Brief Bank # B-870 (Re: F 10.64 n3 [Improper Presumption Of Elements])
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Date Of Brief: November, 2000
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, APPEAL NO. A000000
Defendant and Appellant No. SC000000A
APPEAL FORM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF MARIN
Honorable JOHN S. GRAHAM, Judge
APPELLANT’S OPENING BRIEF
JAMES F. JOHNSON
Attorney at Law
State Bar No. 55772
2269 Chestnut Street, No. 384
San Francisco, CA 94123
Tel: (415) 455-8251
6. REVERSIBLE ERROR OCCURRED WHEN THE JURY WAS INSTRUCTED WITH CALJIC NUMBER 10.64, WHICH RESULTED IN A DENIAL OF DUE PROCESS UNDER THE FEDERAL CONSTITUTION, BECAUSE THE INSTRUCTION PERMITTED THE JURY TO RETURN GUILTY VERDICTS WITHOUT FINDING THAT THERE WAS PROOF BEYOND A REASONABLE DOUBT OF EVERY FACT NECESSARY TO CONSTITUTE THE CRIMES APPELLANT WAS CHARGED WITH.
1. Factual Background.
Instruction with CALJIC No. 10.64, because it is internally inconsistent, allows for unconstitutional conclusive presumptions, and/or shifts the burden of proof, permitted the jury to return guilty verdicts without finding that there was proof beyond a reasonable doubt of every fact necessary to constitute the crime appellant was charged with. [Footnote 1]
In the present case, after all prosecution witness but one had testified, including the alleged victim and other members of her family, a prosecution witness, Michael Grogan, a psychologist, testified on the subject of the”Child Sexual Abuse Accommodation Syndrome” (CSAAS). [Footnote 2] (RT 8/30/99 123.) The CSAAS hypothesizes that when children are sexually molested or abused, they manifest a number or series of similar symptoms, which may include depression, self-destructive behavior, delinquency, poor performance in school, re-experiencing the event(s), numbing, hypervigilance, panic attacks, physical sickness and headaches. (RT 8/30/99 125.)
The CSAAS itself contains five components. First, secrecy: the child keeps the event a secret because it is a bad and dangerous thing to be involved with. (RT 8/30/99 125-126.) Second, helplessness: the child feels subordinate to adults and go along with what they are told by an adult; they feel helpless to resist. Third, entrapment and accommodation: since there is a power differential between the child and an adult, the child goes along with the abuse as a way of surviving. Fourth, delayed, conflicted and unconvincing disclosure: reporting by the child is delayed, sometimes because the child feels that no one will believe them. (RT 8/30/99 126.) Fifth, recanting or revocation: sometimes the child will recant the allegation or change their story once they learn the nature of the punishment that may be imposed on the perpetrator. This factor is especially relevant, it appears, when the perpetrator is a family member, when the child might say after initially reporting the molestation, “no, it didn’t happen, I made it up, and I just said it because I was angry with my dad.” (RT 8/30/99 126.)
The trial testimony to which the CSAAS theory might apply was the following. Ms. G testified that toward the end of the eighth grade Jane Doe, the alleged victim, told Ms. G that she had been sexually molested when she was young. (RT 8/25/99 30-31.) Jane Doe’s mother testified on direct examination that she broke off contact with appellant when Jane Doe was either in the fourth or fifth grade, because Jane Doe was “scared of him [appellant].” (RT 8/25/99 61.) However, on cross examination Jane Doe’s mother testified that she could not recall when in time, or at what age, Jane Doe became frightened of appellant. (RT 8/25/99 67.) Jane Doe testified to a number of acts of sexual molestation by appellant that occurred when she was eight and nine years old. (RT 8/25/99 76-87, 92-93.) The first molestation occurred when Jane Doe was about eight years old and during the summer before the fourth grade. (RT 8/25/99 78-79.) Jane Doe testified that the molestation occurred before and during her time in the fourth grade, not at all during her time in the fifth grade, and then occurred when she was in the sixth grade. (RT 8/25/99 93-94.) one reason Jane Doe did not tell anyone about the molestation in the fourth, fifth or sixth grade, was because appellant told her that if she disclosed the acts, she would get into trouble. (RT 8/25/99 95-96.)
“‘[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”‘ (People v. Valenzuela (1985) 175 Cal.App.3d 381, 392 (Italics in original), citing In re Winship (1970) 397 U.S. 358, 364), including “an absolute right to a jury determination upon all essential elements of the offense.”‘ (United States v. McClain (5th Cir. 1977) 545 F.2d 988, 1004; In re Winship, supra, 397 U.S. at p. 364; United States v. Voss (8th Cir. 1986) 787 F.2d 393, 398; see, Sandstrom v. Montana (1979) 442 U.S. 510, 520-524.) “A ‘defendant has the ‘constitutional right to have the jury determine every material issue presented by the evidence.’” (People v. McElheny (1982) 137 Cal.App.3d 396, 403, citing People v. Modesto (1963) 59 Cal.2d 722, 730, and People v. Sedeno (1974) 10 Cal.3d 703, 720-721.)
In Sandstrom defense counsel argued at trial that while defendant admitted killing the victim, he did not do so “purposely or knowingly,” and therefore was not guilty of deliberate homicide, but of a lesser included crime. (Id., at p. 512.) The trial court in Sandstrom instructed the jury that, [t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” (Id., at p. 513.) Sandstrom held that such an instruction “‘raises a presumption of intent from an act,”‘ and that such a “‘presumption would conflict with the overriding presumption of innocence.”‘ (Id., at p. 522.) Sandstrom further held that even in the event the presumption created was not conclusive, if it had the effect of shifting the burden of persuasion to defendant, it would have suffered from similar infirmities. (Id., at p. 524.) In summary then, Sandstrom held that, 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. (Cabana v. Bullock (1986) 474 U.S. 376, 384.)
In the present case, the trial court instructed with CALJIC No. 10.64. (Supra., at p. 9, fn. 2.) The first paragraph of CALJIC No. 10.64 tells the jury that it must not consider the CSAAS testimony as “proof that the alleged victim’s molestation claim is true.”
The third paragraph of CALJIC No. 10.64 tells the jury that the CSAAS theory “begins with the assumption that a molestation has occurred.”
The fourth paragraph of CALJIC No. 10.64 reminds the jury that it must “presume the defendant innocent,” and that the prosecution has the “burden of proving guilt beyond a reasonable doubt.”
The fifth paragraph of CALJIC No. 10.64 states as follows:
You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with her having been molested. (Emphasis added.)
There are two federal constitutional violations created by the fifth paragraph of CALJIC No. 10.64 to due process and a fair trial. First, it creates a mandatory presumption that, if the jury finds that the victim’s reactions based on the evidence are consistent with the CSAAS theory, then it should or could conclude that a molestation did in fact occur. The presumption created by the fifth paragraph of CALJIC No. 10.64 is reinforced by the third paragraph of CALJIC No. 10.64, which tells the jury to assume a molestation occurred if the victim’s behavior fits part or all of the five component parts of the CSAAS theory evidence. The presumption is further reinforced because it negates the cautionary warnings in the first and fourth paragraphs of CALJIC No. 10.64 on the burden of proof and presumption of innocence. In this way, the standard instruction on burden of proof and presumption of innocence (CALJIC No. 2.90) is also undermined and negated.
The above noted problem with CALJIC No. 10.64 was no doubt understood by the drafters of the instruction, since the first and fourth paragraphs of CALJIC No. 10.64 reiterate the presumption of innocence, reasonable doubt and burden of proof aspects of CALJIC No. 2.90. If the drafters of the instruction did not believe CALJIC No. 10.64 might well undermine the constitutional protections set forth in CALJIC No. 2.90, there would have been no need to reiterate, in the body of CALJIC No. 10.64, all the essential aspects of CALJIC No. 2.90.
Second, the fifth paragraph of CALJIC No. 10.64 violates the Sandstrom decision in another way: i.e., even if it was found that the fifth paragraph of the instruction did not create a conclusive presumption, Sandstrom error still occurred for the following reason:
A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom’s jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. (Id., at p.524; Emphasis added.)
In the present case appellant was charged with eighteen counts of violating Penal Code section 288, subdivision (a). The jury was instructed with CALJIC No. 10.41, which provided in pertinent part that,
In order to prove this crime [Pen. Code § 288, subd. (a)], each of the following elements must be proved:
1. A person touched the body of a child;
2. The child was under 14 years of age;
3. The touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of that person or the child. (RT 8/31/99 220; CT2 239.)
As to the first element of Penal Code section 288, subdivision (a), “A person touched the body of a child,” the fifth paragraph of CALJIC No. 10.64 told the jury that it could presume this element was proved based on the CSAAS theory evidence since, “the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with her having been molested.” Further, if it was found that a presumption was not created, since the jury could still find a molestation had occurred under the fifth paragraph of CALJIC No. 10.64, the jury could still conclude that element number one of section 288, subdivision (a), had been proved because, the jury was then permitted to believe that “the burden was shifted to the defendant to prove that” “the body of a child” was not “touched.” (Sandstrom v. Montana, supra, 442 U.S. at p. 524.)
Further, the jury was also told that the CSAAS evidence could be used to prove the third element of section 288, subdivision (a). The CSAAS evidence explained to the jury the various ways a child would react if the child was molested. Once the victim, Jane Doe, testified as to how she reacted to the alleged molestation, and the CSAAS evidence told the jury that her conduct or behavior was explained by the CSAAS theory as a person who was indeed molested, then the jury was effectively told it could assume a molestation had occurred based on the CSAAS evidence to find proof of the third element of section 288, subdivision (a); i.e., that “The touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of that person or the child.”
The same reasoning would permit the jury to believe that the burden had shifted to appellant on the third element of section 288, subdivision (a), based on the fifth paragraph of CALJIC No. 10.64. The CSAAS evidence told the jury how molested children reacted. Jane Doe testified how she reacted, and her testimony fitted her reactions into the CSAAS theory. Based on the fifth paragraph of CAIJIC No. 10.64, the jury was permitted to find that the third element of section 288, subdivision (a), had been proved, because Jane Doe’s reactions fitted into the CSAAS theory and demonstrated the touching and arousal had occurred to Jane Doe, and thereby the burden was shifted to appellant to prove that the touching was not done with the specific intent to arouse Jane Doe.
The error which occurred by instruction with CALJIC No.10.64 is reversible per se.
Instructional errors, including “misdescription, omissions, or presumptions — as a general matter fall within the broad category of trial errors subject to Chapman [Chapman v. California (1967) 386 U.S. 18] review on direct appeal.” (People v. Flood (1998) 18 Cal.4th 470, 499.)
On the other hand, in a more limited class of cases, there are structural errors which “affectthe 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), and are reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-281.) Misinstruction on the burden of proof necessary to find the defendant guilty is reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) The reason is that a harmless error analysis looks to the basis on which “[T]he jury actually rested its verdict.” (Yates v. Evatt (1991) 500 U.S. 391, 404-405.) Where the jury receives wrong instructions on the burden of proof constitutionally required for a conviction,
[T]here has been no jury verdict within the meaning of the Sixth Amendment, [and] the entire premise of [a Chapman v. California, supra, 386 U.S. 18] [harmless error] review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. (Sullivan v. Louisiana, supra, 508 U.S. at p. 280; Emphasis omitted; People v. Kobrin (1995) 11 Cal.4th 416, 429.)
It is not possible to determine in the present case whether the defective instruction resulted in a jury verdict of guilt beyond a reasonable doubt. There is simply no basis for determining how the jury used or resolved the language of the fifth paragraph of CALJIC No. 10.64. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 279280; People v. Kobrin, supra, 11 Cal.4th at p. 429.) Also, since the error was of such a magnitude that it infected the integrity of the trial process, it made harmless error analysis impossible, and therefore mandates reversal. (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282; People v. Kobrin, supra, 11 Cal.4th at p. 428; see, People v. Orellano (2000) 79 Cal.App.4th 179, 186-187; People v. Vichroy (1999) 76 Cal.App.4th 92, 101.)
Further, under harmless error analysis, reversal is also required. The only evidence against appellant in the present case was the testimony of the victim, Jane Doe. There was no other witness to the events described by Jane Doe. The events described by Jane Doe were reported by her at least a year or two after the fact of occurrence. The medical evidence established that Jane Doe was molested, but did not prove that appellant was the perpetrator. Thus, the issue of appellant’s guilt or innocence came down to his word against the claims of the victim.
Under the harmless error standard, respondent must show that the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at pp. 23-24.) Applying Chapman to Sandstrom error, the reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption and/or shifting of the burden of proof created by CALJIC No. 10.64 to find appellant guilty. (Rose v. Clark (1986) 478 U.S. 570, 583-584; see Carella v. California (1989) 491 U.S. 263, 270-271 (conc. opn. of Scalia, J.).) Since the only evidence of guilt in the present case is the victim’s word against appellant’s word, there is no factual ground for a reviewing court to find it was unnecessary for the jury to rely improperly on the fifth paragraph of CALJIC No. 10.64; thus, it cannot be concluded the error was harmless beyond a reasonable doubt. (Rose v. Clark, supra, 478 U.S. at pp. 583-584.)
Footnote 1: CALJIC No. 10.64 provides (with modifications in the present case only for the nature of the offense) as follows (CALJIC No. 10.64 as it appears below has been broken up into separate, numbered, paragraph’s which will permit easy reference in the body of this argument):
1. Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim’s molestation claim is true.
2. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case.
3. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience.
4. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.
5. You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with her having been molested.
Footnote 2: In his testimony Dr. Michael Grogan testified about the theory of the CSAAS. Dr. Grogan was never asked if he had examined the alleged victim in the present case, Jane Doe, and a review of his testimony on both direct and cross examination indicates that he never interviewed or treated Jane Doe.