decisions show that the general rule against the use of propensity evidence against an accused is not honored in sex offense prosecutions? We think so.’]; 1 McCormick on Evidence (Strong 1992) § 190, pp. 803-804 . . . .)” (People v. Fitch, supra, 55 Cal.App.4th at p. 181.)
The flaw in this portion of the Fitch analysis lies in the court’s reliance on the treatises rather than the cases cited therein. A perusal of the cases reveals little in the way of relaxation of the rule against propensity evidence. A number of jurisdictions have made a limited exception where the offense is one — like statutory rape, adultery or incest — in which the status of the victim makes the act criminal. In such prosecutions, evidence of other acts with the same victim are admissible to show “lustful disposition” or “depraved sexual instinct.” (See, e.g., Maynard v. State (Ind. 1987) 513 N.E.2d 641, 647; State v. Rankin (Iowa 1970) 181 N.W.2d 169, 171; Woods v. State (Ind. 1968) 235 N.E.2d 479, 486; State v. Jenks (1928) 126 Kan. 493 [268 P. 850].) The rationale for this exception is that “‘in prosecutions for depraved acts ” . . . the prosecuting witness is not likely to be believed, since the evidence[] standing alone and entirely unconnected with anything which led to or brought it about, would appear . . . unnatural or improbable in itself.” [Citations omitted.] Thus, the evidence lends credence to the testimony of the prosecution that might otherwise be disbelieved.. . .'” (Maynard v. State, supra, 513 N.E.2d at p. 647.)
Upon close analysis, however, it is clear the “lustful disposition” or “depraved sexual instinct” characterization of the exception is just a label. Prior similar acts with the same person are admissible more traditionally to demonstrate an absence of mistake or accident, guilty knowledge of the nature of the offense or evil intent. (People v. Kelley (1967) 66 Cal.2d 232, 242-243 and fn. 5.) In essence, these are the purposes for which the “lustful disposition” courts allowed such evidence.
Other jurisdictions allow the admission of substantially similar acts with others, as long as they are not too remote, to demonstrate that the defendant “possessed such an abnormal mental or moral nature as would likely lead him to commit the offense charged” (Commonwealth v. Wilson (1964) 205 Pa.Super. 36 [205 A.2d 673, 674]), or to show “a specific emotional propensity for sexual aberration” (State v. McFarlin (1973) 110 Ariz. 225 [517 P.2d 87, 88, 90]). Here, too, however, it is clear that these are just labels.
Despite references to “emotional propensity,” “lustful propensity” and “abnormal mental or moral nature,” these cases require sufficient similarity and closeness in time that the prior acts are relevant to the establishment of a common plan or scheme. (See, e.g., People v. Thomas (1978) 20 Cal.3d 457, 468; Elliott v. State (Wyo. 1979) 600 P.2d 1044, 1047 1048 [characterizing the evidence as admissible to show motive, but acknowledging its likely admissibility to show common design or plan]; State v. McFarlin, supra, 517 P.2d at p. 89, citing State v. Goldsmith (1969) 104 Ariz. 226 [450 P.2d 684]; State v. Schlak (Iowa 1961) 111 N.W.2d 289, 291 [characterizing the evidence as admissible to show motive].) The same category of act (rape, child molestation, lewd conduct) with others also may be admissible to prove the defendant acted with criminal intent. (People v. Salazar (1983) 144 Cal.App.3d 799, 809, 812; People v. Barney (1983) 143 Cal.App.3d 490, 494, 495; People v. Greene (1973) 34 Cal.App.3d 622, 638; State v. Fears (1984) 69 Or.App. 606 [688 P.2d 88, 90]; Findley v. State (Nev. 1978) 577 P.2d 867, 868.)
There is nothing unusual in the approach of the foregoing cases, however. The admissible purposes of other act evidence are the same in nonsexual crime cases as in sexual offense cases. Moreover, each of these jurisdictions follows the same rule codified in California in Evidence Code section 1101; notwithstanding the rhetoric utilized, none of them admits other act evidence solely to demonstrate criminal disposition or propensity — even in sexual offense cases. In short, the ambivalence toward propensity evidence perceived in Fitch is largely mythical.
The Fitch court also notes that “the ban on uncharged sexual misconduct as character evidence in sex offense cases has been eliminated in federal courts under rule 413 of the Federal Rules of Evidence (28 U.S.C.).” (People v. Fitch, supra, 55 Cal.App.4th at p. 181.) Rule 413(a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” It thus parallels to a degree Evidence Code section 1108.
What the Fitch court fails to note, however, is that rule 413(a) is, like section 1108, a recent enunciation of principle and is untested in the courts. Rule 413(a) was enacted to encourage states to adopt similar rules of evidence; it “has no clear policy because it is the result of political posturing by actors not motivated to reveal their true goals.” (23 Wright & Graham, Fed. Practice & Procedure (1997 Supp.) § 5412, p. 267, fn. omitted.) Indeed, the enactment of section 1108 was proposed in response to the adoption of rule 413. (Analysis of May 4, 1995 version of Assem. Bill No. 822 for Assem. Com. on Pub. Safety.) The rise of this modern trend has no reasonable tendency to demonstrate any degree of ambivalence in the common-law rule of exclusion of propensity evidence.
Fairly considered, the history of Anglo-American jurisprudence and the development of the common law demonstrate that the “right not to permit a jury to use character evidence to show disposition to commit the charged offense is a fundamental principle of justice.” (People v. Fitch, supra, 55 Cal.App.4th at p. 180.) In the instant case, there was no permissible inference (one other than disposition or propensity) which the jury could have drawn from the testimony pertaining to the “child annoyance” and “peeping tom” incidents. Therefore, its admission violated appellant’s right to federal due process. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.)
C. The Admission Of Prior Bad Acts To Prove Criminal Propensity Necessarily Violates The Safeguard Of Evidence Code Section 352
While the Fitch court acknowledges that “[o]ur Supreme Court has recognized the possibility that propensity evidence may reduce the burden of proof,” it concluded that “Evidence Code section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under Evidence Code section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury.” (People v. Fitch, supra, 55 Cal.App.4th at p. 183.)
The observation is accurate insofar as it applies to evidence of similar other offenses. The trial court would be well positioned to weigh the great inherent prejudice of other offense evidence against probative value. (People v. Smallwood (1986) 42 Cal.3d 415, 429.) Insofar as the Fitch court’s observation applies to propensity evidence, however, the application of section 352 mandates exclusion; the probative value of propensity evidence is deemed conclusively to be outweighed by the risk of undue prejudice and confusion of issues. (See Michelson v. United States, supra, 335 U.S. at p. 476.)
As noted in People v. Smallwood, supra, 42 Cal.3d 415, “[i]n People v. Thompson (1980) 27 Cal.3d 303 . . . , this court rigorously enforced the rule that evidence of other crimes may never be admitted to show the accused’s criminal propensity. . . . The primary reasoning that underlies [the] basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. [Citation.] Rather, it is the insubstantial nature of the inference as compared to the ‘grave danger of prejudice’ to an accused when evidence of an uncharged offense is given to a jury. [Citations.] As Wigmore notes, admission of this evidence produces an ‘over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts.’ [Citation.] It breeds a ‘tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses . . . .’ [Citation.] Moreover, ‘the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve evidence in his favor.’ [Citation.]. . . .’ [Citation.]” (People v. Smallwood, supra, 42 Cal.3d at p. 428; accord, People v. Garceau (1993) 6 Cal.4th 140, 186.)
The Supreme Court continued, “[w]henever an inference of the accused’s criminal disposition forms a ‘link in the chain of logic connecting the uncharged offense with a material fact’ [citation] the uncharged offense is simply inadmissible, no matter what words or phrases are used to ‘bestow[] a respectable label on a disreputable basis for admissibility — the defendant’s disposition.’ [Citation.]” (People v. Smallwood, supra, 42 Cal.3d at p. 428.) In other words, “‘[w]hile to the layman’s mind a defendant’s criminal disposition is logically relevant to his guilt or innocence of a specific crime, the law regards the inference from general to specific criminality so weak, and the danger of prejudice so great, that it attempts to prevent conviction on account of a defendant’s bad character. . . .'” (Id., at p. 429.)
In theory, then, the application of Evidence Code section 352 always would mandate exclusion of pure propensity evidence as well as a great deal of more relevant evidence which, although possessing probative value, lacked substantial probative value. (People v. Smallwood, supra, 42 Cal.3d at p. 429.)
As a matter of practical reality, however, courts will exercise their discretion to admit pure propensity evidence, finding probative value under a variety of questionable rationales, as did the trial court in this case, especially when it allowed evidence of the “peeping tom” loitering prior, which is not one of the enumerated offenses in Evidence Code section 1108.
The Fitch court collided with the limitations of relying on Evidence Code section 352 shortly after rendering its decision. In People v. Harris (1998) 60 Cal.App.4th 727, the Third District Court of Appeal conceded its “conclusion in Fitch was based on the assumption that section 352 provided a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts,” an assumption which has proven faulty. (Id., at p. 730.)
In Harris, there was no similarity between the prior offense and the present one except that both acts were technically rapes. The prior offense was a violent forcible rape committed against a stranger; the current offense involved an abuse of trust. (People v. Harris, supra, 60 Cal.App.4th at p. 738.) The court noted the absence of significant probative value: “The evidence [of the prior rape] did little more than show defendant was a violent sex offender”; it was so dissimilar that it did not even bolster the victim’s credibility. (Id., at p. 740.) Moreover, given the total dissimilarity of the offenses, it was not probative of a predisposition to commit the charged offense. (Id., at pp. 740-741.) In other words, it was pure propensity evidence.
Prior to tackling relevance, however, the court considered the prejudicial effect of this evidence, evaluating whether the prior offense was more or less inflammatory than the current offense, its remoteness, the time which its proof would consume and the probability the issues would be confused given the jury’s lack of awareness that the defendant had been punished for the prior offense. (Id., at pp. 737-739.) The court concluded, based on these factors, that the probative value of the evidence was outweighed by its prejudicial effect.
In employing this weighing process, however, the Harris court fell into the same trap which inevitably will lead trial courts astray. Its holding extends no father than the conclusion that under the particular circumstances of this case, the prejudicial effect of the evidence outweighs its probative value. As long as courts accept the premise that pure propensity evidence is generally unobjectionable under Evidence Code section 1108, Evidence Code section 352 provides only uncertain protection to defendants faced with its damson. This is inadequate to preserve the presumption of innocence.
D. The Trial Court’s Error Was Prejudicial
Since the trial court’s error in admitting the child “annoyance” and “peeping tom” priors violated appellant’s federal due process rights, it is reversible unless the government proves the error to be harmless beyond a reasonable doubt. (Chapman v. California (1966) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Under Chapman, it is not the function of the reviewing court to reweigh the evidence of guilt and determine whether the jury would have reached the same result even without the inadmissible evidence:
Harmless-error review looks . . . to the basis on which “the jury actually rested its verdict.” [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but rather whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered – no matter how inescapable the findings to support that verdict might be – would violate the jury-trial guarantee. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 113 S.Ct. 2078].)
In this case, “the guilty verdict actually rendered” by the jury was not “surely unattributable” to the prior bad act evidence. (Ibid.) As noted above, the prosecutor argued the priors repeatedly and at great length. The prosecutor’s “continued references” to the priors in closing argument “make it impossible” to conclude that the jury did not rely on the priors. (United States v. Brown (9th Cir. 1989) 880 F.2d 1012, 1016.) “The force of a prosecutor’s argument can enhance immeasurably the impact of . . . inadmissible evidence.” (Brown v. Borg (9th Cir. 1991) 951 F.2d 1011, 1017.) In light of the prosecutor’s own reliance on the priors, respondent cannot establish beyond a reasonable doubt that the jury’s verdict was “surely unattributable” to this inflammatory evidence. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.)
It is difficult to conceive of any evidence which could possibly be more damaging than the testimony of two prior child victims regarding sexual related crimes to which appellant had previously been convicted. In light of this inflammatory evidence, the jury could not have avoided making the inference that appellant was a child molester who must have committed the charged crimes. Indeed, this is exactly what the prosecutor repeatedly urged the jury to do in closing arguments. Under these circumstances, the jury would have been tempted to conclude that appellant deserved to be punished whether or not he was guilty of the charged offenses.
Without this inflammatory disposition evidence, the jurors might well have had a reasonable doubt that appellant committed the charged offenses. The victim was unavailable at trial and thus, the jury was not able to view and/or assess her credibility on the witness stand. In addition, there were significant discrepancies in her description of the charged incidents. In these circumstances, it is simply impossible to conclude that the trial court’s error was harmless beyond a reasonable doubt. Thus, the judgment must be reversed.
II.
THE INSTRUCTION TO THE JURY WITH CALJIC NO. 2.50.01 THAT IF IT FOUND APPELLANT COMMITTED A PRIOR SEXUAL OFFENSE IT COULD INFER THAT HE WAS LIKELY TO HAVE COMMITTED THE CHARGED OFFENSES INTERFERED WITH THE PRESUMPTION OF INNOCENCE AND APPELLANT’S RIGHT TO HAVE THE JURY MAKE A DETERMINATION BEYOND A REASONABLE DOUBT
A. Introduction
The jury was instructed with CALJIC No. 2.50.01, which provided, in pertinent part:
Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. (Then follows a description of “sexual offense” as defined by Penal Code section 647.6.)
If you find beyond a reasonable doubt 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 type of 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. (C.T. 105; R.T. 264-265; [emphasis added].)
Appellant asks this Court to find that instructing the jury that if it finds appellant committed the prior offense(s) he is likely to have committed the charged offenses, interferes with the presumption of innocence, makes conviction possible without proof beyond a reasonable doubt, and is thus grounds for reversal.
B. The Lack Of A Defense Objection At Trial On This Ground To The Court’s Improper Instruction Telling The Jurors They Could Consider Prior Offense Evidence As Establishing A Criminal Propensity On Appellant’s Part Does Not Bar Appellate Review Of This Instructional Error
The fact that the record does not reflect a defense objection at trial on this precise ground to the challenged instruction does not bar appellate review of this instructional issue. Instructional issues affect the substantial rights of those standing criminally accused and are reviewable on appeal regardless of whether there was an objection at trial. (See, e.g., Pen. Code, § 1259; People v. Wickersham (1982) 32 Cal.3d 307, 331, and fn. 10; People v. Hannon (1977) 19 Cal.3d 588, 597-598; People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10; People v. Roehler (1985) 167 Cal.App.3d 353, 394-395.)
Hence, this Court should reach the merits of this issue on appeal.
C. The Instruction Guiding The Jury In It’s Use Of Evidence Admitted Pursuant To Section 1108 Is Constitutionally Infirm Because It Interferes With The Presumption Of Innocence And Allows The Jury To Infer Guilt And To Make A Finding Based On Such Evidence By A Standard Less Than That Of Reasonable Doubt
Appellant simply asks this Court to examine the language of the instruction, and to decide that it is wrongly states the law and misinforms the jury. The instruction says: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.” (Emphasis added.)
Instead of instructing the jury in a manner consonant with the Legislature’s intention in enacting Evidence Code section 1108 (see Argument I, supra), CALJIC No. 2.50.01, as given in this case, tells the jury that a person who has committed a prior sexual offense is likely (that is, more likely than not) to have committed the charged offense. Under this instruction, if the jury finds that he committed the past offense, it need look no further, it may find that he is likely to have committed this one. This is not a correct statement of the law. This instruction subverts the Fifth Amendment due process requirement that proof of guilt be beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 363-364) by allowing an inference that guilt is likely solely upon a showing that the defendant committed a prior offense.
The prosecution bears the burden of persuading the trier of fact beyond a reasonable doubt of each element necessary to obtain a conviction. (See, e.g., Sullivan v. Louisiana, supra, 508 U.S. at p. 278; In re Winship, supra, 397 U.S. at p. 364.) The Fifth Amendment due process requirement and the Sixth Amendment requirement of a jury verdict are interrelated. A defendant has a right to have a jury, properly instructed, determine if the prosecution has met the burden of proving each element beyond a reasonable doubt. (See, e.g., Sullivan v. Louisiana, supra, 508 U.S. at p. 278.)
In enacting Evidence section 1108 to allow propensity evidence, the Legislature intended that such evidence be used by the jury to make a “rational assessment” as to “the defendant’s disposition to commit such crimes, and for the bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.” (Historical Note, 29B pt. 3, West’s Ann. Evid. Code, § 1108, (1998 pocket supp.) p. 31.) While section 1108 reverses the presumption against the admission of evidence of prior bad acts in sex cases, and allows their admission for all relevant purposes (subject to balancing under Evidence Code section 352), it was never intended to go beyond that to interfere with the presumption of innocence or to allow that guilt to be established by a lesser standard than reasonable doubt. Appellant respectfully submits this Court should find that this instruction, which misstates the use to which such evidence may be put in a manner that undermines the presumption of innocence and the reasonable doubt standard, is constitutionally infirm.
D. The Standard Of Review
The standard of review promulgated by the United States Supreme Court for application where there has been an ambiguous instruction is whether there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” (Boyde v. California (1990) 494 U.S. 370, 380 cited in Estelle v. McGuire (1991) 502 U.S. 62, 72.) If this jury took this instruction at face value and used it in its determination of guilt, appellant’s constitutional rights were surely violated and reversal is therefore required under Boyde and Estelle.
When the jury instruction incorrectly defines the means of ascertaining an element of the offense, the defendant’s conviction of that crime can be affirmed on appeal only if the reviewing court is persuaded beyond a reasonable doubt that the error did not “contribute to” the verdict. (Chapman v. California, supra, 386 U.S. at p. 24; see also, Pope v. Illinois (1987) 481 U.S. 497, 502; People v. Hayes (1990) 52 Cal.3d 577, 628.) The inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered was “surely unattributable” to the error.
E. Application Of The Standard To This Case
To determine whether a verdict was “surely unattributable” to a trial error, the reviewing court should first determine what evidence the jury actually considered in reaching its verdict. Here, the great weight and bulk of the evidence was concerned with appellant’s prior sexual offenses. As set forth in Argument I, supra, the victim was unavailable and the percipient evidence adduced in support of the charged offense was relatively slight.
The reviewing court must then analyze the trial evidence in light of the instructions, presuming that the jury considered relevant evidence when told that it might do so. Here, the jury was instructed that it could consider the bulk of evidence as proof that appellant was likely to have committed the charged offenses.
After making these initial determinations, the reviewing court must weigh the evidence properly considered against any tainted evidence or other improper jury influence resulting from the error. Here, assuming the jury followed instructions, it considered the evidence presented in support of the charged offenses in the jury under a reasonable doubt standard. However, it could import into this consideration all of the evidence of the prior offenses as proof of the charged offenses under a “likely” standard.
The conviction may be upheld only if this weighing process shows that the improper influence was “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403.) Under the facts of this case, it cannot be said that the jury’s instruction that it could make improper use of the propensity evidence was “unimportant” in relation to the evidence adduced in support of the charges.
In this case, the task of assessing harmless error by means of the described analysis is fairly straightforward. The erroneous instruction required the jury to focus upon appellant’s prior conduct as proof in itself of the commission of the charged crimes, rather than as a factor to be considered in making a “rational assessment as to his disposition to commit such crimes,” or for its “bearing on the probability or improbability that the defendant was falsely or mistakenly accused of such an offense.” (See Historical Note, 29B pt. 3, West’s Ann. Evid. Code, § 1108, supra, at p. 31.)
The prejudicial impact of the misinstruction as to the standard of proof to be applied by the jury in making a determination of appellant’s guilt or innocence renders it impossible to say beyond a reasonable doubt that the verdict was “surely unattributable” to the instructional error. Reversal is therefore required.
CONCLUSION
Based on the foregoing reasons, appellant respectfully submits the judgment of conviction and sentence should be reversed. Alternatively, this matter should be remanded for resentencing.
DATED: March ____, 1999 Respectfully Submitted,
SYLVIA KORYN
Attorney for Defendant-Appellant
JOHN DOE
FOOTNOTES:
Footnotes 1: The court did not make true findings on the prior prison term allegations (Pen. Code, § 667.5, subd. (b)).
Footnote 2: Ms. S was deemed unavailable and her preliminary testimony was read into the record.
Footnote 3: The prosecutor indicated she had provided notice to defense counsel approximately one and a half to two weeks prior. (R.T. 62.)
Footnote 4: It should be noted that a similar issue is pending before the California Supreme Court in People v. Ritson (1998) 63 Cal.App.4th 1276, review gr. August 12, 1998 (S071200), People v. Falsetta (1998) 64 Cal.App.4th 291, review gr. August 12, 1998 (S071521), People v. Hoover (1998) 64 Cal.App.4th 1422, review gr. September 23, 1998 (S072374), and People v. Baker (1998) 65 Cal.App.4th 1452, review gr. November 24, 1998 (SO73543) [question pending is whether the admission of evidence of other sexual offenses for purposes of showing propensity to violate due process (Evid. Code, § 1008].
Footnote 5: Clearly, the court erred in admitting evidence of the “peeping tom” loitering (Pen. Code, § 647, subd. (h)) prior as that offense is not an enumerated “sexual offense” within the dictates of Evidence Code section 1108.
