Filed 7/25/13 P. v. Mendoza CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LEOBARDO MENDOZA,
Defendant and
Appellant.
F064214
(Super.
Ct. No. CRM016007C)
APPEAL
from a judgment of the Superior Court
of
County. Ronald W.
Hansen, Judge.
Joseph
Shipp, 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, Carlos A. Martinez and
Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
A jury
found defendant Leobardo Mendoza guilty of rape
in concert, forcible rape, false imprisonment, and unlawful sexual intercourse
with a minor. On appeal, defendant
contends: (1) the court erred in
admitting needless gang evidence, denying defendant due process and a fair
trial; (2) defendant was denied his Sixth
Amendment right of confrontation because the presence of a support person
during the complaining witness’s testimony lacked any particularized showing of
need; (3) the prosecutor committed four instances of misconduct; (4) the court erred
in failing to instruct on juror unanimity with respect to the charge of rape in
concert; (5) the written pinpoint instruction on gang evidence was overbroad
and unfair; (6) the court erred in failing to
evidence of an oral admission of a defendant should be viewed with caution; (7)
failure to allege or at least secure instructions and jury findings as to the
age of the victim under the rape counts violated state law and further denied
defendant due process of law and the right to a jury determination on a fact
increasing the maximum term; (8) the statutory rape conviction must be reversed
because it is based on the same act of intercourse as relates to the rape
conviction; and (9) the cumulative effect of these errors deprived defendant of
due process and the right to fair trial by an impartial jury. We will affirm the judgment.
PROCEDURAL HISTORY
In an
amended information filed September 6,
2011, by the Merced County District Attorney, defendant was charged
with rape in concert (Pen.
name="_ftnref1" title="">[1] Code, § 264.1; count 1), forcible rape
(§ 261, subd. (a)(2); count 2), false imprisonment by violence, menace,
fraud, or deceit (§§ 236, 237; count 3), and unlawful sexual intercourse
with a minor more than three years younger (§ 261.5, subd. (c); count
4). Defendant pled not guilty to all
counts.
On September 14, 2011, the jury
returned guilty verdicts on all counts.
On January 13, 2012, defendant was
sentenced to the upper term of 11 years for forcible rape (count 2), and a
consecutive three-year midterm for rape in concert (count 1). As to each of the remaining counts (false
imprisonment by violence and unlawful sexual intercourse) the upper term of
three years was imposed and stayed pursuant to section 654. Accordingly, defendant was sentenced to a
total of 14 years in state prison.
FACTS
On January 16, 2011, 15-year-old
Kayla was staying overnight at her friend Adrianna’s house; Adrianna was also
15. The girls were looking for a ride to
a high school event being held in Modesto. Neither girl had a driver’s license or a
car. Eventually, Adrianna’s friend Rudy
Gamboa or “Poet†agreed to give them a ride.
When Gamboa
arrived, he was accompanied by three others:
defendant or “Caco,†Edgar Partida, and a third individual
she had never met the others.
Kayla sat
next to defendant in the backseat of the car.
She noted defendant had gang-related tattoos on his face, including
“Ene†and “Livingston†over his eyebrows, and horns tattooed above that. She believed defendant was a gang
member. She was “kinda creeped out†by
defendant’s appearance.
Gamboa said
he did not want to take them to Modesto,
so the girls were going to “chill with them in Livingstonâ€
instead. During the drive to Livingston,
Kayla introduced herself and then referred to herself as “guera,†meaning
“white girlâ€; she also mentioned her upcoming 16th birthday.
The car
stopped at a Valero gas station because the men wanted to buy alcohol. Edgar Partida snatched $40 from Kayla and
used her money to buy beer. She was
angry. When they stopped at a house
nearby, their group joined others “partying†in a garage. They started drinking beer and smoking,
playing cards, and listening to music.
Specifically, they were listening to local gangster rap. The rap was about “Livas,†a gang in Livingston
and included songs about gangs and “killing Scraps.†Kayla believed the people at the house were
gang members.
After
drinking eight to ten Budweiser beers
and smoking from two “blunts†or marijuana cigarettes, Kayla was drunk. She was a “little bit stumbly†and her speech
was slurred. Kayla recalled hearing
gunshots while in the garage partying; although the shots sounded close, she
did not know where they had come from.
Kayla was “spooked†by the gunshots, but there was no way to leave the
party because her parents thought she was at Adrianna’s house.
Kayla went
inside to use the bathroom. She ran into
Edgar Partida near the front door. He
threw his arms around her and said, “Come with me†or “Let’s go,†pushing her
into a bedroom. She could not get away
from him. He shut the door and turned
off the lights. He pushed Kayla onto the
bed and started putting on a condom.
Kayla asked, “What the fuck? What
are you doing?†and Edgar Partida told her to be quiet. He unbuttoned her pants and tried to pull
them open. Kayla was trying to keep her
pants on and pushed him away. Edgar
Partida prevailed, pulling down her pants and restraining her, before forcing
his penis inside her vagina. She
repeatedly asked him to stop and told him she did not want to have sex with
him. She yelled at him but did not
scream to get anyone’s attention. The
assault did not last long because Edgar Partida heard gunshots and became upset
that “they were shooting the gun.†He
left the room. Kayla dressed and also
left the room.
Once in the
hallway, Kayla ran into the other individual who had been in the car
earlier. She did not know his name. He attempted to follow her into the bathroom;
she tried shutting the door “in his face.â€
She caught Gamboa’s eye and waved for help, but he smiled and looked away. In the bathroom, the man locked the door and
“was all over†her; she shoved him back and told him to get out. He said, “[N]aw, I want to fuck.†He tried to take off her clothes, putting his
hands in her pants and tugging. He
shoved her and hit her in the face with a handgun he had been carrying in his
pants; she fell to the floor. Kayla was
terrified and thought he was going to kill her.
She struggled, cried, and cussed at him.
He pulled her pants down and told her she was going to “ride†him. She refused and he called her a bitch. He forced his penis into her vagina. She did not want to have sex with him. The man stopped his assault when someone
spoke to him through the door.
Kayla
managed to get out of the bathroom and into the hallway. A group of people were standing quietly and
all the lights had been turned off.
Kayla saw a flashlight shine through the window near the front
door. Gamboa came up behind her and put
his left arm across her, covering her mouth with his hand. He told her to be quiet because the cops were
outside as a result of the gunshots. No
one opened the door for the police and they eventually left.
After the
police left, the lights were turned back on and people went back out into the
garage. Kayla found Adrianna on the
couch in the living room and she sat down nearby. At first she did not say anything to her
friend, but Kayla later told Adrianna that “something had happened†that she
“didn’t want to happen.†Kayla recalled
Edgar Partida sitting on the couch with Adrianna before Adrianna fell asleep there.
Kayla did
not try to leave the house, nor did she try to call anyone. She had her cell phone, but she could not
call her family because they thought she was at Adrianna’s house. Additionally, she was afraid her family would
retaliate and she did not want her brothers to get hurt. She had no one to call for help.
After
sitting in the living room for a long time, Kayla recalled defendant grabbing
her by the arm and leading her into a room.
Two others—Gamboa and Adrian Partida—followed behind. Once inside the back bedroom, the door was shut
and locked behind them. Defendant told
Kayla to take off her clothes. She
refused. The men laughed at her and
Gamboa shoved her onto the bed. She
tried to get back up, but he just pushed her back down again. Defendant walked around the bed and held
Kayla’s arms while Gamboa pulled off her pants.
Kayla recalled Adrian Partida standing at the end of the bed, recording
with a cell phone; she believed he was recording because of the way he was
holding the phone and because there was a light pointed in her direction.
After
removing Kayla’s pants, Gamboa put on a condom and put his penis in her
vagina. It was painful. Although he was talking to her, Kayla does
not remember what he was saying. She was
crying. She told him to stop, to get off
of her and to get away. Defendant
continued to hold her down while Gamboa assaulted her. Kayla recalls Gamboa leaving the room and
returning with Saran Wrap. Gamboa gave
the Saran Wrap to defendant, who wrapped it around his penis before putting it
into Kayla’s vagina. She did not want to
have sex with defendant and it hurt.
Then, although she could not see Gamboa and Adrian Partida, she heard
them rummaging in a dresser. Gamboa was
saying something about a knife or blade in the dresser. Defendant said they should carve their names
into Kayla’s stomach. Adrian Partida
then got on top of her and put his penis in her vagina; she does not know
whether he used a condom or not. She told
him he was “fucked up and cruel.†Kayla
fought him, but he held her down. After
he stopped, Adrian Partida left the room.
Kayla “felt
disgusting [and] terrified.†She was
afraid they would kill her; she knew there was a gun and had heard
gunshots. She gathered her stuff, put on
her clothes, and went into the living room where Adrianna was sleeping. Kayla stayed in the living room. She did not try to leave; she had nowhere to
go.
Adrianna
told Kayla the men were “talking hella shit†about her, and they were saying
she was a whore and that they had video of her they were going to put on the
Internet. Kayla told Adrianna they had
forced her, and she couldn’t stop them.
She told Adrianna she wanted to go home.
Adrianna, however, said she did not know when they would be able to
leave. Gamboa would have to take them
home and he was afraid to do so because the cops knew his car. Kayla was terrified but stayed put on the
couch.
Eventually,
Gamboa and defendant drove Adrianna and Kayla home. It was about 5:00
or 5:30 in the morning. They dropped Adrianna off first, but Kayla did
not want to go to Adrianna’s house. She
wanted to go home, but did not want to walk home in the dark by herself. It would have taken her 25 to 30 minutes to
walk from Adrianna’s house to her house.
When the
car stopped near Kayla’s house, Gamboa asked her what was the matter. She told them they were “fucked up.†She “blew up†and cussed them out. Defendant called her a bitch and said they
had not done anything bad; he said, “All we did is fuck.†Defendant told her she had better not tell
anyone or they would kill her. Kayla was
scared when she was cussing at Gamboa and defendant, but she knew she was close
to home. She was frightened by
defendant’s threat. She believed he was
capable of hurting her and he looked scary.
Kayla did not want to tell anyone about what had happened. It made her “feel disgusting.â€
Once home,
Kayla got inside by climbing through a window.
She did not knock on the door or ring the doorbell because she didn’t
want anyone to see her coming in. She
went into the bathroom where her brother’s girlfriend Jessica later found her
crying.
When
Jessica asked Kayla what was wrong, Kayla told her she had been raped. Jessica hugged her and Kayla made Jessica
promise not to tell anyone. She did not
want her parents or family to know. She
feared her family would retaliate.
Nothing
more was said until a month later on February 18, 2011, when Kayla was
caught shoplifting from a local market.
The deputy who responded to the call was familiar to Kayla. Kayla admitted to Merced County Sheriff’s
Deputy Justin Ussery that she had been stupid; she told him she had fought with
her parents and left the house very mad.
Deputy Ussery asked her about cuts on her face, and she told him she had
been cutting herself.
name="_ftnref3" title="">[3] Kayla then told Deputy Ussery she had been
“raped by five guys.â€
Subsequently,
Kayla told Officer John Ramirez with the Livingston Police Department what had
happened. She and Ramirez located the
house where the rapes had occurred after Kayla described the surroundings and
specifics about the garage.
Officer
Ramirez asked her to make contact with defendant since his phone number was in
her cell phone. She did so via text
message and defendant sent a picture of himself in reply. Later, Ramirez took possession of the
underwear Kayla had been wearing on the evening of the assaults; she found it
unwashed at the bottom of her laundry basket.
Kayla had
never met defendant before January 16, 2011. She is not certain whether Adrianna knew the
men other than Gamboa, but because of the way she spoke with them, Kayla
thought Adrianna knew them “from before.â€
In January
2011, Jessica was living with Kayla’s brother in the home of his family. One morning a few days before Kayla’s
birthday, Jessica got up early to get ready for her 7:00 a.m. shift at
work. She found Kayla in the bathroom,
crying. She hugged Kayla and asked her
what had happened. Kayla explained she
had been raped by some guys; she was scared and did not know what to do. Kayla asked Jessica not to tell anyone about
what had happened. She was afraid she
would get in trouble for going out, and she was concerned no one would believe
her. Jessica did not call police.
On
February 18, 2011, Deputy Ussery was dispatched to a local market
regarding a petty theft. Kayla was the
suspect. She admitted stealing lighters
and advised the deputy that she wanted to go to jail. During this contact, Ussery noted cuts on
Kayla’s face in a hash mark pattern. He
asked her about them and she indicated she had been cutting herself with razor
blades and a kitchen knife. Eventually,
Kayla admitted to him that she had been pistol whipped and gang raped. She was very upset. Kayla gave him the “bare bones†story; he did
not ask about details. As the rapes had
occurred in Livingston, the deputy knew the matter would have to be turned over
to the Livingston Police Department.
Deputy Ussery transported Kayla to that agency to be interviewed and
stayed briefly to make her feel comfortable.
Livingston
police officer Ramirez was assigned to take a report on February 18, 2011,
regarding a sexual assault. He spoke
with Kayla twice; the second interview was more detailed as a result of his
questions. Kayla reported she had been
assaulted in Livingston. She advised the
first assault occurred in the bathroom by an unknown assailant, that a second
assault occurred in a bedroom, and that a third assault was perpetrated by
three other individuals in a back bedroom.
The officer located the residence where the assaults occurred based upon
Kayla’s description—it was the home of Edgar and Adrian Partida. Kayla indicated defendant was one of the
individuals who raped her, and she showed the officer a text message she had
received from him. On February 19,
2011, Ramirez collected a pair of panties as evidence. Kayla had located the panties at the bottom
of her dirty laundry basket.
Adrianna
knew Kayla from school; they were friends but not close. On January 16, 2011, both she and Kayla
tried to find a ride to Modesto. Gamboa
picked them up after Kayla called him.
Defendant, Edgar Partida and Miklo were with Gamboa. Adrianna knew Gamboa and defendant through
mutual friends in Livingston; she did not know Edgar Partida or Miklo.
Gamboa did
not want to take them to Modesto because he wanted to “hang out,†and Kayla
wanted to “hang out†with him. After
stopping at a gas station where Adrianna and Kayla used the bathroom, the group
went to Edgar Partida’s house. They were
in the garage, listening to music and playing cards. Although others were drinking, Adrianna did
not drink because she doesn’t like to and because she and Kayla were the only
girls there. They did not smoke
marijuana and Adrianna testified she would be surprised if someone testified
they had.
Although
Adrianna had known defendant for a little while, she did not notice the tattoos
on his head. Nor was she familiar with
the Livas gang, although she did acknowledge listening to Norteno music at the
party and recognized that the Norteno gangs were affiliated with the color red.
While the
group was partying in the garage, Kayla was sitting on Miklo’s lap. Adrianna denied telling a detective that
Kayla had been sitting next to Miklo.
Kayla appeared to be having fun.
When Kayla
went inside the house to use the bathroom, Adrianna went with her. They used the bathroom together and returned
to the garage. She does not recall
telling the detective that she stayed in the garage. Adrianna then admitted telling the detective
that Kayla left the garage, went inside the house, and was gone for
awhile. Adrianna claimed her testimony
on the stand was truthful.
While they
were in the bathroom, Adrianna and Kayla heard gunshots. Adrianna did not recall telling the detective
that she heard the gunshots while she was in the garage and Kayla was inside
the house. Adrianna was not scared when
she heard the gunshots. She was in the
bathroom and not paying attention. In
any event, she considered it normal to hear gunshots.
Just before
the police arrived in response to a report of the gunshots, the garage door was
closed and the lights were turned off.
Everyone stayed quiet, standing in the kitchen or hallway area. Afterward, Adrianna tried to call a friend
for a ride home because she was afraid.
She could not get a ride and was not sure where Kayla was. Gamboa told her he could not give her a ride
home because the cops knew his car and had already been to the house that
night.
Adrianna
recalled seeing Kayla come out of the bathroom with Miklo. It was dark inside the house but she could
still see their faces. Adrianna had been
talking to Edgar Partida in the living room.
She did not remember telling the detective that after the police left,
Kayla had told her she wanted to leave and that “some of the guys had touched
her.â€
Adrianna
slept on the living room couch. She
slept for about one to two hours; she did not recall telling the detective she
was asleep for five hours. She woke up
about 3:00 or 4:00 a.m. and Kayla was not there.
After
hearing Adrian Partida, Gamboa, and defendant talking and laughing about a
video they had made of Kayla, Adrianna told Kayla about it. The men said they were going to put the video
on YouTube. Although she did not see the
video, Adrianna understood it depicted sex acts. Kayla said she was uncomfortable and that the
men touched her; she wanted to leave.
She also said she wanted to die.
Adrianna felt bad, believing Kayla regretted her actions because she had
a boyfriend. Adrianna did not remember
Kayla telling her that she did not want to be touched.
Eventually
Gamboa and defendant drove them home.
Kayla told them to drop Adrianna off first.
After that
night, Kayla text messaged Adrianna, “saying something about—oh, something
about trying to lie or have her back or something like that.†Adrianna did not tell the detective about
Kayla’s text message, nor did she tell the prosecutor or defense attorney. She did not save the message.
The first
time Adrianna learned Kayla had been raped was when the detective contacted
her. Between the time she first spoke
with an officer in February and the second occasion in March, she had contact
with mutual friends of Gamboa and defendant.
However, while they “discuss[ed] what was going on,†those friends did
not say anything to her or tell her not to talk. No one had frightened or intimidated
her. Adrianna testified she had not
spoken to either Gamboa or defendant since that night. Because defendant was present that night,
Adrianna was surprised to hear he had denied being at the party.
On
Kayla had been smiling and laughing, that she held Edgar Partida’s hand and
went willingly into a room with him, and also went willingly into a bedroom
with Gamboa and Adrian Partida. “[A]t
the last minute,†Kayla told Adrianna that she was uncomfortable. She looked sad and said some guys had touched
her, but did not say which guys.
Adrianna also testified that while the group was at the gas station
earlier that evening, it was Kayla’s idea to get beer and cigarettes; Kayla
gave her money willingly. Adrianna
further testified that Kayla never mentioned her upcoming 16th birthday while
the group was in the car.
Adrianna
also testified on cross-examination that at one point Gamboa and Adrian Partida
told her Kayla was calling for her.
Adrianna went to the door and asked Kayla if she had called her. Kayla was hiding behind the door and just
laughed.
Sergeant
Jose Silva with the Livingston Police Department recalled being dispatched to a
residence at 11:40 p.m. on January 16, 2011, in response to a report of
gunfire. As he approached the house, all
the lights went out. Although he and
another officer tried to make contact with the house’s occupants, no one
responded. He could hear people inside whispering. Beyond the gate and outside near a door that
led from the garage to a side yard, the sergeant observed spent shell casings
on the ground.
Livingston
Police Detective Robert Silva arrested defendant on February 21,
2011. Initially, defendant denied being
at a party at the Partida residence on January 16, 2011. Defendant admitted he knew Kayla, but denied
having sex with her. Later, a DNA sample
was obtained from defendant. The results
of the DNA testing were inconsistent with defendant’s claim that he did not
have sex with Kayla. Detective Silva
also testified regarding a number of inconsistencies between Adrianna’s
statements and her trial testimony.
The DNA
testing of Kayla’s panties revealed the presence of multiple sperm
contributors, one of whom was defendant.
DISCUSSION
I. Admission of Gang-Related
Evidence
Defendant
contends the trial court committed prejudicial error in admitting needless gang
evidence, thus denying him due process and a fair trial. The People maintain the gang evidence
admitted was minimal and properly limited.
That evidence related to Kayla’s fear—an element of defendant’s
crimes—and her credibility, and also to Adrianna’s credibility.
A. The applicable standards for
admission of gang evidence
“Gang
evidence is admissible if it is logically relevant to some material issue in
the case other than character evidence, is not more prejudicial than probative,
and is not cumulative.…
“However,
gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal
disposition or bad character as a means of creating an inference the defendant
committed the charged offense.
[Citations.]’ [Citations.] In cases not involving a section 186.22 gang
enhancement, it has been recognized that ‘evidence of gang membership is
potentially prejudicial and should not be admitted if its probative value is
minimal. [Citation.]’ [Citations.]
Even if gang evidence is relevant, it may have a highly inflammatory
impact on the jury. Thus, ‘trial courts
should carefully scrutinize such evidence before admitting it. [Citation.]’
[Citations.]
“A
trial court’s admission of evidence, including gang testimony, is reviewed for
abuse of discretion. [Citations.] The trial court’s ruling will not be
disturbed in the absence of a showing it exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a miscarriage
of justice. [Citation.]†(People
v. Avitia (2005) 127 Cal.App.4th 185, 192-193.)
Gang
evidence is unquestionably admissible when it serves to establish motive or
intent, or to establish the criminal offense, and is not highly inflammatory,
even if it may prove prejudicial to the defendant. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051.)
B. Procedural background
The People
asked that Kayla “be allowed to mention her belief that … Defendant was a Livas
gang member†because it contributed to her fear and “helps explain her actions
and inactions.†Additionally, the People
contended “such evidence should be admissible concerning witness Adrianna[’s]
credibility†because her conflicting statements to law enforcement could be
“explained by her fear of testifying against [Livas gang members].†During the motions in limine hearing, the
trial court reserved ruling on the issue.
Specifically, the following colloquy occurred:
“[The Court]: So there is no 186.22 charge alleged?
“[Prosecutor]: No, there is not. We’d request the Court grant motion in limine
Number 14 with the limiting instruction, which is jury instruction CALCRIM
1403.
“[Defense Counsel]: Your Honor, we oppose anything having to do
with testimony regarding gangs or gang status or gang membership.
“The Court: Okay.
I’m going to need to review the preliminary hearing transcript. I’m going to reserve on 14. Court reserves ruling on whether or not the
alleged victim can testify about her belief that [defendant] was a Livas gang
member and that contributed to her fear and submission.
“[Defense Counsel]: Your Honor, we’d ask the Court to note in its
review of the preliminary transcript that there is no testimony besides her
belief that certain people might be Livas gang members. There is no testimony about her being
especially fearful because they’re gang members.
“The Court: Okay.
She socialized with them or evidence she socialized with them or they
were friends.
“[Defense Counsel]: She knew at least one of them, I think more
than one of them prior to this date of the alleged incident.
“The Court: The issue of fear. Thank you.â€
That afternoon, the trial court found as follows:
“The Court: Okay.
With respect to the motions in limine, the Court has reviewed a portion
of the preliminary hearing transcript,[
name="_ftnref4" title="">[4]]
but not all of it. I think I’ve reviewed
enough to be able to rule on the various matters.
“With
respect to the People’s motion to allow the victim to testify to her belief
that defendant was a Livas gang member, the Court is going to allow that as to
defendant’s [sic: victim’s] state of mind and to explain why
she did or did not take certain actions with respect to the assault. I think it’s relevant to those issues.
“With
respect to issue number—now, as far as the evidence that would suggest gang
activity, it’s limited to hearing Livas local rap music, it’s her belief that
hearing the gun shot, the police arriving, and I don’t want you to go into all
of the traditional evidence associated with gang activity in Livingston, all
the acts of violence that they’ve engaged in?
“[Prosecutor]: I would limit it to her observations, to the
music, to the gunshots. I would like to
ask her what they were wearing and if that contributed to her belief, and also
if she saw any tattoos that would have contributed to her belief and to her
fear; and I won’t go beyond that.
“The Court: Okay.
So you’re limiting it to the observations on the evening of January
16th?
“[Prosecutor]: Yes.
“The Court: Fine.â€
The following day, defense counsel raised the issue and
further discussion ensued:
“[Defense Counsel]: And then, Your Honor, the other issue I had,
we discussed yesterday where the Court made a ruling about [the victim] being
able to testify about what she observed regarding gang membership or gang type
rap music or what she observed that day.
Your Honor, I just wanted to ask for a 402 hearing prior to her
testimony. I reviewed her preliminary
hearing testimony. There is essentially
no testimony from [the victim] saying that she is afraid of these men because
they are gang members. She states on
three occasions at that hearing that she didn’t tell anybody because she was
afraid of getting in trouble with her parents.
“The Court: She gave two reasons. She said she was afraid of what would happen
to her, and secondly, afraid of getting in trouble, or what would happen to her
or something bad would happen.
“[Defense Counsel]: And that’s as specific as she got. She didn’t ever say, I thought because these
guys were bad guys that because of their gang membership that I was especially
afraid. She made comments about thinking
somebody had a gun, she wasn’t sure who, she never saw who. She heard from somebody that one of these
gentlemen had a gun, not our defendant.
She also heard about a joke or something about let’s carve our names in
her stomach. She never saw who said that
nor did she see a knife.
“The Court: Well, I think the only real issue about gangs
is that they’re listening to the Livas rap music, and I think it’s relevant to
the general atmosphere and circumstance that she was in with this group of ten
or so people. So there isn’t a lot more
than that about the gang-related activity.
“[Prosecutor]: From what I recall, she just testified to the
music that was playing, to the gunshots, to the gang-related tattoos that she
saw, and I don’t recall if she mentioned any items of clothing. I don’t know if that was just in the police
report or the preliminary hearing transcript.
“The Court: I don’t remember any testimony about, you
know, the colors or clothing. All I
remember is the tattoos, the music, and the gunshot. The gunshot is kind of neutral, but adds to
the atmosphere of contributing to her state of mind or belief that something
could happen to her if she told.
“[Defense Counsel]: But without having a foundation of why she
believes this is gangster rap or also why she believes certain tattoos are
gang-related, we believe that that would be inadmissible character evidence
that would be coming in, and that would be in violation of in fact [the
prosecutor] cited to this case, it’s People
versus Avitia and that would be 127 Cal.App.4th 185.
“The Court: 127 Cal.App.4th. What does the case hold?
“[Defense Counsel]: The case holds that this was a case where I
think there was—it was a 12021 and the prosecution wanted to bring in evidence
that there was certain gang writing on some—I think this was ammunition or
boxes of ammunition, I think the word was Chivo or something like that. There was no 186.2(a) [sic] crimes alleged nor the (b)(1) enhancement alleged. They limited, I guess, the evidence to simply
what I was just talking about, I think that the boxes containing the magazines
of ammunition—that Chivo was written on the butt of one of the ammunition boxes
and that Chivo was tattooed on Mr. Avitia’s hand. Counsel had offered to stipulate that Mr. Avitia
owned the rifle that was found, and that was all that came in.
“And
then the Court held that that was reversible error that was inadmissible in
that case, that was not relevant to the charges at hand. And that would be the same situation that we
are at here in our case today.
“The Court: Well, you’re not—are you arguing that the
hearing of the gunshots isn’t relevant?
“[Defense Counsel]: The hearing of gunshots could be relevant,
but that is—
“The Court: So the gunshots come in.
“[Defense Counsel]: Right.
“The Court: Okay.
You’re arguing that the characterization or description of the music
being played as Livas rap music—okay.
[Prosecutor], your argument?
“[Prosecutor]: Your Honor, the case that [defense counsel]
is citing in that case, it was 12021, is that what you said?
“[Defense Counsel]: I think it was, I’m not sure, or negligent
discharge of a firearm.
“[Prosecutor]: One of the elements is not showing fear or
force. In this case one of the elements
is fear or force, and listening to the Norteno music, the Livas music, it goes
to the victim’s state of mind and how what she heard—what she observed affected
how she perceived what was going on and the genuine threat that she felt to her
safety, and that all contributes to that from the very beginning of this case. From the police report to the preliminary
hearing, she refers to them as Livas gang members, refers to it as Livas
music. That’s what she recognized it as
through—I mean, [defense counsel] is free to inquire of her why she believed
what it was, that it was gang music, but that was her belief. That was her state of mind, and that is very
relevant when it comes to the elements of the charges in this particular case.
“The Court: I agree.
I think the fear element and also the delayed reporting, the
statements—the statements made and any impressions that she had as to whether
or not these people would actually carry out those threats or statements is
relevant to the case. I think it would
just get—it sanitizes it a little too much in a case such as this. So the ruling is going to stand. She can describe the music as Livas rap
music.
“Now I
didn’t read any testimony from her as to what the tattoos said, okay? All she saw was tattoos, one of the attackers
had tattoos over his forehead. And one
of them had tattoos, he had his shirt off and she saw tattoos. I did not—I don’t recall any testimony as to
what those tattoos said, if they were 187 or if they were Livas or Norte or
what’s the Aztec—
“[Prosecutor]: The Huelga bird?
“The Court: I didn’t hear any testimony describing
that. If there’s anticipated to be
testimony regarding that, then we do need to have a 402 hearing on that; but if
not, then we’ll just go with that she saw, that there were tattoos and that
solely to the issue of being able to identify the attacker.
“[Prosecutor]: And that’s the situation I would also be
requesting a 402 with [defense counsel].
In the police report she identified the tattoos and identified them
having some gang significance, and she—and I believe that also contributed to
her belief and her state of mind.
“The Court: Okay, we’ll have a 402 hearing on that area
of her testimony.â€
Subsequently, outside the presence of the jury, the Evidence
Code section 402 hearing was held. Kayla
testified regarding defendant’s gang-related facial tattoos, and gangster rap
music specifically referencing the “Livas,†which Kayla understood to be
associated with a northern gang. After
argument by counsel, wherein defense counsel characterized Kayla’s fear as
unrelated to gang members and instead argued her fear related to “getting in
trouble†and the “alleged weapons,†the following discussion occurred:
“The Court: Yeah.
On the 352 issue, the Court has considered the inflammatory nature of
defendant being identified as a gang member, but a central element in two of
the charges is rape as a result of fear or duress and it’s—it is a key element
in the case, so the significance of the basis for her fear is highly
relevant. There’s no question that we
would—that gang evidence is prejudicial, but the probative value outweighs any
unduly prejudicial impact, and I don’t think it creates an undue consumption of
time on collateral issues. I just don’t
see that. I think it’s central to the
case, so it’s received.
“[Defense Counsel]: Will our objection be noted at this point to
those two issues, the Livas music and the tattoos so I don’t need to object
during—
“The Court: You need not repeat it, you have protected
your record. You are objecting to the
admissibility of her description of the tattoos and more importantly her belief
as to what those tattoos represented and her interpretation of the music they
were listening to as being gang rap music.
Okay. That’s concludes the 402?
“[Prosecutor]: Your Honor, just really quickly, as I
mentioned before, we would ask the Court to give a jury instruction to let the
jury know the limited purpose of the evidence so there isn’t a risk of them
misusing the information, and the jury instruction I found was CalCRIM 1403 and
it discusses the limited purpose of evidence of gang activity.
“The Court: Okay, this evidence is received for the
limited purpose of—relative or regarding [the victim]’s state of mind and
whether she had a reasonable basis for fear.
Okay.â€
C. Relevancy
Relevant
evidence is “evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Evid. Code, § 210.) Here, it is plain that the complained-of
evidence is relevant to the issue of Kayla’s fear, an element of rape by
force. It is also relevant to the
credibility of both Kayla and Adrianna.
These are all material issues.
D. More probative than
prejudicial
A court may
elect to exclude otherwise relevant evidence where “its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.†(Evid. Code, § 352.) “[T]he trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by
concerns of undue prejudice, confusion or consumption of time.†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
For Evidence Code section 352 purposes, “‘prejudicial’ is not synonymous
with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke
an emotional bias against defendantâ€â€™ without regard to its relevance on
material issues. [Citations.]†(People
v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Here, as shown above, the trial court carefully considered the evidence
and its prejudicial effect versus its probative value.
This case
is readily distinguishable from People v.
Albarran (2007) 149 Cal.App.4th 214.
Albarran was charged with attempted murder, shooting at an inhabited
dwelling, and three counts of attempted carjacking. A gang enhancement (§ 186.22) was
alleged as to all counts. (
Evidence Code section 402 hearing, a detective testified that the defendant
admitted to being an active member of the 13 Kings gang, he had gang tattoos,
and gang graffiti had been found at his home.
The detective acknowledged there was no direct evidence to link the 13
Kings or Albarran to the crimes. (
evidence was relevant to the issues of motive and intent, and determined it was
more probative than prejudicial. (
The appellate court concluded the gang evidence “was so extraordinarily
prejudicial and of such little relevance that it raised the distinct potential
to sway the jury to convict regardless of Albarran’s actual guilt.†(Id.
at p. 228.) Unlike Albarran, the evidence in this case is relevant to Kayla’s fear,
and thus, to elements of the crimes charged.
Kayla noticed defendant’s facial tattoos (“Ene,†“Livingston†and a set
of horns) and was “kinda creeped out†when she met him for the first time in
the car. When the group arrived at the
party, local gangster rap music was playing, and during the course of the
evening, gunshots were heard. All of
this is relevant to understanding Kayla’s action or inaction that evening. Moreover, the trial court acknowledged the
potential for prejudice, but determined the probative value of the evidence
outweighed its prejudicial effect. The
trial court did not abuse its discretion in so finding.
In
reported hearing gunfire one afternoon, an investigation commenced. Deputies discovered a number of firearms,
magazines, and ammunition in Avitia’s home.
“Chivo†was scratched onto the butt of an assault rifle, written on an
ammunition box, and was tattooed on Avitia’s left hand. Gang graffiti was also noted on several
posters in his bedroom. (
firearm, possession of an assault weapon, the manufacture, sale, import or loan
of a large-capacity magazine, and possession of a firearm by a
misdemeanant. No gang enhancements were
alleged. (Id. at p. 191.) The
appellate court determined that the gang evidence admitted was “completely
irrelevant to any issue at trial.†(
relevant to Kayla’s fear as detailed above.
Neither did
the trial court err by admitting this evidence as it related to Adrianna’s
credibility. Although defendant
characterizes Adrianna’s testimony as “neutral,†the record establishes
otherwise. It is Adrianna’s testimony
that is, to borrow defendant’s word, “rife†with inconsistencies. The gang evidence is relevant and was
properly admitted for this purpose. (
137; People v. Samaniego (2009) 172
Cal.App.4th 1148, 1168 [gang evidence may also be relevant on the issue of a
witness’s credibility].)
E. Limitation and admonitions
Defendant’s
characterization of the court’s limiting instructions as “spotty†is not
supported by the record. Our review of
the record supports the People’s assertion that when these topics arose during
the course of Kayla’s testimony, the trial court immediately admonished the
jury as to its limited purpose.
name="_ftnref5" title="">[5] Moreover, the trial court further instructed
the jury with CALCRIM No. 1403 prior to deliberations.
Even were
the court’s limiting instruction ambiguous, our duty is to consider the
defendant’s instructional challenge in the context of the entire charge to the
jury, to assume that jurors are intelligent persons who are capable of
understanding and correlating all of the court’s instructions, and to determine
whether the defendant has shown a reasonable likelihood that the jury
improperly applied the instructions. (
72-73 & fn. 3; People v. Clair
(1992) 2 Cal.4th 629, 663.) Defendant
has cited to nothing in the record to establish juror confusion regarding the
limiting instruction or any other instruction.
Therefore, on this record, we presume the jurors understood and followed
the court’s instructions. (
773.)
In sum, the
gang-related evidence admitted here
was relevant to material issues in this case, and was neither more prejudicial
than probative, nor cumulative. The
trial court carefully scrutinized the impact of the evidence. The exercise of its discretion was not
arbitrary, capricious, or patently absurd.
Thus, we find no error under either state or federal standards.
II. The Presence of a Support
Person
Defendant
contends his conviction must be reversed because his Sixth Amendment right of
confrontation and Fourteenth Amendment right to a fair trial were violated when
the trial court did not conduct the required inquiry regarding the necessity of
a support person. The People maintain
this claim was forfeited by defendant’s failure to object. The People also contend the claim lacks
merit.
A. Relevant statutory authority
In certain
criminal cases, a prosecuting witness is entitled to the supporting attendance
of two persons at the preliminary hearing and at the trial, one of whom may
accompany the witness to the witness stand.
(§ 868.5, subd. (a).) If a
support person is also a prosecuting witness, the support person’s testimony
must be presented first and the prosecuting witness excluded from the
courtroom. (§ 868.5, subd.
(c).) When a prosecuting witness is
chosen as a support person, “the prosecution shall present evidence that the
person’s attendance is both desired by the prosecuting witness for support and
will be helpful to the prosecuting witness,†and “[u]pon that showing, the
court shall grant the request unless information presented by the defendant or
noticed by the court establishes that the support person’s attendance during
the testimony of the prosecuting witness would pose a substantial risk of
influencing or affecting the content of that testimony.†(§ 868.5, subd. (b).)
B. Procedural background
At the
preliminary hearing held March 17 and 18, 2011, a witness advocate was
present during Kayla’s testimony.
On
September 6, 2011, the People filed their motions in limine or pretrial
motions, including a request that Kayla “be allowed to have the presence and
accompaniment of a support person while testifying ….†Defendant did not object to this specific
request during the hearing, nor did defendant file any written objection to the
People’s request. The request was
granted.
On
September 8, 2011, before Kayla’s testimony commenced, the trial court
instructed the jury as follows:
“Ladies and gentlemen, in cases of this nature, the
person who is alleged to have been victimized by the act is entitled to have a
support person present, so you will notice there’s somebody seated behind her. That person is an employee of the County and
is there just to provide support and not provide any information whatsoever,
just so you understand why there is somebody there, because of the nature of
the case. You may proceed.â€
Defendant did not object on this occasion either.
C. Analysis
As noted
above, defendant argues his constitutional right to confront witnesses and his
right to a fair trial were violated because the trial court did not conduct an
inquiry into the necessity of a support person in this case. His argument is based primarily on
412, 443, 444 (Adams), which rejected
a constitutional challenge to the support person statute, but held there must
be a case-by-case showing of necessity for a support person present at an
evidentiary hearing.
name="_ftnref6" title="">[6]
A defendant
may forfeit the claim he or she was denied a constitutional right to an
evidentiary hearing on the necessity of a support person. (People
v. Lord (1994) 30 Cal.App.4th 1718, 1722 (Lord).) In
court erred by failing to hold the hearing required by Adams and to determine whether the six-year-old victim had a need
for the presence of a support person, who sat next to the victim while she
testified at trial. The appellate court
noted the showing required at such a necessity hearing is “debatable,†but
suggested in dicta the required showing is that set forth in section 868.5,
subdivision (b), i.e., that “the support person’s attendance ‘is both desired
by the prosecuting witness for support and will be helpful to the prosecuting
witness[,]’†and that in the case of a molested six-year-old victim, such a
showing would be perfunctory, as in that situation “it is almost given that the
support person’s presence is desired and would be helpful.†(Lord,
supra, at pp. 1721-1722.) The court did not resolve that point,
however, because the defendant “waived any claim of error by failing to request
a hearing and determination of necessity, or otherwise object to the presence
of a support person.†(
Here, like
hearing and determination of necessity or otherwise object to the presence of a
support person during Kayla’s testimony.
Accordingly, he has forfeited any claim of error.
Defendant
urges us to either reject the holding of Lord
or find it inapplicable here. He asserts
the trial court had a sua sponte duty to ensure the requisite necessity exists
before the support person’s presence is permitted, citing Adams and the cases that court relied on: Maryland
v. Craig (1990) 497 U.S. 836 and Coy
v. Iowa, supra, 487 U.S.
1012. In those cases, however, an
objection to the procedure was made and, therefore, the cases are not authority
for a court’s duty to conduct a hearing in the absence of an objection. (See Maryland
v. Craig, supra, at p. 842;
at p. 1015; Adams,
Next,
defendant asserts a sua sponte duty to hold a necessity hearing should be
imposed since trial courts have been held to bear some sua sponte duties in
ensuring that minimum foundational evidentiary showings are met. However, a necessity hearing cannot be
analogized persuasively to the showing of foundational facts necessary to support
the admissibility of evidence. The presence
of a support person is a statutory right granted to the complaining witness,
not an item of evidence one party seeks to introduce against another. (See, e.g., Evid. Code, §§ 402, 403,
subd. (a) [proponent of proffered evidence has burden of producing evidence as
to the existence of disputed preliminary fact].) For this reason, defendant’s reliance on
860, 870-871, is misplaced. There, the
appellate court concluded the trial court erroneously admitted certain
statements under the spontaneous declaration exception to the hearsay rule over
defense counsel’s objections without sufficiently assessing whether there was
sufficient evidence to establish the exception.
The issue here does not concern the court’s role in admitting evidence
and, unlike Keelin, defendant did not
object to the procedure.
Defendant
argues we should excuse his failure to object because the statute is apparently
mandatory, discouraging an objection, yet the case law regarding whether a case-specific
showing of necessity is required remains unsettled. While it is not clear from
dispute the failure to object to the absence of a showing of necessity
constitutes a waiver. Thus, it was clear
that defendant could have objected to the presence of a support person.
Defendant’s
argument that his failure to object should be excused because he lacked an
opportunity to object also lacks merit.
Here, Kayla was assisted by a support person at the preliminary
hearing. Additionally thereafter,
defendant had an opportunity to object during the pretrial motions hearing, two
days prior to Kayla’s trial testimony.
In sum, defendant was on notice a support person was likely desired in
light of Kayla’s use of such an individual at the preliminary hearing and yet
he failed to object in any way, having had an opportunity to do so. He subsequently also failed to object to the
People’s request, either in written form or at the hearing on the motion.
Lastly,
defendant asks us to exercise our discretion to review the issue despite his
failure to object. We decline to do so since by not objecting, he has deprived
the trial court of the opportunity to make an evidence-based finding as to the
witness’s need for a support person. (
Therefore, we conclude he has forfeited the issue. (Ibid.)
III. Prosecutorial Misconduct
Defendant
asserts the prosecutor committed four instances of misconduct denying him due
process of law and a fair trial. The
People maintain the prosecutor’s comments were not deceptive or reprehensible,
nor did those comments result in a violation of defendant’s rights to due
process and a fair trial.
A. Legal standards
“‘The
applicable federal and state standards regarding prosecutorial misconduct are
well established. “‘A prosecutor’s …
intemperate behavior violates the federal Constitution 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.â€â€™â€ [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.â€â€™â€â€™ [Citation.]†(People
v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it
results in prejudice to the defendant. (
363.) Where it infringes upon the
defendant’s constitutional rights, reversal is required unless the reviewing
court determines beyond a reasonable doubt that the misconduct did not affect
the jury’s verdict. (
1083.) Prosecutorial misconduct that
violates only state law is cause for reversal when it is reasonably probable
that a result more favorable to the defendant would have occurred had the prosecutor
refrained from the objectionable conduct.
(People v. Barnett (1998) 17
Cal.4th 1044, 1133.)
The issue
of prosecutorial misconduct is forfeited on appeal if not preserved by timely
objection and request for admonition in the trial court. (People
v. Cunningham (2001) 25 Cal.4th 926, 1000.)
If an objection has not been made, “‘“the point is reviewable only if an
admonition would not have cured the harm caused by the misconductâ€â€™â€ (
would have been futile. (
820-821.)
B. The instances of alleged
misconduct
1. Reference to dangerousness
When
questioning Detective Silva, the prosecutor asked, “Now, is it dangerous to
testify against a gang member?†Defense
counsel immediately objected, the trial court sustained the objection, and the
jury was admonished as follows: “Ladies
and Gentlemen, this evidence of gang activity is received for a limited purpose
as to the issue of fear, whether it was reasonable basis for fear, okay.†Defendant contends this question “was a
rather direct affront to the court’s pointed rulings limiting gang evidence to
nontruth fear, not proof of actual gang status or membership of anyone.â€
Here, the
witness did not answer the question and an admonition was promptly given. Moreover, the jury was instructed that
“[n]othing that the attorneys say is evidence.
In their opening statements and closing arguments the attorneys discuss
the case, but their remarks are not evidence.
Their questions are not evidence.
Only the witnesses’ answers are evidence.†Jurors are presumed to follow the trial
court’s instructions and to decide the question of guilt on proper
evidence. (See, e.g.,
v. Clair, supra, 2 Cal.4th at p.
663, fn. 8.) Additionally, in the
absence of evidence to the contrary, and there is none in this record, we
presume the jury abided by the trial court’s admonitions and instructions. (People
v. Stitely (2005) 35 Cal.4th 514, 559.)
2. Comment regarding Adrianna
Defendant
contends the prosecutor erred by arguing that Adrianna was “either afraid of
Livas or she’s a part of Livas. She told
you she wasn’t afraid.â€
At trial,
defense counsel objected to the comment during a break outside the presence of
the jury:
“[Defense Counsel]: … I wanted to note my objection to any
characterization of [Adrianna] as being a Livas gang member.
“The Court: That was noted, I agree.
“[Defense Counsel]: That’s inadmissible.
“The Court: I don’t find that it was so prejudicial, but
still the focus was on her credibility on other issues that are more
pertinent. I don’t remember anything
about that in her testimony. That
inference I think was inappropriate.
“[Defense Counsel]: Thank you.
“The Court: Okay; but I don’t find that it was
prejudicial error or requires any type of mistrial, no.â€
While
defense counsel objected to the comment, she did not request an admonition be
given. As a result, the issue is
forfeited for purposes of appeal. (
preserved by timely objection and request for admonition].)
Notably, a
review of the argument preceding the specific comment about which defendant
complains finds support for the People’s claim that Adrianna “may have been a
gang associate or ‘wanna be.’†In
| Description | A jury found defendant Leobardo Mendoza guilty of rape in concert, forcible rape, false imprisonment, and unlawful sexual intercourse with a minor. On appeal, defendant contends: (1) the court erred in admitting needless gang evidence, denying defendant due process and a fair trial; (2) defendant was denied his Sixth Amendment right of confrontation because the presence of a support person during the complaining witness’s testimony lacked any particularized showing of need; (3) the prosecutor committed four instances of misconduct; (4) the court erred in failing to instruct on juror unanimity with respect to the charge of rape in concert; (5) the written pinpoint instruction on gang evidence was overbroad and unfair; (6) the court erred in failing to sua sponte instruct the jury that evidence of an oral admission of a defendant should be viewed with caution; (7) failure to allege or at least secure instructions and jury findings as to the age of the victim under the rape counts violated state law and further denied defendant due process of law and the right to a jury determination on a fact increasing the maximum term; (8) the statutory rape conviction must be reversed because it is based on the same act of intercourse as relates to the rape conviction; and (9) the cumulative effect of these errors deprived defendant of due process and the right to fair trial by an impartial jury. We will affirm the judgment. |
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