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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Kerwin HALL, Defendant and Appellant.

No. D013425.

Decided: July 22, 1992

Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. General, Harley D. Mayfield, Senior Asst. Atty. Gen., and Jeffrey J. Koch and Pamela A. Ratner, Deputy Attys. Gen. for plaintiff and respondent.

Defendant Kerwin Hall appeals from a judgment of conviction after a jury found him guilty of three counts of rape (Pen.Code, § 261, former subd. (2) 2 ), three counts of forcible oral copulation (§ 288a, subd. (c)) and one count of forcible sodomy (§ 286, subd. (c)).  A deadly weapon use allegation (§ 12022.3) was found true as to each count.   A kidnapping allegation (§ 667.8) was also found true as to one of the rape counts.   Imposing full upper term consecutive sentences as to each count, the court committed Hall to state prison for 80 years.


The victim, Patty C., shared a three-level apartment in Mission Beach with three roommates.   Patty and Stephanie shared a bedroom on the lower level while Colleen and Julie shared the upstairs bedroom.   The kitchen, living room and front door were located on the middle level.

Patty awakened before 5 a.m. one morning to get ready for work.   Everyone else in the apartment was asleep.3  After getting dressed, Patty went upstairs to use the bathroom.   As she reached the second level, a man she identified as Hall, wearing only boxer shorts, grabbed her mouth with his hand and held a knife to her throat.   He forced her into the living room where, in succession, he forced her to orally copulate him, unsuccessfully attempted intercourse, forced her to perform another act of oral copulation, then raped and briefly sodomized her.   As Hall attempted the sodomy, Patty became hysterical and began to cry.   Hall then performed an act of oral copulation on her and raped her a second time.

Explaining they were leaving, Hall told Patty to get up and get dressed.   He agreed she could go downstairs to get her purse, but warned her he was going upstairs to check her roommates and would “take care” of them if he heard any noises.   While she was in her bedroom, Patty unsuccessfully tried to wake Stephanie by turning the light on and off.   Then, after retrieving her purse, she met Hall on the second level of the apartment and they left.

Hall put on his clothes, which he had left in a pile just outside the front door.   Still holding the knife, he directed Patty a short block and a half from the apartment inside a partially opened gate where a car was parked under a carport overhang.   There he raped her a third time.   Hall then told Patty to get dressed again and they walked together toward Mission Boulevard.   Patty begged Hall to let her go.   He agreed, warning her that he knew where she lived, knew how to pick the lock, and would take care of her roommates if she called the police.   It was approximately 6:15 a.m. when Patty left Hall and went to a nearby taco shop to phone her boyfriend, her mother and the police.   The police were unable to locate Hall until two months later when Patty and Stephanie were driving on West Mission Bay Drive and Patty recognized Hall walking by the side of the road.   She called the police and Hall was arrested.

DNA and PGM enzyme testing was done on semen samples retrieved from Patty and her clothing following the assault and compared with similar tests of Hall's blood samples taken at the time of the arrest.   Hall and Patty had different PGM enzyme types and the samples taken from Patty matched Hall's type.   A research scientist who did the DNA testing testified that Hall's pattern matched the samples taken from Patty and was a pattern which would only occur in one out of 910,000,000 in the African–American population.

Hall testified he met Patty at a party at Patty's apartment three days before the alleged rape.   He saw Patty at a nearby club, the Red Onion, early the next morning and they danced together.   Later, they walked to her apartment where they engaged in consensual intercourse in the living room.   Three days later they again met at the Red Onion, returned to Patty's apartment early in the morning and engaged in consensual intercourse and oral sex.


I. Failure to Instruct Sua Sponte that Oral Admissions Should Be Viewed With Caution (CALJIC No. 2.71)

 To impeach Hall's claim that he met Patty three days before the alleged assault, the People introduced the testimony of San Diego Police Officer Thomas Kowalczyk concerning statements made by Hall at the time of his arrest.   Kowalczyk testified that when Hall inquired why he was being arrested, Kowalczyk told him he was accused of various sex crimes.   He then asked Hall whether he knew the victim and read from the police report detailing Patty's name, physical description and the date and location of the alleged assault.   Hall responded, “I don't know anything about that.”   Hall contends his statement to Kowalczyk was an oral admission and that the trial court had a sua sponte obligation to instruct the jury pursuant to CALJIC No. 2.71 that oral admissions are to be viewed with caution.4


Preliminarily we have a concern with Hall's assumption that his statement to Kowalczyk would qualify as an admission under the definition contained in CALJIC No. 2.71.   Consistent with that standard, a defendant's statement can be an admission only if it “tends to prove his guilt when considered with the rest of the evidence.”   Hall's statement here, obviously exculpatory at the time it was made, can be viewed as incriminatory only if it is inconsistent with his trial testimony.   We question whether the reply, “I don't know anything about that” which followed a reading of the police report could be reasonably interpreted as meaning, “I don't know her and I've never been to her apartment.”


Because the People's theory at trial was that Hall's statement to Kowalczyk was inconsistent with his trial testimony, they understandably do not contend it is not an admission within the CALJIC No. 2.71 definition.   Instead, they dispute Hall's contention by relying on People v. La Salle (1980) 103 Cal.App.3d 139, 162 Cal.Rptr. 816 (disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803).   In La Salle, the defendant admitted to arresting officers that he drove the car reportedly used in a rape but also made other exculpatory statements tending to establish an alibi.   The court instructed the jury pursuant to CALJIC No. 2.71.   On appeal the defendant argued that CALJIC No. 2.71 improperly allowed the jury to consider his exculpatory statements as “admissions.”   The La Salle court concluded that CALJIC No. 2.71's definition of an “admission” is overbroad.   It explained that a cautionary instruction need not be given unless the defendant's statements are introduced to prove the truth of the matter asserted, i.e., based on the admissions exception to the hearsay rule.  (Id. 103 Cal.App.3d at pp. 150–151, 162 Cal.Rptr. 816;  see Evid.Code, § 1220.)   The court went on to conclude that any error in the instruction did not prejudice the defendant.  (Id. at pp. 152–153, 162 Cal.Rptr. 816.)

Hall responds by citing People v. Brackett (1991) 229 Cal.App.3d 13, 280 Cal.Rptr. 305 and People v. Mendoza (1987) 192 Cal.App.3d 667, 238 Cal.Rptr. 1 as later cases which have disagreed with La Salle and approved the present definition.   In Mendoza, as in La Salle, the defendant made exculpatory statements to arresting officers tending to establish an alibi.   Independent evidence introduced by the prosecution discredited that alibi.   Over defendant's objection that his statements were not admissions, the trial court instructed the jury pursuant to CALJIC No. 2.71.   On appeal, the court characterized the defendant's argument as contending that a statement must be against the defendant's interest in order to be considered an admission.  (Id. 192 Cal.App.3d at p. 675, 238 Cal.Rptr. 1.)   Citing cases and authorities dealing largely with the admissibility of prior inconsistent statements (ibid.), Mendoza rejects the notion that an admission must be against the defendant's interest when made.   The court goes on to consider La Salle in a footnote, rejecting it with the following analysis:  “First, a statement does not have to be offered for its truth to be accepted as an admission.   Second, we apparently have more faith in the jury than the court in La Salle:  there is no magic in determining whether a particular statement tends (or does not tend) to prove one's guilt.   The jury, as factfinder, is perfectly equipped to make such determinations based on the existing CALJIC instructions without further explanation by the court.”   (Id. 192 Cal.App.3d at p. 676, fn. 3, 238 Cal.Rptr. 1.)

Brackett largely adopted Mendoza's reasoning in rejecting La Salle.   In Brackett, the male defendant made certain statements during an assault on the female victim threatening the victim with bodily harm and tending to establish a sexual motive for the assault.   As in Mendoza and La Salle, defendant contended the court erred in giving CALJIC No. 2.71 because his statements to the victim were not introduced to prove their truth and were therefore not admissions.  (229 Cal.App.3d at pp. 18–19, 280 Cal.Rptr. 305.)   The Brackett court did not comment on whether the defendant's statements were introduced to prove their truth but, assuming that they were not, held they were nonetheless properly characterized as admissions.

We recognize that the issue in this case is somewhat different than that presented to the courts in La Salle, Mendoza and Brackett.   Here, the defendant is contending the court should have given the CALJIC No. 2.71 instruction.   Nonetheless, our problem with Mendoza and Brackett, and to a lesser extent La Salle as well, lies in their failure to consider the purpose underlying the instruction.   CALJIC No. 2.71 consists of three paragraphs.  (See ante, fn. 4.)   The first paragraph contains the arguably broad definition of an admission which was the focus of the courts in La Salle, Mendoza and Brackett.   Read literally, any statement made by a defendant introduced against him would be an admission.

This definition, however, has no relevance in a vacuum.   Once a jury has been told what is an admission, it must be instructed how an admission is to be treated differently than any other piece of evidence.   In this regard we must focus on the second and third paragraphs, which are the operative portions of the instruction.   The second paragraph tells the jury two things.   First, not surprisingly, they are not to consider the alleged admission unless they determine the defendant made the statement.   Second, and of more import for our purposes, an admission may be considered by the jury only to the extent they find it to be true.   Curiously, in holding that an admission need not be considered for its truth, the courts in Mendoza and Brackett never addressed the apparent inconsistency between that holding and the second paragraph of CALJIC No. 2.71.

The third paragraph is that portion of the instruction focused on by Hall in this case.   It tells the jury that evidence of an oral admission should be viewed with caution.   Explaining the rationale for such an instruction, the Supreme Court in People v. Bemis (1949) 33 Cal.2d 395, 202 P.2d 82 quoted a secondary authority as follows:  “ ‘Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used.’ ”  (Id. at p. 399, 202 P.2d 82, quoting 2 Jones, Commentaries on the Law of Evidence, 620.)   The same opinion, in noting the purpose of a cautionary instruction (id. at p. 400, 202 P.2d 82), later cites to Wigmore's treatise on Evidence which explains that the real problem with admissions and confessions is that they are at the same time both the best and worst kind of evidence:

“The real explanation lies in the mixture of good and bad qualities likely to be present in all attempts to use confessions.   We must separate (1) the confession as a proved fact, from (2) the process of proving the alleged confession.

“(1) Now assuming the making of a confession to be a completely proved fact—its authenticity beyond question and conceded—then it is certainly true that we have before us the highest sort of evidence.   The confession of a crime is usually as much against a man's permanent interests as anything well can be․  Assuming the confession as an undoubted fact, it carries a persuasion which nothing else does․

“(2) But how do we get to believe in the fact of a confession having been made?   Always and necessarily by somebody's testimony.   And what is our experience of that sort of testimony on which we are asked to believe that a confession was made?   A varying and sometimes discouraging experience.   Paid informers, treacherous associates, angry victims, and over-zealous officers of the law—these are the persons through whom an alleged confession is oftenest presented;  and it is at this stage that our suspicions are aroused and our caution stimulated․”  (3 Wigmore, Evidence (Chadbourn ed. 1970) § 820b, p. 303.)

Wigmore goes on to conclude, “[I]t is precisely because the confession, if a fact, is so weighty and produces such a close approach to complete persuasion, that we are inclined to hesitate and demand the most satisfactory testimony before we accept that as a fact which, if believed, will practically render other evidence superfluous.”  (Id. at p. 304.)

 Based on the foregoing, we do not believe a cautionary instruction should be required whenever the defendant makes an oral statement which the prosecution introduces in evidence against him.   A witness may always hear incorrectly or report incorrectly a statement made by another.   Yet we surely do not require a cautionary instruction every time a hearsay statement is introduced.   As we have seen, the need for a cautionary instruction arises because of the combined fact that admissions and confessions may be misheard or misreported and that such testimony is particularly persuasive because the defendant has admitted one or more links in the prosecution's chain of proof.   Where the evidentiary value of the statement introduced against the defendant is not dependent on its truth—for instance a prior exculpatory inconsistent statement—the statement may impugn the defendant's credibility and inferentially suggest a consciousness of guilt.   It cannot be said, however, that the defendant has “admitted” any fact and therefore helped to establish an element of the prosecution's case such that the jury might be misled by the strength of the evidence.   Accordingly, the trial court did not err in failing to instruct the jury pursuant to CALJIC No. 2.71.



Judgment affirmed.


2.   All statutory references are to the Penal Code unless otherwise indicated.

3.   Apparently Julie was not in the apartment that night.   Colleen and her boyfriend were asleep in the upstairs bedroom.

4.   CALJIC No. 2.71 provides:  “An admission is a statement made by [a] [the] defendant other than at [his] [her] trial which does not by itself acknowledge [his] [her] guilt of the crime(s) for which such defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.  [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.  [¶] [Evidence of an oral admission of [a] [the] defendant should be viewed with caution.]

FOOTNOTE.   See footnote 1, ante.

WIENER, Presiding Justice.

BENKE and HUFFMAN, JJ., concur.