P. v. Thompson
Filed 6/20/13 P. v. Thompson 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NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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.
JASON JAVON THOMPSON,
Defendant and Appellant.
B242201
(Los Angeles County
Super. Ct. No. BA366565)
APPEAL from a judgment of
the Superior Court of
County, Gail R. Feuer, Judge.
Convictions affirmed; sentence vacated and remanded.
Edward J. Haggery, 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, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General,
for Plaintiff and Respondent.
Appellant Jason Javon Thompson,
convicted of one count of sexual assault of a child under the age of 14 and one
count of continuous sexual abuse of a child, contends he was not competent to
stand trial and that the trial court’s contrary finding was not supported by
substantial evidence. He further
contends: (1) the trial court erred in
permitting the jury to see the videotape of his police interview because his
intelligently made and the statements were obtained by coercion;
(2) the court erred in failing to instruct the jury on the lesser offense of
sodomy with a minor; (3) the court erred in excluding certain opinion testimony
from appellant’s half-brother and stepfather concerning his intellectual
ability; (4) the court abused its discretion in denying a request for a continuance
to obtain the appearance of appellant’s psychological expert; (5) the denial of
the continuance violated his due process rights; (6) counsel’s failure to
secure the appearance of the psychologist represented ineffective assistance of
counsel; (7) CALCRIM No. 1120 erroneously negates one of the elements of the
crime of continuous sexual abuse and is argumentative; (8) the court imposed a
consecutive sentence on the continuous sexual abuse count under the erroneous
impression that it was mandatory; (9) the court failed to explain its reasons
for imposing consecutive terms; and (10) the imposition of a $500 restitution
fine was not supported by substantial evidence of ability to pay. We remand for resentencing on the continuous
sexual abuse count and otherwise affirm.
A. Information
In a
three-count information, appellant was charged with (1) aggravated sexual
assault of a child under the age of 14, specifically alleged to have been
committed between April 1997 and April 1998 (Pen. Code, § 269, subd. (a)(3),
count one); (2) continuous sexual abuse of a minor under the age of 14, alleged
to have occurred during the period from April 1998 to April 2003 (§ 288.5,
subd. (a), count two); and sodomy by force of a victim over the age of 14,
specifically alleged to have been committed between April 2003 and April 2004
(§ 286, subd. (c)(2)).
name="_ftnref2" title="">[2]
B. Evidence
at Trial
1. Prosecution
Evidence
Crystal C.,
appellant’s half sister, testified that the sexual abuse began in 1997, when
she was eight and appellant was 21 or 22.
At the time she lived with her mother and father, Monica and John C.,
and her brothers Aaron C., Johnny C., and appellant. She stayed home from school one day due to
illness and saw appellant watching a pornographic video featuring anal sex.
lying on her stomach. She was awakened
when appellant got on top of her and inserted his penis in her anus. It hurt and she started to cry and
scream. Appellant applied sufficient
force that she could not get up. After
appellant finished, he threatened to kill her if she told anyone. She believed him because he was “always
violent.â€
Crystal
testified that following that initial incident, appellant regularly sodomized
her until she turned 14, up to three times a week. During the acts, he often played loud music
by a particular rap group. Sometimes he
would give her presents, such as jewelry, shirts and money. Once he put money on the floor, and when she
bent down to pick it up, he sodomized her.
On several occasions, he threatened to kill her if she told anyone. On at least one occasion, appellant sodomized
her with a bar of soap while she was bathing.
the mouth. Crystal recalled a specific
occasion that occurred when she was 14 when appellant forced himself on
her. During the act, she tried to get
up, but his body was on top of hers and she was not strong enough.
The last
sexual incident occurred when Crystal was 14, asleep in the living room. On that occasion, she awoke to find appellant
touching her buttocks and masturbating.
She started crying and asked him why he was doing it to her. Appellant ran out of the room. Crystal’s brother Aaron woke up and asked Crystal
why she was crying. Appellant returned
and also asked what was wrong, as if he had done nothing.
Shortly after
the final incident, Crystal told a friend at school about the abuse. The friend advised her to tell her mother,
Monica, and Aaron. Crystal told Aaron
and they both informed Monica. Monica
confronted appellant, struck him, and told him to stop and to apologize to
Crystal. Monica persuaded Crystal and
Aaron not to tell their father, John, convincing them that he would kill
appellant and be sent to jail and that the family would be broken up.
school, she told some friends and a teacher.
Police officers came to the family home and asked Crystal about the
allegations. She denied that anything had
happened because Monica had told her she would end up in foster care if she
told the truth.
In January
2010, when the family was planning to move to a new home, Crystal and Aaron
informed their parents that they did not want to live with appellant. Monica told Crystal she needed to forgive
appellant. John asked what was going on
and Crystal told him about the abuse.
John confronted appellant and asked if he had sodomized Crystal. Appellant began to cry and said, “I don’t
know.â€
out of the family home. On January 5,
John took Crystal to a police station to report the abuse.
On the day of
his arrest, appellant was interviewed by Detective Timothy Shumaker.
was “the detective.†Detective Shumaker
asked appellant if he knew why he had been arrested; appellant answered
“[y]eah,†and immediately added, “that’s not true, you know.†After advising appellant of his
if he wanted to talk about what happened.
Appellant replied: “Yeah. Crystal is hallucinating a lot, takes Xanax. She goes crazy on me, and she hits me.†The detective asked about their relationship
and appellant stated that Crystal was “sometimes real mean and vicious,†and
would tell him to “[s]hut the hell up†and “leave [her] the hell alone.â€
Detective
Shumaker advised appellant to be “100 percent honest,†and added: “[I]f you’re not going to do that, you’re not
going to be truthful, then we’re going to go nowhere. . . .
It’s going to just frustrate me.â€
Appellant agreed he would be “dead†if the detective found out he was
lying. Detective Shumaker asked for
background information about the period when the abuse reportedly began. Appellant said he had smoked marijuana
“basically†on a daily basis. He then
acknowledged: “I touched her. That’s about it.†He went on to state that he put his hand
under Crystal’s dress when she was ten.
Asked specifically about engaging in anal sex or sodomy with Crystal,
appellant denied it.
Employing a
ruse, Detective Shumaker stated that Crystal had maintained a diary and had
written down specific details about the abuse when it occurred. At that point, appellant admitted sodomizing
Crystal. Appellant claimed that Crystal
had initiated the molestation when she was eight by coming into his room and
kissing him and said that there was “no force or nothing.†He denied watching pornography in front of
her or abusing her with soap. He denied
threatening her.
After
admitting to sodomizing Crystal, appellant stated, “I’m putting myself in a
grave right now.†Detective Shumaker
replied: “Well, you’re being honest. And when you come out and [are] honest
. . . you know, the truth will set you free.†After that exchange, the detective began to
inquire about the frequency of the abuse.
Appellant denied that the sexual incidents happened “every day,†and
initially stated he had sodomized Crystal “twice.†Detective Shumaker asked if he meant “twice a
month.†Appellant then stated it
happened once or twice a month or once a week until Crystal turned 14. Appellant later stated there were only ten
occasions and that it occurred “with her permission.†He ultimately confessed that the incidents
had occurred hundreds of times over the years.
Asked about other sexual acts, appellant stated that he had kissed
Crystal and touched her vagina “like three times,†and that she touched his
penis and “came on to [him].†He
initially indicated that he was only 17 when the abuse began, but later
admitted he was actually 21 or 22.
Detective
Shumaker asked about the incident that had allegedly occurred when Crystal was
14 and asleep on the couch. Appellant
denied touching her when she was asleep, but stated that she “came on to [him]â€
when she was 14 and he “react[ed]†once or twice. He initially denied giving Crystal any
presents other than Christmas presents during this period, but then admitted he
sometimes gave her money. He denied
threatening her.
After
admitting to sodomizing Crystal on a number of occasions, appellant asked the
detective what was going on and if he was “doing the right thing.†The detective stated that if he was lying, he
was lying to himself and “who’s that going to help?†Later, appellant asked: “Is there any way I could work through this
like with you? . . . Is there any way I could work this
out?†Detective Shumaker said he would
“see what [he] could do.†Near the end
of the interview, appellant asked if there was a way he could “work with thingsâ€
or if he could just “leave the city†and if the detective needed to “talk to
the DA.†The detective stated that
someone else would make the decision, but that he could tell the DA that
appellant was being honest and that appellant was “getting closer to the truthâ€
with regard to the continuous nature of the abuse.
2. Defense
Evidence
The defense
called Officer Alicia Castro, who had interviewed Crystal when John took her to
report the abuse. Officer Castro’s
report indicated that Crystal had described the first incident differently than
she had at trial. Crystal told the
officer that she recalled appellant pulling up her nightgown and taking off her
underwear. Crystal had also said that
appellant had taken a shower afterward and did not report that he had worn a
condom.
told Officer Castro that appellant had sodomized her with soap 20 times. Crystal had not told the officer that
appellant played specific music or that he had thrown money on the floor and
sodomized her when she bent down to pick it up.
C. Pertinent
Argument
During closing
argument, the prosecutor made clear that count one was based on the first
incident of sodomy when Crystal was eight and count three was based on the
sodomy that Crystal had described taking place when she was 14. The prosecutor argued that use of force
sufficient to overcome Crystal’s will was evident from the fact Crystal was
face down with appellant on top of her, and that she was unable to get up. With respect to count two (continuous sexual
abuse), the prosecutor argued that it could be established either by the
evidence of multiple acts of sodomy or by the evidence of lewd and lascivious
conduct, such as touching Crystal’s buttocks, touching her vagina, or kissing
her, if “sexual intent†was present or if appellant was “thinking about sex
when he’s kissing her [or] . . . touching her vagina.â€
The defense
argued that the discrepancies between Crystal’s testimony and her statement to
Officer Castro cast doubt on her credibility.
Defense counsel further argued that the confession was unreliable
because appellant had difficulty understanding what was going on and that
Detective Shumaker manipulated him into admitting that the abuse occurred and
even into admitting things that Crystal had denied -- that appellant touched
her vagina and that she touched his penis.
Defense counsel did not focus any argument on the use of force.
D. Verdict
and Sentencing
The jury found
appellant guilty of aggravated sexual assault between April 1997 and April 1998
(count one) and continuous sexual abuse from April 1998 to April 2003 (count
two). The jury was unable to reach a
verdict on count three, which was subsequently dismissed. The court sentenced appellant to 15 years to
life on count one, the mandatory sentence, and imposed a consecutive 16-year
sentence on count two.
A. Competence
to Stand Trial
1. Background
In September
2010, defense counsel declared doubt as to appellant’s competence to
was evaluated by two psychiatrists and a psychologist -- Ari Kalechstein, Ph.D.
for the defense and Sanjay Sahgal, M.D. and Greg Cohen, M.D. for the
prosecution. The doctors prepared
written reports setting forth their findings and conclusions. Dr. Kalechstein opined that appellant’s
developmental disability impaired his capacity to comprehend his attorney’s
instructions and advice, to plan legal strategies, and to follow the
proceedings in court. Dr. Sahgal
concluded that although appellant had cognitive issues and low intelligence, he
was competent to stand trial and capable of engaging with counsel and aiding in
his defense. Dr. Cohen likewise
concluded appellant was competent to stand trial.
The parties
agreed to submit the issue to the court based solely on the doctors’ written
reports. The court also reviewed police
records. The court found appellant
competent to stand trial. The court
noted that the reports and records indicated appellant had “a good vocabulary,â€
had “historically . . . been able to hold down jobs for long
periods of time,†had filled out a detailed employment application, and had
proven himself capable of responding to questions and understanding the charges
against him. The court stated that these
factors contradicted Dr. Kalechstein’s conclusion that appellant was
lacking in verbal skills or the ability to understand what was happening. The court noted that Dr. Sahgal and Dr.
Cohen were both court-approved psychiatrists, while Dr. Kalechstein was a
psychologist, not among those approved by the court, and his report did not
detail his training or experience.
Ultimately, the court found the conclusions of Dr. Sahgal and Dr. Cohen
more credible. Appellant contends the
court’s finding was not supported by substantial
evidence, and that his due process rights were violated by subjecting him
to trial while he was incompetent.
2. Analysis
There is no
dispute that the due process clause of the Fourteenth Amendment prohibits a
state from trying or convicting a person who is mentally incompetent. (People
v. Ary (2011) 51 Cal.4th 510, 517; People
v. Ramos (2004) 34 Cal.4th 494, 507; see § 1367, subd. (a).) A defendant is mentally incompetent if, as a
result of a mental disorder or developmental disability, he or she is unable to
understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.
(§ 1367, subd. (a); People v.
Lawley (2002) 27 Cal.4th 102, 131.)
of mental competence was not supported and that trying and convicting him for
the charged offenses violated his due
process rights.
Under
California law, a defendant is presumed competent unless he or she proves the
contrary by a preponderance of the evidence.
(§ 1367, subd. (a); People v.
Lawley, supra, 27 Cal.4th at p.
131.)
challenged on appeal, “the reviewing court determines whether substantial
evidence, viewed in the light most favorable to the verdict, supports the trial
court’s finding.†(People v. Lawley, supra,
at p. 131.) The court must appoint one
or more experts to evaluate a defendant once a substantial doubt arises as to
his or her legal competence. (See §
1369, subd. (a); Rules of Court, rule 4.130 (d)(1)(A).) If the experts reach contradictory
conclusions, the trial court properly assesses and weighs the persuasiveness of
the findings based on the material from which the opinions are fashioned and
the reasoning by which the experts progressed to their conclusions. (People
v. Lawley, supra, at p.
132.) The defendant’s behavior may also
aid the court in evaluating competence.
(See People v. Ramos,
Here the trial
court reviewed the experts’ reports and found the bases for
Dr. Kalechstein’s opinion undermined by the evidence of appellant’s behavior
in other aspects of his life, including his behavior with the police. The court reasonably concluded the opinions
of Dr. Cohen and Dr. Sahgal were more credible than Dr. Kalechstein’s based on
that factor and on their superior qualifications. As the material presented to and reviewed by
the court provided support for the conclusion that appellant had sufficient
mental acuity to understand the proceedings and consult with his lawyer, the
court’s finding that he was competent to stand trial is supported by
substantial evidence.
B. Motion
to Suppress Confession
1. Background
Prior to
interviewing appellant about the allegations, Detective Shumaker advised
appellant of his Miranda rights by
way of the following exchange: Detective
Shumaker: “You have the right to remain
silent. Do you understand?†[Appellant]:
“Yes.†Detective Shumaker: “Anything you say may be used against you in
court. Do you understand?†[Appellant]:
“Yes.†Detective Shumaker: “You have the right to the presence of an
attorney before and during any questioning.
Do you understand?â€
[Appellant]: “Yes.†Detective Shumaker: “If you cannot afford an attorney, one will
be appointed for you free of charge before questioning if you want. Do you understand?†[Appellant]:
“Yes.†Detective Shumaker: “And then do you want to talk about what
happened?†[Appellant]: “Yes.â€
The
prosecution filed a trial brief seeking the admission of appellant’s statements
during the interview with Detective Shumaker.
The defense objected, contending appellant had not made an intelligent
and knowing waiver of his Miranda
rights, and that the confession was coerced by a promise of freedom. To determine its admissibility, the court
watched the videotape of appellant’s confession, heard testimony from defense
expert Dr. Kalechstein and prosecution expert Barry Hirsch, Ph.D., and reviewed
reports prepared by the experts.
Psychologist
Kalechstein, who held a Ph.D. in psychology, testified that he conducted an
evaluation of appellant in 2010 and concluded appellant could not have provided
a knowing and intelligent waiver of his Miranda
rights. Tests administered by Dr.
Kalechstein indicated appellant’s I.Q. was 64 or 66, which Dr. Kalechstein
believed gave him the understanding of a second or third grader. Dr. Kalechstein expressed the opinion that
the job appellant had at the Braille Institute at the time of his arrest was a
simple one, and that a person with a low I.Q. could function well in the right
job environment. In connection with his
evaluation, Dr. Kalechstein had reviewed appellant’s school records, which
indicated poor and declining academic performance; he had not reviewed any of
appellant’s job applications or his prior job history. Nor had he reviewed the transcript of the interview
with Detective Shumaker or any police reports.
During his
evaluation, Dr. Kalechstein administered a test in which he read appellant a
version of the Miranda waiver and
asked him to explain each sentence. He
concluded appellant did not understand most of the components of his
geared toward determining whether appellant was malingering, and concluded that
appellant was trying his best and not pretending to be less functional than he
was. Dr. Kalechstein expressed the
opinion that appellant regularly engaged in “masking,†pretending to understand
a question when he did not by repeating the words of the question in his
answer. Dr. Kalechstein further
expressed the opinion that appellant’s attempt to deflect blame did not reflect
a mature understanding of his situation, and that a young child would do the
same if caught doing something wrong.
The
prosecution expert, Dr. Hirsch, who held a Ph.D.in psychology, evaluated
appellant and concluded that he could understand his Miranda rights and knowingly waive them. Dr. Hirsch expressed the opinion that
appellant had been malingering with Dr. Kalechstein. Dr. Hirsch had read the transcript of the
interview and the police reports and reviewed appellant’s employment
history. Dr. Hirsch based his opinion on
how appellant functioned during the evaluation, in the interview with Detective
Shumaker, and in the real world. During
the evaluation, appellant appeared to have no difficulty communicating with or
understanding the doctor. In the
interview with the detective, appellant’s answers were coherent and
responsive. There was never a point when
appellant seemed to misunderstand the questions being asked and he appeared to
have no problems with memory. He
provided reasons for Crystal to be lying or mistaken, such as her use of
psychoactive medication. More important,
appellant’s statement that he was “digging [his] own grave†made clear that he
knew he had made incriminating admissions.
Dr. Hirsch detected no evidence of masking. With respect to real world functioning, the
fact that appellant was able to learn Braille at the level of a second grader
indicated a higher level of intellect than measured by Dr. Kalechstein, as did
his ability to hold jobs as a cook, cashier and courier, and to navigate to and
from his jobs without a car. Dr. Hirsch
attributed appellant’s declining academic performance to his regular use of
marijuana.
The court
denied the motion to exclude the admission.
Having viewed the videotape of appellant’s confession, the court noted
that appellant clearly understood difficult words such as “dehydrated,â€
“sodomy,†“sodomize[],†“vagina,†and “anal.â€
Appellant came across as a normal person with an average I.Q. The court specifically found appellant’s
statements about digging himself a grave and about Crystal’s accusations
arising from her use of Xanax indicated a certain amount of
sophistication. The court further
concluded that appellant’s ability to hold down his different jobs and to learn
elementary Braille were indications of a higher level of intellectual ability
than the I.Q. tests revealed. The court
reviewed the test administered by Dr. Kalechstein to determine appellant’s understanding
of the Miranda warning, and pointed
out an alternate interpretation to masking, namely, that appellant truthfully
stated that he understood the admonitions.
With respect
to possible coercion, the court found the detective’s comment, “the truth will
set you free†was a general statement about relieving one’s conscience rather
than a promise of freedom. The court
concluded that the confession was not coerced.
Appellant contends the court erred in finding the Miranda waiver knowing and intelligent and the interview statements
uncoerced.
2. Analysis
a. Knowing
and Intelligent Waiver
“Under
the familiar requirements of Miranda,
designed to assure protection of the federal Constitution’s Fifth Amendment
privilege against self-incrimination under ‘inherently coercive’ circumstances,
a suspect may not be subjected to custodial interrogation unless he or she
knowingly and intelligently has waived the right to remain silent, to the
presence of an attorney, and to appointed counsel in the event the suspect is
indigent.†(People v. Sims (1993) 5 Cal.4th 405, 440.) The prosecution bears the burden of
demonstrating that a defendant who makes a statement in the absence of counsel
knowingly and intelligently waived the privilege against self-incrimination and
the right to counsel. (
1192.)
“[I]n order to
determine whether a defendant voluntarily, knowingly, and intelligently has
waived his Miranda rights, a court
analyzing the question must consider two distinct components: ‘First, the relinquishment of the right must
have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a
full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.
Only if the “totality of the circumstances surrounding the
interrogation†reveals both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been waived.
[Citations.]’†(
247, quoting Moran v. Burbine (1986)
475 U.S. 412, 421.)
“‘In
considering a claim that a statement or confession is inadmissible because it
was obtained in violation of a defendant’s rights under [Miranda], we accept the trial court’s resolution of disputed facts
and inferences, and its evaluation of credibility, if supported by substantial
evidence.’†(People v. Whitson, supra,
17 Cal.4th at p. 248, quoting People v.
Wash (1993) 6 Cal.4th 215, 235-236.)
Although appellate courts “‘independently determine whether, from the
undisputed facts and those properly found by the trial court, the challenged
statements were illegally obtained [citation],†we “‘“give great weight to the
considered conclusions†of a lower court that has previously reviewed the same
evidence.’†(Ibid.)
With regard to
appellant’s reported lack of mental acuity, a low I.Q. does not by itself
represent “‘“a proper basis to assume lack of understanding, incompetency, or
other inability to voluntarily waive the right to remain silent under some
presumption that the Miranda
explanation was not understood.â€â€™â€ (
384.) Instead, a defendant’s
intellectual level is merely a factor to be considered together with all other
factors surrounding the waiver. (
1160, 1171; In re Norman H. (1976) 64
Cal.App.3d 997, 1001; U.S. v. Crews
(9th Cir. 2007) 502 F.3d 1130, 1140.)
Here, although
the record clearly indicates that appellant was advised of and waived his
interviewed by Detective Shumaker, he contends the waiver was not knowing and
intelligent. Dr. Hirsch evaluated
appellant and concluded he was able to understand his rights and knowingly and
intelligently waive them. Dr. Hirsch
based his conclusion on appellant’s ability to function in the real world and
on his ability to understand and communicate with the detective in the
interview and with the doctor in the evaluation. In ruling the confession admissible, the
court relied on Dr. Hirsch’s opinion and on the court’s own review of the
interview tape.
title="">[12] The court saw nothing in appellant’s behavior
or demeanor to suggest a debilitating level of mental impairment or inability
to understand basic legal concepts. To
the contrary, the interview reflected an understanding of language, including
some difficult words. Moreover, as the
court observed, appellant’s statement about digging his own grave and his
attempt to undermine Crystal’s credibility by informing the detective of her
mental health issues and use of Xanax reflected that he understood his legal
predicament and was attempting to create skepticism about the accusations.
In his brief,
appellant focuses on the report and testimony of Dr. Kalechstein, who
expressed the opinion that appellant’s lower than average I.Q. rendered him
unable to comprehend the meaning and consequences of the waiver and, in
particular, on the test Dr. Kalechstein administered to determine appellant’s
understanding of the various Miranda
admonitions. Appellant contends “the
defense presented objectively verifiable evidence that [appellant]
. . . did not understand key components of the rights he
allegedly waived†and that the trial court “ignored his inability to understand
the unfamiliar concepts contained in the Miranda
warnings as shown by his poor performance on the . . . Miranda test.†The record
reflects that the court did not ignore the test, but reviewed it and the
supporting data carefully. As the court
stated, appellant’s actual responses indicated an understanding of the
admonitions. It was
Dr. Kalechstein’s interpretation of those responses that led him to opine
that appellant was “masking,†pretending to understand words and concepts he
did not. The court reasonably concluded
otherwise based on Dr. Hirsch’s opinion, the underlying data, appellant’s
ability to comprehend the detective’s questions during the interview, and his
ability to successfully maneuver in the job market and other real world
settings. The court’s conclusions were
reasonable and supported by substantial evidence.
b. Coercion
A
confession is considered coerced or involuntary if it was “‘“‘extracted by any
sort of threats’â€â€™â€ or “‘“‘obtained by any direct or implied promises.’â€â€™â€ (People
v. Neal (2003) 31 Cal.4th 63, 79.)
Pointing to Detective Shumaker’s statement that “the truth will set you
free,†appellant contends the detective coerced the confession by impliedly
promising him freedom if he admitted abusing Crystal.
Determining
whether a statement is voluntary or coerced “does not turn on any one fact, no
matter how apparently significant, but rather on the ‘totality of [the]
circumstances.’†(People v. Neal, supra, 31
Cal.4th at p. 79.) The ultimate issue
presented is “whether a defendant’s will was overborne by the circumstances
surrounding the giving of a confession.â€
(People v. Thomas (2012) 211
Cal.App.4th 987, 1008.) In making this
determination, courts consider “the nature of the interrogation and the
circumstances relating to the particular defendant.†(People
v. Dykes (2009) 46 Cal.4th 731, 752.)
Among the specific factors to be considered are “‘“‘the length of the
interrogation [citation]; its location [citation]; [and] its
continuity’. . . .â€â€™â€ (
With respect to the defendant’s circumstances, the relevant factors are
“‘“‘the defendant’s maturity [citation]; education [citation]; physical
condition [citation]; and mental health.’â€â€™â€
(Ibid.)
The interview
at issue here was brief and free from any element of physical
intimidation. There was no evidence that
appellant was in poor physical condition.
His argument that the confession was coerced is based solely on the
contention that due to his limited intellectual capacity he viewed the
detective’s statement as a promise of leniency.
As the trial court pointed out, however, the statement at issue referred
to clearing one’s conscience. That
appellant did not mistake the detective’s meaning is made evident by the fact
that subsequent to the detective’s statement, appellant repeatedly asked if
there was a way to work things out and if the detective could talk to the
DA. From these statements, it is clear
that he understood the detective had made no promise of literal freedom.
C. Failure
to Instruct on Lesser Offense
1. Background
With respect
to count one, the jurors were instructed pursuant to CALCRIM No. 1123: “The defendant is charged in count 1 with
aggravated sexual assault of a child who was under the age of 14 years and at
least seven year younger than the defendant in violation of Penal Code section
269(a). To prove that the defendant is
guilty of this crime, the People must prove that: [¶] 1. The defendant
committed sodomy on another person; and [¶] 2. When the defendant acted, the
other person was under the age [of] 14 years and was at least seven years
younger than the defendant. To decide
whether the defendant committed sodomy please refer to the separate
instructions that I will give you on that crime.†The only subsequent definition of sodomy
given by the court was in connection with the third count for sodomy by force,
in which sodomy was defined as “any penetration no matter how slight of the anus
of one person by the penis of another person.
Ejaculation is not required.â€
During
deliberations, after the jury had asked a series of questions about count
three, defense counsel pointed out that aggravated sexual assault of a child as
defined by section 269, subd. (a)(3) and CALCRIM No. 1123
requires more than penetration, but also requires an element of force.
should have required the jury to find sodomy by force and called the jury back
into court to amend the instruction on count one. When the jurors arrived, they gave the court
a note stating they had reached verdicts on counts one and two, and were hung
on count three. The court informed the
jury that the instruction on count one contained a mistake. The court explained the instruction
“previously read ‘the defendant committed sodomy on another person.’ It now reads, ‘and you must find, to find the
defendant guilty[,] the defendant committed sodomy by force on another
person.’â€
title="">[15] The court went on to give further instruction
on the meaning of the term “‘force.’â€
After hearing this, one juror asked if there was a separate offense of
“sodomy of a minor.†The court stated
that was a good question and that it would be answered after conference with
counsel.
After the
jurors returned to deliberations, the court and counsel tentatively agreed the
jury should be instructed on the lesser offense of sodomy without force of a
child under the age of 14 under section 286, subdivision (c)(1).
the jurors sent out a note stating they were hung on counts one and three. Almost immediately thereafter, however, the
jurors sent out a note stating they had reached a verdict on count one. The court concluded that the section 286,
subdivision (c)(1) offense was not a lesser included offense and that there was
no requirement that the court instruct on it sua sponte.
reached a verdict on count one, it did not instruct them further. Appellant contends the court committed
reversible error in failing to instruct the jury on the offense of sodomy of a
child under the age of 14 (§ 286, subd. (c)(1)) as a lesser included offense of
aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(3)).
2. Analysis
A trial court
has a duty to instruct on a lesser included offense when there is sufficient
evidence in the record to merit consideration by the jury that the defendant is
guilty of only the lesser offense. (See,
e.g., People v. Breverman (1998) 19 Cal.4th
142, 162.) “An offense is necessarily
included in another if . . . the greater statutory offense
cannot be committed without committing the lesser because all of the elements
of the lesser offense are included in the elements of the greater.†(People
v. Hughes (2002) 27 Cal.4th 287, 365.)
At the time
the act in count one was allegedly committed (sometime between April 1997 and
April 1998), section 286, subdivision (c)(1) provided punishment, as it does
today, for “any person who participates in an act of sodomy with another person
who is under 14 years of age and more than 10 years younger than he or she . .
. .†During the relevant timeframe,
former section 269, subdivision (a) similarly provided a penalty for commission
of certain types of sexual acts, including forcible sodomy, for “[a]ny person
who commits any of the . . . acts upon a child who is under 14 years of
age and 10 or more years younger than the person . . . .â€
48, § 1.) As both parties acknowledge in
their briefs, the court relied on the language of the newer version of section
269 in concluding that section 286, subdivision (c) was not a lesser included
offense of the crime charged in count one.
The parties do not dispute that under the version of section 269 in
effect at the time of the alleged offenses, section 286, subdivision (c)(1) was
a lesser included offense. Respondent,
however, disputes the existence of evidence to support a finding that appellant
committed only the lesser and not the greater offense.
We agree there
was no evidence presented to support the section 286, subdivision (c)(1)
offense, assuming it was a lesser included offense of the charged crime.
forcible sexual penetration need not be greater than the force needed to
accomplish the act. (
1195, 1205.) Crystal was eight years
old, an age at which the ability to initiate or consent to a sexual act is
nonexistent. She was asleep when the act
alleged in count one began and suffered from a physical condition that made her
weak. Appellant was a grown man in his
20’s when he climbed into her bed, removed or pushed aside her clothing, placed
his adult body on top of her, and penetrated her anally with his penis. During the entirety of the act, she was
pinned to the bed, immobilized. Crystal
testified that she protested in the only way she could, by crying and
screaming. But whether or not the jury
believed that testimony, the evidence established that the act could only have
been accomplished by use of considerable force.
The defense did not suggest otherwise.
Rather it denied the incident ever happened. Accordingly, the court did not err in failing
to instruct on the lesser offense of sodomy of a minor under section 286,
subdivision (c)(1).
Moreover, even
had the court committed instructional error, “in a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included
offenses and theories thereof which are supported by the evidence [is] reviewed
for prejudice . . . under Watson.†(People
v. Breverman, supra, 19 Cal.4th
at p. 178.)
title="">[20] Examining the entire record, we conclude it
is not reasonably probable that any error affected the outcome. The evidence that appellant repeatedly and
regularly sodomized Crystal, the first time when she was eight, was
overwhelming. Appellant essentially
admitted it when confronted by Monica and John, and expressly admitted it in
the interview with Detective Shumaker.
Crystal’s testimony was consistent in all significant details with her
prior reports. The defense did not argue
that insufficient force was used in perpetrating count one or that a lesser
offense occurred, but that the act did not occur at all. Appellant’s attempts to persuade the jurors
that the entire matter had been fabricated was to no avail. We find it implausible that reasonable jurors
could conclude that the force used to subdue and sodomize a physically weak
child of eight was insufficient to support the force necessary to convict
appellant of the offense charged in count one.
D. Lay
Testimony on Appellant’s Intellectual Capacity
1. Background
During trial,
the court sustained an objection to a question defense counsel asked Detective
Shumaker concerning whether during his investigation, he learned that both
Crystal and appellant were “mentally challenged.†The court ruled that lay witnesses could
testify about concrete observations that might indicate a mental condition, but
not about any specific diagnosis. During
defense counsel’s cross-examination of Aaron, he asked if Aaron considered
appellant “a little bit mentally slow.â€
The court sustained an objection and at a sidebar, suggested an Evidence
Code section 402 hearing. At the
hearing, the court stated that inquiry could properly be made of family members
concerning appellant’s level of comprehension and understanding of everyday
conversations and instructions, as long as the witnesses did not testify to
conclusions about his mental capacity.
After the hearing, while Aaron was still in the courtroom, defense
counsel informed the court he did not wish to recall Aaron or ask him any
further questions.
During defense
counsel’s cross-examination of John, counsel asked whether appellant had
trouble understanding things he was told.
John responded that appellant was not the “best conversationalist†and
had not gone far in school. Defense
counsel inquired whether appellant had trouble understanding anything John had
said to him. The court sustained an
objection to the question as phrased.
Counsel did not re-phrase it but went on to another topic. John later testified in response to
questioning from the prosecution that he had trouble understanding appellant
sometimes. John further testified that
appellant dressed himself, got himself to work, held down various jobs, and
handled his own money John subsequently testified in response to questioning
from the defense that appellant was unable to obtain a driver’s license because
he “wasn’t catching on to the laws of the streets.†Appellant contends the trial court erred in
limiting the opinion testimony of Aaron and John concerning appellant’s
intellectual ability.
2. Analysis
Generally, a
lay witness’s testimony in the form of an opinion is limited to opinions
“[r]ationally based on the perception of the witness†and “[h]elpful to a clear
understating of his [or her] testimony.â€
(Evid. Code, § 800.) “A lay
witness may testify in the form of an opinion only when he cannot adequately
describe his observations without using opinion wording.†(People
v. Sergill (1982) 138 Cal.App.3d 34, 40; see People v. Melton (1988) 44 Cal.3d 713, 744 [“A lay witness is
occasionally permitted to express an ultimate opinion based on his perception,
but only where ‘helpful to a clear understanding of his testimony
. . . .’â€].) “‘Whenever
feasible “concluding†should be left to the jury.’†(People
v. Sergill, supra, at p. 40.)
We review a
trial court’s ruling on the admission and exclusion of evidence under the abuse
of discretion standard. (
128.) The erroneous exclusion of
evidence requires reversal only where it is reasonably likely that the outcome
of the case would have been different had the evidence been admitted. (People
v. Rains (1999) 75 Cal.App.4th 1165, 1170; see People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the
court permitted Aaron and John to testify concerning their personal
observations of appellant and his mental functioning, as long as they did not
do so in a conclusory fashion. This did
not represent an abuse of discretion.
Aaron and John were competent to relate events they had observed, and
were permitted to do so. Indeed, John
testified he believed appellant understood what he had done when
confronted. Neither, however, was
competent to diagnose appellant or express an opinion concerning his mental
condition. Moreover, any error in this
regard was necessarily harmless in view of the evidence. Crystal’s testimony was confirmed not only by
appellant’s own statements, but also by his behavior when confronted by John in
2010 and by Monica years earlier. The
evidence was overwhelming that the sexual abuse occurred and that appellant knowingly
acknowledged his conduct.
E. Denial
of Request for Continuance
1. Background
Shortly after
the court ruled appellant’s confession to Detective Shumaker was admissible,
defense counsel stated he wished to call Dr. Kalechstein to testify with
respect to masking. The court stated there
would need to be an Evidence Code section 402 hearing before the testimony
could be admitted. The court
subsequently ruled that it would be appropriate for an expert to testify
regarding the factors that could impact the reliability of a confession,
including the confessing party’s mental capacity, and that an expert could also
properly testify as to appellant’s comprehension level to assist the jury in
determining the reliability of the confession.
During the hearing, defense counsel reported that Dr. Kalechstein,
whom he intended to call to testify concerning these matters, was unavailable
until the following Monday, a week later.
Counsel requested a continuance, further stating that Dr. Kalechstein
would need to perform additional research in the area of confessions and the
factors that impact the reliability of confessions.
Preliminarily,
the court observed that counsel’s statement regarding Dr. Kalechstein’s
need to prepare raised doubt as to whether the psychologist would qualify as an
expert in the field of confession reliability.
The court went on to deny the request as untimely, pointing out that the
relevance of evidence relating to appellant’s mental capacity and the
reliability of the confession was apparent once the court ruled the confession
admissible, and counsel could have informed the court of Dr. Kalechstein’s
scheduling conflicts before the jury was sworn.
Alternatively, counsel could have asked the court to order Dr.
Kalechstein to return when he was in court to testify at the pretrial hearing
on the admissibility of the interview.
The court further noted that during voir dire, some of the jurors had
revealed commitments that would interfere with their ability to return after a
continuance, and that putting the trial over would result in the loss of
jurors. The court also pointed out that
other evidence had been presented relevant to appellant’s mental capacity and
the reliability of the confession.
Appellant contends the trial court abused its discretion in refusing the
request for continuance.
2. Analysis
“‘The
granting or denial of a motion for continuance in the midst of a trial
traditionally rests within the sound discretion of the trial judge who 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.
In the lack of a showing of an abuse of discretion or of prejudice to
the defendant, a denial of his motion for a continuance cannot result in a
reversal of a judgment of conviction.
[Citations.]’†(
972, quoting People v. Laursen (1972)
8 Cal.3d 192, 204.) To establish good
cause for a continuance in order to secure the presence of a witness, a
defendant has the burden of “showing that he had 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.†(
1171.)
Defense
counsel did not establish the materiality of Dr. Kalechstein’s proposed
testimony. It appeared from counsel’s
comments that the psychologist was not an expert on the reliability of
confessions. (Cf. People v. Page (1991) 2 Cal.App.4th 161, 180-182 [expert in field
of persuasion, interpersonal communication, and conformity was knowledgeable
about studies indicating people’s propensity to construct scenarios to link
disparate elements together when confronted with seemingly incontrovertible
evidence that contradicts their memories].)
In addition, as the trial court noted, counsel was not diligent, either
in informing the court of Dr. Kalechstein’s scheduling conflicts prior to
swearing the jury or in seeking the court’s assistance at the prior hearing to
secure Dr. Kalechstein’s future appearance. Finally, the court’s concern about the affect
a multi-day continuance would have on the ability to retain the jurors was a
legitimate one. Under these
circumstances, the court did not abuse its discretion in denying the request
for continuance.
Appellant
alternatively contends the denial of the continuance deprived him of his due
process right to present a defense. “In
deciding whether the denial of a continuance was so arbitrary as to violate due
process, the reviewing court looks to the circumstances of each case . . .
.†(People
v. Courts (1985) 37 Cal.3d 784, 791.)
“‘[N]ot every denial of a request for more time . . . violates due
process even if the party fails to offer evidence . . . .’†(People
v. Howard, supra, 1 Cal.4th at pp. 1171-1172.) Here, the court’s decision was not arbitrary,
but based on the need to prevent the loss of jurors sure to result from an
almost week-long continuance in the middle of a trial. The court also considered the importance of
the evidence and whether similar evidence was available through other
channels. As noted, it was by no means
clear that Dr. Kalechstein would qualify as an expert in the area or that his
testimony would be helpful. Family
members offered an alternative manner of placing appellant’s mental issues
before the jury. The jury had before it
the actual videotape of appellant’s confession and could make its own
determination whether appellant was truthfully admitting culpability or going
along with the detective’s version of events.
Under these circumstances, we discern no error affecting appellant’s
federal constitutional rights.
F. Ineffective
Assistance of Counsel
Appellant
contends trial counsel was incompetent or ineffective for failing to arrange
for Dr. Kalechstein’s attendance at trial.
In order to establish ineffective assistance of counsel sufficient to
overturn a conviction, the defendant must show:
“(1) deficient performance under an objective standard of professional
reasonableness and (2) prejudice under a test of reasonable probability of an
adverse effect on the outcome.
[Citation.]†(
1048, 1081, overruled on a different ground in People v. Hill (1998) 17 Cal.4th 800.) “On direct appeal, a claim of ineffective
counsel cannot be established by mere speculation regarding the ‘likely’
testimony of potentially available witnesses.â€
(People v. Medina (1995) 11
Cal.4th 694, 773.) The defendant is
required to affirmatively show that the omitted evidence would have made a
difference; “[w]e cannot assume from a silent record that particular witnesses
were ready, willing and able to give mitigating testimony, nor can we speculate
concerning the probable content or substance of such testimony.†(Ibid.) We cannot conclude there was a reasonable
probability that Dr. Kalechstein’s testimony would have affected the outcome of
the trial where neither his qualifications nor his expected testimony were
clear.
G. CALCRIM
No. 1120
1. Background
With
respect to count two, continuous sexual abuse of a child under the age of 14 (§
288.5, subd. (a)), the jury was instructed in accordance with CALCRIM No. 1120
as follows: “To prove that the defendant
is guilty of this crime, the People must prove that: 1. the defendant lived in the same home with
the minor child; [¶] 2. the defendant engaged in three or more acts of
substantial sexual conduct or lewd and lascivious conduct with the child; [¶]
3. three or more months passed between the first and last acts; and, [¶] 4. the
child was under the age of 14 years at the time of the acts. [¶] Substantial sexual conduct means oral
copulation or masturbation of either the child or the perpetrator or
penetration of the child’s or perpetrator’s vagina or rectum by the other
person’s penis or by any foreign object. [¶] Lewd and Lascivious conduct is any willful touching of a child
accomplished with the intent to sexually arouse the perpetrator or the
child. The touching need not be done in
a lewd or sexual manner. Contact
with a child’s bare skin or private parts is not required, any part of the
child’s body or the clothes the child is wearing when [sic, should be ‘may be’]
touched.†(Italics added.) The court further instructed the jurors: “Actually arousing, appealing to or
gratifying the lust, passion or sexual desires of the perpetrator or child is
not required for lewd and lascivious conduct.â€
Based on the
italicized language, appellant contends CALCRIM No. 1120 is internally
inconsistent and misleading because the phrase “‘[t]he touching need not be
done in a lewd or sexual manner’†negates the requirement that the lewd and
lascivious conduct be “accomplished with the intent to sexually arouse the
perpetrator or the child.†He further
contends the instruction is impermissibly argumentative because it emphasizes
facts the prosecution is not required to prove -- that the conduct actually
aroused or gratified the perpetrator or victim.
2. Analysis
a. Lewd or
Sexual Manner
In
1067, this court explained that the phrase at issue -- “[t]he touching need not
be done in a lewd or sexual manner†-- was apparently intended to express “the
long-established rule that touching of a sexual organ is not required for violation
of the statute†and acknowledged that the language was “unfortunate and
possibly confusing.†(
sentence does no harm, although we think that is subject to question. It certainly does no good.†(Id.
at p. 1071.) We urged the Judicial Council’s Advisory
Committee on Criminal Jury Instructions to “reconsider the language of this
sentence and propose new language that simply states that the touching need not
be made to an intimate part of the victim’s body, so long as it is done with
the required intent†and explained “[i]f that revision is made the two
sentences would complement each other and any arguable inconsistency would be
removed.†(Id. at pp. 1071-1072.) We
concluded, however, that the instruction as given did not mislead the jury in
the case before us because “virtually all of the touching described in the
testimony was sexual, rather than incidental, in nature†and “the evidence of
defendant’s guilt was overwhelming.†(
The same is
true here. The charges were based
primarily on appellant’s repeated sodomy of his young half-sister. There was little evidence of incidental
touching. Indeed, Crystal denied that
she ever touched appellant’s genitals or that he touched hers. Crystal described the final incident as
appellant touching her buttocks while masturbating, but assuming the jury based
any portion of the verdict on this testimony, there was no question concerning
appellant’s lewd and lascivious intent.
The prosecutor did not argue that innocent touching could support the
offense. To the contrary, she advised
the jury that sexual intent was required to convict based on the lewd and
lascivious acts of touching and kissing.
Accordingly, we conclude any error in the language of the instruction
was harmless.
b. Argumentative
Appellant
contends that the language of CALCRIM No. 1120 was impermissibly
argumentative. He focuses particularly
on the language advising the jury that certain matters need not be proven to
establish the offense, such as that the actions “[a]ctually arous[ed],
appeal[ed] to or gratif[ied[ the lust, passions or sexual desires of the
perpetrator or child . . . .†“A trial
court has no sua sponte duty to revise or improve upon an accurate statement of
law without a request from counsel [citation], and failure to request
clarification of an otherwise correct instruction forfeits the claim of error
for purposes of appeal . . . .†(
accurate statement of the law. Appellant
failed to object to the language of the instruction. Accordingly, he has forfeited this issue on
appeal. (Ibid.; People v. Stone
(2008) 160 Cal.App.4th 323, 330-331.)
Moreover, we
disagree that an instruction is necessarily argumentative when it informs the
jurors of matters that need not be proven.
“An argumentative instruction ‘invite[s] the jury to draw inferences
favorable to [a party] from specified items of evidence on a disputed question
of fact . . . .’†(
216, 220, quoting People v. Wright
(1988) 45 Cal.3d 1126, 1135 [rejecting contention that assault instruction
informing jury that prosecution need not prove that touching caused pain or
injury was impermissibly argumentative].)
Here, the instruction merely assisted the jury in understanding
difficult and unfamiliar concepts and corrected misco
| Description | Appellant Jason Javon Thompson, convicted of one count of sexual assault of a child under the age of 14 and one count of continuous sexual abuse of a child, contends he was not competent to stand trial and that the trial court’s contrary finding was not supported by substantial evidence. He further contends: (1) the trial court erred in permitting the jury to see the videotape of his police interview because his Miranda waiver was not knowingly or intelligently made and the statements were obtained by coercion;[1] (2) the court erred in failing to instruct the jury on the lesser offense of sodomy with a minor; (3) the court erred in excluding certain opinion testimony from appellant’s half-brother and stepfather concerning his intellectual ability; (4) the court abused its discretion in denying a request for a continuance to obtain the appearance of appellant’s psychological expert; (5) the denial of the continuance violated his due process rights; (6) counsel’s failure to secure the appearance of the psychologist represented ineffective assistance of counsel; (7) CALCRIM No. 1120 erroneously negates one of the elements of the crime of continuous sexual abuse and is argumentative; (8) the court imposed a consecutive sentence on the continuous sexual abuse count under the erroneous impression that it was mandatory; (9) the court failed to explain its reasons for imposing consecutive terms; and (10) the imposition of a $500 restitution fine was not supported by substantial evidence of ability to pay. We remand for resentencing on the continuous sexual abuse count and otherwise affirm. |
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