People v. Jacobs

• Decision Date: 25 July 1984
• Docket Number: Cr. 43933
• Citation: 158 Cal.App.3d 740,204 Cal.Rptr. 849
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alphonso JACOBS, Defendant and Appellant.

Page 849

204 Cal.Rptr. 849

158 Cal.App.3d 740

The PEOPLE, Plaintiff and Respondent, v. Alphonso JACOBS, Defendant and Appellant.

Cr. 43933.

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

July 25, 1984.

Hearing Denied Oct. 25, 1984.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Jonathan B. Steiner, Chief Asst. State Public Defender, Edward H. Schulman, Diane M.L. Tan and Patricia L. Reber, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Susanne C. Wylie, Deputy Attys. Gen., for plaintiff and respondent.

DALSIMER, Associate Justice.

Appellant, Alphonso Jacobs, was convicted of one count of forcible oral copulation, one count of rape, and one count of burglary. The jury found that appellant was armed with a knife at the time the sex crimes were committed.

Ms. P. testified that on June 17, 1982, she and her boyfriend had a quarrel about money. Just minutes after her boyfriend left her motel room with his belongings as a result of the argument, appellant knocked on the door and asked Ms. P. to let him in the room. Ms. P. opened the door slightly, and appellant forced his way into the room, grabbed Ms. P. around the neck, and held a knife pointed at the side of her neck. Ms. P. screamed as loudly as she could, and appellant ordered her to be quiet. Appellant put the knife down and ordered Ms. P. to orally copulate him, and she complied.

After the oral copulation, appellant forced Ms. P. to engage in sexual intercourse with him. During the sexual intercourse, Ms. P. asked appellant if he had any money and if he "get[s] high." Ms. P. testified that throughout the oral copulation and sexual intercourse her baby was asleep on the same bed upon which the acts took place. Ms. P. testified that she and her boyfriend were unemployed, that they were living at the motel with her baby, and that she was paying $180 rent every two weeks.

While appellant was getting dressed after the sexual activities, Ms. P.'s boyfriend knocked on the door. Ms. P. testified that she wanted to open the door, but appellant told her to wait until he had finished getting dressed and she complied. When she opened the door, Ms. P.'s boyfriend, seeing appellant, asked, "What the fuck is he doing here?" Ms. P. told him that appellant had raped her, and he chased appellant from the motel. A deputy sheriff testified that the motel is located in a high prostitution area.

Appellant's testimony was as follows: As he was crossing the street near Ms. P.'s residence, appellant saw Ms. P. and her boyfriend having a physical fight. ¹ After Ms. P.'s boyfriend left, appellant approached her and spoke to her because she looked familiar. Ms. P. invited appellant to enter her motel room and told him that she would not let her boyfriend into the room. When appellant entered the room, he saw a small child sleeping on the bed. Ms. P. placed a blanket on the floor near the bed, put the child on the blanket, and asked appellant to be quiet because the child was asleep.

She sat next to appellant on the bed and asked him if he was employed, whether he had any money, and if he would give her enough money to buy a PCP cigarette. Appellant replied, "I don't know. Will it be worth my time if I did?" Ms. P. answered, "It might be; it's possible." Appellant then said, "Well, why don't you show me." Ms. P. began kissing appellant and soon suggested that he get undressed. Appellant told her that he was nervous because of her fight with her boyfriend, but she promised him that she wouldn't let her boyfriend into the room. Ms. P. orally copulated appellant and then asked him to have sexual intercourse with her.

When her boyfriend knocked on the door, Ms. P. told appellant that the person outside was the manager. Appellant opened the door, recognized Ms. P.'s boyfriend, and left. Ms. P.'s boyfriend followed him and asked him what was happening. Appellant told him to ask Ms. P. Upon hearing that answer, the boyfriend attempted to punch appellant, and a physical fight between them developed. Appellant noticed three male Mexicans running toward him. As they were reaching inside their pockets, he feared that the men were armed, and he fled. Ms. P.'s boyfriend and another man pursued him. As he chased appellant, Ms. P.'s boyfriend threatened to kill him, whereupon appellant hid behind a tool shed where the police apprehended him.

Los Angeles Sheriff's Deputy Frank Plass testified that, as soon as he located appellant, he shone his flashlight on appellant's back and in a loud, authoritative voice ordered him to stand up, turn around, and place his hands high over his head. After appellant turned around, he "bolted out," and Deputy Plass struck him with his flashlight, causing him to fall to the ground. When appellant attempted to get up, Deputy Plass "jumped on his back with both ... knees [and] knocked the air out of him."

Appellant testified that, as soon as the police arrived at the shed, he was ordered to lie face down on the ground. He further stated that he was then handcuffed and kicked in the ribs and received facial burns from having his face placed against the hood of the police car. When asked whether the arresting officer said anything concerning the officer's conclusions regarding appellant's conduct, appellant testified as follows: "Then he started kicking me in the ribs. He said, 'I should kill you nigger. I know you did it. I should kill you right here. That will end the paper work, but that's too good for your black ass. Come on.' "

Deputy Plass and appellant gave conflicting testimony as to whether appellant was armed at the time of his arrest, Deputy Plass insisting that appellant was carrying an open knife, which he ultimately dropped upon command before the police approached him, and appellant denying that he had any weapon.

After the arrest, appellant was taken to a hospital because of the injuries suffered during the course of his arrest. On cross-examination by the prosecution appellant testified as follows concerning his silence in the field at the time of the arrest and later at the hospital: "Q Did he [Deputy Plass] offer you an opportunity to tell your version of what happened? [p] A No. [p] Q He didn't take a statement from you; is that right? [p] A Right. [p] Q Did you tell him about [Ms. P.'s boyfriend] and his friends or buddies chasing you to that location? [p] A No. [p] Q You didn't tell Deputy Plass that you were so relieved to see them [the officers] because you know this mad horde of people were out to kill you? [p] A No. [p] Q You didn't tell him that [Ms. P.'s boyfriend] had even threatened to kill you? [p] A No. I didn't tell him nothing like that. [p] Q Is that because you thought you might settle things with [Ms. P.'s boyfriend] on your own? [p] A No. Because when Deputy Plass came on me I was too scared to say anything the way he start whipping on me for nothing, so I had nothing to say but just take the whipping." The record does not indicate whether appellant received warnings under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 previous to remaining silent at the time of his arrest or at the hospital.

Appellant contends that his being questioned concerning his silence violated his due process rights under the United States Constitution and his privilege against self-incrimination under article I, section 15, of the California Constitution. Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 teaches that the use for impeachment purposes of a defendant's postarrest silence after receiving Miranda warnings violates the due process clause of the Fourteenth Amendment. (Id., at p. 619, 96 S.Ct. at p. 2245.) The United States Supreme Court has observed, "Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest." (United States v. Hale (1975) 422 U.S. 171, 180, fn. omitted, 95 S.Ct. 2133, 2138, fn. omitted, 45 L.Ed.2d 99.)

The potential for prejudice as a result of such questioning is considered so great that, even in the absence of any objection or motion to strike, Doyle error may be raised on appeal. (People v. Andrews (1970) 14 Cal.App.3d 40, 48, 92 Cal.Rptr. 49.) Furthermore, in People v. Galloway (1979) 100 Cal.App.3d 551, 160 Cal.Rptr. 914, it was observed that CALJIC No. 1.02, which instructs the jury that a question is not evidence and that the jury must "never assume to be true any insinuation suggested by a question asked a witness," will rarely be effective to cure a Doyle violation. (People v. Galloway, supra, 100 Cal.App.3d at pp. 561-562, 160 Cal.Rptr. 914.) The Galloway court explained, "Those cases holding such errors to be harmless have stressed not the presence of curative instructions but the overwhelming evidence of guilt. [Citations.] Other decisions have ruled the error harmless because defendant did not present an exculpatory story that his silence would impeach. [Citations.]" (Id., at p. 562, 160 Cal.Rptr. 914.)

In Fletcher v. Weir (1982) 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, however, the court held that it does not violate due process for a state to permit cross-examination as to postarrest silence that was not preceded by affirmative assurances such as Miranda warnings. (Id., at pp. 605-607, 102 S.Ct. at pp. 1311-1312; also see Jenkins v. Anderson (1980) 447 U.S. 231, 238-239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 [impeachment by means of questioning defendant...