ARGUMENT
THE TRIAL COURT VIOLATED APPELLANT’S PROCEDURAL DUE PROCESS RIGHTS UNDER BOTH THE UNITED STATES
AND CALIFORNIA CONSTITUTIONS BY INSTRUCTING THE JURY THAT, IF THEY FOUND BY A MERE PREPONDERANCE
OF THE EVIDENCE THAT HE HAD SEXUALLY ASSAULTED MS. B YEARS EARLIER, THEY COULD CONCLUDE THAT HE
RAPED MS. S IN THE INSTANT CASE. CONSEQUENTLY THE JUDGMENTS OF CONVICTION MUST BE REVERSED.
This Court reversed Appellant’s previous conviction because the first jury was improperly instructed that, if they found by a mere preponderance of the evidence that Appellant had sexually assaulted Ms. B, they could conclude that Appellant had a predisposition to commit sexual offenses and that Appellant did in fact commit the sexual offenses against Ms. S of which he was accused. (C.T. (II) 2-19.) Unfortunately, the slightly revised instructions given the second jury suffered from the same constitutional deficiency. Therefore, a second reversal is required.
I.
THIS ISSUE HAS BEEN PROPERLY PRESERVED FOR APPEAL
Since Appellant’s defense counsel specifically objected to the revised other sexual offenses instructions below (R.T. (II) 414-415), this issue has obviously been preserved for purposes of appellate review. Furthermore, even assuming arguendo that defense counsel’s objections were somehow inadequate, appellate review would nonetheless be appropriate in light of the effect of these instructions upon Appellant’s substantial rights. (Penal Code §1259; People v. Orellano (2000) 79 Cal.App.4th 179, 181, f.n. 1.)
II.
APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
The Due Process Clause of the United States Constitution, and similar California Constitutional provisions, require that, in criminal cases, the state prove every factual and legal element of the offense charged beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 363-364.) Jury instructions relieving state prosecutors of this burden violate a defendant’s due process rights, subvert the presumption of innocence and invade the truth finding task assigned solely to juries in criminal cases. (Francis v. Franklin (1985) 471 U.S. 307; Sandstrom v. Montana (1979) 442 U.S. 510; Carella v. California (1989) 491 U.S. 263, 265; Ulster County Court v. Allen (1979) 442 U.S. 140; People v. Roder (1983) 33 Cal.3d 491; People v. Figueroa (1986) 41 Cal.3d 714, 726; People v. Hedgecock (1990) 51 Cal.3d 395, 407; People v. Kobrin (1995) 11 Cal.4th 416.)
While the prosecution needs to prove prior misconduct by only a preponderance of the evidence rather than proof beyond a reasonable doubt, the jury instructions concerning the prior crimes must not abrogate the requirement of proof beyond a reasonable doubt of all of the elements of the charged offenses. Due process still requires that the jury be convinced beyond a reasonable doubt of the “ultimate fact” of the defendant’s guilt of the crime for which he is currently on trial. (People v. Medina (1995) 11 Cal.4th 694, 763-764; see also People v. Lisenba (1939) 14 Cal.2d 403, 430.)
This Court, in accordance with the decisions of some other Districts and Divisions of the Court of Appeal, has held that CALJIC jury instructions Nos. 2.50.01 (before its revision in 1999), 2.50.1 and 2.50.2, which were given to Appellant’s first jury, violate the above recited due process principles. The rationale of these decisions is that there is a reasonable likelihood that the jurors may interpret these instructions to authorize convicting the defendant of the currently charged sexual offenses merely upon proof (by a preponderance of evidence) that the defendant committed the prior sex crimes, a constitutionally impermissible result. (People v. Orellano, supra; People v. Vichroy (1999) 76 Cal.App.4th 92; People v. James (2000) 81 Cal.App.4th 1343; People v. Younger (2000) 84 Cal.App.4th 1360; but Cf. People v. Van Winkle (1999) 75 Cal.App.4th 133; People v. Regalado (2000) 78 Cal.App.4th 1056; People v. O’Neal (2000) 78 Cal.App.4th 1065.) Indeed, as previously noted, this Court reversed Appellant’s earlier conviction for precisely this reason. (C.T. (II) 2-19.)
The 1999 revised version of these instructions, which was given to Appellant’s second jury, retains the language permitting the jurors, if they find that the defendant committed a prior sexual offense by the preponderance of the evidence, to infer that he had a disposition to commit sexual offenses, and that he was likely to commit and did commit the crimes of which he is accused. However, the revised instructions also include an additional paragraph stating that, even if the jurors do find by a preponderance of the evidence that the defendant committed the prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense, and that they are to decide the weight and significance of the prior sexual offenses evidence.
The question therefore becomes whether this slightly revised language cures the constitutional defect in the earlier instructions.
People v. Vichroy, supra is directly on point and disposes of this issue in Appellant’s favor. In Vichroy, in addition to being given a pre-1999 version of CALJIC jury instruction No. 2.50.01, the jury was explicitly told in pertinent part: “You may not convict [the defendant] merely because you believe he committed . . . another offense or because you believe he has a character trait that tends to predispose him to committing the charged offense.” (People v. Vichroy, supra, 76 Cal.App.4th at pp. 99-100.) Nonetheless, the court found this language inadequate to cure the constitutional infirmity of the first paragraph of CALJIC jury instruction No. 2.50.01 which told the jury it could find the defendant guilty of the current charges solely because he had committed prior sexual offenses. (Id, at p. 101.) The court found that “there was nothing to explain to the jury how the instructions might be reconciled.” (Id, at p. 100.)
Appellant’s position is also supported by People v. James, supra, 81 Cal.App.4th at pp.1357. The court in James criticized the additional paragraph in the 1999 revised instructions and specifically found that this additional paragraph was inadequate to rectify the constitutional error in the immediately preceding paragraph of these same instructions. Since the revised instructions did not delete the words “and did commit” from the first paragraph, they perpetuated the erroneous suggestion contained in the pre-1999 instructions that the jury could infer guilt directly from the propensity evidence. (People v. James, supra, 81 Cal.App.4th at pp. 1357, f.n. 8.) As the James court stated: “If the court seems to approve a faster and shorter path to conviction, which coincides with the natural inclination to assume guilt from propensity, it is unrealistic to believe that the jury will correct the wrong turns in that path by reasoning from other, more general instructions.” (People v. James, supra, 81 Cal.App.4th at p. 1354.)
Therefore, it must be concluded that the revised instruc- tions given he second jury, like their predecessors, constituted an egregious violation of Appellant’s due process rights.
Language in the California Supreme Court’s opinion in People v. Falsetta, supra does not alter this conclusion. In Falsetta, the court rejected a due process challenge to the admission of uncharged sex offenses pursuant to Evidence Code section 1108. The court noted in dicta that the trial court had given the pre-1999 version of the other sexual offenses instructions, and had refused several special instructions submitted by the defendant, which attempted to correct some of the defects identified in cases criticizing former CALJIC jury instruction No. 2.50.01. The court commented in passing that the 1999 revision “adequately sets forth the controlling principles under [Evidence Code] section 1108.” However, the court stated that it was not ruling on the constitutional issues posed by the revised instructions. (People v. Falsetta, supra 21 Cal.4th, at pp. 922-924.) It is a fundamental rule of stare decisis that a decision is authority only for the points actually involved and actually decided. (People v. Lopez (1986) 176 Cal.App.3d 545; People v. Meyers (1987) 43 Cal.3d 250). Therefore, the Supreme Court’s passing comments in Falsetta are neither binding on this Court nor dispositive of the issue in the instant case.
Appellant recognizes that these instructions cannot be viewed in artificial isolation and must be considered in light of the entire record, including all of the instructions and arguments by counsel. This Court must then determine whether there is a reasonable likelihood that the jury understood it could convict Appellant under a standard less than beyond a reasonable doubt. (People v. Orellano, supra, 79 Cal.App.4th at p. 185; People v. Cain (1995) 10 Cal.4th 1, 36; Estelle v. McGuire (1991) 502 U.S. 62, 72; previous opinion at C.T. (II) 15-17.)
The record here is in stark contrast to the records in People v. Hill (2001) 86 Cal.App.4th 273 and People v. Brown (2000) 77 Cal.App.4th 1324. In both of those cases the proper reasonable doubt standard was emphasized many times in the instructions and arguments and neither counsel even hinted that guilt might be based on proof by a preponderance of the evidence. Indeed, in Hill, supra, the trial court took great pains to ensure that the jury would understand and reconcile the distinction between the preponderance of the evidence standard applicable to the prior crimes, and the burden to prove each element of the current offense beyond a reasonable doubt, by modifying CALJIC jury instruction No. 2.50.1 to caution the jury to:
“keep in mind that you will later be instructed in instruction 2.90 that each and every element of the offenses charged . . . must still be proven beyond a reasonable doubt before you may return a verdict of guilty on any specific count. The lesser burden of proving by a preponderance only applies to the proof required for prior uncharged offenses, before you may even consider this evidence in your deliberations. After considering all evidence in this case, the People always have the burden of proving each and every element of each charged offense beyond a reasonable doubt. . . .”
Consequently, the Hill and Brown courts had no difficulty in concluding that there was no reasonable likelihood that the jury could conclude that it could convict the defendant of the current offense solely because it found that he had committed a similar prior sexual offense. (People v. Hill, supra, at 86 Cal.App.4th 278-279; People v. Brown, supra, at 77 Cal.App.4th 1335.)
However, in the instant case, it is by no means clear that the jury understood that they could convict Appellant only if his guilt were proved beyond a reasonable doubt. While the jury was instructed with CALJIC jury instruction No. 2.90 that they were required to find guilt beyond a reasonable doubt, and with CALJIC jury instruction 1.01 that they were to consider the instructions as a whole and each in light of all the others (C.T. (II) 76 and 56; R.T. (II) 436 and 423), no instructions were given clarifying how the jury was to reconcile the apparent conflict between the general reasonable doubt instructions and the more specific preponderance of the evidence instructions regarding the prior sexual offense involving Ms. B. In other words, although the jury was instructed that the prosecution bore the burden of proving Appellant’s guilt beyond a reasonable doubt, it was specifically told that, if it found by a preponderance of the evidence that he had committed the prior sexual offense, then it could conclude that he did commit the crime. Because the latter charge was far more specific than the general charge, this Court cannot conclude that the general reasonable doubt instructions cured the defective instruction. (Previous opinion, at C.T. (II) 16-17.)
Moreover, the prosecutor, during his argument, urged the jury, based upon the revised instructions, to convict Appellant as an habitual rapist who had repeatedly violated the trust of his female companions. The prosecutor emphasized that the incident involving Ms. B in 1991 established that Appellant had a predisposition to commit sexual offenses and that he probably had raped Ms. S in 1996. While the prosecutor grudgingly conceded that the prior sexual offenses evidence alone might not be enough for the jury to conclude that Appellant had indeed raped Ms. S beyond any reasonable doubt, the general tenor of his remarks and his message was clear. Once a rapist, always a rapist. (R.T. (II) 449-455, 457-459.) Thus, the prosecutor’s argument, when considered in its entirety, did not disabuse the jurors of the notion that they could convict Appellant utilizing a standard of proof less than that which was constitutionally required.
The only possible conclusion from the entire record is that constitutional jury instructional error was committed twice in the instant case.
III.
THE JUDGMENTS MUST BE REVERSED
The only remaining question, respectfully assuming that this Court agrees with the above analysis, is whether a reversal of the judgments is required.
Even assuming arguendo that the deficient jury instructions did not constitute such a gross infringement of Appellant’s constitutional rights as to be a structural error and reversible per se (Sullivan v. Louisiana (1993) 508 U.S. 275, 281; People v. Orellano, supra at 79 Cal.App.4th 186; previous opinion at C.T. (2) 17-18), it was clearly not harmless beyond any reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
In the first place, the prosecution’s evidence that Appellant actually raped or sexually penetrated Ms. S with a foreign object (i.e. his finger) was extremely weak since this purported “victim” had by her own admission enjoyed a previous consensual sexual relationship with Appellant, since she had passed up a golden opportunity to escape from Appellant after the police stopped the automobile in which she was supposedly an unwilling passenger being subjected to Appellant’s brutal sexual demands, since there was evidence strongly suggesting that Ms. S was falsely accusing Appellant of rape because she was angry that he was going to marry another woman named Melissa Tiddle, and since the physical examination performed on Ms. S shortly after the supposed rape failed to uncover any blood or other corroborating physical evidence. (See Procedural and Factual Background, Section II A 1 at AOB 3-5, ante and citations to record therein.)
Moreover, regardless of what this Court may think of the quality of the prosecution’s evidence, the jury was deeply troubled and obviously considered this a close case. After all, this jury deliberated for several days, had extensive portions of Ms. S’s testimony read back to them, and announced at one point that they were “hung” as to two of the three charged offenses, before they finally returned guilty verdicts. (C.T. II) 46-52, 103-105; R.T. (II) 414-415, 496-512.) The fact that the first jury encountered similar difficulties, acquitted Appellant of one of the charged rapes altogether, and was unable to reach a verdict on the forcible digital penetration counts (C.T. (I) 144-152, 179-181; R.T. (I) 570-590, 613), also indicates the closeness of this case. Similar factors have been held to be an indication of a sufficiently closely balanced case to preclude a finding of harmless error in the past. (People v. Woodard (1979) 23 Cal.3d 329, 341; People v. Collins (1968) 68 Cal.2d 319, 332; People v. Anderson (1978) 20 Cal.3d 647, 651; People v. Allen (1978) 77 Cal.App.3d 924, 935; People v. Washington (1958) 163 Cal.App.2d 833, 846; People v. Epps (1981) 122 Cal.App.3d 691, 698) and played a part in this Court’s reversal of Appellant’s first conviction. The same factors should also preclude a finding of harmless error this time.
In summary, when we consider the weakness of the prosecution’s evidence and the grave doubt as to “victim” Ms. S’s credibility, as well as the nature and length of the jury’s deliberations and verdicts, the instructional errors simply cannot be deemed harmless.
Therefore, once again, the judgment of conviction must be reversed.
CONCLUSION
For the reasons stated hereinabove, the convictionS should be reversed and the case remanded once again for a new trial or other appropriate proceedings.
Dated: March 26, 2001 Respectfully submitted,
By __________________________
JONATHAN P. MILBERG
Attorney for Appellant
