Brief Bank # B-965 (Re: F 10.42 n6 [Lewd Act With Child: Improper To Define “Menace” With Civil Code Definition].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent
v.
JOHN DOE,
Defendant and Appellant.
_________________________________/
_________________________________________________________________
On Appeal from the Superior Court of the State of California
in and for the County of Monterey
Honorable Stephen A. Sillman, Judge
_________________________________________________________________
APPELLANT’S OPENING BRIEF
RICHARD L. RUBIN
4200 Park Blvd., # 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
John Doe
ARGUMENT
I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT, AS A MATTER OF LAW, MENACE INCLUDES THE THREAT OF UNLAWFUL CONFINEMENT OF A PERSON OR HER ANCESTOR
A. Procedural Background
One element of a forcible sexual offense, such as forcible commission of a lewd act against a child or forcible sexual penetration, is that the sexual act be committed by means “of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” (§ 288, subd. (b); § 289, subd. (a)) — hereinafter sometimes collectively referred to as “the force element.” In connection with the force element and at the prosecutor’s request, the judge instructed the jury with the following definition of menace: “Menace includes the threat of unlawful confinement of the person, or of an ancestor of such party.” (4 CT 814; 10 RT 2268.)
The purpose of this instruction was to explain the meaning of the word “menace” as used in the instructions defining the crimes of forcible lewd act (§ 288, subd. (b); given 4 CT 812-813) and forcible sexual penetration (§ 289, subd. (a); given 4 CT 823). The prosecutor stated that his special instruction regarding “menace” was supported by “Civil Code Sections 1569, 1570 as suggested by CALJIC 10.42, Comment.” (2 CT 411.) Defense counsel objected to this instruction, but his objection was overruled. (6 RT 1257.)
B. The Trial Court Erred in Giving This Instruction
As noted by the prosecutor, the official Comment for CALJIC No. 10.42 indicates that courts may look to Civil Code sections 1569 and 1570 for purposes of defining the term “menace” as used in CALJIC No. 10.42. Civil Code section 1569, subdivision (1), states that one form of duress is the “[u]nlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife.” Appellant asserts that, notwithstanding the CALJIC Comment, there are several compelling reasons why the Civil Code definition of duress should not be engrafted upon Penal Code section 288, subdivision (b), and section 289, subdivision (a).
As an initial matter, it should be pointed out that CALJIC Comments and Use Notes, like the CALJIC instructions themselves, do not “have the force of law.” (People v. Alvarez (1996) 14 Cal.4th 155, 223, fn. 28; accord People v. Runnion (1994) 30 Cal.App.4th 852, 858.) “[T]he trial court is not obligated . . . to repeat the words chosen by the CALJIC Committee. . . . Instead, the trial court’s obligation is to state the law correctly.” (People v. Runnion, supra, 30 Cal.App.4th at 858.)
Civil Code section 1569 is part of a division of the Civil Code entitled “Nature of a Contract.” The purpose of section 1569 and neighboring provisions of the Civil Code is to govern private contact law. (See e.g., In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84-85; Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154.) As a general rule, the law regarding private contracts is quite different from the law regarding criminal sexual offenses. For example, Civil Code section 1565 defines “consent” as agreement which is “1. free; 2. mutual; and 3. communicated by each to the other.” On the other hand, for purposes of the law governing sexual offenses, Penal Code section 261.6 defines consent quite differently: “‘[C]onsent’ shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” It would surely be error to give the Civil Code definition of “consent” in a rape trial. Similarly, Civil Code sections 1567 and 1577 indicate that a good faith “mistake of fact” may serve as a defense to an action for enforcement of a contract. In People v. Paz (2000) 80 Cal.App.4th 293, the appellate court rejected the notion that a defendant’s mistake of fact regarding the victim’s age and ability to consent could serve as a defense to a charge of violating Penal Code section 288. In sum, even though terms such as “consent,” “mistake” and “duress” may arise in both civil cases involving contract law and criminal prosecutions for sex crimes, the law regarding contract is quite different from that involving sexual offenses and it would be wrong for judges to assume that legal definitions used in the contract context are applicable in formulating instructions for juries in sex crime trials.
Furthermore, it is clear from the analysis set forth above that the Legislature does not enact statutes as part of the Civil Code division governing civil contracts with the idea that those same provisions of law will be applied in sex crime prosecutions. Nor is appellant aware of any published California appellate decision that supports an instruction that “menace,” as used in the context of a sexual offense, shall be specifically defined for the jury as including the threat of unlawful confinement of the alleged victim or her ancestor. [Footnote 1]
Webster’s Third New International Dictionary (1993), page 1409, gives as the primary meaning of the word “menace”: “a show of intention to inflict harm: a threatening gesture, statement, or act.” None of the given definitions make reference to confinement or imprisonment.
A proper legal definition of “menace” for purposes of section 288, subdivision (b), and section 289, subdivision (a), exists in section 261, which defines rape. Section 261, subdivision (c) states: “As used in this section, ‘menace’ means any threat, declaration, or act which shows an intention to inflict an injury upon another.”
There are two reasons why the definition of menace set forth in Penal Code section 261, subdivision (c), rather than the definition set in Civil Code sections 1569 and 1570, should have been given herein. First, Penal Code sections 261, 288, and 289 are all in pari materia because they relate to the same subject or object, i.e., criminal sexual offenses. It is well settled that a word common to two statutes which are in pari materia must be given the same meaning in each statute. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 356 [“[w]here the same term or phrase is used in a similar manner in two related statutes concerning the same subject, the same meaning should be attributed to the term in both statutes unless countervailing indications require otherwise”]; Gonzales & Co. v. Department of Alcoholic Beverage Control (1984) 151 Cal.App.3d 172, 178.) Second, the Penal Code section 261, subdivision (c) definition of menace is more rigorous than the Civil Code definition because it includes a requisite intent (“an intention to inflict an injury upon another”) and the Civil Code definition does not. Any doubt or conflict about the correct statutory definition of a term should be resolved in favor of the defendant. (People v. Bradley (1983) 146 Cal.App.3d 721, 725.)
In sum, the trial court erred in instructing the jury that, as a matter of law, “menace includes the threat of unlawful confinement of the person” or her “ancestor.” That definition is not part of the California law which governs criminal sexual offenses. This definition of “menace” relieved the prosecution of the burden of establishing the force element for purposes of section 288, subdivision (b), and section 289, subdivision (a).
In Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419] the United States Supreme Court summarized the law with respect to conclusive or burden-shifting instructions:
The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Jury instructions relieving States of this burden violate a defendant’s due process rights. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Such directions subvert the presumption of innocence accorded to accused persons, and also invade the truth finding task assigned solely to juries in criminal cases.
(Carella v. California, supra, 491 U.S. at 265.)
In Carella, it was held that California Vehicle Code section 10855 created an unconstitutional mandatory presumption by presuming that a person who keeps a rental car over 20 days from the date of written demand by the owner necessarily does so with the intent to commit theft. The concurring opinion in Carella, together with the plurality opinion in Connecticut v. Johnson (1983) 460 U.S. 73 [74 L.Ed.2d 823, 103 S.Ct. 969], indicate that a conclusive presumption of guilt contained in jury instructions would seldom be deemed harmless error unless the issue had been resolved against the defendant under other properly given instructions. (Carella v. California, supra, 491 U.S. at 272-273.) As argued below, the conclusive presumption that “menace” necessarily includes the threat to confine a person or her ancestor constitutes reversible error in the present case.
The court’s error in instructing the jury that a threat of unlawful confinement would satisfy the element of menace is akin to the error of directing a verdict as to an element of an offense. “The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered directly or indirectly. [Citation.]” (United States v. Spock (1st Cir. 1969) 416 F.2d 165, 182 [emphasis added].) Directing the jury to find an element against the defendant violates the Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution to due process and a fair jury trial. (People v. Figueroa (1986) 41 Cal.3d 714, 725; People v. Kobrin (1995) 11 Cal.4th 416, 426; People v. Godinez (1992) 2 Cal.App.4th 492, 502.) The danger of a constitutional violation is present even when the disputed instruction falls short of directing a verdict:
The prohibition against directed verdicts “includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.” (United States v. Hayward (D.C. Cir. 1969) 420 F.2d 142, 144.) As one panel of the Fifth Circuit has stated, “[N]o fact, not even an undisputed fact, may be determined by the judge.” (Roe v. United States (5th Cir. 1961) 287 F.2d 435, 440 []; accord United States v. Musgrave (5th Cir. 1971) 444 F.2d 755, 762.)
(People v. Figueroa, supra, 41 Cal.3d at 724 [emphasis added].)
Although the action of the court below in informing the jury that a threat of unlawful confinement would, as a matter of law, satisfy the element of menace falls short of actually directing a verdict, it nonetheless constitutes an improper intrusion upon a defendant’s right to an independent jury assessment on the question of his guilt. This is illustrated by People v. Godinez, supra, 2 Cal.App.4th 492. Godinez was convicted of voluntary manslaughter on an aiding and abetting theory based upon his participation in a gang attack against the homicide victim and his companions. The Godinez court addressed two interrelated issues which are pertinent here: 1) was there sufficient evidence to sustain Godinez’s conviction on the aiding and abetting theory (id. at 499-500); and 2) was it error for the judge to instruct the jury, as a matter of law, that “[h]omicide is a reasonable and natural consequence to be expected in a gang attack” (id. at 501). As to the first question, the court of appeal held “the record as a whole provided substantial evidence from which a reasonable jury could have found the homicide was a natural consequence of the gang attack which Godinez aided and encouraged.” (Id. at 499-500 [original emphasis].) However, as to the second question, the court of appeal found that it was reversible error for the trial court to include the following statement in its instructions to the jury: “‘Homicide is a reasonable and natural consequence to be expected in a gang attack, though it is not necessary to show that one was aware that another of his co-assailants possessed deadly weapons.’” (Id. at 501 [original emphasis].) The Godinez court explained:
The instant instruction usurped the factfinding role of the jury by explaining that homicides are in fact reasonable and natural consequences of gang attacks, rather than leaving to the jury the question of whether the homicide here was a natural and reasonable consequence of the gang attack Godinez aided and abetted. Instructions have been deemed erroneous which deprive a defendant of the right to have the jury determine the relevant factual issues. [Citations.]
(People v. Godinez, supra, 2 Cal.App.4th at 502 [emphasis added].)
The Godinez court applied the Chapman [Footnote 2] standard of review and found that reversal was required due to this error. (Id. at 503-505.)
The present case is analogous to Godinez with respect to the distinction to be made between the prosecutor’s arguing to the jury that a threat to confine the victims or their family members could satisfy the element of menace and the trial court’s putting its imprimatur upon the prosecutor’s argument by instructing the jury that a threat to unlawfully confine a victim or her ancestor would always amount to “menace.” It was permissible for the district attorney to argue that a threat of unlawful confinement satisfied the element of menace because, similar to the test for sufficiency of the evidence, “a reasonable jury could have found” (id. at 499 [original emphasis]) that to be the case. However, the trial court’s instruction to the jury, indicating that if it found that appellant threatened to unlawfully confine one of the girls or her ancestor then menace was established as a matter of law, was equivalent to the improper instruction in Godinez: it “usurped the factfinding role of the jury.” (Id. at 502.)
Appellant’s position finds additional support in People v. Higareda (1994) 24 Cal.App.4th 1399. In that case the trial judge instructed the jury: “You are instructed that the aiming of a handgun or shotgun at a victim accompanied by a demand and receipt of money or personal property amounts to force and inferably fear, within the meaning of Penal Code 211, defining robbery as a felonious taking by force or fear.” (Id. at 1406.) This instruction was found on appeal to be “fact intrusive and error.” (Ibid.) To permit such instructions, unsupported by statutory authority, would be to countenance the questionable practice of trial judges providing jurors with factual examples of when criminal liability would attach under a given legal theory. This would effectively allow judges to usurp the unique role of the jury in applying law to fact. (Ibid.)
A trial court has a sua sponte duty to correctly instruct the jury on the general principles of law governing the case before it. (People v. Hernandez (1988) 47 Cal.3d 315, 353; People v. Avalos (1984) 37 Cal.3d 216, 229.) A trial court’s instructions should be correctly phrased and not misleading. (People v. Forte (1988) 204 Cal.App.3d 1317, 1323; People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.) This was certainly not a case of invited error by defense counsel—as previously indicated, defense counsel objected to the prosecutor’s menace instruction. (6 RT 1257.) Furthermore, even if counsel had not objected, challenges to jury instructions affecting “substantial rights” are never waived for purposes of appeal. (§ 1259; People v. Cuevas (1995) 12 Cal.4th 252, 260; People v. Roder (1983) 33 Cal.3d 491, 497.)
C. Prejudice
The judge’s error in providing this instruction deprived appellant of his due process right, under the Fifth, Sixth and Fourteenth Amendments of the federal constitution, to have the jury (not the judge) determine each and every factual issue of a charged offense (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [124 L.Ed.2d 182, 113 S.Ct. 2078]; In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed 2d 368, 90 S.Ct. 1068])—in this case whether the alleged lewd acts and sexual penetrations were accompanied by menace. Because this error infringed appellant’s federal constitutional rights to due process and a fair jury trial, it is appropriate to evaluate its effect under the standard of Chapman v. California, supra, 386 U.S. at 24—whether the court’s improper jury instruction may be considered “harmless beyond a reasonable doubt.” (See People v. Odle (1988) 45 Cal.3d 386, 414-415; People v. Godinez, supra, 2 Cal.App.4th at 503; People v. Beltran (1989) 210 Cal.App.3d 1295, 1306-1307.)
In this case, respondent cannot meet that heavy burden. The prosecutor, in arguing to the jury, placed significant reliance upon the court’s improper instruction on menace and the theory that appellant’s threats of confinement satisfied the force element for purposes of the forcible lewd act and the forcible penetration counts. (See 10 RT 2305-2307, 2321.) At one point the prosecutor stated:
And menace is also applicable. That’s precisely what we have. This case, the definition it includes unlawful confinement of a person or the ancestor of such party so duress and menace fall into place because they didn’t want their mom taken away or their siblings taken away and sent to a foster home. So that is what’s going on as far as this portion of the case is concerned.
(10 RT 2305-2306 [emphasis added])
The prosecutor’s heavy reliance upon the court’s improper menace instruction strongly favors the conclusion that this error cannot be deemed harmless. (People v. Green (1980) 27 Cal.3d 1, 70-71.) There can be little question that this error affected the jury’s guilty verdicts on the section 288, subdivision (b) and section 289, subdivision (a) counts. Appellant’s convictions on those counts must be reversed.
OPENING BRIEF FOOTNOTES:
The Comment to CALJIC No. 10.42 relied upon by the prosecutor cites People v. Cicero (1984) 157 Cal.App.3d 465, 473-474, and People v. Quinones (1988) 202 Cal.App.3d 1154, 1158, but both these cases involved the defendant’s use of physical force against the victims and neither involved a threat of confinement.
Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S. Ct. 824].
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent
v.
JOHN DOE,
Defendant and Appellant.
_________________________________/
_________________________________________________________________
On Appeal from the Superior Court of the State of California
in and for the County of Monterey
Honorable Stephen A. Sillman, Judge
_________________________________________________________________
APPELLANT’S REPLY BRIEF
RICHARD L. RUBIN
4200 Park Blvd., # 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
John Doe
ARGUMENT
I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT, AS A MATTER OF LAW, MENACE INCLUDES THE THREAT OF UNLAWFUL CONFINEMENT OF A PERSON OR HER ANCESTOR
A. The Trial Court Erred in Providing the Civil Code Definition of “Menace”
Appellant asserts that the trial court erred in instructing the jury that, as a matter of law, “[m]enace includes the threat of unlawful confinement of the person, or of an ancestor of such party” (4 CT 814; 10 RT 2268). This instruction was improperly “fact intrusive” (People v. Higareda (1994) 24 Cal.App.4th 1399, 1406) and appellate counsel is unaware of any published California appellate decision supporting the proposition that “menace” should be so defined to the jury in a sexual offense case. (See AOB 24.)
Respondent’s principal rejoinder is that it has found a single appellate case — People v. Moore (1961) 196 Cal.App.2d 91 — which affirmed defendant’s conviction for abducting a woman for defilement (Pen. Code [Footnote 3], § 265) based upon having threatened to arrest the victim and take her children away. (See RB 15-17.) There is no indication that the trial court in Moore instructed the jury that menace specifically includes a threat of confinement and no such instructional issue was addressed on appeal. Rather, the Moore court relied upon defendant’s threat of confinement, along with other evidence, to reject claims of insufficiency of the evidence, prosecutorial misconduct and prejudice flowing from the judge’s failure to sua sponte provide certain evidentiary instructions. Respondent’s argument based upon Moore confuses the issue of whether a particular fact pattern is sufficient to support a conviction for an offense with the issue of whether a jury should be instructed, as a matter of law, that a particular fact pattern satisfies an element of that offense. As explained below, those are two very different things.
It is simply not proper for a trial court to seize upon the fact pattern of a published decision upholding a conviction for a certain crime and instruct a jury that if it finds that fact pattern present in the instant case it must accordingly find an element of the charged crime satisfied. This point is illustrated by People v. Godinez (1992) 2 Cal.App.4th 492 and People v. Higareda, supra, 24 Cal.App.4th 1399. (Discussed AOB 28-31.)
The Godinez court explained:
Numerous courts have declared erroneous a variety of instructions which, like the instant one, have deprived the jury of its factfinding role by declaring that certain factual questions have been established. In People v. Nava (1989) 207 Cal.App.3d 1490, 1498 [], and again in People v. Beltran (1989) 210 Cal.App.3d 1295, 1303 [], the courts concluded it was improper to instruct a jury that a bone fracture constitutes a substantial and significant injury within the meaning of a sentencing enhancement, because such factual question must be left to the jury. The court in People v. Jarrell (1987) 196 Cal.App.3d 604, 607 [] and in People v. Hutchins (1988) 199 Cal.App.3d 1218, 1221-1222 [] concluded it was improper to instruct the jury that if it found the defendant guilty, it must fix the degree of the crime as first degree. In each of these cases the court concluded that, no matter how strong the evidence, it is error for the court to deprive the defendant of the right to a jury determination of relevant factual issues.
(People v. Godinez, supra, 2 Cal.App.4th at 502 [emphasis added].)
Godinez itself illustrates this principle. The appellate court found the evidence sufficient to sustain Godinez’s conviction for voluntary manslaughter on the basis that he had participated in a gang attack resulting in the victim’s death (id. at 499-500), while at the same time condemning as reversible error the trial court’s instructing the jury that, as a matter of law, “[h]omicide is a reasonable and natural consequence to be expected in a gang attack” (id. at 501).
Respondent claims that the rule cited in Godinez and Higareda was not implicated here because appellant’s jury did retain some factfinding role with respect to the force element [Footnote 4]: determining whether appellant uttered unlawful threats of confinement. (See RB 23-24.) However, assuming that the jury found those facts proved, it was likewise the jury’s constitutional duty to resolve whether such facts amounted to menace or otherwise satisfied the force element for purposes of adjudicating the sexual charges. (Carrella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419]; People v. Godinez, supra, 2 Cal.App.4th at 502.)
Appellant also pointed out that it is reasonable to believe that the term “menace” for purposes of a forcible lewd act (§ 288, subd. (b)) and a forcible sexual penetration (§ 289, subd. (a)) means the same as “menace” for purposes of forcible rape (§ 261). Therefore, if any definition of “menace” was to be provided in appellant’s case, it should have been that set forth in Penal Code section 261, subdivision (c). It was thus error to give the business contract definition of menace set forth in Civil Code sections 1569 and 1570. (See AOB 25-26.)
Respondent goes through painstaking contortions of logic in efforts to argue that the Legislature, in placing the rape definition of “menace” in section 261, subdivision (c), evidenced an intent that “menace” for purposes of forcible rape should mean something different than “menace” for purposes of other forcible sexual offenses, such as lewd acts with a minor and penetration with a foreign object. (See RB 19-21.) Respondent’s hypertechnical argument overlooks some critical points. Respondent notably fails to posit any rational reason why the Legislature would prefer different definitions of “menace” with respect to such closely related sexual offenses. Respondent also conveniently ignores that the Legislature deliberately acted, by way of the 1990 amendments to the Penal Code, “to bring the crime of rape in line with forcible oral copulation, . . . penetration with a foreign object, and other major sex crimes.” (People v. Valentine (2001) 93 Cal.App.4th 1241, 1249.) In fact, Valentine specifically held that the term “duress” for purposes of forcible rape, as defined in section 261, subdivision (b), should properly be understood as meaning the same as “duress” for purposes of foreign object penetration (§ 289) and oral copulation (§ 288a). (Id. at 1248-1249.) The logic of Valentine should similarly extend the forcible rape definition of “menace,” contained in section 261, subdivision (c), to the crimes of lewd act with a minor (§ 288) and foreign object penetration (§ 289).
Furthermore, while respondent mightily attempts, in applying rules of statutory construction and legislative intent, to show that appellant’s position is wrong, respondent marshals not a shred of evidence to show that, applying those very same rules, its own position favoring the Civil Code definition of “menace” is correct. Respondent conspicuously fails to make out any case that the Legislature intended for courts to employ the business contract definition of “menace,” embodied in Civil Code sections 1569 and 1570, in criminal prosecutions for the forcible sexual offenses defined by Penal Code sections 288 and 289.
Finally, respondent’s argument for use of the Civil Code definition of “menace” over the Penal Code section 261, subdivision (c) definition disregards the rule that any doubt or conflict about the correct statutory definition of a term should be resolved in favor of a criminal defendant. (People v. Bradley (1983) 146 Cal.App.3d 721, 725.) This rule supports the Penal Code section 261, subdivision (c) definition of “menace”because it includes a requisite intent, while the Civil Code definition does not. Appellant raised this key point in his opening brief (at AOB 24-26), but respondent simply ignores it.
Clearly the court below erred in defining “menace” in accordance with Civil Code sections 1569 and 1570.
B. Prejudice
Respondent misunderstands the standard of review for this type of instructional error, which improperly undercuts the jury’s resolution of whether a key element of the charged offenses had been satisfied. The determinative question is not whether a correctly instructed jury might possibly have returned a similar guilty verdict or whether under the given instructions the jury might have used a different, legally permissible route to arrive at the guilty verdict it returned. (See RB 25.) Rather, the proper question is whether respondent can establish beyond a reasonable doubt that the jury did not utilize the illicit “menace” special instruction to satisfy the force element with respect to the various forcible lewd act and forcible penetration counts. (Yates v. Evatt (1991) 500 U.S. 391, 404 [114 L.Ed.2d 432, 111 S.Ct. 1884]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; see discussion at AOB 39-41.)
In the present case, respondent fails to meet that heavy burden. The prosecutor, in arguing to the jury, heavily relied upon the “menace” special instruction, which had been given at his specific request. (See discussion at AOB 33; see also People v. Valentine, supra, 93 Cal.App.4th at 1253 [prosecutorial reliance upon improper definition of duress in sexual assault case supported finding of prejudicial error].)
Therefore, appellant’s convictions on the section 288, subdivision (b), and section 289, subdivision (a) counts must be reversed.
REPLY BRIEF FOOTNOTES:
All statutory references are to the Penal Code unless otherwise indicated.
As in appellant’s opening brief, appellant will use the term “force element” as shorthand for the element of a forcible sexual offense that the sexual act be committed by means “of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (See § 288, subd. (b); § 289, subd. (a).)
