People v. Alvarez

• Decision Date: 23 May 2002
• Docket Number: No. S089554.,S089554.
• Citation: 27 Cal.4th 1161,46 P.3d 372,119 Cal.Rptr.2d 903
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose M. ALVAREZ, Defendant and Appellant.

119 Cal.Rptr.2d 903

27 Cal.4th 1161

46 P.3d 372

The PEOPLE, Plaintiff and Respondent, v. Jose M. ALVAREZ, Defendant and Appellant.

No. S089554.

Supreme Court of California.

May 23, 2002.

Rehearing Denied July 10, 2002.

Carl Fabian, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Garrett Beaumont and Carl H. Horst, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

To convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator. Though no statute or constitutional principle requires it, California, like most American jurisdictions, has historically adhered to the rule that the first of these components—the corpus delicti or body of the crime—cannot be proved by exclusive reliance on the defendant's extrajudicial statements.

In practice, the corpus delicti rule operates in several ways. The defendant may object to the admission of his extrajudicial statements on grounds that independent proof of the corpus delicti is lacking. Whenever such statements form part of the prosecution's case, the jury must be instructed that conviction requires some additional proof the crime occurred. On appeal, a defendant may make a direct claim that there was insufficient evidence, aside from his statements, of the corpus delicti.

In June 1982 the voters, by adopting Proposition 8, added section 28, subdivision (d) (section 28(d)), the "Right to Truth-in-Evidence" provision, to article I of the California Constitution. This section provides that except under certain statutes already in effect, or thereafter enacted by a two-thirds vote of each house of the Legislature, "relevant evidence shall not be excluded in any criminal proceeding."

The issue presented by this case is narrow. We granted review to consider, for the first time since the adoption of Proposition 8, whether section 28(d) abrogated the corpus delicti rule in California. We will conclude that section 28(d) did abrogate any corpus delicti basis for excluding the defendant's extrajudicial statements from evidence. On the other hand, in our view, section 28(d) did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed.

Here, defendant was convicted on multiple charges after he invaded the home of a 13-year-old female acquaintance at night and attacked her in her sleep. The Court of Appeal sustained convictions for burglary and aggravated assault, but it reversed the conviction for a forcible lewd act on an underage child. As to the latter charge, the Court of Appeal concluded the trial court had erred by failing to instruct, sua sponte, on the need for independent proof of the corpus delicti. The People contended that no error had occurred because section 28(d) had abrogated the independent-proof rule, but the Court of Appeal dismissed this argument. Moreover, the Court of Appeal reasoned, the error was prejudicial, because aside from defendant's preoffense statements introduced at trial, there was no evidence of his lewd intent in touching the victim.

For reasons indicated above, we believe the Court of Appeal properly rejected the People's argument that section 28(d) had abrogated the need for a corpus delicti instruction. However, unlike the Court of Appeal, we deem any instructional error harmless, because the independent evidence of lewd intent was present. Accordingly, insofar as the Court of Appeal overturned the forcible lewd act conviction, its judgment must be reversed.

FACTS

A jury convicted defendant of residential burglary (Pen.Code, §§ 459, 460, subd. (a))¹ (count 1), a forcible lewd act upon a child under 14 (§ 288, subd. (b)) (count 2), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 4).² Under the "One Strike" law, the jury found that the forcible lewd act occurred during a residential burglary perpetrated with the intent to commit such an act (§ 667.61, subds.(a), (d)(4)). Defendant was sentenced to an indeterminate term of 25 years to life on the forcible lewd act conviction; determinate sentences on the burglary and assault convictions were stayed under section 654.

The trial evidence, essentially undisputed, indicated the following:

In September 1997, the victim, 13-year-old Monique G., lived in an apartment with her mother Margaret and her three younger siblings. Defendant knew Monique and her family, and the location of their apartment, because he had been the boyfriend of Angela Plum, a friend of Margaret's. Monique and defendant had exchanged greetings on several occasions.

On the night of September 6 and 7, 1997, Monique, her 13-year-old friend Jessica, and her 10-year old friend Kyra were sleeping downstairs while Margaret and her younger children slept in upstairs bedrooms. Monique, asleep on a loveseat in the living room, was wearing a T-shirt and boxer shorts and was covered with a "furry" blanket. The family's routine was to lock the windows and doors and turn off the lights before retiring, but, because it was a warm evening, the kitchen window might have been left open a crack.

Sometime in the early morning hours of September 7, Monique felt a sensation like an insect crawling on her stomach underneath her shirt, but it did not awaken her. Moments later, she did awake when she felt something strangling her. Defendant was standing over her, his hands covering her nose and mouth. Jessica heard Monique's muffled scream, whereupon she also awoke and, by illumination from the kitchen light, saw someone choking Monique. As Monique sought to wrench free and called for help, defendant kept one hand over her nose and mouth, and with the other, pressed down on her throat.

Jessica ran upstairs to get Margaret. Jessica and Margaret came back downstairs, and defendant ran out the front door. As he did so, Jessica recognized him. Before calling the police, Margaret noticed that the kitchen light was on and the kitchen window was open wide. Two or three nights later, Monique, Jessica, and Margaret were inside the apartment when they heard the front door handle jiggle; Margaret looked outside and saw defendant. Margaret called 911, and the police responded, but by then defendant was gone.

An evening or so after that, defendant came by the apartment and asked if he could use the bathroom and have a glass of water. Margaret let him in, and while he was in another room, she called the police and her boyfriend, Mark Armstrong. Armstrong responded and attempted to detain defendant until the police arrived. Armstrong asked defendant what he was doing there after the earlier break-in. A friend of defendant's arrived at the front door, whereupon defendant slipped past Armstrong and fled.

The evidence indicated that on two occasions before the attack, defendant had expressed a sexual interest in Monique. Angela Plum testified that in April 1997, approximately five months before the assault, defendant told her he would like to have sexual relationships with both Plum and Monique at the same time. Monique herself testified that a couple of months before the attack, she was at Jessica's house and called home to check on her family. Plum answered the phone and said to Monique that defendant would like to talk to her. Defendant then came on the line and told Monique he had had a dream "where we were kissing and having sex or something like that."

Defendant was convicted as indicated above. On appeal, he urged, among other things, that the trial court erred by failing to instruct sua sponte on the corpus delicti rule, as set forth in CALJIC No. 2.72. This instruction would have told the jury that "[n]o person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any ... [admission] made by [him] ... outside this trial." Defendant argued the error was prejudicial as to count 2, the forcible lewd act conviction, because that offense requires a touching with lewd intent (§ 288, subds.(a), (b); see People v. Martinez (1995) 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037), and his extrajudicial expressions of sexual interest in Monique were the only evidence of such intent.

In an unpublished opinion, as modified, the Court of Appeal for the Fourth Appellate District, Division One, reversed defendant's forcible lewd act conviction and otherwise affirmed the judgment. With respect to the forcible lewd act count, the Court of Appeal agreed with defendant that the trial court erred in failing to instruct sua sponte on the corpus delicti rule. The error was prejudicial, the Court of Appeal reasoned, because the sole evidence of defendant's lewd intent in touching Monique was his preoffense expressions of sexual interest in her.

The Court of Appeal rejected the People's claim, inspired by a concurring opinion in People v. Culton (1992) 11 Cal. App.4th 363, 14 Cal.Rptr.2d 189 (Culton), that Proposition 8 had abrogated the corpus delicti rule. The instant Court of Appeal's majority opinion, written by Justice McDonald, observed that no decision had so held, and that numerous cases since 1982 had applied the rule, thus assuming its continued existence. The majority also noted Justice Mosk's concurring opinion in People v. Jones (1998) 17 Cal.4th 279, 319, 70 Cal.Rptr.2d 793, 949 P.2d 890, concluding that the rule had not been abrogated. Justice Benke concurred separately in the majority's conclusion that a prejudicial violation of the corpus delicti rule had occurred. She suggested she did so only because there was no dispositive authority that Proposition 8 had abrogated the corpus delicti rule, and she observed that...