Brief Bank # B-864 (Re: F 17.24.1 n21 [“One Strike And You’re Out” (PC 667.61): (1) Duty To Instruct On Elements Of “One Strike” Circumstances].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, F034753
Plaintiff and Respondent,
Defendant and Appellant.
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR THE COUNTY OF STANISLAUS
Honorable John E. Griffin, Jr., Judge
APPELLANT’S OPENING BRIEF
JANET J. GRAY Attorney at Law
STATE BAR NO. 99723
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
THE COURT FAILED TO INSTRUCT THE JURY REGARDING ESSENTIAL ELEMENTS
RELATING TO THE APPLICABILITY OF SECTION 667.61, REQUIRING
THAT APPELLANT’S LIFE SENTENCES BE STRICKEN
Appellant was sentenced to three consecutive terms of 15 years to life for three convictions of section 288 subdivision (a), against Ms. P.Z., Ms. J.Z. and Ms. J.S., under the so-called “One Strike Law.” (CT 197; People v. Rayford (1994) 9 Cal.4th 1, 8 [§ 667.61 is commonly known as the “One Strike” law].) Appellant contends that the life sentences imposed under these sections must be stricken, because the jury was inadequately instructed regarding crucial elements of the penalty statute, thereby abridging his right to trial by jury. (See, Apprendi v. New Jersey (6/26/00) 2000 CDOS 5061.)
The One Strike law seeks to punish the commissions of specified sex offenses under specified aggravated circumstances. (People v. Ervin (1996) 50 Cal.App.4th 259, 264.) Listed among the specified offenses is a violation of section 288, subdivision (a), when the offender is not eligible for probation under the circumstances specified in section 1203.066. [Footnote 1] (§667.61, subd. (c) (7).)
Section 667.61, subdivision (b) provides that a person convicted of one of the listed offenses under of the aggravated circumstances listed in subdivision (e) shall be sentenced to a term of 15 years to life in a state prison. (§667.61, subd. (b).) “[A] person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (a) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years…” (§ 667.61, subd. (b).)
The jury was instructed regarding its obligation to make a finding relative to the section 667.61, subdivision (b) allegation as follows:
It is further alleged at the time of the commission of the crimes charged in Counts I through XIV that the defendant did commit acts set forth in section 667.61 of the Penal Code. ¶ If you find the defendant guilty of the crime charged in Count I through XIV, you must then determine whether or not the truth of this allegation has been proved. To prove the allegation it must be established that the defendant has been convicted in the present case of committing a violation of Penal Code Section 288 against more than one victim. The People have the burden of proving the truth of this allegation beyond a reasonable doubt. (RT 466.)
Appellant contends that this instruction omitted a key element which defines whether or not section 667.61 is applicable to multiple victim convictions of 288 subdivision (a)–whether or not appellant qualifies for probation under subdivision (c) of section 1203.066.
B. The Court Had The Sua Sponte Obligation To Submit The Factual Issue Of Section 1203.066 Probation Eligibility To The Jury
“Even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 773, cert. den. ___ U.S. ___ [118 S.Ct. 116, 139 L.Ed.2d 68].) It is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence; and (2) to give explanatory instructions when terms used an instruction have a technical meaning peculiar to the law.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779 (citations omitted.).) The trial court must ensure that the instructions adequately state the law and adequately assist the jury in resolving the issues addressed by the instructions. (People v. Kay (1984) 153 Cal.App.3d 888, 898.) This is true regardless of whether the instruction pertains to a crime, a defense, an enhancement, or a “penalty provision.” The United States Supreme Court has recently written:
The question whether Apprendi had a constitutional right to have a jury find such [racial] bias [which will increase his sentence for the crime charged] on the basis of proof beyond a reasonable doubt is starkly presented. [¶] Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227 (1999), construing a federal statute. We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.
Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently. [¶] At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” Amdt. 14, and the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” Amdt. 6.[fn. omitted] Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); (Winship, 397 U.S., at 364 (“[T]he 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.”).
If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is put to proof of those circumstances-be deprived of protections that have, until that point, unquestionably attached. (Apprendi v. New Jersey, supra, 2000 CDOS 5061.)
Appellant contends that under the unequivocal language of Apprendi, that instruction is required on not just whether or not appellant suffered multiple convictions of section 288 subdivision (a), but also the threshold question of whether appellant was eligible for probation under section 1203.066. While normally probation issues are left to the discretion of the court, in this instance the very specific criteria of section 1203.066 dictate whether or not appellant’s sentence will be subject to life terms or the determinate sentencing scheme of section 1170.1’s significantly lesser terms. Since the legislature has defined the penalty for multiple violations of section 288, subdivision (a) by resort to these factors, [Footnote 2] under the Apprendi analysis, the probation issue must be submitted to the jury. If appellant meets the criteria of section 1203.066, he does not come within the terms of section 667.61. This factual determination does not divest the court of its discretion to sentence a defendant to prison or to admit him to probation, it merely decides whether or not such defendant will be subject to the One Strike Law.
C. Reversal Of Appellant’s Conviction Is Required
1. The Error Is Reversible Per Se
Where an instruction or omission wholly removes all the elements of the charge from the jury’s consideration, thus resulting in the jury’s failure to make a factual determination of an element of the offense, the error is reversible per se notwithstanding defendant’s failure to “dispute the existence of the predicate facts and that the evidence overwhelmingly established all the elements of [the charge] ….” (People v. Cummings (1993) 4 Cal.4th 1233, 1316; see also Osborne v. Ohio (1990) 495 US 103, 123-25 [109 LEd2d 98].)
In the present case, there is no doubt that the issue of appellant’s probation eligibility under section 1203.066, was not only not submitted to the jury, but neither pled nor proven in any manner in these proceedings. (CT 3-13; RT 543.) The prosecutor mentioned this fact during sentencing, stating: “…I’m not sure 1203.066 applies here, since it wasn’t an allegation alleged, and I think it’s required to be pled and proved.” (RT 543.) Thus, there is no doubt that there has been a complete failure to have the jury consider any of the issues relating to some very key factors which would establish the basis for application of section 667.61 to appellant’s sentence. Under this analysis, reversal is required as a matter of law.
Appellant is cognizant that the United States Supreme Court has recently held that the failure to instruct on an uncontested element of the charge is not reversible error per se. Rather, the error will be considered reversible if “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (Neder v. U.S. (1999) ____ US ____ [144 LEd2d 35; 119 SCt 1827].) In other words, “where a defendant did not, and apparently could not, bring forth facts contesting the omitted element,” the error may be considered harmless.
On the other hand, Neder implies that the failure to instruct on a contested factual issue is reversible error. This analysis comports with the analysis in People v. Flood (1998) 18 Cal.4th 470 which similarly suggested that the failure to instruct on an element that is factually contested is reversible error. Flood overruled the California reversal per se standard of People v. Modesto (1963) 59 Cal.2d 722, as to the failure to instruct on an element of the charge. Because the omitted instruction in Flood concerned “an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant’s own actions or mental state…” (Id. at 507), the court held the error to be harmless. In so doing, the court concluded that “no rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element].” (Id. at 491.) However, Flood is not dispositive of the issue when a contested issue is involved.
Flood also concluded that the error was harmless under the federal standard. (Id. at 507.) Note that Flood limited its federal constitutional analysis to due process without discussing the Sixth Amendment right to trial by jury which is also implicated by removal of an element from the jury’s consideration. (See U.S. v. Caldwell (9th Cir. 1993) 989 F2d 1056.)
In the present case, as will be discussed in more detail below, there was significant evidence in the record supporting a probation finding within the language of section 1203.066 as to two of three victims, Ms. J.Z. and Ms. P.Z. Since section 667.61 is only applicable to appellant if there are multiple victims who come within the terms of this statute, if appellant is eligible for probation within the meaning of section 1203.066 as to two of the three victims, he does not fall within the terms of section 667.61 sentencing. Most of the evidence presented that would pertain to this issue was presented during the prosecution’s case-in-chief. Thus, in that vein, it could be argued the probation issue was “contested,” insofar as there was evidence which could or could not have established such eligibility. However, the defense did not argue the issue and essentially remained mute when the trial court referred to appellant’s ineligibility for probation during sentencing, in a brief and conclusory fashion. (RT 543-544.)
Whether or not this court determines that the error is reversible per se, reversal is nevertheless required under the federal Chapman standard of review. (Chapman v. California (1967) 386 U.S. 18, 24.)
2. The Error Is Reversible Because The Prosecution Cannot Prove Beyond A Reasonable Doubt That The Error Did Not Contribute To the Result Obtained
“Trial by jury is an inviolate right…secured to all…[i]n criminal actions in which a felony [or misdemeanor] is charged.” (Cal.Const Art I, §16. (See also US. Const. Amends VI, XIV.) The United States Supreme Court has written, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold 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, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (See Francis v. Franklin (1985) 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct.1965; Sandstrom v. Montana (1979) 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.) Where instructional error is of such a nature as to violate federal constitutional rights, the “burden shifts to the state ”to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'” (Chapman v. California, supra, 386 U.S. 18, 24.)
In the present case, the prosecution is unable to meet that burden. During the time in question two of the three victims were related to appellant by marriage. Ms. A met appellant at her brother’s wedding to appellant’s daughter. (RT 88.) Additionally, the girls had resided in appellant’s household, and even though were not living there with their mother during the time in question, Ms. A had sought appellant’s help to care for them during that period because she had broken her leg. (RT 99, 100.) Thus, the girls were relatives and appellant could be considered a caretaker, as well as a household member. While at first blush, it might be difficult to consider that probation would be in the victim’s best interests, the decision must be made in the context of these girls’ known histories. Initially, the fact that appellant was convicted of molesting them should not be a controlling factor because otherwise, section 1203.066 would never have any application to any child sex offenders. Such an application would render the statute meaningless.
The record suggests that appellant’s home was the only stable residence they had known for a considerable segment of their lives. As the prosecutor acknowledged during his closing argument, Ms. A was better off if appellant were not guilty of these charges, because of his help in her many times of need. (RT 516.) The prosecutor recognized that Ms. A relied on appellant to care for her kids so she would not have to and was her “meal ticket.” (RT 516.) The unfortunate truth in this situation is that there was ample evidence that these children had been neglected for years by their apparently drug-addicted mother and had been taken from one poor environment to another. Ms. A had lived at a string of locations, including with two different men with whom she was involved in a relationship. (RT 89-90.) Ms. A lived with appellant for several months after her brother’s wedding. She then lived with Mr. H, and then Mr. W. (RT 90, 92.) She was homeless when she was arrested for possession of amphetamines in May of 1997. She was in jail for 10 days, and moved into appellant’s home for the second time after she was released from jail. (RT 93, 97.) She moved into another place of her own, which subsequently burned down. Both Ms. A and her children stayed with appellant after this fire. (RT 95, 98.)
Ms. A then moved into another residence. She subsequently broke her leg, and again relied on appellant to take care of her children. Appellant routinely picked them up and took them to his home to swim. Ms. A had broken her leg one to two months before appellant had been arrested for these charges. (RT 99, 100.) Appellant acted grandfatherly toward kids. (RT 111.)
The girl’s mother acknowledged without any hesitation that she frequented the Four Corner’s Bar regularly with these two girls, so they could play pool and darts. Ms. A had taken her kids here at the same time appellant had planned on meeting Mr. C the day of his arrest. Ms. A thought the location was a good place to take her girls. (RT 313-315.) Ms. A denied that she was considering the offer made by Mr. U or that she had gone to the bar to meet appellant. (RT 314, 315.) Her own brother, Mr. U, said that Ms. A was in fact considering accepting the offer of money and a van. (RT 260-262.)
Ms. A’s children had been molested previously by their biological father. (RT 307.) The physical evidence suggested that their prior molestations may have been more invasive than the current allegations, inasmuch as the physical findings supported more serious abuse than they were reporting to anybody at anytime. (RT 216, 220.)
The girls were already being supervised by a public health nurse, suggesting the county had already intervened on their behalf due to their mother’s neglect or incapacitation by her incarceration. (RT 80.) Thus, there is a real issue as to whether these children were better off with appellant incarcerated.
There is in fact evidence suggesting appellant’s eligibility for probation under section 1203.066. As such the prosecutor cannot prove beyond a reasonable doubt that the court’s failure to instruct on this issue was harmless beyond a reasonable doubt.
Dated: September 18, 2000 Respectfully submitted,
JANET J. GRAY
Attorney FOR APPELLANT
Footnote 1: Section 1203.066 provides, in relevant part, that:
(c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:
(1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim’s household.
(2) A grant of probation to the defendant is in the best interest of the child.
(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.
(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. . .
. . .(5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant.
Footnote 2: Note that all other offenses that are listed in section 667.61, subdivision (c) are only defined by a violation of the offense, without reference to other, limiting criteria. Thus, other offenses that come within the terms of the One Strike statute are necessarily decided by a jury, since all elements of the offenses listed in subdivision (c) (1) through (6) are the only criteria for inclusion within the terms of this statute.
Section 667.61, subdivision (c) provides:
This section shall apply to any of the following offenses:
(1) A violation of paragraph (2) of subdivision (a) of Section 261.
(2) A violation of paragraph (1) of subdivision (a) of Section 262.
(3) A violation of Section 264.1.
(4) A violation of subdivision (b) of Section 288.
(5) A violation of subdivision (a) of Section 289.
(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.