Brief Bank # B-891 (Re: 10.00f [Definition Of Rape Constitutionally Deficient By Failing To Define “Sexual Intercourse”].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
Plaintiff and Respondent, No. E000000
v. (Riverside County
JOHN DOE, No. RIF00000)
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable Timothy J. Heaslet
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
IV. ONE OF THE TWO RAPE CONVICTIONS MUST BE REVERSED BECAUSE IT IS IMPOSSIBLE TO TELL WHETHER THE DEFENDANT WAS CONVICTED OF AN OFFENSE WITH WHICH HE WAS CHARGED
It is a fundamental principle of due process, under both the Fourteenth Amendment and California law, that a person cannot be convicted of an offense with which he was not charged. (Cole v. Arkansas (1948) 333 U.S. 196, 201 [68 S.Ct. 514, 92 L.Ed 644]; In re Hess (1955) 45 Cal.2d 171, 174-175.) When it is impossible to tell whether a conviction has been had for a charged offense or an uncharged offense, the conviction must be reversed. (People v. Bowman (1958) 156 Cal.App.2d 784, 800; People v. Pond (1955) 44 Cal.2d 665, 676; Stirone v. United States (1960) 361 U.S. 212, 216-217 [80 S.Ct. 270, 4 L.Ed.2d 252].)
That is the case here as to one of the two rape convictions. It is entirely possible, and in fact highly likely, that what the jury concluded was two acts of rape in violation of section 261 was actually one act of rape in violation of section 261, and one act of sodomy in violation of section 286. However, appellant was never charged with sodomy or a violation of section 286. Because it is possible (and likely) that appellant was convicted of a second rape in violation of section 261 for an act that did not constitute rape, one of the two rape convictions must be reversed.
The error in giving a jury instruction that failed to define the elements of the offense adequately, and permitted conviction of an uncharged offense, is reviewable. (Pen. Code, § 1259; People v. Hannon (1977) 19 Cal.3d 588, 600; People v. Roehler (1985) 167 Cal.App.3d 353, 394-395 [“Appellate courts review the instructions to a jury regardless of objection because to do otherwise would reduce litigation to a hypertechnical game of some sort.”].)
The trial court must instruct sua sponte on the general principles of law governing the case, i.e., those closely and openly connected with the facts of the case before the court, “and necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715 [disappr’d o.g. in People v. Breverman (1998) 19 Cal.4th 142 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12].) That includes an obligation to define fully the elements of an offense when a standard instruction is overbroad or ambiguous on the facts of a case. (See, e.g., People v. Mijares (1973) 6 Cal.3d 415, 422-423.)
In this case, due to the lack of proper instructions, it is impossible to tell whether the jury’s verdict rested on a legally proper or improper theory. Reversal is thus mandated, under state law and the Fourteenth Amendment. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129; People v. Olsen (1986) 186 Cal.App..3d 257, 266-267; People v. Smith (1998) 62 Cal.App.4th 1233, 1239; People v. Llamas (1997) 51 Cal.App.4th 1729, 1740-1741; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670.)
The trial court gave the standard jury instruction on rape, CALJIC No. 10.00, by which the jury must find the defendant guilty if it finds an act of “sexual intercourse” by force or fear. (RT 617.) In the rape statute, the term “sexual intercourse” refers to rape involving a man’s penis and a woman’s vagina. (People v. Holt (1997) 15 Cal.4th 619, 676.)
The jury in this case, however, was not given any instruction which would have caused it to consider the phrase “sexual intercourse” as excluding anal intercourse. Certainly in lay terminology, “sexual intercourse” can easily include anal intercourse. The lay definitions of “sexual intercourse” are broad enough to include anal intercourse. (Webster’s Ninth New Collegiate Dictionary (9th ed. 1991), p. 1079.) In other statutes, anal intercourse, whether between persons of the same sex or opposite sexes, is included within definitions of “sexual intercourse.” (See, e.g., 18 U.S.C. § 2256, subd. (2).) Indeed, that is so even in other California statutes. (Pen. Code, § 311.3, subd. (b)(1); Pen. Code, § 11166, subd. (e)(1); Welf. & Inst. § 361.5, subd. (b).)
In State v. Butters (La. Ct. App. 1988) 527 So.2d 1023, Butters argued that “sexual intercourse” in an incest statute did not include anal intercourse, because it should be given a common meaning which, he argued, was vaginal intercourse. (Id., at p. 1027.) The Court rejected Butters’ view of common meaning, because “Webster’s Third New International Dictionary, 1966, defines ‘sexual intercourse’ as ‘sexual connection esp. between humans.'” (Id., at p. 1028.) The same conclusion was reached in Commonwealth v. Fouse (1992) 417 Pa.Super. 534 [612 A.2d 1067], based on the dictionary definition of “sexual intercourse” that appellant uses here. (Id., at p. 539 [612 A.2d at p. 1069]; see also, e.g., Jones v. State (Tex. Ct. App. 1990) 789 S.W.2d 330, 331 [victim testified “appellant forced her to engage in sexual intercourse, including oral and anal intercourse”].)
Presumably, none of this would have been a problem if the jury had been instructed on sodomy, or had some other method of determining that the crime of rape with which appellant was charged did not include sodomy. That is what happened in People v. Holt, supra, 15 Cal.4th 619, where the jury was instructed on both rape and sodomy. In that specific posture, our Supreme Court held that “in this state rape and sodomy are distinct crimes. There is no reason to think that a California juror, instructed on the elements of each crime, would understand the term ‘intercourse’ or ‘sexual intercourse’ in the instruction on rape to refer to anal intercourse.” (Id., at p. 676 [emphasis added].)
In Holt, not only was the instruction defining rape followed immediately by the definition of sodomy which required sexual penetration of the anus, the trial court further distinguished vaginal from anal intercourse by a later instruction: “[A]ny penetration of the male sex organ into the female sex organ, however slight, constitutes engaging in an act of sexual intercourse.” (Id.) With all of the instructions clearly distinguishing rape from sodomy and defining both, the Supreme Court was clearly correct on the facts of Holt; no juror could have been misled.
No such facts or instructions existed in this case. Appellant was not charged with sodomy, his jury was never instructed on sodomy, and the jury was never given an instruction on rape that said anything about the female sex organ. Unlike in Holt, appellant’s jurors were not “instructed on the elements of each crime [of rape and sodomy].” Appellant’s jurors were merely given an instruction that any sexual intercourse by force or fear constitutes the crime of rape. That is not true, but jurors would not be expected jurors to know that; for as this Court has observed, “Instructions are given on the relevant law simply because we do not presume a jury composed of lay persons is knowledgeable in the law.” (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.)
When it is impossible to tell from a jury instruction whether the defendant has been convicted of a charged offense or an uncharged offense, the conviction must be reversed. (People v. Bowman, supra, 156 Cal.App.2d at p. 800; People v. Pond, supra, 44 Cal.2d at p. 676; Stirone v. United States, supra, 361 U.S. at pp. 216-217.) That is because “[c]onviction upon a charge not made would be sheer denial of due process.” (De Jonge v. Oregon (1937) 299 U.S. 353, 362 [57 S.Ct. 255, 81 L.Ed. 278].)
While the above alone mandates reversal, appellant also notes that the evidence does not permit a conclusion that the jury’s two rape convictions were necessarily for two acts of rape, as opposed to one act of rape and one act of sodomy. First of all, it appears there isn’t any evidence of a second act of rape on June 22. That alone would be dispositive.
Beyond that, Jane Doe [the complaining witness – ed.] had clear and pervasive difficulties with time and sequencing. (RT 322-323.) Moreover, the jury had a date restriction of June 1-22 in its instructions (RT 48-50), but Jane had also lived with appellant through mid-May (RT 240-242) as well as in June. Thus if the jury was going to agree on five counts, it was most likely to agree they all took place on June 22, because the evidence pointed most clearly to June 22 over any other single occasion. It may have been very difficult to tell when other alleged events began or occurred, and Jane’s account of their numbers seemed to vary a lot depending on who was doing the questioning or when and where it took place. But if jurors were going to convict appellant, then it may have been relatively easy to agree on June 22 as a date, because that is the date of almost all events in the evidence.
However, there is no evidence (or, arguendo, very little evidence) of two acts of rape on June 22. The one thing on which Jane was consistent, in her acting out and her testimony, was that “Senior” [appellant] raped her in Senior’s room–but she only mentioned that happening once, and appellant’s later activities in the bathroom were limited to masturbating on her. There was, however, substantial evidence of one act of sodomy on June 22, along with one act of rape. (RT 124, 178.)
Indeed, from a lay juror’s perspective, that result would seem analytically logical as well, given what the jurors had to work with. The jury was instructed that penetration by a foreign object is penetration by any object other than a sex organ (i.e., a penis). (RT 619.) Logically, it would probably conclude that rape was the rest of the universe of penetration crimes. If jurors wanted to do a little more speculation, they might also have concluded that the reason the prosecution originally charged these five offenses, and not more, was that these were the five offenses most likely to be proved under the evidence–two digital penetrations, one vaginal and one anal (Counts 3 and 4); one oral copulation (Count 5); and two penile penetrations, one vaginal and one anal (ostensibly Counts 1 and 2). Jurors had no way to know the last of those was an uncharged offense.
In any event, if the jurors merely relied on the trial court’s instructions and the evidence, as the court’s instructions told them to (RT 603-604), there is at least a reasonable likelihood jurors could have interpreted the instruction as appellant sets forth here, and nothing in this record indicates they didn’t. Thus, the standard for constitutional instructional error is met. (See People v. Prettyman (1996) 14 Cal.4th 248, 272; Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) This record simply cannot establish that appellant’s two rape convictions were both for the charged rapes, as opposed to a charged rape and an uncharged offense.
For these reasons, the judgment must be reversed as to one of the two rape convictions.