P. v. Silva
Filed 8/8/13
P. v. Silva CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
ALEX
DA SILVA,
Defendant and Appellant.
B239340
(Los Angeles County
Super. Ct. No. LA062814)
APPEAL
from a judgment of the Superior Court of
County, Kathleen Kennedy, Judge. Affirmed.
Edward J.
Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant Alex Da Silva
appeals from the judgment entered upon his jury conviction of forcible rape
(Pen. Code § 261, subd.(a)(2))
name="_ftnref1" title="">[1]
of one victim and assault with intent to commit rape (§ 220) of another. He raises numerous issues, none of which
warrants reversal of the judgment. We
affirm.
Defendant,
a salsa dancing champion of some television fame, taught dance classes. In 2010, he was charged with four counts of
forcible rape, two counts of assault with intent to commit rape, sodomy or oral
copulation, and two counts of sexual penetration by a foreign object as to four
different victims he met at salsa dance
clubs. A jury found defendant guilty of
assault with intent to commit rape as to victim J.T. (count 6) and of forcible
rape as to victim P.D. (count 7).
Defendant was sentenced to a six-year term on count 7 and a consecutive
four-year term on count 6. He was
ordered to pay various fines and fees, including a $2,000 restitution fine
under section 1202.4, subdivision (b).
Since only
counts 6 and 7 are at issue in this appeal, our summary is limited to evidence
pertinent to those counts.
1.
Forcible
Rape of P.D.
P.D. took
dance classes with defendant in 2002. In
August of that year, she agreed
to go to dinner with him. They ended up going to his house, where at
some point he pushed her against a couch and started kissing her. She repeatedly protested, and he eventually
stopped and gave her a ride back home.
The next
day, P.D. accompanied defendant while he ran errands. They again ended up at his house, and P.D.
agreed to watch a movie in his bedroom.
She did not object when he removed his clothes and remained in his
underwear. At some point during the
movie, defendant pushed P.D. down on the bed and pinned her down with his body
weight. She lay rigid, did not
reciprocate, and tried to hold on to her underwear. Defendant pushed it to the side and
penetrated her vagina. She noticed that
he was wearing a condom. After he
finished, defendant told P.D. he had to attend an audition, got ready, and left
the house. P.D. remained on the bed
until defendant returned and gave her a ride back home.
After
three weeks of no contact with defendant, P.D. again took one of his
classes. Once again, she agreed to go to
defendant’s house, where he started kissing her and invited her to watch a movie
in his bedroom. She declined, called a
taxi, and went home. Some time later in
2002, defendant called P.D. on the telephone and asked her to book a flight for
him on the internet. She obliged. In 2005, P.D. told her boyfriend that
defendant had raped her; she reported the rape to police in 2009.
At trial,
P.D. offered the following explanation for her behavior: her
sisters and she had seen defendant
on TV and were “starstruck.†P.D. was
attracted to defendant but did not feel ready to have sex with him. After he raped her, she remained in his house
because she was in shock and wanted to pretend the rape did not happen. She went back to defendant’s class because
she did not want to accept that defendant was a “bad guy†and a rapist. P.D. liked defendant and even considered
“just get[ting] past†this incident if he wanted to date her. She agreed to help him book a flight on the
internet because her sister was excited defendant had called P.D., and P.D. did
not want her to know what had happened.
The jury convicted defendant of forcible rape, as charged.
2.
Assault
with Intent to Commit Rape of J.T.
J.T. took
salsa classes with defendant in March 2009.
After the first class, he invited her to take another class with him at
a different venue. After the second
class, she accompanied him to a deserted apartment, where he “came on to [her]
aggressively,†and they had sexual intercourse.
A week later, after another class, she accompanied defendant to a
different apartment, where, once again, they had sexual intercourse. Both times, she did not intend to engage in
sexual relations with defendant, but did not resist his advances.
Two weeks
later, after defendant had returned from a salsa congress in Arizona, J.T. told
him she did not want to have sex with him any longer, and he promised they
would just have lunch together to celebrate his birthday. Defendant picked up food and took J.T. to the
same deserted apartment to which he had taken her the first time. After they ate, defendant pushed J.T. down
onto a couch. Although she tried to push
him away and repeatedly said “no,†he managed to move her underwear to the side
and push his fingers into her vagina. He
then pushed his penis against her. She
noticed he had a condom on. J.T.
continued to resist and eventually, after sucking on her breasts, defendant let
her go home.
While
driving home, J.T. called a friend and told him her dance instructor had
“pinned her down and forced himself onto her.â€
J.T. hesitated about reporting the incident to police because she was
unsure if it was “serious enough.†She
did report it later that night and underwent a sexual assault examination. Defendant’s DNA was found inside her bra. J.T. gave contradictory accounts as to
whether defendant’s penis penetrated her vagina. She told the nurse examiner that it had
touched her only on the outside because she was trying to avoid
penetration. At trial, she testified it
had penetrated her “a little bit.†As to
J.T., the jury acquitted defendant of the rape charge but found him guilty of
assault with intent to commit rape.
3.
Uncharged
Rape of S.L.
Evidence of
an uncharged rape of S.L. was introduced at trial under Evidence
Code section 1108. S.L. testified that in 2009 she attended a
salsa congress in Arizona, where she participated in a workshop taught by
defendant. He invited her to dinner, but
instead they ended up at her house because defendant asked to use her
computer. He eventually went into her
bedroom, pulled her onto a bed, and started kissing her. She kissed him back but did not want to go
any further and told him she wanted to return to the salsa congress. Defendant pinned her down and continued
kissing her while she was trying to push him away. Although she protested, he put on a condom,
pushed her underwear aside, and inserted his penis into her vagina. After he finished, they returned to the salsa
congress, where S.L. told a friend that defendant had raped her. She reported the incident to police the next
morning.
4.
Rape Trauma
Expert’s Testimony
An expert in rape trauma
testified to the ways in which acquaintance rape differs
from stranger rape.
The former does not involve significant force, and the victims commonly
have a difficult time acknowledging that it has occurred. They tend to minimize, distort, deny or
discount it, or they blame themselves.
That is so because acquaintance rape conflicts with the core assumption
that a person the victim has chosen to trust would not betray that trust.
The expert
also testified there is “no universal response to trauma,†but the common
patterns of behavior are to freeze, flee, or fight. When victims of assault freeze in fright,
disassociate, or shut down, they may not seem distressed at all. This reaction is the most difficult for
others to understand.
I
Defendant challenges the sufficiency
of the evidence supporting the forcible rape conviction on the ground that
P.D.’s testimony was inherently improbable.
On appeal, we view the evidence in
the light most favorable to the judgment and draw all reasonable inferences in
its support. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The testimony of a single witness is
sufficient to support a conviction, unless the testimony is physically
impossible or inherently improbable. (
1149, 1181.) To be deemed improbable,
testimony accepted by the trier of fact must be “‘so inherently incredible, so
contrary to the teachings of basic human experience, so completely at odds with
ordinary common sense, that no reasonable person would believe it beyond a
reasonable doubt.’ [Citation.]†(People
v. Hovarter (2008) 44 Cal.4th 983, 996.)
The falsity of such testimony ““‘must be apparent without resorting to
inferences or deductions.â€
[Citations.]â€â€™ (
721, 728.)
Cases finding inherent improbability
are “so rare as to be almost nonexistent.â€
(People v. Ennis,
back to the 1940’s and 1950’s. The cases
are distinguishable.
In People v. Casillas (1943) 60 Cal.App.2d 785, the trial court
convicted the defendant of raping his daughter.
(Id. at p. 793.) On direct examination, the daughter testified
her father had sexual intercourse with her twice. On cross-examination, she recanted and
accused a boy named Manuel instead. On
recross-examination, she testified her father and the boy each had sexual
intercourse with her once. (
because the daughter had given “three separate, distinct and contradictory
versions†of the facts, so that her testimony “was, in one part or another,
perjurious.†(Id. at p. 794.) Defendant
does not contend P.D.’s testimony was perjurious on its face, and the record
does not indicate that she contradicted herself in any material way.
In People v. Headlee (1941) 18 Cal.2d 266, the defendant was charged
with kidnapping two women and a taxi driver.
He also was charged with two counts of rape, based on his having sexual
intercourse with one of the women, first in the taxicab and then in a motel, to
which all four went. (
kidnapping and rape in the motel room, but not in the taxicab. The Supreme Court reversed, noting that to
acquit the defendant of rape in the taxicab the jury must have found the act
either did not occur or occurred with the victim’s consent. In either case, the jury could not reasonably
believe the victim’s testimony that she was raped in the motel room. (Id.
at pp. 274–275.) In contrast,
defendant’s conviction of forcible rape as to P.D. was not inconsistent with
his acquittal of the unrelated rape charge as to J.T. and with the jury’s
inability to reach a verdict on other unrelated charges of sexual assault as to
other victims.
In People v. Carvalho (1952) 112 Cal.App.2d 482, the appellate court
reversed the defendant’s conviction of kidnapping his estranged wife while
armed. (Id. at p. 490.) It held the
wife’s actions during the alleged kidnapping and in the month before she
reported it did not show she was afraid of the defendant. The court emphasized the many opportunities
the wife had to escape or ask for help while she drove the defendant from her
house to his and then to a drive-in. (
It also found significant the fact that, after the defendant had put the
gun away, she had sexual intercourse with him and helped him bathe. (Ibid.)
Defendant argues this case is similar
to People v. Carvalho because, like
the complainant in that case, P.D. either agreed to or tacitly acquiesced to
defendant’s actions, remained in his house after the alleged rape, had further
contact with him, and delayed reporting the incident. But, as defendant acknowledges, P.D. tried to
hold onto her underwear during the alleged rape. Thus, not all her actions are consistent with
consent. Additionally, P.D.’s
explanation of her subsequent conduct—that she was in shock, wanted to pretend
the rape did not happen, and sought contact with defendant to assure herself that
he was not a “bad guy†or a rapist—was not inherently incredible. The rape trauma expert informed the jury that
there is no standard response to trauma, and that victims of acquaintance rape
have a more difficult time acknowledging they have been raped and tend to
minimize or deny the incident. In light
of this testimony, the jury could infer that P.D.’s conduct, even if
counterintuitive, was not inconsistent with her rape allegation.
Defendant, in essence, asks us to
redetermine the issue of credibility and draw from P.D.’s testimony inferences
favorable to himself. We cannot do
that. (See People v. Ochoa, supra, 6
Cal.4th at p. 1206; People v. Ennis,
II
Defendant challenges the adequacy of two jury
instructions: on rape trauma and on prior consensual sexual intercourse. The adequacy of jury instructions is subject
to de novo review. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
A.
The jury was instructed with CALCRIM
No. 1192 that “testimony about rape trauma is not evidence that the defendant
committed any of the crimes charged against him. [¶] You may consider this evidence only in
deciding whether or not an alleged rape victim’s conduct was not inconsistent
with the conduct of someone who has been raped, and in evaluating the
believability of her testimony.â€
Defendant argues this jury instruction misstates the law because rape
trauma testimony is not admissible to support the complaining witness’s
credibility.
Under
expert testimony about rape trauma syndrome is admissible to “disabus[e] the
jury of some widely held misconceptions about rape and rape victims, so that it
may evaluate the evidence free of the constraints of popular myths.†(Id.
at pp. 247–248.) In cases where the
defendant suggests “that some conduct of the victim after the incident—for
example, a delay in reporting the sexual assault—is inconsistent with her claim
of having been raped,†such testimony may be introduced to rebut this inference
“by providing the jury with recent findings of professional research on the
subject of a victim’s reaction to sexual assault.†(Id.
at p. 247.) However, expert testimony
may not be used to suggest that, because a complaining witness suffers from
witness must have been raped. (
This reasoning was extended to the
use of expert testimony on child sexual abuse accommodation syndrome. (See People
v. Bowker (1988) 203 Cal.App.3d 385, 391–394.) Thus, psychological testimony was held
admissible to rehabilitate the credibility of a child who had retracted her
molestation claim. (People v. Housley (1992) 6 Cal.App.4th 947, 956.) But to avoid prejudice to the defendant
“in the event such evidence is
misused,†courts were required to give a sua sponte limiting instruction that
“(1) such evidence is admissible solely for the purpose of showing the victim’s
reactions as demonstrated by the evidence are not inconsistent with having been
molested; and (2) the expert’s testimony is not intended and should not be
used to determine whether the victim’s molestation claim is true.†(Id.
at pp. 958–959.)
Defendant acknowledges that CALCRIM
No. 1192 properly instructed the jury not to consider the rape trauma testimony
as evidence that a rape actually occurred.
But he contends that by allowing the jury to consider this evidence in
evaluating the complaining witness’s credibility, the instruction effectively
“permits the jurors to consider the expert testimony as supportive of the truth
of the allegations made against the defendant.â€
We disagree.
Rehabilitating a rape victim’s
credibility against unfavorable inferences based on popular misconceptions is meant
to level the playing field and help jurors evaluate a victim’s credibility
objectively. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Defendant conflates this permissible use of
expert testimony with impermissible bolstering of a victim’s credibility about
the rape allegations. CALCRIM No. 1192
clearly limits the latter use, while allowing the former. As the court noted in People v. Housley, supra,
6 Cal.App.4th 947, the danger of misusing an expert’s testimony does not exist
where the expert testifies in general terms, and describes “behavior common to
abused victims as a class, rather than any individual victim.†(Id.
at p. 959.) The expert in this case
testified about rape trauma in general terms.
She did not opine that any of the complaining witnesses suffered from
rape trauma syndrome, or that because they suffered from that syndrome, they
must have been raped.
It is unlikely that, as instructed,
the jury used the expert’s general testimony about rape trauma for any purpose
other than to evaluate objectively the complaining witnesses’ credibility. We find no instructional error.
B.
Defendant challenges the court’s
failure to include P.D. in CALCRIM No. 1194.
The form jury instruction states:
“You have heard evidence that (
defendant before the act that is charged in this case. You may consider this evidence only to help
you decide (whether the alleged victim consented to the charged act[s]/[and]
whether the defendant reasonably and in good faith believed that (
act[s]). Do not consider this
evidence for any other purpose.â€
The prosecutor argued that this
instruction applies only to undisputed evidence that a victim had prior
consensual sexual intercourse with defendant.
The court agreed and modified CALCRIM No. 1194 to read as follows: “You have heard undisputed evidence that J.T.
and F.M. [another alleged victim] had consensual sexual intercourse with the
defendant before the act that is charged in this case. You may consider this evidence only to help
you decide whether the alleged victim consented to the charged acts and whether
the defendant reasonably and in good faith believed that J.T. and F.M.
consented to the charged acts. Do not
consider this evidence for any other purpose.â€
Since P.D. disputed defendant’s testimony that they had only consensual
sex, she was not included in the instruction.
CALCRIM No. 1194 derives from section
1127d, subdivision (a), which requires a limiting instruction “if evidence was
received that the victim consented to and did engage in sexual intercourse with
the defendant on one or more occasions prior to that charged against the
defendant in this case . . . .†Neither
the statute nor CALCRIM No. 1194 require that the evidence be
undisputed. In the same vein, the older
jury instruction on this subject, CALJIC No. 10.61.1, expressly admonished
jurors that they should consider the evidence of prior consensual sexual
intercourse for its limited purpose only if they believed it.
The People effectively concede the
trial court erred in modifying the instruction to apply only to
about having consensual “sex†with P.D. before the charged crime was too vague
to establish the two had had “sexual intercourse.†Assuming defendant’s testimony constituted
substantial evidence supporting the inclusion of P.D. in CALCRIM No. 1194, we
nevertheless agree the error was harmless because it is not reasonably probable
that defendant would have obtained a more favorable result had P.D. been
included in the instruction. (See
525, 530, citing People v. Watson
(1956) 46 Cal.2d 818, 836.)
Defendant argues that the failure to
include P.D. in CALCRIM No. 1194 sent a message to the jury that defendant’s
testimony about having had prior consensual sex with P.D. was not
credible. But the court did not strike
defendant’s testimony, and the jury was free to consider it. The jury was admonished that it should not
draw factual suggestions from particular instructions, that it alone should
judge the witnesses’ credibility, and that it could choose to believe all, part
or none of any witness’s testimony.
In arguments to the jury, neither
side highlighted the exclusion of P.D. from CALCRIM No. 1194. Defense counsel argued in closing that
defendant’s testimony was credible while P.D.’s rape claim bordered on the
absurd. In rebuttal, the prosecutor
challenged defendant’s claim that he had only consensual sex with P.D. by emphasizing
actions that showed his use of force and her lack of consent during the alleged
rape itself—that defendant pinned P.D. down so that she could not move and that
she tried to hold up her underwear with one hand.
Section 1127d, from which CALCRIM No.
1194 derives, sets limits on the use of evidence of prior sexual activity
because it was enacted to counter the notion that an “unchaste woman†was more
likely to have consented to sexual intercourse with the defendant. (Mary
M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222 (Arabian, J., concurring).) It does not require the jury to infer consent
from prior conduct regardless of evidence to the contrary. Thus, whether or not the jury believed
defendant had had consensual sex with P.D. on prior occasions, it still needed
to determine if the evidence supported an inference that she consented on the
occasion giving rise to the charge against defendant.
The jury also was instructed with
CALCRIM No. 1000 that a woman may withdraw her consent: “A woman who initially consents to an act of
intercourse may change her mind during the act.
If she does so, under the law, the act of intercourse is then committed
without her consent if: [¶] 1. She
communicated to the defendant that she objected to the act of intercourse and
attempted to stop the act; [¶] 2. She communicated her objection through words
or acts that a reasonable person would have understood as showing her lack of
consent; [¶] AND 3. The defendant forcibly continued the act of intercourse
despite her objection.†Since the jury
was instructed P.D. could withdraw her consent at any time, and her actions
reasonably indicated lack of consent at the time of the charged offense, the
jury could find defendant guilty of raping P.D. on the particular occasion,
whether or not it believed P.D. had engaged in prior consensual sexual
intercourse with him.
Any instructional error as to P.D.
was also harmless because the jury found defendant guilty of assault with
intent to commit rape as to J.T., even though she was included in CALCRIM No.
1194. That verdict indicates the
evidence of prior consensual sexual intercourse was not determinative. Defendant’s suggestion that his acquittal of
the rape charge as to J.T. had something to do with her inclusion in CALCRIM
No. 1194 is not well taken. The acquittal
of the greater offense was due to the uncertainty in J.T.’s testimony regarding
penetration and had nothing to do with the issue of consent.
We find no instructional error
requiring reversal.
III
A friend of
J.T.’s was allowed to testify over a hearsay objection that J.T. told him her
“dance instructor†had “pinned her down and forced himself onto her.†Defendant argues the testimony regarding the
identity of J.T.’s assailant and the details of the assault exceeded the scope
of the fresh complaint doctrine, under which it was admitted.
Historically,
the fresh complaint doctrine allowed admission of evidence that a victim of a
sexual offense had promptly complained.
The doctrine was based on the assumption that “‘[i]t is natural to
expect that the victim of a crime would complain of it, and the prosecution can
show the fact of complaint to forestall the assumption that none was made and
that therefore the offense did not occur.’â€
(People v. Brown (1994)
8 Cal.4th 746, 756, quoting People
v. Burton (1961) 55 Cal.2d 328, 351.)
Although this assumption has been discredited, evidence may still be
admitted “for the nonhearsay purpose
of establishing the circumstances under which the victim reported the offense
to others . . . .†(People v. Brown,
of the making of the complaint and other circumstances material to this limited
purpose.†(Id. at p. 763.) That
includes evidence “demonstrating that the complaint “‘related to the matter being inquired into, and [
not a complaint wholly foreign to the subject . . . .â€â€™â€ (Id.
at p. 756, citing People v. Burton,
at p. 351.) Stating “the nature of the
offense and the identity of the asserted offender, without details, is
proper.†(Ibid.)
The challenged testimony identified
defendant, J.T.’s “dance instructor,†as the person who pinned her down and
“forced himself onto her,†a euphemistic way of saying he perpetrated a
forcible sexual act, possibly rape. This
limited testimony does not appear to exceed the scope of the fresh complaint
doctrine. In any event, the trial court
would have been required to instruct the jury on the limited non-hearsay
purpose for which it was admitted, had such a request been made. (People
v. Manning (2008) 165 Cal.App.4th 870, 880.) We have not been cited to a place in the
record where a request for a limiting instruction was made with regard to this
evidence, or where the jury was instructed that the evidence should not be
considered for its truth.
Any error with regard to the
admission of this evidence was undoubtedly harmless since J.T. testified at
trial, and her extrajudicial statements to her friend were simply
cumulative. It is not reasonably
probable that a different result would have occurred had those statements been
excluded or properly limited. (See
instruction is harmless error where victim testified at trial];
1512, 1526 [admission of hearsay statements is harmless error where declarant
testified at trial].)
IV
Defendant
argues the trial court abused its discretion and violated his right to due
process in denying his request to continue the trial to allow the testimony of
Alien Ramirez, his girlfriend at the time of his alleged assault on J.T. In related arguments, defendant contends that
the error deprived him of his right to present a defense and to confront
witnesses, and that his counsel was ineffective in failing to present the issue
sufficiently to the trial court.
“A continuance in a criminal case may
be granted only for good cause. (§ 1050,
subd. (e).) Whether good cause exists is
a question for the trial court’s discretion.
(People v. Jenkins (2000) 22
Cal.4th 900, 1037.) The court must
consider ‘‘“not only the benefit which the moving party anticipates but also
the likelihood that such benefit will result, the burden on other witnesses,
jurors and the court and, above all, whether substantial justice will be
accomplished or defeated by a granting of the motion.’â€â€™ (Ibid.)†(People
v. Doolin (2009) 45 Cal.4th 390, 450.)
When a defendant seeks a continuance
to secure a witness’s testimony, the defendant has the burden of showing he or
she ‘“exercised due diligence to secure the witness’s attendance, that the
witness’s expected testimony was material and not cumulative, that the
testimony could be obtained within a reasonable time, and that the facts to
which the witness would testify could not otherwise be proven.’ [Citations.]â€
(Jensen v. Superior Court
(2008) 160 Cal.App.4th 266, 270.) “When
a witness is not under subpoena, his or her absence generally does not
constitute good cause for the continuance of a trial [citations][.]†(Id. at
p. 271; see also Pham v. Nguyen
(1997) 54 Cal.App.4th 11, 17–18.)
We review the denial of a motion for
a continuance for abuse of discretion and consider whether it is so arbitrary
as to deny due process. (People
v. Riccardi (2012) 54 Cal.4th 758, 834; People v. Doolin, supra,
45 Cal.4th at p. 450.) Not every denial
of a request for a continuance violates due process, “even if the party seeking
the continuance thereby fails to offer evidence. [Citation.]â€
(People v. Beames (2007) 40 Cal.4th
907, 921.) “Absent a showing of an abuse
of discretion and prejudice, the trial court’s denial does not warrant
reversal. [Citation.]†(People
v. Doolin, at p. 450.)
As to the related claim of
ineffective assistance of counsel, we “need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.†(Strickland
v. Washington (1984) 466 U.S. 668, 697.)
Defendant’s first trial ended in a
mistrial in April 2011, when his attorney became suddenly unavailable due to a
personal tragedy. Jury selection in the
retrial began on August 24, 2011. On
that day, defense counsel advised the court that Ramirez was not in California
and would be outside the United States between September 2 and 12. He represented she was under subpoena on call
to him, but had not responded to his messages whether she could testify before
September 2. Counsel suggested Ramirez
would be available on September 13. The
court responded that would be outside the three-week estimate given the
jurors.
Counsel renewed the request for a
continuance on September 1, and the court reiterated it would not be
granted. On September 7, counsel yet
again requested a two-day break in the trial to allow Ramirez to testify on
September 13. In denying the request,
the court noted counsel had not proven Ramirez had ignored a subpoena when she
left the jurisdiction. Counsel responded
that was correct. Presentation of the
evidence ended on September 8, followed by closing arguments on September
9. Deliberations started on September
12.
On this record, we cannot conclude
the court abused its discretion in denying the continuance. Even though counsel asked for a delay of only
two court days, the record does not indicate Ramirez was under subpoena when
she left California and it is unclear whether counsel had made diligent efforts
to obtain her presence at trial before she left the jurisdiction. Additionally, the court had no way of judging
the likely benefit to defendant from her expected testimony since counsel
apparently made no offer of proof until the hearing on the motion for a new
trial. Even then, counsel stated in
general terms that Ramirez “would have testified about events in this case that
were inconsistent with what the girls said and would have also testified about
[defendant]’s character, having dated him so long.†Counsel referenced a declaration that
contained this offer of proof, but the declaration is not attached to the
motion for a new trial included in the record on appeal. The representations counsel made do not make
clear whether the inconsistencies to which Ramirez would have testified were
material to the convictions from which defendant appeals.
Defendant argues Ramirez would have
corroborated his testimony that he took J.T. to other people’s apartments
because he was in a relationship with Ramirez.
Ramirez also would have confirmed her presence at a club at which J.T.
arrived uninvited the night after defendant and J.T. had consensual sex for the
second time. This, he claims, would have
supported the defense’s theory that J.T. was angry at defendant because of his
relationship with Ramirez.
The fact that defendant and Ramirez
were in a relationship was not disputed, nor was Ramirez’s presence at the club
on the night in question. Defendant
testified Ramirez and he were dance partners; they also taught salsa classes
together, and they argued about a routine in front of other people at the
club. J.T. similarly testified defendant
argued with his “dance partner†in front of everybody at the club, and the
relationship between the two appeared to be romantic. Her testimony was consistent with defendant’s
in all respects except she believed defendant had invited her to the club, and
he denied that. J.T. testified she was
upset because she had to stand in line at the club and defendant did not pay
any attention to her that night. The
had any personal knowledge of the facts underlying J.T.’s allegations against
defendant or would have added anything material to his defense.
Additionally, the defense called a
number of character witnesses, who testified women flirted with defendant at
clubs, and he dated a lot of women.
Women who had long-term consensual sexual relationships with defendant
testified he did not force them to have sex when they did not want to have
it. Other women testified that defendant
made no sexual advances towards them, or that he more or less respected their
wishes when they rejected his advances.
In light of the ample character evidence presented by the defense,
Ramirez’s testimony regarding her sexual relationship with defendant most
likely would have been cumulative.
We see no abuse of discretion or
ineffective assistance of counsel resulting in prejudice to defendant from the
denial of his request for a continuance.
V
Defendant also argues the trial court
abused its discretion in failing to remove a sleeping juror, thus depriving
defendant of due process and a fair trial.
In a related argument, he contends counsel was ineffective in failing to
request that the juror be removed.
When it has notice that a juror is
sleeping during trial, the trial court must conduct an investigation. (People
v. Bonilla (2007) 41 Cal.4th 313, 350.)
The scope of the investigation and the decision whether to discharge the
juror are reviewed for abuse of discretion.
(Ibid.)
In People v. Bonilla, supra,
41 Cal.4th 313, a juror notified the court he had “drifted off to sleep a
couple of times†during trial. (
explained he had caught himself nodding off but did not believe he had missed
anything. (Id. at pp. 351–352.) After
holding an additional hearing at which no evidence indicating an ongoing
problem with the juror was adduced, the court denied the defendants’ motion to
dismiss the juror. (Id. at p. 352) The Supreme
Court found no abuse of discretion. (
In People v. Bradford (1997) 15 Cal.4th 1229, the trial court and
defense counsel commented that a juror was asleep on two days of trial. (Id.
at p. 1348) The Supreme Court concluded
the trial court did not abuse its discretion in not investigating further without
evidence of “the juror’s inattentiveness over a more substantial period.†(Id.
at p. 1349.) It noted that courts
generally are reluctant to find juror misconduct based on inattentiveness
without evidence that a juror slept during material portions of trial. (Ibid.)
Here, during the first week of trial,
the court advised counsel of its concern that Juror No. 10 may have fallen
asleep “at various times.†At one point,
he appeared to be snoring, then suddenly looked up when nudged by Juror No.
11. For the most part, however, the
court was unsure whether Juror No. 10 was sleeping or listening with his eyes
closed. The prosecutor and defense
counsel were not sure either. Defense
counsel advised the court that, even though the juror had sat with his eyes
closed during jury selection, he appeared to be listening. The court asked counsel to “pay a little
attention . . . and just see if anything seems
obvious.â€
During deliberations, Juror No. 11
sent a note to the court complaining, among other things, that Juror No. 10
“fell asleep many times during the trial, did not pay full attention to the
trial process. I had to pat his shoulder
to wake him up. Juror No. 6 also noticed
that.†The court questioned Juror No.10,
who admitted to closing his eyes, but claimed he prevented himself from falling
asleep by chewing on peanuts and had “fully understood and heard the
case.†The court noted that after its
initial concern that Juror No. 10 may be sleeping during trial, it watched him
carefully and did not notice any further problem.
We find no abuse of discretion or
ineffective assistance of counsel under these circumstances. The trial court itself had watched Juror No.
10 and had noticed no ongoing problem.
The juror maintained he had taken measures to stay alert during trial
and had been “pretty much aware of what was going on.†Defense counsel also had observed that
despite closing his eyes, the juror appeared to be paying attention. There was no evidence that Juror No. 10 had
actually missed substantial or material portions of trial. Counsel was not required to request that
Juror No. 10 be removed in the absence of such evidence, and the court’s
handling of the matter was within its discretion.
VI
The court instructed the jury with
CALCRIM No. 1191 on the use of propensity evidence admitted pursuant to
Evidence Code section 1108. Defendant
argues the jury instruction violated his right
of due process because it deprived him of the presumption of innocence and
the right to have his guilt determined beyond a reasonable doubt. In a related argument, he contends Evidence
Code section 1108 itself violates the right to due process and equal
protection. Defendant concedes he
challenges settled California precedent in order to preserve the issues for
possible review in federal court. We
reject these arguments.
A.
The court instructed the jury with
CALCRIM No. 1191 that if the uncharged rape of S.L. was proven by preponderance
of the evidence, the jury was allowed, but not required, to conclude that
defendant was disposed to commit sexual offenses. From that, the jury was allowed to conclude
further that defendant was likely to commit and committed the offenses with
which he was charged. The jury was
admonished the uncharged offense was to be considered as a factor with other
evidence but not as evidence of guilt by itself. The jury also was admonished the People had
to prove the elements of every charge beyond a reasonable doubt.
As defendant concedes, in
1007, the Supreme Court upheld the older instruction on the use of propensity
evidence, CALJIC No. 2.50.01, against a due process challenge. (Id.
at pp. 1012–1016 [holding
instruction unlikely to
mislead jury regarding prosecution’s burden to prove elements of charged crimes
beyond reasonable doubt].) Subsequent
cases have held that CALCRIM No. 1191 is not materially different from CALJIC
No. 2.50.01. (See, e.g.,
Cal.App.4th 851, 894–896; People v.
Schnabel (2007) 150 Cal.App.4th 83, 87;
People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
Defendant argues that inferring a
defendant’s disposition to commit sexual offenses, as permitted by CALJIC No.
2.50.01, is materially different from concluding the same thing, as permitted
by CALCRIM No. 1191. He argues further
that this one-word difference in the instructions deprived him of the
presumption of innocence. We
disagree. Despite defendant’s assertion
that “conclude†is “a more definitive term,†a conclusion and an inference are
functional synonyms. A conclusion of
fact is “an evidentiary inference,†and an inference is “[a] conclusion reached
by considering other facts and deducing a logical consequence from them.†(See Black’s Law Dict. (9th ed. 2009) pp.
329, col. 2 & 847, col. 2.) CALCRIM
No. 1191 and CALJIC No. 2.50.01 are not materially different.
We are bound by the Supreme Court’s
holding in People v. Reliford,
principles of stare decisis. (See
(1962) 57 Cal.2d 450, 455.)
B.
Evidence Code section 1108,
subdivision (a) makes evidence of a defendant’s
commission of a sexual offense admissible in a criminal
prosecution of the defendant for another sexual offense, subject to the
balancing of probative value and undue prejudice under Evidence Code section
352. In People v. Fitch (1997) 55 Cal.App.4th 172, 182–184, the Court of
Appeal held that section 1108 does not violate equal protection. That holding was cited with approval in
903, where the Supreme Court held that section 1108 does not violate due
process because it allows trial courts to exclude unduly prejudicial evidence
under section 352. (Id. at p. 917–918, 919.)
Defendant contends the state
precedent should be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, overruled on
other grounds by Woodford v. Garceau
(2003) 538 U.S. 202. We are not
persuaded. As defendant acknowledges,
decisions of the federal intermediate courts are not binding on us. (People v.
Bradley (1969) 1 Cal.3d 80, 86.) But
we are bound by People v. Falsetta,
Equity Sales, Inc. v. Superior Court, supra,
57 Cal.2d at p. 455.) As defendant also
acknowledges, Garceau
propensity evidence in a capital murder case.
The Ninth Circuit in that case was not faced with a constitutional
challenge to Evidence Code section 1108, and the case cannot stand for a
proposition not actually considered.
(See People v. Barragan (2004)
32 Cal.4th 236, 243.) The Ninth Circuit
has upheld the admission of propensity evidence in sex offense cases both under
Evidence Code section 1108 and its rough analogue, Federal Rule of Evidence
414. (See Mejia v. Garcia (9th Cir. 2008) 534 F.3d 1036, 1047;
260 F.3d 1018, 1022, 1031.) We see no
conflict between Garceau
decisions, it is not for us to resolve.
Not only does defendant urge us to
disagree with binding precedent, but he cannot show prejudice. Since the jury could not reach a verdict on
at least some of the charges, it cannot be said that the uncharged rape of
S.L., which was the sole subject of CALCRIM No. 1191, determined the result of
his trial.
VII
Defendant urges us to find cumulative
error based on the issues we discussed so far.
Since we find no individual error requiring reversal of his convictions,
we also reject his claim of cumulative error.
(See People v. Panah (2005) 35
Cal.4th 395, 479–480 [error harmless when considered separately do not give
rise to cumulative error].)
VIII
Defendant argues that the $2,000
restitution fine under section 1202.4, subdivision (b) violated his federal
constitutional rights because the fine is punitive and the court imposed it on
judicially determined facts. This
argument was recently rejected in People v. Kramis (2012) 209 Cal.App.4th 346.
As the court in that case explained,
“any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.†(People v. Kramis, supra,
209 Cal.App.4th at p. 350, quoting Apprendi
v. New Jersey (2000) 530 U.S. 466, 490.)
This requirement applies to the imposition of criminal fines as
well. (Southern Union Co. v. United States (2012) 567 U.S. ___, 132
S.Ct. 2344, 2357.) However, it has no
application in cases where
the trial court exercises its discretion by imposing a sentence within a
statutory range. (See
cited there.) A sentence within such a
range is supported by the jury’s verdict, and any factor the trial court uses
to determine the precise sentence within the range is not a sentence
enhancement. (Ibid.)
The statutory range set forth for a
fine in a felony conviction in section 1202.4, subdivision (b)(1) used to be
between $200 and $10,000. (See People
v. Kramis, supra, 209 Cal.App.4th
at p. 349.) Since January 1, 2012, it
has been between $240 and $10,000. (
for crimes committed in 2002 and 2009.
The $2,000 fine is within the statutory limit under either version of
the statute.
Defendant argues that, under section 1202.4,
subdivision (c), the
applicable statutory maximum was $200 because the court was to determine his
ability to pay if it decided to impose a fine in a higher amount. That is contrary to the plain
language of subdivision (c), which refers to a “minimum†fine. A defendant’s ability to pay is one factor,
among others, that the court considers in setting the amount of the fine above
the statutory minimum but within the statutory range. (See People
v. Kramis, supra, 209 Cal.App.4th
at p. 350, citing § 1202.4, subds. (c)–(d).)
Since no factor enhanced the fine beyond the statutory maximum
authorized by the jury verdict, Apprendi v. New Jersey, supra,
530 U.S. 466 and its progeny have no application in this case.
IX
Defendant argues the court abused its
discretion in denying his motion for a new trial based on jury misconduct,
without holding an evidentiary hearing or ordering disclosure of juror
identifying information.
A petition for release of juror
identifying information must be supported “by a declaration that includes facts
sufficient to establish good cause for the release†of this information. Denial of such a petition is reviewed for
abuse of discretion. (
Cal.App.4th 978, 991.)
The trial court also has discretion
“to conduct an evidentiary hearing to determine the truth or falsity of
allegations of jury misconduct, and to permit the parties to call jurors to
testify at such a hearing. [Citation.] .
. . ‘The hearing . . . should be held only when the defense has come forward
with evidence demonstrating a strong possibility that prejudicial misconduct
has occurred. Even upon such a showing,
an evidentiary hearing will generally be unnecessary unless the parties’
evidence presents a material conflict that can only be resolved at such a
hearing.’ [Citations.]†(People
v. Avila (2006) 38 Cal.4th 491, 604.)
The trial court has broad discretion
“to act upon a motion for new trial.
[Citation.] When the motion is based upon juror misconduct, the
reviewing court should accept the trial court’s factual findings and
credibility determinations if they are supported by substantial evidence, but
must exercise its independent judgment to determine whether any misconduct was
prejudicial.†(People v. Dykes (2009) 46 Cal.4th 731, 809.)
As we noted, on the second day of
deliberations, Juror No. 11 sent a note to the court, complaining that Juror
No. 10 slept during trial. He also complained
Juror Nos. 8 and 10 were biased in defendant’s favor based on their personal
experiences. Because of this perceived
bias, on the third day of deliberations, Juror No. 11 asked to be dismissed
from the jury, stating he had doubts Juror Nos. 8 and 10 “will change their
biased mindset about the case which was openly pronounced in the deliberation
room, due to their personal experiences.â€
Juror No. 11 assured the court he took jury duty seriously and wanted to
do “a good job as a juror,†but did not want to participate in a “task†that
was “likely to fail . . . justice.†The
court questioned Juror No. 10 about the allegations against him, and admonished
him to decide the case on the evidence.
The court also admonished Juror No. 11 that disagreement with other
jurors was not a ground to withdraw from his position as a juror.
Defendant’s motion for a new trial
was based on a declaration by Juror No. 10, whom Juror No. 11 had earlier
accused of bias. In the declaration,
Juror No. 10 alleged that, after the prosecutor rested, Juror No. 11 told him
that when they go back into the jury room, “‘in five minutes we’re done.’†Juror No. 10 also claimed that, when
deliberations began, Juror No. 11 immediately stated defendant was guilty, but
“never†gave a reason for his opinion.
Juror No. 10 alleged further that, one day during deliberations, Juror
No. 9 came into the jury room crying.
She told the jury, “We need to get this guy off the street,†and always
voted to convict defendant.
The trial court denied the motion for
a new trial and declined to release juror identification information, finding
defendant had not made a prima facie case of juror misconduct or
prejudice. The court noted the jury
deliberated for several days, the court and counsel addressed issues that came
up during deliberations, and defendant could not “pick through [the] whole
deliberative process.â€
A.
Defendant relies on
to argue that Juror No. 11 committed misconduct. In that case, a juror signed a declaration,
stating that, before the prosecution rested, a fellow juror had commented, ““He
is guilty.†“There is no doubt about
it.Չۉ۪ (Id. at p. 479) Based on that
uncontradicted declaration, the appellate court found the juror who made the
comments engaged in prejudicial misconduct by prejudging the case “early in the
proceedings independent of the evidence and the law.†(Id.
at p. 482.)
Defendant also relies on
190 Cal.App.4th 778, where one juror was alleged to have told another, ‘“‘I
made up my mind already. I’m not going to listen to the rest of the stupid
argument.Չۉ۪ (Id. at p. 784.) The trial
court granted a motion for new trial based on juror misconduct, finding this
remark was made two weeks into a five-week trial. (Id.
at p. 795.) The Court of Appeal
affirmed, stating the juror’s remark “requires neither interpretation nor the
drawing of inferences. It is a flat, unadorned statement that this juror
prejudged the case long before deliberations began and while a great deal more
evidence had yet to be admitted.†(
The People in turn rely on
Cal.4th 60. There, the Supreme Court
concluded that a remark a juror made during deliberations, “‘When the
prosecution rested, she didn’t have a case,’†was “subject to some
interpretation†and was “not an ‘unadorned statement’ that he had conclusively
prejudged the case.†(
a preliminary view that a party’s case is weak does not violate the court’s
instructions so long as his or her mind remains open to a fair consideration of
the evidence, instructions, and shared opinions expressed during
deliberations.†(Id. at p. 73.)
The record in this case is somewhat
unclear whether the court credited Juror No. 10’s allegation that Juror
No. 11 had prejudged the case. The court
stated tentatively that “maybe there is a suggestion . . . maybe there was some
comment . . . who knows what was said.â€
Considering that Juror No. 11 already had accused Juror No. 10 of bias
during deliberations, the court could rightfully suspect Juror No. 10’s
counter-accusation.
Assuming that the court credited the
declaration, the remark, “when we go back into the jury room ‘in five minutes
we’re done,’†does not unequivocally show that, by the end of the prosecution’s
case, Juror No. 11 had decided defendant was guilty beyond any doubt and was
refusing to listen to the defense’s case.
Since the remark required some interpretation, it was closer to the
statement at issue in People v. Allen and
Johnson than to those in Grobeson v.
City of Los Angeles and People v.
Brown.
Juror No. 10 also claimed Juror No.
11 announced his belief in defendant’s guilt on the first day of deliberations
without providing a reason for that belief.
But the declaration does not establish that Juror No. 11 refused to
listen to the opinions of other jurors or to consider the evidence and instructions. (See People
v. Allen and Johnson, supra, 53
Cal.4th at p. 73.) On the contrary,
Juror No. 11’s complaints during deliberations suggest that he listened to
Juror Nos. 8 and 10’s views and disagreed with them because he perceived them
to be based inappropriately on those jurors’ personal experiences rather than
on the evidence. Whether or not that
perception was correct, Juror No. 11 apparently was trying to follow the
instruction that the case should be decided on the evidence presented at trial.
B.
Defendant argues the allegations that
Juror No. 9 cried at one point during deliberations and told the other jurors,
“We need to get this guy off the street,†presented good cause for granting the
motion for a new trial. Defendant is
correct that “both trial-related and non-trial-related stress can provide good
cause for discharging a juror.†(
695, 703 and cases cited in it.) But the
question is whether the stress interferes with a juror’s ability to perform as
a juror. (Ibid.)
In two of the cases on which
defendant relies, the juror herself brought her inability to perform as a juror
to the court’s attention. (See
687, 690) [juror asked to be excused because she could not follow court’s
instructions, “felt more emotionally than intellectually involved and . . .
thought she would not be able to make a decision based on the evidence or the
lawâ€], disapproved on a different ground in People
v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19; People v. Van Houten (1980) 113 Cal.App.3d 280, 285 [juror asked to
be excused because evidence was so graphic and upsetting to her she tuned it
out].) In People v. Diaz, supra, 95
Cal.App.4th 695, the foreperson alerted the court that a juror was refusing to
deliberate. (Id. at p. 700.) Although the
juror’s emotional distress became apparent in subsequent questioning, it was
not the sole or primary basis for removing her.
(Id. at pp. 702, 705.)
Here, there is no evidence Juror No.
9 was unwilling or unable to deliberate, follow instructions, or assess the
evidence rationally. Rather, defendant
infers from the allegation that the juror had become emotional on one occasion
during several days of deliberation that she generally could not perform as a
juror. The inference is speculative
absent other evidence. The juror’s
alleged comment that defendant should be taken “off the street†and her
consistent vote to convict may suggest she strongly believed he was guilty, but
they do not demonstrate that her belief was the result of an emotional reaction
as opposed to deliberation and rational examination of law and evidence.
The trial court reasonably concluded
that Juror No. 10’s declaration failed to establish juror misconduct. In light of that conclusion, the court did
not abuse its discretion in denying the motion
for a new trial without releasing juror information or holding an
evidentiary hearing.
The judgment is affirmed.
EPSTEIN,
P. J.
We
concur:
MANELLA, J.
SUZUKAWA, J.
otherwise indicated.
