Filed 12/21/18 P. v. Ware CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendants Derrick Ware and Robert McNeally were convicted by jury of kidnapping for sexual purposes as well as several other sexual offenses and related enhancements, and the trial court sentenced them to lengthy prison terms. In these consolidated appeals, defendants argue the court erred by (1) giving incorrect instructions to the jury about the kidnapping charge and about assessing witness credibility, (2) denying mistrial motions and making related rulings in connection with jurors’ potential observations of defendants in restraints in the courthouse hallway, (3) failing to investigate or excuse a juror for alleged misconduct, and (4) excluding expert testimony proffered by the defense.[1] We find no reversible error and therefore affirm.

I. BACKGROUND

A. The Charges Against Defendants

An amended information charged Ware, McNeally and codefendant Dameon Spragans with kidnapping for sexual purposes (Pen. Code, § 209, subd. (b)(1)) (count one),[2] forcible rape in concert (§ 264.1) (count two), forcible oral copulation in concert (§ 288a, subd. (d)) (count three), forcible sodomy in concert (§ 286, subd. (d)) (count four) and assault with a firearm (§ 245, subd. (b)) (count five). The information included multiple enhancement allegations involving use of a firearm and infliction of great bodily injury.

Spragans entered a negotiated plea agreement.

B. The Evidence Presented at Trial

On February 13, 2010, Jane Doe, her male friend S. Mungia, and a group of their

friends made plans to go to a club in San Francisco called Medjool. They took BART from Dublin to San Francisco and first went to a friend’s apartment where they planned to spend the night. People were drinking at the apartment, and later they went to the Medjool club, where they had some more drinks.

Mungia did not know how long they stayed at the club and did not recall leaving the club. His next memory was being in the back seat of a black Silverado truck, on the bridge headed toward the East Bay. Doe and defendant Ware also were in the back seat. Defendant McNeally was driving, and a larger man, who did most of the talking, was in the front passenger’s seat.[3]

Mungia thought he and Doe were being taken home to Danville or Pleasanton. Mungia saw Ware kissing Doe and fondling her breasts. She was slouched over and was not participating. It was clear to Mungia that Doe was drunk. Mungia was asked for gas money, about which he was hesitant, and Spragans seemed to have animosity toward Mungia. The truck stopped in Richmond, and Mungia was outside the truck, although he could not remember why. Spragans punched Mungia, who spun down, and the truck took off without him. Mungia called 911 and gave descriptions of the three men in the truck.

Doe recalled leaving the Medjool club at about 1:00 a.m. with Mungia, planning to head back to their friend’s apartment. They bought hot dogs from a hot dog stand and Doe felt intoxicated. They looked for a taxi. The next thing Doe remembered was being in the back seat of a truck in the East Bay. At some point there was a confrontation and Mungia was out of the truck. The truck drove off with just Doe and three men she did not know. She was called names such as “bitch” and was told to “shut up.”

The men began touching Doe, and she tried to push them off and asked them to take her home. The men told her she needed to do sexual things with them, and she said “No.” The truck stopped, and the men opened the doors and tried to take Doe’s clothes off and she fought with them. The men removed Doe’s clothes and her tampon and continued to sexually assault her. Spragans and Ware both raped her. Doe was forced to orally copulate Spragans. Ware called her a “bitch” and told her to “ ‘[d]o it.’ ” One or more of the men tried to put his penis into Doe’s anus.

At one point, Spragans opened the glove compartment and pulled out a small black handgun and held it where Doe could see it. McNeally touched Doe’s breasts and vaginal area. Either Ware or Spragans punched Doe. Her head was slammed against the side of the truck, and she lost sight because of the lacerations and blood. Eventually, Doe fell or was pushed out of the truck, and the men drove off. She had her shoes but not her clothing. Her purse, containing her phone and makeup, was gone. She ran in the opposite direction from where the truck was driving and started banging on doors. A resident gave her a blanket and called 911.

Ware, McNeally and Spragans were arrested a few weeks later, after Mungia and Doe identified them on video images from the Blue Macaw, a nightclub near the Medjool, and police traced McNeally’s truck to him based on descriptions of its make and model. Doe’s blood was found in the truck. DNA evidence from vulva swabs of Doe confirmed the presence of Ware’s semen and the presence of non-semen traces from McNeally. By the time police found McNeally’s truck, weeks after the attack, he had ordered new license plates and decals and a paint job.

C. The Verdicts and Sentences

The jury found Ware and McNeally guilty of the kidnapping, rape, oral copulation and sodomy charges in counts one through four. As to count five, the jury acquitted defendants of assault with a firearm but found them guilty of the lesser offense of assault (§ 240). The jury found as to each count that Ware and McNeally were not armed with a handgun. The jury found all other enhancement allegations to be true.

The court imposed prison sentences of 100 years to life for Ware and 82 years to life for McNeally.

II. DISCUSSION

A. The Kidnapping Instruction

1. Additional Background

Defendants were charged with kidnapping for sexual purposes in violation of section 209, subdivision (b), which provides: “(b)(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”

The court instructed the jury on this offense using a modified version of CALCRIM No. 1203 that provided in part: “The defendants are charged in Count 1 with kidnapping for the purpose of committing rape, oral copulation, or digital penetration in violation of Penal Code section 209(b). [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intended to commit rape, oral copulation, or digital penetration; [¶] 2. Acting with that intent, the defendant took, held, or detained another person by using force or instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a rape, oral copulation, or digital penetration; [¶] 5. When that movement began, the defendant already intended to commit rape, oral copulation, or digital penetration; [¶] 6. The other person did not consent to the movement; [¶] AND [¶] 7. The defendant did not actually and reasonably believe that the other person consented to the movement.”

After enumerating these elements, the instruction elaborated on several of them (including the movement and lack of consent elements) as follows (again tracking, for the most part, CALCRIM No. 1203): “As used here, substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape or oral copulation. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement.

“In order to consent, a person must act freely and voluntarily and know the nature of the act. A person who is incapacitated due to intoxication lacks the ability to consent to the movement. The [amount] of force required to kidnap an incapacitated person is simply the amount of physical force required to take and carry away the incapacitated person.

“To be guilty of kidnapping for the purpose of rape or oral copulation, the defendant does not actually have to commit the rape or oral copulation. [¶] To decide whether the defendant intended to commit rape or oral copulation, please refer to the separate instructions that I will give you on each crime.

“A defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if she (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient mental capacity to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.

“Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.

“A defendant is not guilty of kidnapping if he reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.” (Italics added.)

The court added the italicized language above (pertaining to consent) at the request of the prosecutor and after discussion with counsel at an instruction conference. At a subsequent instruction conference, defense counsel requested that the court modify CALCRIM No. 1203 by adding language from CALJIC No. 1.23.2, which includes a definition of the phrase “legal capacity to give ‘consent.’ ”[4] In denying this request, the court stated it was not inclined to mix CALCRIM and CALJIC instructions, and also said the proffered CALJIC instruction did not apply to a kidnapping charge, but instead applied to the concept of “[p]revented from resisting” as it relates to a charge of rape (or other sexual offense) committed against an intoxicated person.

2. Analysis

Defendants argue the court erred by adding to CALCRIM No. 1203 the language stating that “A person who is incapacitated due to intoxication lacks the ability to consent to the movement. The [amount] of force required to kidnap an incapacitated person is simply the amount of physical force required to take and carry away the incapacitated person.” Defendants contend this language misstated the law by improperly “equat[ing] intoxication with the incapacity to give consent to movement,” and thus effectively withdrew that issue from the jury’s consideration. They also assert the added language is “inconsistent” with other language in CALCRIM No. 1203 stating that one component of consent to movement is that the person “had sufficient mental capacity to choose to go with the defendant.”

We review claims of instructional error de novo. (See People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Olivas (2016) 248 Cal.App.4th 758, 772–773 (Olivas).) If a challenged instruction is ambiguous, we determine whether there is a “ ‘reasonable likelihood that the jury construed or applied the challenged instructions in a manner’ contrary to law.” (Id. at p. 772.)

Here, we reject defendants’ contentions that the court’s instruction (based closely on CALCRIM No. 1203) told the jury that a person’s intoxication necessarily renders him or her incapable of consenting to movement, that the instruction was internally inconsistent, and that the instruction relieved the prosecution of the burden to prove a lack of consent. As to the burden of proof, the challenged instruction specifies the prosecution must prove, as elements of the crime of kidnapping for sexual purposes, that the defendant moved another person and that “[t]he other person did not consent to the movement.” A separate paragraph later in the instruction states a defendant is not guilty of kidnapping “if the other person consented to go with the defendant,” and specifies the prosecution has “the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant.”

In addition to emphasizing the prosecution’s burden of proof, the instruction explains (in language found in CALCRIM No. 1203 and not challenged by defendants) the meaning of consent, stating: “In order to consent, a person must act freely and voluntarily and know the nature of the act.” The instruction later elaborates on this definition (in language also found in CALCRIM No. 1203 and not challenged by defendants), setting forth three components of consent, one of which is that the other person “had sufficient mental capacity to choose to go with the defendant.” (Italics added.) (The other two specified requirements are that the other person “freely and voluntarily agreed to go with or be moved by the defendant” and “was aware of the movement.”) The unmodified language of CALCRIM No. 1203 thus makes clear that a person cannot validly consent to movement if he or she lacks the capacity to do so.

The language added to the standard instruction by the court (following the general definition of consent noted above) is consistent with this principle, stating that a lack of capacity stemming from one specified cause (intoxication) precludes valid consent: “A person who is incapacitated due to intoxication lacks the ability to consent to the movement.” Contrary to defendants’ assertion, the instruction does not state that any person who is intoxicated to any degree lacks the ability to consent to movement, and, in our view, it is not reasonably likely the jury construed or applied the instruction in that manner. (See Olivas, supra, 248 Cal.App.4th at p. 772.) Instead, only a person who is “incapacitated due to intoxication” lacks the ability to consent to movement. While the addition of this language may have been unnecessary (since the standard instruction already includes the more general statement that mental capacity is an essential component of consent to movement) (see CALCRIM No. 1203), we reject defendants’ contention that the added language improperly modified or eliminated the requirement that the prosecution prove a lack of consent to movement.[5]

In addition to contending that the language added by the court misstated the law as to consent (an assertion that we have rejected above, and which defendants state is the “primary thrust” of their argument), they suggest the court “exacerbated this error by its failure to explain what incapacitation by intoxication entails.” But the information they suggest the court should have included on this point, such as specifying that a person validly consents if he or she acts freely and voluntarily and understands the nature and potential consequences of the act at issue (see CALCRIM Nos. 1002, 1201; CALJIC No. 1.23.2; see also People v. Giardino, supra, 82 Cal.App.4th at p. 472, all cited by defendants), is consistent with the existing language of CALCRIM No. 1203 (the pattern instruction for the charged offense, kidnapping for sexual purposes in violation of § 209, subd. (b)), which the court included in its charge to the jury. As noted, the court instructed in part that, “[i]n order to consent, a person must act freely and voluntarily and know the nature of the act.” We are not persuaded that the court was required to modify the instruction by adding similar language drawn from pattern instructions pertaining to other offenses.

B. The Mistrial Motions Based on Jurors’ Potential Observation of the Defendants in Handcuffs in the Courthouse Hallway

1. Additional Background

On a few occasions during the trial, defense counsel informed the trial court that jurors had (or may have) seen defendants in restraints in the hallway outside the courtroom. According to statements made during the colloquy between court and counsel, each defendant was handcuffed while being transported to and from the courtroom, and the handcuffs were joined by a chain. The court noted it was unfortunate that in the design of the courthouse, the jail elevator was only on one side of the hallway, so it was necessary to cross the public hallway when transporting defendants to courtrooms on the other side of the hallway.

In the present case, the court stated early in the trial that efforts would be made to bring defendants to the courtroom early each morning to minimize the risk that jurors would be in the hallway when the defendants arrived. In addition, partway through the trial (on May 5, 2014, after the close of the prosecution’s case), the court refined its procedure by instructing the jurors that from then on, they were to meet in the morning and after lunch on a different floor, and the bailiff would bring them to the courtroom.

Despite these efforts, jurors apparently were in the hallway on a few occasions when defendants were being transported to or from the courtroom. In one instance (on April 30, 2014), defendants did not arrive as early as usual as a result of heightened security measures at the jail. On another occasion (on May 7, 2014), defense counsel reported that, at the beginning of the lunch break, some jurors were coming out of the restroom when defendants were being led across the hall. The court stated it appeared it would be necessary to allow additional time for the jurors to get to the elevator.

On May 8, 2014, defense counsel stated that, at the end of the trial session on the previous afternoon, a deputy (who was not the usual deputy for the courtroom) walked defendants through the hallway and used the words “ ‘everybody clear’ ” and spread his arms as he walked, separating some jurors. On that same occasion, according to defense counsel, audience members who had gone out into the hallway (who turned out to be a deputy district attorney and the parents of the prosecutor in the present case) were discussing the prosecutor’s performance.

In each of these instances, defense counsel moved for a mistrial. The court denied the motions, noting the design of the courthouse made it impossible to eliminate the risk that jurors might see defendants crossing the hallway in restraints. The court also noted that, in light of the seriousness of the charges and the testimony about defendants’ arrests, the jurors would be aware defendants were in custody.

The court admonished the jurors several times during trial—after the April 30 and May 8 mistrial motions and at the close of the prosecution’s case on May 5—that they were not to consider defendants’ custody status for any purpose (an instruction the court also included in its final charge to the jury at the end of the trial). The court instructed: “The fact that the defendants may be in custody is not evidence in this case. Do not speculate about the reason. You must completely disregard the circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.”[6] The court stated it was confident the jurors would follow the instruction. (In this regard, the court noted that, after giving the instruction on multiple occasions, “I get nods from the jurors that they got it, they understand it.”)

2. Analysis

On appeal, defendants contend the court took insufficient measures to prevent jurors from seeing them in restraints and erred by denying their mistrial motions. We disagree.

“ ‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 565.)

As defendants note, our Supreme Court has held that “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 288, fn. 5, 290–291 (Duran); see People v. Stevens (2009) 47 Cal.4th 625, 632–633, 635 (Stevens) [visible physical restraints “may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community”].)

The above cases, however, address the situation in which a defendant appears in shackles before the jury throughout the trial. In that circumstance, the restraints serve as a “constant reminder of the defendant’s custodial status” (Stevens, supra, 47 Cal.4th at p. 638), and thus may have “ ‘a continuing influence throughout the trial’ ” (id. at p. 639). In contrast, our Supreme Court has noted that brief observations by jurors of a defendant in shackles either inside or outside the courtroom “have generally been recognized as not constituting prejudicial error.” (Duran, supra, 16 Cal.3d at p. 287, fn. 2; accord, People v. Tuilaepa (1992) 4 Cal.4th 569, 584; People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141 (Jacobs).) We similarly conclude the apparently brief observations of defendants in restraints in the hallway on a few occasions were not prejudicial, especially in light of the court’s admonitions to the jury not to consider the defendants’ custodial status. We also agree with the court’s observation that it likely was not a surprise to jurors to see that defendants were in custody. (Cf. Stevens, supra, 47 Cal.4th at p. 638 [“ ‘jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance’ ”].) The court did not abuse its discretion in concluding that its admonitions on this point were sufficient to cure any prejudice and that there was no need to grant a mistrial.

We also reject defendants’ suggestion the court did not take sufficient measures to minimize the opportunities for jurors to see defendants in restraints. As noted, the court directed that defendants be brought to court early so it would be unlikely that any jurors would be in the hallway. During the course of the trial, the court told jurors to gather in the morning and after lunch on a different floor, to reduce further the chance they would be in the hallway outside the courtroom when defendants arrived.

When defense counsel raised concerns about jurors having seen defendants in restraints in the hallway, the court responded thoughtfully, sought to take appropriate measures to address the issue (while noting that, in light of the courthouse design, it was impossible to eliminate the problem entirely), and admonished the jury to disregard any information as to whether defendants were in custody. We find no abuse of discretion by the court in its effort to balance the need for security in transporting defendants with the need to minimize potential prejudice resulting from jurors’ incidental observation of them in restraints. (See Stevens, supra, 47 Cal.4th at p. 632 [trial court decisions pertaining to security measures are reviewed for abuse of discretion].)

C. The Modified Version of CALCRIM No. 204

As noted, jurors may have seen defendants in restraints in the hallway outside the courtroom. The court admonished the jury on this point, at several points during trial and in its final instructions, using a modified version of CALCRIM No. 204 that stated: “The fact that the defendants may be in custody is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.” (Italics added.)

Defendants contend the court should instead have instructed using CALCRIM No. 204 (without modification), which refers specifically to the use of restraints on the defendant, rather than referring generally to the defendant’s custody status. CALCRIM No. 204 states: “The fact that physical restraints have been placed on [the] defendant[s] is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.” (Italics added.) Defendants argue the modified instruction given by the court did not adequately convey to the jury the need to disregard the fact they were in restraints.

We find no error. Defendants did not ask the court to give the unmodified version of CALCRIM No. 204 or any other instruction that specifically referred to physical restraints. They also did not object to the instruction the court gave. And they are incorrect in asserting the court had a sua sponte duty to give an instruction about restraints.

The Court of Appeal in Jacobs rejected the argument that a sua sponte instruction on restraints is required when jurors briefly observe a defendant being transported to court in restraints. (Jacobs, supra, 210 Cal.App.3d at pp. 1140–1141.) The Jacobs court reasoned that the rationale behind the sua sponte instruction requirement was “to alleviate the potential prejudice arising from the need to have visible, physical restraints on a defendant in a courtroom while in the jury’s presence.” (Ibid.) That rationale does not apply when jurors may have viewed the defendant in restraints while he was being taken to or from the courtroom because it is customary to use restraints when transporting prisoners. (Id. at p. 1141.) The Jacobs court therefore held “that where one or more jurors or veniremen merely witnessed defendant being transported to or from the courtroom in visible restraints the trial court has no duty, sua sponte, to instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt.” (Ibid.)

We agree with the Jacobs court. The trial court did not have a sua sponte obligation to give an instruction that specifically mentioned restraints. We also reject defendants’ argument that the instruction the court did give was somehow erroneous. That instruction, which told the jury to disregard defendants’ custodial status, was appropriate and was sufficient to prevent any potential prejudice. (See People v. Ross (1967) 67 Cal.2d 64, 72, revd. on other grounds sub. nom. Ross v. California (1968) 391 U.S. 470 [bringing defendant handcuffed into courtroom in jury’s presence had “no harmful effect . . . since the jury knew defendant was in custody”].)

D. The Requests to Poll the Jurors About Their Observations in the Hallway

During discussions between the court and counsel about the transportation of defendants and about the hallway conversation between a deputy district attorney and the prosecutor’s parents, defense counsel asked the court to poll the jurors about what they heard or saw and what effect it had on them. The court expressed concern that doing so might do more harm than good and ultimately did not poll the jurors, instead admonishing them to disregard information about defendants’ custodial status and any information they might hear outside the courtroom. Defendants contend the court erred by declining to poll the jurors. We disagree.

A trial court has discretion to decide whether to investigate any alleged juror bias or misconduct. “ ‘ “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” ’ [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case.” (People v. Bradford (1997) 15 Cal.4th 1229, 1348.)

The court did not abuse its discretion in concluding it was unnecessary to conduct an inquiry here. As discussed, the information available to the court was that some jurors might have observed defendants in restraints while they were transported across the courthouse hallway. Such brief observations generally are nonprejudicial. (E.g., People v. Tuilaepa, supra, 4 Cal.4th at p. 584.) The court reasonably could conclude that its admonition (given on several occasions) to disregard the defendants’ custodial status was sufficient to dispel any prejudice, and that further inquiry was not necessary.

Similarly, the possibility that some jurors overheard portions of a hallway conversation between a deputy district attorney and the prosecutor’s parents did not trigger a duty to question the jurors. The deputy district attorney represented to the court that the conversation did not involve the facts of the case, and that she looked around to make sure no jurors were present during the conversation. Contrary to defendants’ suggestion, the court was not required to conclude the jurors had received “ ‘information outside the court proceedings’ ” and to conduct an inquiry about its effect on them. (Cf. People v. Zapien (1993) 4 Cal.4th 929, 994 [cited by defendants; juror informed trial court he inadvertently had overheard a television news report about the case, and trial court inquired whether he could be fair and impartial and base his verdict on the evidence, as well as polling other jurors to determine they had no knowledge of the news report].)

Moreover, after discussing this incident with counsel, the trial court instructed the jury not to consider as evidence anything they might have seen or heard outside the courtroom, including in the hallway. The court stated: “Make sure that nothing outside of this courtroom—and I mean literally this room—is considered as evidence. For example, anything you see or hear out in the hallway or even outside the courthouse, it’s not evidence. [¶] As a practical matter, the way the courthouse is designed, the only place for witnesses, jurors, lawyers, spectators, to assemble is out in the same hallway, so it’s very hard to keep people from talking about the case or anything inadvertently in the presence of jurors. So we ask you folks to be diligent not to put yourself in that position. I know it’s not always in your control, but if you hear something going on, stroll down the hallway or ask people not to talk in your presence. I know that’s a little hard to do, but we don’t want you to be exposed to anything outside the courtroom. And, so of course if you are, let us know, and we’ll address it. [¶] And secondly, anything you do hear outside the courtroom or see is not evidence in the case. That’s the important thing. [¶] So as long as everybody is okay with that, I appreciate your cooperation.”

The court did not abuse its discretion in concluding this admonition was sufficient to address the possibility that one or more jurors might have overheard portions of the hallway conversation, and in determining that further inquiry might put undue emphasis on the issue and “do more harm than good.” (Cf. People v. Cleveland (2001) 25 Cal.4th 466, 475–476 [questioning of jurors during deliberations can affect the deliberations].)

E. Alleged Juror Misconduct

During trial, it came to the court’s attention that an article about the sentencing hearing for codefendant Spragans had been published in the Contra Costa Times. At the request of defense counsel, the court asked the jurors whether they had seen the article. One juror (Juror No. 49) stated she started reading the article but when she saw that it was about Spragans, she did not finish reading it.

Outside the presence of the other jurors, the court asked Juror No. 49 what she recalled from the article. She recalled the “prosecution” was hoping that Spragans would get “like 20 something years, and he actually got like 40. And the [sentencing] judge said it was a heinous crime.”[7] The juror added that she just browses articles to see if they are of interest, but when she recognized this article involved Spragans, she “panicked” and “didn’t read it” and “put it down.” In response to questions from the court and counsel for the parties, Juror No. 49 stated she did not read the article intentionally; she understood anything in the article was not evidence in the case; and she believed she still could be fair and impartial.

After Juror No. 49 left the courtroom, the court denied defense counsel’s motion to excuse her from the jury. The court found Juror No. 49 to be credible and forthcoming, stating “I don’t think we have to worry about her withholding anything or describing her reactions inaccurately.” The court also stated it was clear from the article that the quoted statements by the sentencing judge pertained to Spragans and not to Ware or McNeally. The court found Juror No. 49 would be able to remain impartial and decide the case based on the evidence presented in court, without reliance on the article.

Defendants contend that the court erred by declining to excuse Juror No. 49, and that prejudice from her exposure to the newspaper article should be presumed, requiring the People to rebut the presumption.

The court followed the proper procedure. “Even if inadvertent, it is misconduct for a sitting juror to read a newspaper article relating to the trial. If that occurs the trial court should conduct a hearing ‘into whether and to what extent the jury as a whole may have been affected and whether there was good cause to discharge any of the jurors.’ ” (People v. Cummings (1993) 4 Cal.4th 1233, 1331–1332, abrogated on other grounds by People v. Merritt (2017) 2 Cal.5th 819, 831.) The court did so here, and it found that Juror No. 49, the only one who had read even part of the article, could be impartial. The court’s inquiry was sufficient to rebut any presumption of prejudice that might arise from Juror No. 49’s inadvertent exposure to the newspaper article about Spragans’s sentencing hearing. (Cummings, supra, 4 Cal.4th at p. 1332 [court inquiry rebutted any presumption of prejudice]; see also People v. Ramos (2004) 34 Cal.4th 494, 521 [“We have held that reading a newspaper account of the trial is not sufficient to create a substantial likelihood of prejudice, and we find none here.”].)

F. Proffered Expert Testimony

1. Additional Background

During trial, the prosecutor filed a motion in limine to exclude potential expert testimony about the effect of intoxication on Doe’s memory and credibility. The court heard argument on the motion and ultimately held a mid-trial Evidence Code section 402 hearing, at which the proffered defense expert, forensic scientist Kenton Wong, testified.

Wong stated that alcohol is a central nervous system depressant that slows down the information processing of the brain. Alcohol can disrupt the storing and recollection of both short-term and long-term memory. A blackout is not the same thing as being unconscious. Two types of blackouts can occur. One is fragmentary, where a person remembers bits and pieces of an event, and the other is “en bloc,” a total lack of recall of “an entire chunk of time.” A blackout is a form of amnesia and involves a failure to recall events that occurred while the person was conscious. Once a person’s encoding function has been disrupted, there is no way to recover the memories later. Typically a blood alcohol concentration of 0.25 percent or above is necessary for a blackout to occur.

Wong agreed people respond differently to alcohol. Not everyone who drinks a large amount of alcohol will have a blackout. He could not say whether a person blacked out based on their blood alcohol level. Wong had not spoken to Doe and did not know how she would respond to alcohol.

As to retrograde extrapolation of blood alcohol levels, Wong was advised that Doe’s blood alcohol level was 0.29 percent at 7:00 a.m. on February 14, 2010. Wong stated that alcohol burns off at a rate of negative 0.02 percent per hour. A person who weighed 135 pounds, began consuming drinks at 9:00 p.m. and stopped at 1:30 a.m., would have consumed approximately 14 drinks to have a blood alcohol level of 0.29 percent at 7:00 a.m. At 3:00 a.m., the person’s blood alcohol level would have been about 0.37 percent.

At the conclusion of the Evidence Code section 402 hearing, the court stated Wong’s proposed testimony fell into two distinct categories, which would not need to be presented at the same time. The court ruled Wong could testify about the retrograde calculation of blood alcohol level and the number of drinks a person likely would have consumed to reach a certain blood alcohol level. The court stated, however, that the admissibility of testimony about the blackout issue would depend on other evidence that might be presented by the defense.

Specifically, it appeared to the court that Wong’s proposed testimony on blackouts was offered to support the defense position, set forth in Ware’s counsel’s opening statement, that Doe consented but could not recall doing so. Citing People v. Daniels (2009) 176 Cal.App.4th 304 (Daniels), the trial court stated, “if the theory is that the evidence of blackout and confabulation is relevant to this case because it supports a defense argument that Ms. (Doe) consents to sex in this case, that may or may not turn on whether there’s any evidence of consent, which presently is not in the record.” Since there was not yet any evidence of consent (such as testimony by the defendants, but potentially in the form of evidence “from another source”), the court could not determine whether the proposed testimony about blackouts and memory impairment would be admissible under Evidence Code section 352.

The following day, the defense called Wong as a trial witness. He testified as to Doe’s extrapolated blood alcohol level (approximately 0.41 percent at 1:00 a.m., based on a tested level of 0.29 percent at 7:00 a.m.) and the number of drinks she was likely to have consumed to get to that level. The court then sustained objections to questions by defense counsel that appeared to broach the issue of alcohol’s effect on Doe. Specifically, defense counsel noted that a paramedic who spoke with Doe at the scene gave her a score of 15 out of 15 on the “Glasgow” scale, which the paramedic stated measures a person’s “level of consciousness.” Wong stated this score meant Doe was coherent and lucid; she was not slurring her speech. Defense counsel asked whether a person’s scoring 15 on the Glasgow test and not having slurred speech, despite having a very high blood alcohol level, indicated anything to Wong about the person’s tolerance for alcohol. The prosecutor objected that an opinion on these matters would be outside Wong’s expertise. The court stated it was sustaining the objections “based on our in limine discussions.”

Several days later, during a conference about jury instructions, defense counsel asked the court to reconsider its ruling and allow the proposed memory-impairment testimony because there was indirect evidence of consent (i.e., Mungia’s testimony about physical contact between Ware and Doe). Counsel made this request for reconsideration in the course of an argument that focused primarily on whether the court should give an instruction about a defendant’s reasonable belief in consent, and it does not appear the court made any further express ruling about the proposed blackout testimony.

Defendants did not testify, and Wong was not recalled to testify about the blackout issue.

2. Analysis

Defendants argue the court erred by precluding Wong from testifying about alcoholic blackouts in the absence of direct evidence of consent. They contend the ruling deprived them of due process and the constitutional right to present a defense. We find no error.

“ ‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.) ‘ “Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.” [Citation.] But “exclusion of evidence that produces only speculative inferences is not an abuse of discretion.” ’ ” (Daniels, supra, 176 Cal.App.4th at p. 320.)

As noted, at the Evidence Code section 402 hearing, the trial court stated a final determination as to the admissibility of the proposed blackout testimony under Evidence Code section 352 would depend on whether there was direct evidence of consent. The court’s judgment on that point was reasonable and was not an abuse of discretion. (See Daniels, supra, 176 Cal.App.4th at pp. 321–322 [affirming exclusion of proposed expert testimony about alcoholic blackouts under Evid. Code, § 352, in prosecution for kidnapping for rape, where there was no evidence that victim consented to go with defendant or that she was experiencing a blackout when he encountered her].) As noted, the court stated its understanding that the blackout testimony was offered to support a consent theory suggested by the defense (i.e., that Doe consented but did not remember doing so). The court reasonably could conclude that, in the absence of direct evidence of consent (such as testimony by the defendants), the probative value of the blackout evidence would be reduced and the potential that it would confuse or distract the jury would be increased.

On appeal, defendants argue the proposed testimony was intended not only to support a consent theory but to attack Doe’s credibility more broadly. But the court reasonably understood that the testimony was directed (at least in significant part) to the consent issue raised earlier by the defense; when the court stated this understanding, defense counsel did not disagree. In any event, the court did not abuse its discretion under Evidence Code section 352 by excluding this evidence even on the broader issue of Doe’s credibility. The jury heard Doe’s admission that she could not remember certain parts of the evening, as well as Mungia’s testimony that he and Doe had discussed the events of the evening and both had gaps in their memories. The trial court did not abuse its discretion by excluding scientific evidence that would have been largely cumulative of this testimony.

Defendants contend the court’s limitation on Wong’s testimony, even if proper under Evidence Code section 352, deprived them of their constitutional right to present a defense. We do not address the parties’ arguments as to whether defendants adequately preserved this contention for appeal, because we reject it on the merits. “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ ” (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.) Here, the court did not refuse to allow defendants to present a defense; the court just rejected “ ‘some evidence concerning the defense.’ ” (See id. at p. 1103.) There was no constitutional violation.

G. CALCRIM No. 1192 (Rape Trauma Syndrome)

1. Additional Background

Dr. Laurel Hodgson, an emergency room physician at Doctor’s Medical Center in San Pablo, examined Doe on the morning of February 14, 2010. Doe reported she was picked up by three males in San Francisco and was then sexually assaulted and beaten. Dr. Hodgson noted that Doe was tearful and quiet. Dr. Hodgson testified this is often the case with individuals who report having been victims of sexual assault; they are often traumatized. The court found Dr. Hodgson was qualified to testify as an expert about the diagnosis and causes of trauma and about victims’ responses to trauma. The court instructed the jurors they were to determine how much weight to give Dr. Hodgson’s testimony.

Joan Okasako, a sexual assault nurse practitioner at San Francisco General Hospital, examined Doe on February 14, 2010. Okasako did not observe any genital injuries in her examination of Doe. This is not uncommon; in Okasako’s experience, there are no genital injuries in the majority of cases. Doe reported she was sexually assaulted by three males in the Richmond area who had a handgun. She said her vagina was penetrated when one man held her down while another man put his penis inside her. During Okasako’s examination, Doe was cooperative and was sad and crying at times. In Okasako’s experience, patients who have been sexually assaulted are traumatized. Okasako stated it is not her role to determine whether a patient who reports a sexual assault is telling the truth. The court found Okasako was qualified to testify as an expert about performing sexual assault examinations and about victims’ responses to sexual assaults. The court instructed the jurors it was their task to decide how much weight to give Okasako’s testimony.

At the conclusion of the trial, the court instructed the jury as to testimony about rape trauma syndrome using CALCRIM No. 1192: “You have heard testimony from Dr. [Laurel] Hodgson and nurse Joan Okasako regarding rape trauma syndrome. [¶] Their testimony about rape trauma syndrome is not evidence that a defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct of someone who has been raped, and in evaluating the believability of her testimony.” (Italics added.)

2. Analysis

Defendants argue the italicized portion of the instruction referring to the believability of Doe’s testimony (language taken from CALCRIM No. 1192) misstates the law as to the appropriate purposes of expert testimony about rape trauma syndrome. We determine de novo whether a jury instruction correctly states the law (People v. Posey (2004) 32 Cal.4th 193, 218), and we reject defendants’ argument.

Expert testimony about rape trauma syndrome is inadmissible to prove that a rape occurred. (People v. Bledsoe (1984) 36 Cal.3d 236, 251.) But such testimony may be 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.) This includes evaluation of witness credibility: Expert testimony on rape trauma syndrome “is admissible to rehabilitate the complaining witness when the defendant impeaches her credibility by suggesting that her conduct after the incident—e.g., a delay in reporting—is inconsistent with her testimony that she was raped.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)

The court’s instruction here comports with this distinction. It stresses the fundamental point that testimony about rape trauma syndrome is not evidence that a defendant committed a charged crime. And the language challenged by defendants does not state or imply Doe’s testimony is more believable because of rape trauma syndrome evidence. It just states that rape trauma syndrome testimony can be used in evaluating Doe’s believability as a witness. That is a correct statement of the law. (People v. McAlpin, supra, 53 Cal.3d at p. 1300.) Because defendants do not argue any of Dr. Hodgson’s or Okasako’s testimony was improperly admitted, and because the court’s instruction as to the permissible uses of that testimony was legally correct, we reject defendants’ claim of error.

H. CALCRIM No. 1190 (Testimony of a Single Witness)

The court, using CALCRIM No. 1190, instructed the jury that “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” In addition, in the course of giving its general instructions about witness testimony and other evidence, the court, using CALCRIM No. 301, told the jury “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” Defendants contend that giving both of these CALCRIM instructions (rather than just one of them) improperly bolstered Doe’s credibility and lightened the prosecution’s burden of proof.

As defendants acknowledge, our Supreme Court has rejected this argument in the context of the analogous CALJIC instructions (CALJIC Nos. 2.27 and 10.60). (People v. Gammage (1992) 2 Cal.4th 693, 700–702.) The court explained in Gammage: “Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 [analogous to CALCRIM No. 301] focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60 [analogous to CALCRIM No. 1190], on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes.” (Gammage, supra, at pp. 700–701.) The Supreme Court held that, because of this difference in focus, the instructions did not “create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other.” (Id. at p. 701.) It is proper to give both instructions. (Id. at p. 702.)

We decline defendants’ invitation to depart from our Supreme Court’s resolution of this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III. DISPOSITION

The judgments are affirmed.

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Streeter, Acting P.J.

We concur:

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Tucher, J.

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Lee, J.*