P. v. Balinton















Filed 3/19/13 P. v. Balinton CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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THE PEOPLE, Plaintiff and Respondent, v. DELPHINO BALINTON, Defendant and Appellant.

A132571 (City & County of San Francisco Super. Ct. Nos. 2383839/209447)

In
August 2009, the San Francisco District Attorney charged appellant Delphino
Balinton with five sex crimes: (1) href="http://www.fearnotlaw.com/">kidnapping to commit rape, sodomy, and
oral copulation; (2) forcible rape; (3) forcible oral copulation; (4) forcible
oral copulation of a minor; and (5) assault with intent to commit sodomy. In connection with counts two and three, the
information further alleged that appellant kidnapped the victim. As well, the information alleged that
appellant suffered two serious felony strike convictions.

A
jury convicted appellant of forcible rape, forcible oral copulation, and
forcible oral copulation of a minor, and found the kidnapping enhancements true
as to counts two and three.
Additionally, the jury convicted appellant of simple assault, a lesser
included offense to count five. The jury
was unable to reach a verdict on count one and hence the court declared a
mistrial on that count. Finally, the
court found true the allegation that appellant suffered a prior href="http://www.mcmillanlaw.com/">robbery conviction in 1985.

The
court sentenced appellant to an aggregate term of 55 years to life. Appellant challenges the jury instructions on
the kidnapping enhancements. We affirm
the judgment.

I. FACTUAL BACKGROUND

A. The
Crimes and Investigation

> In
the summer of 2001, 16-year-old C.C. came to San Francisco
from Montana, to attend a summer
art program offered through the Academy
of Art Institute. On the evening of July 21, 2001, C.C. left her dorm after dinner to
go for a walk. She was on Sixth
Street where it intersects with Jessie
Street when she saw someone standing and mumbling,
but she kept walking. A person grabbed
C.C. from behind and pulled her “back a ways, back into the alleyway.” C.C. was not able to get away. The assailant pulled her inside a large
cardboard box with openings cut out and pieces of cloth hanging over the
openings. C.C. first said she guessed
that he pulled her 40 to 50 feet into the alley. Later she described the distance as the
distance between the witness stand and the prosecutor’s table.

The
assailant pushed C.C. down and pulled her pants to her ankles; C.C. tried to
push him away but could not. The
assailant raped C.C.; he was not wearing a condom but she was unsure if he
ejaculated. He also forced her to orally
copulate him, ejaculated in her mouth and forced her to swallow. Finally, when she was on her knees and
pushing against the concrete, he slightly penetrated her anus. C.C. tried to knock him back, without
success. The assailant sat up and pulled
C.C. onto his lap. At that point she got
up and ran back to the dorm.

Later
that evening, C.C. was taken to a hospital where she was examined by a sexual
assault nurse. With respect to hymenal
trauma, C.C. had “mild swelling.” She
also suffered some “tiny superficial tears or abrasions” of the labia. Swabs were taken from C.C.’s mouth, vagina,
and anus. The swabs, along with C.C.’s
underwear from the night of the attack, were preserved in a locked freezer
under police custody.

C.C.
described the assailant as an African-American male, about 45 years old, five
feet nine inches tall, weighing around 220 pounds with a “big belly.”

C.C.
did not want to testify and signed an “affidavit of release of
prosecution.” The case was placed on
inactive status pending identification of the suspect.

In
2008, a “cold hit” of DNA from sperm found on C.C.’s underpants matched a
reference sample of appellant’s DNA. The
police contacted and interviewed appellant in San Quentin. Appellant indicated he was in the area during
the period of the sexual assaults. He
denied having sex within anyone in the alleys south of Market
Street. He
had a girlfriend at the time, and they would go to a hotel to have sex. Shown a photograph of C.C., appellant said he
did not recognize her. When asked if
there was any chance that his DNA could end up in evidence collected in the
present sexual assault case, he said “no.”

B.
Defense

Appellant’s primary defense was
that he was not the assailant. In his
opening statement, defense counsel cited the fact that C.C. described the
assailant as having a “big belly” and weighing 220 or 245 pounds, which was
inconsistent with appellant’s appearance.
Further, he argued that there was no ejaculate from the rape, C.C. was
forced to swallow the ejaculate, and therefore the stain on her underwear could
not come from having sex with appellant.
Rather, the ejaculate came from the cardboard box. She was attacked at a time when appellant frequented
the alleys south of Market Street,
was addicted to crack cocaine, and would trade sex for drugs.

Appellant
testified, denying that he attacked C.C.
During the summer of 2001, he spent time in the area of Jessie and Sixth
Streets south of Market Street. He traded drugs for sex, and had sex “on the
spot in the alley.” He would use
whatever was in the alley—mattresses, cardboard, and sleeping bags.

Appellant
denied telling the police in 2008 that he would not have sex in the street or
alleys. Further, the police did not
discuss DNA results with him or ask how his DNA might have ended up in C.C.’s
underwear.

In
2001, appellant was underweight because he was using drugs.

>II.
DISCUSSION

A. >Introduction

Penal
Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 667.61 provides that the punishment for a conviction of rape, oral
copulation, and certain other specified crimes is 25 years to life in state
prison where “[t]he defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm to the
victim over and above that level of risk necessarily inherent in the underlying
offense.” (§ 667.61, subds. (a),
(d)(2).)

The
court delivered the following instruction on the kidnapping enhancement,
patterned after CALCRIM No. 3175:

“If
you find the defendant guilty of the crimes charged in Counts Two and Three,
you must then decide whether, for each crime, the People have proved the
additional allegation that the defendant kidnapped [C.C.], increasing the risk
of harm to her. You must decide whether
the People have proved this allegation for each crime and return a separate
finding for each crime.

“To
prove this allegation, the People must prove that:

“1. The defendant took, held, or detained [C.C.]
by the use of force or by instilling reasonable fear;

“2. Using that force or fear, the defendant moved
[C.C.] or made her move a substantial distance;

“3. The movement of [C.C.] substantially
increased the risk of harm to her beyond that necessarily present in the crimes
of rape and/or forced oral copulation.

“
‘Substantial distance’ means more than a slight or trivial distance. The movement must be more than merely
incidental to the commission of rape and/or forced oral copulation. In deciding whether the distance was substantial
and whether the movement substantially increased the risk of harm, you must
consider all the circumstances relating to the movement.” The verbal instruction tracked the written
instruction submitted at trial.

Appellant
complains that the instruction as written did not correctly inform the jury of
the statutory requirements because without commas around the clause “or made
[C.C.] move,” the ending phrase “a substantial distance” does not modify “moved
[C.C.].” Thus, he reasons that the
written instruction did not apprise the jury that the “substantial distance”
element applied if the defendant “moved [C.C.],” as contrasted to making her
move, and therefore the case was submitted to the jury on an invalid
alternative theory. Moreover, he
contends the purported error was prejudicial because the “movement” element was
not supported by overwhelming evidence, and the issue of whether the victim was
moved a substantial distance was not resolved against appellant because the
jury deadlocked on that issue in connection with the substantive kidnapping
charge.

B.
Standard of Review

The
question whether a challenged instruction accurately conveys the legal
requirements of a particular offense
is one of law which we independently review.
(People v. Waidla (2000) 22
Cal.4th 690, 733.) When scrutinizing an
ambiguous or purportedly ambiguous instruction under the United States
Constitution or California law, we inquire “whether there is a reasonable
likelihood that the jury misconstrued or misapplied the words in violation” of
such laws. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) In deciding the issue, we consider the
specific language challenged, the whole of the instructions, and the jury’s
findings. (People v. Cain (1995) 10 Cal.4th 1, 35-36.) Arguments of counsel may also shed light on
whether the jury correctly understood the law as presented by the instructions
as a whole. (See People v. Kelly (1992) 1 Cal.4th 495, 526-527.) Where the jury is misinstructed on an element
of the offense, reversal is required unless we are able to conclude that the
error was harmless beyond a reasonable doubt.
(Id. at p. 527.)

Appellant did not object to the
instruction as written or request a clarifying instruction. A defendant may not contend on appeal that
jury instructions are impermissibly ambiguous without first requesting a
clarifying instruction at trial. Failure
to make such a request waives the claim on appeal. (People
v. Hart (1999) 20 Cal.4th 546, 622.)
Nonetheless, appellant urges that we review the issue of asserted
instructional error on the merits because it affected his federal due process
rights by misstating the movement element of the penalty provision. (§ 1259; People v. Rogers (2006) 39 Cal.4th 826, 881, fn. 28.) As we explain, at most we are dealing with an
instruction infected with a bit of ambiguity due to grammatical
imprecision—namely, the elimination of a comma between the two types of
movement. Hence we examine the claim of
error under the “reasonable likelihood” test.

C.
Analysis

Appellant’s
contention that the instruction on the “movement” element of section 667.61,
subdivision (d)(2), prejudicially misled the jury does not withstand
scrutiny. To begin with, we cannot
divine from a cold record whether the trial court read the instruction in a way
that corrected the grammatical imprecision of the written instruction, that is,
did the court pause between the term “moved [C.C.]” and the term “or made her
move?” Such a pause would have signaled
that there was a comma between the two elements as appellant asserts there must
be. We presume the court properly performs
its judicial duties, including knowing and applying the correct statutory law,
and properly presenting the instructions to the jury. (See Evid. Code, § 664.)

Moreover,
the instructions as a whole conveyed that the substantial distance applied whether
the assailant moved the victim or made her move. The instruction explained that the People
must prove that the movement of C.C.
substantially increased the risk of harm and “the movement must be more than merely incidental to the commission” of
the offense. Further, the jury was
advised to “consider all the circumstances relating to the movement” in deciding whether the distance was
substantial. (Italics added.) There is no logic to the argument that the
jury would conclude that the substantial distance element applied only when
making the victim move as opposed to actually moving the victim. We presume that jurors are intelligent
persons, capable of correlating and understanding jury instructions. (People
v. Brock (2006) 143 Cal.App.4th
1266, 1277.) A reasonable juror would
not interpret the instruction as appellant suggests, namely that because there
is no comma between the two forms of movement, the substantial distance
component does not apply if the perpetrator actually moved the victim. Such an interpretation is nonsensical.

Additionally,
the arguments of counsel assisted in eliminating any potential ambiguity. The prosecutor’s closing argument made it
clear that the “substantial distance” factor applied to moving the victim, not
just making the victim move: “The
defendant . . . took the person by force—I think it is real clear that that
happened in this case. [¶] >Moved the person a substantial distance,
beyond merely incidental to the commission of these crimes.” (Italics added.)

Defense
counsel in turn underscored that the substantial distance factor pertained to
appellant’s act of moving C.C. to the alley:
“[W]e have to think that the reason the assailant dragged [C.C.] into
the alley was for one purpose and that’s sexual assault. So I would suggest the element to focus on is
element No. 3 . . . : ‘Using that force
or fear the defendant moved the other person or made the other person move,’ .
. . – this is the reason I bring this jury instruction up. Made the other person move a substantial
distance. [¶] Now
distance—substantial distance is actually defined . . . . [¶] And I will tell you that I
agree. Forty to fifty feet is a
substantial distance for anyone to go anywhere.
But remember when [C.C.] moved away from her estimation of how far it
was in terms of number of feet and visualized the distance while she was on the
witness stand? You remember that
distance . . . shrunk to the distance between where she was seated in the
witness chair and the end of [the prosecutor’s] table? [¶] Is that in fact a substantial distance? Are you convinced of that beyond a reasonable
doubt?”

The
prosecutor in rebuttal continued to present the evidence as showing that
appellant moved the victim a substantial distance: “[Defense counsel] indicated . . . there
wasn’t a substantial movement in the case. . . . We weren’t there. We weren’t [C.C.]. It is a pretty substantial distance for her. Took her out of public view. Took her out of any hope for being
helped. Put Mr. Balinton in a position
where no one would interfere with what he was doing. [¶] Not too dissimilar to walking down
the sidewalk, the door open, pull you in, close the door. You could be in another world, folks. No help is coming. You are completely out of view. You are at the mercy of who dragged you
there. Substantial distance for a
sixteen-year old girl, absolutely.”

Appellant
argues that the instruction on the substantive kidnapping charge and the
section 667.61, subdivision (d)(2), instruction both suffered the same
grammatical error, but in the substantive kidnapping charge, element 4
clarified that any movement of the victim had to be for a distance more than
incidental to the commission of the sex crime.
From this appellant concludes:
“Since a properly instructed jury dealing with the same issue was unable
to agree whether the movement was for a substantial distance, there is at least
a reasonable chance the true finding on [the section] 667.61[, subdivision]
(d)(2) charge was based on the legally invalid theory that appellant moved
[C.C.].”

Appellant’s
contention is not accurate. Some
background is in order. The jury
submitted a note asking the court to identify and clarify the phrase,
“ ‘merely incidental to the commission of rape or oral copulation or sodomy’ ”
with respect to the substantive
kidnapping count. The court
responded: “ ‘This is a question of
fact for you to decide. You must
consider the totality of circumstances in making this decision.’ ” Later, the jury asked: “ ‘What happens if we cannot reach a
unanimous decision on a greater charge, [section] 209 [kidnapping for rape or
other sex offenses], specifically on point No. 4?’ ” The court noted that item 4 states: “ ‘The other person was moved or made to
move a distance beyond . . . that merely incidental to the commission of rape
or oral copulation or sodomy.’ ”
The court queried whether the jury was hopelessly deadlocked on that
count; it was not, and thus deliberations continued, but ultimately the jury
did deadlock and a mistrial was declared as to the substantive kidnapping
charge.

We
relate this sequence to illustrate that the jury was not confused, and
apparently did not deadlock, on the issue of the scope of the substantial distance component of section 209,
subdivision (b)—that is, did the component pertain to both forms of movement or
just one? That point was covered in item
three of the instruction, namely: “Using
that force of fear, the defendant moved the other person or made the other
person move a substantial distance.” No
question was asked about item three.

Moreover,
that the jury hung on the substantive kidnapping charge does not suggest that
it was confused. “An inconsistency may
show no more than jury lenity, compromise, or mistake, none of which undermines
the validity of a verdict.” (>People v. Lewis (2001) 25 Cal.4th 610,
656.) Inconsistent verdicts most likely
result from compromise in the jury room, or the extension of mercy or leniency
to the defendant. (People v. Pahl (1991) 226
Cal.App.3d 1651, 1656.) Section 954
could not be clearer: “An acquittal of
one or more counts shall not be deemed an acquittal of any other count.”

In
sum, for all these reasons there is no reasonable likelihood the jury would
have misconstrued or misapplied the instruction in the impermissible manner
appellant suggests.

Appellant
also urges that the omission of a comma did more than render the instruction
ambiguous—it misstated an element of the charge, and thus the resulting
instruction violated his due process
rights. As we explained above, no
reasonable juror would understand the instruction as removing the substantial
movement element in circumstances where appellant actually moved the victim as
opposed to making her move. There was no
due process violation here.

>III.
DISPOSITION

We
affirm the judgment.







_________________________

REARDON,
J.





We concur:





_________________________

RUVOLO, P.
J.





_________________________

BASKIN,
J.*















































* Judge of the Contra
Costa Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.