Lead Opinion
Opinion
Lord Matthew Hale, Chief Justice of the Court of King’s Bench from 1671 to 1676, once observed: “It is true rape is a most detestable
These “musings were introduced somewhat obliquely into the law of California by People v. Benson [(1856)]
In Rincon-Pineda, we recognized that this instruction had “outworn its usefulness” and “performs no just function,” and disapproved its continued use. (14 Cal.3d at pp. 877, 883.) In its place, we mandated that in every criminal casе in which no corroborating evidence is required the jury be instructed as follows: “ ‘Testimony which you believe given by one witness is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends.’ ” (Id. at p. 885.)
We are now called upon to resolve a conflict in the Court of Appeal decisions over whether a jury in a sex offense case that is given this
I. Facts
A jury convicted defendants Michael Dajuan Goldsmith and Johnnie Vincent Gammage of one count of forcible rape by acting in concert (Pen. Code, §§261, subd. (2), 264.1), and convicted Goldsmith of one count of oral copulation with a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1)). The jury found defendants not guilty of other counts.
The Court of Appeal opinion summarized the underlying facts:
“[0]n July 20, 1987, 16-year-old Jamise W. arrived at Dorsey High summer school around 8 a.m. but instead of going to class rode with friends tо appellant Gammage’s apartment. During the following three or four hours, according to the victim, she was sexually assaulted by [Gammage and Goldsmith] and other young men. Around 12:15 p.m. the victim, naked from the waist up, fled the apartment and ran for help to a woman across the street. The police were promptly called, the victim taken to a hospital, and appellants soon arrested.” (Fn. omitted.)
Goldsmith testified at trial that Jamise orally copulated him voluntarily. He denied raping her. Gammage did not testify.
The jury instructions at trial included the following two standard instructions:
(1) “Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.” (CALJIC No. 2.27 (4th ed. 1986 rev.), italics added; see Rincon-Pineda, supra,14 Cal.3d at p. 885 );2 and (following 25 intervening instructions),
(2) “It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have*697 been committed be corroborаted by other evidence.” (Former CALJIC No. 10.21 (4th ed. 1970 rev.) (now CALJIC No. 10.60 (5th ed.)).)3
On appeal, Goldsmith contended that in combination, these two instructions improperly suggested that the jury should view his testimony with caution (CALJIC No. 2.27), but that the testimony of the complaining witness need not be viewed with caution. The Court of Appeal disagreed, and affirmed the convictions. We granted Goldsmith’s petition for review, and now affirm the judgment of the Court of Appeal.
II. Discussion
A. Prior Cases
In People v. McIntyre (1981)
The same division reiterated these views in People v. Jamison (1984)
The first decision to question the validity of CALJIC No. 10.60 was People v. Pringle (1986) 177 Cal.App.3d 785 [
The Pringle (supra, 177 Cal.App.3d 785) court distinguished McIntyre, supra,
The author of Pringle, supra, 177 Cal.App.3d 785, revisited this question in People v. Adams (1986)
The Adams court expressly disagreed with its prior decisions in McIntyre, supra,
The first decision by a court other than the Fourth Appellate District, Division One, to consider this question was People v. Blassingill (1988)
The next decision on point arises in this case. The Court of Appeal focused on the language of CALJIC No. 2.27, as given, referring to any fact “required to be established by the prosecution . . . .” The quoted language, not part of the original Rincon-Pineda formulation, was a later optional addition to the CALJIC instruction. (See People v. Turner (1990)
Most recently, in People v. Hollis, supra,
“We conclude that CALJIC No. 10.60 may still be given in the circumstances here presented. Juries hearing criminal cases are routinely instructed on the factors to consider in judging the credibility of witnesses. (CALJIC No. 2.20.) They are also routinely instructed that they ‘must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides].’ (CALJIC No. 2.22.) When, in addition to these instructions, the jury is alsо instructed in the words of CALJIC No. 2.27, a balance is struck which protects the rights of both the defendant and the complaining witness. CALJIC No. 10.60 is an accurate statement of the law [citations], and we do not believe that giving it upsets this balance.” (People v. Hollis, supra, 235 Cal.App.3d at pp. 1525-1526.)
B. Analysis
It is not disputed that both CALJIC No. 2.27 and No. 10.60, considered separately, correctly state the law. “In California conviction of a sex crime may be sustained upon the uncorroborated testimony of the prosecutrix.” (People v. Poggi (1988)
Defendant seeks to distinguish Akey because it predated the overruling of former CALJIC No. 10.22 in Rincon-Pineda, supra,
Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the
Because of this difference in focus of the instructions, we disagree with defendant, and the court in Pringle, supra,
Defendant correctly observes that the now discredited instruction, that the testimony of the complaining witness should be viewed with caution, was considered to be a “counterweight” to the rule that no corroboration is required. (People v. Putnam (1942)
Although the “historical imbalance between victim and accused in sexual assault prosecutions” has been partially redressed in recent years (see Mary M. v. City of Los Angeles (1991)
The jury is instructed that the prosecution must prove its case beyond a reasonable doubt. This places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. CALJIC No. 10.60 does not affect this instruction but, in the words of People v. Hollis, supra,
We thus hold that it is proper for the trial court to give CALJIC No. 10.60 in addition to CALJIC No. 2.27 in cases involving sex оffenses. We disapprove of contrary language in People v. Pringle, supra, 177 Cal.App.3d 785, and People v. Adams, supra,
Conclusion
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Panelli, J., Baxter, J., and George, J., concurred.
Notes
Lord Hale’s observations, published posthumously in 1736, came in the context of a discussion concerning evidence presented by “infant” victims in rape cases. His full remarks, in context, were as follows:
“But in both these cases, whether the infant be sworn or not, it is necessary to render their evidence credible, that there should be concurrent evidence to make out the fact, and not to ground a conviction singly upon such an accusation with or without oath of an infant.
“For in many cases there may be reason to admit such witnesses to be heard, in cases especially of this nature, which yet the jury is not bound to believe; for the excellency of the trial by jury is in that they are triers of the credit of the witnesses as well as the truth of the fact; it is one thing, whether a witness be admissible to be heard, another thing, whether they are to be believed when heard.
“It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” (1 Hale, supra, at p. 634.)
As discussed in part II. A, post, the italicized language, given in this case, is a later addition to the original Rincon-Pineda formulation.
The various versions of former CALJIC No. 10.21 and current CALJIC No. 10.60 are substantially identical. The only difference is that the instruction has been made applicable to different sexual offenses. For ease of discussion, except when quoting from another source, we will use the current CALJIC instruction, No. 10.60, even when rеfering to former CALJIC No. 10.21. (See People v. Hollis (1991)
Gammage, who did not testify, did not petition for review, and is not before this court. For tracking purposes, his name appears in the caption, as it did in the Court of Appeal. (Cal. Style Manual (3d ed. 1986) § 211.)
The Court of Appeal in this case criticized the use of the language “required to be established by the prosecution” (see text accompanying fn. 2, ante), and additionally urged this court to reconsider the entire second sentence of the instruction. However, the instruction has recently been revised to make the points moot. In People v. Turner, supra,
In response to Turner, CALJIC No. 2.27 has been revised. It now reads, “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of such fact depends.” (CALJIC No. 2.27 (5th ed. 1991 rev.).) As a result of this revision, we need not consider the Court of Appeal’s criticism of the prior version of the instruction.
Concurrence Opinion
I concur in the judgment. The Court of Appeal did not err in affirming the judgment of the superior court. As a result, we must affirm its judgment in turn.
Before our decision in People v. Rincon-Pineda (1975)
In Rincon-Pineda, we thenceforth prohibited trial courts from giving the cautionary instruction. (
In my view, we should now bar the no-corroboration instruction. An advisement of this kind shares the same impermissible focus. Further, with its “counterweight” gone, it is without function.
Contrary to the majority’s implication, there is no legitimate benefit from the continued use of the no-corroboration instruction.
Generally, a conviction can be obtained for practically any crime, whether or not sex-related, on the uncorroborated testimony of the alleged victim. I doubt whether the typical juror has any conception, less still misconception, about this principle. Evidently, the law itself is in agreement. It does not require a no-corroboration instruction in the general case. Quite the contrary. Such an instruction would be inappropriate. (People v. McIntyre (1981)
It might perhaps be asserted that jurors in sex-crime trials labor under the misconception that a conviction is not obtainable on the complainant’s uncorroborated testimony. Perhaps that was once the case. Twenty years ago, it appears, prosecutiоns for sexual offenses were much less successful than those for other major crimes. (People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 879-880.) Today, by contrast, prosecutions for such offenses fare at least as well. (U.S. Dept. of Justice, Sourcebook of Criminal Justice Statistics
To be sure, it is evidently beneficial to advise the jury as to the possible sufficiency of the testimony of any single witness—whether that witness is the complainant in a sexual-offense case or not. An instruction specially fit for that purpose is available.
CALJIC No. 2.27 (1991 rev.) (5th ed. pocket pt.) states that “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of such fact depends.”
A sufficiency instruction such as the foregоing embraces the substance of—and hence obviates any “need” for—the no-corroboration instruction. True, it does not expressly state the rule of law that conviction of a sexual offense is obtainable on the complainant’s uncorroborated testimony. But it plainly conveys the message that the rule is intended to give to the jury, viz., that the complainant’s uncorroborated testimony can indeed support conviction.
It may well be that trials of sexual offenses not infrequently end up as credibility contests between the accuser and the accused. In this respect, however, they are far from unique. Twenty years ago, there was no substantial differential on this point between trials of sex-related and other crimes. (See People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 881-882.) Today, from all that appears, the situation is the same. A sufficiency instruction like that quoted above gives proper direction to the jury—whether it is trying sexual or other offenses—without “impermissibly focuss[ing] on the character of the crime rather than the nature of the evidence.” (id. at pp. 882-883, fn. 6.)
In fact, it is hard to conclude that the no-corroboration instruction is needed for credibility contests over sexual offenses. As noted, there are contests of this sort over other crimes as well. But in such cases, a no-corroboration instruction is evidently not needed. Indeed, as stated, it would be inappropriate. If such an instruction is unnecessary for charges that are not sex-related, it is unnecessary for charges that are.
Such an instruction may be reasonably—albeit improperly—understood to favor the testimony of the complainant, who is explicitly singled out, in support of guilt and to disfavor the testimony of other witnesses, who are not mentioned, in support of innocence. This is especially true when a sufficiency instruction is also given. A reasonable juror would surely attempt to construe each advisement to carry its own meaning. He would, of course, hear the sufficiency instruction to declare that the complainant’s testimony, after careful review, сould be weighty enough to convict. And he would likely take the no-corroboration instruction to suggest that such testimony was in fact weighty in and of itself—and, perhaps, did not require careful review.
If understood to favor the testimony of the complainant in support of guilt and to disfavor the testimony of other witnesses in support of innocence, the no-corroboration instruction can indeed do harm. Put simply, it threatens to function as a thumb—or in the word the majority might use, a “counterweight”—on the scales of justice, tilting the balance in the state’s favor and thereby lightening its statutory and constitutional burden of proving the defendant guilty beyond a reasonable doubt.
Consequently, I would henceforth prohibit trial courts from giving the no-corroboration instruction. The advisement has clearly “outworn its usefulness” and “now performs no just function.” (People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 877, 883.) I would accordingly overrule or disapprove each and every decision to the contrary.
There is no indication that the no-corroboration instruction or any similar mechanism is responsible for the change.
If (rial courts continue to instruct that the testimony of the complaining witness need not be corroborated, they should also instruct that the same is true for the testimony of other witnesses, including (if applicable) the defendant. Simple fairness requires no less.
Concurrence Opinion
I agree with the majority that the trial court did not err when it instructed the jury in the language of CALJIC No. 10.60.
Before our decision in People v. Rincon-Pineda (1975)
In the majority’s view, however, CALJIC No. 10.60 “continues to perform an important role.” (Maj. opn., ante, p. 701.) The majority offers two justifications: it reminds the jury in a rape trial that there is no requirement for corroboration of the complaining witness’s testimony, and that it (in combination with other, unspecified instructions) strikes a “balance” that protects the rights of the defendant and the complaining witness, in view of the “heavy burden of persuasion” placed on the prosecution by the requirement that it prove its case beyond a reasonable doubt.
But the majority is incorrect in suggesting that juries need to be instructed in the terms of CALJIC No. 10.60 in order to make clear that there is no requirement for corroboration of the testimony of a complaining witness. CALJIC No. 2.27, a standard instruction that must be givеn in every criminal trial, already tells the jury of the general rule that the testimony of any single witness, complaining or otherwise, need not be corroborated.
The majority’s alternate claim, that CALJiC No. 10.60 is necessary to strike some sort of “balance” that will protect the rights of all concerned, reflects a misperception of the purpose of jury instructions. Trial courts should give jury instructions to inform jurors of the law, not to create a proper “mix” of “pro-prosecution” and “pro-defense” instructions. Unnecessary instructions, such as CALJIC No. 10.60, should not be given simply to provide greater “weight” to one side or another. In any event, the majority fails to explain how CALJIC No. 10.60 provides this “balance.”
In summary, CALJIC No. 10.60 is accurate but superfluous. Because it is accurate, the trial court did not err in giving it in this case, and the judgment
CALJIC No. 10.60 (5th ed. 1988 bound vol.) is substantially similar to former CALJIC No. 10.21 (1970 rev.) (4th ed. pocket pt), the instruction given in this case. Like the majority, for ease of discussion, I use CALJIC No. 10.60 to refer also to former CALJIC No. 10.21.