Wednesday, October 22, 2008
After The Enactment, Take 2: California Appellate Court Finds Retroactive Application Of Corroboration Change Violates Ex Post Facto Clause
I've had two previous opportunities on this blog (here and here) to express my dissatisfaction with the way that the Supreme Court has defined the fourth type of law which cannot be applied retroactively under the Ex Post Facto Clause of the Constitution. And yet, while I am dissatisfied with the Court's definition, it has produced some desirable side effects, as is clear from a recent opinion by a California appellate court.
In People v. Chavez, 2008 WL 4615950 (Cal.App. 2 Dist. 2008), Jorge Ricardo Chavez appealed from his conviction of one count of a lewd act upon a minor. The alleged incidents leading to Chavez's conviction occurred between March 1986 and March 1998, the victim made the allegations in May 2006, and the complaint against Chavez was filed within one year of the report to police.
The statute of limitations for the charged offense was eight years, meaning that the complaint against Chavez ordinarily would not have been timely. However, at both the time of Chavez's alleged offense(s) and thereafter, California Penal Code Section 803(f)(1) provided that this limitations period could be extended if the jury found that:
(1) the crime was reported to law enforcement and a complaint was filed within one year of the date of the crime being reported, (2) the statute of limitations had expired as to the crime, (3) the crime involved substantial sexual conduct, and (4) there was independent corroboration of the crime.
The Ex Post Facto Clause issue in Chavez was that at the time of Chavez's alleged offense(s), the statute of limitations would only be extended if the jury found independent corroboration of the crime by clear and convincing evidence. After Chavez's alleged offense(s), however, California lowered the burden of proof under factor four and now only requires the jury to find independent corroboration of the crime by a preponderance of the evidence. And it was this latter burden of proof that the trial court applied in Chavez and which prompted Chavez's appeal after his conviction.
In addressing this argument, the Court of Appeal, Second District, noted that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the Ex Post Facto Clause proscribes the retroactive application of four types of laws:
"(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"
The Court of Appeal then noted that in Carmell v. Texas, 529 U.S. 513 (2000), the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."
I won't again repeat my arguments as to why it makes no sense not to include laws that alter ordinary rules of evidence in the definition of "[e]very law that alters the legal rules of evidence." But what I will note is that it is clear from Carmell v. Texas that a nice side effect from the opinion is that it is now clear that laws which remove or change corroboration requirements cannot be retroactively applied under the Ex Post Facto Clause, and that is exactly why the Court of Appeal found that the trial court erred in Chavez. Nonetheless, because the Court of Appeal found that testimony by the alleged victim's sibling satisfied both the preponderance of the evidence and clear and convincing evidence standards, it found that the error was harmless and affirmed Chavez's conviction.