"Alex filed his opening appeal brief on August 29, 2012. Alex's brief does not strike me as particularly strong, and employs a shotgun approach instead of focusing on one or two strong points for appeal. However, I'm not a criminal attorney. Below is a brief summary of Alex's arguments.
First Alex argues that PD's testimony was inherently improbable and is therefore insufficient to sustain his conviction. However, the jury did not find it too improbable to convict and weighing credibility is precisely what juries are supposed to do. Also, the facts of the cases cited by Alex in support of his position are significantly different from his case.
Next Alex argues that the jury should have been instructed that it could only consider the rape trauma expert's testimony to determine if PD's actions were not inconsistent with a rape victim (which the Court did) and that the Court erred when it instructed the jury that it could also use the expert's testimony to assess the credibility of PD. This argument seems inherently illogical to me. The purpose of determining whether PD's actions were consistent (or not inconsistent) with those of a rape victim is for the jury to assess her credibility. The whole first argument is that PD's testimony is not credible because here actions were too improbable for someone who had been raped (i.e., too inconsistent with the actions of someone who had been raped). If the expert's testimony was admissible at all (which Alex does not dispute) then it is a factor the jury may use in assessing PD's credibility, and it supports the position that PDs actions were not too improbable to be believed by a reasonable jury. Thus, this second argument seems to actually undermine the first.
Alex's third argument is that the Court erred by failing to include a specific instruction regarding his prior consensual relationship with PD. The Court included this instruction for two other victims because the testimony was undupisputed that they had had a prior relationship. If I remember correctly, PD testified that Alex raped her on their first date, in which case it is not clear that the specific instruction appealed from applied to PD. Also, there is a standard instruction that juries may consider a witness' entire testimony (and counter testimony offered by other witnesses) in weighing the credibility of the witness which would seem to render this argument.
Moving on, Alex argues that the Court erred when it did not continue the case so that Alien could testify. Alien apparently left for the East Coast and then for Cuba and did not return until after the trial was over. The Court agreed to take Alien's testimony out-of-turn (i.e. during the prosecution's case) so that she could testify before she went to Cuba, but refused to delay the end of the trial - which theoretically wold have allowed her to testify after she returned from Cuba. From the brief its not clear to me that she was actually served with a subpoena, nor is it clear when she actually returned to California. This suggests that the Court did not abuse its discretion. Also, apparently Alien was supposed to testify that she was Alex's girlfriend, that JT showed up to the Mayan uninvited by Alex, and that JT was angry with Alex when she discovered Alex had a relationship with Alien. I'm not sure that any of this was disputed at the trial, so her inability to testify does not seem to have prejudiced Alex (i.e., is unlikely to have changd the outcome of the trial).
Alex next argues that the introduction of the testimony of SL, the woman from Arizona (who was not a complaining victim but testified that Alex raped her), was improper. IMO this is Alex's most interesting legal argument. In a nutshell, the jury was instructed that it could determine whether SL's testimony was true by a preponderance of the evidence and then use that decision to assess whether Alex was disposed or inclined to rape. The jury was instructed that it could not use this evidence to conclude whether Alex had in fact committed any of the rapes he was charged with, and was instructed that it need to find Alex guilty beyond a reasonable doubt. I find it problematic that a non-complaining victim can testify about an uncharged crime under a preponderance of the evidence standard when the ultimate issue requires proof beyond a reasonable doubt. I also think that SL's testimony was probably very damaging to Alex. Unfortunately for Alex, the law specifically allows this sort of testimony in sexual assault cases, and any relief on appeal will probably require a decision on Federal Constitutional grounds by the Ninth Circuit (which seems to have issued contradictory decisions on the issue) or the US Supreme Court. It will be years before Alex's case makes its way to those Courts.
Alex then argues that issues with the jury require he receive a new trial. These include allegations that juror 10 slept during part of the trial. However, when Juror 10 was questioned about this he said he was awake and pretty much aware of what had been occurring during the trial. Juror 10 also complained that juror 11 (who apparently was anti-Alex) had told him during a break that deliberations would only take 5 minutes even though the defense had not finished presenting its case. Technically, jurors are not supposed to discuss the case before the case is given to them for deliberations, however, since juror 11 did not actually tell juror 10 how to vote and also voted to acquit Alex of some charges I don't see this issue leading to a reversal. Juror 10 also complained that during deliberations juror 9 broke down in tears and said that they had to get Alex off the street. Since this happened during deliberations, when the jurors are supposed to discuss the case, I don't see this as grounds for reversal either.
Last but not least, Alex argues that the restitutionary fine should be reduced to $200 because the jury did not weigh the relvant factors, including his ability to pay the fine.
Almost all of Alex's arguments strike me as real long shots. I understand the need to perserve issues on appeal, but it always seems to me that it is too easy for important issues to get lost when a multitude of issues (stong and weak) are appealed.
The State's response is due on March 18, 2013. I'll try and do a summary of that too sometime in the next few weeks."
- from the Comments Section, Anonymous 03/13/2013