In re Lincoln A.
Filed 1/24/14 In re Lincoln A. CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re LINCOLN A., a
Person Coming Under the Juvenile Court Law.
B245096
(Los
Angeles County
Super. Ct. No. FJ48336)
THE PEOPLE,
Plaintiff and Respondent,
v.
LINCOLN A.,
Defendant and Appellant.
APPEAL from an
order of the
Robert J. Totten, Juvenile Court Referee.
Affirmed as modified.
Laini Millar Melnick, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews, Supervising Deputy Attorney General, and Analee J.
Brodie, Deputy Attorney General, for Plaintiff and Respondent.
——————————
A juvenile against whom a
petition (petition) alleging forcible rape was sustained, contends the juvenile
court committed reversible error by excluding evidence of the victim’s mental
health history, which he contends was relevant to the victim’s credibility, a
pivotal issue at the adjudication. The
juvenile also asserts that there is insufficient evidence to sustain the
petition, that the court erroneously informed him he had committed a strike
offense, and that it erred in setting a maximum term of confinement. We will remand with an order to modify the
order of wardship to strike the maximum term of confinement and, in all other
respects, affirm.
PROCEDURAL BACKGROUND
The petition
alleged that appellant, Lincoln A., committed rape. (Pen. Code, § 261, subd. (a).) The juvenile court sustained the petition,
declared appellant a ward of the court and ordered him placed home on
probation. The court declared the
offense to be a felony, calculated the maximum term of confinement as 11 years
and awarded appellant predisposition credit of 383 days.
FACTUAL BACKGROUND
On January 22, 2011, at about 3:00
p.m., 17-year-old B.N. argued with her
mother as she and her parents drove to B.N.’s grandmother’s house. B.N. was angry and, when the car reached a
stoplight near Crenshaw
Boulevard, got out and
began walking. B.N. was not readily familiar
with the neighborhood, having only driven through it in the past. Unable to persuade B.N. to get back in the
car, her parents drove away. B.N.’s
father was not overly concerned for his daughter’s safety; it was the middle of
the day.
Appellant, whom B.N.
did not know, approached B.N. on a bicycle and began talking to her. She asked him for a cigarette, which they
shared. They walked together until
appellant said he wanted to meet a friend behind an apartment building. B.N. continued walking with appellant behind
the building, making small talk and smoking.
She was unconcerned for her safety because, in her neighborhood, “nobody
is like that, nobody is dirty.â€
At some point, B.N.
received a cell phone call from her boyfriend.
He told her she was not in a safe area.
The boyfriend also spoke with appellant, with whom the boyfriend
exchanged profanities and who the boyfriend said “disrespected†him. Appellant handed B.N. her phone.
As B.N. began to
leave, appellant asked for a “hug.†B.N.
hugged appellant, who grabbed her tightly and told her he wanted a “kiss.†Appellant picked B.N. up, placed her on the
hood of a car, held her down, spread her legs and pulled off her pants. B.N. yelled as loud as she could, told
appellant to stop and tried to resist. But
appellant was stronger than she was and he told her he had a knife in his
pocket. B.N. did not see a knife, but did
see something in appellant’s pocket. She
stopped struggling because she realized appellant was too strong and because it
was not “worth dying for.†Appellant
unzipped his pants and engaged in vaginal intercourse with B.N. He did not wear a condom. B.N. felt appellant ejaculate on her inner
thigh. B.N. testified that appellant
would have known the sex was not consensual because she had, at first,
physically struggled against him and had said “no.†B.N. acknowledged that the
did not mention a knife, but testified that appellant “did, in fact, threaten
[her] with a knife.†B.N. told the
police after the incident that, if a video had been taken of the incident, it
might have appeared to have been a consensual sexual encounter; it was not.
Afterward,
B.N. ran across the street, where a woman allowed her to use her phone to call
her father. B.N. told her father she had
been raped. When her father picked B.N.
up she was “hysterical†and “really distraught.†He called the police and B.N. was taken to a
rape treatment center, where she was examined and swabs were taken. Counsel for both sides stipulated that no
sperm or male DNA was found on the vaginal swab, and that appellant’s DNA was
found on a swab of B.N.’s neck.
1. Exclusion
of evidence of victim’s mental health status
On cross-examination, defense counsel asked B.N., “Is it true that
you suffer from bipolar disorder?†The
prosecution objected to the question on relevance, to which defense counsel
responded that the question “goes to credibility†and “explains the behavior.â€
objection. Appellant maintains his
objective in seeking to introduce this evidence was its bearing on B.N.’s
credibility, a pivotal issue at trial.
He maintains the court erred in excluding the evidence of B.N.’s mental
health diagnosis as irrelevant.
The Attorney
General argues that appellant forfeited this claim by failing to make an offer
of proof below. Typically, to preserve
an evidentiary point for review, the proponent of the evidence must make an
offer of proof regarding the anticipated testimony informing the trial court of
the purpose and relevance of the excluded evidence. (Evid. Code, § 354, subd. (a);
1144, disapproved on other grounds in People
v. Rundle (2008) 43 Cal.4th 76, 151.) Failure to make an adequate offer of proof bars
consideration of the alleged error on appeal.
(People v. Eid (1994) 31
Cal.App.4th 114, 126.)
But the Attorney
General ignores an equally well-established principle. No offer of proof is required to challenge on
appeal a ruling sustaining an objection where, as here, “[t]he evidence was
sought by questions asked during cross-examination . . . .†(Evid. Code, § 354, subd. (c);
722, 729.) The underlying rationale for
this principle, established long before Evidence Code section 354’s enactment,
is that “[q]uestions on cross-examination . . . are largely exploratory, and it
is unreasonable to require an offer of proof since counsel often cannot know
what pertinent facts may be elicited. [Citation.] Hence no offer of proof is necessary in order
to obtain a review of rulings on cross-examination.†(Tossman
v. Newman (1951) 37 Cal.2d 522, 525 (Tossman);
Nienhouse v. Superior Court (1996) 42
Cal.App.4th 83, 93.)
Appellant’s
claim, however, fails on the merits. Only
relevant evidence is admissible. (Evid.
Code, §§ 350, 351.) Evidence is relevant
if it tends “to prove or disprove any disputed fact that is of consequence to
the determination of the action.†(Evid.
Code, § 210.) “The trial court has broad
discretion in determining the relevance of evidence, but lacks discretion to
admit irrelevant evidence.
[Citation.] We review for abuse
of discretion a trial court’s rulings on the admissibility of evidence. [Citations.]â€
(People v. Benavides (2005) 35
Cal.4th 69, 90.) Under that standard,
the court’s ruling will not be disturbed “‘“unless it exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.â€â€™â€ (
924.)
In a pretrial motion,
appellant stated that B.N.’s mental health records were relevant to her
credibility, in that “[s]ymptoms of teenage bipolar disorder include poor
judgment, increased risk-taking behavior, hypersexuality, delusions and
hallucinations.†On appeal, he insists
those symptoms are “undeniably relevant†to the credibility of B.N.’s claim
that appellant forced her to have sexual intercourse, “particularly since her
symptoms were severe enough twice to require involuntary hospitalization.â€
“[T]he mental
illness or emotional instability of a witness can be relevant on the issue of
credibility, and a witness may be cross-examined on that subject, if such
illness affects the witness’s ability to perceive, recall or describe the
events in question. [Citations.]†(People
v. Gurule (2002) 28 Cal.4th 557, 591–592.)
This principle is sound, but it has no application here. Appellant’s theory of relevance fails to
demonstrate any connection between B.N.’s mental health history and an inclination
to lie, let alone her capacity to perceive, recollect or describe the crime in
issue. After the prosecution’s objection
was sustained, appellant made no attempt to inquire whether B.N. had been treated
for issues related to her inability to perceive, recollect or communicate, the
specific areas that could give rise to reasons to further explore her mental
health history.
B.N., the victim
who reported her rape to the police, provided coherent trial testimony on the specifics
of the crime and events that transpired.
The trial court specifically found her to be a “completely credible†witness. Appellant points to no evidence to indicate
that a symptom or result of the fact that B.N. has or had a bipolar disorder diagnosis
is a lack of credibility. The only
evidence in the record related to any symptoms of B.N.’s illness is that,
several years before the rape occurred, she was involuntarily hospitalized for
unknown reasons and that, about six months after the rape, she was inclined to
“[do] things without thinking†and “[got] angry.â€
A person’s
credibility is not in question merely because she is receiving or has received
treatment for a mental health problem.
Nor does the fact that B.N. was a rape victim necessarily mean her
mental health status becomes fair game at trial. An individual does not place his or her
mental health at issue, or lose his or her right to privacy, by raising
criminal sexual assault charges against a party. (Susan
S. v. Israels (1997) 55 Cal.App.4th 1290, 1297.) Although a witness’s credibility is always at
issue, “this does not mean the defense is entitled to rummage through the
medical records of every witness in a criminal prosecution looking for evidence
to impeach the witness’s credibility.†(
“Moreover, there is nothing ‘inevitable’ about the discovery of a rape
victim’s mental health records. Such
discovery requires a careful balancing of the defendant’s Sixth Amendment right
to cross-examination and the complaining witness’s right of privacy. [Citation.]
This balance does not invariably tip in the defendant’s favor. [Citations.]â€
(Ibid.) Appellant’s bold attempt to use evidence that B.N.
may have a tendency to engage in impulsive behavior or may lack well-developed anger
management skills, and extrapolate from that to conclude she is therefore inclined
to lie is premised on the sheer gossamer of speculation and conjecture.
The entirety of
the hearing testimony presented the juvenile court with a credibility conflict
between appellant and B.N. The court, as
the factfinder, was able to assess B.N.’s capacity “ability to perceive, recall
or describe the events†about which she testified. (People
v. Gurule, supra, 28 Cal.4th at
p. 592.) The court clearly considered
these issues and found B.N. competent to testify and deemed her account credible. It is difficult to conceive how a different
result might have been reached had appellant been permitted to explore B.N.’s mental
health history.
Even if the
trial court erred, the error was harmless under the standard of prejudice set
forth in People v. Watson (1956) 46
Cal.2d 818, 836. Under that standard,
reversal is required, “if, taking into account the entire record, it appears ‘“reasonably
probableâ€â€™ the defendant would have obtained a more favorable outcome had the
error not occurred.†(
716.)
On this record,
for the reasons discussed above, there is no reasonable chance a result more
favorable to appellant would have been reached if the court had considered the
excluded evidence and any bearing it may have had on B.N.’s credibility. B.N.’s testimony was clear, and she was not equivocal. The adjudication centered on the issue of credibility,
and B.N. was cross-examined. The court
had ample opportunity to assess B.N.’s testimony; it found her “completely
credible.â€
Under California law, unless
the testimony is physically impossible or inherently improbable, conviction of a
sex offense may be sustained based solely on the uncorroborated testimony of
the complaining witness. (
611; People v. Gammage (1992) 2
Cal.4th 693, 700; People v. Scott
(1978) 21 Cal.3d 284, 296.) The trial
court rejected appellant’s contention that it was either inherently improbable
or impossible that rape could have occurred because no male DNA was found on
the vaginal swab. It found a rape could
occur without finding DNA. Moreover,
there was evidence to corroborate B.N.’s testimony; appellant’s DNA was found on
a swab taken from her neck, and her father found her distraught after the attack.
On this record, there is no reason to conclude
a different outcome would have resulted had the objection been overruled.
2. The
petition was properly sustained
B.N. testified that appellant had
sexual intercourse without her consent.
Appellant does not dispute the sufficiency of B.N.’s testimony to uphold
the judgment, as such. Instead, he
argues that because none of his DNA was found in B.N.’s vagina, there is an insufficient
evidentiary basis upon which the trial court could have found he raped her.
“In
considering appellant’s claim of insufficiency of the evidence, we must determine only whether, on the record as a
whole, any rational trier of fact could have found him guilty beyond a
reasonable doubt. [Citations.] We view the evidence in the light most
favorable to the prosecution, and presume in support of the judgment the existence
of every fact the trier of fact could reasonably deduce from the evidence. [Citation.] We affirm if the circumstances reasonably
justify the trier of fact’s findings even if they might also be reconciled with
a contrary finding. [Citation.]†(In re
Jose P. (2005) 131 Cal.App.4th 110, 115.)
Appellant
contends that the evidence was insufficient because of an absence of physical
evidence. He is incorrect. B.N.’s own testimony, which provided graphic
detail of the attack, would have been sufficient by itself. Although we review the whole record, “[t]he
uncorroborated testimony of a single witness is sufficient to sustain a
conviction, unless the testimony is physically impossible or inherently
improbable. The rule is applicable to
sex cases.†(People v. Scott, supra,
489.) B.N.’s testimony was neither
inherently improbable nor wholly uncorroborated. Appellant points to evidence tending to
undermine her credibility, but this affects only the weight of her testimony;
it is not a basis for dismissal. (
Appellant’s argument is nothing more than an improper request for this
court to reweigh evidence or reassess the credibility of the witnesses. (See People
v. Lindberg (2008) 45 Cal.4th 1, 37–38.)
The trier of fact was entitled to believe B.N.’s testimony that appellant
committed forcible rape. Although, the
DNA evidence showing that appellant touched B.N.’s neck, but which shows no
vaginal penetration is equivocal in that sense, it is nevertheless consistent
with appellant’s identity as B.N.’s assailant.
Given the trial court’s assessment of the strength of the testimonial
evidence, it properly concluded that DNA evidence was unnecessary to create a
solid case for guilt.
3. Trial court’s erroneous
characterization of offense as a “strikeâ€
After
finding the petition true, the juvenile court told appellant he now had “a
strike on [his] record.†To that end, the
minute order also indicates appellant was “advised the Petition . . . is a
strike offense.†Appellant correctly notes
that both statements were wrong because he was 15 years old when he committed the
offense. (Pen. Code, § 667, subd.
(d)(3)(A).)
Appellant
claims the “record must be corrected,†but does not identify what relief is available
for such an error. By its terms, the
statute expressly provides that it is not a strike offense if, as here, the
perpetrator is 15 when the rape is committed.
We see no reason to correct a record which shows only that appellant received
erroneous information.
4. Maximum term of confinement
When
a minor is removed from parental custody as a result of criminal violations
sustained under Welfare and Institutions Code section 602, the court must
specify the maximum term of imprisonment that could be imposed upon an adult
convicted of the same offense or offenses.
(Welf. & Inst. Code, § 726, subd. (d).) This provision, however, does not apply if a
minor is never removed from his parent’s physical custody. (See In
re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
Appellant
was not removed from parental custody.
Nevertheless, the trial court specified a maximum term of
confinement. The Attorney General
maintains that we need not remand the matter to have the maximum term stricken
from the order. (See
569, 573–574 [maximum term lacks legal effect so need not be stricken].) We find the reasoning of In re Matthew A., supra,
165 Cal.App.4th 537 more compelling, and believe the better course is to strike
the statutorily unjustified order setting a maximum term of confinement. Appellant is entitled to a dispositional
order that accurately reflects the punishment that may legally be imposed upon
him at the time of disposition.
The order of wardship is modified by striking the maximum term of
confinement. The juvenile court is
directed to correct the minute order of the adjudication/disposition hearing
accordingly. As so modified, the order
is affirmed.
NOT TO BE PUBLISHED.
JOHNSON
We concur:
ROTHSCHILD, Acting P. J.
MILLER, J.
name="_ftn1" title="">[1] Before trial, appellant’s counsel sought discovery of Brittini N.’s
mental health records from a local hospital.
The court ordered the records produced.
name="_ftn2" title="">* Judge of the Los
Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
