People v. Avila

1 All further statutory references are to the Penal Code unless otherwise noted.

2 Section 208, subdivision (d), states in relevant part, “If the person is kidnapped with the intent to commit rape ... the kidnapping is punishable by punishment in the state prison for 5, 8, or 11 years.”

3 In the body of this opinion, we have set forth the pertinent facts concerning the kidnapping and rape of Jacqueline M. However, defendant was also convicted of the December 16,1991, rape of Blanca C. We need not address the effect of the testimony concerning the rape of Blanca C. or the state of the evidence concerning the sexual assault and aggravated kidnapping of Jacqueline M. on December 15, 1992.

4 The jurors were instructed as follows: “Defendant is accused ... of having committed the crime of kidnapping with intent to commit rape, a violation of Section 208(d) of the Penal Code . . . . HD Every person who, with the specific intent to commit rape, kidnaps any individual, is guilty of the crime of kidnapping to commit rape in violation of Penal code Section 208(d). [50 The specific intent to commit rape must be present when the kidnapping commences. [50 [Kidnapping is the unlawful movement by physical force or by any other means of instilling fear of a person without that person’s consent for a substantial distance where such movement is not merely incidental to the commission of the rape.] [50 [Kidnapping is also the unlawful compulsion of another person without that person’s consent and because of a reasonable apprehension of harm, to move for a substantial distance where such movement is not merely incidental to the commission of the rape.] [50 In order to prove such crime, each of the following elements must be proved: [50 [1. A person was [unlawfully] moved by the use of physical force,] or [50 [l.A person was [unlawfully] compelled to move because of a reasonable apprehension of harm,] [50 2. The movement of such person was caused with the specific intent to rape, and the person [50 causing such movement had such specific intent to rape when the movement commenced, [50 3. The movement of such person was without that person’s consent, [50 4. The movement of such person was for a substantial distance, that is, a distance more than slight or trivial.” Also, the jurors were instructed that in order to return a guilty verdict, there must “exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”

5 Section 667.8, subdivision (a), mandating an additional term when a victim is kidnapped for the purpose of committing a sexual offense, expressly incorporates the asportation standard of simple kidnapping. (§ 207.) Section 667.8, subdivision (a) states in relevant part: “[A]ny person convicted of a felony violation of [specified sexual offenses] who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207, shall be punished by an additional term . . . .” (Italics added.) Therefore, People v. Rayford, supra, 9 Cal.4th at page 22, is inapplicable to section 667.8 enhancements. (People v. Johnson (1995) 31 Cal.App.4th 1041 , 1046-1047 [ 37 Cal.Rptr.2d 498 ].)

6 Section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.”

7 We recognize the test for determining whether a constitutional violation has occurred in the instructional context when a state court conviction is collaterally challenged by way of a federal habeas corpus petition is different from that we have described in the body of this opinion. On federal habeas corpus review, “[t]he only question ... is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ [Citations.] ‘ “[I]t must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it violated some [constutitional] right’ ”).” (Estelle v. McGuire, supra, 502 U.S. at p. 72 [116 L.Ed.2d at p. 399]; accord, Cupp v.Naughten (1973) 414 U.S. 141 , 146 [ 38 L.Ed.2d 368 , 373, 94 S.Ct. 396 ].) We do not apply this test because we are reaching the question of a constitutional violation on direct appeal and such a standard of review has never been adopted by the California Supreme Court.

8 In Rose v. Clark, supra, 478 U.S. at page 577 [92 L.Ed.2d at page 470], the Supreme Court referred to its description in Chapman v. California, supra, 386 U.S. at page 23, footnote 8 [17 L.Ed.2d at page 710] of Payne v. Arkansas (1958) 356 U.S. 560 , 567-568 [ 2 L.Ed.2d 975 , 980-981, 78 S.Ct. 844 ] as a decision which holds that introduction of a coerced confession was subject to a reversible error per se test. In Arizona v. Fulminate (1991) 499 U.S. 279 , 309 [ 113 L.Ed.2d 302 , 330-331, 111 S.Ct. 1246 ], the United States Supreme Court held Payne was not a reversible error per se case; rather the Fulminate court held the issue of whether to apply a reversible error per se test was never squarely addressed in Payne.

9 Sullivan v. Louisiana, supra, 508 U.S. at pages_ [124 L.Ed.2d at pages 190-191] as discussed in the body of the opinion applied the reversible error per se to misinstruction concerning proof beyond a reasonable doubt. However, in Victor v. Nebraska, supra, 511 U.S. at page_[127 L.Ed.2d at page 601], after contrasting the instruction in Sullivan, the court held that even misinstruction concerning reasonable doubt was not violative of the Sixth Amendment under the following circumstances: “In these cases, however, we conclude that ‘taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.’ [Citation.] There is no reasonable likelihood that the jurors who determined petitioners’ guilt applied the instructions in a way that violated the Constitution.” Victor was not a decision premised on harmless error. Rather, in Victor, the court determined that because there was no reasonable likelihood that the instructions taken as a whole, including the misinstruction, were applied by the jurors so as to violate the proof beyond a reasonable doubt requirement, the Sixth Amendment was not violated.

10 The language in Pope v. Illinois, supra, 481 U.S. at pages 503-504, footnote 7 [95 L.Ed.2d at page 447] indicating that pre-Rose authority that a conviction “can never stand” if there is a failure to instruct on “each element of the crime” was now disapproved by the United States Supreme Court is of considerable consequence. The language in the prior decision which was disapproved in Pope was as follows: “A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence, [citation], and 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, [citation]. Findings made by a judge cannot cure deficiencies in the jury’s finding as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime. [Citations.]” (Cabana v. Bullock (1986) 474 U.S. 376 , 384-385 [ 88 L.Ed.2d 704 , 715, 106 S.Ct. 689 ], italics added.) The Pope court was explicitly disapproving the language in Cabana which held that a “verdict cannot stand” if the jury was not required to find each element of the crime. In the present case, defendant is contending that the verdict cannot stand merely because of the failure to instruct as to an element—a rule of federal constitutional law rejected by the United States Supreme Court in Pope.

11 In the post-Rose environment, the federal circuit courts have been in disagreement as to whether the failure to instruct concerning an single element of an offense is subject to the Chapman harmless error test. The Sixth Circuit has held such error is reversible error per se. (Hoover v. Garfield Heights Mun. Court (6th Cir. 1986) 802 F.2d 168 , 177-178 [failure to instruct on lawful arrest element of resisting arrest under Ohio law].) However, the Sixth Circuit has subsequently observed that its decision in Hoover “may not be long for this world in light of recent Supreme Court trends. [Citations.]” (U.S. v. Dotson (6th Cir. 1990) 895 F.2d 263 ,265.) By contrast, the Second and Seventh Circuits have held that the Chapman standard is applicable when a court fails to instruct as to elements of an offense. (Ianniello v. U.S. (2d Cir. 1993) 10 F.3d 59 , 63-65 [failure to instruct in a RICO action that predicate acts must be interrelated]; U.S. v. Parmelee (7th Cir. 1994) 42 F.3d 387 , 392, cert, applied for April 27, 1995, Supreme Ct. Dock. No. 94-1933) [failure to instruct on guilty knowledge requirement of transporting illegal aliens under federal statute].) The Ninth Circuit Court of Appeals recently held “the failure to instruct on any of the elements of an offense cannot be analyzed by harmless error principles and requires automatic reversal.” (Harmon v. Marshall (9th Cir. 1995) 59 F.3d 763 , 764.) In Harmon, the trial court had given no instruction defining the elements of two of the twelve offenses of which the defendant was convicted. The Ninth Circuit Court of Appeals affirmed the district court’s order granting the defendant’s habeas corpus petition. The court cited U.S. v. Gaudin (9th Cir. 1994) 28 F.3d 943 , 951, and U.S. v. Stein (9th Cir. 1994) 37 F.3d 1407 , 1410, for the proposition “omitting instruction on, or otherwise failing to submit to the jury, one element of an offense is reversible per se. [Citation.]” (Harmon v. Marshall, supra, 59 F.3d at p. 764.) Gaudin was a plain error case (Fed. Rules Crim.Proc., rule 52(b), 18 U.S.C. [error not objected to in the trial court but “affecting substantial rights”]) in which the district court judge had erroneously instructed the juty on an element of the charged offense as having been established as a matter of law. The Ninth Circuit Court of Appeals held the error was “a fundamental structural error" (U.S. v. Gaudin, supra, 28 F.3d at p. 952) which “cannot be harmless” and was plain error. (Id. at p. 951.) Gaudin was affirmed by the United States Supreme Court to the extent it held the element at issue was a question of fact for the jury. (U.S. v. Gaudin (1995) 515 U.S. _, _ [ 132 L.Ed.2d 444 , 458, 115 S.Ct. 2310 ].) The United States Supreme Court did not reach the question whether the error could be harmless. (See id. at p--- conc. opn. of Rehnquist, C. J.).) Another Ninth Circuit decision, U.S. v. Stein, supra, 37 F.3d at pages 1409-1410, involved conflicting instructions on the knowledge element of a money laundering charge. The Ninth Circuit Court of Appeals held the instructions “[t]aken as a whole, . . . omitted an element of the offense as surely as if the district court had failed to mention the element altogether.” (Id. at p. 1410.) The court concluded the error was reversible per se. (Ibid.) The final pertinent Ninth Circuit case to apply a reversible error per se decision, U.S. v. Hove (9th Cir. 1995) 52 F.3d 233 , 235-236, held the failure to instruct on the willfulness element of currency structuring was plain error and could not be harmless. By contrast, the Ninth Circuit Court of Appeals has found harmless error analysis applicable in other instructional error cases. For example, in Roy v. Gomez (9th Cir. 1995) 55 F.3d 1483 , 1485), the court held, on appeal from the denial of a petition for habeas corpus, that the omission of an element of aider and abettor liability under California law, so-called “Beeman error,” was not prejudicial. Therefore, the defendant was not entitled to habeas corpus relief. (Id. at p. 1486; accord, Martinez v. Borg (9th Cir. 1991) 937 F.2d 422 , 424-426 [concluding “Beeman error” was subject to harmless error analysis].) In U.S. v. Whitmore (9th Cir. 1994) 24 F.3d 32 , 33, a defendant appealed his conviction of using a communication facility to engage in drug trafficking in violation of federal law. The question before the court was whether the district court’s failure to instruct on the knowledge element of the offense was *662 plain error. (Ibid.) The court held the error was not prejudicial within the meaning of the plain error rule and concluded: “Rather, the error was harmless beyond a reasonable doubt.” (Id. at p. 35.) The court explained: “ ‘The harmfulness of an error must necessarily be considered in order to determine if the error is plain error justifying reversal, because if an error is harmless, it cannot be plain error.’ [Citation.]” (Ibid.) The court distinguished U.S. v. Gaudin, supra, 28 F.3d at pages 951-952, as having involved the complete removal of an element from the jury’s consideration. (U.S. v. Whitmore, supra, 24 F.3d at p. 36.) The court concluded that under the facts of Whitmore, and the instructions given in that case, the omitted instruction was harmless. (Id. at pp. 36-37.) In Hennessy v. Goldsmith (9th Cir. 1991) 929 F.2d 511 , 514-517, on appeal from a grant of habeas corpus, the Ninth Circuit Court of Appeals held the failure to instruct on an element of second degree kidnapping under Arizona law was subject to harmless error analysis. None of the Ninth Circuit panels have discussed the language in Pope v. Illinois, supra, 481 U.S. at page 504, footnote 7 [95 L.Ed.2d at p. 447], which we find controlling. There, as noted in the body of this opinion, the United States Supreme Court stated: “To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, see, e.g., Cabana v. Bullock . . . , after Rose, they are no longer good authority.” As discussed above, the language in Cabana which was disapproved in Pope was as follows: “A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence, [citation], anda 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, [citation]. Findings made by a judge cannot cure deficiencies in the jury’s finding as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime. [Citations.]” (Cabana v. Bullock, supra, 474 U.S. at pp. 384-385 [88 L.Ed.2d at p. 715], italics added.) We are bound by Pope, find it to be the controlling decisional authority, and apply it in the present case.

12 Except for the Eighth and District of Columbia Circuits which have never addressed the issue, the federal Courts of Appeals are in accord that in conducting constitutional review of jury instruction issues, failure to instruct concerning an element is less prejudicial than misinstruction. (Robinson v. Ponte (1st Cir. 1991) 933 F.2d 101 , 105; Roy v. Coxon (2d Cir. 1990) 907 F.2d 385 , 388; United States ex rel. Dorey v. State of N. J. (3d Cir. 1977) 560 F.2d 584 , 587; Cooper v. State of N. C. (4th Cir. 1983) 702 F.2d 481 , 484; Sullivan v. Blackburn (5th Cir. 1986) 804 F.2d 885 , 887; Martin v. Foltz (6th Cir. 1985) 773 F.2d 711 , 718; United States ex rel. Bonner v. DeRobertis (7th Cir. 1986) 798 F.2d 1062 ,1067; United States v. Cruz (9th Cir. 1986) 783 F.2d 1470 , 1472; Maes v. Thomas (10th Cir. 1995) 46 F.3d 979 , 984; Jacobs v. Singletary (11th Cir. 1992) 952 F.2d 1282 , 1290.)

13 Other United States Supreme Court decisions have emphasized, in other contexts, the problems inherent when any reversible error per se rule is applied in terms of the victims’ interests. In United States v. Mechanik (1986) 475 U.S. 66 , 72 [ 89 L.Ed.2d 50 , 57-58, 106 S.Ct. 938 ], a case involving an excessive number of witnesses appearing before the grand jury, in which was unsuccessfully argued such error was reversible per se, the Supreme Court held: “The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. [Citation.] The ‘[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.’ [Citations.] Thus, while reversal ‘may, in theory, entitle the defendant only to retrial, in practice it may reward the accused *667 with complete freedom from prosecution,’ [citation], and thereby ‘cost society the right to punish admitted offenders.’ [Citation.] Even if a defendant is convicted in a second trial, the intervening delay may compromise society’s ‘interest in the prompt administration of justice,’ [citation], and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.” As can be noted from the body of this opinion, we conclude this is a case where the error had “no effect on the outcome of the trial” (ibid.) and the retrial would require Jaqueline M. to relive the terrifying kidnapping and rape, a course of criminal conduct nobody disputes occurred. In Morris v. Slappy (1983) 461 U.S. 1 , 14-15 [ 75 L.Ed.2d 610 , 621-622, 103 S.Ct. 1610 ], the court held: “In its haste to create a novel Sixth Amendment right, the court wholly failed to take into account the interest of the victim of these crimes in not undergoing the ordeal of yet a third trial in this case. Of course, inconvenience and embarrassment to witnesses cannot justify failing to enforce constitutional rights of an accused: when prejudicial error is made that clearly impairs a defendant’s constitutional rights, the burden of a new trial must be borne by the prosecution, the courts, and the witnesses; the Constitution permits nothing less. But in the administration of criminal justice, courts may not ignore the concerns of victims. Apart from all other factors, such a course would hardly encourage victims to report violations to the proper authorities; this is especially so when the crime is one calling for public testimony about a humiliating and degrading experience such as was involved here. Precisely what weight should be given to the ordeal of reliving such an experience for the third time need not be decided now; but that factor is not to be ignored by the courts. The spectacle of repeated trials to establish the truth about a single criminal episode inevitably places burdens on the system in terms of witnesses, records, and fading memories, to say nothing of misusing judicial resources. [C¡D Over 75 years ago, Roscoe Pound condemned American courts for ignoring ‘substantive law and justice,’ and treating trials as sporting contests in which the ‘inquiry is, Have the rules of the game been carried out strictly?’ Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 29 ABA Ann. Rep. 395, 406 (1906). A criminal trial is not a ‘game,’ and nothing in the record of respondent’s two trials gives any support for the conclusion that he was constitutionally entitled to a new trial. The state courts provided respondent a fair trial and the United States District Judge properly denied relief.” This authority is inconsistent with defendant’s contention that we should adopt a reversible error per se standard in the present case.

14 Apart from the theoretical jurisprudencial concerns raised by the application of the reversible error per se test to a case where the trial judge was jurisdictionally obligated to instruct as she did, there is another pertinent practical consideration. Defendant must be held accountable for the violent sexual assaults in the present case. To apply a reversible error per se test would elevate a rigid rule of process over the need for personal responsibility on defendant’s part for his violent criminal conduct.

* See footnote, ante, page 642.