P. v. Forbs
Filed
1/24/13 P. v. Forbs CA5
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DEROLLY FORBS,
Defendant and
Appellant.
F061487
(Super.
Ct. No. SF015415A)
APPEAL from
a judgment of the Superior Court of
Cliff
Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G.
Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Derolly Forbs was charged
with forcible rape (Pen. Code,
oral copulation (§ 288a, subd. (c)(2); count 2), possession of a firearm
by a felon (§ 12021, subd. (a)(1); count 3), and assault with a deadly
weapon (§ 245, subd. (a)(1); count 4).
Appellant’s first trial ended with the jury acquitting him on the oral
copulation count. However, the jury was
unable to reach a verdict and the trial court declared a mistrial as to the
remaining counts.
On retrial, appellant was convicted
of forcible rape (count 1), possession of a firearm by a felon (count 2), and
misdemeanor assault (§ 240), the lesser included offense of assault with a
deadly weapon (count 3). The jury also
found true that appellant had a prior conviction of forcible rape, and the
trial court found true enhancement allegations based on the prior
conviction. The court sentenced
appellant to prison for an aggregate term of 61 years to life.
Appellant’s main contention on
appeal is that the trial court erred during the second trial by admitting his
testimony from the first trial.
Appellant’s prior testimony included denials that he had sex with the
victim. DNA testing completed after the
first trial contradicted this testimony.
Appellant argues his waiver of the privilege against compulsory
became invalid because the circumstances on which the waiver was based—i.e.,
the lack of DNA testing—changed and, therefore, the court should have excluded
his testimony from the first trial from the second trial in which inculpatory
DNA evidence was introduced. Appellant
also contends that Evidence Code section 1108 and CALCRIM No. 1191 are
unconstitutional. We affirm the judgment
and order a nonsubstantive correction
to the abstract of judgment and minute order of sentencing.
During motions
in limine, the prosecutor responded to the defense’s motion to produce any lab
results associated with the case by stating, “I’m not aware of any. I will call the lab and find out if they ever
did a preliminary screening on the sexual assault kit, but I’m not aware that
they did.†The court then granted the
defense motion to exclude any and all results of DNA testing or laboratory
findings based on the prosecutor’s representation that “There is no DNA that
we’ve done.â€
At trial, Marie C.,
appellant’s adult stepdaughter and the alleged victim in the case, testified
that appellant had sex with her when she did not want him to. The same day she went to the hospital and
underwent a sexual assault exam during which “[t]hey swabbed everythingâ€
including “the inside†like “[a] PAP smear.â€
The arresting officer testified
that appellant voluntarily provided him with a DNA sample from his mouth.
Appellant testified that he did not
have sex with Marie. He had erectile
dysfunction and was unable to have an erection or ejaculate at the time of the
alleged incident.
Appellant
admitted he was convicted of rape in 1995 based on an incident in which he had
sex with his “kids’ mother†after she said she did not want him to touch her.
The Second Trial
During the second trial, the
prosecution presented evidence that vaginal swabs obtained from Marie during
the sexual assault exam contained sperm cell fractions, and that appellant’s
DNA sample matched the genetic traits of the sperm cell fractions.
A redacted transcript of
appellant’s testimony from the first trial was read into evidence.
Appellant elected not testify in
the second trial.
Appellant’s First Trial
Appellant
contends the trial court erred in admitting his testimony from the first
trial. Appellant’s argument may best be
expressed in the words of his own brief:
“[Appellant] waived his privilege against
self-incrimination based on the circumstances known at the time of the first
trial; the state rested virtually its entire case on [Marie’s] testimony, and
presented no physical evidence to corroborate [Marie’s] claims. Under these circumstances, [appellant] waived
his privilege against self-incrimination and testified that he did not have
intercourse—consensual or otherwise—with [Marie]. But when the state decided to test and
introduce DNA proving that [appellant] had at least consensual sex with
[Marie], the entire factual basis for [appellant’s] decision to testify in the
first place—that there was no DNA evidence against him—was destroyed. …[B]ecause [appellant] knowingly and
voluntarily waived his constitutional right based upon an assumed set of
circumstances, but the circumstances later changed and rendered invalid the
assumptions on which his initial waiver was made, the initial waiver was
rendered invalid, and his subsequent testimony was inadmissible.â€
This contention lacks merit.
“[Generally,]
a defendant’s testimony at a former trial is admissible in evidence against him
in later proceedings. A defendant who
chooses to testify waives his privilege against compulsory self-incrimination
with respect to the testimony he gives, and that waiver is no less effective or
complete because the defendant may have been motivated to take the witness
stand in the first place only by reason of the strength of the lawful evidence
adduced against him.†(
U.S. 219, 222, fn. omitted.)
Appellant
acknowledges that he knowingly and voluntarily waived his privilege against
instance, based on the strength of the prosecution’s evidence against him. According to appellant, he elected to testify
at his first trial based on the assumption the prosecution would be unable to
corroborate the victim’s testimony with physical evidence due to the lack of
DNA testing. Thus, he essentially made a
tactical decision to take the stand and testify that he did not, and could not,
have sex with the victim, hoping the jury would believe and acquit him. Instead, the jury hung on the rape count and
appellant was retried. In the interim
between the first and second trials, DNA testing was completed, the results of
which contradicted appellant’s prior testimony.
Contrary to appellant’s assertion,
these circumstances did not invalidate his waiver of the right against
self-incrimination in the first trial.
The possibility his first trial might end in a mistrial and that DNA testing
might be conducted in the event of a retrial were foreseeable circumstances at
the time of the waiver. The record
indicates that appellant and his counsel were aware that testable samples had
been collected from appellant and the victim during the police investigation,
and that the state simply had not gotten around to testing them. There is no indication appellant elected to
testify based on a mistaken belief that DNA testing could never be done on the samples.
And even though the court excluded evidence of DNA test results in the
first trial based on the prosecutor’s representation that DNA testing had not
been conducted, appellant does not claim that he understood this to mean DNA
test results would be excluded in future proceedings. Appellant points to no evidence supporting
his claim that his waiver of the right against self-incrimination in the first
trial was invalid because it was based on “[m]istake, ignorance or any other
factor overcoming the exercise of free judgment .…†(People
v. Cruz (1974) 12 Cal.3d 562, 566).
We have reviewed the cases cited by
appellant to support his argument on appeal.
None address situations analogous to the one here.
decisions holding it was error for the court to fail to obtain a new express waiver
of the right to a jury trial after the prosecutor filed an amended pleading
charging a new offense or adding a prior conviction or penalty
enhancement. (People v. Walker (1959) 170 Cal.App.2d 159, 162, 165-166 [amended
information charged sale of heroin rather than mere possession];
555, 557-559 [amended information added five priors]; People v. Hopkins (1974) 39 Cal.App.3d 107, 118-119 [amended
information subjected defendant to additional 10-year minimum sentence]; see
also People v. Ray (1965) 238
Cal.App.2d 734, 735 [when defendant pleads guilty in municipal court and then
priors are added in superior court, defendant has not waived the right to jury
trial on the priors].)
The other cases appellant cites are
likewise inapposite. (
[under fruit of poisonous tree doctrine, if defendant “impelled†to testify at
one trial by admission of illegally obtained confession, his testimony is
inadmissible at a second trial]; In re
Crumpton (1973) 9 Cal.3d 463, 464-465 [defendant who pleaded guilty to
kidnapping for purposes of robbery entitled to habeas relief to withdraw plea
where plea based on mistaken legal understanding of kidnapping statute and
undisputed preliminary hearing testimony established defendant could not have
been convicted of kidnapping had he stood trial]; Ferrel v. Superior Court (1978) 20 Cal.3d 888, 892, fn. 5 [dicta
observing that “when a valid limitation on or suspension of pro. per.
privileges occurs, a defendant should be afforded the opportunity to reconsider
whether he wants to proceed in pro. per. or have counsel appointed to represent
himâ€].)
Appellant has presented no basis
for us to conclude that his waiver of the right against self-incrimination in
the first trial was invalid or that the trial court erred in admitting his
testimony in the second trial.
section 1108 and CALCRIM No. 1191
The trial court admitted evidence
of appellant’s prior rape offense under Evidence Code section 1108, which
provides in pertinent part that “(a) In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not inadmissible pursuant to Section
352.â€
The trial court also instructed the
jury pursuant to CALCRIM No. 1191 as follows:
“The People presented evidence
that the defendant committed the crime of rape by force or fear of Lancia G.
that was not charged in this case. This
crime is defined for you in these instructions.
You may consider this evidence only if the People have proved by a preponderance
of the evidence that the defendant, in fact, committed the uncharged offense.
“Proof by a preponderance of
the evidence is a different burden of proof from proof beyond a reasonable
doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. If the People
have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the
defendant committed the uncharged offense, you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to
commit sexual offenses and based on that decision also conclude that the
defendant was likely to commit and did commit the crime of rape by force or
fear as alleged in Count 1.
“Now, if you conclude that the
defendant committed the uncharged offense, that conclusion is only one factor
to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of
Count 1. The People must still prove
said allegation beyond a reasonable doubt.
Do not consider this evidence for any other purpose except as you may be
instructed.â€
Appellant raises two related
arguments for purposes of future review.
First, he contends Evidence Code section 1108 violates his
held Evidence Code section 1108 does not offend due process. (People
v. Loy (2011) 52 Cal.4th 46, 60-61;
People v. Wilson (2008) 44 Cal.4th 758, 797; People v. Falsetta (1999) 21 Cal.4th 903, 910-922; see
1018, 1024-1027 [upholding a similar federal rule].) Second, appellant contends instruction with
CALCRIM No. 1191 violated his due process rights under the federal and
state Constitutions. Appellant raised no
objection to the instruction in the trial court. In any event, in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (
constitutionality of a substantially identical instruction, the 1999 version of
CALJIC No. 2.50.01,
name="_ftnref5" title="">[5] rejecting arguments similar to those raised by
appellant here. (See also
Cal.App.4th 1085, 1103-1104 [rejecting due process challenge to CALCRIM
No. 1191 under compulsion of Reliford];
People v. Cromp (2007) 153 Cal.App.4th
476, 479-480 [same].) We are bound by
the foregoing Supreme Court authority. (
(1962) 57 Cal.2d 450, 455.)
Minute Order of Sentencing
In footnote
2 of his opening brief, appellant correctly observes that the abstract of
judgment and minute order of sentencing contain errors concerning the numbering
of counts that must be corrected. The
abstract and minute order indicate that the trial court imposed a six-year term
on count 3 (for the possession of a firearm by a felon), and a concurrent
90-day jail term on count 4 (for the misdemeanor assault), reflecting the
numbering of the counts in the original information. In the amended information filed following
appellant’s acquittal on the oral copulation count in the first trial, count 3
was renumbered as count 2, and count 4 was numbered as count 3.
We remand
the matter to the trial court with directions to amend the abstract of judgment
and the minute order to reflect the correct numbering of counts for the
offenses of possession of a firearm by a felon and misdemeanor assault. In all other respects, the judgment is
affirmed.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
KANE, J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">[1] Further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] Since appellant does not challenge the
sufficiency of the evidence to support any of his convictions and we have not
found any error requiring a prejudice analysis, we will only summarize the
facts pertinent to appellant’s claim that the trial court erred in admitting
his testimony from the first trial.
