People v. Blackburn

• Decision Date: 29 March 1976
• Docket Number: Cr. 27576
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Stanley BLACKBURN, Defendant and Appellant.

Page 864

128 Cal.Rptr. 864

56 Cal.App.3d 685

The PEOPLE, Plaintiff and Respondent, v. David Stanley BLACKBURN, Defendant and Appellant.

Cr. 27576.

Court of Appeal, Second District, Division 1, California.

March 29, 1976.

Hearing Denied June 9, 1976.

Donald R. Wager, Los Angeles, and Mark Evans for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark moore, Asst. Atty. Gen., James H. Kline and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

THOMPSON, Associate Justice.

This appeal from a judgment of conviction of one count of rape and two counts of kidnapping raises the constitutionality of the 1974 amendments to the Evidence Code limiting admissibility of evidence of sexual conduct of the victim of rape. It raises, also, the sufficiency of an offer of proof made by defendant at trial pursuant to Evidence Code section 782 to require a formal hearing on the admissibility of evidence of sexual conduct of the victim to attack her credibility, and the issue of sufficiency of evidence of kidnapping produced at the preliminary hearing to hold defendant for trial. Concluding that the 1974 additions to the Evidence Code are constitutional, that defendant's offer of proof was insufficient, and that the evidence at the preliminary hearing was adequate to hold defendant to trial on the kidnapping counts, we affirm the judgment.

Evidence Code Sections 1103 and 782

Defendant was charged with forcible rape of Deborah M. and with kidnapping Deborah and Alfred A. At a jury trial, the prosecution's evidence established that defendant and three others had accosted Deborah as she walked with 10-year-old Alfred and forced Deborah and Alfred some 500 feet through an alley and into an abandoned apartment building where defendant and his three companions raped Deborah.

Deborah had been cross-examined at the preliminary hearing where she testified against defendant. After first testifying on cross-examination that she was a virgin when raped, she later responded to other questions on cross-examination to the effect that she had engaged in sexual intercourse with a boyfriend in Mississippi before coming to Los Angeles some five or six months before she was raped.

At trial, the prosecution did not place Deborah's chastity in issue and she did not testify to lack of previous sexual experience. Pursuant to Evidence Code section 782, defendant moved to introduce evidence of sexual conduct of Deborah in order to attack her credibility. The offer of proof is supported by an affidavit of counsel offering to prove that subsequent to the rape, Deborah, a juvenile, had lived in a motel with a 40-year-old man and that, while first denying that she had engaged in sexual intercourse with him, she had later admitted that fact. The affidavit points to inconsistencies in Deborah's testimony and pretrial statements and concludes that the case is one where 'the sexual proclivity of the complaining witness and her lack of truth and veracity are clearly in question.' Finding the offer of proof 'insufficient,' the trial court barred the proffered evidence.

On this appeal, defendant contends: (1) Evidence Code section 1103 barring evidence of sexual conduct of the alleged victim of rape in order to establish her consent to sexual intercourse deprived him of his due process right to confront witnesses and right to a fair trial; (2) the requirement of Evidence Code section 782 that a sufficient written offer of proof precede the determination of admissibility of the alleged victim's sexual conduct to attack her credibility is unconstitutionally vague and denied him his privilege against self-incrimination; and (3) in any event, his offer of proof was adequate so that the trial court erred in denying his right to produce evidence of Deborah's sexual conduct to attack her credibility.

Evidence Code section 1103 provides that evidence of the character of the victim of the crime for which a defendant is being prosecuted is admissible if offered by the defense to prove conduct of the victim in conformity with the traits of character established by the evidence. Section 1103 was amended in 1974 to add a new subsection (2). That subsection excludes from the scope of section 1103 and makes inadmissible in a prosecution for rape or a related offense reputation evidence and evidence of specific instances of the alleged victim's sexual conduct with others than the defendant in order to prove consent by the alleged victim unless the issue of sexual conduct is first interjected by the prosecutor or in the victim's testimony.

The principal effect of the 1974 amendment to Evidence Code section 1103 is to deny to a defendant charged with rape or a related crime the right to introduce evidence that the victim had previously engaged in sexual activity and thereby to invite the trier of fact to infer that she consented to intercourse with the defendant so as to negate a necessary element of the crime of rape.

The amendment does not deny to the defendant the due process rights of a fair trial or confrontation of witnesses against him. Unlike the situation where evidence establishing the bias of a prosecution witness or his motive to testify falsely is excluded (see Davis v. Alaska (1973) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347; United States v. Harris (9 Cir. 1974) 501 F.2d 1), the evidence barred by section 1103, subsection (2) does not concern the credibility of a witness so as to affect the right of confrontation. Section 1103, subsection (2) excludes evidence of the victim's sexual conduct only when it is offered to prove consent. That limited exclusion no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence, and privileged communications. Hearsay evidence tending to exonerate a defendant may be highly relevant to his innocence but is excluded from consideration by the jury. So also is testimony from a highly respected citizen that he believes the defendant did not commit the crime or, absent a waiver of privilege, testimony of a clergyman that another person has confessed the crime in a manner exonerating the defendant. In those situations, policy considerations dictate that the evidence be excluded, and those policy considerations are deemed incorporated within the definition of a fair trial.

In adopting the 1974 amendment to Evidence Code section 1103, the California Legislature has imposed another policy limitation upon the admissibility of evidence. In contrast to the hearsay, opinion, and privilege bars, the effect upon the outcome of a trial of the 1974 exclusion is minimal. The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best. The historical rule allowing the evidence may be more a creature of a one-time male fantasy of the 'girls men date and the girls men marry' than one of logical inference.

Since the due process right to a fair trial does not require that all relevant evidence that may tend to exonerate a defendant he received and since the evidence barred by subsection (2) of Evidence Code section 1103 is of limited probative value at best, subsection (2) does not deprive the defendant charged with the crime of rape of a fair tiral. Since subsection (2) of Evidence Code section 1103 does not bar evidence of sexual conduct of the victim or her cross-examination concerning that conduct to attack her credibility, the right of confrontation encompassed in due process is not impinged.

Evidence Code section 782, adopted in 1974 as a companion to the amendment to section 1103, imposes a procedural limitation upon the admissibility of evidence of sexual conduct of the alleged victim of rape or a related offense offered to attack her credibility. Section 782 requires that the testimony be...