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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


______________________________________ )
)
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. )
)
)

APPELLANT’S REPLY BRIEF

________________________________________________________________

Appeal from the Judgment of the County of Santa Clara

Received by Sixth District Court of Appeal


Hon. Aaron M. Persky, Judge Presiding
________________________________________________________________

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

1
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Appellant’s Reply Brief
TOPICAL INDEX
Page

APPELLANT’S REPLY BRIEF

RESPONDENT’S SUMMARY OF FACTS 1

ARGUMENT 10

I. APPELLANT WAS DEPRIVED OF DUE PROCESS 11


AND A FAIR TRIAL BY THE PROSECUTION’S
FAILURE TO PRESENT CONSTITUTIONALLY
SUFFICIENT EVIDENCE AS TO COUNT 1, ASSAULT
WITH INTENT TO COMMIT RAPE.

A Respondent’s Misplaced Reliance on Evidence 11


that Appellant Kissed Ms. Doe’s Sister at the Party.

B. Respondent’s Incorrect Characterization of the 14


Site of Sexual Activity as A “Secluded Location.”

C. Respondent’s Misplaced Reliance on the Removal 18


of Ms. Doe’s Underwear and His Admission of
Sexual Contact Short of and Different from Intercourse.

D. Respondent’s Misplaced Reliance on the Fact that 21


Arndt and Jonsson Interrupted Appellant’s Thrusting
Motions.

E. Respondent’s Misplaced Reliance on Appellant’s 22


Effort to Get Away from Arndt and Jonsson.

II. APPELLANT WAS DEPRIVED OF DUE PROCESS 25


AND A FAIR TRIAL BY THE COURT’S FAILURE TO
INSTRUCT SUA SPONTE ON SIMPLE ASSAULT AS
A LESSER-INCLUDED OFFENSE TO COUNT 1,
ASSAULT WITH INTENT TO RAPE.

A. The Trial Court’s Erroneous Failure to Instruct. 26


2
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Appellant’s Reply Brief
Page

B. The Requirement of Reversal. 29

III. APPELLANT WAS DEPRIVED OF DUE PROCESS AND 32


A FAIR TRIAL BY THE PROSECUTION’S FAILURE
TO PRESENT CONSTITUTIONALLY SUFFICIENT
EVIDENCE AS TO EITHER OF THE CONVICTIONS
UNDER PENAL CODE SECTION 289.

A. The Absence of Sufficient Evidence of Digital 32


Penetration of An Intoxicated Person.

B. The Insufficiency of Evidence of Digital Penetration 40


of An Unconscious Person.

IV. APPELLANT WAS DEPRIVED OF DUE PROCESS 44


AND A FAIR TRIAL BY THE COURT’S FAILURE TO
INSTRUCT ON LESSER-INCLUDED OFFENSES TO
COUNTS 2 AND 3, SEXUAL PENETRATION OF AN
INTOXICATED OR UNCONSCIOUS PERSON.

V. APPELLANT WAS DEPRIVED OF DUE PROCESS, A 51


FAIR TRIAL, AND HIS RIGHT TO PRESENT A
DEFENSE BY THE TRIAL COURT’S ERRONEOUS
EXCLUSION OF ALL TESTIMONY BY CHARACTER
WITNESSES ATTESTING TO HIS HONESTY AND
VERACITY.

A. Respondent’s Flawed Forfeiture Argument. 54

B. The Trial Court’s Error. 60

C. The Requirement of Reversal. 63

3
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Appellant’s Reply Brief
Page

VI. APPELLANT WAS DEPRIVED OF DUE PROCESS 68


AND A FAIR TRIAL BY PROSECUTORIAL
MISCONDUCT IN REPEATEDLY PORTRAYING
CERTAIN EVIDENCE IN A FALSE, MISLEADING,
AND PREJUDICIAL MANNER.

A. Introduction. 68

B. The Factual Inaccuracies in Respondent’s Argument. 70

C. Respondent’s Forfeiture Argument. 75

D. Respondent’s Failure to Acknowledge the 76


Prosecutor’s Strategy.

E. The Resulting Prejudice. 78

VII. APPELLANT WAS DEPRIVED OF DUE PROCESS 79


AND A FAIR TRIAL BY THE TRIAL COURT’S
FAILURE TO ADEQUATELY RESPOND TO A
CRITICAL JURY QUESTION DURING
DELIBERATIONS.

CONCLUSION 82

CERTIFICATE OF WORD COUNT 83

4
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Appellant’s Reply Brief
TABLE OF AUTHORITIES
Page
CASES CITED

Darden v. Wainwright 79
(1986) 477 U.S. 163

Jackson v. Virginia 25, 43, 48


(1979) 443 U.S. 307

McDowell v. Calderone 82
(9th Cir. 1997) 130 F.3d 833

People v. Banks 50
(2014) 59 Cal.4th 1113

People v. Breverman 29, 46


(1998) 19 Cal.4th 142

People v. Calio 56
(1986) 42 Cal.3d 639

People v. Craig 18, 22, 25


(1994) 25 Cal.App.4th 1593

People v. Dancy 43
(2002) 102 Cal.App.4th 21

People v. Doolin 53
(2009) 45 Cal.4th 390

People v. Greene 18, 24, 25


(1973) 34 Cal.App.3d 622

People v. Hayes passim


(2006) 142 Cal.App.4th 175

People v. Hill 78
(1998) 17 Cal.4th 800
5
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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. Leal 18, 19, 25


(2009) 180 Cal.App.4th 782

People v. Ramkeesoon 26
(1985) 39 Cal.3d 346

People v. Soto 18, 20


(1977) 74 Cal.App.3d 267

People v. Taylor 65, 66


(1986) 180 Cal.App.3d 622

People v. Valdez 57, 59


(2012) 55 Cal.4th 82

People v. Wagner 78
(1975) 13 Cal.3d 612

People v. Watson 50
(1956) 46 Cal.3d 818

People v. Williams 30, 31, 32


(1992) 4 Cal.4th 354

People v. Wyatt 29
(2012) 55 Cal.4th 694

6
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Appellant’s Reply Brief
Page
STATUTES CITED

Evidence Code section 352 52, 53, 54

Evidence Code section 780 60

Evidence Code section 1102 53, 65

Penal Code section 220 28

Penal Code section 242 49

Penal Code section 243 49

Penal Code section 243, subd. (b) 47

Penal Code section 243, subd. (c)(1) 45

Penal Code section 243, subd. (f)(5) 47

Penal Code section 261 11

Penal Code section 289 48, 81

Penal Code section 289, subd. (d) 43

Penal Code section 1138 80

TREATISES CITED

Anne Bolin and Patricia Whelehan, Perspectives on Human 21


Sexuality, State University of New York Press (1999), p. 354

MacMillan Dictionary, www.macmillandictionary.com/us/ 13


Dictionary/american/steal-a-kiss

7
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Appellant’s Reply Brief
Page

Merriam Webster Dictionary, www.merriam-webster.com 13


dictionary/frottage

Oxford Dictionary, https://en.oxforddictionaries.com/ 23


Definition/Outercourse

Planned Parenthood, https://www.plannedparenthood.org/ 23


learn/birth-control/abstinence-and-outercourse

Urban Dictionary, www.urbandictionary.com/define. 13


php?term=steal a kiss

8
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Appellant’s Reply Brief
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

______________________________________ )
)
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. )
)
)

APPELLANT’S REPLY BRIEF


Appellant replies to respondent’s contentions as follows.

RESPONDENT’S SUMMARY OF FACTS

Respondent’s Statement of Facts (Respondent’s Brief, pp. 15-34;

hereafter “RB”) is generally accurate and complete. However, there are certain

statements that are not supported by the record and are adverse to appellant.

In describing Deputy Shaw’s first encounter with appellant when he was

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

sitting on appellant to restrain him, to stand.” 8 RT 779 [respondent incorrectly

9
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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

students stood up at Deputy Shaw’s direction, appellant attempted to stand up

also, but there was no attempt to flee at all:

Q: Okay. Was there any type of resistance from the defendant?

A: Yes. After the two subjects got up off him, he began to try
to get up.

Q: And can you describe how he did that?

A: He was laying on his back and, after I ordered the other


subjects off, he began to flip over. And it appeared to me he
was trying to get up onto his feet.

Q: And had you ordered him not to do such a thing?

A: As he was in the process of that, I ordered him to lay on the


ground. And when I looked back, he wasn’t. I grabbed his
right arm and placed him in a rear shoulder lock.

Q: And what is that?

A: That’s a technique that we’re taught at the academy, and it’s


a control hold. So it’s a way for me to gain control of the
subject.

Q: Once you did that, were you able to gain control of him?

A: Yes, as soon as I grabbed him and said, ‘Hey, I’m an officer.


I need you to lay on the ground.’ After that, he complied. 8
RT 779-780.

10
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Appellant’s Reply Brief
The actual testimony of Deputy Shaw specifically rebuts respondent’s

assertion that appellant attempted to flee. At most, he attempted to get to his

feet in response to Deputy Shaw’s directive, just as Arndt and Jonsson did.

Respondent also exaggerates the testimony of SART nurse Setterlund.

Respondent accurately summarizes a portion of the testimony that “Setterlund

also observed ‘significant trauma inside the labia minora’ (6 RT 389).” RB 27.

However, Setterlund described the injury as “superficial abrasion.” 6 RT 402.

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

treatment. Respondent exaggerates with the statement, “[h]ere, however, there

were significant injuries to the genital area,” RB 27, again citing 6 RT 389.

ARGUMENT

Respondent does not formally concede any of appellant’s arguments, but

it is readily apparent from the nature and substance of respondent’s opposition

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

11
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Appellant’s Reply Brief
the beginning of the Reply Brief the two arguments specific to Count 1 that

demonstrate its fatal defects. 1

I. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR


TRIAL BY THE PROSECUTION’S FAILURE TO PRESENT
CONSTITUTIONALLY SUFFICIENT EVIDENCE AS TO COUNT 1,
ASSAULT WITH INTENT TO COMMIT RAPE.

Respondent cites five items of circumstantial evidence as sufficient to

establish that appellant harbored an intent to rape Ms. Doe beyond a reasonable

doubt. None of these provides substantial evidence of an intent to commit rape,

and some of them militate against an inference of intent to commit rape.

A. Respondent’s Misplaced Reliance on Evidence that Appellant


Kissed Ms. Doe’s Sister at the Party.

Respondent argues that “the jury could have inferred intent to rape from

appellant’s inappropriate behavior at the party,” RB 51, summarizing the

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

51, citing 6 RT 335-336 and 7 RT 599-600. First, there is no testimony that

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.
12
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Appellant’s Reply Brief
appellant “approached her from behind.” That is a mischaracterization on the

part of respondent.2

More importantly, appellant’s conduct amounted to what is well

described in the English vernacular as “stealing a kiss.” Merriam-Webster

Dictionary: “Definition of steal a kiss: to kiss someone in a sudden way – she

stole a kiss (from him) and ran away.” www.merriam-

webster.com/dictionary/steal a kiss. Similarly, the Urban Dictionary defines

“steal a kiss” as “to give someone a quick little kiss when they aren’t expecting

one. You have to be bold to steal a kiss.”

www.urbandictionary.com/define.php?term=steal a kiss. The MacMillan

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.
13
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Appellant’s Reply Brief
expecting it.” www.macmillandictionary.com/us/dictionary/american/steal-a-

kiss.

There is no known association in the case law, in the psychological

literature, in popular culture, or anywhere else between “stealing a kiss” in a

public place and harboring an intent to rape the person kissed, much less that

person’s sister. Respondent’s contention that appellant’s osculatory overture

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.
14
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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

assault occurred.” RB 52. Respondent’s characterization of the “location of

where the assault occurred” as “secluded” is conclusively repudiated by the

record, including the photographs found at 2 CT 501, 509, 511. The record is

clear that the sexual activity occurred on a pine-needle-strewn apron area

immediately adjacent to a basketball court and to a parallel footpath, both of

which are continually used for pedestrian and bicycle traffic on campus at all

times of the day and night.

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

immediately adjacent to the mid-court line of the basketball court, “a couple of

meters” away from the sideline, which he further described as “[a]nywhere

from, I would say, eight to 12 feet.” 4 RT 135.

15
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Appellant’s Reply Brief
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

were no trees, shrubbery, or any other visual impairment between passersby on

the bike path or basketball court and the site where sexual activity occurred; see

Exhibit 25, 2 CT 508-509, and subject to appellant’s request to be sent to the

court.4

Next, Arndt testified that immediately after he assisted Jonsson sitting on

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

were, and “there was more people standing there.” 5 RT 179.

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.
16
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Appellant’s Reply Brief
could colorably characterize the location as “secluded.” Respondent’s

contention that the site was so secluded as to support an inference of intent to

rape is factually untenable.

As noted in the Opening Brief with respect to Argument IV, Stanford law

professor Michelle Dauber submitted at the prosecution’s request a letter to

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

incident occurred in plain view – appellant “degraded and humiliated her by

assaulting her in public,” where “passersby could observe the assault, and

observe her in that utterly defiled condition.” Exhibit 15 to the People’s

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.

17
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Appellant’s Reply Brief
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

that he specifically intended to have sexual intercourse with her, as opposed to

the alternative forms of sexual contact that appellant acknowledged. 6

C. Respondent’s Misplaced Reliance on the Removal of Ms. Doe’s


Underwear and His Admission of Sexual Contact Short of and
Different from Intercourse.

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.

18
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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

inferring intent to rape. The removal of her underwear is completely consistent

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

provides no additional basis for an inference of intent to rape.

Next, appellant’s testimony that he “fingered” Ms. Doe is an affirmative

indication of an intent not to have sexual intercourse but rather to engage in

sexual activity “short of [and] different from intercourse.” People v. Craig

(1994) 25 Cal.App.4th 1593, 1604. Respondent never acknowledges the clear

teaching of Craig that engaging in a particular type of sexual activity that is not

sexual intercourse does not support an inference of an intent to rape. Accord:

People v. Greene (1973) 34 Cal.App.3d 622 [reduced a conviction of assault

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

to offer money” precluded a finding of intent to rape beyond a reasonable

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

assault with intent to rape based on evidence of digital penetration. People v.


19
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Appellant’s Reply Brief
Leal is patently distinguishable from this case. The complaining witness there

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

insufficiency of evidence argument on the basis that his conduct in stealthily

approaching the complaining witness after he “forcibly entered her bedroom,”

id. at 791, established the elements of the assault with intent to commit rape.

In this case, there was no seminal fluid whatsoever or any indication of

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

application to the facts of this case.

20
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Appellant’s Reply Brief
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

whom he had previously kidnapped. There is no remotely similar evidence in

this case.

/
21
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Appellant’s Reply Brief
D. Respondent’s Misplaced Reliance on the Fact that Arndt and
Jonsson Interrupted Appellant’s Thrusting Motions.

Respondent argues that “Arndt testified that he saw appellant on top of a

motionless victim, making thrusting motions in a manner that suggested sexual

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,

much less completing one.

Respondent fails to recognize that the “aggressive thrusting” or

“humping” while fully clothed is viewed in modern times as an alternative to or

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

Whelehan, Perspectives on Human Sexuality, State University of New York

Press (1999), p. 354, have described it as follows:

“Outercourse,” interfemoral intercourse or what in your author’s


generation was known as “dry-docking” or “dry humping,” is a
relatively safer sensual-sexual alternative to P-V [penis-vagina) or
P-A [penis-anus] intercourse. 7

7
Similarly, this form of activity is recognized in numerous popular references
22
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Appellant’s Reply Brief
Again, appellant’s conduct in engaging in sexual activity “short of [and]

different from intercourse” militates against an inference of intent to rape.

People v. Craig, supra. As a matter of common sense, the sexual activity that

was observed here is mutually exclusive to actual intercourse. A person

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

sexual activity militates against an inference of intent to rape.

E. Respondent’s Misplaced Reliance on Appellant’s Effort to Get


Away from Arndt and Jonsson.

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

apprehended.” RB 53. Respondent’s first contention was that appellant’s flight

and failure to explain that the encounter had been consensual constitutes

“consciousness of guilt.” Assuming that some inference of guilt can be inferred

from appellant running away and from his failure to claim consent as he was

as an alternative to intercourse, see, e.g.,


https://en.oxforddictionaries.com/definition/outercourse - “outercourse - noun -
Non-penetrative sexual activity”;
https://www.plannedparenthood.org/learn/birth-control/abstinence-and-
outercourse - “Outercourse is other sexual activities besides vaginal sex” and
“Outercourse activities are 100% effective at preventing pregnancy: kissing,
massage, masturbation, dry humping with clothes on, anal sex, and oral sex
can’t cause pregnancy.”
23
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Appellant’s Reply Brief
being subdued by Arndt and Jonsson, that inference is not specific to

consciousness of guilt of intent to rape, as opposed to consciousness of guilt for

aggressively thrusting on Ms. Doe in public. The evidence may well show that

appellant was caught by surprise in a compromised position with a young

woman and reacted by flight. However, that flight does not support an

inference that he had harbored an intent to rape as opposed to an intent to

pursue some other non-penetrating form of sexual activity. There is no basis in

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

thrusting to intercourse would have felt compelled to flee.

This is the best that respondent can muster as far as purported evidence

of intent to rape, and it falls far short of constitutionally sufficient 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

was to unzip his pants.” 11 RT 1133.


24
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Appellant’s Reply Brief
That was the extent of the prosecutor’s argument, and it fails to cite to

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,”

but there is a complete absence of evidence that he intended to do so.

People v. Greene, supra, found insufficient evidence to support a

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

clothing or “expose himself.” 34 Cal.3d at 650. Respondent attempts to

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

taken to a secluded location behind a dumpster.” RB 55. As set forth in

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

merely in view of neighboring houses as in Greene.

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

college environment where a significant swath of the sexual activity that

actually occurs is “short of and different from sexual intercourse.” People v.


25
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Appellant’s Reply Brief
Craig, supra. The evidence that appellant had embarked on a particular path of

sexual activity with Ms. Doe that did not entail intercourse militates against a

finding of intent to rape beyond a reasonable doubt, rendering this conviction

void under Jackson v. Virginia (1979) 443 U.S. 307 and People v. Johnson

(1980) 26 Cal.3d 557.

II. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR


TRIAL BY THE COURT’S FAILURE TO INSTRUCT SUA SPONTE
ON SIMPLE ASSAULT AS A LESSER-INCLUDED OFFENSE TO
COUNT 1, ASSAULT WITH INTENT TO RAPE.

Respondent begins with the unavoidable acknowledgement that “simple

assault can be a lesser-included offense of assault with intent to commit rape,”

RB 64, citing People v. Leal, supra, 180 Cal.App.4th at 792.

Appellant had previously cited that black-letter law in Appellant’s

Opening Brief, 82-83. 8 Notwithstanding this clearly established law,

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

65-66. To the contrary, the prosecution’s purported evidence of intent to rape

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.
26
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Appellant’s Reply Brief
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

thrusting fully clothed on top of Ms. Doe.

A. The Trial Court’s Erroneous Failure to Instruct.

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

Kappa Alpha house. The prosecutor argued to the jury:

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 evidence is undisputed that appellant was thrusting on Ms. Doe at

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

harbored an intent to rape Ms. Doe. As respondent acknowledges, RB 31,

appellant specifically testified that his intent was to “hump” her, not have

sexual intercourse with her. That by itself was sufficient to require an

instruction on simple assault. People v. Ramkeesoon (1985) 39 Cal.3d 346

reversed a murder conviction under a robbery murder theory where the

27
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Appellant’s Reply Brief
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

to have triggered the trial court’s duty to instruct on theft as lesser-included

offense to robbery. “Although the jury was not required to believe defendant’s

testimony, it was credible enough to have supported a verdict of theft instead of

robbery.” 39 Cal.3d at 351.

Appellant’s testimony was “credible enough to have supported a verdict”

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.,

thrusting on top of Ms. Doe while remaining fully clothed.

The undisputed fact that appellant kept his pants on independently

militates against an inference of intent to rape. The ample evidence of an intent

to engage only in fully clothed thrusting compelled the court to instruct on

simple assault.

Respondent goes off on a tangent by arguing that “if the jury believed

appellant’s testimony that Jane 1 was a participant in sexual activity, then no

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
28
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Appellant’s Reply Brief
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

violate her.” Ibid (emphasis supplied).

That concluding phrase reveals the massive flaw in respondent’s position.

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

characterized as a “sexual violat[ion]” in the absence of consent. Respondent

artfully but insupportably attempts to equate any intent to engage in sexual

activities as indicative of intent to rape for purposes of lesser-included offense

analysis. That is patently untenable. A defendant who intentionally commits a

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

with intent to commit rape, notwithstanding the shortfall of evidence that

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
29
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Appellant’s Reply Brief
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

court erred in failing to instruct on simple assault as the lesser-included offense

that was most consistent with the evidence.

B. The Requirement of Reversal.

Respondent reasserts the same five equivocal snippets of evidence cited

in Argument I to argue that the failure to instruct on simple assault was not

prejudicial. RB 65. Under the standard of People v. Breverman (1998) 19

Cal.4th 142, 178, the failure to instruct on the lesser-included offenses were

reversible where “after examination of the entire cause, including the

evidence…it appears reasonably probable that the defendant would have

obtained a more favorable outcome had the error not occurred.” See People v.

Wyatt (2012) 55 Cal.4th 694, 698.

Here, the weight of the evidence supports an inference of intent of

“outercourse” at most. Under these circumstances, the Breverman standard for

reversal is clearly satisfied.

Respondent attempts to avoid that inevitable conclusion by invoking

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
30
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Appellant’s Reply Brief
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

obligation to instruct on simple assault where the prosecution’s evidence as to

intent is equivocal. The substantial evidence indicating that appellant was

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.

Respondent nevertheless cites People v. Williams (1992) 4 Cal.4th 354,

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
31
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Appellant’s Reply Brief
middle ground – either true consent or rape,” RB 66, as if this were a case with

no middle ground. The complaining witness in Williams was staying in a

homeless shelter and agreed to go with defendant Williams to have a cup of

coffee. Williams then suggested that they go to a friend’s house to watch

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

forcibly raped her.

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

substantial evidence of equivocal conduct warranting an instruction on

reasonable and good faith mistake of fact as to consent to sexual intercourse in

this case.” 4 Cal.4th at 363. Williams is distinguishable in numerous ways, the

primary difference being that there was no ambiguity in the prosecution’s

evidence of intent to rape – the complaining witness was unequivocal that she
32
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Appellant’s Reply Brief
was raped. Here, there was no comparable testimony from Ms. Doe, and the

prosecution’s circumstantial evidence of appellant’s intent was at best highly

equivocal.

In this case, there was clearly “substantial evidence of equivocal

conduct” warranting an instruction on simple assault because appellant’s

thrusting with his pants on may have demonstrated an intent to obtain sexual

gratification, but in no way showed an unequivocal intent to switch gears from

humping to sexual intercourse. The analysis of Williams entirely supports

appellant’s argument that there was prejudicial error in failing to instruct on

simple assault.

III. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR


TRIAL BY THE PROSECUTION’S FAILURE TO PRESENT
CONSTITUTIONALLY SUFFICIENT EVIDENCE AS TO EITHER
OF THE CONVICTIONS UNDER PENAL CODE SECTION 289.

Respondent discusses the insufficiency of evidence as to both Counts 2

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

because there are certain differences in the elements of each offense.

A. The Absence of Sufficient Evidence of Digital Penetration of An


Intoxicated Person.

As noted in the Opening Brief, AOB 72, the prosecution must prove

beyond a reasonable doubt in accordance with CALCRIM 1047 that with


33
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Appellant’s Reply Brief
respect to digital penetration of an intoxicated person – “The effect of an

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

unable to resist digital penetration.

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

friend Trea, discussed below), there is insufficient evidence to prove that

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
34
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Appellant’s Reply Brief
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

excessively intoxicated, the evidence of the blood alcohol content is insufficient

to prove that she was visibly past the point of normal intoxication and into a

state of excessive intoxication.

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

be relevant to the jury’s assessment of her degree of intoxication, but by any

rational standard must be viewed as inferior in weight to the observations of the

people who were actually in Ms. Doe’s presence during the time leading up to

when she left the party with appellant.

Moreover, respondent fails to address the recording itself. As noted in

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

then immediately regaining normal precise diction. The objective inference

from her verbal communications (as distinct from Motro’s subjective appraisal)
35
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Appellant’s Reply Brief
is that her speech showed some effects of intoxication, but nothing so pervasive

as to prove beyond a reasonable doubt that her level of intoxication “prevented

[her] from resisting the act.”

Respondent then cites the summarized testimony of Alice King, the

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

of intoxication would show “objective signs of impairment which would be

obvious to others, such as problems with muscle coordination, slurred speech,

and staggering.” It turns out that none of those “objective signs” were

discernible in Ms. Doe’s conduct or demeanor, much less “obvious” to her

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

message demonstrated that Jane Doe was ‘extremely intoxicated’.” RB 57,

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.

Fromme answered, “That’s true.” 8 RT 753-754. The prosecutor continued,


36
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Appellant’s Reply Brief
“You have no way of knowing whether that person could walk voluntarily,” and

she answered, “No.” 8 RT 754. Dr. Fromme’s response was appropriate given

that she had obviously not attended the party.

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

regarding Jane 1’s level of intoxication and consciousness based on Jonsson’s

and Arndt’s testimony,” RB 58, to the effect that “they could see from across

the basketball court that Jane 1 was completely motionless underneath

appellant.” These observations occurred at approximately 1:00 a.m., which was

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

activity incompatible with digital penetration. The fingering would necessarily

have occurred at some earlier point closer in time to when she voluntarily

walked with appellant away from the Kappa Alpha party. The prosecution
37
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Appellant’s Reply Brief
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

intoxication at the time that it occurred.

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

were participating in a consensual encounter and were not heavily intoxicated

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

sexually penetrated her.” RB 58. That argument is packed with speculation,

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

they approached. There may well have been a passage of 10 or 15 minutes or


38
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Appellant’s Reply Brief
more between the fingering and the arrival of Jonsson and Arndt, during which

time Ms. Doe’s state of intoxication may have reached the point of

unconsciousness well after the fingering had occurred. There is simply no

evidence on this critical issue, and respondent’s speculation cannot cure the

prosecution’s failure of proof.

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

and exaggerates their testimony. Respondent cites 5 RT 242, a portion of the

testimony of Julia Maggioncalda, but respondent has misread that testimony.

The prosecutor asked Ms. Maggioncalda what the intoxication level was of Ms.

Doe’s sister at the party, and she answered “[s]ignificantly intoxicated.” 5 RT

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.

Maggioncalda to characterize Ms. Doe’s intoxication on a spectrum – “Are you

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.
39
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Appellant’s Reply Brief
Maggioncalda answered, “She seemed intoxicated, but at the time, I was very

intoxicated.” 5 RT 243. Clearly, Ms. Maggioncalda was given the opportunity

to characterize Ms. Doe as “very intoxicated,” but declined to do so.

Respondent similarly and incorrectly asserts that Colleen McCann

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

range of the intoxication spectrum – “drunk” – not “very drunk” as respondent

has incorrectly asserted.

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
40
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Appellant’s Reply Brief
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

advance. This conviction must be vacated.

B. The Insufficiency of Evidence of Digital Penetration of An


Unconscious Person.

The elements of the offense of sexual penetration of an unconscious

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)

was unconscious of the nature of the act.”

As noted above, respondent addressed the digital penetration of an

intoxicated person and the digital penetration of an unconscious person in the

same argument. A conspicuous omission in respondent’s combined argument is

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

basketball court because unconscious people cannot ambulate.

41
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Appellant’s Reply Brief
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

unconsciousness at the time the fingering occurred. That failure of proof is

fatal to this conviction.

Respondent attempts to evade this unavoidable conclusion by injecting

an unfounded characterization of the time factor, asserting that the digital

penetration occurred “only moments before” Jonsson and Arndt arrived on the

scene. That is unsupportable. What the evidence establishes is that 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.

There is no evidence as to whether she was conscious or unconscious at the

time the fingering occurred.

Finally, respondent resorts to more than mere mischaracterization and

into a full-fledged fantasy to suggest, based on snippets of evidence from nurse

Setterlund’s testimony, that Ms. Doe may have been “drag[ged] some distance.”

RB 60. This suggestion is based on “the medical examination” that revealed


42
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Appellant’s Reply Brief
“multiple abrasions on her buttocks, on her neck below her left ear, redness on

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

gluteal cheeks, as well as abrasions, referring to photographic Exhibits 41 and

42, including “superficial abrasions” on her neck. 6 RT 376. Nurse Setterlund

testified that she measured some of the abrasions in an effort to determine the

“mechanism of injury.” The prosecutor directly asked, “And in this particular

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

conjured up. If the evidence remotely supported respondent’s conjecture,

surely the prosecutor would have so argued to the jury, but no such argument

was made.

There is a scenario (not supported by the evidence in this case) where a

hypothetical witness could see a young man walking away from the party in the

company of a severely intoxicated young woman who was staggering, requiring

assistance to remain upright, and otherwise displaying symptoms of


43
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Appellant’s Reply Brief
intoxication that a reasonable person would recognize as precluding consent.

That scenario could well support a conviction under Penal Code section 289,

subd. (e), [intoxication] but would not support a conviction for digital

penetration of an unconscious person under section 289, subd. (d)

[unconsciousness].

The prosecutor’s election to charge a violation of section 289(d) was

foredoomed to a failure of proof. Most successful prosecutions under section

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

Cal.App.4th 21, 37 [affirming conviction for rape of an unconscious person

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

beyond a reasonable standard of Jackson v. Virginia, supra, and this conviction

must be vacated as well.


44
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Appellant’s Reply Brief
IV. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR
TRIAL BY THE COURT’S FAILURE TO INSTRUCT ON LESSER-
INCLUDED OFFENSES TO COUNTS 2 AND 3, SEXUAL
PENETRATION OF AN INTOXICATED OR UNCONSCIOUS
PERSON.

Respondent contends that appellant’s arguments regarding lesser-

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

jury to reject appellant’s testimony. Rather, appellant’s argument is that the

evidence of penetration, taken as a whole, and including appellant’s testimony,

was sufficiently ambiguous and inconclusive as to require giving the jury an

intermediate option between conviction of the greater offense and full acquittal.

This argument is not an insufficiency of evidence argument. Appellant

certainly recognizes that a combination of appellant’s testimony, the evidence

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

groping actually resulted in penetration. Moreover, the prosecutor recognized

the ambiguity or inconclusiveness of the evidence in her argument to the jury


45
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Appellant’s Reply Brief
that “it’s pretty much not disputed that he digitally penetrated her vagina with

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

description of his intoxicated groping and harbored a reasonable doubt as to

whether penetration occurred. Moreover, the testimony regarding Ms. Doe’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

dispositive evidence of penetration that is otherwise lacking here.

A lesser-included offense instruction is required under two

circumstances: (1) where defense presents evidence that if credited contradicts

the prosecution’s evidence of the greater offense; and (2) where the

prosecution’s evidence, taken as a whole, is itself ambiguous as to whether 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

convicted of convicted of battery with injury to a probation officer in violation

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 lesser-included offense of battery on a probation officer without injury.”

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

described as an “ashtray” that weighed 50 pounds. It toppled over and struck

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

treatment. It took approximately a week for the injury to heal.

Based on that record, citing People v. Breverman, supra, the reviewing

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

definition of “substantial evidence” with respect to lesser-included offenses is

“evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that

a reasonable jury could fine persuasive.” Ibid.

Hayes framed the issue as “whether the record contains substantial

evidence that would absolve appellant of battery with injury on Deputy


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Probation Officer Phillips, but justified conviction of the lesser-included

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

treatment,” whether or not the victim actually seeks or receives medical

treatment. The Court of Appeal concluded that the evidence clearly

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

Hayes mustered all the evidence available to it as to the seriousness of the

injury, Hayes presented no contrary evidence, and the Court of Appeal

concluded that a lesser-included offense instruction was required because the

totality of the prosecution’s evidence was insufficient to conclusively prove that

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

insufficient as a matter of law. Rather, the Court of Appeal viewed the


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evidence as sufficiently uncertain that the jury could have reasonably found that

the injury did not require medical treatment. Therefore, “the record contains

substantial evidence that would absolve appellant of battery without injury that

justify conviction of the lesser-included offense of battery without injury.” Id. at

182.

There is a clear analogy between the circumstances in Hayes and this

case. There was an undisputed interaction of a hostile nature between Hayes

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

inconclusive as to whether it amounted to an injury within the statutory

definition. In this case, there was evidence of contact with Ms. Doe’s groin

area, but uncertainty as to whether penetration occurred as defined in section

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 appellant thought he attained penetration.

Just as in Hayes, appellant is not making a Jackson v. Virginia argument

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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Appellant’s Reply Brief
been given the option of finding simple battery under Penal Code section 242 or

sexual battery under Penal Code section 243.

The substantial evidence necessary to require a lesser-included offense

instruction does not compel a defendant to directly contradict the prosecution’s

evidence of the greater offense. In Hayes, the Court of Appeal found

“substantial evidence” to support a conviction for the lesser offense and to

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

“because of the soreness, he needed to take a pain reliever such as Tylenol or

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

“appeared to show no more than minor bruising.” Id. at 182.

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

would view Deputy Phillips’ condition as sufficiently serious to warrant

medical treatment.” Rather, the identifiable weaknesses in the prosecution’s

evidence were sufficient to trigger the lesser-included offense instruction.

In this case, it was not necessary for appellant to present any directly

contradictory evidence such as expert testimony that the redness and minor

abrasions to Ms. Doe’s labia were not attributable to digital penetration.

Rather, the prosecution’s evidence of penetration carried identifiable

weaknesses and ambiguities that were sufficient to warrant a reasonable doubt

as to whether penetration occurred, and that would have supported a conviction

for a non-penetration offense. This is the type of situation where the jury must

be presented with the alternative of a lesser-included offense. People v. Banks

(2014) 59 Cal.4th 1113, 1159.

Reversal is required under the standard of People v. Watson (1956) 46

Cal.3d 818 because the jury was forced into an “all or nothing choice between

conviction of the charged offense on one hand, or a complete acquittal on the

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

penetration was dispositively established and specifically contemplated the

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

circumstances, the convictions in Counts 2 and 3 must be reversed.

V. APPELLANT WAS DEPRIVED OF DUE PROCESS, A FAIR TRIAL,


AND HIS RIGHT TO PRESENT A DEFENSE BY THE TRIAL
COURT’S ERRONEOUS EXCLUSION OF ALL TESTIMONY BY
CHARACTER WITNESSES ATTESTING TO HIS HONESTY AND
VERACITY.

Respondent’s introductory remarks regarding this argument reveal the

flaws in the People’s response. First, respondent states the non-controversial

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

issues as to which character testimony was relevant and exculpatory: (1)

whether appellant’s character for sexually appropriate behavior to demonstrate

the unlikelihood that he took advantage of Ms. Doe’s intoxication or

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

categorical ban on veracity evidence – “honesty is out,” 10 RT 924 – was an

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

Evidence Code section 352 discretion to pare down cumulative or time-

consuming testimony on a single issue. To the contrary, the trial court

completely excluded exculpatory evidence on the crucial issue of the credibility

of appellant’s trial testimony.

Next, respondent lapses into a non-sequitur with the comment that

“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

evidence, including testimony by eyewitnesses, voicemails and text messages,


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as well as forensic findings, discredit appellant’s version of events,” such that

“the court correctly concluded that additional character evidence was not

relevant.” Ibid. The fact that the prosecution had other types of evidence that it

marshalled the support of a conviction underscores the importance of

corroborating evidence to assist a jury in evaluating his own testimony.

Respondent’s position is that the People were entitled to present corroborating

evidence of their theory of the case, while appellant was not, which is an

untenable non-sequitur.

Regarding the admissibility of the character evidence regarding veracity,

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

the testimony of a defense psychiatrist…was admissible character evidence

under Evidence Code section 1102, rather than to show defendant was not

disposed to commit the charged offenses.” On cross-examination, the

prosecutor was permitted to ask the psychiatrist whether he had reviewed

reports of Doolin’s misconduct that were consistent with the character of the

murderer and to question Doolin himself about those incidents on cross-


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examination. The California Supreme Court affirmed on the basis that the trial

court “carefully considered defendant’s motion [to preclude the cross-

examination] and performed the requisite weighing process under Evidence

Code section 352.” 35 Cal.4th at 438.

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

exclusion – “honesty is out.”

A. Respondent’s Flawed Forfeiture Argument.

The respondent’s forfeiture argument is based on the cramped meaning

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

understanding that the character evidence was offered in part as to appellant’s

character for honesty – “As I understand it, the character traits that have been

identified by the defense as subject or a subject of these witnesses’ testimony

would be character for honesty and non sexual aggression, essentially.” 1 RT

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

moral character as it relates to sexual assaultive behavior is not.” 10 RT 924.

The court then issued some guidance with respect to the prosecutor’s

cross-examination of character witnesses. Ibid. Respondent contends that the

forfeiture subsequently occurred when defense counsel did not renew his

objection and presented further argument as to the trial court’s ruling and

characterized counsel’s subsequent statements as indicative that “he agreed.

With the court’s ruling.” RB 38. This is inaccurate.

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

comments were limited to the scope of cross-examination. When the court

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

witnesses about the high moral character as it relates to sexual assaultive

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

questions to comply with the ruling.

It is well settled that counsel’s acceptance of and compliance with an

adverse court order does not act as a waiver on appeal. To the contrary, the

acceptance of and compliance with adverse judicial rulings is a necessary part

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

submits to the authority of an erroneous, adverse ruling after making

appropriate objections or motions, does not waive the error in the ruling by

proceeding in accordance therewith and endeavoring to make the best of a bad

situation for which he was not responsible.”]. The tenor of defense counsel’s

statement was that he recognized how to accommodate to the trial court’s

adverse ruling, not that he approved of it.


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Respondent’s characterization of the proceedings appears out of touch

with courtroom reality. The trial court expressly stated its recognition that the

defense was offering the character testimony as to two traits on multiple

occasions, referred to and summarized in apparently extended in-chambers

discussions/arguments regarding the appropriate scope, then back in open court,

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

insistence that defense counsel should have engaged in some additional

expostulations and pontifications is out of touch with courtroom reality and the

applicable law.

Respondent cites People v. Valdez (2012) 55 Cal.4th 82, 121, as support

for the forfeiture argument, RB 39, but Valdez provides little if any support. In

Valdez, a pretrial judge held a series of in-camera hearings without defense

counsel as to the prosecutor’s request to redact the names and identifying

characteristics of witnesses. As soon as Vasquez was arraigned and had

counsel appointed, “the prosecution informed defendant’s counsel of [the

court’s] in-camera hearing and the resulting redaction order.” However,

“[d]efense counsel’s sole response was to request a copy of the redacted


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transcript,” and “he did not object to the ex parte nature of [the in-camera]

hearing or the lack of notice.” 55 Cal.4th at 121.

At a subsequent trial-setting conference before a different judge, one

defense attorney objected to the prior ex-party proceedings, and Vasquez’s

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.

The trial court then conducted an additional in-camera hearing on the

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

ex parte hearing.” 55 Cal.4th at 123.

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

an inference of waiver under those circumstances.

Nor does respondent’s citation to People v. Homick (2012) 55 Cal.4th

816, 867, support a forfeiture argument. In that case, the prosecution presented

evidence that “on the date of the murders, defendant [Steven Homick],

accompanied by Michael Rodriguez, visited a lawyer named Max Herman from

whom defendant may have obtained a gun.” Codefendant Robert 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.

On appeal, Steven Homick contended that “it was improper to admit

Judge Strongwell’s opinion of Max Herman’s character of honesty…to

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

character as deceitful and manipulative,” which “forfeited the claim he now


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attempts to advance on appeal.” Ibid. Steven Homick clearly changed the basis

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

the basis of his objection to a ruling of the trial court.

B. The Trial Court’s Error.

Respondent correctly summarizes the crux of appellant’s position –

“Appellant contends that when a defendant testifies, he puts his veracity at

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

had a tendency to prove the truthfulness of his testimony.” RB 40. Respondent

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

particularly relevant to sexual assault crimes charged.” Ibid.

Respondent misses the basic point here. A defendant who is charged

with a crime that contains an element of dishonesty, such as check fraud, is

entitled to present character evidence of his honesty as a defense to the charge,

regardless of whether the defendant testifies. A defendant who is charged with


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Appellant’s Reply Brief
a crime that does not entail an element of honesty is not entitled to present

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

present evidence of their honesty/veracity regardless of whether

honesty/veracity is an element of the charged crime. At the time of the

exclusionary ruling, the trial court knew that appellant intended to testify.

Respondent argues that the weight of the character evidence as to

honesty/veracity was diminished because the character witnesses were “those

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.

Respondent next swipes at the defense offer of proof – “The testimony

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

probative” as respondent incorrectly contends.

The offer of proof, 2 CT 340, was obviously a one-paragraph summary of

the themes to be addressed by the prospective witnesses, not a comprehensive

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

and excluded it solely on the basis of relevance. Respondent’s suggestion that

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

persuasive power of the live testimony.

Respondent then ventures to a non-sequitur contention in support of the

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

independent evidence regarding the events of that night [that] discredited

appellant’s version of the events.” RB 41-42. Respondent argues that

appellant’s testimony “that Jane 1 was a willing participant in the encounter

mere moments before the two men found her passed out” would be viewed as

“highly improbable in light of Motro’s testimony of Jane 1’s condition when


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they spoke just a few minutes before.” RB 42. Respondent fails to hew to the

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

nonetheless entitled to present his character evidence of honesty/veracity to

persuade the jury that the testimony was nonetheless true. Under the fallacious

rationale propounded by respondent, a defendant whose alibi testimony may

have appeared “high improbable” in light of an eyewitness’s adamant

identification testimony, a trial judge would be justified in excluding

independent alibi witnesses to corroborate the defendant’s own testimony. That

is patently untenable.

C. The Requirement of Reversal.

Respondent confounds appellant’s arguments as to error and prejudice.

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

erred. RB 44-47. Respondent argues that with respect to the prejudice

argument relating to the prosecutor’s challenge to appellant’s credibility,

appellant “implicitly suggests that because of the alleged intensity of the cross-

examination by the prosecutor, the court should be more lenient in admitting

evidence bolstering his credibility.” RB 44. What appellant actually argued was

that the trial court’s error in excluding the evidence was prejudicial because

appellant’s credibility was put under serious challenge by the prosecutor,

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

he is entitled to a “more lenient” standard of admissibility; appellant has argued

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.

Respondent makes an argument that is somewhat more responsive to the

prejudice issue that “the proffered testimony regarding honesty was generic and

not likely to have had any impact on a jury’s determination.” RB 43.

Respondent fails to acknowledge that the actual testimony of the character

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

base an opinion about his honesty/veracity. Respondent’s use of the adjective

“generic” to demean the probative value of the evidence is somewhat obscure.

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

those opinions depends on the foundational information as to the length of time

of the acquaintance between the character witness and the defendant and the

circumstances of that acquaintance. The witnesses in this case were well-

positioned to offer meaningful opinions as to appellant’s honesty/veracity.

Respondent’s effort to distinguish People v. Taylor (1986) 180

Cal.App.3d 622, 629 is unavailing. RB 44-45. Taylor had offered evidence of

his good character for honesty and veracity in the prosecution for a rape of a

mentally incompetent person. Defendant Taylor relied on Evidence Code

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

because appellant’s credibility was “highly relevant” to the jury’s

determination, and the “extrinsic evidence relating to the defendant’s

credibility” was critical to assist the jury. 180 Cal.App.3d at 633.


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The same conclusion is compelled here. Without the character evidence

as to truthfulness/veracity, the defense did not present any “extrinsic evidence

relating to [appellant’s] credibility,” which rendered the defense highly

vulnerable to the prosecutor’s argument that appellant was testifying falsely to

avoid conviction.

Taylor found prejudice because the defendant’s character witnesses were

both well-acquainted with him and highly-respectable, just as were appellant’s

character witnesses in this case. Id. at 634.

Respondent’s prejudice argument boils down to references to Motro’s

testimony that she sounded intoxicated on the telephone such that “her level of

intoxication was obvious to others.” RB 48. That assertion flouts the

evidentiary record in that no person who was present at the party remarked at

all that Ms. Doe was unusually or excessively intoxicated or incapacitated. 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

able to distinguish between people whose “level of intoxication is obvious” and

those whose level was not. Respondent also points to the testimony of Jonsson

and Arndt regarding appellant’s “aggressive thrusting” while Ms. Doe “lay

unconscious…cast grave doubts on appellant’s assertion that she was awake

and welcoming of his advances only moments before.” RB 48. There is no


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direct evidence as to when the sexual contact occurred during the half hour

between appellant and Ms. Doe’s departure from Kappa Alpha and the arrival

of Arndt and Jonsson. Respondent’s characterization that the digital penetration

occurred “only moments before” the arrival of Jonsson and Arndt is not

supported by the record.

Respondent concludes the prejudice argument with the non-sequitur that

“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.”

RB 48. The prosecutor bashed the testimony of the character witnesses as to

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

witnesses’ assessment of appellant’s honesty and veracity because their

opinions were formulated in interactions when he was entirely sober, just as he

was entirely sober at the time of his testimony.

In sum, there is a reasonable probability that the admission of character

evidence as to honesty and veracity would have provided the corroboration of

appellant’s testimony necessary to raise a reasonable doubt as to his guilt.


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VI. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR
TRIAL BY PROSECUTORIAL MISCONDUCT IN REPEATEDLY
PORTRAYING CERTAIN EVIDENCE IN A FALSE, MISLEADING,
AND PREJUDICIAL MANNER.

A. Introduction.

Respondent’s introductory section, RB 71-72, purports to summarize

appellant’s argument, but gets it wrong.9 Here is an actual summary of

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

walked along a basketball court next to a well-traveled footpath. They wound

up on the ground in plain view of passersby immediately adjacent to the

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,

trees, nor anything else.

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

initially parked his vehicle and approached Ms. Doe.

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

conduct by describing it either as the “open space immediately adjacent to the

basketball court and well-traveled footpath,” or “behind the dumpster.” The

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

“behind the dumpster” 10 times in framing her questions to witnesses. See

AOB 96, fn. 6. The phrase also appeared prominently and repeatedly during

her jury argument. See AOB 102-104. The witnesses including appellant

generally acceded to the prosecutor’s references to the dumpster, because it

may have seemed an innocuous albeit inaccurate subcomponent of the question.


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Prejudice arose because the catch phrase “behind the dumpster” was inculcated

into the jury’s collective consciousness and exploited by the prosecutor to

artificially convey moral culpability and depravity.

B. The Factual Inaccuracies in Respondent’s Argument.

Respondent’s summary of the relevant testimony, RB 73-75, is generally

accurate and reflects that Deputy Taylor and a paramedic used the phrase

“behind the dumpster.” RB 73. However, respondent fails to acknowledge that

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

enclosure and her feet…furthest away from it.” 4 RT 81-82. Respondent

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

vehicles parked in the adjacent street independently employed the phrase

“behind the dumpster.”

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

proposed to them. Respondent fails to acknowledge that distinction, and


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instead misstates the record as to Arndt’s testimony. Respondent accurately

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

or anywhere else in the record.

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.

Q: As far as you could see, could you see anyone nearby?

A: I didn’t look. There was also a dumpster blocking this view


partially. 5 RT 167.

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

not in any way shielded.

Following that misstatement, respondent inserts a colloquy between the

prosecutor and Arndt from 5 RT 168 in which the prosecutor asked, “I’m trying

to understand,” “where was she lying in relation to the dumpster,” to which

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

formulating her questions to Arndt:

Q: Okay. Was there anything blocking your view when you


first were alerted to the couple behind the dumpster by
Peter?

A: No.

Q: So any trees in between you and the couple when Peter first
alerted you to the location?

A: No. No. 5 RT 151 (emphasis supplied).

The prosecutor made an additional reference shortly afterward – “So if I

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”

into the description of the scene, not the eyewitnesses themselves.

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.”

Respondent cites to 5 RT 186, but there is nothing on that cite or the

immediately surrounding pages 5 RT 184-188 that in any way suggests the

dumpster obscured the view of partygoers to the site where Ms. Doe was found.

Respondent next cites Jonsson’s testimony at 6 RT 289-296, but there is

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

actually refutes respondent’s characterization:

Q: Was anyone around you other than Carl and this couple?
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A: No.

Q: Could you see Kappa Alpha from this vantage point?

A: Yeah.

Q: Could you see if there were people outside Kappa Alpha?

A: I didn’t notice any people at that point. 6 RT 294 (emphasis


supplied).

Thus, Jonsson’s testimony is that at the time he “first verbally contacted

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

their view obstructed in any way. Respondent is incorrect in asserting the

contrary.
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C. Respondent’s Forfeiture Argument.

Respondent contends that this claim is forfeited because “defense counsel

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

repeatedly referred to the location of the assault in relation to the dumpster,”

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

qualify as “repeatedly,” but respondent’s primary problem with this argument is

that defense counsel correctly characterized the location in question as “in front

of the dumpster,” (emphasis supplied).

Respondent addresses appellant’s argument that the objectionable nature

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

acceptance of the prosecutor’s characterization, but that cannot legitimately be

deemed a forfeiture of appellant’s rights.

D. Respondent’s Failure to Acknowledge the Prosecutor’s Strategy.

Respondent contends that “there is no misconduct because the prosecutor

accurately referred to the location of the assault.” RB 76.

Respondent contends that “the prosecutor’s use of the phrase ‘behind the

dumpster’ was not a mischaracterization of the evidence, as it was taken

directly from the descriptions provided by the witnesses and photographs of the
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Appellant’s Reply Brief
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

different direction from the eyewitnesses.

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

phrase ‘behind the dumpster’,” commenting that “defense counsel made no in

limine motions on this point, and, as noted, used the phrase himself during his

direct examination of appellant at trial.” RB 77, citing 9 RT 849-910. As noted

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

parlance is quite different and conveys an opposite impression than the

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.

Respondent contends that the misconduct was harmless because “the

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.

Respondent fails to recognize the type of prejudice condemned in People v. Hill

(1998) 17 Cal.4th 800, 823. Hill recognized that prosecutorial misconduct can

occur both in the formulation of questions to witnesses and also in the

arguments to the jury. See AOB 146-148.

Respondent declines to address People v. Wagner (1975) 13 Cal.3d 612,

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.

The prosecutor inveigled witnesses Arndt, Jonsson, and appellant in particular

to ostensibly subscribe to the characterization of the offense as having occurred

“behind the dumpster,” and then argued appellant’s culpability and moral

depravity from that inference.

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Respondent concludes with the contention that the misconduct was

harmless because “the evidence of appellant’s guilt was compelling.” RB 79.

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

former boyfriend demonstrated her degree of intoxication. Respondent then

characterizes appellant’s version as “inherently improbable.” RB 80.

Respondent fails to acknowledge the weakness of the evidence of the three

offenses charged, as set forth in the insufficiency of evidence arguments, supra.

Yes, Ms. Doe was intoxicated, but nobody, not even her sister and friends,

viewed her as being excessively intoxicated or visibly compromised or

incapacitated. The prejudicial import of the prosecutor’s remarks that appellant

somehow maneuvered Ms. Doe to a position of vulnerability behind the

dumpster all too likely adversely affected the jury’s determination of guilt.

Darden v. Wainwright (1986) 477 U.S. 163, 178.

VII. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR


TRIAL BY THE TRIAL COURT’S FAILURE TO ADEQUATELY
RESPOND TO A CRITICAL JURY QUESTION DURING
DELIBERATIONS.

The flaw in respondent’s position is the failure to acknowledge that the

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

verbiage contained in the question, relating to the prosecutor’s burden of proof

as to a knowledge element in Count 3. What the jury heard from the court in

response was an emphatic “no,” followed by some unresponsive verbiage.

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

merely exchange written messages.

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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Appellant’s Reply Brief
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

similarly between the judge’s phrasing and their initial question.

The trial court erred in giving the jury a flat “no” answer to their

question, without actually understanding the point of the question.

Respondent takes a detour to knock down a strawman argument that

appellant could not invoke the defense of voluntary intoxication as a defense to

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.

Respondent then contends that a likely interpretation of what the jury

actually wanted to know was “whether the degree of penetration was legally

sufficient to complete the crime.” RB 89. That is completely an unlikely

interpretation of the question because, as respondent points out, “The jury’s

next question [was] whether contact with the labia majora and labia minora is

sufficient” to establish penetration. The jury clearly meant something different

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

was unequivocally adverse to appellant.


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The structure of question #3 and question #4 as it was rephrased, clearly

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

instruction prevented them from considering a potential defense. At this point,

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

underlying meaning. Under these circumstances, appellant was deprived of due

process and a fair jury verdict. McDowell v. Calderone (9th Cir. 1997) 130

F.3d 833, 838.

CONCLUSION

WHEREFOR, for the foregoing reasons, appellant respectfully requests

that this Court reverse his convictions.

Dated: May 4, 2018.

Respectfully submitted,

_________________________________
ERIC S. MULTHAUP, Attorney for
Appellant BROCK TURNER

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CERTIFICATE OF WORD COUNT

I certify that this Appellant’s Reply Brief consists of 16,198 words.

Dated: May 4, 2018.

_________________________________
ERIC S. MULTHAUP

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Appellant’s Reply Brief
DECLARATION OF SERVICE

RE: People v. Brock Turner; No. HO43709


Santa Clara County Super. Court No. B1577162

I, Eric S. Multhaup, am over the age of 18 years, am not a party to the

within entitled cause, and maintain my business address at 20 Sunnyside

Avenue, Suite A, Mill Valley, California 94941. I served the attached

APPELLANT’S REPLY BRIEF

on the following individuals/entities by placing a true and correct copy of the

document in a sealed envelope with postage thereon fully prepaid, in the United

States mail at Mill Valley, California, addressed as follows:

Attorney General
455 Golden Gate Avenue
San Francisco, CA 94102

Clerk, Santa Clara Superior Court


270 Grant Avenue,
Palo Alto CA 94306

Santa Clara District Attorney


270 Grant Avenue,
Palo Alto CA 94306

Michael Armstrong, Esq.


600 Allerton St Ste 200
Redwood City, CA 94063

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

4, 2018 at Mill Valley, California.

_____________________________
ERIC S. MULTHAUP

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