Brief Bank # B-855 (Re: F 3.18 n3 [Whether Failure To Give Accomplice Instruction Constitutes Structural Error Under The Federal Constitution].)
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Date of Brief: June 2000
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, )
) NO. S000000
Plaintiff and Respondent, ) (COURT OF APPEAL
) NO. 000000)
) (SANTA CLARA CO.
vs. ) SUPERIOR COURT
) NO. 000000)
JOHN DOE, )
Defendant and Appellant. )
The Honorable James C. Emerson, Judge Presiding
APPELLANT’S ANSWER BRIEF ON THE MERITS
SIXTH DISTRICT APPELLATE PROGRAM
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
Attorneys for Appellant
STATEMENT OF THE CASE
On or about September 2, 1997, appellant was charged in an information filed in the Superior Court for Santa Clara County. (CT 107-124.) The information alleged three counts of forcible lewd and lascivious conduct with a minor (Penal Code section 288, subd. (b)); 30 counts of incest (Penal Code section 285) and a misdemeanor count for the failure to register as a sex offender (Penal Code section 290). (CT 109-123.) The information further alleged that appellant was eligible for sentencing under Penal Code section 1170.12 since he had suffered a prior conviction for the serious felony of committing a lewd and lascivious act with a minor. (CT 123.)
On December 11, 1997, appellant filed a motion to dismiss counts 1-3 on ex post facto grounds. (CT 138-148.) On January 7, 1998, the motion was granted. (CT 167.) The validity of this ruling is pending before this court in People v. Doe, S078845.
On January 28, 1998, appellant pled guilty to the misdemeanor charge of failing to register (Penal Code section 290). (CT 175.) The plea was entered without the benefit of any sentencing promises. (RT 14-15.)
On January 29, 1998, appellant was charged in a first amended information. (CT 178-196.) The information alleged 31 counts of incest (Penal Code section 285). (CT 180-195.) Each count alleged a six day period beginning with July 1, 1995 and ending with February 2, 1996. (CT 180-195.) The information further alleged that appellant was eligible for sentencing under Penal Code section 1170.12 since he had suffered a prior conviction for the serious felony of committing a lewd and lascivious act with a minor. (CT 195.)
On January 27, 1998, a jury trial commenced. (CT 173.) On February 5, 1998, the court granted the People’s motion to dismiss counts 1-3. (CT 255.) On February 6, 1998, the jury returned guilty verdicts on counts 11-20. (CT 299-300.) Appellant was acquitted on count 31. (CT 299-300.) The jury deadlocked on the remaining counts. (CT 299-300.)
On February 9, 1998, a court trial was held on the prior conviction alleged pursuant to Penal Code section 1170.12. (CT 318.) The prior conviction was found true. (CT 318.) At the hearing, the parties agreed that appellant would be sentenced to 18 years in prison in exchange for dismissal of the counts on which the jury had deadlocked. (CT 318.)
On April 6, 1998, appellant was sentenced to 18 years in prison. (CT 357-358.) A concurrent one year jail term was imposed for the misdemeanor violation of Penal Code section 290. (CT 357.)
On December 23, 1999, the Court of Appeal affirmed the judgment.
STATEMENT OF FACTS
Ms. T is appellant’s daughter. (RT 52.) She was born on June 4, 1979. (RT 52.) Until July 1995, Ms. T was raised entirely by her mother and had no contact with appellant. (RT 53-54, 56.) At the end of July 1995, Ms. T moved into appellant’s apartment along with her daughter, J., who was three months old. (RT 54-55, 66, 87, 155.) Appellant was residing with his wife, Mrs. Doe, and his son, E. (RT 55.)
The apartment was small and had only two bedrooms. (RT 73.) Appellant and Mrs. Doe had one bedroom and E. slept in the other. (RT 56.) Except when E. was away, Ms. T and J. slept in the living room. (RT 56, 154.)
At trial, Ms. T testified that she orally copulated appellant in July at his request. (RT 57-58.) Although she was hesitant to perform the act, Ms. T conceded that appellant did not force her. (RT 58-59.) Within two days, Ms. T and appellant began to have sexual intercourse. (RT 60.) By Ms. T’s trial account, the couple had sexual intercourse “[e]very day or every other day for, like, a lot of months.” (RT 61.) The relationship ceased when Ms. T moved out in February 1996. (RT 61.)
According to Ms. T’s trial testimony, the sex acts usually occurred at night while Mrs. Doe was in her bedroom. (RT 60, 74-75.) While the acts sometimes occurred in the morning after Mrs. Doe went to work, the “majority” occurred while she was present in the apartment. (RT 74-75.)
Notwithstanding her trial testimony, Ms. T gave other conflicting accounts. At the preliminary hearing, Ms. T testified that she did not have sex with appellant until three months after she moved in. (RT 70-72.) However, in a prior statement to the police, Ms. T indicated that sexual contact had started a month after her arrival. (RT 87.)
In a similar vein, Ms. T’s preliminary hearing account of the first sexual episode was much different from her trial version. At the preliminary hearing, Ms. T testified that the first encounter consisted of appellant’s act of touching her breasts. (RT 77.) This contrasted with the trial version wherein she orally copulated appellant. (RT 57-58.)
On June 13, 1996, Ms. T gave birth to Baby A. (RT 62, 116.) A DNA test established a 99.99 percent probability that appellant was the child’s father. (RT 116-117.)
In June 1997, Ms. T revealed to her half-sister, Ms. M, that she had engaged in sexual intercourse with appellant. (RT 63, 125.) According to Ms. M, Ms. T told her that appellant “forced her to have sexual intercourse.” (RT 125.) At Ms. M’s suggestion, Ms. T contacted the police. (RT 127.)
On June 18, 1997, Ms. T made a phone call to appellant which was taped by the police. (RT 38-39.) During the conversation, Ms. T asked appellant why he had sex with her and he responded “[i]t was you.” (CT 209.) In this regard, appellant indicated that Ms. T “[k]ept looking at [his] balls.” (CT 209.) Appellant also asserted that “[e]very time you got an urge you came to me.” (CT 212.)
On June 24, 1997, appellant was interviewed by Detective Paul Francois. (RT 42.) Detective Francois encouraged appellant to “do something” for himself and “rectify a situation” which would allow Francois to “tell the DA why this was going on.” (CT 232.) Appellant told Detective Francois that Ms. T had initiated sex with him by touching his groin. (CT 236.) Appellant admitted having sex with Ms. T “four or five times” over a “few months.” (CT 237.) However, appellant also said that there was a “[g]ood possibility” that intercourse occurred more than five times. (CT 242.) Appellant indicated that intercourse occurred “[p]robably once a week.” (CT 242.)
Mrs. Doe strongly impeached Ms. T’s testimony. Mrs. Doe testified that she is a light sleeper. (RT 155.) However, she never saw nor heard appellant having sex with Ms. T. (RT 155-156.)
The defense also presented testimony indicating that appellant could not have had sex with Ms. T in the morning. In this regard, appellant’s colleague, Mr. P, testified that appellant started work at 7 a.m. (RT 141.) However, Mrs. Doe did not start work until 8 or 9 a.m. (RT 152.) Thus, there was no opportunity for appellant and Ms. T to have sex in the morning.
Mrs. Doe also testified that appellant began staying out late at night in October 1995. (RT 156-157.) On some of these occasions, Mrs. Doe would fall asleep on the couch waiting for him. (RT 162.) Eventually, when she caught appellant with another woman, Mrs. Doe kicked him out. (RT 162.) Appellant departed in February 1996. (RT 163.)
Ms. R was appellant’s new love interest. Ms. R testified that she met appellant in November 1995 and they began having sex “towards the end of November beginning of December.” (RT 186, 189.) Appellant moved into Ms. R’s home in early February 1996. (RT 188.)
Appellant testified in his own defense. Contrary to his statement to Detective Francois, appellant testified that he engaged in only one act of intercourse with Ms. T. (RT 175.) This act occurred in the “first two weeks of October.” (RT 176.) In explaining the inconsistent statement which he had given to Detective Francois, appellant admitted that he was on drugs at the time of the interview. (RT 177-178.)
Unlike Ms. T’s testimony, appellant asserted that she had only lived with him for a short time. In this regard, appellant indicated that Ms. T had arrived no earlier than August 1995 and left by mid-November 1995. (RT 170, 177.) As for himself, appellant testified that he moved in with Ms. R on January 2 or 3, 1996. (RT 175.)
Appellant commenced a sexual relationship with Ms. R on November 14, 1995. (RT 172-173.) Thereafter, he had sex with Ms. R three or four times per week. (RT 173-174.)
Pursuant to Penal Code section 1111, the Legislature has held that accomplice testimony is insufficient to sustain a conviction absent corroboration of the testimony. Previously, this court has said that the testimony of an adult accomplice in an incest case is subject to the corroboration requirement. (People v. Wayne (1953) 41 Cal.2d 814, 826, overruled on other grounds in People v. Snyder (1958) 50 Cal.2d 190, 197.)
In a thorough analysis, the Court of Appeal demonstrated that a minor is necessarily an accomplice in an incest case. (Opinion, pp. 14-23.) Notwithstanding the People’s protest to the contrary, appellant will categorically establish that the Court of Appeal’s analysis should be affirmed.
In so doing, appellant will also demonstrate that the trial court’s failure to instruct on the corroboration requirement constitutes structural error under the federal Constitution. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282.) In this regard, the omission of the instruction impermissibly diluted the beyond a reasonable doubt standard since the jury was misled into believing that it could return a conviction absent corroboration. Since the convictions in this case were returned on the basis of the jury’s evaluation of a lower quantum of evidence than is required by the federal Constitution, per se reversal is required.
I. UNDER THE PLAIN MEANING OF PENAL CODE SECTION 285, ANY PERSON WHO COMMITS INCEST IS AN ACCOMPLICE IN THE ACT.
At the outset, it is essential to note that the People have implicitly conceded two points: (1) the plain language of Penal Code section 285 allows prosecution of any person for incest; and (2) the contrary case law is indefensible since it is based on the false thesis that a minor cannot lawfully consent to a sex act. Although these points have been conceded, appellant will briefly discuss them below in the interest of clarity.
Since they cannot rely on either the language of section 285 or the existing case law, the People backtrack to two primary arguments: (1) the Legislature has implicitly ratified the view that a minor is not an accomplice in an act of incest with an adult; and (2) various policy reasons require that a minor not be treated as an accomplice in this situation. With all due respect for the People, these contentions are meritless for a variety of reasons.
First, as the People have failed to mention, virtually all of their arguments have been waived. This is so since they were not advanced in the Court of Appeal.
Second, the People’s legislative ratification argument has no basis. As will be discussed below, the People have failed to cite a shred of legislative history concerning section 285 which supports their position. Thus, it simply cannot be assumed that the Legislature has silently countermanded the plain meaning of section 285.
Third, the People’s policy arguments are not properly before this court since they are matters for legislative concern. Moreover, the arguments make little sense in any event.
A. The People Have Waived The Vast Majority Of The Arguments That They Now Advance.
In the Court of Appeal, the People presented essentially three arguments: (1) controlling case law holds that a minor may not be an accomplice to an act of incest committed with an adult; (2) accomplice instructions would be “absurd” in an incest case since a daughter would not be prosecuted for the crime; and (3) any error was harmless. (RB 22-25.) In their present brief, the People renew the second and third arguments. Thus, they are properly before this court.
However, the remainder of the People’s present arguments were not made in the Court of Appeal. Specifically, the following arguments were not advanced below: (1) the Legislature has implicitly ratified the view that a minor cannot be an accomplice to an act of incest with an adult; (2) accomplice instructions in an incest case would be circular and illogical; and (3) guilty defendants will go free if accomplice instructions are required. (PBM 15-28, 32-34.)
Without spilling needless ink, it is manifest that the foregoing arguments have been waived. Pursuant to California Rules of Court, rule 29(b)(1), this court does not consider “any issue that could have been but was not timely raised in the briefs filed in the Court of Appeal.” Here, the People had every opportunity to advance their belatedly raised arguments below. Having failed to do so, they should be prohibited from raising these points at this last date. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 381; party “abandoned” equal protection “contentions by failing to raise them in its arguments before the Court of Appeal. [Citation.]”)
B. The Plain Meaning of Section 285 Criminalizes An Act of Incest Committed By A Minor With An Adult.
Under California law, it is a court’s duty to follow the plain meaning of a statute. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1245.) Here, the clear language of section 285 criminalizes an act of incest performed by a minor with an adult.
Incest is statutorily defined as a crime with two indistinguishable participants. “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, . . . who commit fornication or adultery with each other, are punishable by imprisonment in the state prison.” (Section 285, emphasis added.)
As is readily apparent, the statute clearly criminalizes the conduct of both participants in an act of incest. Thus, the plain meaning of section 285 establishes that a minor who commits incest is an accomplice. (People v. Wayne, supra, 41 Cal.2d 814, 826; “although a person cannot commit incest or sodomy with himself, a witness who has participated in these crimes voluntarily and with knowledge of the wrongfulness of his act is an accomplice whose testimony must be corroborated. [Citations.]”)
Importantly, section 285 must be distinguished from sex statutes which expressly preclude prosecution of minors. For example, Penal Code section 286, subd. (b)(2) renders it unlawful for an adult to sodomize a minor under 16. Obviously, this statute precludes accomplice liability on the part of the minor. (People v. Mena (1988) 206 Cal.App.3d 420, 425; “where a penal statute expressly outlaws conduct against minors, a minor who is a victim of the proscribed conduct is not an accomplice . . . .”)
In sharp contrast, section 285 does not purport to protect minors. Thus, a minor who commits incest with an adult is an accomplice in the crime.
C. Existing Case Law Is In Error Insofar As It Holds That A Minor Is Not An Accomplice In An Act Of Incest Committed With An Adult.
As the People note, there is a long line of authority which holds that a minor cannot be an accomplice in an act of incest. (See People v. Hurd (1970) 5 Cal.App.3d 865, 875, fn. 5; People v. Batres (1969) 269 Cal.App.2d 900, 903-904; and cases cited therein.) This rule is premised on the notion that a minor is incapable of lawfully consenting to a sex act. (People v. Stoll (1927) 84 Cal.App. 99, 102; “[o]f course, the incestuous act referred to is an act of sexual intercourse. The age at which an unmarried female is able to give legal assent to such an act is eighteen years. [Citation.]”)
In its opinion in this case, the Court of Appeal cogently demonstrated that Stoll and its progeny were based on a false premise. (Opinion, pp. 19-20.) In this regard, there is absolutely no statutory provision in California which holds that a minor may not consent to a sex act with an adult. Indeed, the People have expressly conceded this reality: “It is true that a minor over 14 (or even under 14) has the capacity to consent to a sexual act with an adult.” (PBM 16.)
Given this concession, it is manifest that the existing case law must be overruled. As this court has observed, the Legislature has stated the rule that “minor females are fully capable of freely and voluntarily consenting to sexual relations.” (Michael M. v. Superior Court (1979) 25 Cal.3d 608, 614.) Thus, Stoll and later cases were simply in error in concluding to the contrary. (People v. McRae (1947) 31 Cal.2d 184, 185-186; minor was an accomplice to an act of consensual sodomy.)
In taking this position, appellant hastens to add that the Legislature has full authority to criminalize a consensual act performed by an adult and a minor. However, in this situation, the act nonetheless remains consensual even though the adult may not rely on the defense of consent. (Michael M. v. Superior Court, supra, 25 Cal.3d 608, 614.)
In short, there is no doubt that a minor may consent to an act of sexual intercourse with his or her parent. Such being the case, there is simply no plausible basis for holding that a minor may not be an accomplice in an act of incest. Thus, the existing case law to the contrary must be overruled.
D. Contrary To The People’s Claim, The Legislature Has Not Ratified The Case Law Rule That A Minor Cannot Be An Accomplice To An Act Of Incest.
The People advance only a single theory in support of their claim that a minor cannot be an accomplice in an act of incest. In this regard, the People claim that the Legislature has implicitly ratified the case law which set forth this rule. This is allegedly so since the Legislature enacted statutes in the mid-1970’s which “effectively exempted from criminal liability minors who consent to sodomy or oral copulation with adults.” (PBM 22, fn. omitted.) In the same vein, the People point to other more recent statutes which define a minor as a victim of incest. (PBM 24.) Finally, the People assert that a minor cannot be held liable for incest since such liability would result in the duty to register as a sex offender. (PBM 25.)
As will be demonstrated below, the People’s theory fails for three separate reasons: (1) the ratification doctrine does not apply where, as here, there is absolutely no showing that the Legislature intended to modify the plain meaning of Section 285; (2) the legislative amendments of the mid-1970’s are not inconsistent with the plain meaning of section 285; and (3) a minor can be both a victim and a perpetrator of incest. Each of these points will be separately addressed below.
The doctrine of legislative ratification holds that the Legislature will be deemed to have ratified a judicial interpretation of a statute when it amends the statute without altering the judicial interpretation. (People v. Morante (1999) 20 Cal.4th 403, 429.) However, the doctrine will not be applied when the Legislature has merely been silent with respect to judicial decisions. (Ibid.) Indeed, this court has recently issued a string of decisions in which it has refused to apply the doctrine. (Id., at pp. 429-430; People v. King (1993) 5 Cal.4th 59, 75-77; People v. Escobar (1992) 3 Cal.4th 740, 750-751.)
In the case at bar, the predicate for application of the doctrine is absent. As the People candidly admit, the elements of section 285 have remained unchanged since 1872. (PBM 17.) The only two amendments to the statute have related to punishment. In 1921, the statute was amended to increase the possible punishment. (See People v. Baker (1968) 69 Cal.2d 44, 46.) In 1976, the punishment range was decreased as part of the omnibus scheme which transformed the Penal Code from an indeterminate to a determinate sentencing scheme. (See People v. Wright (1982) 30 Cal.3d 705, 709.)
As was noted above, the legislative ratification doctrine applies only when “‘the Legislature amends a statute . . . .’” (Morante, supra, 20 Cal.4th at p. 429.) Here, there was no true amendment of section 285. Thus, the doctrine is quite simply inapplicable. Indeed, this court’s authority demands this result.
In People v. Morante, supra, 20 Cal.4th 403, this court considered Penal Code section 778a which governs liability for a crime commenced in California and completed in another jurisdiction. In 1953, this court issued People v. Buffum (1953) 40 Cal.2d 709 which held that a defendant could not be found liable for conspiracy if the object of the conspiracy was committed outside the state. After 1953, the Legislature added a subdivision to section 778a. However, the amendment did not affect the portion of the statute which had been construed in Buffum. As a result, this court held that the legislative ratification doctrine did not apply since the Legislature’s inaction could not be construed as an implicit endorsement of the holding in Buffum. (Id., at pp. 429-430.)
People v. Escobar, supra, 3 Cal.4th 740 is to the same effect. There, this court considered the fourteen year old decision in People v. Caudillo (1978) 21 Cal.3d 562 which had construed the meaning of the phrase “great bodily injury” as it is used in Penal Code section 12022.7. Following Caudillo, the Legislature twice amended section 12022.7 without changing the meaning of “great bodily injury.” On this set of facts, this court held that the Legislature had not ratified the Caudillo holding since “[n]either of the legislative amendments to section 12022.7 affected or reenacted the ‘great bodily injury’ portion of the statute.” (Id., at p. 751.)
In light of Morante and Escobar, little more need be said. The Legislature has quite simply not made a significant amendment to section 285. Thus, consistent with Morante and Escobar, this court cannot find an express or implied ratification of the case law which has construed section 285.
Notwithstanding this reality, the People press forward and claim that an implied ratification can be found since the Legislature amended the sodomy and oral copulation statutes in 1975 so as to preclude a minor from being deemed an accomplice of an adult. (PBM 22-24.) While these amendments certainly evince a legislative intent regarding those offenses, the People’s contention is nonetheless faulty.
As the People overlook, the Legislature has broad discretion in determining the punishments for crimes within a class of offenses. (People v. Mills (1978) 81 Cal.App.3d 171, 176-177.) Thus, the Legislature is perfectly free to treat incest differently from oral copulation and sodomy. Indeed, there is a rational basis for disparate treatment. This is so in two respects.
First, incest involves solely vaginal intercourse. (People v. Stratton (1904) 141 Cal. 604, 606.) Since this act is different in kind from both oral copulation and sodomy, the Legislature has ample authority to view it as an offense for which a minor should be punished.
Second, incest is a unique crime in that it criminalizes conduct which would be lawful were the parties not related. Thus, since the crime exists for primarily moral reasons, the Legislature is certainly within its province in allowing punishment for a minor who acts outside the permissible mores of our society. (Mills, supra, 81 Cal.App.3d 171, 181; the Legislature may constitutionally subject only some sex offenders to registration requirements since “[t]he fact all persons who in any way touch upon a violation of sexual mores or behavior are not included would indicate inferentially a [valid] legislative distinction is drawn.”)
In short, the People are quite simply wrong when they contend that the amendment of the sodomy and oral copulation statutes has anything to say about the incest statute. Insofar as the Legislature did not simultaneously amend the incest statute, it must be presumed that the Legislature did not intend to treat the offenses identically. (Cumero v. Public Employment Relations Board (1989) 49 Cal.3d 575, 596; “‘”[t]he failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other aspects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” [Citations.]’”)
As their next point, the People note that the Legislature has determined that a minor should be deemed a “victim” when he or she has engaged in incest. (See Penal Code section 11165.1, subd. (a).) Given this statute, the People leap to the conclusion that “the Legislature tacitly recognized that any minor who has sex with her father is a victim of the crime, not an accomplice to it.” (PBM 24.) This analysis is flawed.
Under California law, a minor can be both a victim and a perpetrator of the same sex crime. For example, Penal Code section 261.5, subd. (b) criminalizes vaginal intercourse performed by two consenting minors. Under the statute, both minors are subject to prosecution even though both are also victims. (In re T.A.J. (1998) 62 Cal.App.4th 1350, 1364.)
Given this reality, section 11165.1 is of little significance here. Obviously, a minor can be the victim of an act of incest. However, it is simultaneously true, as in the case of consensual intercourse between minors, that the minor can be prosecuted in an appropriate case. Thus, section 11165.1 does not establish any legislative intent to preclude accomplice liability for a minor’s participation in an act of incest.
Indeed, a hypothetical demonstrates this point. Assume that a precocious and sexually experienced seventeen year old minor has sex with her thirty year old developmentally disabled brother. On these facts, is the seventeen year old a victim? Obviously, the answer is no. Thus, section 11165.1 cannot be employed to defeat a minor’s liability for an act of incest.
Finally, the People observe that a minor who is convicted of incest will be required to register as a sex offender. (PBM 25.) In light of the statutes which otherwise treat the minor as a victim, the People conclude “it is inconceivable that the Legislature could at the same time have intended to subject that person to the lifetime stigma of yearly registration as a sex offender.” (PBM 25.) Once again, our hypothetical belies the People’s argument.
Without doubt, a seventeen year old minor who has sex with her developmentally disabled brother is worthy of punishment. On these facts, is it unfair to require the minor to register as a sex offender? One would presume that even the People would favor registration under these circumstances.
In short, the controlling point is that the People have failed to cite any express legislative history which establishes that a minor cannot be deemed an accomplice under section 285. As was discussed above, the plain language of section 285 clearly includes minors within its ambit. (See pp. 11-12, supra.) Thus, since the Legislature has never acted to countermand the plain meaning of the statute, the People’s argument must be rejected.
E. The People’s Various Policy Arguments Are Meritless And Should Be Directed To The Legislature.
The People posit a number of policy arguments which purport to establish that it would be “impractical and destructive” to hold that a minor is an accomplice in an act of incest. (PBM 26-34.) Specifically, the People contend that: (1) accomplice instructions in an incest case would be circular and illogical; (2) accomplice instructions are not required since a daughter who has sex with her father is a presumptively reliable witness; and (3) accomplice instructions will allow guilty defendants to go free. (PBM 26-34.) Each of these arguments will be swiftly rebutted below.
As a threshold point, appellant is compelled to state the obvious. The Legislature enacted the accomplice rule in 1872. (Penal Code section 1111.) Under the plain meaning of section 285, a minor is an accomplice to an act of incest performed with an adult. This is so since the minor “is liable to prosecution for the identical offense charged against the defendant . . . .” (Section 1111.)
Given these well defined principles, this court has no authority to ignore the Legislature’s will. Rather, this court is bound by the Legislature’s stated policy. (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446; see also Williams v. MacFrugal’s Bargains-Close-Out’s, Inc. (1998) 67 Cal.App.4th 479, 484; “[i]t is not within the legitimate power of an appellate court to rewrite [a statute]. [Citation.]”) Thus, the People should direct their policy arguments to the Legislature, not this court. Nonetheless, in the interest of thoroughness, the People’s various policy arguments will be briefly addressed.
In an argument which is very difficult to follow, the People proclaim that accomplice instructions would cause the jury to engage in “circular and illogical” reasoning. (PBM 26-28.) This is purportedly so since the jury must first decide whether the minor is an accomplice before it can decide whether it believes him or her. (PBM 26.) However, in order to find that the minor is an accomplice, the jury must first believe him or her. (PBM 26.) The problem with this brain bending argument is threefold.
First, a rational juror does not reason in the manner suggested by the People. Rather, a clear thinking juror will first assess the minor’s credibility in light of all of the evidence. Once having reached a conclusion on the facts (i.e. whether the minor is credible), the juror will look to the relevant legal principles. Upon seeing that the minor’s testimony must be viewed with “caution” (CALJIC No. 3.18 (1999 rev.)), the juror will reexamine his conclusion that the witness is credible in light of the legal standard.
Thus, contrary to the People’s view, a juror will not engage in “circular” reasoning. Rather, the juror will simply engage in the straightforward process of determining whether the minor is credible even though his or her testimony is to be viewed with caution.
Second, the People’s argument quite simply has no application to the most important aspect of the accomplice rule. Under section 1111, the jury must find “corroboration” of the minor’s testimony in order to return a conviction. There is nothing “circular” or “illogical” about the reasoning process required by the statute.
For example, in the case at bar, the prosecutor sought to corroborate Ms. T’s testimony by showing that: (1) she became pregnant by appellant; and (2) appellant made certain statements which tended to show that he had performed sex acts with Mr. Tobias. Obviously, had accomplice instructions been given, the jurors would have carefully considered this evidence and made a factual determination as to whether the evidence was sufficient to corroborate Ms. T’s testimony. Since this reasoning process occurs in every case involving accomplice testimony, it is manifest that the use of accomplice instructions would not confuse a jury in an incest case.
Third, the People’s argument ignores a fundamental point. In an incest prosecution involving only adults, accomplice instructions are required. (People v. Wayne, supra, 41 Cal.2d 814, 826.) Under the People’s argument, the jury would be forced to engage in “circular” and “illogical” reasoning in such a case. However, the People do not make any claim that accomplice instructions should not be given in an adult incest case. Thus, if a jury is capable of properly applying accomplice instructions in adult incest cases, it follows that a jury can do the same in a case involving a minor.
As their next argument, the People assert that accomplice instructions are unwarranted in an incest case involving a minor since a minor is a presumptively reliable witness. (PBM 28-32.) Thus, in the People’s view, a minor who has had consensual sex is not untrustworthy like other accomplices. (PBM 28-32.) This contention is meritless.
As the foundation for their argument, the People make the bold statement that a minor has no motive to testify falsely in order to secure leniency because it is doubtful that “any prosecutor today would charge a minor with incest because she had consensual sex with an adult.” (PBM 29.) There are three obvious problems with this position.
First, it is highly unlikely that a minor will believe that he or she is not facing criminal liability. As even the People must concede, California is bent on prosecuting as many juveniles as possible. The recent passage of Proposition 21 proves this conclusion. Thus, there is no reason to conclude that a minor would not be fearful of prosecution for breaking one of the primary taboos of our society.
Second, there is nothing to stop a prosecutor from threatening to charge a minor in order to secure his or her cooperation in an incest case. Given such a threat, the minor is clearly a suspect witness whose testimony should be subjected to the accomplice rules.
Third, who is to say that a prosecutor would not charge a minor in an incest case? Insofar as criminal justice policies are constantly in flux, it is naive to assume that minors will not be regularly prosecuted for incest in the near future.
In arguing that the testimony of minors should not be subject to accomplice instructions, the People offer the interesting view that minors of bad character (i.e. those who commit incest) should be deemed credible when they admit their guilt, but not when they proclaim their innocence. (PBM 31.) This claim cannot be taken seriously.
Accomplice testimony must be corroborated for the simple reason that criminals are not credible people. A minor who commits incest is liable for his or her criminal activity. Thus, since minors are as capable of perpetrating sex crimes as are adults, a minor’s testimony must be made subject to the accomplice rule.
As their final argument, the People contend that accomplice instructions should not be required since they will cause guilty defendants to go free. (PBM 32-34.) This contention requires little rebuttal.
In enacting Penal Code section 1111, the Legislature knew full well that the corroboration requirement would lead to acquittals. However, the Legislature still instituted the rule. If the People are disturbed by this requirement, they should lobby the Legislature. It is simply not within this court’s province to reach a contrary policy judgment. (County of Santa Clara v. Perry, supra, 18 Cal.4th 435, 446.)
II. THE OMISSION TO GIVE ACCOMPLICE INSTRUCTIONS CONSTITUTES STRUCTURAL ERROR UNDER THE FEDERAL CONSTITUTION.
At the outset, appellant is compelled to make a procedural objection. In his petition for review, appellant clearly set forth his theory that the omission of accomplice instructions constitutes structural error under the federal Constitution. (Appellant’s Petition for Review, pp. 1-2, 5-6, 20.) In granting review on the petitions of both parties, this court directed briefing on “whether the error was reversible per se or prejudicial under harmless error analysis.” (Supreme Court Order of March 29, 2000.) The People were directed to file the opening brief. (Ibid.)
For reasons which are unexplained, the People have ignored this court’s order and have failed to brief the question of whether the error is reversible per se under the federal Constitution. Instead, the People have submitted a meager one and a half page analysis which fails to discuss the federal question. (PBM 35-36.)
Given these circumstances, appellant is placed at a distinct disadvantage since he will have no opportunity to respond to whatever points are advanced in the People’s reply brief. As a result, appellant reserves the right to seek a remedy. Such a remedy might consist of a motion to strike the People’s reply brief or a request for leave to file a supplemental appellant’s brief. (See Kahn v. Wilson (1898) 120 Cal. 643, 644; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; new point may not be raised for the first time in a reply brief.)
At present, the California rule is that the failure to give accomplice instructions is mere state law error which implicates only the standard of review found in People v. Watson (1956) 46 Cal.2d 818. (People v. Gordon (1973) 10 Cal.3d 460, 470.) As will be demonstrated below, this court’s precedent is in error under the approach required by the United States Supreme Court.
As has been discussed above, Penal Code section 1111 provides that the testimony of an accomplice must be corroborated. Consistent with section 1111, CALJIC No. 3.11 advises the jury that a defendant may not be found guilty unless accomplice “testimony is corroborated by other evidence which tends to connect [the] defendant with the commission of the offense.” (No. 3.11 (1999 rev.).) Here, the trial court failed to give No. 3.11.
In addition, the trial court affirmatively instructed the jury that Ms. T’s testimony did not require corroboration. Specifically, the trial court instructed the jury:
“It is not essential to a conviction of the charge of incest that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence.” (RT 251.)
As is readily apparent, the omission of No. 3.11 and the contrary instruction quoted above caused the jury to believe that a conviction could be returned based solely on Ms. T’s testimony. Given this state of affairs, error appears under the federal Constitution.
In this regard, the Supreme Court has held that the due process clause of the federal Constitution is violated when the jury is given an instruction which improperly diminishes the standard of proof beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281-282; Cool v. United States (1972) 409 U.S. 100, 104.) Here, the trial court’s instructions clearly lessened the appropriate standard of proof.
Pursuant to section 1111, the instant jury was required to find corroboration of Ms. T’s testimony in order to convict appellant. However, the jury was misled into believing that it could rely solely on Ms. T’ testimony. Insofar as the jury was therefore allowed to rely on less evidence than was necessary, the standard of proof beyond a reasonable doubt was unconstitutionally diluted.
Cool v. United States, supra, 409 U.S. 100 establishes this conclusion. In Cool, the defendant was charged with the possession of counterfeit bills. An accomplice, Robert Voyles, testified that he alone was in possession of the bills. With respect to this testimony, the trial judge instructed the jury that it could be credited only if it was believed to be true beyond a reasonable doubt. In finding a due process violation, the Supreme Court reasoned:
“Moreover, the instruction also has the effect of substantially reducing the Government’s burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles’ testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the government to carry its burden. Indeed, where, as here, the defendant’s case rests almost entirely on accomplice testimony, the effect of the judge’s instructions is to require the defendant to establish his innocence beyond a reasonable doubt.” (Cool, supra, 409 U.S. at p. 104, first emphasis added, second emphasis in original.)
Here, a similar situation is presented. In light of her status as an accomplice, Ms. T’ word had to be corroborated in order for proof beyond a reasonable doubt to be found. However, the jury was never told that it had to find corroboration. Thus, as was the case in Cool, “the trial judge reduced the level of proof necessary for the Government to carry its burden.” (Cool, supra, 409 U.S. at p. 104.)
United States v. Gray (5th Cir. 1980) 626 F.2d 494 provides another example of the same principle. There, the trial court gave the following instruction on the government’s conspiracy theory:
“‘The government need only introduce slight evidence of a particular defendant’s participation, once the conspiracy is established, but must establish beyond a reasonable doubt that each member had a knowing, special intent to join the conspiracy. Mere association with a conspirator, of course, is not enough.’” (Gray, supra, 626 F.2d at p. 500.)
After a defense objection to the instruction, the court gave the following clarification:
“‘My particular remarks that I want to make to you about the slight evidence is that means that just a little evidence as to participation, but even as to that slight or little evidence, you must be convinced, beyond a reasonable doubt, that he participated.’” (Gray, supra, 626 F.2d at p. 500.)
In assessing the foregoing instructions, the Court of Appeals held that the trial court had committed reversible error. (Gray, supra, 626 F.2d at p. 500.) In reaching this conclusion, the court reasoned that “[t]he ‘slight evidence’ reference can only be seen as suffocating the ‘reasonable doubt’ reference.” (Ibid.)
It is manifest that the same analysis applies here. As in Gray, the instant jury was given a general instruction on the standard of proof beyond a reasonable doubt. However, the jury was then told that the standard was satisfied by less evidence than was legally required. Clearly, the court’s erroneous instruction impermissibly diluted the standard of proof beyond a reasonable doubt.
Notwithstanding the foregoing analysis, appellant anticipates that the People will contend that no error arises under the federal Constitution since the Constitution does not compel a state to require corroboration of an accomplice. The People will no doubt point to recent authority from this court which holds that the failure to instruct on a lesser included offense generally does not implicate the federal Constitution since the Constitution does not require such an instruction except in capital cases. (People v. Breverman (1998) 19 Cal.4th 142, 164-172.) Assuming that the People make this argument, it may be swiftly rebutted.
The Supreme Court has said that states have broad discretion in enacting their criminal laws. (McMillan v. Pennsylvania (1986) 477 U.S. 79, 85.) For example, a state has substantial leeway in determining whether conduct should be punished as an enhancement or as a substantive offense. (Id., at p. 86.) However, the court has cautioned that once a state has defined the elements of an offense, the federal Constitution protects the defendant should there be instructional error concerning the element. (Neder v. United States (1999) 527 U.S. 1 [144 L.E.2d 35, 46-47.].)
The case at bar clearly falls under the Neder rule. Concededly, California has no duty to have an accomplice corroboration rule. However, once the state has created the rule, a defendant has a commensurate federal constitutional right to have the jury instructed regarding the rule. This is so since the rule, like a state created element of an offense, is subject to the proof beyond a reasonable doubt standard required by the federal Constitution.
In short, California has enacted a statutory rule which provides that proof beyond a reasonable doubt does not exist unless an accomplice’s testimony is corroborated. Since the jury had no clue that this rule exists, federal constitutional error occurred.
In making the foregoing argument, appellant is aware that it is contradicted by the discussion in People v. Frye (1998) 18 Cal.4th 894. There, this court considered whether the federal Constitution is implicated by the rule that a defendant bears the burden of proving that a witness is an accomplice. This court held that a federal issue was not raised since section 1111 does not bear “on the substantive guilt or innocence of the defendant . . . .” (Id., at p. 968.) Rather, in this court’s view, section 1111 merely states a rule concerning “the reliability of evidence that is used to convict an accused of a criminal offense.” (Ibid.)
With all due respect for this court, this definitional analysis is unpersuasive. As appellant has thoroughly shown above, section 1111 is obviously a rule which deals with the sufficiency of the evidence. Absent corroboration, an accomplice’s testimony is insufficient to justify a conviction. By any measure, this requirement directly relates to the quantum of evidence which the jury must find in order to return a guilty verdict. Thus, this court should reconsider its conclusion in Frye that section 1111 is not a sufficiency of the evidence rule.
Having established that federal constitutional error occurred, the remaining question is whether the error is reversible per se. Under Supreme Court precedent, an error which is “structural” in nature requires per se reversal. (Neder v. United States, supra, 144 L.E.2d 35, 46.) In order to qualify as a “structural” error, a constitutional deprivation must affect “the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310.)
Insofar as is relevant here, the Supreme Court has found structural error with respect to an instruction which improperly lowered the standard of proof beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281-282.) In so holding, the court reasoned that harmless error analysis is impossible when the jury has not been properly instructed on the standard of proof beyond a reasonable doubt. This is so because the dilution of the reasonable doubt standard “vitiates all the jury’s findings.” (Id., at p. 281, emphasis in original.) Thus, since the consequences of the error “are necessarily unquantifiable,” per se reversal is required. (Id., at p. 282.)
Obviously, this analysis is directly applicable here. Although the instant jury was properly advised on the definition of reasonable doubt, they were incorrectly instructed as to the quantum of evidence which would satisfy the reasonable doubt standard. In effect, the instructional error was the same as that in Sullivan: The jury was misinstructed regarding what it would take to satisfy the beyond a reasonable doubt standard.
Importantly, cases predating Sullivan also require per se reversal. As was discussed above, Cool v. United States, supra, 409 U.S. 100 was a case where the jury was given an inaccurate instruction regarding “the level of proof necessary for the Government to carry its burden.” (Id., at p. 104.) Without discussion, the court required reversal since the erroneous instruction was “plainly inconsistent with the constitutionally rooted presumption of innocence, . . . .” (Ibid.)
Similarly, harmless error analysis was deemed unnecessary in United States v. Hall (5th Cir. 1976) 525 F.2d 1254. There, the trial court erred by advising the jury that “slight evidence” could be used to prove the defendant’s connection to a conspiracy. In finding that reversal per se was required, the court held:
“The government concedes error in the instruction but contends that the error was harmless and that the trial judge cured it by other instructions. Despite the lack of provable prejudice to defendant’s case because of other instructions giving the reasonable doubt standard, however, the erroneous instruction reduced the level of proof necessary for the government to carry its burden by possibly confusing the jury about the proper standard or even convincing jury members that a defendant’s participation in the conspiracy need not be proved beyond a reasonable doubt.” (Hall, supra, 525 F.2d at p. 1256, fn. omitted.)
Finally, it must be noted that a recent Court of Appeal opinion is consistent with appellant’s analysis. (People v. Orellano (2000) 79 Cal.App.4th 179, ptn. for rv. pending.) In Orellano, the court held that the jury was improperly instructed that it could use evidence of the defendant’s prior criminal conduct as dispositive proof of his present guilt. Since the erroneous instruction impacted on the jury’s understanding of the People’s burden of proof, the court applied the Sullivan standard of per se reversal. (Id., at p. 186.)
As the foregoing authority establishes, harmless error analysis is quite simply impossible when the jury is mistakenly allowed to return a conviction on proof which does not satisfy the reasonable doubt standard. Thus, since the error in this case vitiated all of the jury’s findings, structural error must be found. (Sullivan, supra, 508 U.S. 275, 281.)
Assuming arguendo that the error in this case does not qualify for reversal per se, the burden still rests with the People to establish that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Under this test, the question 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 in this trial was surely unattributable to the error.” (Sullivan, supra, 508 U. S. 275, 279, emphasis in original; accord, People v. Quartermain (1997) 16 Cal.4th 600, 621.)
As a preliminary point, appellant notes that the Court of Appeal was of the view that Ms. T was not an accomplice as a matter of law. (Opinion, p. 24.) Thus, the court concluded that a properly instructed jury would have found that Ms. T was not an accomplice. (Opinion, p. 24.) This conclusion is mistaken.
As the Court of Appeal correctly noted, Ms. M testified to Ms. T’s alleged extrajudicial statement that appellant “forced her to have sexual intercourse.” (RT 125.) Assuming that this statement was credited by the jury, Ms. T would not be guilty of incest. (People v. Stratton, supra, 141 Cal. 604, 609.) As a result, the Court of Appeal correctly observed that the jury should have been instructed that it was to decide whether Ms. T was an accomplice. (People v. Rodriguez (1986) 42 Cal.3d 730, 759; when there is a factual dispute as to whether a prosecution witness is an accomplice, “[a]ny issues of fact determinative of the witness’s factual guilt of the offense must be submitted to the jury.”) However, the remainder of the Court of Appeal’s analysis is erroneous.
In this regard, the Court of Appeal found it “reasonably probable” that the jury would have found that Ms. T was coerced by appellant. (Opinion, p. 24.) This conclusion is absolutely belied by the record.
In her trial testimony, Ms. T categorically denied that appellant forced her to have sex. (RT 58-59.) The People admit that this is true. (PBM 2; “[s]he did not testify that she consented to the sexual intercourse, but neither did she say he forced her.”) Given Ms. T’s sworn testimony that force was not applied, it is simply illogical that the jury would have accepted Ms. M’s recitation of Ms. T’s alleged hearsay statement to the contrary.
In short, the overwhelming weight of the evidence at trial was that Ms. T was a willing partner in the sex acts. Thus, the jury would certainly have found her to be an accomplice had they received proper instructions.
As the second component of its harmless error analysis, the Court of Appeal held that the jury would have found ample corroboration of Ms. T’s testimony had they been required to do so. (Opinion, pp. 24-25.) Properly viewed under the Chapman standard, the record does not sustain this conclusion.
Indisputably, the jury was disinclined to believe Ms. T. Although the prosecutor asked for conviction on twenty eight counts, the jury returned guilty verdicts on only ten counts. (CT 178-195, 255, 299-300.) Thus, the record provides an unequivocal indication that the instructional error was prejudicial. (People v. Epps (1981) 122 Cal.App.3d 691, 694, 698; People v. Brooks (1979) 88 Cal.App.3d 180, 188; prejudice is shown when the jury hangs or acquits on some counts.)
Moreover, it is critical to note that Ms. T’s testimony was highly inconsistent on the critical question of the duration of her sexual relationship with appellant. In this regard, Ms. T variously asserted that the relationship began in July, August or October. (RT 57-60, 70-72, 87.) Since the duration of the relationship should not be a difficult fact to recall, it is manifest that Ms. T was a less than credible witness.
In seeking affirmance, the People will no doubt point to the corroborating evidence presented by the prosecutor: (1) the fact that appellant was the father of Ms. T’ child; (2) appellant’s admission to Detective Francois that he had sex with Ms. T four or five times or more; and (3) appellant’s implication during his phone call with Ms. T that there was more than one sex act since she came to him “[e]very time” that she “got an urge . . . .” (RT 116-117, CT 212, 237, 242.) While this evidence was certainly helpful to the People’s cause, it is not sufficient to allow affirmance of more than one count under the Chapman standard.
In this regard, the key point is that Chapman requires this court to focus on the impact of the error on the jury’s consideration of the evidence. (Sullivan, supra, 508 U.S. 275, 279.) As the Ninth Circuit has said, “[r]eview for harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also ‘”the most perceptive reflections as to the probabilities of the effect of error on a reasonable trier of fact.”’ [Citation.]” (United States v. Harrison (9th Cir. 1994) 34 F.3d 886, 892.)
Here, the impact of the error was that the jury was specifically directed that it need not consider the sufficiency or weight of the corroborating evidence. (RT 251.) Thus, this court can have no certainty that the jury even engaged in a weighing of the corroborating evidence. Under these circumstances, it is simply impossible to say that the guilty verdicts were “surely unattributable” to the error. (Sullivan, supra, 508 U.S. 275, 279.)
Moreover, upon close examination, the corroborating evidence is shown to be quite weak. Although appellant must concede that at least one count was proven due to the evidence concerning appellant’s paternity of Ms. T’s child, the remaining corroborating evidence is not of significant weight.
As appellant told the jury, he was confused during his interview with Detective Francois since he was high on drugs. (RT 177-178.) In addition, the jury could have found that Detective Francois coerced appellant’s cooperation when he promised him that he could “do something” for himself by confessing. (CT 232.) Moreover, although appellant implicitly admitted having sex when he spoke to Ms. T on the phone, he never admitted to more than one act of intercourse during the conversation. (CT 209-212.)
Juxtaposed against the corroborating evidence, it must be emphasized that Ms. T’s account of relentless sex was shown to be implausible. As Mrs. Doe testified, she never heard appellant having sex with Ms. T although they lived in a small apartment. (RT 155-156.) Since Mrs. Doe is a light sleeper, it is inconceivable that she would not have heard sex acts had they occurred more than once or twice. (RT 155.)
In addition, Ms. T was shown to be a liar in another important respect. She testified that sex occasionally occurred in the morning after Mrs. Doe went to work. (RT 74-75.) However, the evidence showed that appellant left for work long before Mrs. Doe. (RT 141, 152.) Thus, Ms. T was simply untruthful in claiming that sex occurred in the morning.
As a final point, it must be emphasized that reversal would be required even if the corroborating evidence was strong. The reasoning in Chapman itself proves this proposition.
Although the facts were not recited by the Supreme Court, they can be found in the antecedent opinion of this court. (People v. Teale (1965) 63 Cal.2d 178.) At 2 a.m. on the morning of October 18, 1962, Ms. Chapman, Mr. Teale and Mr. Adcox were seen outside the bar where Mr. Adcox was employed as a bartender. Later that morning, Mr. Adcox’ body was found in a remote area. He had been shot in the head three times. Mr. Adcox was killed with .22 caliber bullets and Ms. Chapman had purchased a .22 caliber weapon six days earlier. In close vicinity to the body, the police found a check which had been signed by Ms. Chapman.
The most important evidence against the defendants was of a forensic nature. According to the government’s expert, blood found in the defendants’ car was of Mr. Adcox’ type. In addition, hairs matching those of Mr. Adcox were found in the car along with fibers from his shoes.
If this evidence was not enough, the government also presented an informant who testified to Mr. Teale’s statements. Essentially, Mr. Teale told the informant that he and Ms. Chapman had robbed and killed Mr. Adcox.
For her part, Ms. Chapman gave a statement to the police. In so doing, she lied and claimed that she was in San Francisco at the time of the killing. The falsity of this account was proved by the fact that Ms. Chapman had registered at a Woodland motel shortly after Mr. Adcox’ demise.
At trial, neither defendant testified. In manifest violation of the federal Constitution, the prosecutor repeatedly argued to the jury that the silence of the defendants could be used against them. On this record, the Supreme Court found reversible error:
“[A]bsent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to petitioners’ convictions.” (Chapman, supra, 386 U.S. at p. 26.)
Without doubt, the foregoing recitation of the Chapman facts and holding leads to an inescapable conclusion: The Supreme Court intended that it would be very difficult for the government to show that a federal constitutional error was harmless. As is readily apparent, the government had a very strong case in Chapman including a confession, evidence of the opportunity to commit the crime, highly incriminating forensic evidence and consciousness of guilt evidence. Nonetheless, the strength of this evidence was not sufficient to avoid reversal.
It cannot be seriously contended that the People’s evidence in this case was nearly as strong as that in Chapman. Thus, reversible error must be found.
Assuming arguendo that this court should find that error occurred solely under state law, reversal is still required. In recent years, this court has held that the failure to give an accomplice corroboration instruction will be deemed “harmless if there is sufficient corroborating evidence.” (People v. Hayes (1999) 21 Cal.4th 1211, 1271; accord, People v. Frye, supra, 18 Cal.4th 894, 966; People v. Arias (1996) 13 Cal.4th 92, 143.) Although this test has been stated in a number of this court’s opinions, appellant respectfully submits that the test is inconsistent with the remainder of this court’s jurisprudence. In this regard, the defect in the test is that affirmance cannot be a foregone conclusion merely because there is “sufficient corroborating evidence.” (Hayes, supra, 21 Cal.4th at p. 1271.) Rather, a proper harmless error analysis requires review of the “‘entire record.’” (People v. Gordon, supra, 10 Cal.3d 460, 470-471.)
In its seminal case on the omission to give accomplice instructions, this court held that “the entire record must be considered in determining whether such error constituted prejudicial error requiring a reversal of the judgment of conviction.” (People v. Warren (1940) 16 Cal.2d 103, 119; accord, People v. Gordon, supra, 10 Cal.3d 460, 470-471.) The quoted standard is, of course, entirely consistent with the Watson test which requires the appellate court to review the entire record. (People v. Watson, supra, 46 Cal.2d 818, 836.)
Notwithstanding Warren and Gordon, this court announced in People v. Miranda (1987) 44 Cal.3d 57 that the failure to give accomplice instructions will be deemed harmless “where there is sufficient corroborating evidence in the record. [Citations.]” (Id., at p. 100.) According to Miranda, this rule was supported by People v. Hathcock (1973) 8 Cal.3d 599 and People v. Washington (1969) 71 Cal.2d 1061. (Ibid.) In fact, this is not the case.
In both Hathcock and Washington, the issue before the court was whether there was sufficient evidence to corroborate accomplice testimony. (Hathcock, supra, 8 Cal.3d at pp. 616-618; People v. Washington, supra, 71 Cal.2d at pp. 1092-1093.) Neither case considered the issue of whether an instructional error was prejudicial.
In light of this historical review, appellant submits that this court must examine the entire record in assessing the question of prejudice. Since the more restrictive rule stated in Miranda was apparently established without careful analysis, this court should analyze the instant case under the traditional principle which requires review of the entire record. (People v. Gordon, supra, 10 Cal.3d 460, 470-471; People v. Watson, supra, 46 Cal.2d 818, 836.)
Without repeating the prejudice discussion set forth above (pp. 36-43, supra), appellant simply notes that the record presents a reasonable probability that he would have been convicted on only one count had the jury been instructed on the corroboration requirement. Although appellant admitted to Detective Francois that he performed a number of sex acts with Ms. T, the statement was made while he was under the influence of drugs and after the detective had given him an implied promise of leniency if he confessed. Under these circumstances, a properly instructed jury may well have rejected appellant’s extrajudicial statement as being untrustworthy.
Once the entire record is considered, it is manifest that the People’s case was less than overwhelming. Given the fact that Ms. T’s testimony was not fully credited by the jury, the conclusion is inescapable that at least nine counts of convictions must be reversed. (People v. Gordon, supra, 10 Cal.3d 460, 470-471.)
For the reasons expressed above, the judgment should be reversed.
Dated: June 1, 2000
Attorney for Appellant,