Opinion
To convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the
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.
Facts
A jury convicted defendant of residential burglary (Pen. Code, §§ 459, 460, subd. (a))
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,
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
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)
Defendant did not seek review. We granted the People’s petition for review, which was limited to the Proposition 8 issue.
Discussion
In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally
Virtually all American jurisdictions have some form of rule against convictions for criminal conduct not proven except by the uncorroborated extrajudicial statements of the accused. (E.g., 1 McCormick on Evidence (5th ed. 1999) Confessions, § 145, pp. 521-522 (McCormick); Crisera, supra, 78 Cal. L.Rev. 1571, 1572-1573.)
The California decisions have addressed the independent-proof requirement in various contexts. It has been held that the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination. (Jones v. Superior Court (1979) 96 Cal.App.3d
In requiring independent evidence of the corpus delicti, California has not distinguished between actual confessions or admissions on the one
The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. (Jennings, supra,
Here, the People have never challenged defendant’s assumption that the corpus delicti of a forcible lewd act upon a child under age 14 necessarily includes the statutory elements that such an underage child was physically touched, by means of force, violence, duress, or menace, for the present and immediate purpose of sexually arousing or gratifying the toucher or the victim. (§ 288, subds. (a), (b); People v. Martinez, supra,
Instead, to rebut defendant’s argument that the corpus delicti rule was violated by failure to instruct the jury there must be some proof, aside from his extrajudicial statements, of each element of the charged offense (CALJIC No. 2.72), the People have argued only (1) that the statements were part of the crime itself, and thus need not be independently corroborated;
Proposition 8 was adopted by the voters at the June 8, 1982 General Election. Among other things, it added section 28(d), entitled Right to
“We and the Courts of Appeal have consistently held that in criminal proceedings, section 28(d) supersedes all California [as opposed to federal] restrictions on the admission of relevant evidence except those preserved or permitted by the express words of section 28(d) itself. (People v. Mickle (1991)
It is undisputed that the corpus delicti rule is not a requirement of federal law, and it has no basis in California statutory law. (Cf., e.g., Ramona R. v. Superior Court (1985)
There is no doubt that an incriminatory statement by the accused himself is relevant evidence, i.e., evidence having a “tendency in reason” to prove the disputed facts, bearing on his guilt, to which the statement relates. (Evid. Code, § 210; see People v. Jones, supra,
Defendant raises several arguments against the notion that section 28(d) affected the corpus delicti rule. He notes that section 28(d) contains no express reference to the corpus delicti requirement. He claims the electorate’s primary purpose was simply to overturn California judicial decisions that exceeded federal constitutional requirements in excluding evidence as a remedy for police misconduct (see, e.g., Macias, supra,
In light of these considerations, defendant maintains, the effect of section 28(d) on the corpus delicti rule is at least ambiguous. That being so, he concludes, we must resolve the ambiguity in the accused’s favor. (Citing People v. Woodhead (1987)
We are not persuaded. The language of section 28(d) is not ambiguous, but plain, and we must follow it. As we have explained, this language is not confined to police misconduct, issues, but removes all obstacles to the admissibility of relevant evidence save those expressly preserved by the section. That cases after the adoption of Proposition 8 have continued to
For similar reasons, subsequent statutes addressing the corpus delicti rule, even when adopted by the voters themselves, are not proof that section 28(d) itself had left the rule undisturbed. Because no court had decided the issue, these laws may simply spring from a prudent determination that if the rule still existed, it should at least be modified in the specified ways.
Of course, our decisions have already rejected defendant’s suggestion that the effect of section 28(d) should be confined to court-made rules excluding
We are therefore persuaded that insofar as the corpus delicti rule has directly barred or restricted the admissibility in evidence of otherwise relevant and admissible extrajudicial statements of the accused, on grounds that independent proof of the crime is lacking, the rule has been abrogated by section 28(d). Under this constitutional provision, a corpus delicti objection to the introduction of defendant’s statements is no longer valid as such.
We have already explained, however, that the independent-proof rule historically has been more than a limitation on the admissibility of relevant
We have said that the independent-proof rule “essentially precludes conviction based solely on a defendant’s out-of-court statements.” (People v. Ray (1996)
However, the language of section 28(d) does not address issues of corroboration, burden of proof, or sufficiency of proof. Though section 28(d) broadly eliminates rules that exclude relevant evidence from a criminal trial, the words of the constitutional provision do not speak beyond that subject. “By its terms, the Truth-in-Evidence provision affects only the admissibility of evidence . . . .” (Cahill, supra, 5 Cal.4th 478, 500.) The words of section 28(d) do not mention the corpus delicti rule by name, nor do they purport to affect any rule by which evidence, otherwise admissible, must be independently corroborated.
Moreover, nothing in the ballot materials for Proposition 8 suggests the voters intended section 28(d) to have such an effect beyond its express provisions. On the subject of evidentiary rules, the Attorney General’s summary of the initiative advised only that Proposition 8 included “provisions regarding . . . exclusion of relevant evidence.” (Ballot Pamp., Primary Elec. (June 8, 1982) official summary of Prop. 8, p. 32, italics added.) The Legislative Analyst’s analysis explained that “[u]nder current law, certain evidence is not permitted to be presented in a criminal trial,” including “evidence obtained through unlawful eavesdropping or wiretapping, or
A proponent of the initiative, Lieutenant Governor Mike Curb, did argue that Proposition 8 would “restore balance to the rules governing the use of evidence against criminals.” (Ballot Pamp., Primary Elec. (June 8, 1982) arguments in favor of Prop. 8, p. 34, italics added.) One might contend that the corpus delicti rule limits the use of an accused’s extrajudicial statements insofar as it prevents such statements from constituting the sole proof a crime was committed. However, Lieutenant Governor Curb’s brief and vague reference to “use of evidence,” read in context with the express words of section 28(d) and the official explanations thereof, is not susceptible to such a broad construction. The cited argument is no evidence of the voters’ understanding that they were abolishing a venerable rule, not named or mentioned in the initiative or associated materials, which required corroboration of a particular kind of criminal evidence.
As we have recounted, when the Evidence Code, as drafted by the Law Revision Commission, was adopted in 1965, similar debate arose whether the rule requiring independent proof of the corpus delicti had been abolished. The focus of such contentions was new Evidence Code section 351, which, like section 28(d), states that all relevant evidence is admissible. One commentator succinctly noted the strongest argument against a conclusion that the rule was entirely abrogated: “It is simply not clear that the corpus delicti rule is always identified and classified as a procedural rule of evidence rather than a rule of the substantive criminal law. Assuming the latter, the Law Revision Commission members may never have contemplated that it was their task to deal with the rule in the Code or that their work product would affect its continued viability. . . . If the corpus delicti rule is viewed as a procedural rule, going to admissibility of the accused’s confession, then it would have been within the possible scope of the Evidence Code. On the other hand, the substantive requirement that the corpus delicti be established sufficiently could not have been altered by mere revision of evidence law.” (Comment, supra, 20 UCLA L.Rev. 1055, 1078-1079, fn. omitted.)
We find such reasoning persuasive in the context of section 28(d). The literal language of this provision abolishes, with specified exceptions, all state law restrictions on the admissibility of relevant evidence, necessarily including the prong of the corpus delicti rule that bars introduction of an accused’s out-of-court statements absent independent proof a crime was committed. But section 28(d) does not address, expressly or implicitly, any
The result of our conclusions is as follows: Because of the adoption of section 28(d) through Proposition 8, there no longer exists a trial objection to the admission in evidence of the defendant’s out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant’s extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed.
However, section 28(d) did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant’s own statements outside of court. Thus, section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.
However, we do not agree with the Court of Appeal’s further conclusion that any instructional error was prejudicial. Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. (Beagle, supra, 6 Cal.3d 441, 455; People v. Watson (1956)
Of course, as we have seen, the modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be “a slight or prima facie showing” permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. (E.g., People v. Jones, supra,
Contrary to the Court of Appeal, we find sufficient independent evidence that defendant forcibly touched Monique for the specific purpose of sexual gratification. At the outset, the jury could reasonably infer from all the circumstances that defendant entered Monique’s residence for the purpose of molesting her. Though he knew Monique’s family, and had seen Monique on several ocasions, he did not enter as an invited guest during waking hours, but after bedtime, when the house was dark, and surreptitiously, most likely through a kitchen window he forced open. Moreover, it appears that, once inside, he proceeded immediately to where Monique was sleeping; there is no evidence that anything in the apartment, other than the window, had been disturbed, or that any property was taken.
These circumstances permit the further inference that, by then placing his hands upon the sleeping Monique’s mouth and throat, and keeping them there to restrain and silence her when she awoke and resisted, defendant committed a “lewd or lascivious act” (§ 288, subd. (a)) “by use of force” (id., subd. (b)(1)), i.e., a touching for purposes of immediate sexual gratification “undertaken ... by means of ‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.]” (People v. Neel (1993)
Defendant’s postattack behavior is also circumstantial evidence of his lewd intent at the time he assaulted Monique. The jury could infer that his return to Monique’s home on two later occasions indicated his obsessive, and likely sexual, interest in the victim.
As a matter of law, therefore, the record contains the requisite prima facie showing, independent of defendant’s extrajudicial statements, that defendant forcibly touched Monique with the specific intent to achieve sexual gratification. Accordingly, insofar as the trial court erred in failing to instruct the jury on the requirement of independent evidence, the error was harmless. We will therefore reverse the judgment of the Court of Appeal to the extent it overturned defendant’s conviction on this charge.
The judgment of the Court of Appeal is reversed insofar as it vacated defendant’s conviction for a forcible lewd act upon a child under age 14. In all other respects, the Court of Appeal’s judgment is affirmed.
George, C. J., Kennard, J., Werdegar, J., Chin, J., Moreno, J., concurred.
The corpus delicti rule exists to ensure a defendant does not admit to a crime that never happened. (People v. Jones (1998)
I.
Notwithstanding the assumption of the parties and the lower courts that the corpus delicti rule required corroboration of not only a criminal injury but also the mental element of lewd intent (see maj. opn., ante, at pp. 1171-1172), we have long held otherwise. “All that need be shown by independent evidence ... is that a crime has been committed by someone.” (People v. Cobb (1955)
Because the showing of a criminal act satisfies the rule, there is generally no need to corroborate the defendant’s mental state. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 45, pp. 250-251.) Thus, the People must corroborate the act of an unlawful killing (People v. Simonsen (1895)
Nevertheless, some Penal Code section 288
The instant case clearly falls within the basic rule because defendant’s acts were not otherwise innocent. Defendant violated section 288, subdivision (b), which proscribes lewd or lascivious acts “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” Force or violence is inherently unlawful, and thus the corpus delicti rule does not require corroboration of intent in prosecutions for forcible sex offenses like rape or oral copulation. (Key, supra,
II.
There is also reason to question whether the functional equivalence we have drawn between preoffense statements and postoffense admissions (maj. opn., ante, at pp. 1170-1171) for corpus delicti purposes (People v. Beagle (1972)
We imposed a similarly stringent standard of proof for determining the admissibility of confessions. (People v. Jimenez (1978)
The rationale underlying the corpus delicti rule also supports reexamination of our Beagle footnote. The distinction articulated by the federal courts remains persuasive. “The rule requiring corroboration of confessions protects . . . against errors in convictions based upon untrue confessions alone. Where the . . . statement was made prior to the crime this danger does not exist. Therefore we are of the view that such admissions do not need to be corroborated.” {Warszower v. United States (1941)
Conclusion
The majority opinion properly “stress[es] the narrow nature” of today’s decision (maj. opn., ante, at p. 1182, fn. 18), which assumes—but does not
Appellant’s petition for a rehearing was denied July 10, 2002. Brown, J., did not participate therein.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The jury acquitted defendant on count 3, which charged an attempted forcible lewd act upon a child. When the trial court first received the jury’s verdicts, the court noted the apparent inconsistency between the conviction on count 2 and the acquittal on count 3. The court sent the jury back with instructions that if it convicted on count 2, it should simply reach no verdict on count 3. However, as returned, the verdict form for count 3, through various handwritten and hand-initialed notations, again indicated an acquittal on that count, and the entire verdict was accepted. In a modification of its original opinion on appeal, the Court of Appeal rejected defendant’s argument that the acquittal on count 3, a lesser included offense of count 2, required an acquittal on count 2 as well. Defendant has not raised the issue in this court, either by a petition for review, or in an answer to the People’s petition (see Cal. Rules of Court, rule 28(d)), and it is not before us.
A majority of jurisdictions, like California, require some independent proof of the corpus delicti itself, i.e., injury, damage, or loss by a criminal agency. (1 McCormick, supra, Confessions, § 146, pp. 525-527, 528, fn. 4.) In federal prosecutions, and in a minority of states, the rule is simply that the accused’s incriminating statement cannot be proof the crime occurred unless there is some independent evidence that the statement is trustworthy. (Opper v. United States (1954)
In People v. Jones, supra,
CALJIC No. 2.72 instructs in pertinent part 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 [confession] [or] [admission] made by [him] [her] outside of this trial.”
The concurring opinion acknowledges the established California doctrine that the defendant’s incriminating preoffense statements are not admissible absent independent proof of the corpus delicti. However, the concurrence urges that the “preoffense statement” aspect of the California corpus delicti rule may have been abrogated by Proposition 8, and should be reexamined and rejected in any event. For two reasons, no independent discussion of this issue is appropriate. The People have not separately challenged the “preoffense statement” corollary of the California corpus delicti rule at any stage. Thus, we have no occasion here to reconsider its rationale. Moreover, the effect of Proposition 8 on this corollary is necessarily determined by the effect of Proposition 8 on the corpus delicti rule in its entirety. As we elsewhere hold, to the extent the corpus delicti rule limits the admission of relevant evidence, Proposition 8 does entirely abrogate the rule, including any limitation on the admission of preoffense statements. On the other hand, because Proposition 8 speaks only to the admissibility of relevant evidence, it can have no other limiting effect on the corpus delicti rule.
The concurring opinion takes issue with this premise as well, arguing that on the facts of this case, the corpus delicti rule only required independent proof of a forcible, and thus necessarily criminal, touching, and did not further require independent proof of the sexual
In Wright, supra,
In the Court of Appeal, the People cited Carpenter, supra,
We discuss this issue below.
We have held that section 28(d) did not eliminate certain preexisting nonstatutory rules restricting the admission of scientific or technical evidence. (People v. Leahy (1994)
Like Justice Mosk, defendant also cites a third statute, section 868.5, subdivision (c) (Stats. 1983, ch. 347, § 1, pp. 1545-1546), dealing with the order of testimony when persons chosen by a prosecuting witness as courtroom supporters (id., subd. (a)) are themselves prosecuting witnesses. Subdivision (c) of section 868.5 provides that generally the testimony of the supporters must precede the testimony of the person they are supporting, but if “the evidence given by [a supporter] would be subject to exclusion because it has been given before the corpus delicti has been established, the evidence shall be admitted subject to the court’s or the defendant’s motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness.” The purpose and effect of this statute are unclear, since the corpus delicti rule would not bar testimony by one prosecuting witness before the corpus delicti was established by the testimony of another. As explained above, the rule only prevents the accused’s own extrajudicial statements from being introduced until some independent evidence of the corpus delicti is presented.
In Culton, supra,
Such concerns seem certain to have motivated the voters when, through Proposition 115, they added section 190.41 to the Penal Code. As indicated above, this statute provides that the corpus delicti of a felony-based special circumstance need not be proven independently of the defendant’s statements. This portion of Proposition 115 was not specifically discussed in the ballot materials, but the proponents stated that one purpose of the initiative was to “overturn decisions by Rose Bird and her allies which made [our death penalty law] nearly inoperative.” (Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115, p. 34.) The decision clearly targeted by section 190.41 was People v. Mattson (1984)
In People v. Starr (1970) 11 Cal.App.3d 574 [
As we have noted on several occasions, section 28(d) expressly preserves a trial court’s sound discretion, under Evidence Code section 352, to exclude evidence which, though technically relevant, is more prejudicial than probative under the particular circumstances. (E.g., Wheeler, supra,
For a contrary result, the People rely heavily, as in the Court of Appeal, on Justice Timlin’s concurring opinion in Culton, supra,
We stress the narrow nature of our proposed holding. The matter before us is limited to the direct effect of Proposition 8 on the California rule requiring independent proof of the corpus delicti. We do not otherwise consider the parameters of the independent-proof rule, for such broader issues are not presented. We are aware of various policy criticisms of the rule (see, e.g., Crisera, supra, 78 Cal. L.Rev. 1571,1580-1584; Comment, supra, 20 UCLA L.Rev. 1055, 1087-1090; but see People v. Jones, supra,
Hereafter, all statutory references are to the Penal Code.