Brief Bank # B-966 (Re: F 10.55 n2 [Aggravated Sexual Assault Of A Child (PC 269): Ex Post Facto].)
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Date of Brief: October, 2002
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 Wendy C. Duffy, 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. APPELLANT’S CONVICTIONS ON COUNTS 1 AND 2, FOR VIOLATIONS OF PENAL CODE SECTION 269, VIOLATED CONSTITUTIONAL PROHIBITIONS ON EX POST FACTO PUNISHMENT
A. Counts 1 and 2 Should Be Reversed on Ex Post Facto Grounds
Both the federal and state constitutions prohibit the application of ex post facto laws. (U.S. Const., art. I, §§ 9 & 10; Cal. Const., art. I, § 9.) Appellant asserts that his prosecution and convictions on counts 1 and 2 for violating section 269 ran afoul of the ex post facto prohibition.
Section 269, imposing a sentence of 15-years-to-life imprisonment for the aggravated sexual assault of a child, became effective on November 30, 1994. (Stats. 1st Ex. Ses. 1993-1994, Ch. 48, § 1 (SB 30 X).) However, appellant’s jury was instructed that it could convict him of violating section 269, and find him guilty on counts 1 and 2, based upon conduct which could have occurred as early as May 1991.
The amended information under which appellant was brought to trial alleged in pertinent part with respect to count 1:
On or about May 7, 1991 through May 7, 1996, the crime of aggravated sexual assault of a child—oral copulation, in violation of Section 269 (a)(4) of the Penal Code, a felony, was committed by John Doe, who did commit an act in violation of Penal Code Section 288a upon victim, Jane Doe . . . . (CT 108 [emphasis added].)
Similarly, with respect to count 2, the amended information alleged:
[F]or a further and separate cause of complaint . . . complainant further complains and says: On or about May 7, 1991 through May 7, 1996, the crime of aggravated sexual assault of a child— PC. 289 (a), in violation of Section 269 (a)(5) of the Penal Code, a felony, was committed by John Doe, who did commit an act in violation of Penal Code Section 289 (a) upon victim, Jane Doe . . . . (CT 109 [emphasis added].)
Likewise, the jury in finding appellant guilty as to count 1 delivered a verdict as follows:
We . . . find the Defendant, John Doe, guilty of the crime of aggravated sexual assault of a child/oral copulation [288a P.C.], in violation of Penal Code Section 269 (a)(4), committed on or about May 7, 1991, through May 7, 1996. (CT 172 [emphasis added].)
The verdict as to count 2 read:
We . . . find the Defendant, John Doe, guilty of the crime of aggravated sexual assault of a child/genital penetration by foreign object [289 (a)], in violation of Penal Code Section 269 (a)(5), committed on or about May 7, 1991, through May 7, 1996. (CT 173 [emphasis added].)
In Beazell v. Ohio (1925) 269 U.S. 167 [70 L.Ed. 216, 46 S.Ct. 68] the United States Supreme Court summarized the meaning of the ex post facto clause as follows:
[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.
(Id., 269 U.S. at 169-170 [emphasis added].)
This formulation was reaffirmed in Collins v. Youngblood (1990) 497 U.S. 41, 43-44 [111 L.Ed.2d 30, 110 S.Ct. 2715]. (See also In re Arafiles (1992) 6 Cal.App.4th 1467, 1481-1484.)
The legislative purpose of section 269 was to increase punishment for certain enumerated forcible sexual acts committed against a minor victim. (See People v. Jimenez (2000) 80 Cal.App.4th 286, 291.) Although the sexual misconduct encompassed within the various subdivisions of section 269 was all previously criminalized, the purpose and effect of section 269 was to impose increased punishment, by way of 15-years-to-life imprisonment, on specified criminal conduct which had previously carried a lesser penalty.
In the present case Ms. J testified in a generic manner as to various sexual encounters with appellant beginning in approximately 1991 when she was nine years old. (See 5 RT 1028-1033, 1044-1046.) With the exception of the sexual encounter on January 18, 1999, which resulted in appellant’s arrest, Ms. J’s testimony was vague and nonspecific regarding the dates of the various sexual acts.
Accordingly, both the evidence presented at trial and the language of the jury’s verdicts (CT 172-173) indicate the possibility, and in fact the probability, that appellant was convicted ex post facto under a statute, by way of section 269, that did not exist when the sexual acts upon which the jury predicated appellant’s guilt occurred. Therefore, reversal of appellant’s convictions upon counts 1 and 2 is required. [Footnote 1]
B. Alternatively, Appellant is Entitled to Relief on the Basis of Ineffective Assistance of Trial Counsel
Appellant asserts that the ex post facto objections discussed above, implicating fundamental constitutional protections, are preserved on appeal on the present record. However, appellant anticipates that respondent may argue that appellant’s trial counsel failed to raise these objections to counts 1 and 2 in the trial court below.
If appellant’s trial counsel was required, but failed, to lodge potentially meritorious objections to counts 1 and 2 on ex post facto grounds, then appellant asserts that trial counsel rendered ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. (Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Clearly “no satisfactory tactical reason” could exist for counsel’s failing to lodge meritorious ex post facto objections to counts 1 and 2, which objections could only help, and certainly not hurt, his client. (People v. Nation (1980) 26 Cal.3d 169, 179.) Furthermore, as explained in subpart A. above, trial counsel’s derelictions were certainly prejudicial.
Accordingly, appellant’s convictions on counts 1 and 2 should be reversed based upon ineffective assistance of trial counsel.
OPENING BRIEF FOOTNOTES:
In People v. Grant (1999) 20 Cal.4th 150, the California Supreme Court found that the prohibition on ex post facto punishment did not apply to violation of section 288.5, continuous sexual abuse of a child, in a case where some of the defendant’s wrongful acts were committed before the enactment of section 288.5, but the prohibited conduct continued after the effective date of the statute. (Id. at 161-162.) The Grant court reasoned: “application of a newly amended or enacted law to a so-called ‘straddle’ offense, that is, a crime that begins before and continues after the law’s effective date, does not violate the federal Constitution’s prohibition against ex post facto laws.” (Id. at 159 [emphasis added].) That reasoning does not apply here. Section 269 imposes punishment for a single sexual offense committed at one place and time. That is, the jury in appellant’s case could have convicted appellant as to both counts 1 and 2 based upon single events which occurred prior to November 1994, the effective date of section 269.
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 Wendy C. Duffy, 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. APPELLANT’S CONVICTIONS ON COUNTS 1 AND 2, FOR VIOLATIONS OF PENAL CODE SECTION 269, VIOLATED CONSTITUTIONAL PROHIBITIONS ON EX POST FACTO PUNISHMENT
A. This Error Was Not Harmless
Respondent “concede[s] that the jury was improperly instructed” in violation of the constitutional prohibitions against ex post facto laws and punishment. (RB 16.) Respondent does claim, however, that the guilty verdicts on counts 1 and 2 can be salvaged on the basis of a harmless error analysis. Appellant disagrees.
Respondent states that “[u]nder the Chapman standard of review, reversal is not required” herein because “it is clear ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (RB 18 [quoting Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Respondent points out that Ms. J “testified, in generic fashion” that appellant committed numerous acts of oral copulation (for purposes of count 1) and digital penetration (for purposes of count 2) beginning “sometime between May 1989 and May 1990” and continuing, except for a two-year interruption while Ms. J was in Arizona, “until appellant’s arrest in January 1999.” (RB 18.) Appellant, on the other hand, testified that he had only engaged in four acts of consensual sexual intercourse with Ms. J during the years 1998 and 1999; he had not committed any acts of oral copulation or digital penetration. Since, according to respondent, “[t]he jury’s only choice was to believe Ms. J or appellant” and the jury “decided to believe Ms. J,” the jury, if correctly instructed, would have found appellant guilty of “forcible sexual penetration and forcible oral copulation on or after November 30, 1994, the effective date of section 269.” (RB 19.)
Respondent’s factual premise is wrong because, in point of fact, the jury herein did not simply “decide[ ] to believe Ms. J” in all particulars. The jury acquitted appellant on counts 9, 10 and 11, all alleging forcible sodomy, notwithstanding Ms. J’s testimony that these acts had occurred. (CT 180-185; 5 RT 1048-1050, 1053-1054, 1059.) Thus, respondent’s argument that this Court should find this error harmless because the jury decided to believe all of Ms. J’s testimony and Ms. J testified to post-November 30, 1994 acts of forcible oral copulation and digital penetration fails because the jury clearly did not believe everything Ms. J said at trial.
Furthermore, respondent’s understanding of the Chapman standard is incorrect as a matter of constitutional law. As explained below, the critical question is whether respondent can prove beyond a reasonable doubt that, notwithstanding this error, the jury’s guilty verdicts on counts 1 and 2 actually rested upon one act of oral copulation and one act of digital penetration, both of which occurred between November 30, 1994, and May 7, 1996. The answer as to both counts is “no”; therefore, these two convictions must be reversed.
The present error is essentially instructional in nature and may be analyzed as such. The jury was told that they could find appellant guilty on count 1, if it found that appellant committed an act of forcible oral copulation “on or about May 7, 1991, through May 7, 1996” (CT 172 [emphasis added])—the jury should have been told that a conviction on that count had to rest on finding an act of forcible oral copulation on or about November 30, 1994, through May 7, 1996. The error involving count 2 (forcible digital penetration) was similar. (CT 173.) The jury was also told, per CALJIC No. 17.01:
The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction on Counts 1, 2, 4, 5, 6, 7, 9, 10, and 11 may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty to any of those counts, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict. (CT 285 [emphasis added].)
Count 1 charged a single act of forcible oral copulation and count 2 charged a single act of forcible digital penetration. From this it follows that, in accordance with CALJIC No. 17.01, the jurors unanimously agreed upon a single selected act upon which to base its count 1 guilty verdict and a single selected act for its count 2 verdict. Respondent cannot establish “beyond a reasonable doubt” that the individual act upon which the jury rested its count 1 verdict did not fall between May 7, 1991, and November 29, 1994, and that the individual act upon which the jury rested its count 2 verdict did not fall between May 7, 1991, and November 29, 1994, thereby violating constitutional ex post facto prohibitions. Therefore, respondent cannot establish that this error was harmless under the Chapman standard.
Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884] strongly undercuts respondent’s position that a reviewing court may constitutionally engage in a free-ranging inquiry with respect to all the evidence presented at trial in the process of applying the Chapman test and determining whether instructional error fatally infected the jury’s guilty verdict. Yates concerned a trial court’s improper mandatory rebuttable presumption on the element of malice in a murder prosecution. In reversing, the Yates court found this error subject to a two step analysis: First, the reviewing court is called upon to “ask what evidence the jury actually considered in reaching its verdict.” (Id., 500 U.S. at 404.) The answer to this first question must be duly limited by “analysis of the instructions given to the jurors and from application of the customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” (Ibid. [emphasis added].) Second, the reviewing court should “weigh the probative force of that evidence,”—i.e., the evidence actually considered by the jury per the given instructions—to determine if the element impacted by the defective instruction was nonetheless established “beyond a reasonable doubt.” (Id., 500 U.S. at 404-405.)
Applying Yates to the present situation, it can be seen that reversal is required. Under the first Yates prong, the jury could certainly have reached its verdicts on counts 1 and 2 based entirely upon evidence of two pre-November 29, 1994 sexual acts and absent any consideration of whether appellant committed acts of forcible oral copulation and digital penetration after that date. The fact that there may have been evidence presented at trial which would have convinced a hypothetical correctly instructed jury to return guilty verdicts on counts 1 and 2 is irrelevant because appellant’s actual jury was not required to look at that evidence with the proper questions in mind. Under the second Yates prong, respondent cannot prove beyond a reasonable doubt that the jury based its guilty verdicts on counts 1 and 2 upon any evidence of conduct occurring after November 30, 1994. Therefore, reversal is required because zero evidence is incapable of establishing anything beyond a reasonable doubt.
This conclusion is also backed up by Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S. Ct. 2078]. Therein, Justice Scalia, speaking for a unanimous court, indicated that Chapman harmless error analysis may not be applied when a deficient jury instruction precludes a jury from determining guilt beyond a reasonable doubt:
Harmless-error review looks . . . to the basis on which “the jury actually rested its verdict. Yates v. Evatt, supra, 500 U.S. 391, 404, 114 L.Ed.2d 432, 111 S.Ct. 1884 (1991) [emphasis added]. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely attributable to the error. . . .
Since . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent [here]. 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 absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. See Yates, supra, 500 U.S. at 413-414, 114 L.Ed.2d 432, 111 S.Ct. 1884 (Scalia, J., concurring in part and concurring in judgment). The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. [Citation.]
(Sullivan v. Louisiana, supra, 508 U.S. at 280 [original emphasis].)
Similarly, in the instant case, because the instructions given created a significant likelihood that the jury found appellant guilty of violating Penal Code [Footnote 2] section 269 on two occasions without considering any conduct which occurred after section 269 was enacted into law, there is “no object” upon which to premise harmless error analysis.
Appellant’s position, that this error cannot be deemed harmless, is supported by this Court’s recent decision in People v. Coelho (2001) 89 Cal.App.4th 861, a case which may not yet be final. In Coelho, the jury found the defendant guilty of 10 counts of lewd and lascivious conduct with a minor, but it was unclear as to which acts the jury used to convict defendant of the various counts. Given the state of the evidence, this presented a problem, for purposes of Three Strikes Law sentencing, because it could not be determined whether the acts corresponding to the guilty verdicts took place on the same occasion or different occasions. The Coelho court held that a court could not resolve the ambiguities in the jury’s verdicts (regarding the date of each act corresponding to a guilty verdict) “by assigning any unlawful act it wants to each verdict.” (Id. at 874.) To reach a contrary result would violate the defendant’s right to due process and a jury trial, as protected by the Fifth, Sixth and Fourteenth Amendments. (Id. at 874-876.)
Respondent claims reliance upon Neder v. United States (1999) 527 U.S. 1 [144 L.Ed.2d 35, 119 S.Ct. 1827]. However, if “‘the defendant contested the omitted element and raised evidence sufficient to support a contrary finding,’ the error could not be harmless” under Neder. (United States v. Nordby (9th Cir. 2000) 225 F.3d 1053, 1060 [citing Neder v. United States, supra, 527 U.S. at 19].) In Neder, the defendant was charged with filing false income tax returns and the Government introduced evidence that he had failed to report over $5 million in income. The Supreme Court noted that “[t]he evidence supporting materiality”—the element which the district court had erroneously failed to give to the jury—“was so overwhelming . . . that Neder did not argue to the jury [and did not argue on appeal] that his false statements of income could be found immaterial.” (Id., 527 U.S. at 16.) In the present case, by contrast, appellant took the witness stand and denied that he had ever committed forcible oral copulation and forcible penetration against the victim. Therefore, this instructional error was not harmless under Neder. Furthermore, as previously noted, the jury did not accept all of Ms. J’s testimony—it believed some parts and disbelieved others.
Reversal of counts 1 and 2 is required.
B. Counts 1 and 2 Should be Stricken and Appellant Should Be Sentenced on Count 3 [Footnote 3]
Respondent argues that, should this Court reverse counts 1 and 2, the appropriate remedy would be to “grant the prosecution a reasonable period after the filing of the remittur to either retry appellant on the charges of aggravated sexual assault of a child in violation of section 269 or accept reductions of those convictions to forcible oral copulation in violation of section 288a, subdivision (c)(2), and forcible sexual penetration in violation of section 289, subdivision (a)(1).” (RB 19-20.)
Respondent’s proposed remedy is inappropriate. Appellant presently stands convicted of violating section 288.5, continuous sexual abuse of a child, charged as count 3. Count 3 encompasses the same time frame—May 7, 1991, through May 7, 1996—as counts 1 and 2. (CT 172-174.) Section 288.5, subdivision (c) states in pertinent part:
No other felony offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. . . .
In People v. Harrah (2001) 88 Cal.App.4th 752 [Footnote 4] this Court explained the operation of this provision as follows:
Section 288.5, subdivision (c) unequivocally states that two felony sex offenses involving the same victim during the same time period may not be charged, except in the alternative. . . . Consequently, the effect of section 288.5, subdivision (c) is to limit the offender’s potential liability to a single count against a given victim in a given time period. While a defendant may be charged and convicted in multiple counts with a violation of section 288, that may not occur with a violation of section 288.5 together with other felony sex offenses involving the same victim in the same charging period.
(Id. at 760 [citations omitted; emphasis added].)
Since section 288.5 (count 3) must be charged and punished as an alternative to other felony offenses involving the same victim and the same time frame (counts 1 and 2), and appellant presently stands convicted of count 3, it would be inappropriate to remand this case for purposes of appellant’s being retried and/or punished for violations of sections 269, section 288a, subdivision (c)(2) and/or section 289, subdivision (a)(1) with respect to acts arising within the same time frame as count 3.
It should also be noted that respondent has not previously charged appellant with violating sections 288a, subdivision (c)(2), and section 289, subdivision (a)(1), and the jury in this case was not instructed that it had the option of convicting appellant of these charges as lesser alternatives to counts 1 and 2. [Footnote 5] (See CT 287-288 [instructing jury that lesser offenses were available only as to counts 7, 8, 9, 10 and 11].)
If this Court should decide to reverse counts 1 and 2, while at the same time affirming appellant’s other convictions, then an appropriate remedy would be to impose a consecutive one-third the midterm on count 3, amounting to four years. (See § 288.5, subd. (a); § 1170.1, subd. (a); see also discussion at AOB 72-74.) Counts 1 and 2 should be stricken. (People v. Harrah, supra, 88 Cal.App.4th at 760.)
REPLY BRIEF FOOTNOTES:
All statutory references are to the Penal Code unless otherwise indicated.
The argument set forth in subpart B. above rests on the assumption that this Court declines to fully reverse all of appellant’s convictions (based upon appellant’s Arguments II and III). If this Court decides to reverse counts 1 and 2 on ex post facto grounds, then appellant would request and argue for the relief set forth in Argument I.B. in preference to the relief sought by way of Argument V., below. If, on the other hand, this Court rejects the argument set forth in Argument I.B., then appellant requests relief as set forth in Argument V. Appellant’s Argument V., regarding his section 288.5 sentence (count 3), is premised on the assumption that this Court affirms his convictions and sentences on counts 1 and 2.
To the best of appellant’s knowledge, a petition for review is presently pending in Harrah.
The jury was provided with instructions on the elements of sections 288a and section 289, but only in the context of providing guidance for the section 269, subdivision (a) violations. (CT 275, 277, 283.)