Brief Bank # B-850 (Re: F 10.10c [Proof Necessary To Establish Element Of Fear (PC 26)].)
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Date of Brief: March 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
Appeal from the Judgement of the Superior Court
for the State of California
Santa Clara County
HONORABLE MELINDA STEWART, JUDGE
JEFFREY J. GALE
Acting State public Defender
MICHAEL P. GOLDSTEIN
Deputy State Public Defender
Cal. State Bar No. 60358
221 Main Street, 10th Floor
San Francisco, CA 94105
Attorneys for Appellant
THE COURT’S FAILURE TO DEFINE THE LEVEL OF FORCE REQUIRED TO CONVICT IF FORCE PRODUCES ACQUIESCENCE PERMITTED THE JURY TO BASE ITS VERDICT ON JANE ROE’S SUBJECTIVE STATE, REGARDLESS OF ITS REASONABLENESS OR JOHN DOE’S KNOWLEDGE OF IT.
Instructions defining the most serious offenses effectively told the jury that it must convict if Jane Roe passively acquiesced in sex acts. The court added that such acquiescence had to be the result of fear, force, violence, or the like, but it failed to define force or violence. In particular, the instructions did not require that these elements be such as would either cause a reasonable person to acquiesce against her will or alert the other person to the likelihood of such an impact on her.
Here this meant that appellant’s jury would have been required to convict if it believed all of the following: (a) Jane Roe did not want to have sex; (b) out of passion, not a desire to coerce, John Doe kissed Jane Roe hard, gripped her tightly, and perhaps pressed his mouth to her breast in a way that she could feel his teeth; (c) some combination of Jane Roe’s innate makeup, her history of victimization by her father, her looking up to John Doe as her older brother (see RT 64), and/or a post-oral-surgery feeling of physical or emotional vulnerability, caused Jane Roe’s will to collapse in the face of John Doe’s desires and the physical strength of his holding and kissing; but (d) a reasonable person would not have acquiesced in those circumstances; and, (e) John Doe therefore neither knew nor could reasonably be expected to know—from his own conduct or from Jane Roe’s—that she was not truly consenting.
The instructions unlawfully eliminated mens rea by requiring conviction if a vigorous expression of sexuality intimidates an unusually sensitive person, where the initiator neither knew nor could be expected to know of the other’s state. [Footnote 1]
A. Forcible Sex Offenses Are Committed Only if the Force Used Would Overcome the Will of a Reasonable Person.
To be guilty of rape, one must have wrongful intent; the “morally innocent” are not to be branded rapists. (People v. Mayberry, supra, 15 Cal.3d 143, 155.)
The trial court instructed appellant’s jury that rape, unlawful oral copulation, and unlawful penetration include the element of being accomplished “against the will” of the alleged victim “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” [Footnote 2] (CT 160-66.) The instructions define against the will to mean “without the consent of the alleged victim.” [Footnote 3] (CT 160, 163, 165.) A further instruction defines consent as “positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily . . . .” [Footnote 4] (CT 176.)
The bottom line of the element pertaining to the victim, then, is that positive cooperation motivated by his or her own will is absent. Legal sex would require the other’s positive, willing involvement if criminality did not also include the pivotal element of the use of force, violence, duress, menace, or fear. Without that element, any man or woman whose sexual partner passively acquiesced—rather than “positive[ly] cooperat[ed]”—when he or she preferred to be left alone, might be guilty of rape. (See People v. Gonzalez (1995) 33 C.A.4th 1440, 1443-44 [rejecting due process challenge to new definition of consent because force element eliminates passive-acquiescence situation].)
The force element [Footnote 5] becomes crucial at another point as well. Appellant’s jury was instructed that a “reasonable and good faith belief that there was voluntary consent is a defense,” unless it “is based upon ambiguous conduct by an alleged victim that is the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” [Footnote 6] (CT 177-78.)
In both contexts then—the means of accomplishing the act or gaining the other’s cooperation, and the trigger for partner conduct ambiguous enough to give rise to misinterpretation—the meaning of the force element is critical. In particular, if the jury is permitted to find “force” in acts often constituting sexual foreplay, painful misunderstandings become forcible sex crimes.
The trial court’s rape instruction defined or limited duress, menace, and fear so as to add an objective element to each, as case law and statute require. [Footnote 7] Force and violence were not defined at all, although the California Supreme Court has also stated that rape requires “the kind of force that might reasonably induce fear in the mind of the victim” and that “the complainant’s conduct must be measured against the degree of force manifested . . . .” (People v. Barnes, supra, 42 Cal.3d 284, 304.) The result of the instructions was that the jurors would have had to convict even if they believed that Jane Roe may have acquiesced in sex, if they also believed that she went along because of some undefined level of forcefulness—even a passionate embrace—on John Doe’s part. Conviction would have been the outcome even if they doubted whether the forcefulness was enough for a reasonable passive participant to find it coercive or for a reasonable active party to know that a partner could find it coercive. [Footnote 8] All that the instructions require is that sex be accomplished without “the positive cooperation in an act or attitude[,] as an exercise of free will” by the partner “act[ing] freely,” and that this result be obtained “by means of force.” (CT 176, 160.) In contrast to what the jury was told about menace, duress, or fear (CT 160-61), there was no requirement that it be such force as would affect a reasonable person’s free will. In other words, under the instructions, a vigorous and passionate would-be lover can rape an unusually sensitive and compliant partner without intending to or knowing it, as long as the advances can somehow be characterized as force. Thus in People v. Iniguez, supra, 7 Cal.4th 847, 856, the Court observed that the subjective element of rape by fear is met if a victim is frightened into acquiescence by an unwelcome embrace and kiss. This was not a problem, because rape by fear has an objective element as well. (Id., pp. 856-57.) The jury must be instructed that rape by force or violence does, too, since—from the subjective perspective alone—a strong and unwelcome embrace can amount to the force that will create acquiescence.
Allowing a rape conviction where one neither intends to rape nor knows he his doing so is inconsistent with Mayberry’s requirement of wrongful intent. Moreover, as noted above, other authority states directly that rape requires “the kind of force that might reasonably induce fear in the mind of the victim.” (People v. Barnes, supra, 42 Cal.3d 284, 304 [explaining what is left after abolition of resistance requirement].) Nothing in the instructions in this case, however, directed the jury’s attention to the degree of force.
B. The Error Could Have Affected the Outcome.
Instructional error misdescribing an element of an offense is federal constitutional error. (People v. Hagen (1998) 19 Cal.4th 652, 670.) In this case it is more than possible that the error influenced the outcome. One of the more reasonable ways to make sense of the conflicting testimony was to believe that Jane Roe was not freely cooperating, but that she was cooperating nonetheless, induced in part by John Doe’s coming on to her forcefully but not unreasonably so. Under the instructions this meant guilt, when it should have meant innocence.
The jury had to convict even if it found that the evidence did not exclude, beyond a reasonable doubt, the possibility that Jane Roe actually acquiesced in sex initiated by John Doe; i.e., she let him do what he was going to do, although she did not particularly want him to. (See CT 176.) Thus as the prosecutor explained, “It doesn’t mean she said something or she did something, just she didn’t want him to do it, whether or not she said that.” (RT 1020.) The only further requirement imposed by the instructions was that Jane Roe’s passivity was in part a reaction to John Doe’s being rough with her, in what might have been a transition from wrestling—which was okay—to hard kissing, [Footnote 9] clutching her excitedly, and perhaps nipping her erotically—which he may not have realized was not okay. As the prosecutor explained,
“Force means any force. Force, battery. For example, you spit on someone, that is force. You slap a cafeteria tray out of their hands, that is force. So force means any force.” (RT 1021.)
This was a fair interpretation of the instructions, which singled out menace, duress, and fear as having objective elements, making it clear—erroneously—that force and violence have no such requirements. Thus on the continuum of expressions of sexuality ranging from gentle and sweet to lusty and forceful, the instructions compelled conviction even if the jury believed it possible that John Doe’s behavior was well within the normal range and that Jane Roe’s compliant reaction was based on unusual sensitivities and an internal makeup of which he was unaware. This is so because the acts of intercourse, oral copulation, and digital penetration would have been accomplished without Jane Roe’s positive cooperation, offered freely, uninfluenced by some minimal “force.” (See CT 160, 162-65, 176.)
In theory, the instructions could have been saved by their mistake-of-fact component: the scenario just described involves a reasonable belief in consent. However, the failure to define force and violence undermined the Mayberry instruction as well, since it included the proviso that a mistake-of-fact defense was unavailable even if Jane Roe appeared to be cooperative, if her ambiguous behavior was a product of the same undefined “force.” (See CT 177-78.)
Appellant has already demonstrated how it would have been quite reasonable for the jurors to have synthesized the conflicting evidence before them into a picture like that described two paragraphs above. (See pp. – , above.) In brief, Jane Roe must have seemed sincere to the jury, but much of her testimony did not add up. John Doe, too, must have seemed sincere, or the jury could have decided the case fairly quickly and without rereading the principals’ testimony. This left three broad possibilities: Jane Roe was lying nonetheless; John Doe was lying nonetheless; or the truth was basically in between their stories. In the latter case, their narratives were each to a greater or lesser degree good faith, but distorted, attempts to report their experience as they remembered or reconstructed it. Concretely, that scenario would have meant seeing Jane Roe as unwilling, but so sensitive to the entire situation as to be unable to withhold compliance, even though John Doe was not inordinately aggressive. Properly instructed, the jurors would not have had to determine whether that view of what happened was the truth, but only whether they could exclude it as a possibility, beyond a reasonable doubt. But they never had to consider the matter at all.
With federal constitutional error, respondent has the burden of showing harmlessness. (Chapman v. California, supra, 386 U.S. 18, 24.) As noted previously, the issue is not whether a hypothetical properly instructed jury would have convicted, but whether the case was in a posture such that appellant’s jury was somehow actually uninfluenced by the error. (Sullivan v. Louisiana, supra, 508 U.S. 275, 279-81; Chapman v. California, supra, 386 U.S. 18, 23-24.) Here nothing in the evidence, instructions, or verdicts makes it the case that the jury necessarily excluded the scenario of a girl whose will collapsed in the face of a passionate approach, under circumstances where the initiator could not be expected to know that, because the way he held her or kissed her amounted to the “any force” (RT 1021 [prosecutor’s argument]) which the instructions permitted. The matter must, therefore, be retried to a jury instructed on the objective aspect of the requisite levels of force or violence.
There was no objection to the instructions as given. However, the court had a sua sponte duty to instruct correctly on the elements of the offense. (People v. Iverson (1972) 26 Cal.App.3d 598, 604-05, disapproved on other grounds in In re Early (1975) 14 Cal.3d 122, 130, fn. 11.)
See also RT 983-86. The instructions are adaptations of CALJIC Nos. 10.00, 10.10, and 10.30.
See also RT 983, 985-86. This is part of the same three CALJIC instructions cited in the previous footnote.
See also RT 990. The instruction, CALJIC No. 1.23.1, is an attempt to implement section 261.6, which more meaningfully reads, “positive cooperation in act or attitude,” not “positive cooperation in an act or attitude.”
Appellant will sometimes use this expression as shorthand for “force, violence, duress, menace, or fear of bodily injury.”
See also RT 991. This is CALJIC No. 10.65, as adapted.
“‘Menace’ means any threat, declaration, or act which shows an intention to inflict an injury upon another. [See § 261, subd. (c).]
“‘Duress’ means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which she would not otherwise have performed, or acquiesce in an act to which she would otherwise not have submitted. The total circumstances, including the age of the alleged victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of the duress. [See People v. Pitmon (1985) 170 Cal.App.3d 38, 50; § 261, subd. (b).]
“The fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances, or if unreasonable, the perpetrator must have known of the victim’s fear and taken advantage of it. [See People v. Iniguez (1994) 7 Cal.4th 847, 857.]” (CT 160-61; RT 983-84 [italics added]. See CALJIC 10.00)
Appellant is not minimizing the alleged conduct which Jane Roe described, which would have been a forcible rape by any standard. As will be shown below, he is referring to another of the scenarios reasonably inferable from the totality of the evidence.
Cf. RT 116, where Jane Roe testifies that John Doe bit her on the stomach, with RT 208, where she says that he did not bite her, but he kissed her there “really roughly.”