Brief Bank # B-860 (Re: F 10.00f [Definition Of Rape Constitutionally Deficient By Failing To Define “Sexual Intercourse”].)
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Date of Brief: June 1995.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, ) S000000
) (Kern County Superior
Plaintiff and Respondent, ) Court No. 000000)
JOHN DOE, )
Defendant and Appellant. )
APPELLANT’S OPENING BRIEF
Automatic Appeal from a Judgment of Death
Rendered in the Superior Court for the County of Kern
Honorable Robert Baca, Judge Presiding
ROBERT M. MYERS, State Bar No. 66957
JERRY P. GORDON, State Bar No. 57134
14001 Ventura Boulevard
Sherman Oaks, California 91423
Attorneys for Appellant John Doe
THE DEFINITION OF RAPE IN CALJIC 10.00
IS CONSTITUTIONALLY DEFICIENT BY FAILING
TO DEFINE “SEXUAL INTERCOURSE”
In accordance with CALJIC 10.00, the trial court instructed the jury concerning the elements of rape. (CT 718-719; see RT 2583-2584.) Although California’s rape statute encompasses vaginal intercourse and not anal intercourse, the jury was instructed in the language of CALJIC 10.00 that the offense requires “sexual intercourse” or “intercourse.” Neither CALJIC 10.00 nor any other instruction defined for the jury what types of sexual contact were encompassed within the term “intercourse.” As discussed below, the term “intercourse” does not have a common meaning. The failure to provide a definition violated defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 7 and 16 of the California Constitution.
A. State And Federal Law Require That The Jury Be Instructed On All Elements Of The Offense.
It is well established that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) A “defendant has a constitutional right to have the jury determine every material issue presented by the evidence.” (People v. Modesto (1963) 59 Cal.2d 722, 730; see Cabana v. Bullock (1986) 474 U.S. 376, 384 [“a jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof”]; United States v. Mendoza (9th Cir. 1993) 11 F.3d 126, 128 [“when a trial judge omits an element of the offense charged from the jury instructions, it deprives the jury of its fact-finding duty and violates the defendant’s due process rights”].)
As this Court has observed:
It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.
(People v. St. Martin (1970) 1 Cal.3d 524, 531 (citations omitted); see People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Additionally, the trial court must give explanatory instructions when the terms in an instruction have a “technical meaning peculiar to the law.” (People v. Anderson (1966) 64 Cal.2d 633, 639.) However, “[w]hen a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, an instruction as to its meaning is not required in the absence of a request.” (People v. Williams (1988) 45 Cal.3d 1268, 1314.)
B. Rape, Sexual Intercourse, And Penetration Have Meanings Peculiar To The Law Requiring That The Jury Be Given Definitional Meanings.
The common law defined rape as “the carnal knowledge of a woman forcibly and against her will.” (4 William Blackstone, Commentaries 210.) Like its common law predecessors, California’s rape law prohibits penetration of the vagina. [Footnote 1] (See People v. Young (1987) 190 Cal.App.3d 248, 258, fn. 3 [“forcible rape under section 261, subdivision (2), requires penetration, however slight, of the female’s vagina by the penis of the male”].) Forcible penetration of the anus is proscribed by California’s sodomy statute. (Cal. Penal Code § 286.)
In the present case, defendant was charged with a violation of Penal Code Section 261(2) as it existed in 1989. The jury was instructed:
In order to prove such a crime, each of the following elements must be proved:
1. A male and female person engaged in an act of sexual intercourse;
2. The two persons were not married to each other;
3. The act of intercourse was against the will of the female person; and
4. Such act was accomplished by means of force, violence, or fear of immediate and unlawful bodily injury to such person.
Any sexual penetration, however slight, constitutes engaging in an act of sexual intercourse. Proof of ejaculation is not required.
(CT 718-719; see RT 2583-2584.)
The closest CALJIC 10.00 comes to a definition of “sexual intercourse” is in the sentence stating that “[a]ny sexual penetration, however slight, constitutes engaging in an act of sexual intercourse.” This language is substantially similar to the statutory language in Penal Code Section 263 that provides that “[a]ny sexual penetration, however slight, is sufficient to complete the crime.”
Neither CALJIC 10.00 nor any other instruction provided any further elaboration of the term “sexual intercourse.” Specifically, the jury was not instructed that penetration must be of the vagina. By contrast, CALJIC 10.20 provides that “[a]n act of sodomy is sexual conduct consisting of any penetration, however slight, of the anus of one person by the penis of another.”
In present case, the use of the statutory language without further definition was error. “An instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court.” (People v. Albertson (1944) 23 Cal.2d 550, 587.) As discussed below, the term “sexual intercourse” in California’s rape law has a meaning peculiar to the law and requires further definition.
The law of rape has undergone dramatic transformations in recent years. In 1962, the Model Penal Code expanded the common law definition of rape to include both vaginal and anal intercourse. Sexual intercourse was defined to include “intercourse per os or per anum.” (Model Penal Code § 213.0(2).) As the Model Penal Code’s commentators noted:
Sexual intercourse is defined by Section 213.0 to include intercourse by mouth or anus as well as genital copulation. In this respect, the Model Code was broader than prevailing law at the time is was drafted, though the additional behavior would have been punished in many jurisdictions under sodomy laws.
(American Law Institute, Model Penal Code and Commentaries (1980) § 213.1 comment p. 346; see Commonwealth v. Gallant (Mass. 1977) 369 N.E.2d 707, 711-715 [reviews history of the modernization of sexual assault laws].)
Following the lead of the Model Penal Code, many states revised their rape statutes. (See Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent (1992) 92 Colum. L.Rev. 1780, 1784, fn. 22 [“[m]any of the new statutes supplant rape with a sexual assault offense based on the A.L.I. Model Penal Code’s § 213”].) Collected in Appendix A is a compilation of the statutes of each state (with the exception of California) and the District of Columbia concerning rape or its equivalent.
Today, only 24 states [Footnote 2] and the District of Columbia have rape statutes. The remainder of states proscribe sexual assault, [Footnote 3] unlawful sexual intercourse, [Footnote 4] sexual battery, [Footnote 5] sexual abuse, [Footnote 6] criminal sexual conduct, [Footnote 7] sexual intercourse without consent, [Footnote 8] criminal sexual penetration, [Footnote 9] and gross sexual imposition. [Footnote 10]
Of the jurisdictions that prohibit rape, 11 include anal intercourse within the definition of rape. [Footnote 11] For example, Louisiana’s rape statute provides:
Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
(La. Rev. Stat. Ann. § 14:42(A) (West Supp. 1995).)
Each of the 26 states that define an offense other than rape include anal intercourse in the operative definition. For example, Arizona’s provides that “[a] person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” (Ariz. Rev. Stat. Ann. § 13-1406 (Supp. 1994).) The term “sexual intercourse” is defined as follows:
“Sexual intercourse” means penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.
(Ariz. Rev. Stat. Ann. § 13-1401(3) (1993).)
The federal government has also revised statutes punishing rape within its special maritime and territorial jurisdiction. In 1986, Congress revised federal rape law by adopting the Sexual Abuse Act of 1986. (18 U.S.C. §§ 2241-2245.) The purpose of this law was to modernize and reform federal rape provisions. (H.R. Rep. No. 594, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 6186.) No longer calling the crime rape, the new law prohibited certain sexual acts by punishing aggravated sexual abuse. (18 U.S.C. § 2241.) For purposes of the Sexual Abuse Act of 1986, the term “sexual act” was defined as follows:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight . . . .
(18 U.S.C. § 2245(2).)
These laws demonstrate that rape, sexual intercourse, and penetration no longer have a common meaning in this country. Although rape was limited at common law to vaginal intercourse, today many states have redefined the offense to include anal intercourse. The term “sexual intercourse” no longer has a common meaning. Thus, the term sexual intercourse is specifically defined to include anal intercourse in Arizona, Connecticut, Delaware, Kentucky, Montana, Pennsylvania, Washington, West Virginia, and Wisconsin. Likewise, the term penetration is specifically defined to include anal intercourse in Alaska, Colorado, Hawaii, Illinois, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Rhode Island, South Dakota, Tennessee, and Texas.
The vastly different legal definitions of rape, sexual intercourse, and penetration undermine the notion that the general public has a common understanding of these terms. A number of the jurors in the trial were educated in other states. (See SCT 361 [juror Mr. F.O attended high school in Texas]; SCT 577 [juror Ms. J.B attended high school in Arizona]; SCT 1495 [juror Ms. M.H attended high school and college in Colorado]; SCT 1513 [juror Ms. L.J. attend high school in Missouri]; SCT 1546 [juror Mr. C.M. attended college in New Mexico].) Likewise, a number of jurors served in the military where they may have been exposed to the laws of other jurisdictions. (See SCT 375 [juror Mr. F.O.]; SCT 447 [juror Mr. B.R.]; SCT 1329 [juror Mr. K.D.]; SCT 1419 [juror Mr. T.G.]; SCT 1560 [juror Mr. C.M.]; SCT 2514 [juror Mr. G.L.].)
Moreover, even the dictionary definition of the term “sexual intercourse” is not limited to vaginal intercourse. The term “sexual intercourse” is defined in Webster’s New Collegiate Dictionary as follows: “sexual connection esp. between humans.” (Webster’s New Collegiate Dictionary (1973) 1063.) This definition hardly forecloses anal intercourse.
The fact that sexual intercourse is a term used by the general public does not lead to the conclusion that it is commonly understood. Thus, courts have found jury instructions inadequate that have used words that may be familiar to jurors but which have specific meanings that not every juror would understand. (See People v. Failla (1966) 64 Cal.2d 560, 564-565 [failure to define “felony”]; People v. Purcell (1993) 18 Cal.App.4th 65, 74 [failure to define “reckless indifference to human life”]; People v. Valenzuela (1985) 175 Cal.App.3d 381, 393 [failure to define “assault”]; People v. McElheny (1982) 137 Cal.App.3d 396, 403-404 [failure to define “assault”]; People v. Burns (1948) 88 Cal.App.2d 867, 873-874 [failure to define “traumatic injury”].)
In the present case, given the different knowledge and experience of jurors with sexual matters, [Footnote 12] it cannot be concluded that every juror would understand that California’s use of the term “sexual intercourse” in its rape statute only encompassed vaginal intercourse.
The trial court did not cure any defects in the written instructions when the trial judge provided further instruction after deliberations had commenced: [Footnote 13]
And then further down it says any sexual penetration, however slight, constitutes engaging in an act of sexual intercourse. And, of course, what that means is that any penetration of the male sex organ into the female sex organ, however slight, constitutes an engaging in an act of sexual intercourse.
In light of contemporary community standards, jurors are unlikely to have the same understanding of what the term “sex organ” means. The trial court’s reluctance to use the words “penis” and “vagina” is no basis for failing to properly instruct the jury.
In Commonwealth v. Nylander (Mass. App. Ct. 1989) 532 N.E.2d 1223, the court reversed a conviction for rape by unnatural sexual intercourse because of improper jury instructions. The trial judge had instructed the jury that the offense required penetration “`into that area between the alleged victim’s buttocks.'” (Id. at p. 1225.) The court stated:
Defining the penetration element of unnatural sexual intercourse of the sort in issue here as involving something less than an intrusion into the anus obscures the distinction between rape and these other crimes. That imprecision renders it entirely possible that a jury could convict someone of rape after finding that the Commonwealth’s evidence only established a lesser offense.
(Id. at p. 1227.)
Likewise, in Commonwealth v. Brattman (Mass. App. Ct. 1980) 410 N.E.2d 720, the court found inadequate a jury instruction that defined rape as follows:
“So rape, under our law today can encompass homosexual rape; it can encompass oral and anal intercourse as well as vaginal intercourse. It can encompass various types of touching, so long as there is penetration, however slight, of a bodily orifice of the other person.”
(Id. at p. 723.)
In rejecting this instruction, the court found that “[t]he judge’s definition of rape left the jury free to find an intent to commit rape if the defendant had intended to force his tongue into the victim’s mouth or into her ear, or to commit other acts of touching involving the penetration of any orifice.” (Id. at p. 724.)
In the present case, no justification exists for the lack of precision in CALJIC 10.00. Where the defendant is charged with both rape and sodomy, the trial court’s failure to define sexual intercourse will inevitably result in convictions based not on the proper application of the law, but on the vastly different views of individual jurors as to what constitutes sexual intercourse. In this case, by failing to define the term, a central element of the offense was not properly placed before the jury permitting conviction for conduct not proscribed by California’s rape law. Accordingly, defendant’s rape conviction must be reversed.
Footnote 1: It is recognized that some cases have indicated that penetration of the genital area of a woman is sufficient to constitute the crime. (See People v. Karsai (1982) 131 Cal.App.3d 224, 232-233.)
Footnote 2: Alabama, Arkansas, California, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, and Washington.
Footnote 3: Alaska, Arizona, Colorado, Connecticut, Hawaii, Illinois, Maine, Nebraska, Nevada, New Hampshire, New Jersey, Rhode Island, Texas, Vermont, West Virginia, Wisconsin, and Wyoming.
Footnote 4: Delaware.
Footnote 5: Florida.
Footnote 6: Iowa.
Footnote 7: Michigan, Minnesota, and South Carolina.
Footnote 8: Montana.
Footnote 9: New Mexico.
Footnote 10: North Dakota.
Footnote 11: Arkansas, Idaho, Kentucky, Louisiana, Massachusetts, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, and Washington.
Footnote 12: Indeed, during his sequestered voir dire, juror Mr. H.U. indicated that he did not know the meaning of the word “sodomy.” (RT 1111.) The prosecutor’s explanation was hardly the model of clarity:
Sodomy is – rape is forcible sexual intercourse, and sodomy is the same thing except it’s forcible anal sexual intercourse. That is basically forcing somebody to have sex in, you know, basically in the rear. And it’s the same thing otherwise as rape is. So it’s basically the same thing as rape except it’s on a different part of the body essentially.
Footnote 13: The additional instruction was necessitated by a note that the jury was “having a problem with a definition of rape.” (CT 739.) This problem was apparently caused by one juror who was under the belief that if the victim “took off her clothes, it wasn’t considered a rape.” (RT 2604.)