Documente Academic
Documente Profesional
Documente Cultură
________________________________________________________________
ERIC S. MULTHAUP
State Bar No. 62217
20 Sunnyside Avenue, Suite A
Mill Valley, CA 94941
415-381-9311 / 415-389-0865 (fax)
mullew@comcast.net
Attorney for Appellant Brock Turner
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Appellant’s Reply Brief
TOPICAL INDEX
Page
ARGUMENT 10
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Appellant’s Reply Brief
Page
A. Introduction. 68
CONCLUSION 82
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Appellant’s Reply Brief
TABLE OF AUTHORITIES
Page
CASES CITED
Darden v. Wainwright 79
(1986) 477 U.S. 163
McDowell v. Calderone 82
(9th Cir. 1997) 130 F.3d 833
People v. Banks 50
(2014) 59 Cal.4th 1113
People v. Calio 56
(1986) 42 Cal.3d 639
People v. Dancy 43
(2002) 102 Cal.App.4th 21
People v. Doolin 53
(2009) 45 Cal.4th 390
People v. Hill 78
(1998) 17 Cal.4th 800
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Appellant’s Reply Brief
Page
People v. Homick 59
(2012) 55 Cal.4th 816
People v. Johnson 25
(1980) 26 Cal.3d 557
People v. Ramkeesoon 26
(1985) 39 Cal.3d 346
People v. Wagner 78
(1975) 13 Cal.3d 612
People v. Watson 50
(1956) 46 Cal.3d 818
People v. Wyatt 29
(2012) 55 Cal.4th 694
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Appellant’s Reply Brief
Page
STATUTES CITED
TREATISES CITED
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Appellant’s Reply Brief
Page
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Appellant’s Reply Brief
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
______________________________________ )
)
PEOPLE OF THE STATE OF CALIFORNIA, ) No. HO43709
)
)
Plaintiff and Respondent, ) Santa Clara County Super.
) Court No. B1577162
)
vs. )
)
)
BROCK ALLEN TURNER, )
)
)
Defendant and Appellant. )
)
)
hereafter “RB”) is generally accurate and complete. However, there are certain
statements that are not supported by the record and are adverse to appellant.
being held down on the ground by the two Swedish graduate students, RB 24-
25, respondent accurately states that “Deputy Shaw asked the men, who were
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Appellant’s Reply Brief
cites 8 RT 776 as where this testimony occurred]. Respondent next states –
incorrectly – that “[a]s they did so, appellant attempted to stand and flee.”
Deputy Shaw’s actual testimony reflects that when the two Swedish graduate
A: Yes. After the two subjects got up off him, he began to try
to get up.
Q: Once you did that, were you able to gain control of him?
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Appellant’s Reply Brief
The actual testimony of Deputy Shaw specifically rebuts respondent’s
feet in response to Deputy Shaw’s directive, just as Arndt and Jonsson did.
also observed ‘significant trauma inside the labia minora’ (6 RT 389).” RB 27.
Nurse Setterlund may have been using the adjective “significant” in the sense of
being important for diagnostic purposes, but never suggested that the erythema
and the abrasion were serious injuries that required any type of medical
were significant injuries to the genital area,” RB 27, again citing 6 RT 389.
ARGUMENT
that the conviction on Count 1 – assault with intent to commit rape – is fatally
flawed for multiple reasons. For this reason, counsel for appellant addresses at
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Appellant’s Reply Brief
the beginning of the Reply Brief the two arguments specific to Count 1 that
establish that appellant harbored an intent to rape Ms. Doe beyond a reasonable
Respondent argues that “the jury could have inferred intent to rape from
testimony of Ms. Doe’s sister as when “she was socializing on the patio behind
the fraternity house, appellant approached her from behind and kissed her.” RB
1
The People initially charged two counts of rape by intoxication and by
unconsciousness, Penal Code section 261, subject to the forensic analysis of
vaginal swabs. 1 CT 258. The results of that analysis were completed in April
2015 and were negative as to the presence of semen or any other DNA
attributable to appellant. However, the prosecutor left the rape charges in the
Complaint for six more months until the preliminary examination, at which
time the prosecutor stated that “[t]he People will be not proceeding on Counts 1
and 2.” 1 CT 6.
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Appellant’s Reply Brief
appellant “approached her from behind.” That is a mischaracterization on the
part of respondent.2
“steal a kiss” as “to give someone a quick little kiss when they aren’t expecting
Dictionary defines “steal a kiss” as “to kiss someone quickly without them
2
Colleen McCann testified that she, Ms. Doe, her sister, and Julia were talking
with a group that included appellant, and “it was pretty just conversational, like
chat,” but “[t]he only one thing which stood out as odd was that he [appellant]
tried to kiss [Jane II] at one point.” 6 RT 335.
It was just, out of the blue, we were all talking like I said, and then,
he just, out of nowhere, kind of leaned forward and tried to kiss her
but she pulled back. 6 RT 336 (emphasis supplied).
Ms. Doe’s sister testified that she “was standing with Colleen and the defendant
approached me and started to kiss me,” at which point she “started to laugh
because [she] was uncomfortable,” “pulled back and away.” 7 RT 599. She
added that “It came out of nowhere, so I was just really surprised.” Ibid.
Wherever respondent got the notion that appellant “approached her from
behind,” it was not from the trial record.
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expecting it.” www.macmillandictionary.com/us/dictionary/american/steal-a-
kiss.
public place and harboring an intent to rape the person kissed, much less that
toward Ms. Doe’s sister provides evidence that appellant had the specific intent
to rape Ms. Doe later in the evening is completely contrived and devoid of
evidentiary weight.3
3
Respondent cites People v. Story (2009) 45 Cal.4th 1282, 1297 for the
proposition that the “jury could infer intent to rape from evidence of spurned
advances by defendant towards victim and another woman early the same
evening.” RB 51. The evidence of intent to rape in Story consisted of four prior
break-in rapes on different occasions both before and after the break-in rape
murder for which Story was convicted. “The evidence showed that defendant is
a serial rapist, and that his raping conduct began before he killed Vickers and
continued afterwards,” such that “[t]his pattern of conduct ‘provides ample
evidence for a reasonable jury to find that defendant intended to rape [the
victim] when he killed her’.” 45 Cal.4th at 1297. The Supreme Court noted that
each of the four other rape victims had “previously spurned defendant’s sexual
advances,” after which he forced his way into their residences late at night and
raped them. Respondent’s citation to Story to support an inference that
appellant’s stolen kiss revealed a subsequent intent to rape is wildly far-fetched.
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Appellant’s Reply Brief
B. Respondent’s Incorrect Characterization of the Site of Sexual
Activity as A “Secluded Location.”
Respondent contends that “the jury could also have inferred that
appellant intended to rape Jane 1 based on the “secluded location” where the
record, including the photographs found at 2 CT 501, 509, 511. The record is
which are continually used for pedestrian and bicycle traffic on campus at all
Jonsson and Arndt biked from the graduate student housing area in
Stanford’s Escondido Village to the Kappa Alpha fraternity house via a bike
path that put them onto the basketball court in the immediate proximity of
Kappa Alpha house. 4 RT 132. They explained that the regular bike path went
around the basketball court, but they decided to “cut across the basketball court
because it’s a more straight path.” 4 RT 134. Arndt saw appellant and Ms. Doe
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The prosecutor specifically asked Arndt, “[w]as there anything blocking
your view when you first were alerted to the couple behind the dumpster by
Peter,” to which he responded “No.” The prosecutor followed up “So any trees
in between you and the couple when Peter first alerted you to the location,” and
he again answered “No.” 5 RT 151. The exhibits in which Arndt marked the
position where he was when he saw the couple are unmistakably clear that there
the bike path or basketball court and the site where sexual activity occurred; see
court.4
appellant, two other passersby in the same area asked what was going on. 5 RT
175. Arndt walked back to the location where Ms. Doe was and found another
passerby “taking care of her” and “sitting next to her,” trying to get some
response. 5 RT 177. Arndt then walked back to where Jonsson and appellant
In sum, no one familiar with the Stanford campus, nor anyone familiar
with the evidentiary photographs of the site where the sexual activity occurred,
4
Counsel for appellant has requested that the original be transmitted to the
Court pursuant to Rule 8.224, Cal. Rules of Court.
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could colorably characterize the location as “secluded.” Respondent’s
As noted in the Opening Brief with respect to Argument IV, Stanford law
Judge Persky in which she urged the imposition of a prison term. Professor
Dauber emphasized in support of her argument for a prison sentence that the
assaulting her in public,” where “passersby could observe the assault, and
Sentencing Memorandum. 5
The dumpster and the dumpster enclosure stood between the nearest
street and the basketball court, such that pedestrians or people in vehicles on
that street could not see the site where the sexual activity occurred. However,
the site was in full view of anyone on the Kappa Alpha patio, on the basketball
court, and on the well-traveled path parallel to it. The fact that appellant and
Ms. Doe walked together 116 feet away from the Kappa Alpha patio may
5
Counsel for appellant has filed a request that this exhibit be transmitted to the
court pursuant to Rule 8.224, Cal. Rules of Court.
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support an inference that appellant intended to have some type of sexual contact
with Ms. Doe, but provides no basis for concluding beyond a reasonable doubt
Respondent’s next contention is that “The jury could have inferred that
appellant acted with intent to rape based on the fact that he pulled up Jane 1’s
6
The People cite People v. DePriest (2007) 42 Cal.4th 1, 48 with summary that
“evidence sufficient to infer intent to rape when defendant forced victim into a
secluded area, namely, a dumpster alcove.” RB 52. A dumpster alcove is an
enclosed area that prevents a view of the unsightly dumpster and any
surrounding debris. Here, Ms. Doe was found outside a dumpster alcove in
plain view.
DePriest was convicted of the rape murder of a young woman with whom he
had no prior acquaintance and whom he attacked as she walked toward her car
after leaving work. The defendant forced the victim into a “dumpster alcove”
where he “tore off her pants and tossed them aside”; “unzipped and possibly
lowered his own pants, dropped a pubic hair”; inflicted injuries on the victim’s
face and neck consistent with “an ongoing struggle.” In addition, there was
“bruising, tearing, and semen-like substance found in her vagina.” 42 Cal.4th at
48-49. As noted by the Supreme Court, defendant DePriest forced the victim
“in an alcove littered with debris,” id. at 10, not, as in this case in an open area
in plain view to all passersby. The record in DePriest was rife with other
incriminating evidence completely absent from this case in an open area in
plain view of all passersby. The injuries to the victim’s vagina consistent with
intercourse, the apparent seminal fluid deposited there, and the injuries to her
face and neck that indicated an ongoing struggle.
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Appellant’s Reply Brief
dress and removed her underwear” and “based on appellant’s admission that he
‘fingered’ Jane 1.” RB 52. These evidentiary items provide negligible basis for
with (although not strictly necessary for) an intent to finger her without any
sexual intercourse. The fact that her dress was pushed up to her waist similarly
teaching of Craig that engaging in a particular type of sexual activity that is not
with intent to rape to simple assault because the evidence showed some sexual
intent by Greene, but “the failure of the defendant to exhibit his private parts or
doubt].
The People cite People v. Leal (2009) 180 Cal.App.4th 782, 791 and People
v. Soto (1977) 74 Cal.App.3d 267, 278 as cases that affirmed convictions for
testified that she and her husband celebrated her birthday, became intoxicated,
and went to bed. During the night, the complaining witness felt a finger in her
vagina, which she assumed to be her husband’s, and then a penis in her vagina,
which she also assumed to be her husband’s. Only later did she realize that her
husband had slept through this incident, and that a burglar had entered through
a window, had sex with her, stole her husband’s wallet, and left. Defendant
Leal was subsequently arrested when his DNA was found to match that of the
seminal fluid swabbed from the complaining witness and convicted of rape by
false pretense and related offenses. The Court of Appeal rejected Leal’s
id. at 791, established the elements of the assault with intent to commit rape.
any direct penile contact with Ms. Doe. The evidence is clear that appellant
remained fully clothed throughout the incident. To the extent that respondent
argues from Leal that the mere act of digital penetration by itself is proof of
intent to have sexual intercourse, the argument is baseless. Leal has no other
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People v. Soto, supra, also entails a dramatically different scenario.
Defendant Soto and his girlfriend kidnapped a young woman for ransom. The
night following the abduction, the two defendants stopped their van on a side
road to sleep in the back of the van. The young woman was given a sleeping
bag with one arm handcuffed to a footlocker. During the night, defendant Soto
got into the victim’s sleeping bag, attempted to kiss her, but was pushed away.
Soto responded, “that she had an option either to be raped or to play with him,”
after which he removed “the lower portion of her clothes and all of his clothes”
and put his hand in her vagina. The victim then asked to use the bathroom, and
they drove to a public restroom. The next morning, Soto “apologized to her”
because “he had not realized it would bother her so much because the other girl
he had kidnapped did not mind being raped.” 74 Cal.App.3d at 277-278. The
act of digital penetration was not what the Court of Appeal relied on to find
evidence of intent to rape. Rather, the Court of Appeal relied on Soto’s express
statements to her that he intended to rape her just as he had raped another girl
this case.
/
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D. Respondent’s Misplaced Reliance on the Fact that Arndt and
Jonsson Interrupted Appellant’s Thrusting Motions.
activity,” and that “Jonsson testified that appellant continued thrusting on top of
Jane 1 until Jonsson approached and asked in a loud voice what was going on.”
RB 53. From this, respondent argues that “The jury could have readily inferred
that had he not been interrupted, appellant would have completed the rape.”
Ibid. However, the record is clear that appellant had his pants on, his fly zipped
up, and his belt fully fastened, all of which patently prevents beginning a rape,
substitute for sexual intercourse, not a precursor to it. The term for this type of
activity in the popular lexicon is “outercourse,” and Anne Bolin and Patricia
7
Similarly, this form of activity is recognized in numerous popular references
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Again, appellant’s conduct in engaging in sexual activity “short of [and]
People v. Craig, supra. As a matter of common sense, the sexual activity that
seeking sexual gratification chooses one or the other, and appellant clearly had
elected to engage in the activity of thrusting with his pants on. That choice of
Respondent next argues that “the jury could have inferred that appellant
acted with intent to rape based on his actions and demeanor when he was
and failure to explain that the encounter had been consensual constitutes
from appellant running away and from his failure to claim consent as he was
aggressively thrusting on Ms. Doe in public. The evidence may well show that
woman and reacted by flight. However, that flight does not support an
common sense or human psychology to make the inference that a person who
intended only to continue thrusting until conclusion would have stayed and
explained his situation, while a person who intended to switch gears from the
This is the best that respondent can muster as far as purported evidence
Counsel for appellant reiterates that the trial prosecutor did not refer to any of
the evidentiary snippets that respondent cites to this Court, suggesting that the
trial prosecutor found them too tenuous to argue to the jury with a straight face.
Rather, the prosecutor argued perfunctorily that “he’s digitally penetrating her
and then he stops and starts thrusting her, on top of her body, when these two
independent witnesses see,” and that “[a]ll he had to do to complete that rape
any affirmative evidence that appellant harbored the intent to unzip his pants
and have sexual intercourse. As a matter of logistics, the prosecutor may have
been correct that “all he had to do to complete the rape was to unzip his pants,”
conviction for assault with intent to rape where the defendant fondled the victim
and told her that he wanted to “play with [her]” but did not remove his own
distinguish Greene on the fallacious basis that “[u]nlike the assault in Greene,
which happened in full view of several houses on a suburban street, Jane 1 was
Argument B-2 above, the site of the sexual activity cannot colorably be
characterized as “secluded,” and in fact was in full view of actual passersby, not
Counsel for appellant urges this Court to recognize the context of the
sexual activity here, a college party on the campus where there is a general
recognition of an ambient level of sexual interest. At the same time, this was a
sexual activity with Ms. Doe that did not entail intercourse militates against a
void under Jackson v. Virginia (1979) 443 U.S. 307 and People v. Johnson
respondent asserts that “there is no evidence tending to show that only simple
assault had occurred,” thus “no duty to instruct the jury on that offense.” RB
8
People v. Carapeli (1988) 201 Cal.App.3d 589, 595 [“The court correctly
instructed the jury that simple assault is a lesser-included offense in both assault
with intent to commit rape and sexual battery by restraint”]; People v. Elam
(2001) 91 Cal.App.4th 298, 308; People v. Greene, supra, 34 Cal.App.3d at
648. In addition, the Bench Notes to CALCRIM 890 that set forth the elements
of assault with intent to commit rape specifically identifies simply assault as a
lesser-included offense with a citation to People v. Greene, supra.
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was so weak and/or equivocal that the jury should have been given the option of
conviction for simple assault based on the testimony that appellant was
The prosecution based its charge of assault with intent to commit rape on
the testimony of witnesses Arndt and Jonsson that they saw appellant
“aggressively thrusting” on top of Ms. Doe when they bicycled toward the
Now, he’s digitally penetrating her and then he stops and starts
thrusting her, on top of her body, when these two independent
witnesses see. That is the assault with intent to commit rape. All
he had to do to complete that rape was to unzip his pants. That is
the only thing he has to do to complete the rape. 11 RT 1133
(emphasis supplied).
the time of the arrival of Arndt and Jonsson, which may well establish a simple
assault, but the evidence is somewhere between negligible and gossamer that he
appellant specifically testified that his intent was to “hump” her, not have
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defendant testified that he had not considered taking any of the decedent’s
property until after the fatal fight had occurred. That testimony was sufficient
offense to robbery. “Although the jury was not required to believe defendant’s
of simple assault rather than assault with intent to rape. Appellant testified that
his intent was to do exactly what the eyewitnesses observed him doing, i.e.,
simple assault.
Respondent goes off on a tangent by arguing that “if the jury believed
crime occurred.” RB 64. Respondent continues that if the jury “believed the
prosecution witnesses who testified that Jane 1 was obviously and seriously
impaired by alcohol, and that appellant was frightened away by two bystanders
who intervened in the midst of the assault and who observed him thrusting in a
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sexually aggressive manner on Jane 1’s unconscious, half-naked body, then he
was guilty of the charged crime” because “[t]here is no basis in the evidence for
the jury to believe that appellant intended to assault Jane 1, but not sexually
There is ample basis in the evidence for the jury to believe that appellant
intended to engage in fully clothed thrusting on top of Ms. Doe, which could be
sexual act that is not enumerated in Penal Code section 220 against a non-
consenting person may be guilty of simple assault or perhaps sexual battery, but
not Penal Code section 220. The prosecutor elected to pursue a count as assault
appellant’s intent was to have sexual intercourse with Ms. Doe. Appellant
clearly intended to have sexual contact with Ms. Doe, but of a different type
than intercourse. The jury likely credited the testimony of Arndt and Jonsson
that at the time they observed the thrusting, Ms. Doe was asleep or passed out
and, therefore, did not consent. That determination would support a conviction
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of the lesser offense of simple assault, but the jury was deprived of that
alternative to assault with intent to rape. Under these circumstances, the trial
in Argument I to argue that the failure to instruct on simple assault was not
Cal.4th 142, 178, the failure to instruct on the lesser-included offenses were
obtained a more favorable outcome had the error not occurred.” See People v.
appellant’s testimony that he believed Ms. Doe consented to the sexual activity
– “In appellant’s version of the events, Jane 1 was a willing and enthusiastic
participant in the sexual activity,” such that “[a]t no point in his testimony did
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appellant contend that he touched Jane 1 against her will, but planned to stop
short of actually raping her.” RB 65. Appellant testified both that Ms. Doe
consented to his touching, and that he planned to stop short of having sexual
intercourse with her. 9 RT 862. The fact that appellant testified that he believed
she consented does not in any way lessen the prosecutor’s obligation to prove
intent to rape beyond a reasonable doubt; nor does it lessen the trial court’s
guilty of the lesser-included offense of simple assault rather than the greater
offense was the undisputed evidence that he did not expose his penis, and his
own testimony that he never intended to have sexual intercourse with her. This
is not a case where there were two divergent accounts of an event with no
intermediate version that the jury could have found consistent with the lesser
offense. The jury most likely would have believed that Ms. Doe was conscious
when she walked with appellant from Kappa Alpha to the basketball court, but
that she passed out during the sexual activity, at which point she could not
consent.
362 for the proposition that there is “no duty to instruct on good faith mistaken
belief and consent when the evidence shows two divergent accounts with no
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middle ground – either true consent or rape,” RB 66, as if this were a case with
television. When they entered what she thought was his friend’s apartment,
Williams insisted that she have sex with him, punched her in her eye, and then
Williams in turn testified that they went the room together without any
plan to have sex, at which time the complaining witness began fondling him
and after manually stimulating him to overcome his diabetic debility, had
consensual intercourse with him. On appeal, defendant claimed that the trial
court erred in failing to give an instruction that he had a reasonable belief that
the complaining witness consented. The Supreme Court rejected the claim on
the basis that there was no evidence by which a jury could reasonably find that
Williams mistakenly believed that she consented – “We find that there was no
evidence of intent to rape – the complaining witness was unequivocal that she
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was raped. Here, there was no comparable testimony from Ms. Doe, and the
equivocal.
thrusting with his pants on may have demonstrated an intent to obtain sexual
simple assault.
and 3 in the single section, Argument II-C, RB 56, et seq. Appellant follows
the format of the Opening Brief in which each count is treated separately
As noted in the Opening Brief, AOB 72, the prosecution must prove
intoxicating substance prevented the other person from resisting the act”; and
“The defendant knew or reasonably should have known that the effect of that
substance prevented the other person from resisting the act.” See 2 CT 375.
The crux of appellant’s argument is that the prosecution failed to prove that
appellant knew or should have known that Ms. Doe was so intoxicated as to be
Respondent’s first point is that “Appellant observed Jane 1’s conduct and
demeanor.” RB 56. The thrust of appellant’s argument is that not only did
appellant observe Ms. Doe’s conduct and demeanor, but so did her sister,
friends of her sister, and numerous other partygoers. There was not one
percipient witness who testified that Ms. Doe was acting in a manner that
conveyed a degree of intoxication above and beyond the level attained by the
partygoers generally. Given that Ms. Doe’s conduct and demeanor were
apparently no different from the other partygoers (with the exception of their
appellant knew or should have known that she was excessively intoxicated.
Respondent next argues that “[l]ater test results confirmed that she had an
extremely high blood alcohol level.” RB 56. That may well be true and is
consistent with the testimony of Ms. Doe, her sister, and her friends about the
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alcoholic consumption that night. However, appellant had no way of knowing
her blood alcohol content, but had available only her demeanor and conduct to
estimate her degree of intoxication. Given that Ms. Doe’s demeanor and
conduct did not convey to Ms. Doe’s sister or her friends that she was
to prove that she was visibly past the point of normal intoxication and into a
Respondent next argues that Ms. Doe’s boyfriend, Lucas Motro testified
“that Jane 1’s intoxication was obvious to him based on the phone calls and text
messages.” RB 56. His testimony about her verbal communications may well
people who were actually in Ms. Doe’s presence during the time leading up to
the AOB, p. 32, fn. 1, appellant requests that this Court listen to the recording,
Exhibit 29, in conjunction with the transcript, Exhibit 29A, because the
recording itself shows that Ms. Doe vacillated between slurring some words and
from her verbal communications (as distinct from Motro’s subjective appraisal)
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is that her speech showed some effects of intoxication, but nothing so pervasive
crime lab technician, who extrapolated that at 1:00 a.m., Ms. Doe’s blood
alcohol content would have been between .241 and .249 percent. RB 56, citing
7 RT 553. Ms. King testified that generally speaking, someone with that level
and staggering.” It turns out that none of those “objective signs” were
sister or her friends, apart perhaps from some slurred speech. In contrast, her
friend Trea showed “objective signs of impairment,” Ms. Doe’s sister and her
friends immediately escorted her from the party to a dorm room to recuperate.
Ms. Doe’s sister and her friends had no similar concerns regarding Ms. Doe.
Next, respondent argues that “even the defense expert testified that the
citing 8 RT 754. The prosecutor asked “And would you agree that the person in
that voicemail sounds extremely intoxicated. Isn’t that true,” to which Dr.
she answered, “No.” 8 RT 754. Dr. Fromme’s response was appropriate given
In contrast, appellant “did have a way of knowing” that Ms. Doe could
walk voluntarily because he was in her presence on the Kappa Alpha patio
standing around in a cluster with other partygoers, and because she walked with
him away from the patio for approximately 115 feet. Moreover, no one else at
the party testified that Ms. Doe’s speech was so addled as to establish excessive
intoxication, and no one else testified that her physical coordination was
compromised.
Respondent next contends that “The jury could also draw inferences
and Arndt’s testimony,” RB 58, to the effect that “they could see from across
after the fingering had occurred and after some undetermined amount of time
had passed. They observed appellant lying on top of Ms. Doe and thrusting, an
have occurred at some earlier point closer in time to when she voluntarily
walked with appellant away from the Kappa Alpha party. The prosecution
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failed to prove beyond a reasonable doubt that appellant knew or should have
known that Ms. Doe was unable to resist the fingering activity due to
Respondent further argues that “The jury could have drawn inferences
based on the injuries Jane 1 sustained during the assault, including the abrasions
on her body, as well as injuries to her labia.” RB 58. Respondent contends that
“It is reasonable to infer that a person would not sustain such injuries if they
or unconscious,” such that “the jury reasonably could have inferred that
appellant knew or should have known that Jane was intoxicated to the point of
unconsciousness in the moments before the two men intervened, when appellant
particularly with respect to the unsupported premise that the fingering occurred
“moments before the two men intervened.” Appellant and Ms. Doe left the
party at 12:30 a.m., walked 116 feet, engaged in some sexual activity, and
Jonsson and Arndt arrived at 1:00 a.m. There is no evidence as to when during
that 30-minute period the fingering occurred, and it is unlikely that it occurred
“moments before the two men intervened” because appellant was lying on top
of Ms. Doe from the time of their initial observation until he stood up when
time Ms. Doe’s state of intoxication may have reached the point of
evidence on this critical issue, and respondent’s speculation cannot cure the
Respondent also asserted that Ms. Doe’s sister and her sister’s two
friends testified that Ms. Doe “seemed very drunk” at the time her sister and
Colleen McCann left the party to attend to Trea. RB 59. This mischaracterizes
The prosecutor asked Ms. Maggioncalda what the intoxication level was of Ms.
242. The prosecutor then asked whether Ms. Maggioncalda had ever seen Ms.
Doe herself intoxicated, and Ms. Maggioncalda did not recall. When asked
directly, “Can you tell us what Jane 1’s state of intoxication was that you
observed on January 18,” Ms. Maggioncalda said, “The last time I saw her, we
were all just being super-goofy.” 5 RT 243. The prosecutor then requested Ms.
able to tell us, was she very intoxicated, was she not intoxicated at all, or are
you telling us because of your own level, you’re not able to gauge.” Ms.
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Maggioncalda answered, “She seemed intoxicated, but at the time, I was very
described Ms. Doe as “very drunk.” Ms. McCann’s testimony was as follows:
Q: The last time you saw [Jane] can you describe her level of
intoxication?
A: I would say she was obviously drunk, as were the rest of the
girls. 6 RT 339.
Again, Ms. McCann’s actual characterization puts Ms. Doe in the middle
Only Ms. Doe’s sister used the phrase “very drunk,” but she used that
same phrase to describe her own degree of intoxication – Ms. Doe and Ms.
Maggioncalda – “very drunk”; Ms. Doe was “also very drunk”; and she herself
“was very drunk as well.” 7 RT 606. The phrase “very drunk” was used not to
differentiate Ms. Doe from the others, but to include her in the same degree of
intoxication as the others. Neither Ms. Doe’s sister nor anyone else ever
testified that Ms. Doe was discernably more intoxicated than the others.
Neither Ms. Doe’s sister nor anyone else characterized Ms. Doe as visibly
impaired. She was uniformly characterized as “intoxicated,” but that was the
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norm for the party attendees. Given the weight of that evidence, the
prosecution clearly fell short of proof beyond a reasonable doubt that appellant
knew or should have known that Ms. Doe was too intoxicated to resist a sexual
person are set forth in CALCRIM 1048 and include “the other person was
unable to resist because (he/she) was unconscious of the nature of the act”; and
“the defendant knew that the other person was unable to resist because (he/she)
the failure to address the evidentiary import of the undisputed fact that Ms. Doe
walked with appellant for approximately 116 feet from the patio of the Kappa
Alpha house to the open area adjacent to the basketball court. That fact is
conclusive proof that Ms. Doe was not unconscious at the time that she left the
Kappa Alpha patio and arrived at the time she at the area adjacent to the
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As previously noted, appellant and Ms. Doe were at the area adjacent to
the basketball court shortly after 12:30 a.m. Almost 30 minutes elapsed before
Jonsson and Arndt rode by on their bicycles and stopped. The prosecution
presented no evidence that Ms. Doe had gone from a state of consciousness into
penetration occurred “only moments before” Jonsson and Arndt arrived on the
fingering must have occurred sometime after 12:35 a.m. and before 1:00 a.m., a
period of 25 minutes. Ms. Doe was clearly conscious when she and appellant
arrived at the apron area immediately adjacent to the basketball court, and was
clearly unconscious or asleep when Arndt and Jonsson arrived 25 minutes later.
Setterlund’s testimony, that Ms. Doe may have been “drag[ged] some distance.”
her right clavicle and the base of her neck and tops of her shoulders, and
injuries to her mid-back and shoulder area.” RB 60, citing 6 RT 373, 375, 377,
and 386. Nurse Setterlund testified that there was erythema (redness) on both
testified that she measured some of the abrasions in an effort to determine the
case, were you able to find the mechanism [of] injury as it relates to these two
exhibits,” and nurse Setterlund flatly answered “No.” 6 RT 373. If these very
minor injuries were in fact consistent with somebody being dragged along on
their butt, nurse Setterlund would have certainly stated that. The evidence of
“superficial abrasions” does not support the inference that respondent has
surely the prosecutor would have so argued to the jury, but no such argument
was made.
hypothetical witness could see a young man walking away from the party in the
That scenario could well support a conviction under Penal Code section 289,
subd. (e), [intoxication] but would not support a conviction for digital
[unconsciousness].
289(d) entail a factual scenario in which the victim was asleep or unconscious
at the time of the defendant’s initial contact. See People v. Dancy (2002) 102
where a defendant had sex with his on-again, off-again girlfriend while she was
asleep]. Ms. Doe walked to the area where the sexual activity occurred under
her own power at 12:30, and had become unconscious by 1:00 a.m., when
appellant was seen engaged in aggressive thrusting. There was no proof beyond
a reasonable doubt that she had lapsed into unconsciousness at the time of the
digital penetration. She might have been unconscious, although that is unlikely
in light of the DNA evidence that appellant’s DNA was not found on the
waistband of her underwear. “Might have been” is insufficient to meet the proof
included instructions are “baffling” because they “would require jurors to reject
his own testimony acknowledging that he penetrated Jane 1’s vagina with his
finger.” RB 67. To the contrary, appellant’s argument does not at all require the
intermediate option between conviction of the greater offense and full acquittal.
of Ms. Doe’s DNA found under his fingernails, and the minor abrasions to Ms.
Doe’s labia could support a finding beyond a reasonable doubt that digital
penetration occurred. However, the evidence does not compel that finding.
Appellant testified to some intoxicated groping in Ms. Doe’s groin area, and the
jury could well have harbored reasonable doubts as to whether that intoxicated
his fingers,” noting that “the physical evidence supports that,” and “he admitted
that.” 4 RT 1065. The jury could give whatever weight it wanted to appellant’s
DNA under appellant’s fingernail and his finger did not identify it as DNA from
her vagina, as opposed to DNA from skin contact with some other part of her
body.
Finally, the record is clear that appellant’s DNA was not found in the
vaginal swab taken from Ms. Doe, which, if it existed, would have provided the
the prosecution’s evidence of the greater offense; and (2) where the
greater offense occurred. This case falls in the latter category. Appellant cited
People v. Hayes (2006) 142 Cal.App.4th 175 in the Opening Brief as support
for this argument, and respondent has elected not to respond to it. Hayes was
of Penal Code section 243, subd. (c)(1). The Court of Appeal concluded that
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“The trial court committed reversible error in failing to instruct sua sponte and
The evidence showed that when Hayes’ probation officer arrested him for
probation violation, Hayes resisted and “was very combative and hostile toward
the officers,” “kicking wildly” and trying to “get away from the arresting
officers.” In the course of milieu, Hayes kicked over a three-foot high container
one of the probation officers on the shin, ripping his pants and inflicting “a four
to four and a half inch laceration on [his] shin.” 142 Cal.App.4th at 179.
Photographs of the laceration were entered into evidence. The probation officer
treated the injury himself with ice and did not seek professional medical
court noted that “[i]n deciding whether evidence is ‘substantial’ in this context,
a court determines only its bare legal sufficiency, not its weight.” The
“evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that
offense of battery without injury.” Id. at 181, citing Penal Code section 243,
subd. (b).
The court noted that the statutory definition of “injury” in Penal Code
section 243, subd. (f)(5) is “any physical injury which requires medical
demonstrated that some degree of injury was inflicted on the probation officer,
but the jury could have determined that the injury “was not severe enough to
require professional medical attention.” The court noted that the deputy’s leg
was “sore for several days,” but not so sore that he needed a pain reliever, and
the photographs showed “minor bruising.” Id. at 182. Thus, the prosecution in
the injury was so serious as to require medical attention. Implicitly, the Court
of Appeal found that the evidence could have supported a conviction for battery
with injury, i.e., that the totality of the prosecution’s evidence was not
the injury did not require medical treatment. Therefore, “the record contains
substantial evidence that would absolve appellant of battery without injury that
182.
and his probation officer. Here, there was undisputed sexual contact between
appellant and Ms. Doe. There was undisputed evidence that the probation
officer was hurt in the altercation with Hayes, but the evidence was
definition. In this case, there was evidence of contact with Ms. Doe’s groin
289. Appellant may have thought that he digitally penetrated Ms. Doe, but the
prosecution’s burden is to prove the actus reus of actual penetration, not merely
that the evidence of penetration was insufficient as a matter of law. Rather, the
evidence is sufficiently ambiguous and inconclusive that the jury should have
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been given the option of finding simple battery under Penal Code section 242 or
absolve Hayes of the greater offense without Hayes specifically challenging any
of the evidence supporting the greater offense. Rather, the Court of Appeal
noted each item of evidence that was part of the prosecution’s case that would
have supported a verdict on the lesser offense. For example, the court noted
that “Although Phillips’ leg was sore for several days, he never described the
degree of soreness.” The Court of Appeal noted that Phillips did not testify that
Advil.” The Court of Appeal noted that notwithstanding the soreness, “no
evidence was presented that the injury had interfered with Phillips’ physical
activity with the performance of his duties as a deputy probation officer.” The
Court of Appeal finally noted in conclusion that the photographs of the injury
In sum, the Court of Appeal gave full credit to all the evidence
supporting the finding of injury within the statutory meaning but noted that the
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evidence fell short of an unequivocal demonstration that the statutory definition
was met. It was obviously not necessary for Hayes to provide directly
contradictory medical testimony along the line that “no medical professional
In this case, it was not necessary for appellant to present any directly
contradictory evidence such as expert testimony that the redness and minor
for a non-penetration offense. This is the type of situation where the jury must
Cal.3d 818 because the jury was forced into an “all or nothing choice between
other.” People v. Banks, supra, 59 Cal.4th at 1159. The record is clear indicia
that the jury was questioning the sufficiency of the evidence of penetration.
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The jury asked, “If the defendant did not know or mistakenly believed his act
was not penetration does it negate the required mental state to commit the crime
under Count 3?” 2 CT 465. While the question is not free from ambiguity, see
Argument VI, infra, it clearly reflects that the jury did not believe that
possibility that notwithstanding his testimony, appellant did not know or believe
that it had occurred. Next, the jury followed up with the question, “Is contact
with the inner lining of the labia majora or any portion of the labia minora
considered penetration?” 2 CT 470. That question suggests that the jury viewed
the evidence of penetration as, at most, superficial and transitory. Under these
proposition that “The court is not obligated to admit every piece of evidence
which may bear on [appellant’s] credibility,” RB 35, and from that premise
argues that “[t]he trial court here did not abuse its discretion in finding that
appellant’s character for sexual assaultive behavior was most relevant to the
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jury in determining guilt, and that other character evidence was not relevant or
admissible.” Ibid. The flaw here is that there were two separate and discrete
incapacitation at the time of the incident; and (2) his character for honesty and
veracity to support the credibility of his testimony at trial. The trial court’s
independent standalone ruling that would have been just as erroneous whether
appellant had also offered evidence of his character for wrongful sexual
aggression. This is not a situation where the trial court exercised some kind of
“appellant’s argument overlooks that this was not a ‘he said/she said’ sexual
assault case that pitted the credibility of the victim against the credibility of the
accused.” RB 35. From that premise, respondent contends that “ample other
“the court correctly concluded that additional character evidence was not
relevant.” Ibid. The fact that the prosecution had other types of evidence that it
evidence of their theory of the case, while appellant was not, which is an
untenable non-sequitur.
respondent invokes the general discretion according to the trial court under
Evidence Code section 352. RB 36, citing People v. Doolin (2009) 45 Cal.4th
390, 438, but that case does not at all support respondent’s position. Defendant
Doolin had called a psychiatrist to testify that he did not have the character to
commit the type of murder that he was accused of, and “the trial court ruled that
under Evidence Code section 1102, rather than to show defendant was not
reports of Doolin’s misconduct that were consistent with the character of the
In this case, the trial court did not invoke Evidence Code section 352 as a
basis for excluding the veracity character evidence and did not claim to weigh
probative value versus prejudicial effect. Rather, the ruling was a categorical
of the record that fails to give due weight to the straightforward discussions
between the court and counsel. At the first discussion of the scope of defense
character evidence on March 9, 2016, the trial court clearly stated its
character for honesty – “As I understand it, the character traits that have been
18. The court expressly recognized that there were two character traits the
defense sought to support through the character evidence. The People referred
to the March 9, 2016 discussion, but do not acknowledge that the court
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recognized on the record that there were two character issues involved. See RB
37.
Next, when the matter was revisited on March 25, 2016, the court
reiterated that the defense offered admissibility that had two character traits –
“one, honesty, and two, for lack of a better term, sexual non aggression.” 10 RT
923. The court then delivered its ruling and summarized discussions in
chambers that led to the ruling, including the trial court’s “indicat[ion] that the
character trait for honesty didn’t appear to be relevant to crimes charged under
Evidence Code section 1102,” which boiled down to “honesty is out” and “high
The court then issued some guidance with respect to the prosecutor’s
forfeiture subsequently occurred when defense counsel did not renew his
objection and presented further argument as to the trial court’s ruling and
After the court ruled that “honesty is out” and added additional
comments regarding the scope of the cross-examination, the court did invite
further comment by counsel. Obviously, the prosecutor believed that the court
had effectively ruled, because the prosecutor did not return to the issue of
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whether the evidence was admissible as to honesty. Rather, the prosecutor’s
solicited comments from defense counsel, counsel limited his comments to the
manner of examination, not the scope. Counsel then stated, “I’m satisfied with
the Court’s ruling as to how I can phrase the questions to the character
behavior. 10 RT 926. That connotes that defense counsel understood the scope
of the court’s ruling and was prepared to formulate his phrasing of character
adverse court order does not act as a waiver on appeal. To the contrary, the
of litigation for any attorney who aspires to assist his or her client without being
held in contempt. People v. Calio (1986) 42 Cal.3d 639, 643 [“An attorney who
appropriate objections or motions, does not waive the error in the ruling by
situation for which he was not responsible.”]. The tenor of defense counsel’s
with courtroom reality. The trial court expressly stated its recognition that the
delivered its ruling. The fact that defense counsel acceded to the ruling, rather
than rhetorically reiterating his disagreement with it, does not constitute a
forfeiture. The issue was expressly teed up for the court, the court recognized
the two sides of the argument and ruled for the prosecution. Respondent’s
expostulations and pontifications is out of touch with courtroom reality and the
applicable law.
for the forfeiture argument, RB 39, but Valdez provides little if any support. In
attorney joined this objection. The trial-setting judge deferred a ruling because
the case was about to be transferred to a trial judge who “would be taking over
the case [such that] counsel could make their objections ‘at that time’.” Id. at
122. When the trial judge initially called the case, “defendant did not renew his
objections to [the pre-trial judge’s] order or ask [the trial court] to rule on its
validity.” Id. at 122. The trial judge told counsel that he would address the
issue anew.
same witness identification issue without objection from defense counsel. The
Supreme Court concluded that “[h]aving received advance notice of the in-
camera hearing, and having failed to object either before or after the hearing,
defendant may not now claim that [the court] prejudicially erred in holding an
In this case, there was only one issue involved, and defense counsel had
made his position sufficient clear to the judge that the judge accurately
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summarized it in the course of pre-ruling discussions. Valdez does not support
816, 867, support a forfeiture argument. In that case, the prosecution presented
evidence that “on the date of the murders, defendant [Steven Homick],
sought to make the point that “defendant [Steven Homick] used people without
disclosing his purpose,” Id. at 867, and offered the testimony of a retired
Superior Court judge that lawyer Herman was an honest person who was
nonetheless “duped the defendant into helping him engage in illegal activity.”
Steven Homick’s attorney objected on the basis that “the evidence was being
used to show defendant’s bad character ‘for deception and deceit’.” Ibid.
prove…that Max Herman did not give a gun to [Steven Homick] with
knowledge that the gun was going to be used in a crime.” The California
Supreme Court noted that the objection as made in the trial court was quite
different, i.e., not that Herman was honest, but that “it showed defendant’s bad
of his objections between the trial court and the appellate courts. The Supreme
Court found that the objection as framed in the trial court “lacks merit,” and that
the basis of the objection as framed for the first time on appeal was forfeited.
Here, appellant has not switched gears between trial and appeal with respect to
issue, and thus his reputation for honesty is relevant,” such that “under
Evidence Code section 780 the trial court should have admitted the character
witnesses’ opinions of his reputation for honesty, as such testimony would have
then switches focus to justify the trial court’s exclusionary ruling on the basis
that “[a]s the trial court explained, the general trait of honesty was not
evidence of his character for honesty as a defense to the charge itself. At the
same time, every defendant who testifies in their own behalf is entitled to
exclusionary ruling, the trial court knew that appellant intended to testify.
who knew and liked him and in high school.” RB 41. Respondent misses the
point that high school had been appellant’s entire life for the four years until he
matriculated at Stanford in fall 2014. The character witnesses “who knew and
liked him in high school” were the very best, in fact the only source.
regarding honesty proffered by appellant was not detailed, and the trial court
correctly found that it was not particularly probative.” RB 41. Respondent does
not offer a record citation to support the assertion that “the trial court correctly
found that it was not particularly probative.” There is no such finding. See 10
RT 923-929. The trial court’s clear statement as to the basis for excluding the
evidence was that “the character trait for honesty didn’t appear to be relevant to
the crimes charged under Evidence Code section 1102.” 10 RT 924. The trial
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court never stated that the evidence of appellant’s honesty “was not particularly
exposition of their proposed testimony. The trial court clearly understood that
honesty was one of the themes to which the witnesses were prepared to testify
the offer of proof reflected only “general statements from friends,” RB 41,
misses the point that an offer of proof is expected to convey the subject matter
of the proposed testimony, and as such, cannot be expected to convey the actual
trial court’s ruling. Respondent argues that this case did not “turn on a
credibility determination between the victim and the accused” because the
victim could not remember what happened, and “there was substantial
mere moments before the two men found her passed out” would be viewed as
objective evidence of the timeline of the events. Motro and Ms. Doe last spoke
around 12:20 a.m.; Ms. Doe and appellant walked away from the party together
at approximately 12:30 a.m.; and the sexual activity that appellant testified was
consensual occurred sometime during the next 20 minutes or so. Arndt and
Jonsson arrived at 1:00 a.m. The record refutes respondent’s assertion that the
contested sexual activity occurred “mere moments” before Arndt and Jonsson
arrived.
The jury may well have viewed appellant’s testimony with skepticism
based on the testimony of Motro, Arndt, and Jonsson, but appellant was
persuade the jury that the testimony was nonetheless true. Under the fallacious
is patently untenable.
Appellant argued four points as to why the erroneous exclusion of the evidence
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was prejudicial. AOB 54-60. Respondent misses the point of these arguments
and treats them as if they were related to the issue of whether the trial court
appellant “implicitly suggests that because of the alleged intensity of the cross-
evidence bolstering his credibility.” RB 44. What appellant actually argued was
that the trial court’s error in excluding the evidence was prejudicial because
making it more likely that the outcome was adversely affected by the exclusion
of the character evidence for honesty/veracity. Appellant has never argued that
that the trial court erred under the normal standard of admissibility, and that the
error was prejudicial given the centrality of appellant’s credibility to the jury
determination.
prejudice issue that “the proffered testimony regarding honesty was generic and
witnesses reveals that they were acquainted with appellant for a lengthy period
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of time and had frequent interactions with him, a solid foundation on which to
The Evidence Code calls for evidence of either good character for a particular
trait or bad character for a particular trait. The weight that the jury would give
of the acquaintance between the character witness and the defendant and the
his good character for honesty and veracity in the prosecution for a rape of a
section 1102 for admission of the evidence, but the Court of Appeal noted that
“the defendant’s reputation for truth was relevant not to the elements of the rape
itself, but only on the issue of whether he was testifying truthfully.” Id. at 626.
The court of appeal then held that the erroneous exclusion was prejudicial
avoid conviction.
testimony that she sounded intoxicated on the telephone such that “her level of
evidentiary record in that no person who was present at the party remarked at
the same time, Ms. Doe’s sister and her friends recognized that Trea had
become excessively intoxicated, which confirms that those young women were
those whose level was not. Respondent also points to the testimony of Jonsson
and Arndt regarding appellant’s “aggressive thrusting” while Ms. Doe “lay
between appellant and Ms. Doe’s departure from Kappa Alpha and the arrival
occurred “only moments before” the arrival of Jonsson and Arndt is not
“testimony from those who like appellant that they believed him be honest [sic]
would not have affected the outcome of the case – especially given that those
witnesses admitted that they had not observed appellant when he was drinking.”
appellant’s character trait for sexual propriety on that very ground, i.e., that the
character witnesses had not seen him in sexual situations when he was drinking.
That particular challenge may have had some traction with respect to the
character trait for sexual propriety, but obviously did not apply to the character
A. Introduction.
appellant’s argument.
The record established very clearly that appellant and Ms. Doe walked
away from the Kappa Alpha house together at approximately 12:30 a.m. They
basketball court and about five feet in front of a wooden walled enclosure for a
small dumpster. From the vantage point of the basketball court and the well-
traveled footpath, there was nothing at all shielding appellant and Ms. Doe from
the view of passersby like Arndt and Jonsson, nary a dumpster, shrubbery,
9
The primary defect in respondent’s characterization is the failure to
acknowledge that the prosecutor larded up her questions to Arndt, Jonsson, and
appellant himself with the catch phrase “behind the dumpster” repeatedly with
no illustrative or other legitimate reason.
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At the same time, when the 911 call was made, the campus police drove
to the area and parked on the nearest street to the site of the sexual contact.
From the vantage point of where the police parked, the dumpster and dumpster
enclosure were between the parking space and Ms. Doe. Thus, when the police
walked from the street to where Ms. Doe was, they passed the dumpster and its
enclosure, such that from that perspective, Ms. Doe was “behind the dumpster.”
When Det. Kim wrote his initial report, he reported that the incident had
occurred “behind the dumpster,” but that was simply a function of where he
The trial prosecutor had a choice – she could orient witnesses such as the
investigating officers, Arndt, Jonsson, and appellant to the site of the sexual
prosecutor elected to use only the descriptor “behind the dumpster” and used it
relentlessly, referring to the dumpster 46 times and using the specific phrase
AOB 96, fn. 6. The phrase also appeared prominently and repeatedly during
her jury argument. See AOB 102-104. The witnesses including appellant
accurate and reflects that Deputy Taylor and a paramedic used the phrase
Deputy Taylor used that phrase in the specific context of describing how he
arrived at the site where Ms. Doe was found – “As I came down behind the
dumpster, I noticed there was a female subject lying on the ground” who was
“facing the Kappa Alpha house,” with her “head…closest to the dumpster
accurately notes that a paramedic who also drove to the area stated that “the
patient was located behind – she was outside behind these dumpsters just on the
ground.” 7 RT 512-513. Thus, only the witnesses who approached from the
In contrast, the actual eyewitnesses to the incident never used the phrase
“behind the dumpster” other than when the prosecutor inserted it in a question
notes that Arndt testified that as he and Jonsson “approached KA house from
the back, there was nothing blocking their view of appellant and Jane 1.” RB
74. Respondent misstates the record in asserting that Arndt “noted, however,
that people who were outside the KA house would not have been able to see
what was happening because ‘there was also a dumpster blocking his view
partially’.” RB 74, citing 5 RT 167. There was no such testimony at that page
Q: Was there anyone else around other than you, Peter, and the
defendant who ran away?
A: Not that I could tell, no. Someone might have been outside
of Kappa Alpha, but I can’t tell.
What Arndt was clearly trying to convey was that the dumpster enclosure
behind Ms. Doe obscured both his view of other people who were walking
along the nearby street, and also shielding Ms. Doe from the view of the people
on the nearby street. At no time did Arndt state that the place where he and
Jonsson encountered Ms. Doe was shielded from the view of people at the
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Kappa Alpha house, and the relevant photographs clearly confirm that it was
prosecutor and Arndt from 5 RT 168 in which the prosecutor asked, “I’m trying
Arndt answered, “she was lying straight behind it…with her head facing it,”
citing 5 RT 168, RB 74-75. The most likely explanation for why Arndt, for
whom English was his second language, used the phrase, “lying straight behind
it” is that the prosecutor had previously used that phrase repeatedly in
A: No.
Q: So any trees in between you and the couple when Peter first
alerted you to the location?
understand your testimony, when Peter alerted you to the couple next to the
dumpster, you first saw the male,” to which Arndt answered, “Yes.” 5 RT 152.
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It was after those interchanges that the prosecutor asked Arndt to restate
“where…she was lying in relation to the dumpster,” and Arndt used the phrase
that the prosecutor herself had initially used – “she was lying straight behind
it…with her head facing it.” 5 RT 168. Respondent does not acknowledge that
it was the prosecutor who initially interjected the phrase “behind the dumpster”
Respondent also misstates the record in asserting that when both Arndt
and Jonsson marked on photographs where they saw appellant and Ms. Doe,
“the men indicated that they observed Jane 1 behind the dumpster enclosure, on
the side that would not have been visible to partygoers.” RB 75, with several
record cites. None of those record cites support the statement that the men
observed Jane 1 in a place “that would not have been visible to partygoers.”
dumpster obscured the view of partygoers to the site where Ms. Doe was found.
nothing in those pages that suggests the dumpster would have obscured the
view of partygoers to where Jane Doe was found. The only relevant testimony
Q: Was anyone around you other than Carl and this couple?
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A: No.
A: Yeah.
the couple,” he could see Kappa Alpha, but there were no partygoers outside at
that time. If there had been, presumably they would have had the same
unobstructed view toward Jonsson that Jonsson would have had of them.
Respondent also cites 2 CT 510-526, which are black and white copies of
exhibit photographs. These photographs show that the site where Jonsson and
Arndt viewed appellant and Ms. Doe was immediately adjacent to the
basketball court and in plain view from anyone traversing the path or the
basketball court between the Kappa Alpha house and Jerry House. The only
people whose view of the site where the sexual activity occurred was obstructed
were those who were walking on the adjacent street where Deputy Taylor and
the paramedics parked their vehicles. None of the partygoers or pedestrians had
contrary.
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C. Respondent’s Forfeiture Argument.
did not object to this term at trial and did not request an admonition.” RB 75. In
addition, with some hyperbole respondent points out “defense counsel himself
RB 75, quoting defense counsel’s question, “Did you in fact walk along with
her along the path and then leave that concrete path to walk in front of the
dumpster,” and “if you had wanted to find some place on the ground between
KA house and your room to lie down and have sex with a girl, would you have
chosen right by that dumpster?” Those two references to the dumpster barely
that defense counsel correctly characterized the location in question as “in front
of the prosecutor’s strategy may not have been immediately apparent when the
prosecutor initially began using the phrase “behind the dumpster.” Respondent
contends that trial counsel could have at some point objected when the
prejudicial impact became obvious and would have likely received a fair ruling
from the trial court. RB 76. Respondent fails to acknowledge the insidiousness
of the prosecutor’s course of conduct. Deputy Taylor initially used the phrase
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“behind the dumpster” in the context of describing how he approached Ms.
Doe. There was nothing objectionable about that. The prosecutor first used the
phrase “behind the dumpster” in her question to Arndt, and the basis of an
objection would not likely have been apparent because the dumpster was in
proximity of the site. Then, Arndt adopted the prosecutor’s phrase in response
to a subsequent question. All this may well have seemed fairly innocuous to
defense counsel at the time. However, by the time the prosecutor cross-
examined appellant and used the phrase “behind the dumpster” in a manner that
clearly implied moral depravity, counsel may well have felt the damage had
been done, and an objection would at that point be futile. This was due to
artifice on the prosecutor’s part, not negligence on the part of defense counsel.
Under these circumstances, defense counsel may well have been lulled into
Respondent contends that “the prosecutor’s use of the phrase ‘behind the
directly from the descriptions provided by the witnesses and photographs of the
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scene.” RB 77. That is a disingenuous characterization. The prosecutor took
the phrase “behind the dumpster” directly from the descriptions provided by
Deputy Taylor and the paramedic who approached Ms. Doe from a completely
Respondent next contends that “[i]t is unclear how appellant thinks the
prosecutor should have referred to the location, if she were not to have used the
limine motions on this point, and, as noted, used the phrase himself during his
above, defense counsel never used the phrase “behind the dumpster,” but on
one occasion used the phrase “in front of the dumpster,” which in normal
prosecutor’s phrase. 10
10
Respondent also repeats the misstatement of Arndt’s testimony, contending
incorrectly that “Arndt specifically noted that the dumpster would have blocked
the view of the most likely witnesses, namely the other partygoers at the KA
house.” RB 78, citing 5 RT 167. The answer to respondent’s question as to
“how appellant should have referred to the locations,” counsel for appellant
suggests something along the lines of “in plain view immediately adjacent to
the basketball court”; or “in plain view on the apron between the basketball
court and the siding of the dumpster enclosure.” Counsel for appellant urges
this Court to review the photographs of the scene at 2 CT 505, 509, 511, and
522 to make its own assessment of the baselessness of the prosecutor’s catch
phrase “behind the dumpster.”
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E. The Resulting Prejudice.
witnesses testified about the location of the assault, marked it on a diagram, and
on dozens of photographs,” which were shown to the jury. RB 79. From this,
respondent contends that “the jury could evaluate for itself the accuracy of the
prosecutor’s statement that the assault occurred behind the dumpster.” Ibid.
(1998) 17 Cal.4th 800, 823. Hill recognized that prosecutorial misconduct can
619-620 – “The rule is well established that the prosecuting attorney may not
interrogate witnesses solely ‘for the purpose of getting before the jury facts
inferred therein, together with the insinuations and suggestions they inevitably
contained, rather than for the answers which might be given’.” See AOB 107.
“behind the dumpster,” and then argued appellant’s culpability and moral
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Respondent concludes with the contention that the misconduct was
Respondent points out that Ms. Doe herself “testified that she had been drinking
heavily on the night of the assault,” and that her telephone message to her
Yes, Ms. Doe was intoxicated, but nobody, not even her sister and friends,
dumpster all too likely adversely affected the jury’s determination of guilt.
jury asked a question that related to penetration but that was unclear as to what
the jury’s actual concern was, and the trial court answered with a non-sequitur
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response that related to the defendant’s knowledge of the other person’s state of
unconsciousness. The trial court’s first error was the failure to inquire of the
foreperson what the jury actually meant by the question, which was not at all
apparent from the question. The second error was the issuance of an instruction
that was adverse in tenor to appellant while unresponsive to the actual question.
The jury had something particular in mind, which was not apparent from the
as to a knowledge element in Count 3. What the jury heard from the court in
The underlying import of the jury’s question was obviously not clear on
its face, because the trial court responded with a written attempt to reframe the
question. The trial court erred there in failing to ask the jury directly what they
meant, not by rewriting the verbiage in a manner that was just as unclear as the
jury’s initial question. Penal Code section 1138 clearly states that if the jurors
“desire to be informed on any point of law arising in the case,” they must be
“brought into court.” The point of that requirement is so the court, counsel, and
the jury can reach an actual understanding of what the jury’s concern is, not
The trial court’s obligation was to ask the foreperson, “What do you
mean by the question,” and to probe until jurors adequately explained their
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actual concerns. Instead, the trial court sent back a rephrasing of the question in
very similar language, which the jury very likely viewed as an indication that
the judge did generally understand what they were getting at because of the
The trial court erred in giving the jury a flat “no” answer to their
the general intent defense of Penal Code section 289 with respect to the actus
reus. RB 88-89. That is not an issue either raised by the jury’s question or by
appellant’s argument.
actually wanted to know was “whether the degree of penetration was legally
next question [was] whether contact with the labia majora and labia minora is
by its first question regarding penetration; the trial court failed to clarify what
the point of the question actually was; and the trial court gave a response that
would have provided appellant a type of defense if the trial court had answered
it in the affirmative. Thus, whatever it was that the jury wanted to know, the
the record does not convey the jury’s point, but that deficiency is attributable to
the trial court’s procedural failure to address the jury directly and elicit their
process and a fair jury verdict. McDowell v. Calderone (9th Cir. 1997) 130
CONCLUSION
Respectfully submitted,
_________________________________
ERIC S. MULTHAUP, Attorney for
Appellant BROCK TURNER
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CERTIFICATE OF WORD COUNT
_________________________________
ERIC S. MULTHAUP
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Appellant’s Reply Brief
DECLARATION OF SERVICE
document in a sealed envelope with postage thereon fully prepaid, in the United
Attorney General
455 Golden Gate Avenue
San Francisco, CA 94102
Brock Turner
[address withheld per Court Rule]
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Appellant’s Reply Brief
I declare under penalty of perjury that service was effected on May 4,
2018 at Mill Valley, California and that this declaration was executed on May
_____________________________
ERIC S. MULTHAUP
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