Brock Turner Appeal - Initial Brief
Brock Turner Appeal - Initial Brief
Brock Turner Appeal - Initial Brief
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ERIC S. MULTHAUP
State Bar No. 62217
20 Sunnyside Avenue, Suite A
Mill Valley, CA 94941
415-381-9311 / 415-389-0865 (fax)
[email protected]
Attorney for Appellant Brock Turner
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TOPICAL INDEX
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STATEMENT OF FACTS 15
A. Summary of Overview. 15
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Page
7. DNA evidence. 49
8. Toxicology evidence. 51
2. Appellant’s testimony. 57
3. Character witnesses. 64
D. Prosecution Rebuttal. 67
ARGUMENT 68
A. Summary of Facts. 68
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D. The Absence of Any Waiver on Appeal. 147
CONCLUSION 169
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TABLE OF AUTHORITIES
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CASES CITED
In re Winship 168
397 U.S. 358
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People v. Harris 75
(1989) 47 Cal.3d 1047
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People v. Mullen 99
(1941) 45 Cal.App.2d 297
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STATUTES CITED
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166
TREATISES CITED
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
______________________________________
)
)
PEOPLE OF THE STATE OF CALIFORNIA, ) No. HO43709
)
)
Plaintiff and Respondent, ) Santa Clara County Super.
) Court No. B1577162
)
vs. )
)
)
BROCK ALLEN TURNER, )
)
)
Defendant and Appellant. )
)
)
and vituperation, most of it directed against Brock Turner, but also a significant
misunderstandings have pervaded the public perception of the facts of the case,
and may have permeated the hallowed halls located on the 10th floor at 333 W.
Santa Clara Street. Counsel for appellant makes a particular plea that this Court
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distance itself from the media renditions of the case in favor of immersion in
the actual evidence, which, under the standard of Jackson v. Virginia (1979)
443 U.S. 307 and People v. Johnson (1980) 26 Cal.3d 557, does not support any
County Superior Court, charging appellant with three counts arising from an
section 220(a)(1), assault with the intent to rape Ms. Doe; Count 2 alleged a
violation of Penal Code section 289(e), sexual penetration of Ms. Doe who was
violation of Penal Code section 289(d), sexual penetration of Ms. Doe who was
alleged the same charges, but amended the Penal Code section 220 count “to
Trial began on March 17, 2016; the People rested on March 23, 2016;
appellant testified on his own behalf; and the jury began deliberating on March
29, 2016. 2 CT 456. After several requests to the court regarding testimony and
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legal issues, the jury reached verdicts of guilty on all counts at approximately
4:20 p.m. on March 30. 2 CT 476. On June 2, 2016, the trial court, in
the imposition of sentence and granted formal probation for a term of three
years, with terms that included six months in the county jail. 3 CT 770. On the
same date, a timely notice of appeal was filed. 3 CT 773. This appeal is from a
STATEMENT OF FACTS
This Introduction summarizes certain basic and undisputed facts that are
drawn from the testimony of multiple witnesses, and contains a timeline of the
evening of January 17-18, 2015, in order to provide the Court with a context
from which to view the more detailed summary of testimony set forth by topic
As of the weekend of January 17 – 18, 2015, Ms. Doe1 was 21 years old,
and was living at home with her parents in Palo Alto after having graduated
from U.C. Santa Barbara in June 2014. On that weekend, Ms. Doe’s younger
1
The trial transcripts refer to the complaining witness as “Jane” or “Jane Doe.”
For continuity, appellant refers to her as “Ms. Doe” throughout. The transcripts
refer to Ms. Doe’s sister as “Jane II”. For clarity, appellant refers to her as “Ms.
Doe’s sister.”
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sister was home from Cal Poly where she attended college, and had made plans
to get together with some of her college friends who were also home during
winter break.
One of the sister’s high school friends was a Stanford student named
Julia, who belonged to the Kappa Gamma sorority, which was co-sponsoring a
party that Saturday night with the Kappa Alpha fraternity, to be held at the
Kappa Alpha fraternity house. Ms. Doe decided to accompany her sister and her
sister’s two friends, Colleen and Trea, to the Kappa Alpha party. In preparation
for the party, Ms. Doe consumed four shots of whisky at the Doe residence (the
other young women all imbibed comparable quantities), after which Ms. Doe’s
mother drove them to the Stanford campus and dropped them off around 11:00
p.m., when they entered the Kappa Alpha house and continued drinking.
friends to attend the same Kappa Alpha party, and they were also drinking in
preparation. Appellant arrived at the Kappa Alpha party at some point before
At some point shortly after midnight, Ms. Doe, her sister, and Julia left
the Kappa Alpha house to urinate in some nearby shrubbery. When they
returned to the party, they stayed outside on the patio talking to appellant and a
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Ms. Doe’s last recollection of the evening is standing on the Kappa Alpha patio
From the combined accounts of Colleen, Julia, and Ms. Doe’s sister, all
of the young women were intoxicated but functioning adequately, except for
words and acting sleepy. Ms. Doe’s sister asked Julia if she could take Trea to
Julia’s dorm room to rest and recuperate. At 12:14 a.m., Colleen called an Uber
for herself and Ms. Doe’s sister to take Trea to the dorm. Ms. Doe’s sister told
Ms. Doe what they were doing, and at that time Ms. Doe “seemed fine”
according to her sister. No one, neither Ms. Doe’s sister, nor Julia, Colleen nor
anyone else at the party, testified that Ms. Doe had done anything to alert them
where it was 3:00 a.m. The boyfriend described her speech was “rambling,” and
one of her voice mails to him at 12:16 a.m. contains a mixture of some slurred
At 12:29 a.m., Ms. Doe called her sister, who was still attending to Trea,
but the sister could not hear what Ms. Doe was saying, and asked her to call her
back. Ms. Doe also called Julia but did not reach her. That was the last call or
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Appellant testified that at about 12:30 a.m., he saw Ms. Doe dancing by
herself, went up to her and told her he liked her dancing. Appellant asked her if
he had met her earlier, and then asked if she had a sibling because he had been
talking with someone who looked a lot like her. Ms. Doe responded that her
sister was there. 9 RT 845. Appellant asked if she would like to dance with
him, and she said “sure.” They danced inside near the door of the patio. After
dancing for about 10 minutes, he kissed her, and she was responsive.
Appellant asked if she wanted to go back to his dorm, and she said “sure.”
Appellant asked her name while they were dancing, but he did not remember it.
Appellant put his arm around her shoulder, and they walked away from
the party. There is no testimony from any source that appellant carried,
dragged, or otherwise maneuvered Ms. Doe as they walked away from the
appellant and Ms. Doe around the time that they left the party.
Appellant testified that as they left a concrete path they were walking on
to take a shortcut, Ms. Doe immediately slipped and “kind of fell down.” She
“grabbed onto me to try and prevent her fall and that caused me to fall as well.”
They began kissing, and engaged in consensual sexual conduct that appellant
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At approximately 1:00 a.m., two graduate students were bicycling toward
the Kappa Alpha party, and saw appellant on the ground immediately adjacent
Appellant was fully clothed with his pants buckled and his zipper up, but was
appellant what he was doing, and they became contentious. Appellant attempted
to run away, but was tackled and held down by the graduate students until the
Ms. Doe was lying on the ground next to the basketball court, completely
passed out, with her underwear off and with her dress hiked up to her waist. She
was treated by paramedics, and woke up at the Valley Medical Center three
Forensic testing established that neither semen nor appellant’s DNA was
detected in Ms. Doe’s vaginal swab. There was no DNA of appellant detected
on Ms. Doe’s underwear or on any other part of her body. There were three
identifiable traces of Ms. Doe’s DNA on appellant: one under his left fingernail,
one under his right fingernail, and one on his right finger.
phone records:
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10:30 p.m. Ms. Doe, her sister, and their two friends engage in
pre-party drinking at the Doe residence.
11:00 p.m. Ms. Doe’s mother drops the four young women off on
the Stanford campus where they join the Kappa Alpha
party and continue drinking.
11:30 p.m. Appellant and his friends join the Kappa Alpha party
and continue drinking.
12:00 a.m.+ Ms. Doe, her sister, and Julia, leave the party to
urinate behind some shrubbery, all are acting silly,
and they return to the Kappa Alpha patio where they
drink beer and chat with appellant and his friends.
12:16 a.m. Ms. Doe leaves a voicemail for her boyfriend, Exhibit
29, in which she vacillates between some slurred
speech and some concise diction.
12:17 a.m. Colleen calls for an Uber to take her, Ms. Doe’s sister,
and Trea to Julia’s dorm room for Trea to recuperate
from excessive intoxication. Ms. Doe’s sister informs
Ms. Doe of this, and describes Ms. Doe’s condition
then as seemingly “just fine.”
12:19 a.m. Ms. Doe’s boyfriend calls her and describes her
speech as rambling.
12:29 a.m. Ms. Doe calls her sister, who is still attending to Trea,
and the sister asks Ms. Doe to call her back. Ms. Doe
then called Julia but did not reach her.
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12:30 a.m.+ Appellant approaches Ms. Doe and within a few
minutes, they leave the party and begin walking
together in the direction of appellant’s dorm room.
Ms. Doe’s sister testified she is 21 years old and a senior at Cal Poly in
San Luis Obispo. 7 RT 583. She came home on the weekend of January 17-18,
2015 to visit her family because she had just returned from being abroad the
weekend before. 7 RT 585. She spent the day with Ms. Doe and her friend Julia
from Stanford, and had dinner at a Mexican restaurant. She and Julia had plans
to go to a party at the Kappa Alpha fraternity at Stanford, and Ms. Doe had no
plans at that time. 7 RT 586. When the Stanford party was broached, Ms. Doe
“did not want to go initially” because “she doesn’t like Greek life that much,”
and she “felt kind of silly going to a college party after being out of college.” 7
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RT 586. At the same time, the three wanted to spend time together “so she
decided she would come with us and possibly meet her friends in downtown
Palo Alto afterward.” 7 RT 587. Ms. Doe and her sister went back home, and
Ms. Doe’s sister called Colleen and “asked her if she wanted to come with us to
Stanford.” Ms. Ms. Doe’s sister described Colleen as “one of [her] best
friends.” 7 RT 588.
Colleen and her friend, Trea, arrived at the Doe residence around 10:30
p.m., and the group began drinking shots of alcohol. Colleen and Trea drank
champagne that they brought. 7 RT 589. Ms. Doe and her sister each had
approximately four shots of alcohol before going to the party. Ms. Doe’s sister
asked her mother to drop them at Stanford “just to save money for an Uber and
[her] mom was still awake.” 7 RT 598. Ms. Doe’s sister had been to parties at
Stanford more than 20 times, some during high school and some after she began
college. 7 RT 599.
When they entered the party, “everyone was being really silly,”
especially Ms. Doe who “was just making a lot of fun of the situation, like
being really goofy.” Julia found a large bottle of vodka and began drinking it
with Ms. Doe and their friends. 7 RT 592. According to her sister, Ms. Doe
was acting silly and “making fun of the fact that she was there.” 7 RT 593.
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The party became crowded, and they were “taking photos and dancing
inside.” 7 RT 593. At one point after midnight, Ms. Doe, her sister, and Julia
went outside to urinate behind some shrubbery a short distance from the party.
When asked to describe their levels of intoxication, Ms. Doe’s sister replied that
“we were all really drunk” 7 RT 594. Regarding Ms. Doe, specifically her
sister “wasn’t really paying directly attention to [her],” but she was doing things
“that were really silly.” 7 RT 594. She and Ms. Doe were “pretty drunk” at this
point.
They walked back to the party and stayed outside where it was “really
mellow and people were just drinking beers and talking.” Ms. Doe’s sister ran
into a couple of Julia’s friends and was talking to them. She also “started
talking to three males,” and one of them, Tommy, was referring to a sibling
the deck, Trea “started to feel sick and really tired because she had been
drinking for so long” and lay down on a bench. Colleen checked on her
periodically, and their conversation lasted for perhaps 15 minutes. Colleen was
During this period, one of the males found beer and asked if they wanted
some later point, Ms. Doe’s sister was standing with Colleen, and appellant
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“approached [her] and started to kiss [her].” She was uncomfortable and very
drunk, so she pulled back and away. 7 RT 599. When appellant came over,
Julia and Colleen were to her left, and “Julia tried to take a photo because she
like, she thought it was funny.” 7 RT 600. Ms. Doe’s sister took a closer look
at appellant, and “thought he looked exactly like this person I know from my
“referred to him as the nickname [“Casey Clarkson”] for the rest of the night.” 7
RT 600.
When asked whether “when he like, like, reached into kiss you, did you
kiss him back,” she answered, “maybe initially for the first, like, three seconds
when I was trying to gauge what was happening,” but she then decided that she
“did not want to be making out with someone random that [she] didn’t know
They had a second encounter when she was walking back into the party
to get a beer, and she saw him again, looked at Colleen and said, “Casey
After that, Ms. Doe’s sister was talking to Colleen about Trea, “who was
doing worse,” and appellant “stepped in between our conversation and tried to
kiss [her] again.” She turned her face and walked away. 7 RT 602. She
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603. Appellant had put his hands on the sides of her waist, “just the normal,
like, waist area,” and she “wiggle[d] away.” That was the last time she saw
appellant during the evening. 7 RT 603. She and Colleen wanted to put Trea in
Julia’s bed, asked her for the keys, and told Ms. Doe that she was going to do
that. 7 RT 604 – 605 – “I told her that I was leaving to put Trea in Julia’s dorm
but that was the only exchange.” When asked whether there was a reason that
she did not have Ms. Doe come with her to Julia’s dorm room, she replied, “I
was very focused on Trea” and “at that time, she was my only concern because
she looked like she was not doing well at all.” 7 RT 605.
As Ms. Doe’s sister was walking into Julia’s dorm with Trea, Ms. Doe
called her. Ms. Doe’s sister could not understand what she was saying, and
asked her to call her back. After putting Trea to bed, Ms. Doe’s sister and
Colleen took the same Uber back to the party. At that time, there were police
officers present, and Ms. Doe’s sister and Colleen needed to show their
identifications to get back into the party. 7 RT 607. Ms. Doe’s sister asked her
friends if they had seen Ms. Doe, but none had. 7 RT 608. Ms. Doe’s sister was
“kind of scared” because Ms. Doe was not responding to her phone calls and
texts, and “if she was downtown, I wanted to know that.” 7 RT 609.
They (Ms. Doe’s sister, Colleen, and Trea) went back to the Doe
residence, and Ms. Doe was not there. Ms. Doe’s sister was concerned, but
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“not concerned that anything had happened to her” because she felt “very safe
Stanford and went to pick Ms. Doe up at the Valley Medical Center. 7 RT 612.
appeared when she left to take Trea to Julia’s room, and she answered, “I’m not
a reliable source to say how her state was, but I just thought she would be fine if
I left,” although “[she] didn’t actually engage her at all or converse with her
directly.” 7 RT 616. When referred to her statement to the police that when she
left, Ms. Doe “appeared to be fine,” Ms. Doe’s sister acknowledged that Ms.
Doe “was standing and her eyes were open, so I just walked over to her and said
that when she, Ms. Doe, and Julia left the party to urinate outside, “we were
down there for probably 10 minutes,” during which time “[Ms. Doe] seemed
drunk but not out of control at all,” “still, like, speaking totally fine.” 7 RT 618.
When asked about the calls she received from Ms. Doe when she was in
Julia’s dorm, she acknowledged that she “couldn’t hear anything on the phone”
[as opposed to hearing speech that was incoherent]. 7 RT 619. On redirect, Ms.
Doe’s sister was asked about the telephone call she received from Ms. Doe at
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12:29, and she stated that she “couldn’t hear because [she] couldn’t understand
what [Ms. Doe] was saying or it was too loud on the other line.” 8 RT 693. She
then added the possibility that she couldn’t understand what was being said
because “she was slurring too much for me to be able to understand what she
Stanford. 5 RT 203. She knew Ms. Doe’s younger sister because they went to
middle school and high school together and had become best friends during
their senior year of high school. Ms. Doe’s sister visited Julia at Stanford when
she came home from Cal Poly, and they would get together for lunch and attend
On Saturday, January 17, 2015, Julia met up with Ms. Doe and Ms.
Doe’s sister to go to the Arastradero Preserve for a walk and some photography.
5 RT 206. They got some food at a local Mexican restaurant at about 6:00 p.m.
The three discussed their plans for the evening. Julia was going to have dinner
with a friend named Caroline, and then was going to meet up with Ms. Doe and
her sister at the Kappa Alpha fraternity house for a mixer cosponsored by
Kappa Gamma sorority, to which Julia belonged. 5 RT 210. She had been to
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the Kappa Alpha fraternity house many times with Ms. Doe’s sister. The three
Julia arrived at the Kappa Alpha party at around 11:00 p.m. after some
pre-party drinking at a friend’s residence. 5 RT 209. The party was not very
full at that time. Julia played a drinking game called Rage Cage at the party and
drank some beer, at which point she was feeling “[d]efinitely under the
The Kappa Alpha fraternity house has two stories and a basement.
Student rooms are on the second story, some additional student rooms and a
lounge area are on the ground floor, and the basement with a dining area is
“where the partying happens.” 5 RT 212. At some point after 11:00 p.m., Ms.
Doe arrived with her sister, another friend named Colleen whom Julia knew,
and fourth friend whom she did not know. 5 RT 212. When they met up, Julia
did not have any impression whether Ms. Doe and her group had been drinking.
Julia found a bottle of vodka and they all drank some. 5 RT 213. In addition,
Ms. Doe and her sister had brought a plastic Arrowhead bottle filled with
alcohol. 5 RT 215.
There was music and dancing in the basement area. At one point around
midnight, Ms. Doe, her sister, and Julia went into the bushes outside the Kappa
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Alpha house and urinated, which was “easier than waiting in line for the
bathroom.” 5 RT 216.
When they returned to the Kappa Alpha fraternity house, they “sort of
got split up” and were all talking with different people out on the patio. Julia
knew a number of people attending the party and was hanging out with them.
Julia did not see Colleen or the other friend during the evening.
Julia had “a vivid memory” of someone “making out” with Ms. Doe’s
sister, who was “looking extremely uncomfortable.” Julia did not recognize the
person and described him to the extent of wearing dark clothing. 5 RT 219.
Julia did not see Ms. Doe flirting with anyone or dancing with anyone
because “the last thing I recall [with Ms. Doe] is going to the bathroom in the
Later, Ms. Doe’s sister and Colleen asked Julia for her room key because
Colleen’s friend Trea was “too drunk,” and they wanted to put her to bed on the
futon in Julia’s dorm. 5 RT 227. After Julia gave Ms. Doe’s sister her room
key, she did not have any further contact with Ms. Doe at the party. 5 RT 228.
Later in the evening, she and others were looking for Ms. Doe throughout
the Kappa Alpha fraternity house and were calling and texting her. 5 RT 229.
Julia then went to Kappa Sig, another fraternity, and eventually went home
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On redirect, Julia described Ms. Doe’s sister as “significantly
intoxicated.” 5 RT 242.
When asked what Ms. Doe’s state of intoxication was, she answered:
intoxicated at all,” or “not able to gauge,” Julia answered that Ms. Doe “seemed
Cal Poly and a friend of Ms. Doe’s sister since freshman year. 6 RT 322.
Colleen had met Ms. Doe a few times when visiting her sister but did not know
her well.
Colleen came home from Cal Poly to her home in San Bruno on the
weekend of January 17, 2015 because her best friend, Trea, was home from
school in New York. 6 RT 323. Colleen formed a plan for her and Trea to go to
the Doe residence, after which the four of them would attend a Stanford party. 6
RT 324.
she and Trea drank champagne, while Ms. Doe and her sister had three or four
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shots of alcohol each. 6 RT 326. Ms. Doe’s mother drove the four of them to
the Stanford party. At that point, Ms. Doe, her sister, and Trea were getting
They entered the Kappa Alpha house and went downstairs to the
basement where people were listening to music and dancing. There was alcohol
being passed around. 6 RT 329. Colleen and other members of her group were
dancing. Ms. Doe was the only one of their group who danced on a table,
Colleen had never been to a party with Ms. Doe before, but on one
occasion she had gone to Santa Barbara with Ms. Doe’s sister, and the two of
them had picked Ms. Doe up from a party and took her home when she was
Colleen did not see Ms. Doe or any in their group dancing with any of the
men at the party. At some point around midnight, they went out to the patio
where it was quieter. Trea was “getting too drunk” and “like really sleepy,” so
Colleen focused her attention on her. 6 RT 332. Trea was “slurring speech” and
“having trouble staying awake.” Colleen wanted to take her to Julia’s dorm
room to rest. At one point, Julia, Ms. Doe, and her sister went into the bushes
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When Ms. Doe, her sister and Julia came back, Colleen saw them
“talking to two boys,” one of whom was appellant. 6 RT 334. When asked to
specify “who did you observe talking to the defendant and the other boy,”
Colleen answered, “[a]ll three girls: [Jane II – Ms. Doe’s sister], [Jane – Ms.
Doe], and Julia.” 6 RT 335. Colleen was “kind of moving back and forth from
that group to Trea.” 6 RT 335. The interaction between appellant and her
friends was “pretty just conversational, like group chat,” but “one thing that
stood out as odd was that he [appellant] tried to kiss [Ms. Doe’s sister] at one
point.” 6 RT 335. When asked about the kiss, she said that “Out of the blue, we
were all talking like I said, and then, he just, out of nowhere, kind of leaned
forward and tried to kiss her but she pulled back.” 6 RT 336. From Colleen’s
vantage point, there was no actual contact made between appellant and Ms.
Doe’s sister.
Colleen called for an Uber at 12:17 a.m., 6 RT 357, and she and Ms.
Doe’s sister took Trea to Julia’s dorm room at around 12:20 a.m. 6 RT 338.
When asked about Ms. Doe’s level of intoxication the last time she saw her,
Colleen said “I would say she was obviously drunk, as were the rest of the
girls.” 6 RT 339.
Colleen and Ms. Doe’s sister came back from dropping Trea off at Julia’s
room at around 12:45 a.m. They first went to the patio area, but there was no
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one out there when they got back. 6 RT 340. They looked for Ms. Doe that
night but could not find her. 6 RT 341. At about 1:00 a.m., Colleen, Trea, and
Ms. Doe’s sister returned to the Doe residence. They saw the police in the
vicinity of the Kappa Alpha house but thought they were there “just to shut
down the party.” The three girls were concerned about Ms. Doe, but “thought
that maybe she had gone downtown” because “she was 21 at the time.” 6 RT
343.
On cross, she confirmed that when she left the Kappa Alpha house to get
the Uber to take Trea to Julia’s room, Ms. Doe “was still standing and talking
when [she] left.” 6 RT 350. Ms. Doe was “acting silly.” Colleen
acknowledged she had previously told Det. Kim that when she had seen Ms.
Doe drunk before, “she was silly and hyper then, too.” 6 RT 351.
On redirect, Colleen testified that she and Ms. Doe’s sister thought
appellant looked like a student from their school named Casey Clarkson, and
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Ms. Doe testified that she was 23 years old and had graduated from
college in 2014. She had grown up in Palo Alto, attended Gunn High School,
and was currently living at home and working for a company that makes
On the weekend of January 17-18, 2015, her sister came home from
college. 6 RT 419. On Saturday, January 17, she, her sister, and her sister’s
friend Julia went to the Arastradero Preserve. Ms. Doe knew Julia from high
school. They went to a Mexican restaurant for some food, where her sister and
Julia discussed their plans for the evening regarding a party at Stanford. Ms.
Doe explained that Julia and her sister “were definitely going to hang out,” but
she “wasn’t sure if [she] was going to backpack onto their plan.” Ms. Doe
stated she doesn’t “usually go with [her] sister to parties because [she] feel[s]
like [she is] more her mom than her sister.” 6 RT 421. Ms. Doe told her sister
and Julia that she would think about whether she would accompany them to the
party. Back at their residence, her sister began getting ready for the party, and
Ms. Doe was still thinking about going. Her other option was to stay home by
herself. At that time, she was in a relationship with Lucas Motro, who was in
day, and traveled to visit each other in November and December. 6 RT 424.
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She described her relationship as “very stable and very exciting,” and she was
Ms. Doe had not previously attended a party at Stanford, although she
was familiar with the campus from having grown up in Palo Alto. 6 RT 425.
Ms. Doe knew that her sister’s friend, Colleen, was also going to join
them and go to the party. At some point, Ms. Doe decided to go to the party
with them. They started drinking shots of whiskey at their residence around
10:00 p.m. Colleen and Trea brought champagne. 6 RT 428. Ms. Doe had four
shots of whiskey and one glass of champagne at her residence between 10:00
p.m. and 10:45 p.m., and she was feeling “just slightly buzzed.” 6 RT 430.
Ms. Doe’s mother drove the four of them to the Stanford campus, and her
sister navigated them to the party. 6 RT 431. Ms. Doe was “starting to feel
buzzed and more silly and loose, peaceful.” They reached the Kappa Alpha
house and went to the basement where the kitchen was open. Ms. Doe was
making silly concoctions from juice, “being goofy and making [her] sister
laugh.” There were probably about 40 other people in attendance at that time.
After they left the kitchen, there was a table near the entrance door to the dining
area, which Ms. Doe, her sister, and Julia stood behind like “a welcoming
committee” and “were just singing songs and acting really goofy.” Ms. Doe
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was “embarrassing [her] sister but definitely not trying to impress anybody.” 6
RT 432.
During this time, Julia discovered a large Costco size handle of vodka,
and Ms. Doe free-poured some into her cup. 6 RT 434. The other people in her
“boys and girls [were] dancing on tables and [she] was dancing by [herself] on
a chair.” Ms. Doe was dancing “ridiculous” – “the opposite of sensual” – and
More people came to the party, the lights were turned off, and it became
very crowded. She did not dance with anyone else at the party. No one came
up to her to make her feel uncomfortable while she was at the party.
At some point, Ms. Doe, her sister, and Julia went outside and urinated in
a cluster of trees. They were about 40 feet from the party, and it was really dark
The three of them came back to the patio area, and began talking to some
young men. 6 RT 437. She drank part of a beer that one of them gave her.
When asked whether there was anything about the guys that she and her sister
were talking to that she remembered, Ms. Doe answered, “I knew I wasn’t
conversing with them, but my sister was.” She described her sister as “just
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talking to people” and herself being “very out of it at this point.” She described
herself as “pretty much empty minded,” “kind of just a dud,” “vacant, not
She did not recall her sister leaving the party. Her next memory after
When she woke up, she was “feeling really out of it” and saw “like dried
blood on my hands and my elbows and bandages.” She initially thought she
had fallen or was in trouble because she had become too drunk and was in an
administrative office at Stanford. 6 RT 441. Ms. Doe did not have her phone
and was lying on a gurney. She was feeling “extremely tired and confused,”
not knowing where her sister was or where she was. 6 RT 443. She went to use
the restroom and noticed her underwear was gone, at which point “it hit [her]
that what the deputy…had been talking about was real,” and she was “suddenly
very scared.” 6 RT 444. She felt scratching on her neck and realized it was pine
needles. She looked in the mirror and saw that her hair was disheveled with
“little things poking out of it.” 6 RT 445. She went back to sleep.
She informed about the SART exam and signed a lot of paperwork. She
described the SART exam as “invasive,” and described the various aspects of it.
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She was shown a photograph of People’s Exhibit 9, the area where her
cell phone and underwear were found, and was asked if she ever willingly go
with anyone to an area like that, and she answered no. 6 RT 450.
When asked “When you went out to Stanford, did you have any intention
of meeting anybody,” she answered no, and asserted that she had absolutely no
Ms. Doe testified that her cell phone records reflected a 35-second
telephone call with her sister at 12:29 a.m., 6 RT 468, and a call to Julia either
before or after, but she did not remember making either call.
On cross, she acknowledged telling a Stanford police officer that she had
had blackouts in the past and when it occurred, “[her] friends took care of
[her].” 6 RT 474. On rebuttal, she testified that she had had maybe four or five
blackouts during her college years. When she moved back home, her alcohol
tolerance changed because she “was working full time and not going out nearly
as much,” also drinking “much less.” 6 RT 477. When asked whether she ever
had a prior blackout where she “had zero memory of the night before,” she
memory “completely cut off in the night, and I was told that I had been found
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exposed. And in previous blackouts, I’ve never been half-naked outside.” 6 RT
478.
When asked how she learned about her prior blackouts, Ms. Doe said that
her friends would tell her “your neck was getting loose. You were getting
been at Stanford for three and a half years and was familiar with the campus.
He used a bicycle to get around. During the evening of January 17, he had been
to a couple of birthday parties and had been playing video games and drinking
beer during the course of the evening. Another Swedish friend, Peter Jonsson,
wanted to go to the Kappa Alpha fraternity party, and they biked from his
As they approached Kappa Alpha and were riding across the basketball
court, they saw a couple lying on the ground about eight to 12 feet off the side
of the court. 4 RT 131. When he first saw the couple, he assumed it was a
consensual encounter. As he and Peter biked across the basketball court and
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got closer to the couple, Peter said, “It doesn’t look like she’s moving.” 4 RT
136. Carl looked more closely and also got the impression that she was not
moving. He and Peter stopped because the situation seemed very weird. 4 RT
138. They then saw the male “start[] like more doing thrusting movements.”
Carl saw the man’s “hips was moving,” and it looked like sexual activity. 4 RT
139. They approached closer, perhaps six or eight feet away from them, and
Peter said, “What’s going on,” and then “What the fuck are you doing” in a
Carl testified that before they had reached the Kappa Alpha fraternity
area, the passed barbeque pits adjacent to Lake Lagunita and saw a couple
Carl clarified that when he and Peter approached the couple on the
ground, the female was lying on her back with her arms open wide, her legs
somewhat spread, the male on top of her, and “his feet in between the legs.” 5
RT 157. The male was fully clothed. He described the male’s activity as
unconscious.” 5 RT 161.
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Appellant stopped thrusting when Peter spoke to him loudly, and he
started “rising up.” 5 RT 162. Peter talked briefly to him,” and “[h]e started
backing away and then he started running.” Carl identified appellant in court. 5
RT 163. Peter ran after appellant, and Carl checked to see whether the female
was breathing by putting his hand close to her nose and feeling the air come
out. 5 RT 166. Carl said “hey” and shook her, “but nothing happened.” 5 RT
166. At that point, Carl ran toward Peter, where Peter was “sitting on top of
[appellant].” 5 RT 171.
Other students gathered, and one called the police, who arrived in
Ms. Doe with his hands at any point. 5 RT 191. When Carl joined Peter, who
and not slurring his speech or showing other signs of being particularly
intoxicated. 5 RT 200.
RT 275-316.
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4. Deputy Sheriffs’ testimony about the scene of the incident
and appellant’s arrest.
University since May 2014. On January 17, 2015, he was working the
graveyard shift. 4 RT 75. At 1:00 a.m. on January 18, he was dispatched to the
Exhibit 1 as a diagram of the Kappa Alpha fraternity and the surrounding area
Deputy Taylor was guided to where he saw a female lying on the ground
“wearing a black, fairly skin-tight dress, which was actually pulled up, gathered
near her waist,” such that “her entire buttock was visible and exposed.” 4 RT
81. She had a necklace with a feather pendant that was on backwards. Her
dress was also pulled up in the front which exposed her pubic area and her
navel. There was a pair of black and white polka dot underwear lying on the
ground close to her. She had a gray sweatshirt that was “pulled most of the way
down on her right arm,” and “the top of her dress was pulled down around her
shoulders,” such that her left breast was exposed somewhat. 4 RT 81-82.
When Deputy Taylor checked her neck for a pulse, she made snoring
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whether she was okay, but he got no response. 4 RT 84. There were pine
needles on the ground, and “her hair was just completely disheveled and full of
a wood-slatted fence structure that was open on one side and where a dumpster
centered behind the shed” on “fairly flat” terrain that was “covered in dry pine
needles.” 4 RT 91-92. There was also a cell phone on the ground next to her. 4
RT 94.
Paramedics arrived and attended to the woman at the scene, during which
time she was unresponsive, and their efforts to awaken her were unsuccessful. 4
RT 102-03. Deputy Taylor rode with her in the ambulance to the Valley
Medical Center, where she was treated with intravenous fluids. 4 RT 104.
She regained consciousness at 4:15 a.m., and had a very surprised look
seconds, she gave him her name and answered a few questions. Deputy Taylor
told her “there was a chance she may have been sexually assaulted.” She was
eyes were bloodshot and watery, and her breath smelled of alcohol. 4 RT 110.
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Deputy Taylor observed her “kind of dragging her feet” as she walked to the
bathroom.
which they waited for the Sexual Assault Response Team [SART] medical staff
to respond. 4 RT 112.
The SART nurses arrived at about 7:30 a.m., described their roles, and
drew blood from her. 4 RT 112. Deputy Taylor was relieved by Deputy Kim at
Department of Public Safety as a Deputy Sheriff, 8 RT 774, and was called out
Eric Adams, pulled up to the fraternity and walked over to where Deputy
Taylor was standing next to a female on the ground. The female had clothes on,
“but they were all messed up in various array” with her skirt or dress hiked up
to her waist, her bra area “was completely in a mess,” and “the rest of her
clothing was all bunched up.” 8 RT 776. Within a minute of his arrival,
someone ran up and said, “We have him other there,” and he and Adams went
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He found two male subjects detaining appellant, who was lying on his
back. 8 RT 778. Appellant had an odor of alcohol, and his general demeanor
vehicle, and “he walked fine.” He noticed that appellant had “bloodshot,
watery eyes.” Appellant was wearing brown pants and a black shirt. In the
crotch area of his pants, there was “a cylindrical bulge” that Shaw
Shaw took photographs of Ms. Doe as she lay on the ground, People’s
Lucas Motro testified that he was 26 years old, from Los Gatos,
Doe is his girlfriend whom he started dating in November 2014, and they were
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days of the week. Motro was interviewing for jobs in California, so they could
On January 17, 2015, they talked during the day, and Ms. Doe mentioned
she was going to Stanford. 5 RT 246. He spoke to her at 7:00 p.m., and she
called him at 11:54 p.m. while he was sleeping. Ms. Doe’s speech was
“couldn’t understand most of the words that she spoke,” and Ms. Doe “could
not process what I was saying to her as if I had not spoken at all.” 5 RT 248.
He stayed on the telephone with her for about two minutes, but “could not
communicate with her because she was not responding to anything I was
saying.” 5 RT 249.
At 12:14 a.m., Motro sent her a text saying, “You are done. Tell Neegus
[a nickname for Ms. Doe’s sister] to take care of you, please.” “You are done”
is slang for “you’re really drunk.” 5 RT 249. A prior text from Ms. Doe at
11:30 p.m. said “too turnt at baseball house,” which is also slang for “too
drunk.”
At 12:16 a.m., Ms. Doe called Motro and left a voicemail. Motro heard
the call but did not answer it. On one hand, he was worried because she was
drunk, but on the other hand he was “listening to someone who was rambling
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incoherently, couldn’t understand what she was saying, other than my name
missed me and she said that males were presenting themselves to her but that
she liked me.” There was “a lot of the other voicemail [he] couldn’t
understand,” and he was worried because he “sort have had hoped someone was
Lucas wanted to call Ms. Doe’s sister but did not have her number. He
called Ms. Doe directly and when she “started rambling,” Motro said, “Can you
find your sister?” He then left the phone on his pillow “until either she hung up
or fell asleep.” This was a 10-minute call. 5 RT 252. The prosecutor played a
recording of Ms. Doe’s 12:16 a.m. voicemail, Exhibit 29. 5 RT 253. Based on
her speech in the phone calls, he had never heard her to be that intoxicated. 5
RT 257. 2
2
Counsel for appellant requests that this Court to listen to the recording (Exhibit
29) in conjunction with the transcript (Exhibit 29A, 2 CT 517) to assess its
evidentiary value. On one hand, Ms. Doe was clearly intoxicated. At the same
time, she vacillated between some slurred words and some concise diction,
leaving the listener uncertain how to assess her degree of impairment and
uncertain how she would have appeared to others at the party.
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6. Testimony from Kristine Setterlund, SART nurse.
Center Sexual Assault Response Team. She has been a SART nurse since
patient, collect swabs, take photos, and conduct a pelvic exam. 6 RT 360.
Part of the exam includes putting a dye on the patient’s skin on the outer
packaging up the patient’s clothing and any other materials to give to the police
as evidence. 6 RT 363.
Nurse Setterlund attempted to take a history from the patient, but Ms.
Regarding injuries, she found erythema, which is redness to the skin, and
abrasions on her gluteal cheeks. 6 RT 373. There were abrasions on the left
labia minora but outside of the vagina. 6 RT 380. There was also some debris
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found inside the labia minora. There was some Toluidine Blue staining on
The evidence that we found here, the debris and the abrasions and
the physical evidence show us that there was some type of trauma
to the body. We don’t know specifically what happened to her, but
this is significant trauma inside the labia minora. So what the
debris, which would not normally be there, and the erythema and
the abrasion, this would be significant trauma. 6 RT 388-389.
from his hands and from underneath his fingernails. 6 RT 391. Appellant was
“quiet,” “cooperative,” and “made good eye contact with [her].” She noted that
his shirt was “disheveled and torn, with debris in the back of it.” 6 RT 406. She
took swabs from his hands and underneath his fingernails. 6 RT 391. There
7. DNA evidence.
Craig Lee testified that he is a Criminalist for the Santa Clara County
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His DNA findings were as follows. The vaginal swabs were
presumptively positive for blood and negative for semen. 7 RT491 – 492. He
examined Ms. Doe’s underwear and swabbed for DNA on the interior and
exterior of the waistband of the underwear “to see if someone had pulled down
or may have touched that area,” 7 RT 493. He found a mixture of DNA from
two individuals, with Ms. Doe as the major contributor, and “Brock Turner is
by the prosecutor if that result meant that appellant “did not touch the
underwear,” Mr. Lee responded, “It may not mean that” because “what it
essentially means is that I did not detect his DNA if all the minor DNA comes
He found that the presumptive test for blood was positive with respect to
the swab from appellant’s left fingernail, his right fingernail, and from his right
finger shaft. 7 RT 494. He found that Ms. Doe was the source of the DNA in
the swab of appellant’s left fingernail. The DNA from appellant’s right
male, Ms. Doe, and appellant himself. Finally, the DNA from appellant’s “right
fingernail shaft’s swab is a mixture from at least two individuals,” one of which
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In response to a question from a juror whether DNA from appellant was
found on Ms. Doe or any of her items of clothing, Lee answered that with
respect to the only item of Ms. Doe’s clothing he examined (her underwear), he
penis, he found appellant’s DNA and another male DNA profile that was “very
8. Toxicology evidence.
Alice King testified that she supervises the Toxicology Unit at the Santa
Clara County Crime Laboratory. 7 RT 532. She identified People’s Exhibit 68,
a large chart that illustrates her opinions of the effects of alcohol on humans. 7
RT 538. She testified that for similarly-sized men and women, the same
539. She described general symptoms associated with different levels of alcohol
consumption, 7 RT 541, and stated that “[t]he mental impairment always takes
first,” and “physical symptoms come after that.” 7 RT 543. She opined that
“All people are impaired [for driving] at .08 or greater,” but there is no bright
line rule as to when someone will pass out. 7 RT 545. She extrapolated back
from Ms. Doe’s blood draws on Sunday morning that her blood alcohol content
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at 1:05 a.m. would have been between .241 and .249, a level consistent with
passing out.
She also calculated appellant’s blood alcohol content as .171 at 1:05 a.m.
7 RT 554.
The parties stipulated that Ms. Doe’s blood sample was taken between
7:00 a.m. and 8:00 a.m. on January 18, and the blood alcohol content was
.127/.129. Appellant’s blood sample, taken at 3:15 a.m. on January 18, was
.130. 11 RT 1027.
that “You can black out at any level that we’re looking at” because it “depends
on the person.” Overall, she opined “I don’t think there’s enough study [sic] to
one at the time, nor Ms. Does someone else who is looking at the person who is
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Academy and then in follow-up courses. He has investigated about 12 sexual
information from Deputy Shaw, including the fact that appellant was in
8:30 a.m. to relieve Deputy Taylor. Ms. Doe appeared “uncomfortable,” “kind
of like fidgeting” when he was talking to her. He also spoke to Ms. Doe’s
the vicinity of the Kappa Alpha house. He put together a photo lineup that
included appellant’s photograph and asked the Cal Poly Police Department to
show it to Ms. Doe’s sister. 9 RT 815. It was also shown to Colleen, who
photographs and measurements of the location and walking through the incident
with the Swedish graduate students. 9 RT 819. Among other measurements, the
position where Ms. Doe was found was 116 feet from the back patio of the
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10. Paramedic testimony re: Ms. Doe’s condition at the scene.
department, 7 RT 506.
with his partner, Adam King. 7 RT 510. The initial dispatch information was
the patient was at 1:14 a.m. The woman was unresponsive on the ground, so
applied the finger pinch, and “she had some sort of response and her eyes
opened briefly,” which was “pertinent finding that she responded to pain.” 7 RT
515.
she had vomited at the scene when the paramedics were putting her on the
spinal immobilization board. 7 RT 520. Her vital signs were all within normal
limits. 7 RT 523. The ambulance took her to Valley Medical Center because
that was the only facility that performed rape kit examinations. In transit, he
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C. The Defense Case.
risk-taking, and driving under the influence. 8 RT 707. She has testified as an
expert more than 30 times. 8 RT 718. She testified that one of the effects of
they’re drinking that they might not otherwise engage in when sober and they
which the person is fully conscious and aware to be able to engage in all kinds
of activities – walking, talking, driving a car, dancing, having sex, etc., they’re
simply not just forming memories for those events.” 8 RT 721. The difference
passes out from alcohol when the alcohol reaches a certain level in the brain
that parts of the brain shut down and the individual loses consciousness, [such
that] they are no longer able to move about or make decisions,” and “it’s very
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difficult to rouse them.” 8 RT 721-722. She stated that with respect to passing
out, “most experts in the field agree that a person must reach a blood alcohol
level of .30 and above to pass out from alcohol.” 8 RT 722. When a person is
in an alcohol blackout, another person observing them cannot tell that the
Dr. Fromme reviewed police reports and reports of blood alcohol levels,
and a recording of Ms. Doe’s voicemail to Lucas. 8 RT 725. Only about 50-
out than males and are likely to black out at lower amounts of consumption than
men. 8 RT 727. Based on hypothetical facts of Ms. Doe’s situation, she was in
Dr. Fromme testified that she believed Ms. Doe was either passed out or
asleep during the time she was transported in the ambulance until she regained
than there is to being passed out.” She testified that a blood alcohol content of
.20 is necessary to cause a blackout, and that an alcohol level of .30 is generally
Regarding the voicemail, she agreed that the person in the voicemail
“sounds extremely intoxicated.” 8 RT 754. When asked whether the phone call
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changes her opinion that Ms. Doe could voluntarily engage in activities, Dr.
Fromme answered, “The brain regions that govern decisions and voluntary
activities are different than those that govern speech” because “different
She also testified that there are a number of studies that show that people
761.
She was shown People’s Exhibits 10 through 14, photographs of Ms. Doe
passed out, and stated that she “cannot tell us at what point someone goes from
2. Appellant’s testimony.
of January 17, 2015 and was a freshman at Stanford. 9 RT 830. Appellant had
been to the Kappa Alpha house on a few prior occasions for parties because he
knew three other people on the swim team who lived there. 9 RT 831.
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understood the phrase, “hooking up” to mean “sexual activity” that entailed
838. At approximately 11:00 p.m., he and others left Arnett’s room for the
Kappa Alpha house, which was less than five minutes away.
At the Kappa Alpha house, appellant went inside through the patio
entrance and saw drinking games going on. He saw two friends from the swim
team and joined them. Appellant “danced and drank beer and talked to people.”
9 RT 839. At one point while he was talking with one of the swim team
captains, “the lights went out and people started dancing on the tables,” and
appellant joined in. He danced with a girl for five or 10 minutes, whose name
computer science section. 9 RT 841. Appellant did kiss Ms. Doe’s sister once
during the evening. Appellant was listening to his friend, Tom Kremer, and
Ms. Doe’s sister talk about mutual acquaintances at Cal Poly. Ms. Doe’s sister
“got up close to me and said oh, my gosh. You look really like one of my
friends from school. And then, we laughed about it for a second. And we
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looked into each other’s eyes, and then I leaned in to kiss her.” 9 RT 842. Their
teeth touched, which “felt weird” so “we each pulled away and kind of laughed
Around 12:30 a.m., appellant saw Ms. Doe dancing by herself and went
up to her and told her he liked her dancing. 9 RT 844. Appellant asked her if he
had met her earlier, and then asked if she had a sibling because he had been
talking with someone who looked a lot like her. Ms. Doe responded that her
sister was there. 9 RT 845. Appellant asked if she would like to dance with
him, and she said “sure.” They danced inside near the door of the patio. After
dancing for about 10 minutes, he kissed her, and she was responsive. 9 RT
846. Appellant asked if she wanted to go back to his dorm, and she said
“sure.” Appellant asked her name while they were dancing, but he did not
Appellant put his arm around her shoulder, and they walked away from
the party. 9 RT 847. They walked along the access road between Jerry House
and Kappa Alpha House and then along a concrete path, which was the fastest
way to get to Lagunita Residence. Before he reached the shed that housed the
dumpster, “we cut through to get to that path.” 9 RT 848. Appellant identified
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After they left the concrete path, she slipped and “kind of fell
down.” She “grabbed onto me to try and prevent her fall and that caused me to
fall as well.”
After they fell, they “laughed about it,” appellant asked if she was okay,
and she said she “thought so.” At that point, they started kissing. After some
kissing, “she rolled on her back, and I rolled on her front while we were still
kissing.” After some more kissing, appellant asked her “if she wanted me to
finger her,” and she said “yeah.” Appellant “took off her underwear.” He got
up on his knees and took off her underwear from her dress. 9 RT 851. Ms. Doe
assisted and “lifted up her hips to help me.” He then got back on top of her,
kissed her, and fingered her. Appellant was asked “When you say ‘fingered
her,’ did you put a finger from your hand into her vagina,” and appellant
Appellant also touched her breasts by moving her dress down. Appellant
fingered her and “thought she had an orgasm.” During that time, he had asked
her if she liked it, and she answered “uh-huh.” Ms. Doe had her arms around
his back and at one point wrapped around his neck. Ms. Doe was “moaning
initially and breathing heavily and then it just increased more frequently,”
which gave him the impression that she had an orgasm. At that point, he
stopped fingering her and started kissing her. They then started “dry humping
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each other,” which means “grinding each other’s hips against each other.” 9 RT
853. Ms. Doe said “Oh. Okay,” he then got on all fours, felt dizzy, and
At that point, he realized there “was a guy standing right next to me” who
said something like “what the fuck, man, like, you’re sick.” At first, appellant
could not make out what he was saying, the person repeated himself, and
appellant said, “I didn’t do anything.” The person then put his hand on
appellant’s shoulder to restrain him and was talking with a friend in a foreign
language. 9 RT 855. The person “tried putting me in like an arm lock,” which
scared appellant and he decided to run. 9 RT 856. He described the first person
as Peter Jonsson. Jonsson caught him from behind and tackled him to the
ground. 9 RT 856.
When he was on the ground, appellant “started screaming out for help
immediately,” and Jonsson “kept calling me sick and, do you think that’s
okay?” Appellant “had no idea what he was taking about.” 9 RT 857. A police
officer showed up, the two students got off him, and appellant stood up. The
police officer told him to get back on the ground and put his hands behind his
was Ms. Doe’s DNA under a fingernail on his right hand, he said “my fingers
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were in her vagina at one point.” 9 RT 860. When asked whether there was a
reason her DNA would be on a finger of his left hand, appellant answered that
when he was in handcuffs, his hands were together, and the DNA could have
The last time he saw Ms. Doe that evening, she was conscious. There
was nothing about their conversation that led him to believe she did not
understand what he was saying. He never had an intention to rape her, and
there was nothing that caused him to believe she was unconscious when he was
fingering her. 9 RT 862. There was no reason for him to believe she was too
scale of one to 10. Appellant was feeling “pretty buzzed” from the five beers
and Fireball whiskey earlier in the evening. 9 RT 865. Appellant was asked
whether his drinking that night affected his ability to make decisions, and he
said it did not. 9 RT 867. Appellant reiterated that he kissed Ms. Doe’s sister
was honest with him. When asked why he denied running, appellant responded,
“I had been charged with such a heinous crime that I never thought in a million
years I would be charged with,” and “my mind was going a million miles an
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hour and it was impossible for me to think clearly about what happened.” 9 RT
892. At the same time, appellant agreed that he was “pretty calm in that
interview.” He was asked twice why he ran and he denied running, as opposed
to saying he thought that the two guys were going to hurt him. He
acknowledged that he did run and what he told Det. Kim was a lie. 9 RT 893.
because he now “remember[s] vivid detail about how [he] went to the ground.”
responded, “Look, the entire time I was with her, if she was ever unconscious, I
Doe, he acknowledged that he did not tell Kim that he had danced with her at
the Kappa Alpha house. When asked why he did not tell him, appellant
“You had six hours to come up with a story about why two random guys had
chased you down and detained you,” but “you couldn’t tell him the story about
how you met the girl that you fingered behind the dumpster?” 9 RT 896.
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Appellant acknowledged that he did not tell Det. Kim that he asked if she would
Appellant was asked whether he had heard Ms. Doe’s voicemail, and he
agreed that “she sounds super intoxicated.” When asked whether appellant
viewed her as “very drunk,” he answered, “Not more than anybody else that I
had been with.” He acknowledged that she was “more drunk than [he was],” 9
RT 897, but that was “based on the blood alcohol.” Appellant repeated that
“She didn’t appear any more drunk than anyone else I had been with.” When
asked “Is it normal for you to hook up with drunk girls,” appellant answered,
3. Character witnesses.
Dayton, Ohio and met appellant when he was 12 or 13 on the Dayton Raiders
co-ed swim team. 10 RT 933. Both were acquainted with each other’s families,
and they traveled together for swim meets. 10 RT 936. They were close during
observed the two together. When asked whether he had an opinion about
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Goins answered, “There’s no way he would ever do something like that.” 10 RT
938. On cross, he acknowledged he had never been with appellant when he was
drinking to excess and had never seen him when he was intoxicated. 10 RT 940.
Gary Galbreath testified that he is a swimming coach and met the Turner
family in the early-2000s when they came to the YMCA in Dayton where he
was coaching. 10 RT 943. Appellant’s older brother, Brent, was also on the
swim team. Galbreath coached the Dayton Raiders from 2008 to 2014. 10 RT
943. Galbreath hired appellant at one point to be the lifeguard at a pool that he
managed. 10 RT 945.
Galbreath testified “I don’t believe that he would do anything that would harm
anybody” because appellant “is a very respectful and courteous and, you know,
appellant, had never gone drinking with him, and had never seen him
intoxicated. 10 RT 948-949.
Lydia Pocisk testified that she was currently a student at the University of
Kansas. 10 RT 950. She had known appellant from elementary school. She
was also on the Dayton Raiders swim team. She and appellant started dating in
their junior year of high school and continued through senior year – “most of it
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kind of just happened because he’s been my best friend my – as long as I’ve
known him so.” 10 RT 952. Their relationship “was and still is very
his moral character, she testified that “I do know plenty enough to know that is
not what Brock would have done,” and he has “great moral character about
him.” They were sexually intimate during their relationship, and she never felt
pressured. 10 RT 955.
On cross, she acknowledged that she had never drunk alcohol with him
Jennifer Jervis testified that she lives in Tigard, Oregon and taught
French in Dayton Oakwood High School for 13 years. She met appellant in
approximately 2005 in relation to swim team activities, where she was a swim
coach. She got to know the Turner family generally through Brock and his
appellant’s moral character, she testified “That would be the farthest type of
behavior, the sexually aggressive or assaultive behavior that I would ever, ever,
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acknowledged that she has never seen appellant when he has been drinking or at
D. Prosecution Rebuttal.
3 CT 594, declared it accurate, and it was played for the jury. 10 RT 964. Det.
965.
appellant backed away from the female. 10 RT 978. Jonsson denied ever
January 18. 11 RT 1017. Shaw repeated his belief that appellant had an
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ARGUMENT
A. Summary of Facts.
On March 9, 2016, before voir dire began, the People filed motions in
limine. 2 CT 336. Motion (2) was captioned “The People seek to limit the
requested that the trial court set limits on the scope of the character witnesses’
testimony:
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Additionally, other witnesses’ observations about the defendant’s
character, experience or habit drinking is not a relevant character
trait and should be excluded. 2 CT 337.
The defense witness list and offer of proof designated as People’s Exhibit
1 listed Andrew Cole-Goins, Lydia Pocisk, Jennifer Jervis, and Gary Galbreath
relation to appellant and their observations and opinions about his character. 2
CT 340. 3
The Court: All right. And then, number 2 is the People’s request
to limit the scope of the character witnesses’ testimony. And that
would be deferred until Friday. As I understand it, the character
traits that have been identified by the defense as subject or subject
of these witnesses’ testimony will be character for honesty and
non-sexual aggression, essentially. And so I want to look at the
cases and to have some further discussion on this one. So we’ll
revisit this Friday afternoon. 1 RT 18.
The Clerk’s Minute Order for Friday, March 11, 2016 reflects “counsel
in chambers for discussions with the court,” which were “not reported.” 2 CT
342. On March 17, 2016, trial began, and defense counsel informed the jury in
opening statement that appellant would testify and “tell [the jury] everything
3
The four character witnesses plus psychologist Kim Fromme were the
witnesses listed on the defense official witness list filed on March 16, 2016. 2
CT 379.
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that happened.” Augmented Reporter’s Transcript, p. 11 (hereafter “ART”). 4
Appellant testified on March 23, and was cross-examined extensively (46 pages
putative inconsistencies between his January 18, 2015 statement to Det. Kim
The trial court summarized the preceding discussions regarding the scope
of defense character witnesses, noting that “[a]t an earlier discussion about the
scope of the testimony of those witnesses, the defense had offered the character
traits of one, honesty, and two, for lack of a better term, sexual non-
aggression.” 10 RT 924. The court then stated, “[u]pon further research, review
and discussion, I indicated that the character trait for honesty didn’t appear to
be relevant to the crimes charged under Evidence Code section 1102. And then
of the sexual trait as it relates to sexual assault.” The court permitted the
4
Brock Turner will testify, and he will tell you everything that
happened from the very beginning of the evening all the way
through after he’s found on the ground with [Ms. Doe]. He will
tell you exactly what happened in terms of how much he drank,
everything happened during the time he was with her at the Kappa
Alpha fraternity house. They left together. And everything that
happened – he will answer every question that anybody here has
about that. ART 11-12.
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relates to sexual assaultive behavior,” but not as to appellant’s honesty – “In
relevant to his conduct at the time of the offense (Evidence Code section 1102),
780).
such character or trait of character.” Thus, section 1102 provides one basis for
5
There were further discussions on peripheral matters, such as the People’s
request that “all character witnesses be admonished not to mention the fact that
the defendant is no longer a student at Stanford, not to mention any facts related
to his potential to be in the Olympics or what consequences he has suffered as a
result of this incident.” 10 RT 927.
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Section 780 provides a separate basis for the admission of character
Evidence Code section 780 specifically provides “The court or jury may
consider in determining the credibility of a witness any matter that has any
tendency and reason to prove or disprove the truthfulness of his testimony at the
(emphasis supplied). The trial failed to recognize the clear relevance and
veracity to assist the jury in assessing the credibility of his testimony. The trial
violated not only the statutory authorization in Evidence Code section 780(e),
evidence on his own behalf. Crane v. Kentucky (1986) 476 U.S. 683; Olden v.
Evidence Code section 780 “is a general catalog of those matters that
Comments further explain that section 780 “provides a convenient list of the
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most common factors that bear in the question of credibility.” Section 780(e)
that defendant’s “motion to introduce evidence of his reputation for truth and
veracity was erroneously denied,” and that “in this close case where credibility
contemplated under section 1102. The Court of Appeal stated that “[t]he
The Court of Appeal then noted that “[d]efendant’s reputation for truth was
relevant not to the elements of the rape itself, but only on the issue of whether
he was testifying truthfully.” In light of the difference between the two statutes,
the Court of Appeal noted that “the defendant’s reliance on Evidence Code
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section 1102 is unavailing,” id. at 629, but that “the character evidence was
admissible at trial under section 780(e) for the purpose of proving the
relates to a trait at issue in the commission of the charged offense, while section
independent of what the charges involve. In this case, the trial court correctly
admitted the character evidence that under section 1102 supported an inference
that appellant’s character was inconsistent with the commission of the offense
charged, but erred in excluding the character evidence that under section 780
court’s erroneous belief that the evidence was excludable pursuant to Evidence
Code section 790. Evidence Code section 790 provided that “evidence of the
evidence of his bad character has been admitted for the purpose of attacking
credibility.” Taylor held that section 790 was abrogated by the passage of the
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which “commands that ‘relevant evidence shall not be excluded in any criminal
After rejecting Evidence Code section 790 as a basis for the exclusion of
factors that established its admissibility under section 780. First, Taylor noted
that “[t]he defendant’s credibility was highly relevant to the case,” but that
“[t]he jury was deprived, however, of any extrinsic evidence relating to the
defendant’s credibility.” Given that “[t]he primary task facing the jury was
The Taylor analysis applies with equal force in this case. Appellant was
the only witness who testified regarding the sexual conduct relating to the
digital penetration counts, and was the primary witness as to the conduct
underlying the assault with intent to rape count. Under these circumstances,
Taylor has been cited with approval in subsequent cases, such as People
v. Harris (1989) 47 Cal.3d 1047, 1081 [“We, therefore, agree with the
28(d) effected a pro tanto repeal of Evidence Code section 790”]. See also “The
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Victims’ Bill of Rights – Thirty Years under Proposition 8,” 25 Stan. L.&Pol’y
Rev. 379,402 (2014) [“People v. Taylor holds that a criminal defendant who
takes the stand is entitled to offer good character evidence of his honesty and
veracity even if the prosecution has not first attacked the defendant’s character
as a witness”].
but claimed it was done in response to the agent’s demand, threats, solicitations,
Supreme Court noted that “[i]t is enough for our purposes to say that
determination of the issue turned on whether the jury should believe the agent
“reputation for honesty and truthfulness and for being a law abiding citizen”
was “very good.” Id. at 471. The Supreme Court reviewed federal law
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general estimate of his character is so favorable that the jury may infer that he
would be unlikely to be commit the offense charged.” Id. at 476. The Supreme
The Supreme Court has further recognized that the right to present
evidence relevant to the weight the jury should give a particular witness’s
defense. Crane v. Kentucky, supra. The Supreme Court affirmed that “[t]he
present a complete defense’.” 476 U.S. at 690. The Court concluded that the
infringed that right – “That opportunity would be an empty one if the State were
testimony itself.
bias on the part of the complaining witness. The same constitutional principle
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entitles the defendant in a sexual assault case to introduce evidence that
their relationship with appellant and their proposed testimony. 2 CT 340. The
summaries are drafted in a narrative form without legal references, but the crux
Andrew Cole-Goins, the summary states “Brock is honest and polite to all, and
would not sexually assault a woman.” With respect to Lydia Pocisk, she is
girlfriend during high school. “She describes Brock as very caring, calm, a
Brock’s French teacher in high school and one of his swim coaches, and who
was well acquainted with the Turner family. She described appellant as
“always very respectful to girls.” Gary Galbreath was the head coach of the
YMCA swim team, who described Brock as “just a great kid,” and commented
that appellant “would never assault a woman like he’s accused of here” and “is
an honest person.”
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The prosecutor sought an order “to limit the scope of the character
witnesses.” The People recognized that “the defendant may introduce opinion
citing California Evidence Code section 1102(a), and requested that “the
defense should be required to state the specific character trait each witness will
testify to and demonstrate how the character trait relates to a disputable issue.”
The People objected that “some of the character witnesses make reference to
improper character trait and Ms. Does not meet the standards in Stoll and
As noted above, the trial court initially deferred ruling on this request and
returned to it toward the conclusion of trial on March 25, 2016. The court
referred to prior discussions between the court and counsel and issued its ruling
assaultive behavior is in.” 10 RT 924. The trial court specifically stated that “at
an earlier discussion about the scope of the testimony of those witnesses, the
defense had offered the character traits of one, honesty, and two, for lack of a
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The trial court clearly erred in ruling that “honesty is out.” Appellant had
numerous matters that putatively impeached his testimony that Ms. Doe was
Ms. Doe agreed to accompany him to his dorm room after some relatively brief
character for running away from the two graduate students rather than attending
Det. Kim that he did not try to run away with appellant’s acknowledgement at
trial that he did try to run away. 9 RT 893. The prosecutor extracted appellant’s
acknowledgement that a number of details about his interaction with Ms. Doe
In sum, the trial court could not have been on any clearer notice that
“Honesty” was not only “in,” but was crucial to the effective presentation of the
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C. The Resulting Prejudice.
Where “credibility was the key issue, …the error requires reversal.”
Taylor stated that “The case hinged on a credibility contest between [the
complaining witness] and defendant.” Id. at 633-634. In this case, Ms. Doe did
not remember events from approximately 12:15 a.m. until she awoke in the
hospital, but she was adamant in her testimony that she would never do
by the prosecutor.
Under those circumstances, the Court of Appeal “conclude[d] that had the
competing extrinsic evidence from the defendant’s pastor, employer and friends
probability that the jury would have found for the defendant.” Id. at 634.
836 to conclude that “it is reasonably probable a result more favorable to the
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defendant would have been reached in the absence of the error.” Ibid. A similar
Chapman v. California (1967) 386 U.S. 1, 18. In the absence of any other
standards.
appellant’s credibility based on, inter alia, putative falsities in his statement to
Det. Kim and putative discrepancies between his trial testimony and his
Det. Kim, and appellant answered that he was upset about being charged with a
heinous crime, and “it was impossible for me to think clearly about what
confrontation with Jonsson and Arndt. Eventually, the prosecutor elicited the
following:
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Q: And as you sit here today, you admit that you ran?
A: Yes.
A: Yes. 9 RT 893.
Thus, even though appellant had an explanation for not admitting to Det.
Kim that he ran, the prosecutor could plausibly claim to have inflicted a blow to
previously made by [the witness] that is inconsistent with any part of his
Page 17 and 18, he’s asked, why did you run? Now, I made a big
deal about this in my cross-examination because this is very
pivotal to your understanding and your assessment of the
credibility evidence in this case, what’s going on in his state of
mind. And he answers to Det. Kim six hours after being detained,
“I don’t think I ran.”
No. 11 RT 1099.
appellant regarding whether he was truthful with Det. Kim and specifically read
to the jury the same testimony quoted above that concluded with “so what you
told Det. Kim was a lie, wasn’t it?” 11 RT at 1102. From this point of
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impeachment, the prosecutor urged the jury to consider discounting or ignoring
deemed harmless.
This won’t be the first or the last trial that people will come into
court and say this guy is a great person. I have never seen or can’t
imagine him raping somebody in the way that you say. Those
character witnesses don’t really add anything of value as to what
the facts of this case are. They all say he’s a good guy and they
can’t imagine him doing this. None of them were there. None of
them have seen him intoxicated. So what good is the information
that they have to provide to you? It’s just not well informed. 11
RT 1107 (emphasis supplied).
That argument may well have carried considerable weight with the jury
opinion of his honesty and veracity at the time of the offense. The prosecutor
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may well have persuaded the jury that even though appellant behaved in
conformity with his character for sexual non-aggression back in Ohio during
high school, but that he may have behaved differently at a fraternity party far
interactions with him on than their interactions with him regarding his treatment
on their overall range of experiences together, not merely based on one facet of
their interaction. The prosecutor would not have been able to minimize
character testimony for honesty and veracity as she did with the character
testimony for sexual non-aggression. The prosecutor argued that the character
witnesses who testified were essentially irrelevant because they had never seen
In sum, testimony as to his character trait for honesty and veracity was
equally if not more important to the defense than the testimony regarding moral
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4. The case law recognizing the importance of corroboration of
a defendant’s testimony.
situation. On one hand, jurors often hold the belief that an innocent defendant
will want to tell his story to obtain an acquittal. At the same time, the jury may
well feel (and the prosecutor will certainly argue) that a guilty defendant has a
great incentive to tell the jury a false story to avoid the consequences of his
actions. Given the inherent questions about a defendant’s credibility, the case
Brown v. Myers (9th Cir. 1998) 137 F.3d 1154 emphasized the
Defendant Brown was convicted of assault with a deadly weapon, and testified
that at the time of the shooting, he was at his girlfriend’s house in the presence
of his girlfriend and two other people. Defense counsel did not interview the
The Ninth Circuit found that trial counsel’s failure was prejudicial
because “[Brown’s] own testimony would have appeared more credible because
it coincided in important respects with those of his alibi witnesses,” and the
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alibi witnesses’ testimony “was consistent with [Brown’s] account that he
arrived at [his girlfriend’s] house too early to have participated in the shooting.”
137 F.3d at 1158-59. The Ninth Circuit concluded that “without any
effective defense.”
Riley v. Payne (2003) 352 F.3d 1313 also granted habeas corpus relief to
acknowledged the shooting, but testified that it was done in self-defense. Riley
testified regarding the incident at the time the victim threatened to shoot Riley.
The other person then ran away and was not present when the shooting actually
performance for trial counsel not to interview the other witness, and that the
deficient performance was prejudicial because “[t]he use of [the other person]
5
Because Riley’s counsel did not interview or call a key witness who
would have corroborated Riley’s testimony that Riley was not the first
aggressor and drew his gun in response to a threat, a key witness who
himself fled from the threat, fearful of violence, our confidence in the
verdict is undermined, and we are left with the firm conviction that Riley
did not get a fair shake from the legal system. 352 F.3d at 1325.
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Brown and Riley both involve failures to present corroborating evidence
due to ineffective assistance of counsel. The case law equally recognizes the
United States v. James (9th Cir. 1999) 169 F.3d 1210 (en banc) reversed a
decedent and known to the defendant. Defendant James testified that she gave
her daughter a loaded handgun at a time when her boyfriend, the decedent, was
drunk and acting violent. James testified that the decedent had acted violently
toward her on several occasions, and had also told her of other incidents in
which he had robbed, beaten, or otherwise injured people. The trial court
excluded extrinsic evidence consisting of police reports that the victim had in
fact committed the other incidents of robbing, assaulting, and injuring people on
the basis that defendant James had never seen those reports.
The Ninth Circuit found that was error because “James’ only defense was
that she believed that she and her daughter were in danger of grievance bodily
harm or death from [the victim],” and “[e]ssential to that defense was her belief
The Ninth Circuit noted that “[t]hese stories were such a remarkable character
of atrocity that one might doubt that he had told them of himself or doubt that
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they had really occurred.” Thus, the records of the actual incidence “if
James’ own testimony that she had heard Ogden tell her these things and to
corroborate her statement that she had reason to be afraid of Ogden and his
vicious drunken mood.” 169 F.3d at 1214. The materiality of the police reports
was that “the records proved that what Ernestine James testified to had actually
taken place,” i.e., they corroborated her testimony. Ibid. The Ninth Circuit
concluded that “because of the crux of James’ defense rested on her credibility
and because her credibility could be directly corroborated through the excluded
credibility, which could have been directly corroborated through the character
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appellant engaged in two forms of sexual conduct, both of which were “short of
evidence that he never attempted to get his penis out of his pants, precludes a
because the prosecution’s evidence fails to establish that Ms. Doe was too
intoxicated to knowingly consent to sexual activity with appellant when she left
the Kappa Alpha party in his company and walked with him 116 feet to where
the sexual conduct occurred. The evidence is even less adequate to establish
appellant should have reasonably known that she was too intoxicated to
knowingly consent to sexual conduct when they left together. None of the other
young women in her group, including Ms. Doe’s own sister, testified that they
party. The unanimous view was that Ms. Doe was intoxicated as were they all,
and the unavoidable inference is that Ms. Doe was not as intoxicated as Trea,
departure from the party with appellant under her own volition, and under her
own steam, and her eventual passing out. The prosecution presented no
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evidence to prove that Ms. Doe had crossed the line from general intoxication
Johnson, supra.
appellant and Ms. Doe at the Kappa Alpha fraternity party, including the critical
30 minutes between 12:00 a.m. and 12:30 a.m. when appellant and Ms. Doe left
Ms. Doe testified that at some point around midnight, she, her sister, and
their friend Julia left the party briefly to urinate behind some shrubbery. 6 RT
436. The three of them went back to the party area and joined a group who
were drinking beer on the patio area. She drank part of a beer that one of them
had given her. Her sister was talking to some young men who approached
them, but she was “very out of it at this point.” 6 RT 439. She did not have any
memory of any events after drinking beer on the Kappa Alpha patio with her
The telephone records of Ms. Doe, her boyfriend Lucas, her sister, and
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approximately midnight and 12:30 a.m. At 11:54 p.m. California time, Ms.
Doe called Motro in Philadelphia and awakened him. He described her speech
phone with her for about two minutes, but “could not communicate with her
Sometime after midnight, Ms. Doe, her sister, and Julia left the party to
urinate behind some shrubbery. They returned and joined Colleen on the Kappa
Alpha patio. The four young women began talking to some young men, one of
whom was appellant. As Colleen described the situation, “it was pretty just
conversational, like group chat” and “[t]he only thing that stood out as odd was
that he [appellant] tried to kiss [Ms. Doe’s sister] at one point.” 6 RT 335.
Around this time, Colleen noticed that Trea was too intoxicated to
participate in the party activities, and she asked Julia for her dorm key to take
Trea to recuperate, which Julia gave to her. 6 RT 338. Colleen’s cell phone
records show she called for an Uber at 12:14 a.m. Colleen and Ms. Doe’s sister
left with Trea shortly afterward. The clear implication of this testimony is that
Ms. Doe must have appeared to not require special attention in the manner that
Trea did. In this regard, Ms. Doe’s sister testified at the preliminary hearing
that when she, Julia, and Ms. Doe left the party to urinate in the trees, “[Ms.
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Doe] seemed drunk but not out of control at all,” and “still, like, speaking
totally fine.”
At 12:14 a.m., Motro sent Ms. Doe a text saying “You are done. Tell
Neegus [a nickname for Ms. Doe’s sister] to take care of you please.” He
explained that “You are done” is slang for “you’re really drunk.” 5 RT 249. At
12:16 a.m., Ms. Doe called Motro, but he did not answer. However, he
immediately listened to the voicemail she left. Motro reported Ms. Doe as
saying, “She missed me and she said that males were presenting themselves to
her but that she liked me.” 5 RT 250-251. He could not understand other parts
of her voicemail message. Motro called her back, and “she started rambling”
and “didn’t respond when [he] said ‘can you find your sister’.” Motro “left the
phone on [his] pillow until either she hung up or fell asleep [sic].” 5 RT 252.
At 12:29 a.m., Ms. Doe called her sister, who was in Julia’s dorm room
with Trea, but Ms. Doe’s sister could not hear what Ms. Doe was saying and
asked her to call back. Ms. Doe also called Julia either immediately before or
after the call to her sister, but did not reach her. Those were the last
Ms. Doe acknowledged that there were instances during her college years
at U.C. Santa Barbara when she became too intoxicated, and “[her] friends took
care of [her].” 6 RT 474. She had blackouts during these episodes and
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described certain specific symptoms that her friends noticed when she became
excessively intoxicated. Her friends told her “Your neck was getting loose.
You were getting bobble-heady,” and “were slurring your words, so we decided
to take you home.” 6 RT 478. Neither Ms. Doe’s sister nor her two friends in
As Ms. Doe’s sister told the police, when she left the party to take Trea to
Julia’s room, Ms. Doe “appeared to be fine” – “she was standing and her eye
were open, so I just walked over to her and said I was leaving for five minutes.”
7 RT 617.
the past when she had drunk to excess at parties were simply not apparent on
this evening to the people who knew her well, and nothing she did or said at the
party set off alarm bells among either her immediate circle or anyone else at the
party.
At some point between 12:30 a.m. and 12:45 a.m., Ms. Doe left the party
with appellant, and together they began walking in the direction of his dorm.
Det. Kim measured the distance between the patio of the Kappa Alpha house
and the spot where Ms. Doe and appellant were at the time the two graduate
students intervened as 116 feet. There was no testimony from any witness to
the effect that they saw appellant carry, drag, or otherwise maneuver an
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unwilling female for a distance equivalent to the goal line of a football field to
the 40-yard line. The unavoidable inference from this objective evidence is that
Ms. Doe left the party with appellant of her own volition, and walked with him
Ms. Doe left the voicemail for her boyfriend in Philadelphia that some young
men were “presenting to her,” indicating that she recognized overtures of sexual
interest from young men at the party. Thus, there is clearly insufficient
evidence to establish beyond a reasonable doubt that Ms. Doe was unable to
People v. Johnson, supra, set forth the California standard for appellate
whether a reasonable trier of fact could have found defendant guilty beyond a
reasonable doubt, the appellate court ‘must view the evidence in a light most
of every fact the trier could reasonably deduce from the evidence’.” In
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crime must be substantial and we must resolve the question of sufficiency in
The elements of a charge of assault with intent to commit rape are set forth
in CALCRIM 890, and the jury in this case was instructed as follows:
3. When the defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly
and probably result in the application of force to someone;
4. When the defendant acted, he had the present ability to apply force
to a person;
AND
and Carl Arndt is sufficient to establish the first four elements of the charge. In
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contrast, the evidence relevant to intent viewed most favorably to the judgment
Carl Arndt testified that he and his friend Peter were on their way to the
Kappa Alpha fraternity party, and as they approached Kappa Alpha on their
bicycle, they saw a couple lying on the ground adjacent to a basketball court. 4
RT 131. He first assumed it was a consensual encounter (he had seen another
couple kissing in the open shortly before, 5 RT 148), but as they biked across
the basketball court and got closer to the couple, Peter said, “It doesn’t look like
she’s moving.” 4 RT 136. The male on top was “moving around” and “doing
thrusting movements.” 4 RT 138. The female was lying on her back with her
arms open wide, her legs somewhat spread, the male on top of her, and “his feet
in between the legs.” 5 RT 157. The male was “fully clothed,” 5 RT 157, and
When Carl approached to within 15 feet of the couple, Peter spoke loudly
to appellant, who “stood up,” “started backing away and then he started
Doe, but rather to engage in a different form of sexual activity short of sexual
intercourse. The fully clothed “thrusting” that Carl and Peter observed may fall
within the scope of Penal Code section 242 [“battery”] or section 243.4 [“sexual
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battery”], but neither of those offenses was charged or offered as a lesser
included offense.
students (and others) have engaged in sexual activities that do not contemplate
or entail sexual intercourse. These activities, including manual, oral, and the
only an inference that appellant intended to engage in sexual activity that did
regarding a conviction for assault with intent to rape has long recognized the
the defendant intended to have unlawful sexual intercourse with the victim, vs.
evidence that the defendant intended to engage in some other type of sexual
activity different from and short of sexual intercourse. People v. Greene (1973)
34 Cal.App.3d 622 vacated a conviction for assault with intent to rape where an
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18-year-old boy accosted a 16-year-old girl at 11:00 p.m. as she was walking a
few blocks home from a baby-sitting job. The defendant approached her, put his
arm around her waist and turned her around, saying “Don’t be afraid. I have a
gun. Don’t move.” The girl not surprisingly was afraid, and complied with
defendant’s direction. They walked along while defendant fondled her body.
She asked, “What do you want,” and he answered, “I just want to play with
you.” She tried to break away from him, but he told her to stop and be quiet.
She complied briefly and then “broke from defendant’s embrace without a
sufficient to warrant the finding that he was guilty of an assault with intent to
commit rape,” id. at 651, citing People v. Mullen (1941) 45 Cal.App.2d 297,
301. The Court of Appeal reduced the conviction to simple assault, noting that
that “the failure of defendant to exhibit his private parts or offer money on the
occasion in question renders the prior offenses of little if any persuasive value
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Accord: People v. Cortez (1970) 13 Cal.App.3d 317, 327 [“a distinction is
parts,” but he did not. That undisputed fact by itself constitutes a virtually
reasonable doubt. The evidence may well show a sexual intent of some type,
but the weight of the evidence militates against an inference that the intent was
reasonable doubt.
Greene was followed in, inter alia, Watson v. Nix (S.D. Iowa 1982) 551
of assault with intent to rape. The 17-year-old complaining witness was walking
from her parents’ residence to a downtown store, and accepted a ride from two
young men who pulled up next to her. However, rather than let her out when
she requested, they drove her to a secluded area, and violently restrained when
her when she tried to get away. She “struggled with the men and screamed,” at
which point one of the men “told her to shut up or she would really get hurt,”
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id. at 8. At that point a passing motorist intervened, and one of the men grabbed
intent to rape, including People v. Greene, supra, and concluded that the
The cases that distinguish Greene and affirm convictions of assault with
intent to rape do not have the type of evidence present in this case that
doubt. In People v. Craig, supra, defendant followed a woman who was driving
home, pulled into her driveway immediately behind her, and began a sexual
assault in her vehicle. He “shoved his free hand up inside her sweater or shirt,”
and “placed his hand flat against her chest, touching both of her breasts outside
her bra,” id. at 1596. At that point, the woman’s boyfriend came out of the
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house, punched Craig, and locked him into his vehicle until the sheriff arrived.
consistent with th[e] intent [to rape],” and “[n]othing he did or said indicated
that he intended only to place his hands on her body or to accomplish some
Here, nothing appellant did was consistent with an intent to have sexual
intercourse, and everything he did indicated an intent “to accomplish [a] sexual
act short of or different from intercourse.” Defendant testified that he asked her
than intercourse. The primary indicator that appellant did not intend to have
intercourse is that he made a decision to remove Ms. Doe’s underwear but not
arguments of counsel “are not evidence,” counsel for appellant has considerable
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the prosecutor in this case would have cited it early and often during closing
argument. For that reason, counsel offers the following review of the
And lastly, Count 5 [sic] of the first element [sic] shows the intent,
state, the mental state that I must prove to you that the defendant
intended to commit the rape of an intoxicated or unconscious
person. So this is where the subjective state of mind of the
defendant comes into play. Now, when we’re dealing with intent,
where people commit a crime and say, I’m committing this crime.
I’m going to walk into the store and commit this theft, and as I’m
leaving, I just robbed somebody. Usually, they commit the crime,
and then, through the circumstantial evidence, you can associate
and determine what was going on in their mind. And that’s how we
prove the intent element as it relates to rape of an intoxicated
person or rape of an unconscious person. 11 RT 1068.
The prosecutor did not make any argument as to any specific evidence
opening argument. Defense counsel straightforwardly argued “[i]t was never his
concluding argument:
Now, he’s digitally penetrating her and he then stops and starts
thrusting her, on top of her body, when these two independent
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witnesses see. That is the assault with intent to commit rape. All he
had to do to complete that rape was to unzip his pants. That is the
only thing that he has to do to complete the rape. 14 RT 1133.
Ms. Doe. The prosecutor fails to acknowledge the glaring fact that appellant
different from intercourse,” Craig, supra, at 1604, i.e., the “fingering,” and then
different from intercourse.” That course of conduct negates any inference that
have sexual intercourse with Ms. Doe, the conviction under Penal Code section
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1. The defendant committed an act of sexual penetration with another
person;
And
4. The defendant knew or reasonably should have known that the effect
of that substance prevented the other person from resisting the act. 2
CT 375.
consistent in that none of them viewed Ms. Doe as too intoxicated to take care
of herself during the course of the evening. At 12:15 a.m., her sister told her
that she [the sister] was going to leave the party with Colleen to take Trea to
Doe had displayed any comparably alarming or concerning behavior, her sister
and Colleen had every incentive and opportunity to take Ms. Doe to Julia’s
room as well.
The voicemail that Ms. Doe left on Lucas Motro’s cell phone at
approximately 12:16 a.m. reflects some coherent speech and some slurred
speech. Mr. Motro testified that during his 12:19 a.m. telephone call to Ms. Doe
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she was “rambling.” No one present at the actual party testified that Ms. Doe
Ms. Doe testified that when she had become excessively intoxicated at
parties during her college years at U.C. Santa Barbara, she displayed certain
distinctive physical symptoms in that her neck would “get[] loose” and she
would appear “bobble-heady,” 6 RT 478. Neither her sister nor any of the party
Somewhere between 12:30 a.m. and 12:45 a.m., Ms. Doe and appellant
left the party together and walked about 116 feet away from the Kappa Alpha
patio to a wooded area. At that point, the party was attended by a large number
otherwise assisted Ms. Doe in her ambulation. As set forth in section A, supra,
doubt that at the time appellant and Ms. Doe left the party together that she was
too intoxicated to consent to sexual activity, and that appellant knew she was
incapacitated.
The prosecution next had to prove beyond a reasonable doubt that at the
time of the digital penetration in the wooded area that Ms. Doe was prevented
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from consenting due to alcohol intoxication, and that appellant knew that she
Appellant testified that they began consensual activity, and that Ms. Doe
We kissed for a little bit after that, and then I asked her if she wanted me
to finger her.
A. Yes.
A. I got up on my knees and I took off her underwear from her dress.
A. I got back down on top of her, and I started kissing her again, and
then I fingered her.
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Q. When you say “fingered her,” did you put a finger from your hand
into her vagina?
Of course, the jury was free not to credit appellant’s testimony that Ms.
Doe was conscious and consenting. However, the fact that the jury could have
consent and appellant’s awareness of that capacity at the time of the sexual
activity came from criminalist Craig Lee under examination by the prosecutor.
appellant’s part:
(pause in proceedings)
Q. (by Ms. Kianerci): And can you describe what you tested.
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A. I examined the underwear, and semen was not confirmed or
detected in the interior crotch area. It was in used condition with a
lot of dirt or debris on it. So I took an attempt to swab or collect
DNA from the waistband area, the interior and the exterior, in
order to see if someone had pulled down or may have touched that
area.
Q. Now, the fact that Brock Turner was excluded, does that mean that
he did not touch the underwear?
A. It may not mean that. What it essentially means is that I did not
detect his DNA if all the minor DNA comes from one individual. 7
RT 493 – 94 (emphasis supplied).
several reasons. First, Mr. Lee elected to test the waistband of the underwear
“to see if someone had pulled [the underwear] down,” which indicates his belief
that there would likely have been a transfer of DNA in the course of putting
on/taking off one’s underwear. Mr. Lee’s belief was born out by his detection
is that Ms. Doe cooperated in his removal of her underwear. If appellant had
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wrestled the underwear off an inert and/or uncooperative person, the likelihood
of a DNA transfer from appellant to the underwear would be much higher due
to the greater friction involved in pulling underwear off someone who is lying
Appellant testified that Ms. Doe lifted her hips to assist him in removing
her underwear. The jury did not have to credit that testimony, but this Court
recognize its particular importance as the only physical evidence relevant to the
consent issue.
her best to do damage control with her follow-up question to Mr. Lee as to
whether the absence of DNA conclusively established that appellant did not
touch the underwear. His answer implied that the result did not conclusively
establish that appellant had never touched the underwear, but that did not rebut
At some indeterminate point after the fingering activity, Ms. Doe did
pass out, and was apparently passed out at the time that the two Swedish
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unconsciousness at a subsequent point in time proves her incapacity to consent
achieved her sister, Colleen, Julia, and apparently the vast majority of other
party goers. There is no substantial evidence that she ever entered a more
intoxicated state in which her capacity to consent was overcome by alcohol. She
may well have been operating in an intoxicated but competent state up until the
inference that she had reached that point of intoxication. Neither Ms. Doe’s
sister nor her friends viewed her as excessively intoxicated in the manner that
they viewed Trea. In addition, none of them reported any of the “bobble-heady”
symptoms that Ms. Doe had previously displayed when excessively intoxicated.
Finally, the DNA evidence supports the inference that Ms. Doe cooperated in
that appellant was or should have been aware that her capacity to consent had
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been overcome by alcohol. This count of conviction must be vacated as well.
The facts and argument in support of this claim track that of Argument C,
above, but are even stronger in light of the undisputed evidence. As noted in
intoxication on Ms. Doe’s part at the time that she and appellant left the party
together. That same evidence is clear and undisputable that she was not
unconscious at the time that she and appellant left the party together. There was
no testimony that appellant carried her away from the party. She walked of her
own volition and under her own power with appellant for approximately 116
feet, evidence that refutes an inference that she was unconscious at that point.
unconscious at or before the time of the sexual conduct that included the
fingering. The DNA testimony from criminalist Lee supports an inference that
Ms. Doe was conscious at the time that the fingering occurred and assisted in
reasonable doubt.
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The testimony of the two Swedish graduate students is that appellant was
“thrusting” when they arrived, and that activity is physically incompatible with
which it is more likely than not according to the available evidence that Ms.
Doe was conscious. For these reasons, Count 3 must also be vacated for
insufficiency, of the evidence to support the charges. See Argument II, supra.
The odds favoring the prosecution’s gamble increased significantly when the
Cal.4th 1113, 1159. Banks found error in the trial court’s failure to enforce
“[t]he rule that juries must be instructed on lesser included offenses.” The
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stated offense on one hand, or complete acquittal on the other.” Id. at 1159. The
chosen by the prosecution, that is neither harsher nor more lenient that the
1160. “So long as the prosecution has chosen to allege a way of committing the
substantial evidence that the defendant committed the lesser offense without
also committing the greater, the trial court must instruct on the lesser included
included offense instructions is that “[t]ruth may lie neither with the defendant’s
defendant is guilty of the offense charged, but at a point between those two
B. Summary of Facts.
instructions between court and counsel were conducted off the record in
chambers. See 2 CT 425 [“Off the record, the above listed counsel are present
to meet with the Court in chambers to review and discuss jury instructions”].
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That is the only entry in the Clerk’s Minutes from March 24, 2016. The
Reporter’s Transcript for March 23 states that “tomorrow we are also going to
Friday, March 25, begins with the court’s summary of the discussions the day
proposed jury instructions,” and “we’ll continue to discuss the jury instructions
with respect to – and eventually, we’ll put on the record the substance of our
discussions.” 10 RT 923. The court noted that it had given counsel a draft of
proposed jury instructions the day before and reiterated that there would be
1048. 2 CT 4468.
the court reviewed its list of instructions in comparison to the prosecutor’s list,
the court indicated it would give all the instructions requested by the People,
plus additional instructions that the court believed were required. Among the
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matters discussed were the People’s request for a pinpoint instruction regarding
998. The trial court gave that instruction. 2 CT 444 – “Penetration of the
genital opening refers to penetration of the labia majora, not the vagina.” The
trial court agreed to give the defense pinpoint instruction with modifications. 11
RT 1031.
1036-1037. The trial court asked whether there was “any objection to the
court’s current proposed jury instructions that counsel have,” and neither
given to the jury are found at 2 CT 435-446, and there are no instructions on
lesser-included offenses.
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C. The Trial Court’s Errors in Failing to Provide Lesser-Included
Offense Instructions.
unconscious person.” The jury was instructed with the elements that the
To prove that the defendant is guilty of this crime, the People must
prove that:
The jury was also instructed that “[s]omeone commits an act willfully
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when he or she Ms. Does it willingly or on purpose.” The jury was further
instructed in the judicial gloss to this and the simple assault statute, Penal Code
section 240 that “[t]he terms application of force and applied force mean to
“Making contact with another person, including through his or her clothing is
enough,” and “[t]he touching does not have to cause pain or injury of any kind.”
CALCRIM 890. The elements of simple assault under Penal Code section
240 are set forth in CALCRIM 915, and are identical to the first four elements
of assault with intent to rape as charged here. 7 Thus, simple assault and assault
7
915 Simple Assault (Pen. Code, § 240)
The defendant is charged [in Count ] with assault [in violation of Penal Code
section 240].
To prove that the defendant is guilty of this crime, the People must prove that:
• 1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
• 2. The defendant did that act willfully;
• 3. When the defendant acted, (he/she) was aware of facts that would lead
a reasonable person to realize that (his/her) act by its nature would
directly and probably result in the application of force to someone;
[AND]
• 4. When the defendant acted, (he/she) had the present ability to apply
force to a person.
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with intent to rape are identical overlapping offenses, with the exception that
Penal Code section 220 entails an additional intent element, the intent to
within the greater charge of assault with intent to commit rape. An instruction
the greater offense of assault with intent to rape where either (1) the
composed of reasonable persons could conclude that the lesser offense, but not
the greater, was committed.” Id. at 162. The Supreme Court emphasized the
underlying policy that “When the evidence suggests that the defendant may not
be guilty of the charged offense, but only of some lesser included offense, the
jury must be allowed to consider the full range of possible verdicts – not limited
verdict is no harsher or more lenient than the evidence merits.” Id. at 160.
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Breverman confirmed that “[i]n deciding whether there is substantial evidence
of a lesser offense, courts should not evaluate the credibility of witnesses, a task
for the jury.” Finally, “the sua sponte duty to instruct on lesser included
offenses…arises even against the defendant’s wishes, and regardless of the trial
sex act under Penal Code section 220. People v. Carapeli (1988) 201
Cal.App.3d 589, 595 [“The court correctly instructed the jury that simple
assault is a lesser included offense in both assault with intent to commit rape
Cal.App.4th 298 [“In as much as an assault with intent to commit forcible oral
copulation [Penal Code section 220] is merely a simple assault committed with
specific intent to force the victim to perform oral copulation [citation], simple
evidence concerning the nature of the offense against Teresa found that there
In addition to Penal Code section 220, there are other Penal Code
provisions that define various sorts of aggravated assault, often related to the
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status of the victim. Where the evidence regarding the aggravating element
presents a question of fact for the jury, the court must instruct sua sponte on
simple assault. People v. Hood (1969) 1 Cal.3d 444, 450 reversed the
conviction for assault with a deadly weapon on a police officer for failure to
instruct on the lesser offense of assault with a deadly weapon. The evidence
raised a question of fact whether the officer involved was properly performing
his duties at the time of the incident. “It was therefore error for the court to fail
“lesser included offenses,” and prominently displayed are “simple assault” with
a citation to Penal Code section 240 and a citation to People v. Greene, supra.
Thus, the trial court had ample notice of the need to instruct on simple assault.
There are other Penal Code sections that have parallel provisions to
simple assault (Penal Code section 240) and aggravated assault (Penal Code
offenses applies. People v. Hayes (2006) 142 Cal.App.4th 175 reversed a felony
conviction for battery with injury on a probation officer (Penal Code section
243, subd. (c)(1) for failure to instruct sua sponte on the lesser included
section 243, subd. (b). Section 243, subd. (f)(5), defines “injury” as “any
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physical injury which requires professional medical treatment,” and
“[a]reasonable jury could conclude that the injury to Phillips was not severe
Appeal concluded that because “the record contains substantial evidence that
would absolve appellant of battery with injury but justify conviction of the
lesser included offense of battery without injury,” the trial court erred in failing
against Ms. Doe, without any intent to have sexual intercourse with her.
Breverman notes that it is not within this Court’s purview to evaluate the
evidence is ‘substantial’ in this context, a court determines only its bare legal
sufficiency, not its weight,” People v. Breverman, supra, 19 Cal. 4th at 177.
two types of sexual conduct, both of which inherently fell “short of” sexual
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intercourse, People v. Craig, supra. The fact that appellant remained fully
clothed during both types of sexual conduct clearly calls into question whether
he had an intent to engage in sexual intercourse, if not negating any such intent
entirely. Because the record contains substantial evidence that tends to absolve
appellant of the intent to rape element of Penal Code section 220, that would
justify conviction of the lesser included offense of simple assault, Penal Code
section 240.
supra – “error in failing sua sponte to instruct, or to instruct fully, on all lesser
included offenses and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under Watson,” such that “[a]
of error only if, ‘after an examination of the entire cause, including the
evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the
defendant would have obtained a more favorable outcome had the error not
People v. Hayes, supra, found reversible error for reasons that apply
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reasonably probable that appellant would have obtained a more favorable
outcome if the jury had not been presented with an unwarranted all-or-nothing
choice between conviction of the charged offense and complete acquittal,” 142
Cal.App.4th at 183. Noting that the evidence regarding the seriousness of the
injury was equivocal, the Court of Appeal concluded that it was “therefore
likely that the jury would have returned a guilty verdict on the lesser included
offense had the jury been given that option” and “[t]he judgment, consequently,
In sum, the law of California is well settled that in any prosecution for
any charge of aggravated assault, that is the crime defined by an assault with an
additional element relating to either the identity of the victim, the means of
sufficiently uncertain as to present a question of fact for the jury; or (2) the
harboring the aggravating mental state. The failure to instruct was clearly
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2. The court’s error in failing to instruct on lesser-included
offenses as to Counts 2 and 3.
CALCRIM 1047 and 1048 set forth the elements of “sexual penetration
respectively. The first two elements are identical – “(1) the defendant
committed an act of sexual penetration with another person; and (2) the
prevented the other person from resisting the act,” and CALCRIM 1048
requires proof that “[t]he other person was unable to resist because she was
The fourth element in each is that the defendant knew that the other
lesser-included offenses: (1) assault (Penal Code section 240); (2) attempted
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and (3) battery (Penal Code section 242). The case law confirms that these are
all lesser-included offenses. See People v. Ortega (2015) 240 Cal.App.4th 956,
965 [“The court instructed the jury on forcible sexual penetration [Penal Code
section 289] and the lesser included offenses of attempted sexual penetration by
force (§§ 664, 289, subd. (a)(1)), assault with intent to commit sexual
penetration by force (§§ 220, subd. (a), 289, subd. (a)(1)), simple battery (§
that there was an issue as to whether “sexual penetration” occurred within the
meaning of the two charges – “[t]he People, when they cited or requested a
pinpoint instruction, they cited a case directly on point that explained the word
instruction, 2 CT 433, “to help explain to the jury what penetration means.”
Appellant had stated to Det. Kim in his initial statement and during the
course of his testimony that he had “fingered” Ms. Doe. The term “fingered” in
a sexual context does not have a precise definition in colloquial English, and is
not synonymous with the “digital penetration” element of Penal Code section
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289. The Online Slang Dictionary defines “finger” when used as a verb in a
sexual sense as “to stimulate the female genitals with a finger,” and provides
definition obviously includes but does not necessarily entail stimulation that
includes penetration.
Q: When you say “fingered her,” did you put a finger from your
hand into her vagina?
Q: Okay. And it’s your testimony that you fingered her for
how long?
A: A minute.
A: Yes.
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Defense counsel neither conceded nor disputed the allegation of digital
There will be people, as Ms. Kianerci told you, who come upon the
scene later when they’re out on the ground. They don’t see any
sexual activity at all. They don’t see digital penetration.
Augmented Reporter’s Transcript, p. 12 (hereafter “ART”).
the recording of his interview with appellant and played it to the jury. 10 RT
964. In that interview, appellant states that “I fingered her.” 3 CT 595. Det.
Officer: ‘Cause, um, obviously you weren’t there them um, we got
to you. Um, and when you uh, you said that you, you fingered her
–
Turner: Mm-hmm.
Turner: No.
Officer: You know, play with her breasts, or uh, anything else,
‘cause her, her clothing was a little bit disheveled.
Turner: Uh, I mean, yeah, I guess I, like, felt her, like using my
hands on her breasts a little bit. 3 CT 598.
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Officer: So was there at any point, when she just stopped
responding to you, where she stopped kissing you, or –
Turner: No.
other statements and testimony that he was quite intoxicated and at the time of
his 6:30 a.m. statement on January 18, the events of the previous night were
Officer: Or did you just, you met her there during the party?
Turner: No.
Officer: Nothin’? Okay. Um, at that point when you guys started
hooking up, how well do you remember that?
Turner: Uh, I mean not that well, but like it was, I mean, and it’s
just kind of a blur, but it seemed like we were just kind of hooking
up. 3 CT 596-97 (emphasis supplied).
At the same time, appellant was explicit that he never had any intent to
rape her – “I mean, like I’ll just, like literally my intentions were not to try and
rape a girl, like, without her consent last night. Like, I was just trying to hook
up with a girl.” 3 CT 604. When asked about how intoxicated he was, Det. Kim
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asked, “So you weren’t like plastered, no,” to which appellant responded “No, I
mean, I, like I, it, I, it’s fuzzy, but like I remember it.” 3 CT 607.
could:
Now, there were certain things in this trial that are undisputed.
You’re probably going to get bored hearing about it because it’s
clear that the parties are not disputing them. Number one, it’s
pretty much not disputed that he digitally penetrated her vagina
with his fingers. The physical evidence supports that. He admitted
that. So that makes your job a little bit easier.
It’s also undisputed that she was .24, almost three times the legal
limit. It’s undisputed that she had made a – left a voicemail for her
boyfriend, Lucas, without any memory of that. She admitted that.
We don’t dispute that. 14 RT 1065 (emphasis supplied).
permission, “Can I finger you,” and later “told Det. Kim about the fact that he
fingered the girl that he was on top of.” 14 RT 1095. The prosecutor argued,
“We know from Brock Turner and from the DNA evidence that he put his
testimony that Ms. Doe’s DNA was found under appellant’s fingernail, but Mr.
Lee did not testify that the DNA sample necessarily came from Ms. Doe’s
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vagina, as opposed to a skin fragment from any other part of her body.
Appellant had testified that he and Ms. Doe were holding hands as they walked
away from the party, that he took off her underwear, and had other contact with
DNA was not found in the vaginal swab taken from Ms. Doe.
Craig Lee, the DNA expert, confirmed exactly what Brock had told
Det. Kim in the first interview, that he fingered [Jane]. And the
proof is, because under his fingernail on his right hand, there was
[Jane’s] DNA. It’s exactly consistent with what he told Det. Tim
at first – Det. Kim – excuse me. 11 RT 1116.
The fingernail DNA Ms. Does not in any way “confirm” that appellant
As noted above, appellant could have acquired that DNA skin fragment when
he was holding hands with Ms. Doe, when he was taking off her underwear, or
Det. Kim, using throughout the term “fingering,” without either expressly
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I suggest to you that you have an eminently reasonable conclusion
here that Brock Turner did what he admits doing. He put his finger
in the vagina of ‘Jane’. It was never his intent to rape her. And he
did it when she was consenting, conscious, and there was no way
he could have believed from what he saw and heard that she wasn’t
capable of consenting at that time. 11 RT 1128.
Based on this evidence and argument, the jury certainly had questions as
to whether digital penetration had occurred. The jury first asked for a readback
464, which were the vaginal photographs, 2 CT 479. The jury then asked a
If the defendant did not know or mistakenly believe his act was not
penetration dies it negate the required mental state to commit the
crime under Count 3. 2 CT 465.
The jury clearly had questions with respect to the penetration issue for
The trial court responded by requesting clarification and sent the jury a
note: “Is the question accurately rephrased as: If the defendant did not know his
act was penetration, or if the defendant mistakenly believed his act was not
penetration, does it negate the required mental state to commit the crime under
8
The trial court unfortunately failed in its response to these critical questions
that arose during deliberations. See Argument V, infra.
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Count 3? Please respond in writing on a juror question form.” 2 CT 466. The
trial court’s response was not a “rephras[ing]” of the question; rather, it was a
verbatim reiteration of the jury’s original question, and the jury responded with
The jury sent another follow-up question with respect to the penetration
issue:
The trial court responded with the standard instruction that “sexual
the other person,” and “refers to penetration of the labia majora, not the
vagina.” 2 CT 470.
The jury was clearly debating whether the evidence proved beyond a
“penetration” within the meaning of the statute, or, implicitly, whether it was
merely exterior massaging. The fact that the jury had multiple questions
regarding the penetration issue demonstrates that the evidence had raised
offenses, at a minimum, simple assault and simple battery. The jury could well
have been debating whether appellant’s testimony established only that he had
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“stimulat[ed] the female genitals with a finger” in a manner that fell short of
digital penetration. The jury could have assimilated all of the evidence,
97, viewed his testimony on this point as not particularly reliable, and found
itself on the fence as to whether the prosecution had proved that only he had
been groping around Ms. Doe’s vaginal area, without necessarily penetrating it.
The trial court erred in not instructing on assault with the intent to
commit digital penetration, simple assault, battery, and sexual battery. People v.
Ortega, supra. The jury could have viewed the evidence as establishing beyond
a reasonable doubt that appellant intended to stimulate Ms. Doe’s genitals with
his finger, but had significant doubts whether the evidence proved beyond a
jury with an alternative to convicting appellant of the very serious charges that
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situation where a sober complaining witness testifies unequivocally as to a
particular sex act, and the defendant acknowledges the sex act but claims
consent. Under that type of circumstance, the defendant is either guilty of the
offense as charged or not guilty at all. See People v. Elam, above, supra. In
what happened, and there was a defendant with a blurry recollection of what
happened, the combination of which left the jury with major evidentiary
same time, the jury was forced into “an all-or-nothing choice between
other.” People v. Banks, supra, 59 Cal.4th at 1159. Had the jury been given
lesser included offenses, it is reasonably likely that they would have returned a
The site of the sexual contact in this case was an open area adjacent to
shaded by pine trees, typical of the sylvan Stanford campus. The site was
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approximately 116 feet from the Kappa Alpha patio from which appellant and
Ms. Doe left together at approximately 12:30 a.m., and walked along a path
toward appellant’s dorm room in Lagunita residence. The specific area where
Ms. Doe was found passed out was strewn with pine needles, as are many parts
of the campus. As Deputy Sheriff Taylor testified, Ms. Doe was found in an
usually kept. On this night, the dumpster was out of the enclosure and not in
the immediate proximity of the site where Ms. Doe was found. Deputy Taylor
stated that she was “lying on the ground” in a position where “[h]er head was
closest to the dumpster enclosure and her feet were furthest away from it.” 4 RT
81. He elaborated that she was “[d]irectly center behind the shed.” 4 RT 91.
The photograph of the scene clearly depicts the spot where Ms. Doe was
found in between the basketball court and one side of wood-slatted dumpster
enclosure. 2 CT 505; 511. The dumpster was not in Ms. Doe’s immediate
proximity, but was off to the side of the wooden enclosure, about 20-30 feet
away. The dumpster had no connection to the site where the sexual conduct
occurred other than as an incidental terrain feature that Deputy Taylor had to
walk past en route to the actual place where Ms. Doe was found.
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When asking various witnesses about their observations at the site, the
prosecutor referred to the dumpster 46 times, and in 10 of those, 9 she used the
witness. Her closing argument was rife with the refrain that the incident had
intent on appellant’s part to shield and sequester his activities with Ms. Doe
from the view of others; and (2) it implied moral depravity, callousness, and
B. Summary of Facts.
The schematic diagram of the area drawn by Det. Kim and introduced as
Exhibit 1 provides an overview of the area. Exhibit 1. The dashed lines mark
the path that the two graduate students traversed on their bicycles as they
approached the site where appellant and Ms. Doe were. The “v” represents the
9
See 4 RT 79; 5 RT 151; 9 RT 823; 876; 882; 886; 894; 896; 904; and 907.
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place where the point where Ms. Doe was found passed out. The three-sided
rectangle represents the slatted wood structure in which the dumpster was
usually positioned. The dumpster itself was on the far side of the rectangular
structure. From the perspective of eyewitnesses Arndt and Jonsson, Ms. Doe
was clearly in front of the dumpster, not in any way “behind” it.
Deputy Taylor was the first law enforcement officer on the scene, and
was called as the prosecution’s first witness to orient the jury to the area where
Deputy Taylor had testified that he had parked near the access driveway
he approached the scene from that direction, he first encountered the dumpster
and had to walk around it before he reached Ms. Doe. 4 RT 78. From that
perspective, he “came down on the right side as I was facing the dumpster and
Deputy Taylor was then asked to “describe when you first saw the body,
10
Deputy Taylor used the phrase, “the backside of the dumpster” based on
where the hinges of the lid were located, as opposed to the side of the dumpster
where the lid opened.
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down behind the dumpster. Her head was closest to the dumpster
enclosure and her feet were furthest away from it. 4 RT 81
(emphasis supplied).
dumpster was adjacent to a three-sided wooden structure with no top that was
bicycles also parking there, which is probably why this dumpster is moved to
the left.”
The testimony of graduate students Carl Arndt and Peter Jonsson was
clear that they approached the site where Ms. Doe was found from the
basketball court, the opposite side that Deputy Taylor approached from, and
that the site was entirely in the open. See Statement of Facts, section B-3,
supra. The photographs that they referred to are clear that Ms. Doe was in the
open, between the basketball court and one side of the wooden dumpster
enclosure, with the dumpster itself virtually out of view. Exhibits 22-17; 2 CT
502-512.
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2. The prosecutor’s exploitation of the “behind-the-dumpster”
image to prejudice the jury.
the dumpster” into her questioning of virtually all of the eyewitnesses, and
clear in their markings of the photographs of the area that Ms. Doe was in front
of the open wooden fence structure in which the dumpster was usually situated.
Exhibits 26 and 27, 2 CT 510 - 513 clearly illustrated the completely open
questions to them. The prosecutor asked graduate student Arndt “Was there
anything blocking your view when you first were alerted to the couple behind
the dumpster by Peter,” and he answered, “No.” The prosecutor responded, “So
any trees between you and the couple when Peter first alerted you to their
location,” and he answered, “No. No.” 5 RT 151. The jury was not looking at
the exhibit photos during that testimony, but was instead hearing the phrase,
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Q: Okay. So I’m trying to understand. Where was she lying in
relation to the dumpster?
Q: Okay.
A: Dumpster.
A: Than?
A: Yeah. 5 RT 168.
here, because from Mr. Arndt’s personal perspective as he approached Ms. Doe
was that she was, if anything, in front of the dumpster, i.e., she was between
Arndt and the dumpster enclosure. As Deputy Taylor so clearly stated, “[h]er
head was closest to the dumpster enclosure,” 4 RT 81, and the dumpster itself
was clearly farther away, if not out of sight. However, after the prosecutor fed
Mr. Arndt the “behind the dumpster” line, he regurgitated it back to her.
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Her cross-examination of appellant was similarly loaded with the “behind
Q: It’s your testimony today that you took the path behind a
dumpster that was a shortcut, true?
A: Yes. 9 RT 876.
***
Q: You didn’t hear her say, Hey, it’s cool. I wanted him to
finger me behind the dumpster?
A: No. 9 RT 882.
***
***
***
Q: And you couldn’t tell him [Det. Kim] the story about how
you met the girl that you fingered behind the dumpster? 9
RT 896.
***
***
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Q: You admit you were with Jane behind the dumpster and you
took off her underwear. 9 RT 907.
When the prosecutor argued the case to the jury, she characterized Ms.
because of this:
Ladies and Gentlemen, what you do in the dark that puts you into
the light. We’re here today because Brock Turner made a series of
calculated decisions in the dark. He decided to take advantage of a
girl when no one was looking, in an isolated area, all in an effort to
hook up. All in an effort to please himself. 11 RT 1061-1062
(emphasis supplied).
incident:
Now, there are two Brock Turners that you’ve been exposed to in
this trial. There’s a Brock Turner that comes from a good family,
that has people come in and say what a great guy he was, character
witnesses. And there is the Brock Turner that was on top of a
lifeless [Ms. Doe] on the ground behind the dumpster and
effectively had to be pulled off by two innocent people. 11 RT
1064 (emphasis supplied).
statement and told you that Mr. Turner is the only one that can tell you what
happened in those moments when they were behind the dumpster.” 11 RT 1064
(emphasis supplied). See also 11 RT 1066 – “And the last question you must
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answer is, whether she was unconscious and he knew that she was unconscious
when he did these acts to her behind the dumpster” (emphasis supplied).
“That means she must be able to appreciate that, once she’s back there behind
the dumpster, that he’s intending to either penetrate her with his finger or his
penis, and she understands what that means.” 11 RT 1069 (emphasis supplied).
– “You have Peter, who is also not drunk, also saw the first couple and kind of
shrugged it off, also saw the defendant behind the dumpster with – on top of
[Jane], also didn’t jump to conclusions, gave him the benefit of the doubt.” 11
possibility that appellant was merely unlucky that Ms. Doe passed out at the
time she did – “Now, defendant is not the most unlucky man that happens to
hook up with a totally willing chick behind the dumpster that he just met,” who
“all of a sudden, when these two guys interrupt, she just goes blackout cold for
Kim was fabricated because it would have “clicked in his brain that this is a
pretty serious situation” – “I better have a good explanation of why I was on top
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of a half-naked girl who happened to be passed out behind the dumpster on the
appellant’s character:
Defense counsel did not object to any of this, but in his argument to the
jury, he used the phrase “in front of the dumpster” when describing the site of
concluding segment – “Fact of the matter is that most of the people testified that
when they found [Jane]’s body laying [sic] there behind the dumpster, the party
prosecutors have wide latitude to draw inference from the evidence presented at
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People v. Purvis (1963) 60 Cal.2d 323, 343. The standard of review under the
pattern of conduct so egregious that it infects the trial with such unfairness as to
Cal.4th 101, 129 explained that prosecutors commit misconduct under state law
about the strength of the serological evidence tying the defendant to the murder;
manner that “creat[ed] jury confusion over the two knives,” such that “the
prosecution gained an unfair advantage.” Id. at 825. Thus, Hill recognized that
misstating the evidence can occur both in the manner by which a prosecutor
formulates a question to witnesses, and also the manner in which the prosecutor
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reversal of a conviction, the cumulative effect of a pattern of such conduct
Defense counsel did not object to either the prosecutor’s use of the phrase
“behind the dumpster” in questioning witnesses nor the use of the phrase in the
timely fashion – and on the same ground – the defendant made an assignment
impropriety.” Id. at 820. However, Hill noted various exceptions to that rule,
including a case where “failure to request a jury be admonished does not forfeit
the appeal if ‘an admonition would not have cured the harm caused by the
misconduct’.” Ibid. The Supreme Court found that defense counsel had
objected to some instance of prosecutorial misconduct but not others. The trial
The prosecutor’s conduct in this case may not have the glaring
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sufficiently pervasive and insidious to render the trial fundamentally unfair. As
description of the site of the sexual conduct as “behind the dumpster” into her
dilemma. He may have sensed that the prosecutor’s repeated reiterations of the
“behind the dumpster” motif were harmful, but at the same time been uncertain
Deputy Taylor’s initial use of the phrase, so when the prosecutor began
incorporating it into her questions, what meritorious objection would have come
The case law recognizes that prosecutorial misconduct may take the form
established that the prosecuting attorney may not interrogate witnesses solely
‘for the purpose of getting before the jury the facts inferred therein, together
with the insinuations and suggestions they inevitably contained, rather than for
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the answers which might be given’.” People v. Wagner (1975) 13 Cal.3d 612,
propaganda, incompatible with the facts in the record but all too likely to
That was the prosecutor’s intent in this case, but the improper
manipulation would not have been apparent on the first few occasions that the
prosecution interject the phrase “behind the dumpster” into her questions. Once
indoctrinate the jury toward a view of the evidence that was adverse to
appellant, as contrived as that view may have been, the damage had been done
and any judicial admonishment “would not have cured the harm caused by the
prove in light of the available evidence. The weight of the evidence was that
appellant did not to have sexual intercourse with Ms. Doe, but rather to engage
charges, there were no eyewitnesses as to Ms. Doe’s condition at the time the
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feet, from the patio of the Kappa Alpha party to the wooded area next to the
basketball court if she had not been able to consent. She certainly could not
have been unconscious if she ambulated with appellant for that distance, and the
mischaracterizing the evidence in a manner that made appellant look more like
a calculating predator, and made Ms. Doe look more like a vulnerable victim.
The image that the sexual contact occurred “behind the dumpster” implies a
the last 50 years in which two enamored young people elected to express their
1091, 1098 [“Dejourney put his arm around Krystina’s shoulder and walked at a
fast pace that she could not control, essentially dragging her to a fenced
dumpster area behind the businesses,” where “he opened the gate and closed it
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after they entered, placed his coat on the ground and told her to get down,”
The prosecutor’s campaign to instill in the jury the image of the offense
11
See also People v. Kipfer (Ill.App. 2005) 356 Ill.App. 3d 132 [lurking out of
sight before committing some heinous crime]; to perpetrate a sex offense,
People v. Sutton (Ill.App. 1993) 252 Ill.App.3d 172, 177 [police officer
“observed a man jump from behind a garbage dumpster and run past his patrol
unit,” at which point the officer “approached the dumpster at which time he
observed a female sitting on the ground crying” with “her pants and
underwear…pulled down to her ankles”]; see Phillips v. State (Ark. 1996) 327
Ark. 1, 2 [“just as [the 10-year-old victim] was passing some trash dumpsters
behind the cafeteria of the high school, the man grabbed her, placed his hand
over her mouth, dragged her behind the dumpsters, and through her down on
the ground” where he raped her]; People v. Geiger (1984) 35 Cal.3d 510, 516 [a
police officer who responded to a reported burglary at 3:00 a.m. “saw defendant
emerge from behind a dumpster in an alleyway or yard and approach another
officer with blood on his hands, apparently from the broken glass point of
entry]; People v. Robbins (1988) 45 Cal.3d 867 [defendant put the murder
victim’s body in a dumpster, lighted a fire, and left]; and People v. Ochoa
(1998) 19 Cal.4th 353, 381-82 [the complaining witness testified that “she was
returning to her apartment shortly before midnight” when “defendant grabbed
her from behind” and “forcibly took her behind a garbage dumpster,” where he
demanded money and subsequently raped her a few blocks away]. This
sampling of felonious activity reported to have occurred “behind a dumpster” is
illustrative of a much larger body of unpublished decisions in which
comparable felonious activities occur in the immediate proximity of a dumpster.
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Stanford Law Professor Michele Dauber, who was recruited by the prosecutor
probation officer. Professor Dauber, writing to the court in her “private and
personal capacity,” noted that she had “known the victim in this case extremely
well for more than 10 years,” and that as a Stanford Law Professor, she had
Court, the offense under consideration was not “substantially less serious than
sentencing purposes was diametrically different from what the prosecutor had
12
The People’s Sentencing Memorandum is found at 3 CT 691 - 719. The
Sentencing Memorandum refers to Ms. Dauber’s letter at 3 CT 707 as Exhibit
15, but none of the People’s exhibits are included in the CT.
13
See https://law.stanford.edu/directory/michele-landis-dauber/.
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emphasize in the Sentencing Memorandum. The prosecutor wrote that appellant
“purposefully took her [Ms. Doe] to an isolated area, away from all of the party
goers, to an area that was dimly lit, and assaulted her on the ground behind a
testimony.
emphasized the “public” nature of the offense – “He degraded and humiliated
her by assaulting her in public,” noting that “[p]assersby could observe the
having occurred both in a hidden and sordid place behind a dumpster, and in a
Dauber correctly characterized the factual setting of the incident, i.e., that it
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Judge Persky, to his judicial peril, did not accept either of the mutually
apparently recognizing the factual flaw in the People’s position and the analytic
flaw in Ms. Dauber’s position,15 and followed the more tempered and tenable
questions to witnesses and in her argument to the jury in this case must be
/
/
14
After sentencing, Ms. Dauber immediately launched the campaign to recall
Judge Persky. See http:/www.latimes.com/opinion/opinion-la/la-ol-stanford-
rape-dauber-turner-judge-persky-20160701-snap-story.html. [“Alongside
campaign manager John Shallman, Dauber is now leading the charge for voters
to remove Persky from the bench – to “recall” him – in response to this
ruling.”].
15
Penal Code section 1203.065(b) and Rule 4.413 of the Rules of Court permit
a grant of probation where the crime is “substantially less serious than the
circumstances typically present in other cases.” Ms. Dauber argued that “when
compared with many other assaults on campus” “[t]he facts here are in some
ways especially egregious.” Exhibit 15, p. 2 (emphasis supplied). The
provisions of the Penal Code and the Rules of Court clearly envision a
comparison between the circumstances of the case at bar and the general
category of other convictions under the same Penal Code provisions in the
jurisdiction at large, not a comparison to the subcategory of “other assaults on
campus” to which Ms. Dauber limited her comments.
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V. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR
TRIAL BY THE TRIAL COURT’S FAILURE TO ADEQUATELY
RESPOND TO A CRITICAL JURY QUESTION DURING
DELIBERATIONS.
A. Summary of Facts.
occurred. The jury first asked for a readback of the testimony of SART nurse
If the defendant did not know or mistakenly believe his act was
not penetration does it negate the required mental state to
commit the crime under Count 3. 2 CT 465.
The jury clearly had a serious question with respect to the penetration
issue for which they sought clarification from the court. At the same time, the
paragraph 1048A,” and phrased the question in terms of “the” mental state for
Count 3. However, there were three mental states that the prosecution had to
prove to convict on Count 3: (1) the general intent to commit the act of
penetration; (2) the specific intent to commit the act for “the purpose of sexual
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abuse, arousal or gratification”; and (3) the knowledge that the other person was
general statement of the mistake of fact doctrine, but subsequently refers only to
regarding penetration, a different mental state than the one addressed by the
instruction. The trial court was obligated to clarify what the jury actually
The trial court recognized that the question was unclear, but the court’s
response to the jury was not framed in a manner to elucidate the anomaly or
ambiguity in the question. The court did not call the jurors in to ask what they
The trial court’s response did not ask for clarification the
penetration/mental state issue that was clearly was clearly on the jury’s mind,
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If the defendant did not know his act was penetration, or if the
defendant mistakenly believed his act was not penetration, does it
negate the required mental state to commit the crime under Count
3.” 2 CT 467.
The trial court then answered the jury’s re-formulated question with an
definition of “penetration” in the section 289 charges, 2 CT 469, and the trial
court responded with an expanded version of the pinpoint instruction that had
16
The original instruction read “[p]enetration of the genital opening refers to
penetration of the labia majora, not the vagina,” 2 CT 444. The expanded
version read “Sexual penetration means penetration, however slight, of the
genital or anal opening of the other person for the purpose of sexual abuse,
arousal or gratification. Penetration of the genital opening refers to penetration
of the labia majora, not the vagina. Penetration of the external genital organs is
sufficient to constitute sexual penetration,” 2 CT 470.
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Penal Code section 1138 sets forth the trial court’s responsibilities when,
inter alia, a deliberating jury asks for guidance regarding a jury instruction:
(9th Cir. 1997) 130 F.3d 833, The trial court in this case committed three errors
with respect to the jury’s question penetration and the accompanying mental
state element.
1. The trial court erred in failing to bring the jurors into open
court to address their question.
informed on any point of law arising in the case,” they must be brought into
open court to address their question. The trial court in this case failed to bring
the jury into open court, and failed to obtain any waiver from counsel and
appellant for this breach of statutory procedure. The case law confirms that the
statute means what it says, must be followed unless there is an explicit waiver.
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People v. Hawthorne (1992) 4 Cal. 4th 43, 69, confirmed that” Penal Code
section 1138 requires that any questions posed by the jury regarding the law or
the evidence be answered in open court in the presence of the accused and his
appropriate response to the jury’s question, and equally for the jury to be heard
into section 1138, but was scuttled in this case by the trial court’s
manifest prejudice accruing from this error in that the trial court’s written
communications never clarified what it was that the jury actually wanted to
know, such that the trial court’s written response was both off-point and
Obviously, the most efficacious means to that end is to call the jury into open
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court and ask the foreperson directly to explain any apparent anomalies or
the jury’s question. The trial court here did not do that, but merely restated the
question with slightly altered phraseology, leaving the apparent anomalies and
ambiguities unresolved.
McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 granted relief to a
ascertain the crux of the jury’s concern and to provide a useful answer to a mid-
penalty trial believed that the factors viewed by the twelfth juror as mitigating
were not proper under the jury instructions, and requested guidance. The trial
The Ninth Circuit found constitutional error because, inter alia, “the trial
judge did not identify the exact problem confounding the eleven jurors,” and
prescription for such confusion is that ‘when a jury makes explicit its
difficulties a trial judge should clear them away with concrete accuracy’,” citing
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Bollenbach v. United States (1946) 326 U.S. 607, 612-13. See also Davis v.
Greer (7th Cir. 1982) 675 F.2d 141, 145 [Bollenbach places on the trial judge
“a duty to respond to the jury’s request with sufficient specificity to clarify the
jury’s problem”].
The Ninth Circuit was particularly critical of the trial judge for not
making an effort to elicit directly from the jurors what the crux of their
parting inquiry about whether he had answered their question proves little”
because “[t]he response was perfunctory” and “came without conversation with
the rest of the jurors and before the jurors had any opportunity further to study
the instruction to which the court had referred,” id. at 839 (emphasis supplied).
The same failure of inquiry infected the proceedings here. The court did
not understand the jury’s questions, but rather than ask the foreman directly in
open court what was meant, the court sent a note that reiterated virtually
verbatim the juror’s question which the court did not understand, and asked the
jury to respond if that was in fact their question. Of course, the jury sent back
the same question in haec verba because the jury had an understanding of what
the question meant, and apparently believed that the question as framed was
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The trial court’s failure to clarify was prejudicial in this case because the
trial court’s purported answer to the jury’s question was not responsive to the
The final component of the trial court’s errors was the failure to provide a
inform the jury that a mistake of fact defense was not viable. “[T]he statute
1212. The trial court attempted but failed to fulfill that mandatory duty in this
case.
conviction for rape by intoxication for providing the jury with a non-responsive
and correctly instructed that one of the elements of rape by intoxication was that
"the alleged victim was prevented from resisting the act by an intoxicating
substance…,” and “after several hours of deliberation the jury asked the court
for the legal definition of ‘resistance’.” The trial court rejected a proposed
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instruction by the defense, and instead in effect told the jury that it was on its
own -- "this is an area in which you must use your common sense and
484. The Court of Appeal held that this was error because there existed legal
context, which was different from the “everyday meaning of resistance” that
connotes physical resistance. The Court of Appeal noted that there was no
handy source for the trial court to fashion an appropriate response to the
question, but “the unfortunate fact that it is difficult to determine the meaning
of Penal Code section 261(a)(3) only serves to explain how the error occurred;
Similarly, this Court found reversible error in the trial court’s failure to
further guidance may not come easily to hand, or is not supplied by counsel,
does not excuse the court from its statutory duty.” People v. Ross (2007) 155
the jury question had expressly focused on the penetration mental state. That
was a breach of the court’s duty to “honor the [jury’s] request” for clarification.
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People v. Miller (1981) 120 Cal. App. 3d 233, 236 [“Only by answering the
jury request does the court fulfill its duty to instruct on those elements of the
Counts 2 and 3. The emphatic “no” of the instruction effectively terminated the
reasonable belief, in violation of state and federal due process. Conde v. Henry
(9th Cir. 1999) 198 F.3d 734 granted habeas corpus relief to a California
petitioner where the trial court had modified a jury instruction that “eviscerated
due process”. Id. at 740, citing In re Winship (1970) 397 U.S. 358. The
Penal Code section 1138 error due to the trial court's failure to adequately
less favorable outcome.” People v. Roberts (1992) 2 Cal.4th 271, 326. In this
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than an abstract possibility,’ of an effect of this kind.” People v. Blakeley
(2000) 23 Cal.4th 82, 99. The standard of reversal for federal constitutional
error is whether “there is a reasonable likelihood that the jury has applied the
It is not possible to attain certainty as to what the jury was really asking
from the text of the questions. In fact, the jury’s question is difficult to
understand in the light of charges and evidence. However, the most likely
the last paragraph of CALCRIM 1048A as a reference point. The first sentence
of that paragraph is “[t]he defendant is not guilty of this crime if he did not have
the mental state required to commit the crime because he did not know a fact or
question – “If the defendant did not know or mistakenly believed his act was
not penetration, does it negate the required mental state to commit the crime
“fingered” Ms. Doe was used in the colloquial sense of “to stimulate the female
genitals with a finger,” without any intent to insert his finger into the female
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In fact, there are three mental states that must be proven in order to
convict under section 289 – the intent to do the act of penetration, the intent to
do it for the purpose of abuse, arousal or gratification, and the knowledge that
the victim is unconscious. The first intent is a general intent, and the jury
That is the most likely meaning underlying the jury’s question, and if so,
the answer should have been an emphatic “yes,” not the flat “no” that was
meaning for the jury’s question that could be correctly answered “no.”
defendant knew that the other person was unable to resist because she was
unconscious of the nature of the act.” That was entirely unresponsive to the
jury’s reference to the last paragraph of 1048A regarding mistake of fact, and it
unconsciousness. A proper instruction would have informed the jury that “if
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knew he penetrated Ms. Doe’s vagina at the time of the incident, you must
acquit him.”
The error and resulting prejudice apply equally to Count 2, because the
actus reus of penetration and the accompanying mens rea as to penetration are
2 and 3 because “there is a reasonable likelihood that the jury has applied the
requests that this Court conduct a review of cumulative prejudice resulting from
the combination of trial errors. there for subject to harmless error analysis that
282 F.3d 1204, 1211 granted habeas corpus relief for cumulative prejudice
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– “Considering the cumulative impact of [the prosecutor’s] misconduct, at both
the guilt and penalty phases of the trial, together with the Carlos error and the
other errors throughout the trial, we conclude defendant was deprived of that
which the state was constitutionally required to provide and he was entitled to
a new trial. When the jury began deliberating in this case, the defense was a an
unfair disadvantage on three fronts: (1) the jury had been deprived of evidence
of his character for honesty and veracity in support of his testimony; (2) the jury
had been deprived of alternative lesser offenses for consideration; and (3) the
instruction and penetration, and combined weight of the errors rendered the trial
fundamentally unfair.
CONCLUSION
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Dated: December 1, 2017.
Respectfully submitted,
_________________________________
ERIC S. MULTHAUP, Attorney for
Appellant BROCK TURNER
_________________________________
ERIC S. MULTHAUP
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DECLARATION OF SERVICE
document in a sealed envelope with postage thereon fully prepaid, in the United
Attorney General
455 Golden Gate Avenue
San Francisco, CA 94102
Brock Turner
[address withheld per Court Rule]
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I declare under penalty of perjury that service was effected on December
1, 2017 at Mill Valley, California and that this declaration was executed on
_____________________________
ERIC S. MULTHAUP
172
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