P. v. Brown

Filed 10/15/07 P. v. Brown CA2/7

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal on remand from the Supreme Court. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette, and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan-Pithey, Corey J. Robins and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Artice L. Brown appeals from the judgment entered after a jury convicted him of one count of rape, with a true finding as to a special allegation qualifying the conviction for sentencing under Californias One Strike law, and one count of second degree robbery. We modify the judgment to reflect an award of 859 days of actual custody credit and, as modified, affirm the judgment.[1]

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Brown was charged by information with three counts of rape (Pen. Code, 261, subd. (a)(2))[2](counts 1, 2 and 3), each with the special allegation under the One Strike law he had kidnapped the victim and the movement of the victim had substantially increased the risk of harm to the victim above that level of risk necessarily inherent in the underlying rape offenses ( 667.61, subds. (a) & (d)(2)), and one count of robbery ( 211) (count 4).[3] The information also specially alleged Brown had served one prior prison term within the meaning of section 667.5, subdivision (b).

2. Summary of the Evidence Presented at Trial

Jessica S., then 16 years old, spent the day of July 25, 2003 selling candy outside several stores, earning between $150 and $200. Jessica was hearing impaired but had some ability to read lips.

On her way home in the early evening she got off a bus in a residential area of Long Beach to transfer to another bus. While waiting for the second bus, she decided to visit a friend, who frequented a residential garage that could be entered from a nearby alley. As Jessica walked to the alley, she was approached by Brown, who asked her if she wanted to kick it with him. Feeling uncomfortable with Brown and sensing something was wrong, Jessica told him she had to leave. She continued to walk toward her friends garage, but Brown followed her and asked crudely whether she wanted to have sex with him. When Jessica declined, Brown grabbed her and forced her to kiss him; she smelled alcohol on his breath. Jessica broke free, screaming for help, and ran down the alley and into her friends garage.

Although Jessicas friend was not in the garage, two other men were there. Jessica tried to explain to the men, who spoke mostly Spanish, that she was being followed and needed help. Jessica hid behind a couch, while one of the men held the garage door closed and the other picked up a crowbar. Brown forced his way through the door into the garage, telling the men Jessica was his lady and he would beat them up if they got involved. Brown found Jessica behind the couch and asked her to come with him. When she refused, he slapped her face seven or eight times, as she struggled to break free. Brown threatened to hit Jessica with his closed fist if she did not follow him.

Jessica ran two or three feet outside the garage, begging the two men to help her, but Brown caught up to her and grabbed her. As she continued to scream for help, Brown pulled Jessica ‑‑ while slapping her, threatening her with his fist and telling her to be quiet ‑‑ into an alcove in the alley, 72 1/2 feet from her friends garage. Brown threw Jessica against the gate at the back of the alcove, scratching her back. He then pushed her to the ground, took off all of her clothes and forced her to have sex with him. When Brown was done, he grabbed Jessicas purse from her and ran away.

Brown was apprehended less than 100 yards from the scene, with $103 in cash and a tube of mascara in the pocket of his pants. Jessica identified Brown in a field show-up as her assailant. Her purse was found in a trashcan in the alley. Although the police officer who had detained Brown did not observe any signs of intoxication, tests administered approximately two hours after the incident revealed Brown had a blood alcohol content of 0.12 or 0.13.

Jessica was taken to the hospital where she was given a sexual assault examination by a forensic nurse. Jessica had numerous scrapes and scratches on her face, chest, arms, hands, back, legs and feet. Her nose was red and swollen; and she had bruises under her right eye and on the left side of her forehead and bumps on her head. An abrasion also was found at the entrance to Jessicas vagina; and there was redness to her cervix. The same nurse examined Brown, who had an abrasion on his left arm and an ulcer on his penis. A swab of Jessicas vagina revealed the presence of sperm, which matched Browns DNA profile.

In his defense Brown presented the testimony of Dr. Arthur Kowell, a neurologist and clinical professor at the UCLA School of Medicine, who had examined Brown in jail in March 2005, referred him for a variety of diagnostic procedures and reviewed various medical records and the police report in this case. According to Dr. Kowell, Brown suffered from an organic brain dysfunction in the frontal lobe area; and two psychologists had developed similar diagnoses for Brown. Dr. Kowell testified that dysfunction could affect a persons impulse control and Browns history demonstrated impulse control problems and attention deficit hyperactivity disorder since childhood. Dr. Kowell also testified a polysubstance abuse problem would aggravate impulse control issues. Because Brown still had a blood alcohol content of 0.12 to 0.13 percent approximately two hours after the incident, the level would have been higher at the time of the attack on Jessica and would have intensified Browns impulse control problem. Based on Dr. Kowells testimony, defense counsel argued to the jury Brown did not have the specific intent necessary for a conviction on the robbery offense charged in count 4 or for true findings on the One Strike allegations with respect to the underlying rape offenses charged in counts 1, 2 and 3.

The parties stipulated Brown had been convicted on February 14, 2001 of unlawful driving or taking a vehicle in violation of Vehicle Code section 10851 and proof of that crime, which occurred on January 4, 2001, required the specific intent to permanently or temporarily deprive the owner of his or her vehicle.

3. The Jurys Verdict and Sentencing

The jury found Brown guilty of one count of rape (count 1) and one count of second degree robbery (count 4). As to count 1, the jury found true the special allegation under section 667.61, subdivision (d)(2), Brown kidnapped the victim and the movement substantially increased the risk of harm to the victim. It found Brown not guilty of the rape offenses charged in counts 2 and 3.

The trial court sentenced Brown to an aggregate state prison term of 30 years to life, consisting of the upper term of five years for the robbery charged in count 4, plus a consecutive term of 25 years to life for the rape charged in count 1.[4]

CONTENTIONS

Brown contends (1) the evidence is insufficient to support the jurys true finding on the special allegation under section 667.61, subdivision (d)(2); (2) the prosecutor engaged in prejudicial misconduct by referring in her closing argument to Browns demeanor at trial; (3) the trial court committed reversible error by asking defense counsel twice not to ask leading questions of Browns expert witness on direct examination; and (4) the trial court prejudicially erred by admitting evidence of his prior conviction for unlawfully taking or driving a vehicle. With respect to his sentence, Brown contends (1) the trial courts imposition of the upper term on count 4 and consecutive sentences on counts 1 and 4 violated his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and (on remand) also under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham); (2) he is entitled to one additional day of actual custody credit; and (3) the $20 court-security fee should be stricken.

DISCUSSION

1. The Evidence Is Sufficient To Support the Jurys True Finding on the Special Allegation Under Section 667.61, Subdivision (d)(2)

a. Standard of review

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime or the special allegation present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the jurys finding]. (Bolin, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

Substantial evidence in this context means evidence which is reasonable, credible, and of solid value ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ i.e., evidence that is credible and of solid value ‑‑ from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

b. Substantial evidence demonstrates Brown kidnapped Jessica and, as a result, substantially increased the risk of harm to her

Pursuant to Californias One Strike law, a person convicted of rape in violation of section 261, subdivision (a)(2), under one or more of the circumstances specified in section 667.61, subdivision (d), must be punished by a state prison term of 25 years to life.[5] ( 667.61, subd. (a).) One of the circumstances specified in section 667.61, subdivision (d) ‑‑ the one found true by the jury in connection with Browns conviction for the rape of Jessica charged in count 1 ‑‑ is that [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 in subdivision (c). ( 667.61, subd. (d)(2).)

Whether the defendants movement of a victim is merely incidental to the underlying rape offense is determined by the scope and nature of the movement, including the actual distance the victim is moved (although no minimum distance is required) and the environment in which the movement occurred. (People v. Rayford (1994) 9 Cal.4th 1, 12; see People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152.) [I]ncidental movements are brief and insubstantial, and frequently consist of movement around the premises where the incident began. [Citations.] (People v. Diaz (2000) 78 Cal.App.4th 243, 247.) Whether the movement caused a substantial increase in the risk of harm to the victim is dependent on the decreased likelihood of detection, the danger inherent in a victims foreseeable attempts to escape, and the attackers enhanced opportunity to commit additional crimes. [Citations.] (Rayford, at p. 13; Dominguez, at p. 1152.) The increased risk of harm may be physical or psychological and need not necessarily materialize during the crime. (People v. Nguyen (2000) 22 Cal.4th 872, 886; Rayford, at p. 14.)

Brown contends the evidence is insufficient to support the jurys true finding on the section 667.61, subdivision (d)(2), special allegation because his movement of Jessica from the garage into the alcove in the alley was merely incidental to the rape and did not substantially increase the risk of harm to her.[6] The evidence, however, establishes Jessica, in trying to escape from Brown, ran two to three feet out of the garage before he grabbed her and pulled her 72 1/2 feet down the alley to a secluded alcove, while slapping and threatening her. Brown then threw Jessica against the gate at the back of the alcove and pushed her to the ground before raping her. After completing the rape Brown fought with Jessica for her purse and ran away, leaving Jessica naked in the alcove.

Based on both the distance Brown moved Jessica and his use of violence to effect that movement, pulling Jessica from the open alley to the alcove was not merely incidental to the underlying rape. (See, e.g., People v. Shadden (2001) 93 Cal.App.4th 164, 168-169 [movement not incidental when defendant moved rape victim nine feet from public area of store to stores private back room]; People v. Salazar (1995) 33 Cal.App.4th 341, 344, 348 [movement not incidental when defendant moved rape victim out of public view by taking her 29 feet from outside walkway into motel bathroom].) Contrary to Browns contention, his movement of Jessica is not similar to the defendants initial movement of the victim in People v. Diaz, supra, 78 Cal.App.4th at pages 248-249, from a sidewalk to a grassy strip immediately adjacent to the sidewalk, in full view of a major urban street. The initial movement in Diaz did not cause a substantial change in the surroundings and may have been only a short distance from the location where the defendant initially contacted the victim. Here, in contrast, Brown altered Jessicas surroundings by moving her a substantial distance out of the open alley to an alcove where she could not been seen by someone passing by.

As to the increased risk of harm element of the special allegation, pulling Jessica to the alcove, enclosed on three sides and out of sight of anyone walking by the alley, decreased the risk Brown would be detected and made it more dangerous for Jessica to attempt to escape and less likely she could succeed in doing so. In addition, by moving her to the alcove, Brown inflicted greater injury on Jessica, both during and after the move, ultimately forcing her to submit to him in fear he was going to break her neck. There was thus ample evidence Browns movement of Jessica substantially increased the risk of harm to her above that level of risk necessarily inherent in the underlying rape offense in count 1. (People v. Shadden, supra, 93 Cal.App.4th at p. 170 [risk of harm to victim substantially increased when defendant moves her out of public view, making it less likely for others to discover the crime and decreasing the odds of detection]; People v. Salazar, supra, 33 Cal.App.4th at pp. 348-349 [defendant substantially increased risk of harm to victim by confining and isolating her in a motel room bathroom giving him an enhanced opportunity to perpetrate any additional crimes he desired].)

2. The Prosecutors Comments During Closing Argument on Browns Courtroom Demeanor Did Not Constitute Reversible Error

a. The remarks were not so egregious or reprehensible as to amount to misconduct under either the federal or state standard

Brown based his defense on the expert testimony of Dr. Kowell, arguing his impulse control problems prevented him from forming the specific intent necessary to convict him of robbery and to find true the special allegation he had kidnapped Jessica with intent to rape her.[7] During closing argument the prosecutor rebutted that contention, noting the jury had observed Brown during trial and he had maintained control while witnesses testified about what he had done, Doesnt sound like somebody who cant control their anger; thats impulsive; doesnt know what they are doing.[8] On appeal Brown contends the prosecutors reference to his demeanor during trial notwithstanding his decision not to testify constitutes prejudicial misconduct.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution only when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Navarette (2003) 30 Cal.4th 458, 506.)

Generally a prosecutors comment on a nontestifying defendants demeanor during a trial on guilt is improper unless he or she merely asked the jury to ignore the defendants conduct. (People v. Boyette (2002) 29 Cal.4th 381, 434 [In criminal trials of guilt, prosecutorial references to a nontestifying defendants demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendants right not to testify. (3) Consideration of the defendants behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character. [Citation.]].) Accordingly, Brown is correct the prosecutor should not have commented on his courtroom demeanor to rebut Dr. Kowells expert testimony. Nevertheless, this brief statement did not rise to the level of prosecutorial misconduct under either the federal or state standard.[9] Brown does not suggest the remark was anything more than an isolated comment, much less part of a pattern of egregious conduct that infected his trial with such unfairness as to deny him due process. (People v. Navarette, supra, 30 Cal.4th at p. 506.) In addition, nothing in the record suggests the prosecutor used the remarks in a deceptive or reprehensible attempt to persuade the jury of Browns guilt on the robbery charge and the One Strike allegation so as to violate state law. (Ibid.)[10]

b. Brown forfeited any claim the prosecutors remarks constituted improper comment on his election not to testify

Although not expressly articulated as a claim of Griffin error, Browns contention the prosecutor committed prejudicial misconduct by referring to his courtroom demeanor implicitly suggests a claim the prosecutors closing argument was, in effect, an impermissible comment on his election not to testify in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. (See Griffin v. California (1965) 380 U.S. 609, 615 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin) [neither the People nor the trial court may convert defendants decision not to testify into evidence of a defendants guilt; to do so impermissibly burdens defendants invocation of his or her Fifth Amendment rights]; People v. Medina (1974) 41 Cal.App.3d 438, 457 [finding Griffin error when prosecutors comments had the effect of urg[ing] the jury to believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury].) To the extent Brown complains of an indirect infringement on his right not to testify, he has forfeited that assertion by failing to object to the prosecutors remark at trial and to request the jury be admonished to disregard the impropriety. (People v. Turner (2004) 34 Cal.4th 406, 421 [defendants failure to object to alleged Griffin error forfeited claim on appeal]; People v.Medina (1995) 11 Cal.4th 694, 756; People v. Mincey, supra, 2 Cal.4th at p. 446.) Contrary to Browns contention, nothing in the record suggests an objection by his counsel would not have been sustained and followed immediately by an admonition to the jury to disregard the argument or that these remedies would not have cured any prejudice. (People v. Green (1980) 27 Cal.3d 1, 34 [[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection would have cured the harm. If it would, the contention must be rejected].) Accordingly, a timely objection was required.

c. Brown has not demonstrated prejudice as a result of his counsels failure to object to the prosecutors remark

Recognizing the forfeiture problem, as an alternative to his claim of prosecutorial misconduct, Brown urges us to hold his counsels failure to object to the prosecutors comments constituted ineffective assistance of counsel. To prevail on this claim, Brown must establish his counsels representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland); People v. Williams (1997) 16 Cal.4th 153, 215.)

The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action might be considered sound trial strategy under the circumstances. (Strickland, supra,466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention [that counsel provided ineffective assistance] must be rejected.].) [R]arely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 678.)

In considering a claim of ineffective assistance of counsel, it is not necessary to determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697.) It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. (People v. Williams, supra, 16 Cal.4th at p. 215; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

In this case, even if the prosecutors remarks constituted Griffin error and Browns counsel had no valid tactical reason for failing to object and request an admonition,[11]Browns ineffective assistance of counsel claim must be rejected because he has failed to demonstrate a reasonable probability the outcome of his trial would have been different absent that error. The trial court instructed the jury under CALJIC No. 2.60 that a defendant in a criminal trial has a constitutional right not to testify and it must not draw any inference from the fact a defendant does not testify or permit the matter to enter into its deliberations, as well as CALJIC No. 2.61 that, in deciding whether to testify, the defendant may rely on the state of the evidence and the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the crime charged. Additionally, the jury was instructed statements by the prosecutor are not evidence (CALJIC No. 1.02) and the verdict must be based on evidence actually received at trial and not from any other source (CALJIC No. 1.03). Moreover, Dr. Kowell admitted on cross-examination some of the diagnostic tests given to Brown did not reveal any abnormalities and the test that did reveal an abnormality will indicate abnormalities of some sort in a large majority of the general population, casting in doubt the defense theory Browns impulse control problems prevented him from forming the requisite specific intents for the robbery charge and the One Strike allegation. Given Dr. Kowells own concessions, the strength of the evidence against Brown on the specific intent issues, and the brevity of the prosecutors remarks, which did not involve any direct comment on Browns failure to testify, we are convinced Browns counsels failure to object to the prosecutors comment on Browns courtroom demeanor did not adversely affect the outcome of his trial. (People v. Waidla (2000) 22 Cal.4th 690, 719.)

3. The Trial Court Did Not Commit Reversible Error By Requesting Defense Counsel Not To Ask Leading Questions

Brown contends the trial court committed reversible error by requesting his counsel twice during the direct examination of Dr. Kowell, his expert witness, not to ask leading questions.[12] Brown maintains the trial courts admonishment of his counsel was improper because an expert witness may be asked leading questions on direct examination and the erroneous chastising led the jury to believe Dr. Kowell was being coached and cast grave doubt on the experts testimony.

As an initial matter, Brown forfeited his claim any judicial error violated his rights by failing to object and request an admonition to the jury. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 [As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on that ground at trial]; People v. Snow (2003) 30 Cal.4th 43, 77-78.) Contrary to Browns contention, the trial courts alleged improper requests to his counsel do not indicate an objection would have been futile or an admonition to the jury would have failed to cure any misconduct. (People v. Sanders (1995) 11 Cal.4th 475, 531 [[d]efendants failure to object at trial . . . particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal. [Citation.] The purpose of the rule requiring timely objection is to give the trial court the opportunity to cure any error, if possible, by an admonition to the jury. [Citation.]].) The requests by the trial court here certainly do not suggest the evident hostility between the court and defense counsel necessary to render an objection and jury admonition futile. (See Sturm, at p. 1237.)

Independent of the issue of forfeiture, Browns argument lacks any merit. The trial court has both the inherent right and statutory duty to control the proceedings of a trial. (People v. Burnett (1993) 12 Cal.App.4th 469, 475; 1044 [It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved].) In this regard, [a] court may control the mode of questioning of a witness and comment on the evidence and credibility of witnesses as necessary for the proper determination of the case. [Citations.] Within reasonable limits, the court has a duty to see that justice is done and to bring out facts relevant to the jurys determination. [Citation.] A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citation.] (People v. Raviart (2001) 93 Cal.App.4th 258, 269.) We evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the courts remarks deprived the accused of his right to trial by jury. (People v. Sanders, supra, 11 Cal.4th at pp. 531-532.)

Nothing about the trial courts two requests of defense counsel in this case suggests the court was discrediting the defense or creating the impression it had aligned itself with the prosecution. (People v. Raviart, supra, 93 Cal.App.4th at p. 269.) Even if defense counsels leading questions to Dr. Kowell were technically permissible (People v. Campbell (1965) 233 Cal.App.2d 38, 44), the trial court had the inherent power to control the mode of questioning to accomplish the effective ascertainment of the issues relevant to the jurys determination. ( 1044.) Indeed, the trial courts requests to defense counsel may well have been intended to help the defense by allowing the jury to hear Dr. Kowells explanation of Browns diagnosis and its potential impact on Browns behavior, rather than counsels summation of the opinion in question form.[13] It was not the trial courts requests but rather the leading questions being asked by defense counsel that created the risk the jury would conclude Dr. Kowell was being coached. The trial courts limited and courteous requests to defense counsel in no way deprived Brown of his right to a jury trial. (People v. Sanders, supra, 11 Cal.4th at pp. 531-532.)

In any event, even if the courts requests could be construed as improper, they were harmless even under the most stringent beyond-a-reasonable-doubt standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) The jurys rejection of the defense theory that Browns impulse control problems prevented him from forming the specific intent required for the robbery charge and the One Strike allegation was consistent with the evidence: Brown forced Jessica to kiss him and asked her crudely to have sex with him during their initial street encounter before he struggled with her in the garage and pulled her across the alley to the alcove where he raped and robbed her. That evidence amply demonstrates Brown had the specific intent both to rape Jessica when he started to kidnap her and to permanently deprive her of her property when he took her purse. Moreover, as noted, it likely was of benefit to Brown for his counsel not to ask leading questions of his only witness. In addition, any impropriety in the trial courts requests was mitigated by the instruction to the jury under CALJIC No. 17.30, I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion. It is presumed the jurors followed that instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

4. The Trial Court Did Not Prejudicially Err By Permitting the Admission of Evidence of Browns Prior Felony Conviction

Once Browns counsel indicated he planned to present testimony from Dr. Kowell that Brown had a brain dysfunction causing impulse control problems and to use that testimony to argue to the jury Brown lacked the specific intent required for a conviction of robbery and for a true finding on the One Strike allegation, the People sought to introduce evidence that Brown had a prior felony conviction, by virtue of a guilty plea, for the unlawful taking or driving of a vehicle, a specific intent crime. (See People v. Garza (2005) 35 Cal.4th 866, 876 [A person can violate [Vehicle Code] section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding)].) Overruling Browns objection to admission of the evidence based on Evidence Code sections 1101, subdivision (b), and 352,[14]the trial court allowed the People to ask Dr. Kowell on cross-examination whether he had considered the fact of the prior conviction in reaching his opinion about Brown. In addition, the parties stipulated Brown had been convicted . . . of the crime of unlawful driving or taking of a vehicle, in violation of Vehicle Code section 10851A, a felony, on February 14, 2001, and that that crime was committed on January 4th of 2001, and that crime is a specific intent crime, and the intent required is either to permanently or temporarily deprive the owner of their vehicle. On appeal Brown contends admission of evidence regarding his prior felony conviction constitutes an abuse of the trial courts discretion under Evidence Code sections 1101, subdivision (b), and 352.

No abuse of discretion occurred. Contrary to Browns contention, the evidence was not impermissible character evidence under Evidence Code section 1101, subdivision (b), because it was not admitted for the purpose of proving Brown had a criminal disposition.[15] (See People v. Felix (1993) 14 Cal.App.4th 997, 1004-1005 [Evidence of prior offenses is not admissible simply as character evidence, i.e., to show a propensity to commit crimes in general or a particular class of crimes].) Rather, the evidence was relevant and admissible to rebut Dr. Kowells testimony that Brown had impulse control problems and the defenses ensuing argument that he lacked the specific intent necessary for a robbery conviction and a true finding on the special allegation under section 667.61, subdivision (d)(2). (People v. Carter (2005) 36 Cal.4th 1114, 1166 [all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is . . . [that] having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive].) The jury was specifically instructed to consider the evidence only as it related to the issue of Browns specific intent for the robbery and One Strike allegation,[16]an issue Brown made relevant by his defense at trial. (See Carter, at pp. 1166-1167 [trial court has broad discretion in determining relevance of evidence]; People v. Sanders, supra, 11 Cal.4th at p. 512 [trial court is vested with wide discretion in determining relevance].)

Browns argument fares no better under Evidence Code section 352.[17] A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) Undue prejudice refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. . . . (People v. Karis, supra, 46 Cal.3d at p. 638.) A trial courts determination pursuant to Evidence Code section 352 likewise is reviewed for an abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)

As the trial court found, evidence of the prior felony conviction for a specific intent crime rebutted Browns defense he lacked the capacity to form the specific intent necessary to convict him of robbery or to find true the One Strike allegation. By pleading guilty to unlawful taking or driving a vehicle under Vehicle Code section 10851, Brown admitted the elements of the crime, including the requisite specific intent. (People v. Enos (1973) 34 Cal.App.3d 25, 40-41 [A voluntary plea of guilty is the equivalent of a conviction of the crime and includes an admission of every element of the crime].) Thus, the probative value of the evidence was high. Moreover, the conviction was from February 2001, fairly close in time to the instant offenses. In fact, Brown was on parole for the prior conviction at the time he raped Jessica and stole her purse. Furthermore, the nature of the prior conviction ‑‑ unlawful driving or taking a vehicle ‑‑ was not likely to inflame the jury and sway it to convict Brown of the rape and robbery of Jessica. In addition, as explained, the trial court guarded against the possibility of undue prejudice by appropriately limiting the jurys use of Browns prior felony conviction to the specific intent issue on which it was relevant; and it is presumed the jury followed the courts instruction. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)[18]

5. The Trial Court Did Not Commit Prejudicial Error inImposing the Upper Term on Count 4 and Consecutive Terms on the Rape and Robbery Convictions

In sentencing Brown the trial court imposed the upper term of five years on the robbery charged in count 4 and elected to impose consecutive terms on the rape charged in count 1 and the robbery charged in count 4. ( 669, 1170; see 667.61, subd. (g) [One Strike law does not require consecutive sentencing for additional, nonsexual offenses; [t]erms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable].)[19] Brown contends the trial courts imposition of the upper term on count 4 and consecutive terms on counts 1 and 4 based on factual determinations made by the court, not the jury, violated his Sixth and Fourteenth Amendment right to a jury trial.

In Cunningham, supra, 549 U.S. ___, decided after we filed our original opinion in this case, the United States Supreme Court reaffirmed Blakely, supra, 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2438, 147 L.Ed.2d 435], overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), and held Californias determinate sentencing law violates a defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, at pp. 863-864.)

Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238,[20]and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), the Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities renders a defendant eligible for the upper term sentence under the determinate sentencing law, so that any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id. at p. 812.) The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating factors are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. (Id. at p. 815.)

In People v. Sandoval (2007)41 Cal.4th 825 (Sandoval) the Court held, if no aggravating factors have been found consistent with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the recidivism exception recognized by the United States Supreme Court in Cunningham and Blakely), the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) . . . . (Sandoval, supra, 41 Cal.4th at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.)

The trial court in this case selected the upper term sentence for the robbery charge (count 4) because the victim was particularly vulnerable. Not only was she deaf, she was 16 years of age. (See Cal. Rules of Court, rule 4.421(a)(3).) Imposition of the upper term based on the trial courts own factual finding of this single aggravating circumstance, which did not involve a prior conviction or even more broadly the defendants recidivism, violated Browns constitutional right to a jury trial. (Sandoval, supra, 41 Cal.4th at pp. 837-838 [imposition of upper term sentence based on fact victim was particularly vulnerable, if not admitted by defendant or established by jurys verdict, violates defendants Sixth Amendment rights; see Cunningham, supra, 549 U.S. at p. ___; Blakely II, supra, 41 Cal.4th at p. 815.) However, from this record we are confident the jury would necessarily have found true beyond a reasonable doubt that Jessica S., Browns victim, was in fact particularly vulnerable; and the trial courts error, therefore, was harmless.

Although a determination whether the victim was particularly vulnerable may in some cases require an imprecise quantitative or comparative evaluation of the facts that makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court, this is not one of those cases. (Sandoval, supra, 41 Cal.4th at p. 840.) The evidence was undisputed that the victim of Browns brutal rape was both young and disabled ‑‑ factors specifically identified by the Supreme Court as justifying the conclusion on appeal that a victim was indisputably vulnerable and that the trial courts error in relying on that aggravating circumstance was harmless. (See Id. at p. 842 [[t]he record, however, does not reflect such a clear-cut instance of victim vulnerability that we confidentially can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable].)

In our original opinion in this case, based on Black I, supra, 35 Cal.4th at pages 1261 through 1264, we held the trial courts imposition of consecutive terms for the rape charged in count 1 and the robbery charged in count 4 did not violate Browns federal constitutional right to a jury trial. In Black II, supra, 41 Cal.4th at page 821, the Court held the United States Supreme Courts decision in Cunningham does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. In light of that holding, we again deny Browns constitutional challenge to the imposition of consecutive sentences.[21]

6. Brown Is Entitled to 859 Days of Actual Custody Credit

A defendant is entitled to credit for all days spent in custody from the date of arrest to the date of sentencing. ( 2900.5.) Brown was arrested on July 25, 2003 and sentenced on November 29, 2005, entitling him to 859 days of actual custody credit. Because the trial court awarded Brown only 858 days of actual custody credit,[22]we modify his sentence to reflect 859 days of actual custody credit and order the abstract of judgment corrected. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [incorrect calculation of legally mandated custody credit is an unauthorized sentence that may be corrected at any time].)

7. The Court-security Fee Need Not Be Stricken

In sentencing Brown the trial court imposed a $20 court-security fee. ( 1465.8, subd. (a)(1) [To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses . . . .].) Brown contends the fee must be stricken because the offenses for which he was convicted were committed before the effective date of the statute and the statute does not expressly provide it is to apply retroactively. (See 3 [No part of [the Penal Code] is retroactive, unless expressly so declared].)

In People v. Wallace (2004) 120 Cal.App.4th 867 Division Five of this court held imposition of the $20 court-security fee on a defendant whose crimes were committed prior to the effective date of section 1465.8, subdivision (a)(1), did not violate federal or state ex post facto principles because the minimal fee is nonpunitive and furthers the purpose of the statute to insur[e] appropriate funding levels for court operations and providing a more rational process for planning court security. (Wallace, at p. 878.) Subsequently, Division Two of the First District held that, apart from ex post facto principles, the court-security fee as imposed on a defendant whose crimes were committed before the effective date of section 1465.8, subdivision (a)(1), attached a new legal consequence to, and increased [the defendants] liability for, conduct that occurred before [the statute] became effective and, therefore, could not be applied retroactively. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006 (S141415) (Carmichael).) Division One of the First District then addressed both the ex post facto and retroactivity issues and declined to strike imposition of the fee on either ground. (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006 (S142508) (Alford).) With respect to the retroactivity issue, the court in Alford concluded, The last act or event necessary to trigger the legal consequence of the court security fee was defendants conviction, although that was of course necessarily dependent upon his earlier commission of the offense. More importantly, as we have observed, the purpose and impact of section 1465.8 are nonpunitive: to promote and fund court security, when necessary. [Citation.] And because the court security fee does not constitute punishment for past crimes, we do not perceive any unfairness that attends the lack of notice of a change in the law following the commission of the offense. [Citation.][23] (Alford, at p. 624.)

We believe the better approach to the retroactivity issue is that taken by the appellate court in Alford. Because it was Browns conviction that triggered imposition of the fee and section 1465.8, subdivision (a)(1), serves the nonpunitive purpose of promoting and funding court security, the statute need not expressly state it is to be applied retroactively in order for the fee to be imposed on a defendant whose crimes were committed prior to its effective date. In rejecting Browns request to strike imposition of the court-security fee, however, we do so without prejudice to any relief to which he may be entitled based on the Supreme Courts opinion in Alford.

DISPOSITION

The judgment is modified to reflect an award of 859 days of actual custody credit. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J. WOODS, J.

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[1] Our original opinion in this case was filed on December 29, 2006, prior to the decisions by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] and the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II ) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). After granting and holding Browns petition for review on the question whether imposition of the upper term sentence on the robbery charge (count 4) violated Browns federal constitutional right to a jury trial, on September 12, 2007 the California Supreme Court transferred the case to us with directions to vacate our original decision and reconsider the cause in light of Black II and Sandoval. The parties submitted supplemental briefing pursuant to California Rules of Court, rule 8.200(b). Except for our discussion of the constitutionality of Browns sentence on count 4, the opinion we now file is substantially the same as our opinion of December 29, 2006.

[2] Statutory references are to the Penal Code unless otherwise indicated.

[3] A fifth count for assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) was dismissed by the People prior to trial.

[4] The prison-prior allegation under section 667.5, subdivision (b), which was not pursued by the People, was stricken by the trial court.

[5] The purpose of the One Strike law is to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction, where the nature or method of the sex offense place[d] the victim in a position of elevated vulnerability. [Citation.] [Citation.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 186.)

[6] The jury was instructed under CALJIC No. 9.54, The defendant is accused in a special allegation of violation of Penal Code section 667.61, subdivision [(d)(2)] of the crime of kidnapping to commit forcible rape as to counts one, two and three. The specific intent to commit forcible rape must be present when the kidnapping commences. Kidnapping is the unlawful movement by physical force of a person, without the persons consent, for a substantial distance where the movement is not merely incidental to the commission of the forcible rape and where the movement substantially increases the risk of harm to the person moved over and above that necessarily present in the crime of forcible rape itself. In this allegation, namely, kidnapping to commit forcible rape, the risk of harm requirement refers to the risk of either physical or mental harm. Kidnapping is also the unlawful compulsion of another person, without that persons consent, and because of a reasonable apprehension of harm to move for a substantial distance where such movement is not incidental to the forcible rape, and where the movement substantially increases the risk of harm to the person moved over and above that necessarily present in the crime of forcible rape itself. Brief movements to facilitate the crime of forcible rape are incidental to the commission of the forcible rape. On the other hand, movements to facilitate the forcible rape that are for [a] substantial distance rather than brief are not incidental to the commission of the forcible rape. In order to prove this allegation, each of the following elements must be proved: A person was unlawfully moved by the use of physical force; the movement of that person was caused with the specific int