PEOPLE v. EARLE

Filed 3/19/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUE FROM PART II.

One point on which Glorias description of her assailant did nearly match defendant was her estimate that he stood about 5 feet 9 inches tall, which is one inch shorter than defendant. The prosecutor laid great emphasis on the nearness of this estimate. But even here there was considerable room to doubt Glorias testimony. At trial she said she had told police her assailant was between 56 to 58, more or less, which would make him two to four inches shorter than defendant. Moreover a jury viewing the evidence dispassionately might observe that height was the assailants one outward feature Gloria would seem to have been least able to accurately judge. According to her, she was already sitting partway in her car when the assailant suddenly appeared at the drivers door and threw her back into the car, apparently meaning further into the car. Thereafter neither of them was standing from the beginning of the assault until after she pushed herself out the opposite door, got up off the ground, and ran. The only indication that she ever saw the assailant while both were standing was her testimony that after seeking help at the bakery she ran over to the corner and saw [the assailant] get into this truck that he had parked there. But she also testified that the guy from the bakery was with me at this time, and that person, Armondo Ramirez, described no such thing. All he saw was a pickup truck pass by.

The prosecution faced a further difficulty in Glorias description of the assailant to police as [t]hin, skinny. Defendant was certainly lean, apparently weighing about 180 lbs at the time of his arrest, but he was very far from skinny. Both photographs suggest the build of a wrestler. Indeed this is one of the more striking divergences between photographs of defendant and the police sketch, which depicts a distinctly thin-necked and narrow-faced person, in contrast to defendants bull neck and broad face. Other evidenceincluding the pictorial exhibitssuggested that defendant had some prominent physical features that Gloria never mentioned to officers, and did not at trial recall seeing on the assailant. These included distinctly protruding ears, a deeply furrowed brow, a receding hairline, and, apparently, highlights in his hair.

Another weakness in the prosecutions case was the unexplained ineffectuality, and ultimate failure, of the assault. Although the record does not disclose Glorias height and weight, the prosecutor conceded in argument that she was shorter and less strong than defendant. At the same time, the jury heard testimony that defendant held a black belt in the martial art of Brazilian jujitsu, and was a high-ranked world-class contender in that sport as well the sport of submission grappling. Defendants hypothetical identity as Glorias assailant may thus seem at odds with her having out-grappled her assailant and fled the scene.

Glorias identification was also rendered vulnerable by her adamance coupled with a manifest eagerness to bring about the apprehension and punishment of her assailant. She told Detective Gutierrez that she was 100 percent sure that the defendant was the man who attacked her . . . . But she acknowledged that after the attack she was afraid and wanted the person who did this to [her] to be caught. When she identified defendant in the in-field showup, she had already decided at the car wash . . . thats the person that attacked [her] . . . . She had formed that conclusion while watching defendant, as she said, from afartoo far to see his eyes, height, weight, or whether he was Hispanic, or to read the trucks license plate. She acknowledged that when she saw the black truck outside the car wash, she got a little bit scared because it was a black truck. But she also assented to assertions that she was sure that thats the truck and the person that attacked you, even though it was not a Ford Bronco, and even though she could not see the drivers height or weight, and that she just felt sure that that was the person . . . .

These features made Glorias testimony particularly vulnerable in light of the expert testimony of Professor Geoffrey Loftus, offered by the defense concerning the potential unreliability of eyewitness identifications. Compressed to its essentials, this testimony informed the jurors that reported memories may not only be rendered inaccurate by deficiencies in the witnesss original perception, but may in effect be corrupted by information later encountered and incorporated into memory. Thus, every time you think about some event that youve experienced in the past, every time you revisit it in your memory, your memory will change in some fashion or another. . . . [] . . . [] [A]s a result of all this kind of reconstructive processes, memory . . . can change . . . and does change over time, sometimes fairly dramatically. So that by the time a person is called upon to recount what happened to them, their recollections, their memory of what happened may be very different from the memory that they laid down at the time that the original event was taking place.

Of particular relevance was the professors warning against reliance on a witnesss subjective confidence as an indicator of reliability. [T]housands of experiments, he said, show that people can report memories . . . with a great deal of confidence . . . that are just dead wrong in many important respects. [M]emory reconstruction played a role in various criminal convictions based on mistaken identification, a large majority of which involved faulty eyewitness testimony, witnesses identifying the defendant . . . often quite confidently, but incorrectly, as it turns out. In some cases where people were exonerated on the basis of DNA evidence, they had been misidentified by numerous eyewitnesses. He opined that a witnesss adamance about the correctness of his or her identification should be completely disregarded in assessing the reliability of identification testimony.

Despite its generalitywhich was partly the result of a successful motion in limine by the prosecutionthis testimony brought out several factors, not otherwise obvious to the jury, that could well cast Glorias identification into doubt. For example, it could highlight the serious deficiencies in the conditions under which she observed her assailant. Although she was certainly viewing him at close range throughout the struggle, the lighting consisted entirely of whatever illumination entered her car from the parking lot lights above it. Aside from its relative dimness, the overhead orientation of such lighting would naturally cast much or all of the assailants face into deep shadow. Moreover, Gloria testified that for much or all of the struggle, the assailant was pulling her head back by the hair. This would seem likely to direct her gaze upward and to make it more difficult to look directly at his faceunless his face itself was above her, in which case it would have been entirely in shadow. The possibility of weapon focus was also present, for she not only saw a knife but was told by the assailant that he had a gun.

Further serious weaknesses attended Glorias identification of defendants truck as matching that of the assailant. Gloria initially specified a make and model of trucka 1986 Ford Broncothat simply did not match defendants 1981 Chevrolet Blazer. Although Gloria testified that she didnt know that much about the makes of cars, she acknowledged having a friend who drove a Bronco. She herself drove a sport utility vehiclea 2003 GMC Envoywhich she described as my truck.

Further, whatever Gloria knew or did not know about the names of various models, when she saw another Ford Bronco a week after the assault she took down its license number and told police she thought she had found the assailants vehicle.[1] Thus, in order to find beyond a reasonable doubt that the assailant was driving defendants truck, the jury had to accept that Gloria was mistaken not only in initially describinga different vehicle but in subsequently recognizing a vehicle that matched her original description, but not defendants truck.

The prosecution sought to get over this difficulty by emphasizing the similar body styles of Blazers and Broncos. But apart from the debatable sufficiency of this consideration to meet the issue, its underlying premise, and Glorias truck identification in its entirety, were cast in doubt from an entirely independent source: the testimony of bakery worker Armondo Romero, the only other person to see the assailants vehicle, who described it not as a sport utility vehicle, but as a pickup truck. In her final comments to the jury, defense counsel cited this discrepancy as one of five respects in which the evidence raised a reasonable doubt as to defendants guilt. The prosecutors only response was to refer to defendants truck as a pickup truck and then to suggest in argument that both a Bronco and a Blazer are basically, . . . pickup trucks with shells on the back. It is unclear whether this was intended to confuse the jury, or perhaps to invite speculation that Mr. Romero had mistaken defendants Blazer for a pickup truck with a shell. When Mr. Romero was on the stand, the prosecutor had made no attempt to establish that the pickup he saw might have had a shell. By alluding to such a possibility in jury argument, he was simply fabricating facts out of thin air, and inviting the jurors to do likewise.

These circumstancesmost notably Glorias contested original description of the vehicle, its later metamorphosis from a Bronco to a Blazer, the questionable viewing conditions preceding her decision that defendant was the assailant, and the highly suggestive circumstances of her formal identificationswould have suggested to a reasonable juror, versed in the testimony of Professor Loftus, that her identification of defendant and his truck could well rest on after-the-fact reconstructions rather than accurately retrieved original perceptions. As defense counsel pointed out, everything Gloria remembered about the assailant and his vehicle seemed to be revised in a flash two and a half weeks after the event, when she saw defendant sitting in his Blazer and formed the conviction that he was the culprit. At that moment, a skeptical juror could quite reasonably conclude, the assailant metamorphosed from Hispanic to European, from light brown to white, from skinny to muscular; his vehicle metamorphosed from a 1986 Ford to a 1981 Chevrolet; and its rear window vanished. This is not the stuff of strong cases.[2]

V. Countervailing Benefits

Once the spillover evidence has been identified and its potential to influence the verdict evaluated, the trial court must weigh the resulting risk of prejudice against the advantages of joint trials. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p. *27].) The greatest advantages will often be those stemming from the avoidance of duplication of evidence, as where at least some of the same testimony, or testimony from the same witnesses, would be heard in each of the hypothetical separate trials. (See Alcala v. Superior Court, supra, 43 Cal.4th 1205, 1218 [ joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant  ].) In these cases, joint trials may serve not only the interests of the state, but those of third persons, most obviously by sparing one or more citizen witnesses from having to testify more than once.

Even where no case-specific economies appear, we are directed by the Supreme Court to weigh, as against the risk of prejudice, the systemic economies of joint trials, i.e., the savings in costs otherwise incurred by the state in a second trial and appeal. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p *46; see pp. *23, 45-48.) We do not understand the court to mean that these systemic economies will always be enough, by themselves, to sustain a refusal to sever. Rather the court was explaining its conclusion that the Court of Appeal there had inappropriately minimized the benefits of joinder when it dismissed the benefits as minimal. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p *45].) The courts point was that reviewing courts must not take lightly the public benefits that flow from the administrative savings that flow from disposing of multiple charges in a single proceeding. (See Soper, supra, ___ Cal.4th at p. ___ [2009 Cal. LEXIS 1100, at p. ].)

Here the systemic efficiencies were the only advantages of joint trial. There was absolutely no overlap in the evidence or witnesses. So far as the evidence was concerned, the matter essentially took the form of two trials before a single jury. The time spent actually trying the indecent exposure was minimal; the relevant testimony takes up approximately 22 pages of transcript. Therefore the only apparent saving was the time and cost to impanel a second jury to hear that evidence separately. This is not a trivial matter; in all likelihood, it would have consumed more time than the actual taking of evidence, and probably the deliberations as well. Moreover we do not disregard the fact that however honorable and necessary jury duty may be, it incommodes twelve citizens who would otherwise remain free to pursue their own concerns.[3]

Ponderable as these interests are, however, we do not believe they can counterbalance the very substantial risk that evidence of the indecent exposure played a dispositive role in the verdict on the assault charge. Obviously a balance must be struck between economy and convenience on the one hand, and accuracy and fairness on the other. Each of the signatories of this lead opinion has served as the presiding judge of a major metropolitan trial court. In that role we have been responsible for the efficient allocation of resources that never seemed to keep pace with our courts burgeoning caseload. We are therefore far from insensitive to concerns about the economical use of those resources. But it would never occur to us, and we trust it would never occur to any judge, to elevate those concerns above an accused persons right to a fair trialincluding the right to be tried (and convicted, if that is the result) only upon evidence the law allows the factfinder to consider. Such an ordering of priorities would be irreconcilable with the basic consensus on which our society rests, and would strike a blow at the requirement of due process of law which is the beating heart of our republic. We are confident that the Supreme Court had no such intention when it admonished reviewing courts to take due account of systemic efficencies. Those efficiencies simply were not enough here to justify a joint trial.

There is no suggestion that, with the possible exception of the actual jury arguments made by the prosecutor, any of the factors we have identified were unforeseeable at the time the trial court made its ruling. The basic outlines of the case, and the general use the prosecution made of the indecent exposure, were apparent from the preliminary hearing onwards, and were accurately forecast by defense counsel in support of the motion for separate trials. Because we do not believe that a reasoned discretion could reach any other conclusion than that separate trials were necessary to avoid undue prejudice, we hold that the trial court abused its discretion by denying the motion seeking such trials.

VI. Due Process; Actual Prejudice

Even where the information of record fails to show that the trial court abused its discretion in denying a motion for separate trials, we are still obliged to reverse if the appellate record shows that  the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law.  (Soper, supra, ___ Cal.4th at p. ___ [2009 Cal. LEXIS 1100, *49], quoting People v. Rogers (2006) 39 Cal.4th 826, 851.) Although this rule places a high burden on the appealing defendant (Soper, supra, ___ Cal.4th at p. ___ [2009 Cal. LEXIS 1100, *49]), the present record satisfies that burden. Having reviewed it with some care, we find compelling evidence that the joint trials inflicted actual prejudice upon defendant. Indeed, we find a considerable likelihood that had the jury not heard evidence of the indecent exposure, it would not have found defendant guilty of the assault.

Short of statements by the jurors themselves, nothing could more vividly demonstrate the crucial role played by the indecent exposure in securing the assault conviction than the prosecutors own heavy and pervasive reliance on it in jury argument. It is no exaggeration to say that he mentioned the indecent exposure at every opportunity, on every conceivable pretext, and for every possible purpose. In his opening argument he characterized the exposure incident as [p]robably the most powerful evidence that defendant was Glorias assailant. He urged the jury to view it as the equivalent of genetic evidence, asserting, We dont have any DNA . . . [b]ut what we do have is powerful powerful corroboration. and that is the defendants indecent exposure three months prior to the assault. He repeated the point a few minutes later, saying, We dont have DNA but we do have the fact he committed this 314 [i.e., indecent exposure].

Next he told the jurors that criminal exhibitionism furnishes evidence of propensity to commit rape. This argument rested not on evidence, but on an invented psychiatric reality. Thus he invited jurors to think, whats the state of mind of a guy whose going to be mast[u]rbating in front of a woman and get her attention drawn to himself[?] Before the jurors could actually follow this suggestion to speculate on their own, or perhaps to realize that they had no idea what goes on in the mind of a criminal exhibitionist, he helpfully supplied his own inflammatory surmise: So we go into this whole analysis as to whether or not hes the perpetrator of the assault to commit rape from the premise that this is a man who is mast[u]rbating in front of a woman, who called attention to herto himself, three months before. [] This man is a predator. Hes building up. Hes starting small. He exposes himself. [] Is it really a stretch to think that his next step, three months later, because he gets so agitated, for whatever reason, whatever his state of mind, is he decides to commit a sexual assault[?]

We have already adverted to the inherent potential of the indecent exposure to convey an inflammatory impression of defendant as a deviant or pervert. In addition, the power of the term predator to incite passion and prejudice can hardly be overstated. The term connotes, if it does not denote, one who habitually commits sex offenses characterized by violence, pedophilia, or both. Thus, with one inconsequential exception, California prescriptive law speaks only of sexually violent predators, a phrase defined to include pedophiles. (See Welf. & Inst.Code, 6600 et seq. [Sexually Violent Predator Act (SVPA)]; cf. Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127 [initiative amending SVPA entitled The Sexual Predator Punishment and Control Act: Jessicas Law].) The distinction between violent and nonviolent sex crimes is recognized throughout the relevant literature. One commentary defines sexual aggressors to include, as relevant here, all those who have engaged in sexual acts involving physical contact with a child or nonconsensual sexually violent acts against adults (i.e., offenses involving the use of force in such a way that the sexual integrity of the victim was violated). (2 Faigman, et al., Modern Scientific Evidence: The Law and Science of Expert Testimony (2008), 11.24, pp. 203-204, italics added.)

TO BE CONTINUED AS PART IV.

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[1] Curiously, when a police officer was asked how authorities concluded that the driver of the Bronco was not a suspect, he replied only, I believe we didnt find any photos on this individual so we couldnt conduct any type of lineup. This suggests not that police ruled him out, but that they failed to investigate further, perhaps because of defendants arrest.

[2] The dissent makes no attempt to identify any inaccuracy in our account of the prosecution evidence but responds that the jurors rejected defense attacks on that evidence. Of course they did; otherwise they would have acquitted defendant, and the case would not be before us. The question here is whether the record reveals an unacceptable likelihood that they were led to their decision by evidence of the indecent exposure. The only point of any substance made by the defense is that defense counsel conceded a similarity between the police sketch and an older mug shot of defendantnot the mug shot taken after his arrest for the assault, less than three weeks after Gloria supposedly saw him. It is true that the sketch bears some resemblance to defendant as depicted in that mug shot, but it does not impress us as a striking one, and certainly need not have been found striking by a reasonable juror whose reasoning processes had not been poisoned by irrelevant evidence of other sexual misconduct and specious but inflammatory prosecution arguments predicated on that evidence.

[3] We make nothing of the fact that in a misdemeanor case, as this would have been, the parties are free to agree to a jury of less than 12 persons. (Cal. Const., art. I,  16.)