P. v. Boyce
Filed 1/27/14 P. v. Boyce CA1/5
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff
and Respondent,
A133912
v.
(
Ct. No. CR151431)
Defendant
and Appellant.
_____________________________________
In re
on
Habeas Corpus.
______________________________________/
A
jury convicted appellant Dallas B. Boyce of various felonies, including
forcible rape (Pen. Code, § 261, subd. (a)(2))
and first degree residential burglary (§ 459) and the court sentenced him to
state prison. Appellant appeals. He contends: (1) the court erred by allowing
the prosecution to introduce evidence of his police interview on rebuttal; (2) the
jury instructions on the sex offenses “were constitutionally infirm[;]†and (3)
the prosecutor committed misconduct during closing
argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We
provide a brief overview of the facts here.
We provide additional factual and procedural details as germane to the
discussion of appellant’s specific claims.
Prosecution Evidence
A.
Prior Incidents
Tanya
T. (Tanya) dated appellant for about six months in 2003 and 2004. Tanya ended the relationship; the breakup was
not amicable and appellant continued to call her after the relationship ended. Twice, appellant called her at work and told
her, “I can see you.†Both times, Tanya
looked out her window and saw appellant watching her from the street or the
bushes. During their relationship,
appellant never mentioned sleepwalking or sleep-related issues, nor did he ask
her to lock the door or hide the keys while they were sleeping.
Early
one October
2008 morning, Raina S. (Raina) was awakened
by the sound of footsteps outside her bedroom window. She noticed a screen on the window next to her
bedroom was “pulled off a little bit.†Sheriff’s
deputy Karen Kennedy went to Raina’s home at 6:15 a.m. and saw
a pick-up truck pull away from the curb near Raina’s house. Kennedy stopped the truck and approached the
driver, later identified as appellant. Kennedy
told appellant Raina reported a prowler; in response, appellant said she had
texted him that “she needed help and was he going to be around.â€
side of Raina’s house and a light went on; he explained that when he saw the
light, he went back to his truck and waited for more lights so he knew Raina
was awake. Later, however, appellant told
Kennedy he went to Raina’s house to invite her to church that evening. Appellant responded to Kennedy’s questions in
a logical manner and did not appear confused.
B.
The Jane Doe
Incident
In April 2010,
Jane Doe was living alone in a house in Napa. The back laundry room windows, which faced
the backyard, did not have blinds. The
other windows had venetian blinds, which Doe kept closed. From the back windows, one could see into
Doe’s laundry room, kitchen, and living room.
Doe frequently walked to work and to Safeway.
On April 28, 2010, appellant called the police, claiming he was suicidal. The police issued a “be-on-the-lookout†for
appellant. Early that afternoon, Doe went
home from work. She drank two beers — uncommon
for her — because she was depressed and angry.
She had a difficult day at work and was “devastated†over the recent
death of her dog. At 4:30 p.m., Doe walked to Safeway and bought wine and groceries to prepare
dinner for a friend who was coming to her house that evening. Doe walked home, drank a glass of wine, and
prepared dinner. Doe and her friend ate
dinner and finished the bottle of wine Doe bought at Safeway. Then they went to a music club, where Doe
drank two more beers. The two friends
returned to Doe’s home at 10:00 p.m. They shared a bottle of wine and talked until 11:30 p.m., when Doe’s friend went home.
Doe — still “angry and depressed†and anticipating a difficult day at
work the following day — finished the bottle of wine and listened to music. She turned off the lights and went to bed
between 12:30 and 1:30
a.m. on April 29, 2010. Doe slept in the gray
turtleneck and bra she had worn to work.
Around 3:00 a.m. on April 29, 2010, Doe woke to a
man — later identified as appellant — “spooning [her] . . . trying to cuddle
with [her].†Doe did not feel the
effects of the alcohol she had consumed the night before, but she was “in
shock†to find a stranger in her bed. “[D]umbfounded,â€
Doe asked appellant who he was. He
responded, “how drunk are you? Don’t you
remember you invited me in?†He told Doe
his name was John and that he entered the house through the back door, which
Doe did not use and which she assumed was locked. Doe was worried appellant was going to rape
her. Doe asked appellant questions
because she thought she could “de-escalate the situation†if she engaged
appellant in conversation. Appellant did
not seem confused or disoriented.
Appellant pulled
Doe’s bra and turtleneck off and “got on top of [her].†Doe “smacked him across the face.†He smacked her back and threatened her,
saying several times: “[D]o you want to f . . . ing die? I’ll f . . . ing kill you.†Doe slapped appellant a second time and he
repeated his threats. At one point,
appellant put his hands over Doe’s mouth and said to her, “you shouldn’t be
walking around the house like that.â€
Appellant kissed
Doe’s mouth, sucked her breasts, and told her she had “nice cakes.†Then he rubbed Doe’s vaginal area and “partially
thrust†his fingers inside her vagina.
Appellant spat on Doe’s vagina to try to
lubricate her. He thrust his penis into
her vagina several times, partially penetrating Doe’s vagina and hurting
her. Then appellant rolled Doe onto her
stomach and pulled her into an “all fours position.†He commented, “I bet you like it this way†and
sodomized her several times. Doe “felt
like [she] needed to cooperate because [she] was scared for her life[.]†She did not scream, or try to run away,
because she thought appellant would catch her and kill her. She also faked an orgasm because appellant
told her he would leave when he was “done†and Doe thought faking an orgasm “would
make things quicker.â€
Next, appellant
turned Doe onto her back. He shoved his
penis into Doe’s mouth and ejaculated as she gagged. Doe spit the ejaculate onto the floor. After he ejaculated, Doe pulled up his orange
shorts and walked out the door, saying nothing.
Doe said, “goodbye, John†to make him think she was not upset and would
not call the police. A minute or two
after appellant left, Doe called 911. It
was hard for Doe to find her phone or dial 911 because her “hands were shaking
so much[.]â€
title="">[3]
Police officers
arrived at Doe’s house and saw she was visibly shaken. Law enforcement officers and evidence
technicians noticed the back door to Doe’s house was closed but unlocked, the
bedding was messy, and there was a pool of semen on the floor next to Doe’s
bed. Crime scene photographs showed a
silver pick-up truck parked on the street in front of Doe’s house at 8:00 a.m. A
assault response team (SART) examination and observed: (1) Doe had a swollen
uvula, red and swollen tonsils, and tiny bruises in her mouth that can be
caused by blunt force trauma; (2) Doe’s vagina had a bleeding laceration; and (3)
Doe’s anus had multiple lacerations. The
nurse concluded the physical findings were consistent with Doe’s description of
being sexually assaulted.
A criminalist
determined the fluid on Doe’s floor was semen and that a swab from Doe’s breast
contained human saliva. Another
criminalist tested the various swabs and fluids for DNA, including a swab from
appellant’s penis. The criminalist found
appellant’s and another’s DNA on the penile swab. The criminalist testified the chances the
foreign DNA belonged to
someone other than Doe was 1 in 280,0000 Caucasians. The criminalist found Doe’s and another’s DNA
on a breast swab and testified the chances the foreign DNA belonged to someone
other than appellant was 1.2 trillion Caucasians. An expert in wireless technology examined
appellant’s cell phone and determined he made 15 calls or texts in the area of
Doe’s residence from 2:00 a.m. to 8:30 p.m. on April 28, 2010 and used his cell
phone in the area of Doe’s house on the morning of April 29, 2010.
At 8:30 a.m. on April 29, 2010, law enforcement
officers stopped appellant driving a silver pick-up truck. Appellant was wearing orange shorts. He was disheveled and had “fresh scratches on
his face.â€
appellant at the police station and arrested him.
Defense Evidence
A.
Appellant’s
Testimony
In
April 2010, appellant had been having a “hard time†with his then girlfriend,
Amanda F. (Amanda), and often slept in his silver truck in Fuller Park. He sometimes made telephone calls from his
truck. He was depressed and anxious and
had been having difficulty sleeping. A
doctor had prescribed Klonopin and Effexor XR for his depression but appellant
did not take the medication consistently.
Appellant sometimes took Tylenol P.M. to help him sleep, and smoked
marijuana to calm down. Appellant
claimed a history of sleepwalking. According
to appellant, he had sleepwalking episodes in 2005 and was
Raina’s house in 2008.
On
April 28, 2010, appellant — who worked as a landscaper — spent the day picking
roses and “scratching [his] hands up.†Around
11:00 p.m., appellant parked a block away from Fuller Park and dozed
off in his truck. He had a “vague
memory†of being at the park, but he could not remember why he was there. Appellant explained he also had a “dream memoryâ€
of sitting on the curb “right across almost from Jane Doe’s house†where his
old boss lived. He explained, “I was
sitting on the curb . . . I have a memory of sitting on the curb just looking
at [the boss’s] house, that’s all I remember.â€
Appellant also had a “very, very brief†memory of “cuddling up with
someone in bed and trying to get warm.†Then
he remembered starting to wake up, “starting to become more conscious [of his]
surroundings[.]†Appellant remembered
talking to someone and “fooling around . . . some sort of sexual foreplay[.]â€
Appellant recalled
being orally copulated and being aroused, but he did not know who he was with
or where he was. According to appellant,
it was “very, very weird. Very, very
strange.†As appellant explained, “I
knew this old familiar feeling, so I didn’t freak out or nothing, because I had
woke up slowly.†Appellant did not
remember talking to Doe, but he did remember she mentioned her name, said she
had to go to work, and that she asked him to leave. Appellant left Doe’s house through the back
door. He walked to the river, leaving
his truck parked near Doe’s house. He
tried to remember what happened, but he could not. This “memory lapse†was a “familiar feelingâ€
to appellant.
About
30 minutes later, appellant went back to get his truck and saw law enforcement
officers. He was afraid, “kinda [
remember what happened[.]†He fell
asleep in the bushes. When he woke up,
the police were gone. He found his truck
and drove away. Shortly thereafter, the
police stopped appellant and took him to the police station, where Officer
McCarthy interviewed him. Appellant was
afraid to tell Officer McCarthy he did not remember what happened with Doe, so
he made up a story by “fill[ing] in the gaps†in his memory. At first, appellant thought Doe was “trying
to set [him] up†because he said something that “hurt her feelings†but — after
reading his statements to the police and the police reports — he realized he
had been sleepwalking during the incident.
On
cross-examination, appellant testified he pleaded no contest to a prowling
charge in the 2008 incident with Raina. Appellant
admitted lying during his police interview; he claimed he was embarrassed he
did not know what happened with Doe, so he made up a story.
Later, he claimed he was confused and
upset during the police interview and was “having anxiety attacks.†Appellant also admitted he lied to his mother
and his daughter about the incident. He conceded
he told his mother he was very enthusiastic about the defense of
unconsciousness, which he had discovered while performing legal research in
jail. He told his daughter he “need[ed]
more of a defense.†In addition,
appellant told his daughter, his girlfriend, his brother, and his mother to
come to court and testify about his sleepwalking episodes.
B.
Dr. Kin Yuen,
M.D.’s Testimony
Dr. Yuen testified for the defense as an
expert in “medicine and sleep [ ] disorders.†After interviewing appellant and conducting a
limited physical examination in jail, she determined appellant had a severe obstructive
sleep apnea. Dr. Yuen estimated
appellant stopped breathing 20-30 times a night. According to Dr. Yuen, sleep apnea can
precipitate a sleepwalking episode. Factors precipitating a sleepwalking episode
also include use of prescription medications and illegal drugs, and
depression. Appellant told Dr. Yuen he
smoked marijuana, but did not tell her he had tested positive for
methamphetamine on April 29, 2010.
Appellant told Dr. Yuen he had a history
of sleepwalking and described the sleepwalking episodes. According to Dr. Yuen, people can engage in
atypical sexual behavior while sleepwalking.
A person is unconscious of his actions while sleepwalking and, upon
awakening, can “feel very disoriented†and “confused because they don’t realize
how they got there.†This confusion can
last for up to 30 minutes. A sleepwalker
may try to explain or fill in memory gaps if he fears what he may have done
while sleepwalking.
Dr. Yuen testified appellant’s account of
the incident was consistent with someone who is sleepwalking. She explained, “[a]s a physician generally we
give the patient [the] benefit of the doubt, so the question is whether his
story is possible, and that’s how I render my opinion regarding [ ] whether
that was a possibility or not.â€
C.
Other Testimony
Robert Hansen, a
supervisor for the Napa Department of Parks and Recreations Services, testified
about a 2004 or 2005 incident when a disheveled appellant appeared at work at 4:40 a.m., several hours before his shift began. Appellant was not wearing work clothing and seemed
confused and disoriented; he said he was building a bomb shelter. Hansen did not know if appellant was
sleepwalking or under the influence of drugs. Appellant’s older brother testified appellant
sleepwalked from age one or two until age six or seven. Appellant’s brother also testified appellant
had “amnesia†— he would not remember sleepwalking the next day.
Appellant’s 22-year-old
daughter testified that when she lived with appellant in 2007, he had sleeping
issues: he had difficulty sleeping, woke up frequently at night, and sometimes
woke up, walked out to the living room “and he was kind of like just awake but
not awake[.]†Appellant’s daughter
recalled a 2005 incident when appellant seemed to be under the influence of
drugs but could have been sleepwalking. When
she visited him in jail, appellant told his daughter he had been sleepwalking
when he went to Doe’s house. He also
told his daughter Doe orally copulated him, that he “stuck [his] fingers in her[,]â€
and that had methamphetamine in his system the day of the incident.
Appellant’s
ex-girlfriend, Amanda, testified she lived with appellant for about a year and
a half. During that time, appellant had
irregular sleep patterns and slept three to four hours a night but Amanda did
not recall appellant sleepwalking or experiencing memory lapses. According to Amanda, appellant was “[a]bsolutely
not†capable of sexually assaulting Doe.
Amanda talked to appellant on the phone on the morning of April 29, 2010 and he cried, mumbled, and told her he missed her and wanted to reconcile. He also told Amanda he had consensual sex
with a drunk woman he met downtown. During
a conversation with appellant while he was in custody, appellant told Amanda
his defense had changed: he now claimed he was sleepwalking during the incident
with Doe and did not remember certain things about the incident. Amanda conceded appellant’s sleepwalking
defense was different than what appellant originally told her about having
consensual sex with an intoxicated woman he met downtown.
Verdict and Sentencing
The jury
convicted appellant of forcible rape (§ 261, subd. (a)(2)); forcible oral
copulation (§ 288a); sodomy by use of force (§ 286, subd. (c)(2)(A)); sexual
penetration with a foreign object by force and violence (§ 289, subd. (a)); and
first degree residential burglary (§ 459) and found various sentencing
enhancements true. The court sentenced appellant to 50 years to
life in state prison.
DISCUSSION
I.
Discretion by Allowing the Prosecution to
Appellant’s Police Interview on
Rebuttal
and Any Error Was Harmless
Appellant
contends the court erred by allowing the prosecutor to introduce evidence of his
“admissions to the police†during rebuttal rather than during the People’s
case-in-chief. He claims the error
violated “California statutory procedures†and his right to due process of law under the
federal and state Constitutions.
A.
The Rebuttal
Testimony
During the
defense case, the prosecutor told the court she planned to introduce an
hour-long videotape of appellant’s interview with Officer McCarthy. After the last defense witness testified,
defense counsel objected, explaining, “I believe this is something that should
have been part of their case in chief.
The officer was present. He
testified in their case in chief. He was
able to testify at that time about the statements that Mr. Boyce gave. [¶]
Also, Mr. Boyce testified in this case about his statement. He admitted he lied in his statement. So this isn’t a situation where we’re
bringing in rebuttal evidence to contradict what he said since he’s already admitted
in our case that he lied. So I don’t see
[how] the purpose of rebuttal is served by that.â€
In
response, the prosecutor argued the People were “under no obligation to
introduce the defendant’s statement in our case in chief.†The prosecutor explained, “I purposefully
designed the case so that I wouldn’t be introducing his statements. I wanted there to be a situation that if he
was going to assert an affirmative defense that he was going to need to take
the stand. I was able to impeach him and
now the proper course is to bring in those original statements. . . . [¶] The
. . . defendant admits his lies, but also what the jury needs to see, because
it was a large part of their own expert’s testimony as well as the testimony of
their client, was [ ] he glassy eyed, was he confused, was he unable to answer
questions, was he able to handle a linear conversation . . . was he . . . quick
to answer questions or did he seem confused and unsure about what was going
on.†The prosecutor claimed the evidence
was relevant because it “flies right in the face†of appellant’s sleepwalking
defense.
The court permitted
the prosecution to present the videotape in rebuttal. It concluded: “the demeanor, even though it is
approximately four to five hours after the incident, [is] still close enough
given what Dr. Yuen had to say about sleep patterns and other factors. I think it has some relevance and I think the
People can take their chance on the statements and not have to present it in
their case in chief. It was basically
something that can be defined as exculpatory and they don’t have to find
something is basically an exculpatory comment until they realize the defense
has actually put consciousness in issue, which as we all know doesn’t have to
be put in. . . . So I will allow the statement at this time.â€
During the interview — which occurred at
9:00 a.m. on April 29, 2010 — appellant told Officer McCarthy he went to
Safeway on April 28, 2010, where he met Doe for the first time. Doe was drunk.
They walked to the park, where Doe “was drinking a bottle of wine.†Doe told appellant she “wanted to go home to
cry†and started crying on appellant’s shoulder “about how her dog died.†Doe told appellant she lived near the park
and asked him where he was staying. Appellant
decided to go with Doe to her house. She
went home first to clean up and left the back door open for him. Appellant entered Doe’s house through the
back door and found her lying in bed, in the dark. They hugged and kissed. They cuddled and were “lovey-dovey†but they
did not “do it†because he thought she smelled badly. Doe “got kind of pissed,†so appellant had her
orally copulate him. Then Doe said, “‘Get
in here, big boy.’†When appellant
declined, Doe “flipped out†and called him names because he would not have sex
with her. According to appellant, Doe
was “mad†because “I got mine . . . and didn’t give her hers.†Appellant claimed Doe was “psychotic . . .
something’s wrong with her†because she was “flirty†and “wanting to get busyâ€
one minute and then talking to herself the next minute. He also said the scratches on his face were
from “picking roses.â€
Officer McCarthy told appellant Doe had
described the incident differently. In
response, appellant said, “Well, as mad as she was, she probably f . . . ing
thinks I raped her. She probably called
rape, huh?†Appellant repeatedly denied
raping Doe and suggested the police “check her for a psych eval.†Appellant claimed he was telling Officer
McCarthy “the honest truth.†Officer
McCarthy lied to appellant to see if he had been at Doe’s house “hours beforeâ€
and whether he had “stalked her prior to going inside.†Officer McCarthy told appellant that someone
saw him in Doe’s house. In response, appellant
changed his story. He said he “couldâ€
have been looking in the window before he went in the house and admitted the
lights were on when he entered.
Officer McCarthy also told appellant the
SART examination revealed Doe had injuries to her vagina and anus, even though
Officer McCarthy did not have access to the results when he interviewed
appellant. In response, appellant told
McCarthy he had tried to insert his penis into Doe’s anus and that she might
have injuries because of the size of his penis.
At the end of the interview, Officer McCarthy arrested appellant. Officer McCarthy testified appellant was
“very lucid†during the interview. “[H]e
was more than willing to provide information, and he was pretty forthright with
some of the lies he was telling.â€
B. The Admission of Appellant’s Police
Interview as Rebuttal Evidence Was not Erroneous and Any Error was Harmless
As
our high court has explained, “‘[i]f evidence is directly probative of the
crimes charged and can be introduced at the time of the case in chief, it
should be.’ [Citation.] ‘[P]roper rebuttal evidence does not include
a material part of the case in the prosecution’s possession that tends to establish
the defendant’s commission of the crime. It is restricted to evidence made necessary by
the defendant’s case in the sense that he has introduced new evidence or made
assertions that were not implicit in his denial of guilt.’ [Citation.] [¶] The reasons for the
restrictions on rebuttal evidence are ‘to (1) ensure the orderly presentation
of evidence so that the trier of fact is not confused; (2) to prevent the
prosecution from “unduly magnifying certain evidence by dramatically introducing
it late in the trial;†and (3) to avoid “unfair surprise†to the defendant from
sudden confrontation with an additional piece of crucial evidence.’ [Citations.] [¶] ‘The decision to admit
rebuttal evidence over an objection of untimeliness rests largely within the
sound discretion of the trial court and will not be disturbed on appeal in the
absence of an abuse of that discretion.’
[Citation.]†(
668, 761 (Mayfield);
1199 (Young); see also § 1093, subd.
(d) [procedural order for criminal trials].)
Appellant
contends his statements during the interview “tended to prove his guilt†and “constituted
admissions which properly belonged in the prosecution’s case-in-chief.†We disagree.
Throughout the interview, appellant denied raping Doe. He claimed the encounter was consensual, that
it was initiated by Doe, and that she claimed he raped her to retaliate against
him. Evidence of the police interview
became relevant on rebuttal because appellant testified and asserted an
affirmative defense of unconsciousness, which was “‘not implicit in his general
denial of guilt.’†(Young, supra, 34 Cal.4th at p. 1199, quoting People v. Carter (1957) 48 Cal.2d 737, 753-754 (
reasons: (1) to impeach appellant’s trial testimony that he was unconscious
during the incident; (2) to impeach appellant’s testimony that he was confused
and upset during the police interview; (3) to impeach defense expert Dr. Yuen’s
testimony that appellant was prone to sleepwalking; and (4) to demonstrate
appellant was a liar. Testimony “that
repeats or fortifies a part of the prosecution’s case that has been impeached
by defense evidence may properly be admitted in rebuttal.†(Young,
supra, 34 Cal.4th at p. 1199.)
Appellant’s
reliance on a line of cases beginning with Carter
is misplaced. In Carter, the prosecution withheld from the defense the defendant’s
distinctive red cap, a crucial piece of evidence found at the murder scene. (Carter,
supra, 48 Cal.2d at pp. 743,
752.) Because the defense did not know
the cap had been found at the scene, it presented a defense that the defendant
was not in the vicinity at the time of the murder. The prosecution then sprung the cap on the
defense as a surprise in rebuttal. The
California Supreme Court “disapproved of the prosecutorial tactic of
intentionally withholding crucial evidence properly belonging in the
case-in-chief to take unfair advantage of the defendant.†(People
v. Friend (2009) 47 Cal.4th 1, 44.)
because, as our high court has explained, that case applies “only to ‘“crucialâ€â€™
or ‘“materialâ€â€™ evidence that properly belonged only in the
case-in-chief.†(Ibid., quoting People v. Bunyard
(1988) 45 Cal.3d 1189, 1212.) Here, the
police interview “was not evidence that by itself established guilt or was
directly probative of the crimes charged.
[Citation.] Rather it was
collateral evidence bearing on [appellant’s] credibility.†(Ibid.)
We conclude the
court did not err by admitting evidence of appellant’s police interview on
rebuttal. (See People v. Hart (1999) 20 Cal.4th 546, 653 [court’s discretion to
admit rebuttal evidence will not be disturbed absent “‘palpable abuse’â€];
abuse of discretion where court allowed prosecution to use the defendant’s
“statement in rebuttal, even though it was known to the prosecution before
trial and could have been used during the prosecution’s case-in-chiefâ€].) In any event, any error was undoubtedly
harmless under either the federal or state standard. (Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman);
People v. Watson (1956) 46 Cal.2d
818, 836.) Evidence of appellant’s guilt
was overwhelming: appellant had two prior stalking incidents and had pleaded no
contest to prowling on a woman’s property.
At trial, Doe testified appellant forcibly raped, sodomized, and
digitally penetrated her, and that he forced her to orally copulate him. The physical evidence — including the SART
examination results and the DNA evidence — corroborated Doe’s testimony. Moreover, and as appellant concedes, the jury
heard the bulk of his statements during the interview on
cross-examination. Finally, the evidence
supports a jury conclusion that appellant’s sleepwalking defense was completely
contrived and not credible. Any error in
permitting the prosecution to introduce the police interview on rebuttal was
harmless under any standard.
II.
Any Instructional Error Was Harmless Beyond a
Reasonable Doubt
Next,
appellant claims the jury instructions on the sex offenses — forcible rape,
forcible oral copulation, sodomy, and sexual penetration — “were
constitutionally infirm†because they permitted conviction on alternate theories
but omitted “an essential element for one of those theories.â€
All
four of the charged sex crimes required the prosecution to prove: (1) the act
(oral copulation, sexual intercourse, sodomy, and sexual penetration with a
foreign object); (2) lack of consent by Doe; and (3) appellant accomplished the
act under one of various alternate theories (force or fear, future threats of
bodily harm, etc.) (See §§ 261, 286,
286, 289; CALCRIM Nos. 1000 [Rape or Spousal Rape by Force, Fear or Threats],
1015 [Oral Copulation by Force, Fear, or Threats], 1030 [Sodomy by Force, Fear,
or Threats], 1045 [Sexual Penetration by Force, Fear, or Threats].)
According to
appellant, the jury instructions “allowed the jury to convict [him] of the four
charged sex crimes on the basis that the acts were accomplished by threatening
to retaliate, a threat of future harm, without requiring the jury to find a
necessary element for conviction under that theory — a reasonable possibility
that appellant would execute the threat.â€
Appellant claims the jury instructions “provided that a defendant is
guilty if he ‘accomplished the act by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury’ and then defined ‘duress’ as a ‘direct
or implied threat of force, violence, danger, hardship, or retribution that
causes a reasonable person to do something that he or she would not otherwise
do’ and ‘retribution’ as ‘a form of payback or revenge.’ They . . . omitted, however, an essential
element required for conviction under the second theory — that the jurors must
find there was a reasonable possibility that the threat of future harm would be
carried out.â€
title="">[6]
Assuming the instructions at issue were erroneous, we
conclude any error was harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 24.) The
evidence overwhelmingly established appellant used direct force and violence
and threats of immediate harm to
accomplish the sex acts. Appellant
slapped Doe; as he did so, he said, “[D]o you want to f . . . g die? I’ll f . . . ing kill you.†There was no possibility the jury would have interpreted
appellant’s threat to kill Doe as a threat of future — rather than immediate — harm, particularly where appellant
concedes he “slapped and threatened [ ] Doe at the same time[.]†Appellant’s threat contained no suggestion
that it would be carried out at some future time. Rather, the threat to kill Doe, coupled with the
slaps to her face, were an explicit demonstration of appellant’s immediate readiness
to use force and violence to overcome Doe’s resistance and accomplish the sex
acts. Even assuming appellant’s threats
could be viewed as threats of future
harm, Doe testified appellant threatened to kill her and that she did not try
to run away because she thought appellant would catch her and kill her,
demonstrating “a reasonable possibility that the defendant would carry out the
threat.†(CALCRIM No. 1000.)
The evidence is
not — as appellant contends — “‘open to the interpretation’†that he is not
guilty. The record simply does not
support a finding that appellant did not accomplish the sex offenses by force
or fear and it is not likely a juror would have predicated his guilt under the
theory of future retaliation. The
omission of the definition of future threat from the jury instructions was not
prejudicial.
III.
Appellant’s Prosecutorial Misconduct Claim Fails
Appellant’s
final contention is the prosecutor committed misconduct during her rebuttal argument
by defining “abiding conviction as nothing more than a gut feeling[.]†To forestall a habeas claim of ineffective
assistance of counsel, we address this claim despite his trial counsel’s
failure to request a jury admonition. (
462.)
A.
Closing Arguments
During defense
closing argument, counsel defined reasonable doubt as the “highest standard†in
the criminal justice system. Counsel
explained, “there are several different standards that we have in the criminal
justice system, reasonable doubt being the highest.†He reiterated, “[r]easonable doubt is the
highest standard. It’s the highest. It’s not well, maybe. It[’s] not well, it could have happened this
way. It’s a situation where I believe
that five years, ten years from now when you think back on this trial, you say
I did the right thing, there was no doubt in my mind, there’s no reasonable
doubt. That’s the best example that I
can give you. But if you have some doubt
. . . in this case, and there’s a tremendous amount of doubt, you must find
Brad Boyce not guilty.â€
In her rebuttal
argument, the prosecutor argued:
“Defense counsel
during his closing . . . said that the law is that if you have some doubt, you
must find the defendant not guilty. But
that is a misstatement of the law. The law
is provided to you by jury instruction No. 220.
conviction that the charge is true. That’s
the language of the jury instruction.
It’s not that if you have some doubt you must find him not guilty. The jury instruction goes on to say, the
evidence need not eliminate all possible doubt because everything in life is
open to some possible or imaginary doubt.â€
The prosecutor
continued, “What we’re looking for is reasonable doubt. So the defendant would like you to believe
that it’s reasonable that he entered that home and was unconscious. It was reasonable that he made his way in
through that gate. It was reasonable
that he sleepwalked into her bedroom and vaginally, anally raped her. That he threatened her life, that he changed
his identity, that he gave her a false name, that he was slapped in the face
twice, that he threatened her life, that he forced her to orally copulate him
and that he forced his fingers into her vagina, yet he was sleepwalking. See, he’d like you to think that that is a
reasonable recitation of facts, a reasonable story. And that is for you to decide. [¶] I say that
that’s nonsense, and I want to be very clear about what the standard is. See, defense attorneys very much like to put
reasonable doubt on a scale and sometimes they’ll have a picture or a graph and
they put reasonable doubt at the very highest, this almost insurmountable
possibility that I couldn’t possibly reach.
What is it? It’s an abiding
conviction of the truth of the charge.
“When I was in law
school I didn’t like it. I asked my
professor what that meant. Did it mean
that I was 90 percent sure or 99 percent sure?
I like having numbers associated with my standards of proof, and the law
professor told me it’s when you know in your gut that it’s true. That’s what it means. It’s an abiding conviction that the charge is
true. It’s an abiding conviction that
you know that Dallas Boyce forcibly raped Jane Doe, that he knew what he was
doing, and that he entered the house with that intent.â€
B.
The Prosecutor
Did Not Commit Misconduct
As noted above,
appellant claims the prosecutor committed “serious misconduct in equating
abiding conviction with a gut feeling[.]â€
According to appellant, by “telling the jury to apply a completely
subjective and improper definition of reasonable doubt . . . diminished the
presumption of innocence and reduced the State’s burden of proof in violation
of due process and the Sixth Amendment[.]†Our high court has held “‘[i]t is improper for
the prosecutor to misstate the law generally [citation], and particularly to
attempt to absolve the prosecution from its prima facie obligation to overcome
reasonable doubt on all elements. [Citation.]’
[Citation.]†(People
v. Hill (1998) 17 Cal.4th 800, 829-830, overruled on another ground in
Cal.4th 1046, 1069, fn. 13; see also People
v. Mendoza (2007) 42 Cal.4th 686, 702.) If an allegation of prosecutorial misconduct
“‘“focuses upon comments made by the prosecutor before the jury, the question is
whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.†[Citation.]’â€
(People v. Carter (2005) 36
Cal.4th 1215, 1263.)
Appellant relies
on three cases: People v. Nguyen
(1995) 40 Cal.App.4th 28 (Nguyen),
1169 (Johnson I), and
976 (Johnson II) to demonstrate
prosecutorial misconduct, but these cases do not assist him.
the prosecutor trivialized the standard of proof by equating it with other life
decisions or judgments, some of which were as reflexive and mundane as changing
lanes while driving. (
court concluded the error was harmless because the prosecutor also referred
the jury to the reasonable doubt instruction.
In Johnson I and
prosecutor — equated the reasonable doubt instruction with making decisions
about vacations and getting out of bed. (
Cal.App.4th at pp. 978-986.)
Here, and in
contrast to the cases discussed above, the prosecutor did not equate reasonable
doubt to mundane decision-making. Rather,
she read CALCRIM No. 220, the jury instruction on reasonable doubt, and
explained and repeated that reasonable doubt was “an abiding conviction that
the charge is true . . . when you know in your gut that it’s true. . . . It’s
an abiding conviction that you know that Dallas Boyce forcibly raped Jane Doe,
that he knew what he was doing, and that he entered the house with that
intent.†There was no prosecutorial misconduct. The prosecutor expressly directed the jury to
follow the trial court’s instructions as to those facts on which the
prosecution was required to prove beyond a reasonable doubt. The prosecutor was not — as appellant
contends — diluting the People’s burden of proof; she was asking the jurors to
trust their gut feelings about the evidence.
People v. Barnett (1998) 17
Cal.4th 1044, 1156, is instructive. There, the prosecutor commented during closing
argument: “‘If you have that feeling, that conviction, that gut feeling that
says yes, this man is guilty, he’s guilty of these crimes . . . that’s beyond a
reasonable doubt.’†(
contained references to the terms “‘moral evidence’†and “‘moral certainty,’â€
the defendant claimed the prosecutor’s comments made it reasonably likely the
jury would have misunderstood the instruction as allowing for a finding of
guilt on a standard lower than proof beyond a reasonable doubt. (Barnett,
supra, at p. 1156.)
Our high court
rejected this argument and explained, “When considered as a whole, the
prosecutor’s argument could not have misled the jury regarding the appropriate
standard of proof. The prosecutor was
not purporting to define ‘moral certainty’ as having a ‘gut feeling’; rather,
he was directing the jurors to trust their gut feelings in assessing the
credibility of witnesses and resolving the conflicts in the testimony. Shortly after making the ‘gut feeling’
reference, the prosecutor clarified that jurors should ‘look beyond the mere
words that have been testified to,’ ‘examine closely the various witnesses,
their demeanor, their attitude,’ and ‘apply sometimes a certain intuitive
reasoning to who has reasons to lie, who has not. And who to believe.’†(Barnett,
supra, 17 Cal.4th at p. 1157.) Here,
as in Barnett, the prosecutor was not
purporting to equate reasonable doubt as a gut feeling. We note the context in which the prosecutor
directed the jurors to trust their gut feelings in reviewing the evidence and
assessing credibility. After making the
“you know in your gut that it’s true†reference, the prosecutor repeated the
language of the jury instruction on reasonable doubt.
Our conclusion
that the prosecutor’s comments did not denigrate the reasonable doubt standard
“is reinforced by the fact that the trial court had repeatedly admonished the jurors,
both at the outset of trial and after closing arguments, that they were
required to follow the law and base their decision solely on the law and
instructions†as given to them by the court.
(Barnett, supra, 17 Cal.4th at p. 1159.) “Those admonishments were sufficient to dispel
any potential confusion raised by the prosecutor’s argument. No basis for reversal appears.†(Ibid.) “Jurors are presumed to understand and follow
the court’s instructions.†(
662.)
DISPOSITION
The judgment is
affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
name="_ftn1" title="">[1] Unless
otherwise noted, all further statutory references are to the Penal Code. By separate order filed this date, we deny
appellant’s related petition for writ of habeas corpus (A139898) raising an
ineffective assistance of counsel claim.
name="_ftn2" title="">[2] Although
Raina and appellant were friends, he had not been to her house in “years†and
she did not have his phone number. Raina
did not text appellant.
