P. v. Segrest
Filed 4/10/13 P. v. Segrest CA4/1
>NOT TO BE PUBLISHED IN OFFICIAL REPORTS
>
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. IMSHAY RAYMONE SEGREST, Defendant and Appellant. | D060690 (Super. Ct. No. SCD222967 Super. Ct. No. SCD232213) |
APPEAL from
judgments of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Amalia L. Meza, Judge.
Judgment in case No. SCD222967 affirmed as modified, with
directions. Judgment in case No.
SCD232213 affirmed.
INTRODUCTION>
This appeal
involves two cases:
>Case No. SCD222967 (firearm possession case)
In March
2010 Imshay Raymone Segrest pleaded guilty in case No. SCD222967 to one count
of possession of a firearm by a felon
(Pen. Code, § 12021, subd. (a)(1)) (undesignated statutory references will
be to the Penal Code) and admitted he had two prison prior convictions within
the meaning of sections 667.5, subdivision (b) and 668. In July of that year, the court placed
Segrest on three years of formal probation and suspended imposition of sentence
for that period of time.
In April
2011 the court revoked Segrest's probation based on evidence admitted at the
preliminary hearing held in case No. SCD232213 (discussed, post), in which he was charged with two counts of committing a
forcible lewd act upon his cousin, D.E.,
a child under the age of 14 years, in violation of section 288,
subdivision (b)(1) (hereafter § 288(b)(1)).
Case No. SCD232213
(forcible lewd act case)
In August
2011 a jury convicted Segrest in case No. SCD232213 of one count of committing
a forcible lewd act upon D.E., a child under 14 years of age, in violation of
section 288(b)(1), as charged in count 1.
The jury found not true a count 1 allegation that Segrest committed the
lewd act during the commission of a residential
burglary within the meaning of section 667.61, subdivisions (a), (c), and
(d). The jury found Segrest not guilty
of a second count of committing a forcible lewd act upon D.E., as charged in
count 2. Thereafter, Segrest admitted he
had four probation denial priors (§ 1203, subd. (e)(4)) and two prison
priors (§§ 667.5, subd. (b), 668).
Sentencing hearing
for both cases
In early
October 2011 the court sentenced Segrest in the forcible lewd act case to a
total prison term of 12 years, consisting of the upper term of 10 years for the
section 288(b)(1) conviction, plus two one-year enhancements for the two prison
priors (§§ 667.5, subd. (b), 668).
At the same
hearing, the court then sentenced Segrest in the firearm possession case to the
middle prison term of two years and ordered that he serve this sentence
concurrently with the 12-year sentence imposed in the forcible lewd act
case. The court again imposed, but
stayed under section 654, two one-year enhancements for Segrest's two prison
priors.
Contentions
Segrest
appeals, contending (1) the court prejudicially erred in the forcible lewd act
case by failing to sua sponte
instruct the jury under CALCRIM No. 3425 regarding the defense of
unconsciousness; and (2) in sentencing him in the firearm possession case, the
court should have stricken the two prison prior allegations, and it thus erred
by imposing and then staying under section 654 the two one-year enhancements
for Segrest's two prison priors that the court had already imposed in the
forcible lewd act case. The Attorney
General agrees the court should have stricken the two prison allegations in the
firearm possession case.
We modify
the judgment in the firearm possession case by striking the two one-year prison
prior enhancements imposed and stayed in that case and affirm the judgment as
so modified with directions. We affirm the judgment in the forcible lewd
act case.
FACTUAL
BACKGROUND
A. >Firearm Possession Case (>No. SCD222967)
Segrest,
who had been convicted of a felony, unlawfully possessed and controlled a
firearm.href="#_ftn1" name="_ftnref1" title="">[1]
B. >Lewd Act Case (No. SCD232213)
1. >The People's case
Segrest is
the nephew of the victim's father in this case. His cousin, D.E., was 13 years old at the
time of the August 2011 trial in this matter and was living with her father
when the sexual assault charged in this case occurred early in the morning on January 29, 2011.href="#_ftn2" name="_ftnref2" title="">[2] D.E. is developmentally disabled and has a
speech impediment.
D.E.'s testimony
D.E.
testified at trial that Segrest came into her bedroom and poked her in the arm
to wake her up. He was lying on the bed
next to her. Segrest said "hi"
to her and asked about her father. D.E.
testified she remembered Segrest saying he wanted to do something with
her. However, when the prosecutor asked
her what Segrest said he wanted to do, D.E. replied, "I don't
know." D.E. then denied that
Segrest said he wanted to have sex with her.
D.E. also
testified that Segrest caused her to fall to the floor. She landed on her back, and Segrest was on
the floor next to her. Segrest pulled
off D.E.'s sweatpants. He then ripped
her panties. D.E. told Segrest she
wanted to go to the bathroom, but he told her "no."
Reminding
D.E. that she had testified at the preliminary
hearing in this matter,href="#_ftn3"
name="_ftnref3" title="">[3]
the prosecutor asked her whether Segrest ended up on top of her. D.E. first replied that Segrest did not get
on top of her, then she stated she did not remember, and then she again denied
that he got on top of her. When asked
whether Segrest touched any part of her body, D.E. answered,
"No." D.E. acknowledged that
she had spoken to the police, and that she told them Segrest had "humped'
her.
After the
court held a sidebar conference with the prosecutor and defense counsel, D.E.
stated in the presence of the jury, "I don't remember nothing." The prosecutor asked whether she was afraid,
and she replied she was afraid of Segrest.
D.E. testified she remembered crying out and yelling at Segrest to stop
and get off of her. She then
acknowledged she told a detective that Segrest had touched her on her
breast. D.E. testified she was wearing a
T-shirt when Segrest touched her breast.
She also testified that Segrest told her to "shut up." When asked why she did not just get up and go
to the bathroom, D.E. replied, "Because he had my arm." The prosecutor again asked, "Was his
body on top of yours?" D.E. again
replied, "I don't remember."
D.E. also
testified she told Segrest that she thought her dad was coming in, but when the
prosecutor asked her whether she remembered her dad coming into the bedroom,
D.E. replied, "No." She then
testified she was on the floor when her dad came in, and Segrest was next to
her on the floor. Her panties had
already been ripped when her father came in.
The prosecutor asked D.E. about numerous statements the prosecutor said
she had made to others about what happened in the bedroom, and D.E. repeatedly replied,
"I don't remember."
>D.E.'s
Father
D.E.'s
father testified that three other people were in the house when he went to bed
at around 2:00 a.m. that night: D.E.,
his girlfriend, and his son. He did not
expect anyone else to come over that night.
D.E.'s father testified he woke up when he heard D.E. yelling, "No,
leave me alone," "Stop," and, "Get out of here." When he went to D.E.'s bedroom, he saw that
the bedroom door was closed. D.E.
usually slept with the door open.
Her father
testified that when he opened the bedroom door, he saw D.E. and Segrest on the
floor. D.E. was on her back, and Segrest
was lying on top of her. D.E.'s legs
were slightly spread apart and Segrest was lying down between her legs in what
her father considered a sexual position.
He testified he did not see any sweatpants on D.E., who was moving her
shoulders from side to side trying to throw Segrest off of her. He could see Segrest's boxer shorts. He testified he angrily pulled Segrest off of
D.E. and threw him towards the bedroom door.
On
cross-examination, D.E.'s father testified that Segrest was not moving when he
pulled Segrest off of D.E. Defense
counsel asked whether Segrest was "like a deadweight." Her father replied, "Yeah, like he
was—like he was asleep, like, asleep on top of her." He stated he could see that Segrest was
wearing boxers underneath his pants, but he could not see whether D.E. was
wearing underpants because most of her thighs were covered by her gown. He testified that Segrest did not appear to
recognize him and seemed "spaced out." He testified he asked Segrest, "What are
you doing to my daughter?"
On redirect
examination, D.E.'s father acknowledged that when he told Segrest he was going
to call the police, Segrest angrily punched a hole in the wall, left the house,
and sped off in his car. He also
acknowledged that when he heard Segrest drive away, he did not hear Segrest
crash into anything. The prosecutor
asked him whether he remembered telling a detective that when he saw Segrest on
top of D.E., Segrest's pants were so low his penis could have been out. He replied, "Yes, I remember." He stated he could see Segrest's boxers and
his "butt cheeks at the top."
On
recross-examination, defense counsel asked D.E.'s father, "So you're not
trying to protect [Segrest] here?"
He replied, "No, no, no, not at all."
Dr. Adams
Dr. Joyce
Adams, a pediatrician and child abuse pediatrician specialist, testified she
examined D.E. on January 29 at Rady's Children's Hospital in San Diego. She was unable to get a close look at D.E.'s
hymen because D.E. did not tolerate that part of the examination. Dr. Adams did not see any signs of injury
when she examined D.E.'s vagina. She
testified that "most of the time with adolescent girls, even if they have
recently had intercourse or been sexually assaulted involving penis and vagina,
most of the time we don't see any injuries." The prosecutor asked, "Why is
that?" Dr. Adams responded,
"Because the hymen is so stretchy."
The prosecutor asked, "So a person can struggle and something can
be inserted into their vagina, and you can still not have any
findings?" Dr. Adams answered,
"Correct."
Detective Albrecht
Leslie
Albrecht, a detective with the San Diego Police Department, testified that she
interviewed D.E.'s father on February 1.
The father told her he was so emotional when he walked into the bedroom
that he did not really notice whether Segrest's penis was out of his pants. However, he told her that Segrest's pants
were so low that his penis could have been out without his unbuckling or
unzipping his pants.
Detective
Albrecht also testified that she interviewed D.E. at her school. The interview, which was recorded on
videotape, took place on February 1. A
portion of the videotape recording, which was later received in evidence, was
played for the jurors, who were given copies of a transcript of the interview.href="#_ftn4" name="_ftnref4" title="">[4] D.E.'s statements to Detective Albrecht were
largely consistent with her preliminary hearing testimony, her statements to Officer
Daniel Brent (discussed, post), and
portions of the testimony she reluctantly gave at trial (discussed, >ante).
For example, D.E. told Detective Albrecht that Segrest took off her
"night" pants and "ripped" off her panties and threw them
on the floor. D.E. also told Detective
Albrecht that when she tried to push Segrest off of her, he held her down by
holding her wrists. She said Segrest
"cussed me out. He called me bitch,
ho." When Detective Albrecht asked
D.E. what Segrest did to her, D.E. answered, "He like put it in. He, he went like—he like—he do like this,
like hump, hump me." Detective
Albrecht asked D.E., "What is a penis?" D.E. replied, "His dick." When the detective asked whether Segrest
"put that somewhere," D.E. responded, "Right here." Detective Albrecht asked D.E. whether Segrest
put it inside her, and D.E. replied, "Yeah." Soon thereafter, the following exchange took
place between Detective Albrecht and D.E.:
"[Detective Albrecht]: So where did he put his
penis?
"[D.E.]: Right
here.
"[Detective Albrecht]: [O]kay, so you['re] pointing to your, your
private area?
"[D.E.]:
Yeah.
"[Detective Albrecht]: Your girl area?
"[D.E.]:
Yeah.
"[Detective Albrecht]: Do you understand what I mean by that?
"[D.E.]:
Mm-hm.
"[Detective Albrecht]: Do you know what the word
'vagina' is?
"[D.E.]: Um,
um, yeah. [¶] . . .
"[Detective Albrecht]: Okay.
So he, he—he put his dick . . . .
"[D.E.]:
Mm-hm.
"[Detective Albrecht]: . . . into your
privates?
"[D.E.]:
Mm-hm.
"[Detective Albrecht]: Inside?
"[D.E.]:
Yeah."
D.E. also
told Detective Albrecht that, after Segrest "put it in my thing," she
asked Segrest why he was doing that to her, and Segrest said, "Sh, sh,
hush, hush." D.E. then said to
Detective Albrecht that when she told Segrest she was not going to hush or
listen to him, Segrest slapped her face.
After the
videotape was played for the jury, Detective Albrecht agreed with the
prosecutor's observation that D.E. had made some gestures during the interview. The prosecutor asked whether D.E. was making
some gestures when she told Detective Albrecht that "[Segrest] like put it
in. He, he went like—he like—he do like
this, like hump, hump me."
Detective Albrecht testified that D.E. was "gyrating her hips"
backwards and forward when she made those statements. Detective Albrecht also testified that when
she asked D.E. during the interview whether Segrest put his penis somewhere,
D.E. was pointing to her vagina when she said he put it inside her
"[r]ight here".
Officer Brent
Daniel
Brent, an officer with the San Diego Police Department, testified that he took
D.E.'s statement in her bedroom. D.E.
told him that Segrest came into the bedroom when she was asleep and pushed her
off the bed. D.E. said that when she
tried to scream, Segrest covered her mouth with his hand. D.E. said Segrest took off her sweatpants,
and she indicated that Segrest fondled her breasts. D.E. told Officer Brent that Segrest ripped
off her underpants, threw them across the room, and then humped her. Officer Brent testified that when D.E. told
him Segrest had humped her, she put her hands up in the air and rocked her hips
forward and backwards. Officer Brent
interpreted her gestures to mean that Segrest had sex with her.
D.E. also
told Officer Brent that she told Segrest he was going to go to jail, and
Segrest said, "Shut the fuck up, bitch." D.E. also told Officer Brent that Segrest
held her wrists down and was on top of her when her dad came in and grabbed him
off of her.
D.E.'s prior
testimony at the preliminary hearing
The
transcript of D.E.'s April 15 preliminary hearing testimony was read to the
jury. At that hearing, D.E. testified
she was asleep when Segrest woke her up.
She was wearing sweatpants, underpants, a bra, and a long-sleeved
T-shirt. Segrest asked D.E. where her
sister was and also asked, "How's your day?" Segrest told her he was going to have sex
with her. D.E. told him, "No,"
and he pushed her to the floor. Segrest
took off D.E.'s sweatpants and ripped off her underpants. When D.E. told him she wanted to call her
dad, Segrest said, "Don't," and told her, "Shut up," using
curse words. Segrest was on top of her
and she could not get up because he was holding her down. D.E. heard her father call her, and she told
Segrest she had to get up. Segrest said,
"No," put his hand over her mouth and then touched her breast.
When the
prosecutor asked D.E. whether Segrest touched any other part of her body, she
pointed down to what the prosecutor referred to as her "private
parts." The prosecutor asked
whether Segrest put something in her "private." D.E. replied, "Yeah," but when
asked what Segrest put in there, she answered, "I don't want to say
it." Showing D.E. a doll, the
prosecutor asked her, "Can you point to the part on the boy
doll?" D.E. responded, "Right
there," pointing to what the prosecutor referred to as the "crotch
area."
D.E.
testified that Segrest was still on top of her and her pants were still off
when her father came into the bedroom.
Her father was mad when he pulled Segrest off of her. D.E. indicated she stayed in the bedroom, but
heard yelling and later saw a hole in the wall.
After
reminding D.E. on redirect examination that they had talked about saying things
that are true, the prosecutor asked her, "Is it true that [Segrest] got on
top of you and put his . . . parts inside of
you?" D.E. answered,
"Yeah."
B. >Defense case
Segrest's direct
examination testimony
Segrest
testified that on January 28, late at night, he went to a bar with his
girlfriend and a few other people. He
had a couple of vodka and orange juice drinks, and two or three gin and orange
juice drinks. His girlfriend went home,
and Segrest put his drink down while hanging out outside the bar. Segrest testified that when he finished his
drink, he noticed what "looked like ashes floating at the
bottom." He also testified he
smoked cigarettes, and "a lot of times you might be smoking, and the ash
will fall in your drink." Defense
counsel asked Segrest whether he started to feel differently after he finished
the drink, and Segrest replied, "I did, but I figured it was just the
alcohol."
Segrest
stated he left the bar and went to a gathering of people at a friend's
house. He was given a ride home, but
felt "kind of excited" and "ready to party." Segrest got the car keys and, feeling
"perfectly fine" to drive his car, drove back to the gathering and
stayed there for about 20 or 30 minutes until others suggested they all go to
Segrest's uncle's house to play pool.
Segrest
testified he drove alone to his uncle's house, but none of the other people
came. He went into the house, decided to
lie on the couch, and smoked a cigarette.
He went to sleep and the next thing he remembered was his uncle waking
him up in the hallway. Segrest testified
he did not know "off the top" where he was, and he felt like he was
"in a deep sleep." He was
surprised his uncle was asking him, "What did you do to my
daughter?" Segrest hit the wall
because he got upset when his uncle said he was going to call the police. Segrest stated he then left the house because
his uncle was "just going off," and he did not believe what his uncle
was saying.
Segrest
drove to his mother's house after he left his uncle's house. His mother drove him to a gas station to get
him some cigarettes, then to the beach, and eventually home, where she
explained to Segrest's girlfriend what was going on. Segrest's girlfriend pulled his clothes off
and checked both his clothes and his body.
Segrest testified he slept the rest of that day, which was a Saturday,
got up in the afternoon on Sunday to eat, and then went back to bed and slept
through the night. Monday afternoon he
received a visit from his probation officer, and he was arrested the next
day.
Segrest's
cross-examination testimony
On
cross-examination, Segrest acknowledged he was convicted in 2004 of felony
evasion from a police officer, he was convicted in 2010 of being a felon in
possession of a firearm, and he had previously taken the drug Ecstasy. The prosecutor asked him, "Did you rape
anybody last time you did it?"
Segrest replied, "I didn't rape nobody [sic] this time." When
asked whether he had a blackout the last time he used Ecstasy, he answered,
"No." The prosecutor asked,
"Did you forget what you did?"
Segrest responded, "Not that I recall."
The
prosecutor then asked Segrest numerous questions about what he did before he
went into D.E.'s bedroom and what happened after D.E.'s father pulled him off
of her and pushed him into the hallway, and Segrest provided detailed
answers. Segrest repeated his testimony
that he did not remember going into D.E.'s bedroom. He acknowledged that after her father found
him on top of D.E., he and D.E.'s father had a conversation in the living room,
during which he (Segrest) smoked a cigarette until it was finished. Segrest again acknowledged he punched a big
hole in the wall after her father said he was going to call the police.
As shown by
the following exchange with the prosecutor, Segrest also acknowledged that
although he remembered what he did before and after he entered D.E.'s bedroom,
he had no memory of going into the bedroom or of anything that may have
happened in there:
"[Prosecutor]:
Now, you're saying that you remember every detail up until the point
where you go into [D.E.'s] room and get on top of her. Fair to say?
That's the only part of the night you don't remember?
"[Segrest]:
I don't remember it.
"[Prosecutor]: You remember who was at the parties you were
at. You remember how you got to [your
uncle's house]. You
remember . . . .
"[Segrest]:
I didn't . . . .
"[Prosecutor]:
-- what you did when you got to [your uncle's]. You remember what happened before you left
[your uncle's].
"[Segrest]:
Uh-huh.
"[Prosecutor]:
The only missing piece we have is when you're on top of [D.E.] and her
pants are ripped off.
"[Segrest]:
Uh-huh.
"[Prosecutor]: 'Yes'?
"[Segrest]:
Huh?
"[Prosecutor]:
'Yes'?
"[Segrest]:
Yes."
Segrest's mother
Segrest's
mother testified that when Segrest drove to her home early in the morning on
January 29, he was "panicky," "loud," and
"hyper." She thought he was on
drugs. When she took him to the beach in
the car, she smelled alcohol on his breath.
When he began to calm down, she called his girlfriend and drove him
home.
On
cross-examination, Segrest's mother acknowledged she never told the police that
Segrest appeared to be under the influence of some kind of drug on the morning
of January 29. She never thought she
should take him to the hospital.
Segrest's
girlfriend
Segrest's
girlfriend testified she was with him at the bar when he was drinking during
the evening on January 28. She fell
asleep in the car outside the bar at around 2:00 a.m. and when he woke her up
sometime later he told her to go home and he would find a ride home. He seemed "a little hyper," but did
not appear to be "falling-down drunk." She testified she went home and fell
asleep. Segrest came home later and woke
her up to get the car keys. At that
time, Segrest seemed hyper, he was moving a lot, and he was not himself.
Segrest's
girlfriend also testified she had previously taken Ecstasy pills, and she
thought Segrest might have taken an Ecstasy pill. When she saw him the next morning, he was
crying a lot, could not control himself, was shaking, and his eyes were
rolling. Allen testified she believed
Segrest "was still on the drug."
She stated she smelled his penis and his fingers, but he did not smell
like somebody who had just had sex.
DISCUSSION
I. CLAIM
OF INSTRUCTIONAL ERROR (CASE NO.
SCD232213)
Segrest
first contends the judgment in the forcible lewd act case should be reversed
because the court prejudicially erred by failing to sua sponte instruct the
jury under CALCRIM No. 3425 regarding the defense of unconsciousness.href="#_ftn5" name="_ftnref5" title="">[5] We conclude the court did not err.
A. >Background
The court
properly instructed the jury that the specific intent element of the crime of
committing a forcible lewd act upon a child under the age of 14 years
(§ 288(b)(1)) charged in counts 1 and 2 required proof that the defendant
committed the act with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of himself or the child. (See § 288, subds. (a), (b)(1).)
The court
also instructed the jury under CALCRIM No. 3426 regarding the limited
permissible use of any evidence that Segrest was voluntarily intoxicated at the time the charged crimes were
committed; and under CALCRIM No. 3427 regarding the jury's use of any evidence
he was involuntarily intoxicated at
the time those crimes were committed.
Both of those instructions informed the jurors they could consider any
evidence of intoxication in deciding whether Segrest acted with the requisite
intent. (See CALCRIM Nos. 3426
["You may consider evidence, if any, of the defendant's voluntary
intoxication . . . in deciding whether the defendant acted
with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of himself or the child[.]"] & 3427 ["Consider any
evidence that the defendant was involuntarily intoxicated in deciding whether
the defendant had the required intent when he acted."].)
The defense
did not request, and the court did not sua sponte give, an instruction on the
defense of unconsciousness. The jury
convicted Segrest of committing a forcible lewd act upon D.E. in violation of
section 288(b)(1) as charged in count 1.
B. >Applicable Legal Principles
"'"It
is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues
raised by the evidence.
[Citations.] The general
principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the
jury's understanding of the case."'"
(People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People
v. St. Martin (1970) 1 Cal.3d 524, 531.)
"The
duty to instruct, href="http://www.mcmillanlaw.com/">sua sponte, on general principles
closely and openly connected with the facts before the court also encompasses
an obligation to instruct on defenses, including self-defense and >unconsciousness,
and on the relationship of these defenses to the elements of the charged
offense." (People v. Sedeno (1974) 10 Cal.3d 703, 716, second
italics added.)
"Among
those persons deemed incapable of committing a crime are individuals who
'committed the act charged without being conscious thereof.' (§ 26, class four.) Unconsciousness,
when not voluntarily induced, is a complete defense to a charged crime.
[Citations.] 'Unconsciousness
does not mean that the actor lies still and unresponsive. Instead, a person is deemed
"unconscious" if he or she committed the act without being conscious
thereof.' " (People v. Rogers
(2006) 39 Cal.4th 826, 887.)
"A
trial court must instruct on unconsciousness
on its own motion if it appears the defendant is relying on the defense, or if
there is substantial evidence
supporting the defense and the defense is not inconsistent with the defendant's
theory of the case." (People v. Rogers, supra, 39 Cal.4th at p. 887, italics
added.) "Substantial evidence is
evidence sufficient to 'deserve consideration by the jury,' that is, evidence
that a reasonable jury could find persuasive." (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, disapproved on other
grounds in In re Christian S. (1994)
7 Cal.4th 768.)
A
"defendant's own testimony that he could not remember portions of the
events, standing alone, [is] insufficient to warrant an unconsciousness
instruction." (People v. Rogers, supra, 39 Cal.4th
at p. 888; People v. Coston (1947) 82
Cal.App.2d 23, 40 ["[A] defendant's mere statement of forgetfulness,
unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of
performing a particular act."].)
C. >Analysis
The trial
record shows Segrest did not rely on a defense that he was unconscious when he
allegedly committed the forcible lewd act charged in count 1. Rather, as Segrest points out, he relied on
the alternate defense theories that (1) the assault did not occur; (2) D.E.'s
pretrial accusatory statements were not truthful and she was
"confabulating" when she made those statements; and (3) even assuming
the assault occurred, the prosecution failed to prove he acted with the
requisite specific intent because the evidence showed he was voluntarily under
the influence of alcohol and involuntarily under the influence of an
"ashy" drug he claimed someone put in one of his drinks at the
bar.
Thus, as
Segrest did not rely on a defense of unconsciousness, the court had a duty to
sua sponte instruct the jury on unconsciousness only if (1) substantial
evidence—that is, evidence a reasonable jury could find persuasive—supported
that defense, and (2) the unconsciousness defense was not inconsistent with his
theory of the case. (People v. Rogers,
supra, 39 Cal.4th at p. 887; see People
v. Barton, supra, 12 Cal.4th at
p. 201, fn. 8.)
We conclude
Segrest has failed to meet his burden of showing that substantial evidence
supports the giving of an instruction on the defense of unconsciousness in this case, and, thus, he has failed to
establish that the court erred by failing to sua sponte give such an
instruction. First, as the Attorney
General correctly points out, there is no evidence the ashy substance that
Segrest testified he found at the bottom of the glass he had put down at the
bar was indeed a drug, let alone a drug that would cause him to lose
consciousness. Segrest's own testimony
shows he consumed at least five drinks containing vodka and gin at the
bar. He testified that when he finished
the drink in question, he noticed what looked like ashes floating at the
bottom. However, he also testified he
was a smoker, and he acknowledged that a lot of times you might be smoking, and
the ash will fall in your drink. Although
Segrest testified he started to feel differently after he finished the drink,
he thought it was just the alcohol. The
defense presented no expert testimony to show Segrest had been drugged with
something other than alcohol, and the testimony of his girlfriend that he might
have been drugged with an Ecstasy pill was speculation.
Second,
Segrest's testimony about his claimed memory lapse, alone, did not support the
giving of an unconsciousness instruction.
(People v. Rogers,
supra, 39 Cal.4th at p. 888; People v. Coston, >supra, 82 Cal.App.2d at p. 40.) In this regard, we note (as discussed in
detail, ante, in the factual
background) that Segrest acknowledged at trial that he had a clear memory of
what he did before and after he entered D.E.'s bedroom, but claimed he had no
memory of going into the bedroom or of anything that may have happened in
there.
Third,
Segrest's claim that "third-party verification of [his] altered
state" provided evidence supporting an unconsciousness instruction, is
unavailing. Segrest first relies on the
testimony of his uncle that when his uncle pulled him off of D.E., it was
"like [Segrest] was asleep on top of her," and Segrest seemed
"spaced out" and disoriented.
However, his uncle's testimony is not substantial evidence that Segrest
was unconscious. His uncle testified he
woke up and went into D.E.'s bedroom when he heard her yelling, "No, leave
me alone," "Stop," and, "Get out of here." Even though D.E. was a reluctant prosecution
witness at trial, she testified that she remembered crying out and yelling at
Segrest to stop and get off of her, and she acknowledged that Segrest cursed at
her and told her to "shut the fuck up." It is clear that the jury, by rejecting
Segrest's voluntary and involuntary intoxication defenses and finding he forcibly
committed a lewd act on D.E. with the requisite specific intent (discussed, >ante), believed Segrest froze and
pretended to be asleep or unresponsive when he realized his uncle was about to
come into the bedroom in response to D.E.'s yelling.
In support
of his third-party verification claim, Segrest also relies on the testimony of
his mother that he was hyper and she thought he was on drugs; and on the
testimony of his girlfriend, that he appeared hyper, he "wasn't hisself [>sic]," and he was shaking. However, being hyper or not being oneself or shaking
is not the test for unconsciousness.
(See CALCRIM No. 3425 ["Someone is legally unconscious when he or
she is not conscious of his or her actions."].) The testimony of Segrest's mother that she
thought he was on drugs, like the testimony of his girlfriend that he might
have been drugged with an Ecstasy pill, was speculation.
To be
substantial, testimony supporting an unconsciousness instruction must be
"evidence that a reasonable jury could find persuasive." (People
v. Barton, supra, 12 Cal.4th at
p. 201, fn. 8.) Here, the evidence on
which Segrest relies—specifically, his own testimony and that of his uncle, his
mother, and his girlfriend—is not evidence a reasonable jury could find
persuasive. As already noted, the jury
considered the testimony Segrest presented in support of his involuntary
intoxication defense and rejected that defense.
For all of the foregoing reasons, we conclude the court did not err by
failing to sua sponte instruct the jury under CALCRIM No. 3425 regarding the
defense of unconsciousness.
II. SENTENCING
ERROR (CASE NO. SCD222967)
Segrest
also contends that in sentencing him in the firearm possession case the court
should have stricken the two prison prior allegations, and, thus, the court
erred by imposing in that case, and then staying under section 654, the two
one-year enhancements for Segrest's two prison priors that the court had
already imposed in the forcible lewd act case.
The
Attorney General agrees the court should have stricken the two prison
allegations in the firearm possession case and asks this court to modify the
judgment by striking the prison prior enhancements imposed and stayed in that
case and to affirm the judgment as modified.
A one-year
prison prior enhancement (§ 667.5, subd. (b)) relates to the status of the
offender, rather than the nature of the offense, and therefore may be
"added only once as a step in arriving at the aggregate
sentence." (People v. Tassell
(1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380,
400-401; see also People v. Garrett (1991) 231 Cal.App.3d 1524, 1527
& § 1170.1.)
Here, in
sentencing Segrest to the aggregate prison term of 12 years at the same hearing
for his convictions in the forcible lewd act and firearm possession cases, the
court imposed the two one-year prison prior enhancements in the forcible lewd
act case and then impermissibly imposed (but stayed under § 654 the
execution of) the same two enhancements in the firearm possession case. Accordingly, we conclude the imposition of
the two one-year prison prior enhancements in the firearm possession case must
be stricken from judgment in that case, and the abstract of judgment must be
corrected to reflect that modification.
DISPOSITION
The
judgment in case No. SCD232213 is affirmed.
The two one-year prison prior enhancements (§§ 667.5, subd. (b),
668)) imposed and stayed in case No. SCD222967 are stricken. As modified,
the judgment in that case is affirmed.
The trial court is directed to prepare a corrected abstract of judgment
reflecting the striking of
those enhancements and to forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
NARES,
J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.