Opinion
G058094
06-22-2020
THE PEOPLE, Plaintiff and Appellant, v. KENNETH LAWRENCE CHINN, Defendant and Respondent.
Todd Spitzer, District Attorney, and Brian F. Fitzpatrick, Assistant District Attorney, for Plaintiff and Appellant. The Law Office of Brian N. Gurwitz, and Brian N. Gurwitz, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF1867) OPINION Appeal from an order of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Todd Spitzer, District Attorney, and Brian F. Fitzpatrick, Assistant District Attorney, for Plaintiff and Appellant. The Law Office of Brian N. Gurwitz, and Brian N. Gurwitz, for Defendant and Respondent.
Respondent Kenneth Chinn was charged by complaint with three counts of sexual abuse of a child under the age of 14. (Pen. Code, § 288, subd. (a).) At the conclusion of the preliminary hearing, the prosecutor argued the corpus delicti rule did not apply at such hearings. Alternatively, even if it did, sufficient corpus delicti evidence had been presented to warrant the magistrate's consideration of respondent's admissions to hold respondent to answer. (See § 872.) Respondent argued the corpus delicti rule did apply at preliminary hearings, and the prosecution had failed to show sufficient corpus delicti for the magistrate to consider respondent's admissions. The magistrate agreed with the prosecutor on both points and held respondent to answer. In a section 995 motion to set aside the information, respondent renewed his arguments before the superior court. The court agreed and granted the motion.
All further statutory references are to the Penal Code unless otherwise indicated.
The district attorney appeals, contending: (1) The corpus delicti rule does not apply at a preliminary hearing. (2) Even if it does, the evidence adduced at the preliminary hearing here established sufficient corpus delicti that, when combined with respondent's inculpatory statements, provided enough evidence to support the magistrate's order holding him to answer. Ergo, the trial court erred in granting the section 995 motion.
Like every California appellate court to consider the question, including our own, we again find the corpus delicti rule applies at the preliminary hearing. Moreover, here there was an insufficient showing of corpus delicti for the magistrate to consider respondent's statements in determining whether to hold him to answer to the charges he faced. We therefore affirm the trial court's order setting aside the information.
FACTS
Police detective Gloria Scott testified that 24-year-old Jane Doe came to the police department to report possibly being sexually molested by her father, respondent Kenneth Chinn. She told Scott she "didn't have very solid memories of her very early childhood," but thought she was about four years old when this occurred. She had recurring "flashbacks" of being in bed with respondent when she was very young. She remembered wearing gray floral pajamas, and feeling "frozen," very upset, and distressed. She did not recall any touching by respondent — sexual or otherwise — in these recurring "memory flashes." She believed she was about four years old because that was when she recalled wearing those particular pajamas.
She lived alone with respondent at the time because her mother had left them when Jane Doe was only a few months old. When she was about five years old, respondent married Jane Doe's stepmother, who then raised Jane Doe as her own child. Because of this recurring memory about her father, Jane Doe finally asked her stepmother whether respondent had done anything to her when she was young. No details of this conversation were adduced, but it was established that it had occurred about a year before she talked to Detective Scott.
A few weeks before she went to the police station, Jane Doe experienced a disturbing event while having sex with her boyfriend. Her boyfriend was on top of her and Jane Doe suddenly envisioned or "imagined" her father on top of her, not her boyfriend. She stopped, burst into tears, and told her boyfriend she believed respondent had sexually molested her.
Stepmother had accompanied Jane Doe to the police station. Separately, stepmother told Scott she had married respondent when Jane Doe was about five years old and she later had two children with him. She mentioned she was currently in the midst of a divorce and child-custody battle with respondent over one of their children. She said that soon after marrying respondent, she noticed Jane Doe acting "unusual" towards him, and seemed "fixated" on her father's penis. Specifically, Jane Doe would try to peek at respondent's penis under his towel when he left the shower. Stepmother was so disturbed by Jane Doe's behavior that she asked respondent if he had molested Jane Doe. Respondent admitted sexually molesting Jane Doe when she was between three and four years old. He said he was lying in bed and used Jane Doe's hand to masturbate himself. Stepmother told her church elders what respondent had said, but not police. She later told Jane Doe what he said, although not until she was an "adult," and only after Jane Doe had directly inquired. There was no evidence as to exactly when stepmother told Jane Doe, or what she said, but it was before Jane Doe's unusual experience with her boyfriend.
Scott interviewed respondent and he admitted molesting Jane Doe three or four times by using her hand to masturbate himself. This happened over "a period of three or four weeks" when she was about "two years old." He also admitted telling stepmother about the incidents, although he said he never told Jane Doe.
The prosecutor filed a brief arguing the corpus delicti rule does not apply at the preliminary hearing and, even if it does, her evidence would sufficiently establish the corpus delicti of the charged offenses. Respondent disputed both assertions. The magistrate found the corpus delicti rule did not apply at the preliminary hearing, relying on the prosecutor's brief and an unspecified "hornbook [] available to us [] on the bench." The magistrate alternatively found sufficient evidence of corpus delicti independent of respondent's statements, and held respondent to answer.
On respondent's section 995 motion to set aside the information, he again argued his admissions to stepmother and Scott should not have been considered by the magistrate because the corpus delicti of the charged offenses had not been independently established. In response, the district attorney did not contest the applicability of the rule at preliminary hearings, and instead simply "acknowledge[ed] the prosecution must establish the existence of the corpus delicti at the preliminary hearing . . . ." He argued the rule had been satisfied at the preliminary hearing and there was sufficient evidence presented for the magistrate to consider respondent's admissions in making its holding order. The trial court found insufficient evidence of corpus delicti had been presented, and granted the motion.
DISCUSSION
Reviewing Section 995 Rulings
"The function of the magistrate at a preliminary hearing is to determine whether there is 'sufficient cause' to believe defendant is guilty of the charged offense. [Citations.]" (People v. Ramirez (2016) 244 Cal.App.4th 800, 813.) "Sufficient cause" means "'reasonable and probable cause.' . . . [citation.]" (Ibid.) It is shown "'"if a [person] of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused."' [Citations.]" (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) "[S]ection 995 allows a defendant to challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072 (Lexin).) Thus, an information "shall be set aside" if the defendant has been "committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).)
In an appeal from a superior court's order granting a section 995 motion, we disregard the ruling of that court and directly review the underlying determination of the magistrate. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) "Insofar as the . . . section 995 motion rests . . . on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendant[ ] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin, supra, 47 Cal.4th at p. 1072.) We do not substitute our own judgment for that of the committing magistrate concerning the weight of the evidence or the credibility of the witnesses. (People v. Block (1971) 6 Cal.3d 239, 245.) However, "'where the facts are undisputed, the determination of probable cause "constitute[s] a legal conclusion which is subject to independent review on appeal."' [Citations.]" (People v. Black (2017) 8 Cal.App.5th 889, 898 (Black).)
The Substantive Corpus Delicti Rule
We label this the "substantive" corpus delicti rule to distinguish it from the related, but now-abrogated, "evidentiary" component of the corpus delicti rule. Traditionally, the California rule contained two elements: (1) a "substantive rule that a conviction requires some proof, aside from the accused's statements, of the corpus delicti" of the crime (People v. Alvarez (2002) 27 Cal.4th 1161, 1180, italics added (Alvarez)); and (2) a second, evidentiary "prong of the corpus delicti rule that bars introduction of an accused's out-of-court statements absent independent proof a crime was committed." (Id. at p. 1179.) Because of Proposition 8's "truth-in-evidence" provision, "there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Id. at p. 1180; see Cal. Const., art. 1, § 28, subd. (f)(2).) Even so, Proposition 8 did not affect the substantive first prong and "did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court." (Alvarez, at p. 1180.) Thus, a jury must still be instructed that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements. (Ibid.) In addition, on appeal a defendant may directly attack the sufficiency of the prosecution's independent showing. (Ibid.)
In California, the corpus delicti rule is neither constitutional nor statutory. Instead, it finds its origin in the English common law, dating back at least to Perry's Case (1660) 14 Howell's State Trials 1311. There, "three members of the Perry family were hanged, on the strength of the confession of one of the Perry sons, for murdering William Harrison. After the Perrys' execution Harrison reappeared, announcing that he had been kidnapped and carried off to Turkey, and that he eventually escaped and returned to England via Portugal." (People v. Jones (1998) 17 Cal.4th 279, 322 (Jones) (conc. opn. of Mosk, J.).)
Even so, the United States Constitution itself applies a form of the corpus delicti rule to prosecutions for treason: "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." (U.S. Const., art. III, § 3, cl.1.) The drafters included this provision, unusual in the Constitution in that it refers to a substantive crime, because "[t]he [Constitutional] Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge. [Fn.]" (Cramer v. United States (1945) 325 U.S. 1, 15.) California has statutorily followed suit. (See Pen. Code, § 37, subd. (b) [a defendant cannot be convicted of treason "unless upon the testimony of two witnesses to the same overt act, or upon confession in open court . . . ."].)
Thereafter, the British courts created the corpus delicti rule. (See Note, Proof of the Corpus Delicti Aliunde the Defendant's Confession (1955) 103 U.Pa. L.Rev. 638-639 ["[Perry's Case] and similar cases led the British courts to question the sufficiency of confessions to prove that a crime had been committed"].) In Britain, the rule was limited to murder and bigamy. (Id. at p. 640.) But as the rule was adopted in American courts, it was extended to all crimes. (Id. at p. 641.) Some states adopted the rule by statute; others, like California, did so with judicial decisions. (Id. at pp. 641-642; see People v. Jones (1867) 31 Cal. 565, 567-568 ["It is well settled in the United States, at least, that extra-judicial confessions of a prisoner, without other proof of the fact that a felony has been committed, are insufficient to justify a conviction, and this 'certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases' [Citation]"]; Smith v. United States (1954) 348 U.S. 147, 152-153 ["The general rule that an accused may not be convicted on his own uncorroborated confession has previously been recognized by this Court, [citations], and has been consistently applied in the lower federal courts and in the overwhelming majority of state courts"].)
See Opper v. United States (1954) 348 U.S. 84, 89 [America has "gone further in that direction than has the common law of England"].
The exact formulation of the rule varies. "A majority of jurisdictions, like California, require some independent proof of the corpus delicti itself . . . . [Citation.] In federal prosecutions, and in a minority of states, the rule is simply that the accused's incriminating statement cannot be proof the crime occurred unless there is some independent evidence that the statement is trustworthy. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1169, fn. 3.)
Consequently, at a California trial "the prosecution must prove the corpus delicti, or the body of the crime itself — i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. . . . [It] cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (Alvarez, supra, 27 Cal.4th at pp. 1168-1169.)
The corpus delicti rule "is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Alvarez, supra, 27 Cal.4th at p. 1169.) In addition, it reduces the possibility of a false confession to an actual crime. (United States v. Niebla-Torres (9th Cir. 2017) 847 F.3d 1049, 1055.) The rule "'reflects the . . . fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.' [Citation.]" (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200 (Herrera).)
Even so, the question before us is whether the corpus delicti rule applies at the preliminary hearing, where the issue is not a criminal conviction but whether there is reasonable cause for a defendant to face trial; a trial where the rule will be fully applicable. Indeed, the jurisprudential foundation of the rule is normally seen as the possibility of a wrongful conviction, not an erroneous probable cause determination. (But see § 871 ["If, after hearing the proofs [at the preliminary hearing], it appears . . . no public offense has been committed. . . the magistrate shall order the complaint dismissed" (italics added)].)
The district attorney contends that because nothing doctrinally necessitates the rule should apply in the limited context of a probable cause determination at a preliminary hearing, it should not. Respondent counters by pointing to established case law uniformly holding the rule does apply at the preliminary hearing. Hence, he argues, because the courts that have addressed the issue have always found the rule applicable at the preliminary hearing, no further analysis is necessary. Neither party's argument is entirely persuasive.
The Corpus Delicti Rule at Preliminary Hearings
In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), the Supreme Court succinctly observed, "[a] defendant cannot be held to answer a criminal complaint following a preliminary examination unless the magistrate is satisfied that the corpus delicti has been established." (Id. at p. 405, citing §§ 859b, 871 & 872; see Alvarez, supra, 27 Cal.4th at p. 1169 ["It has been held that the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination"].) The district attorney dismisses these statements as mere dicta, but "'[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive.' [Citation.]" (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169, italics added.)
Although the issue was not raised in Ochoa, supra, it had been presented earlier in Jones, supra, 17 Cal.4th at p. 299. However, the Supreme Court did not reach it, concluding instead that the magistrate erred because there was sufficient corpus delicti presented at the preliminary hearing. (Id. at p. 302.) The Jones court had also invited briefing on whether the rule survived Proposition 8, but for the same reason did not reach it, leaving that issue to be decided later in Alvarez. (Jones, supra, at p. 304.) But see Id. at p. 321, fn. 2 (conc. opn. of Mosk, J.) ["[I]n Penal Code section 871 the Legislature has instructed that at the end of the preliminary examination the magistrate must order the complaint dismissed if 'it appears . . . that no public offense has been committed. . . .' This requirement could hardly exist in concert with other statutory provisions entirely abolishing the concept of corpus delicti"].
Moreover, the Courts of Appeal have long held that "[a] defendant cannot be held to answer unless the corpus delicti of the offenses with which he is charged is established independently of his extrajudicial statements." (People v. Martinez (1972) 27 Cal.App.3d 131, 133; accord, Munoz v. Superior Court (2020) 45 Cal.App.5th 774, 780 (Munoz); People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 406 (Powers-Monachello); Herrera, supra, 136 Cal.App.4th at p. 1191; Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 145-150 (Rayyis); Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393; Iiams v. Superior Court (1965) 236 Cal.App.2d. 80, 81; Hall v. Superior Court (1953) 120 Cal.App.2d 844, 847; In re Schuber (1945) 68 Cal.App.2d 424, 425.) None has come to a contrary conclusion.
Munoz has an interesting procedural history. After the Court of Appeal had summarily denied the defendant's writ petition, the Supreme Court granted his petition for review, and transferred the matter "'with directions . . . to issue an order to show cause . . . why relief should not be granted based on petitioner's claim that the evidence at the preliminary hearing was insufficient to satisfy the corpus delicti rule.'" (Munoz, supra, 45 Cal.App.5th at p. 778, citing Munoz v. Superior Court, review granted Oct. 16, 2019, S257363.) The Munoz court's ultimate opinion held "[t]he corpus delicti rule applies to preliminary hearings." (Id. at p. 780.)
Indeed, in Herrera, supra, a different panel of this court was presented with the identical issue in an appeal by the Orange County District Attorney from a trial court's section 995 dismissal of a count in an information after a finding the prosecution failed to establish a corpus delicti for that count at the preliminary hearing. (Herrera, supra, 136 Cal.App.4th at p. 1195.) There as here, the district attorney argued the corpus delicti rule does not apply at preliminary hearings. (Ibid.) We were not persuaded then, any more than we are now. (Ibid.)
These prior decisions notwithstanding, the district attorney once more takes on the Sisyphean task of arguing they were all incorrectly decided, and we should instead find the corpus delicti rule does not apply at the preliminary hearing. And like Sisyphus, he fails yet again.
"And I saw Sisyphus at his endless task raising his prodigious stone with both his hands. With hands and feet he tried to roll it up to the top of the hill, but always, just before he could roll it over on to the other side, its weight would be too much for him, and the pitiless stone would come thundering down again on to the plain. Then he would begin trying to push it up hill again . . . ." (Homer, The Odyssey, Book XI: 593-600 (S. Butler Trans., 1900).)
The district attorney first attempts to distinguish the line of cases holding the corpus delicti rule applicable at the preliminary hearing by pointing out each of these cases was predicated on the fact that, under the original formulation of the rule, a defendant's admissions were not admissible prior to an established corpus delicti, whereas after Alvarez, supra, admissibility is no longer an issue. In other words, because the rule originally included both a substantive and an evidentiary aspect, and it no longer does, the cases regarding its applicability at the preliminary hearing are no longer good authority.
However, this both begs and invites the question whether the substantive rule was legally dependent upon the evidentiary rule or whether they were doctrinally distinct, i.e., whether one was merely a preliminary rule of admissibility and the other was a substantive rule reflecting the underlying public policy reasons for the rule — to prevent convictions based on false or coerced confessions. In our view, the evidentiary part of the rule was merely a procedural means to effectuate the substantive rule, but was not a necessary component.
Furthermore, the district attorney provides no authority suggesting the abrogation of the evidentiary rule affected the substantive rule in any way. Nor does he argue why it should have; he merely points out the historical fact that the earlier cases were all decided before Alvarez held that the evidentiary corpus delicti rule no longer existed.
In Powers-Monachello, supra, the court implicitly rejected such an argument by holding the substantive rule remained unchanged even after Alvarez eliminated the evidentiary rule. (Powers-Monachello, supra, 189 Cal.App.4th at p. 408.) In Powers-Monachello, the Sonoma County District Attorney appealed from a trial court's grant of a section 995 motion, contending "the corpus delicti rule's limitation on the use of defendants' extrajudicial statements has been eliminated from the preliminary examination stage of criminal proceedings." (Id. at p. 403.) Our colleagues in the First District disagreed, "conclud[ing] that although the defendants' statements might have been [admissible] to determine whether they would be held to answer, such statements remained irrelevant until the corpus delicti rule had been otherwise satisfied. . . . In the preliminary examination stage of criminal proceedings, the application of the classical corpus delicti rule in California remains unabated." (Id. at pp. 403-404, italics added; see Rayyis, supra, 133 Cal.App.4th at p. 141 ["Nothing in Proposition 8 or in Alvarez suggests the [substantive] corpus delicti was abrogated in the preliminary hearing context"].)
In People v. Manson (1977) 71 Cal.App.3d 1, the court phrased it as: "The defendant's admissions or confessions are competent evidence after prima facie proof of the corpus delicti is made . . . ." (Id. at p. 42, italics added.)
Powers-Monachello and Rayyis notwithstanding, the district attorney still insists that, after the abrogation of the evidentiary corpus delicti rule in Alvarez, "the historical basis for the [substantive] corpus delicti rule at the preliminary hearing no longer applies . . . ." (Italics added.) He does not tell us what "historical basis" he is referring to, but we are not persuaded in any event. Although "the rule is venerable, it is not a recondite academic curiosity or a quaint vestige of times when confessions commonly may have been extracted by torture or beating. Its importance endures." (Jones, supra, 17 Cal.4th at p. 321 (conc. opn. of Mosk, J.).)
Moreover, the district attorney's argument proves too much because Alvarez abrogated the evidentiary corpus delicti rule entirely — at trial as well as at the preliminary hearing. (Alvarez, supra, 27 Cal.4th at p. 1165.) Perforce, under the district attorney's reasoning, because the rule has no constitutional or statutory foundation, "the historical basis" for the substantive rule should no longer apply at trial either. We do not see him making such a claim.
Like the corpus delicti rule, "'"the purpose of a preliminary hearing is, in part, to assure that a person is not detained for a crime that was never committed . . . .'" [Citation.]" (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835.) Furthermore, "[p]reliminary hearings are '"designed to weed out groundless or unsupported charges of grave offenses and to relieve the accused of the degradation and expense of a criminal trial."' [Citation.] Preliminary hearings and section 995 motions 'operate as a judicial check on the exercise of prosecutorial discretion' and help ensure '"that the defendant [is] not . . . charged excessively."' [Citations.]" (Ibid.) So does the corpus delicti rule. The district attorney provides no authority suggesting Alvarez' abrogation of the evidentiary rule affected any of these considerations, and we have found none. His claim that Alvarez implicitly undermined the substantive corpus delicti rule at preliminary hearings is baseless.
The Corpus Delicti Rule and the Accomplice Corroboration Rule
For the first time in his reply brief, the district attorney advances a wholly new argument, suggesting we should analogize the corpus delicti rule to the accomplice corroboration rule codified in section 1111. Asserting there is no meaningful distinction between the two rules, and because section 1111 does not apply at the preliminary hearing, he argues the corpus delicti rule should be similarly inapplicable. Thus, he concludes, "[t]here is no sound reason to perpetuate the corpus delicti rule at the preliminary hearing when a defendant can be committed solely upon uncorroborated accomplice hearsay statements." (Capitalization omitted.)
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (§ 1111.)
People v. McRae (1947) 31 Cal.2d 184, 186-187 (McRae).
"The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief." (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764, citing Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.) Thus, "points raised for the first time in a reply brief on appeal will not be considered, absent good cause for failure to present them earlier. [Citation.]" (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) Here, "no reason whatever is given for this departure from the ordinary method of presenting a case in this court. If the practice were allowed without any substantial reason, it would lead to great irregularity and delay." (Kahn v. Wilson (1898) 120 Cal. 643, 644.)
The district attorney has not presented anything demonstrating good cause. His 15-page opening brief makes no mention of section 1111 or its relevance. Understandably, respondent's brief does not discuss the issue. Yet the district attorney's 24-page "reply" brief is almost exclusively devoted to his section 1111 analogy. Simply put, it is not a "reply" to anything. This is unfair to respondent and this court. "To withhold a point until the closing brief deprives the respondent of the opportunity to answer it . . . ." (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) It also deprives us of a fully informed and well-developed briefing from all parties.
We are occasionally faced with similar improprieties from pro se litigants and inexperienced trial court litigators unfamiliar with appellate rules and procedures, but there is no reason for an experienced institutional litigant such as the district attorney to resort to such practice, nor for us to countenance such unfair tactics. We find the district attorney's characterization of his newly-raised section 1111 argument as a "reply" inexplicable, and perceive no circumstances establishing good reason for his delay in raising this new argument until his reply brief.
This entire appeal is based on the district attorney's continuing attempt to convince us to reject a long line of unanimous authority regarding the corpus delicti rule and preliminary hearings. The only substantive difference between Herrera, Powers-Monachello, and Rayyis, and the case before us is the district attorney's new analogy to section 1111. The section 1111 argument was not raised at the section 995 motion, nor in the prosecutor's brief submitted to the magistrate at the preliminary hearing. Indeed, at the section 995 motion, the district attorney conceded the rule applied at a preliminary hearing. We also note that the district attorney's opening brief on appeal is a virtually verbatim copy of the brief he submitted to the magistrate, with no mention of section 1111 in either document.
Whether this is coincidental or stratagem, the district attorney has not shown good cause to delay raising his only novel argument until his quite involved and lengthy discussion of it in his so-called "reply." We therefore reject it as improperly raised.
Even if we were to consider the argument, we find it an imperfect analogy. The two rules serve two distinct purposes: the corpus delicti rule ensures an actual crime was committed, whereas the accomplice corroboration rule guarantees the defendant is the responsible perpetrator and to what extent.
Like the corpus delicti rule, the accomplice corroboration rule embodied in section 1111 is wholly a matter of state law, and does not implicate a federal constitutional right. (United States v. Augenblick (1969) 393 U.S. 348, 352-353 ["[T]he use of accomplice testimony is not catalogued with constitutional restrictions"]; see Redding v. Minnesota (8th Cir. 1989) 881 F.2d 575, 578 [Minnesota statute]; Garcia v. Powers (8th Cir. 1992) 973 F.2d 684 [North Dakota statute].) But there the similarity ends.
The accomplice corroboration rule has no long-standing common law pedigree and, unlike the corpus delicti rule, no analogous corroboration requirement exists in the federal courts. (See United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1282; United States v. Lopez (9th Cir. 1986) 803 F.2d 969, 973 ["The uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face"]; Sabari v. United States (9th Cir. 1964) 333 F.2d 1019, 1021 ["the uncorroborated testimony of an accomplice, if believed by the jury, is sufficient to support a jury verdict"].)
The corpus delicti rule is designed to protect against a defendant being convicted for non-existent crimes, or crimes for which the only proof is his or her words. Section 1111, however, is predicated on and assumes a crime has actually been committed. There, the concern is upon whom, and to what extent, liability for that crime should fall. Consequently, under the accomplice corroboration rule, identity is elemental. This is why the section specifically provides that "the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (§ 1111.) In other words, evidence establishing the corpus delicti of a crime cannot provide the corroboration sufficient to satisfy section 1111 at trial.
In contrast, the identity of the perpetrator — or perpetrators — of a crime is not part of the corpus delicti. "That person need not be the accused; it could be anyone. For that reason, '[p]roof of the corpus delicti does not require identity of the perpetrators. It is not necessary that it connect the defendant with the commission of the crime although it may do so.' [Citation.]" (People v. Rivas (2013) 214 Cal.App.4th 1410, 1428.) The only issue is whether "someone committed a crime," and "'one does not begin to inquire whether the prisoner is guilty of a crime until one has established that a crime has been committed.' [Citation.]" (Jones, supra, 17 Cal.4th at p. 319 (conc. opn. of Mosk, J.).)
Echoed more than a century later in Quentin Tarantino's "Reservoir Dogs," is People v. Ames (1870) 39 Cal. 403 (Ames). In Ames, the stagecoach robbers were disguised and used numbers during the robbery to refer to one another. (Id. at pp. 403-404.) At one point, one robber was accidentally called "Charley," and immediately was corrected to "Number Three." (Ibid.) One of the robbers testified at trial that defendant Charles Ames was known as "Charley," and during the robbery was designated "Number Three." (Id. at p. 404.) The Supreme Court reversed Ames' conviction, stating: "[T]he corroborating evidence must, of itself, and without the aid of the testimony of the accomplice, tend, in some degree, to connect the defendant with the commission of the offense. It need not, of course, be sufficient to establish his guilt; for, in that event, the testimony of the accomplice would not be needed. But it must tend, in some slight degree at least, to implicate the defendant. . . . [A]side from the testimony of the accomplice . . . there was no evidence whatever in this case 'tending to connect the defendant with the commission of the offense.' The fact that one of the robbers was addressed as 'Charley,' and again as 'Number Three,' and that they designated each other by numbers, no more tends, of itself, to connect the defendant with the crime than it would . . . any one else." (Id. at pp. 404-405.) The concerns underlying the corpus delicti rule have no analog in Ames.
"Section 1111 'reflects the Legislature's determination that "'because of the reliability questions posed by'" accomplice testimony, such testimony '"by itself is insufficient as a matter of law to support a conviction."'" [Citations.] 'The requirement that accomplice testimony be corroborated is an "'exception[ ]' to the substantial evidence" rule. [Citation.] . . . [Citations.] Section 1111 does not affect the admissibility of accomplice testimony but rather "reflects a legislative determination of how accomplice testimony must be treated."' [Citations.]" (People v. Jones (2018) 26 Cal.App.5th 420, 438, italics added; cf. McRae, supra, 31 Cal.2d at p. 186 [the "underlying policy" of § 1111 is "that testimony of an accomplice must be regarded with distrust"].) The corpus delicti rule is not analogous.
For this reason, "[t]he usual problem with accomplice testimony — that it is consciously self-interested and calculated — is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence." (People v. Brown (2003) 31 Cal.4th 518, 555 [§ 1111 does not apply to declarations against penal interest under Evid. Code, § 1230]; see People v. Williams (1997) 16 Cal.4th 635, 682 [same for coconspirator statements under Evid. Code, § 1223].) Again, the substantive corpus delicti rule has no similar exceptions.
The district attorney extensively cites People v. Miranda (2000) 23 Cal.4th 340 (Miranda), but it is neither a section 1111 case, nor does it have anything to do with the corpus delicti rule. There, the Supreme Court held, "neither the state hearsay rule nor applicable federal confrontation or due process principles render inadmissible a qualified law enforcement officer's preliminary examination testimony relating a nontestifying codefendant's extrajudicial confession incriminating the defendant." (Id. at p. 347.) In Herrera, supra, we rejected the district attorney's reliance on that case, pointing out "Miranda concerned only the admissibility of hearsay accomplice statements at a preliminary hearing. [Fn.] The corpus delicti rule was not an issue . . . ." (Id., 136 Cal.App.4th at p. 1203.) Moreover, the Miranda decision addressed constitutional concerns that the admission of an accomplice's hearsay testimony incriminating a defendant could implicate his or her Sixth Amendment confrontation rights under Bruton v. United States (1968) 391 U.S. 123, 137, and Lilly v. Virginia (1999) 527 U.S. 116, 131-132. (Miranda, supra, 23 Cal.4th at p. 342.) In contrast, the corpus delicti rule has nothing to do with hearsay, and has no constitutional implications — either at trial or preliminary hearing. Miranda remains inapposite for purposes of our analysis here.
More importantly, an accomplice's statement "is only an accusation against the nondeclarant [defendant] and thus lacks the shattering impact of a self-incriminatory statement [made] by him[.]" (People v. Aranda (1965) 63 Cal.2d 518, 526-527, abrogated on other grounds in People v. Fletcher (1996) 13 Cal.4th 451, 465; cf. Jones, supra, 17 Cal.4th at p. 324 (conc. opn. of Mosk, J.) ["frequently 'the confession operates as a kind of evidentiary bombshell which shatters the defense' [citations]."].) Therefore, Alvarez' elimination of the evidentiary corpus delicti rule notwithstanding, there remain salient reasons for retaining the substantive rule at the preliminary examination. The "shattering impact" of a defendant's self-incriminatory statement is no less "shattering" when presented to a magistrate than when offered to a properly instructed jury. Although an experienced magistrate may be better equipped than a jury to give an accomplice's statements the skeptical eye they are due, he or she is not necessarily any more able to reject an untrue confession than was the 1660 jury in Perry's Case.
The corpus delicti rule also applies in juvenile delinquency proceedings, where the fact-finder is a judge, not a jury. (See In re I.M. (2005) 125 Cal.App.4th 1195, 1202-1204.)
The district attorney offers a hypothetical situation: "Two defendants, defendant A and defendant B, are charged with committing a crime together. . . . [Because section 1111 does not apply], defendant B can be held to answer at the preliminary hearing based solely upon a police officer's uncorroborated testimony of defendant A's statements describing defendant B's involvement in the crime. However, because of the corpus delicti rule at the preliminary hearing, the same defendant, defendant B, could not be held to answer based upon his own incriminating statements describing his involvement in the crime in a videotaped confession played at the preliminary hearing."
The hypothetical is flawed, however, because it assumes codefendants charged with the same crime. As such, each defendant's statements corroborate the other's with regard to whether or not a crime was committed. Hence, defendant A's statements establish the corpus delicti of the crime, so whether defendant B is held to answer based in part on his own confession has nothing to do with the corpus delicti rule or its applicability at a preliminary hearing. For the same reason, defendant B's videotaped confession also establishes the corpus delicti of the crime as it concerns defendant A. No further section 1111 corroboration is required because the section does not apply at the preliminary hearing. As a result, both defendants are properly held to answer, and the corpus delicti rule is satisfied as to both. There is no improper "dichotomy," as the district attorney contends. The district attorney's hypothetical offers nothing to show why the corpus delicti rule is unnecessary at the preliminary hearing.
But let us pose a different hypothetical; one that does involve the corpus delicti rule. Consider a preliminary hearing where a defendant is held to answer solely based on a "confession" he made to an uninvolved jailhouse informant regarding a supposed crime for which the prosecutor offered no corpus delicti. Even more so than accomplices, we probably cannot understate the unreliability of such informants. But under the district attorney's reasoning, holding a defendant to answer for this "crime," which may reflect nothing but the barest self-interest of an inmate, without any showing of corpus delicti is fully warranted because "[t]here is no meaningful reason to perpetuate the corpus delicti rule at the preliminary hearing."
Justice Mosk was aware of this problem when he separately concurred in his own majority opinion in Jones, supra: "We must bear in mind that a purported extrajudicial confession or admission may arise from any source, including the testimony of a jailhouse informant. . . . Our Legislature has recognized the potential unreliability of jailhouse informants' statements, requiring that a jury be instructed about them in cautionary terms on request. [Citations.] It enacted the law because '[n]umerous county jail informants have testified to confessions or admissions allegedly made to them by defendants while in custody . . . . Snitches are not persons with any prior personal knowledge of the crime. . . . They testify only that a defendant made an inculpatory statement to them while in proximity in the jail or place of custody. [¶] [Such persons] gather restricted and confidential information by duplicitous means and thereby lend the credibility of corroboration to wholly fabricated testimony.' [Citation.]" (Jones, supra, 17 Cal.4th at p. 323 (conc. opn. Mosk, J.).) However, "[b]y requiring corroborative evidence . . . the corpus delicti rule helps insulate the trier of fact from such testimony when it would be perjured or otherwise unreliable." (Id. at p. 324.) Thus, "if nothing else [the corpus delicti rule] is an important impediment to the growth of the pernicious industry of jailhouse informants." (Id. at p. 323.) This concern is equally valid whether the fact finder is a properly instructed jury or a magistrate.
See section 1127a [cautionary instruction must be given to the jury when a jailhouse informant testifies; also mandating disclosures the prosecution must make prior to such testimony at trial], and section 4001.1 [limiting law enforcement's use of jailhouse informants].
We conclude the substantive corpus delicti rule is not analogous to the accomplice corroboration rule. Its purpose is fundamentally different, and its prophylactic value is distinguishable. It is, like the time spent on repetitive attempts to evade this rule, unavailing.
Finally, we note that even if the district attorney is correct that the corpus delicti rule need not apply at the preliminary hearing, he offers no reason why it should not. He concedes he must still satisfy the rule at trial, and does not argue here for an abrogation of that aspect of the rule. But he offers no doctrinal or policy justification for why he should not also be required to do so at the preliminary hearing. Instead, his argument is that because other prophylactic rules do not apply at the preliminary hearing, neither should this one. (See, e.g., § 872 [limiting application of the hearsay rule at preliminary hearings after Proposition 115].) However, this both oversimplifies the original purpose of the corpus delicti rule and conflates the varying motivations behind these other rules.
In the end, whether it is sound public policy to apply California's substantive corpus delicti rule at the preliminary hearing — or even at trial for that matter — is a question best directed to the Legislature or to the voters. (Cf. Pen. Code, § 190.41, enacted by voter initiative (Prop. 115, approved June 5, 1990) ["the corpus delicti of a felony-based special circumstance . . . need not be proved independently of a defendant's extrajudicial statement"]; see Crisera, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8 (1990) 78 Cal. L.Rev. 1571, 1597 ["The California Legislature should enact an evidence code provision . . . [replacing] the corpus delicti rule as it now exists in California"]; but see People v. LaRosa (Colo. 2013) 293 P.3d 567, 570 [judicially abandoning the traditional corpus delicti rule entirely, "and with it over one hundred years of precedent," and adopting a federal-like "trustworthiness standard"].)
Here, the magistrate found the corpus delicti rule did not apply at the preliminary hearing, relying on the prosecutor's brief and an unspecified "hornbook [] available to us [] on the bench." This was error. Whatever may have been stated in the magistrate's "hornbook," binding authority at the time unanimously held that the corpus delicti rule does apply at preliminary hearings, and the magistrate was obligated to follow that authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450, 455.)
Moreover, as in Herrera, here we remain "unwilling to blaze a new trail after the courts have followed a single path for decades." (Herrera, supra, 136 Cal.App.4th at p. 1202.) Until our Supreme Court holds otherwise, or the voters or the Legislature change the law, the substantive corpus delicti rule applies at the preliminary hearing.
Sufficiency of the Corpus Delicti Absent Respondent's Admissions
Alternatively, the district attorney contends Detective Scott's account of what Jane Doe and stepmother told her — without respondent's admissions to stepmother — provided sufficient independent evidence of corpus delicti to allow respondent's admissions to stepmother and Scott to be fully considered, thereby justifying the holding order. We disagree.
As noted, in reviewing the sufficiency of the evidence adduced at a preliminary hearing, we draw all reasonable inferences in favor of the information and decide whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant's guilt. (Lexin, supra, 47 Cal.4th at p. 1072.) And "'where the facts are undisputed, the determination of probable cause "constitute[s] a legal conclusion which is subject to independent review on appeal."' [Citations.]" (Black, supra, 8 Cal.App.5th at p. 898.) This is a case meriting such review.
The independent proof required to establish the corpus delicti "may be circumstantial and . . . is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (Alvarez, supra, 27 Cal.4th at p. 1171.) "The amount of independent proof of a crime required for this purpose is quite small [and has been] described . . . as 'slight' [citation] or 'minimal' [citation]." (Jones, supra, 17 Cal.4th at p. 301.) Nevertheless, the corpus delicti must be established by evidence.
At the preliminary hearing, the prosecutor contended Jane Doe's descriptions of her cloudy memories of living with her father, her recollection of being "frozen," and her unusual experience when she was intimate with her boyfriend were sufficient evidence of molestation to satisfy the corpus delicti rule. However, these arguments went a step beyond the evidence she actually presented.
The prosecutor reasoned, "the reality is Jane Doe remembers a very specific feeling being frozen and she was very upset. [¶] Realistically that is a common reaction that sexual assault victims have, children through adults, they become frozen in the face of an attacker." (Italics added.) And again, "[Jane Doe is] unnaturally fixated on her father's genitals. . . . [¶] . . . [¶] She's trying to touch [respondent's] genitals because she has been trained that that's what she's to do in bed. So that's where that comes from." (Italics added.)
This overstated the evidence. There was no testimony Jane Doe tried to touch respondent's "genitals." Detective Scott testified only that stepmother said Jane Doe tried to "peek at [his penis] under a towel when he would get out of the shower."
More than merely arguing the evidence, the prosecutor was effectively testifying as to the meaning of these underlying facts. Had she presented expert testimony interpreting the import of Jane Doe's conduct or experiences, our conclusion here may well have been much different. (See Powers-Monachello, supra, 189 Cal.App.4th at p. 412-413 [expert opinion testimony can establish corpus delicti]; Rayyis, supra, 133 Cal.App.4th at p. 143 [same].) However, here there was no evidence underlying the prosecutor's conclusions, expert or otherwise, and we are left with a situation where Jane Doe's ambiguous behavior and experiences have no clinically supported significance even waverings pointing to a reasonable possibility she was a victim of sexual assault. The corpus delicti was not established and, without respondent's admissions, there was insufficient evidence to hold respondent to answer.
DISPOSITION
The order setting aside the information is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.