P. v. Applegate

Filed 6/3/08 P. v. Applegate CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Dabney, Judge. Affirmed.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Brian Christopher Applegate challenges his conviction for two counts of forcible oral copulation, sodomy, and criminal threats. He argues the court improperly excluded evidence and thereby deprived him of an opportunity to present a defense and to challenge the credibility of one of the victims. We find the excluded evidence to be irrelevant and affirm the judgment.

FACTUAL BACKGROUND

1. N.T.s Testimony

On June 22, 2005, when she was 19, N.T. and four of her friends were at Bar Melody. N.T. met appellant at the bar, and they exchanged numbers. Appellant, a musician, asked N.T. if she wanted to go to his apartment, and N.T. asked if her friend could accompany them. Appellant said he wanted to get to know N.T. alone. N.T. went to her friends house and, while there, she called appellant twice, once leaving a message. Appellant returned her call, and N.T. went to appellants apartment. N.T. told her girlfriends she was going home.

When N.T. arrived at appellants apartment, appellants business manager, Amy Lew (Lew), was there on a couch in his living room. Appellant and N.T. went to appellants bedroom. Appellant was looking at a MySpace page, and N.T. said that the girl was not attractive. Appellant said, Lets see what youre working with and took N.T.s shirt off and they kissed. N.T. did not mind that her shirt was off, her bra was off and they were kissing.

When appellant started to unbutton N.T.s jeans, N.T. said, No. I just met you. Im not trying to go that far with you. Appellant responded, Thats fine. . . . Im not one to force myself upon anyone. N.T. stayed in appellants apartment because it was about 3:00 in the morning and she felt comfortable with appellant.

Appellant asked N.T. personal questions, and she did not want to answer them. Appellant asked N.T., What would you never do sexually? N.T. responded that she would never have anal sex.

As N.T. was lying on appellants bed, appellant climbed on top of her and opened his pants. N.T. tried to push him off, but he choked her. Appellant threatened to hit N.T. if she screamed. He choked her so that she could not breathe.

Appellant put his penis in N.T.s mouth. He said, If you bite me, Ill hit you. . . . If you scream, Ill hit you. N.T. thought there was nothing she could do because appellant was bigger than she was. After five minutes, appellant took his penis out of her mouth. He put his penis back in her mouth and grabbed the back of her head and moved her head. When appellant took his penis out of N.T.s mouth, he told her he wanted her to lick my anal area, my balls, like everywhere. She complied because he threatened to hit her and had clenched fists.

Appellant put his penis in N.T.s anus. N.T. was using a tampon and told appellant that he was hurting her and asked him to stop. Appellant did not stop. Appellant then told N.T. to get on her knees, and he put his penis, which had feces on it, in her mouth. Appellant continued to threaten to hit N.T. and refused to clean himself. Appellant then took N.T.s underwear and told her to shower, which she did. When she was in the bathroom, appellant told N.T. to sit on the side of the bathtub. He put his penis back in her mouth and ejaculated into her mouth. Appellant brushed N.T.s teeth using her finger and wiped everything she had touched.

After appellant spoke to Lew, he and N.T. went to N.T.s car. Appellant took her drivers license, asked if the address was correct and then returned it to her. N.T. drove appellant because she was afraid of what he would do to her if she refused. Appellant said, If I was gonna kill you or do anything, I would put your body there, and thats where I would do it, so no one would find you. N.T. dropped appellant off at a hotel and he told her if she said anything he would kill her and her family.

2. T.H.s Testimony

In the summer of 2005, T.H. spent two weeks with her friend Sierra. One night while T.H. was visiting Sierra, Sierra asked her to spend the night at appellants apartment. Appellant and Sierra were friends. On June 16, 2005, Sierra dropped T.H. off at appellants apartment. T.H. told appellant she was 17 even though she really was 16. T.H. stayed at appellants apartment because she felt she had nowhere else to go.

T.H. and appellant looked at MySpace on appellants computer and then T.H. laid down on the couch in the living room. Later in the night, appellant asked T.H. if she was attracted to him. Appellant asked T.H. if she would ever do anything with him. T.H. responded no and appellant asked, What if I said you dont have a . . . choice?

T.H. told appellant she was on her period. That was not true, but T.H. said it so that appellant would not have sex with her. Appellant told her to either orally copulate him or have anal sex with him. T.H. tried to get up and appellant told her she was not going anywhere. Appellant took off T.H.s shirt and bra and touched her breasts, notwithstanding her protestations. Appellant then put his penis in T.H.s mouth. Appellant grabbed the back of T.H.s head and pushed her head forward. Appellant ejaculated into T.H.s mouth. T.H. spit the ejaculate into her hand and threw it onto the floor. T.H. was interviewed by police and drew a diagram of where the semen would be on the floor.

3. Physical Evidence

Police tested a semen stain in the carpet in appellants apartment. The stain had sperm cells and epithelial cells. The sperm matched appellants DNA profile. The epithelial cells were not from T.H. If someone had semen in her mouth and spit it out, one would expect to find epithelial cells from the saliva mixed with the sperm.

4. Defense Evidence

Lew testified for the defense. Lew was there when N.T. came over and could see N.T. dancing for appellant while they were in the bedroom. Lew saw N.T. slide down to appellants crotch area and saw her head go up and down. Lew saw N.T. slide her pants down and sit backwards on appellant. Lew did not hear or see anything indicating appellant forced N.T. to engage in sexual acts. Before N.T. left, appellant autographed a compact disc for her.

Jennifer was at Bar Melody at the same time as appellant and N.T. Jennifer heard N.T. say something she understood to mean that N.T. was going to have sex with appellant. Katherine and Jana both testified that N.T. showed them a compact disc that appellant had signed. N.T. said that someone she hooked up with July 4th weekend signed the compact disc, and N.T. appeared to be bragging.

PROCEDURAL BACKGROUND

The facts described above are from appellants second trial. In the first trial, he was charged with sodomy, four counts of oral copulation, kidnapping, two counts of second degree robbery and criminal threats all involving N.T. He was also charged with forcible oral copulation of T.H. The information contained further allegations of multiple victims and a prior serious or violent felony of murder. A jury acquitted him of one count of second degree robbery and could not reach a verdict on the remaining counts, prompting the trial court to declare a mistrial as to those counts.

In the second trial, appellant was charged with the forcible sodomy and forcible oral copulation of N.T. and criminal threats against N.T. He also was charged with the forcible oral copulation of T.H. It was further alleged that appellant committed forcible oral copulation against more than one victim within the meaning of Penal Code section 667.61. And it was alleged that appellant had been convicted of murder (a serious or violent felony). The trial court dismissed the remaining counts.

Appellant sought vigorously to introduce evidence that T.H. was walking [at Venice Beach], met a guy. She was upset and crying. He asked if he could buy her coffee. [] I thought he was nice, so I talked to him. And we go sit on a park bench, just talking. And then, he had asked if he could kiss me. And Im like, no. And out of nowhere he starts touching himself, asked me to touch him. Im like, no. He jacked off for like five seconds, gets off. Then its like over. And I just sat there, like, what the hell just happened. Appellant wanted to argue that the defendant masturbated himself onto the carpet and acted in conformity with what she told him had just happened to her. The trial court excluded this evidence.

Appellants attorney argued to the jury that one would expect to find T.H.s saliva mixed with appellants sperm in the sample found on the carpet. However, the cells mixed with the sperm did not come from T.H. I submit to you what happened that night is that Mr. Applegate masturbated in front of her. Thats the only explanation for what happened. She said she was on her period, she couldnt have any sex. Thats the only way that semen gets there, or its from some other encounter. But it wasnt with [T.H.]. Because the saliva was not from T.H., we know she lied. She knew he masturbated. She saw it. And now shes got her evidence. . . . How easy then to say the sperm came from my mouth and to forget or never know that D.N.A. can test saliva as well as it can test semen.

Appellant did not testify in his defense. The court indicated if he testified, the prosecution could impeach him with a prior conviction for a crime of violence involving great bodily injury or death that was not a sexual assault.

The jury found appellant guilty of sodomy by force, two counts of forcible oral copulation, and criminal threats. Appellant admitted that he suffered a prior conviction for murder with the use of a firearm. Appellant also admitted that the prior fell within the meaning of Penal Code section 667, subdivision (a); section 667, subdivisions (b) through (i); and section 1170.12, subdivisions (a) through (d).

The court rejected appellants Romero motion. (People v. Romero (1996) 13 Cal.4th 497.) Appellant was sentenced to an aggregate term of 88 years four months to life.^[1]

DISCUSSION

Appellant challenges the trial courts decision to exclude the following evidence: T.H. was walking [at Venice Beach], met a guy. She was upset and crying. He asked if he could buy her coffee. [] I thought he was nice, so I talked to him. And we go sit on a park bench, just talking. And then he had asked if he could kiss me. And Im like, no. And out of nowhere he starts touching himself, asked me to touch him. Im like, no. He jacked off for like five seconds, gets off. Then its like over. And I just sat there, like, what the hell just happened.

Appellant argues: (1) the exclusion of probative evidence violated his right to due process, and (2) the evidence was probative to his theory of defense and the court erred in limiting the cross-examination of T.H. Both arguments depend on showing that the evidence sought to be admitted was relevant. Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.)

Appellants theory as to the probative value of the evidence is as follows: The defense theory of the case was that appellant masturbated in [T.H.]s presence and ejaculated onto the carpet in conformance with conduct described in a story told to him by [T.H.] and her friend Sierra. Appellant wanted to argue to the jury that his conduct conformed with the story he had just been told. Appellant further states that the story of the other man masturbating was relevant to and probative of the question of how appellants semen was deposited on the carpet with [T.H.]s knowledge though not her participation.

Appellant had the opportunity to argue to the jury that he masturbated in T.H.s presence. Specifically, appellants attorney argued to the jury that one would expect to find T.H.s saliva mixed with appellants sperm in the sample found on the carpet. However, the cells mixed with the sperm did not come from T.H. I submit to you what happened that night is that Mr. Applegate masturbated in front of her. Thats the only explanation for what happened. She said she was on her period, she couldnt have any sex. Thats the only way that semen gets there, or its from some other encounter. But it wasnt with [T.H.]. Because the saliva was not from T.H., we know she lied to you. She knew he masturbated. She saw it. And now shes got her evidence. . . .  How easy then to say the sperm came from my mouth and to forget or never know that D.N.A. can test saliva as well as it can test semen.

The story of the other man masturbating does not tend to show how appellants semen was deposited on his carpet in his apartment. The other man had absolutely nothing to do with appellants semen. Whether an unidentified man masturbated in front of T.H. does not have any tendency to show that appellant engaged in that conduct.

We agree with the proposition emphasized by appellant that an accused has the right to confront and cross-examine the prosecutions witnesses including on evidence related to the witnesss credibility. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. (Davis v. Alaska (1974) 415 U.S. 308, 316.) This legal proposition, however, does not demonstrate any error in this case. Appellant had the opportunity to cross-examine T.H. and his counsel vigorously engaged in such cross-examination. Whether someone else masturbated in front of T.H. is not probative of her credibility it does not show that she was biased against appellant, that she was not likely to be a truthful person or that she had an ulterior motive when she testified. (See ibid.) The court did not exclude competent, reliable evidence bearing on the credibility of a witness as appellant argues because the excluded evidence in no manner exposed T.H.s credibility.

Similarly, the general principle emphasized by appellant that [i]t is fundamental in our system of jurisprudence that all of a defendants pertinent evidence should be considered by the trier of fact, is not applicable here. (People v. Mizer (1961) 195 Cal.App.2d 261, 269.) The excluded evidence was not pertinent. Reversal is required where the court excludes a witness that is relevant, material, and vital to the defense. (Washington v. Texas (1967) 388 U.S. 14, 19.) Here, however, there was no link between the conduct of a man who masturbated in front of T.H. and appellants conduct.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] There is some discrepancy between the sentence reported and that contained in the abstracts of judgment and minute order. No issue with respect to sentencing is presented on appeal. As appellant states, the 88-year-four-month sentence contained in the minute order and abstract of judgment contains the accurate midterm for sodomy. When the court reported the sentence, it incorrectly stated that the midterm for that offense was five years instead of six years.