Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge.
Patricia Ann Scott, under appointment by the Court of Appeal, for Defendant and Appellant Tracy Lynn Littman.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant Max Eugene Littman.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted Max Littman of four counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)), three involving substantial sexual conduct (§ 1203.066, subd. (a)(8)), continuous sexual abuse of a minor (§ 288.5), forcible oral copulation of a minor (§ 269, subd. (a)(4)) and rape of a minor (§ 269, subd. (a)(1)). He was sentenced to prison for 15 years to life, plus 20 years. In the same trial, another jury convicted Tracy Littman of three counts of committing a lewd and lascivious act on a minor, involving substantial sexual conduct. She was sentenced to prison for 10 years. Both defendants appeal, claiming the trial court erred in admitting the victim’s preliminary hearing testimony, instructing the jury and sentencing them. We reject their contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
The victim was Max Littman’s stepdaughter and Tracy Littman’s daughter. Hereinafter, Max will be referred to as “the stepfather” and Tracy as “the mother.” The facts involved in these crimes are not relevant to this appeal.
Issues and Discussion
1. Admission of Victim’s Preliminary Hearing Testimony
Before trial began, the 14-year-old victim, who had received the advise of counsel, who was with her during these proceedings, told the court below that she would refuse to comply with the court’s order that she testify and nothing could compel her to testify. The victim’s attorney described her client as being “adamant” about not testifying. The victim refused to state why she would not testify. The trial court noted, and neither defense counsel disputed this, that the victim could neither be jailed nor fined for refusing to testify. The People moved to admit, in the place of her trial testimony, her preliminary hearing testimony, noting that without it, it could not proceed with the case. Both defendants objected. The victim’s grandmother testified that the victim said she did not want to testify because she wanted her mother back. The trial court took judicial notice that five months previously, a protective order had been issued, prohibiting the victim’s mother from contacting her. The trial court found the victim to be an unavailable witness under People v. Francis (1988) 200 Cal.App.3d 579. It found that it had exhausted all possible ways to compel her testimony, noting, again, that the victim could not be jailed nor fined for contempt and she had said that nothing could make her testify.
The victim, herself, had sought counsel’s advise.
On appeal, the mother acknowledges this.
On appeal, the mother concedes that fining the victim would have been “futile.”
After both juries had been empanelled, the victim again testified, outside their presence, that nothing the court could do would make her testify at the trial, including the trial court “referring” her to the juvenile authorities. The court thrice found her to be in contempt when she refused to answer particular questions. When asked if there was anything anyone did to make her not want to testify, at first she said there was nothing, then she said after she initially refused to testify, an investigator from the district attorney’s office told her if she did not talk to him or answer “the” questions, her stepfather would go free and her mother would go to prison. Additionally, she said she was refusing to testify because, “I am just sick and tired of this whole thing. This is a year in my life wasted, I could have had with my mom.” She added that she missed her mother. The trial court concluded that the investigator telling the victim that her mother would go to prison if the victim did not testify did not constitute at attempt to influence her not to testify. The trial court upheld its previous order. Both defendants here contest the trial court rulings.
It is not clear whether these were questions asked by the attorneys or by the investigator.
The victim was in foster care.
The defendants first assert that the victim’s explanation makes no sense. It does. If she refused to testify, she hoped the case would be dropped, which would also result in no interference by Child Protective Services in her relationship with her mother, and the two would be reunited. It makes perfect sense. The defendants concede as much in their reply brief.
“Court have admitted ‘former testimony of a witness who is physically available but who refuses to testify (without making a claim of privilege) if the court makes a finding of unavailability only after taking reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing.’” (People v. Smith (2003) 30 Cal.4th 581, 624.) In Smith, the California Supreme Court upheld the trial court’s finding that the victim of a prior sexual offense by the defendant was unavailable to testify at the penalty phase of his present trial because she refused to testify under the conditions imposed by the court, i.e., that she could not state her opposition to the death penalty, concluding that the inferior court’s efforts to induce her to testify were reasonable. (Id. at pp. 623-624.) The court elaborated, “The court [below] questioned her under oath and asked whether additional time or prosecution for criminal contempt would change her mind. It had no power to incarcerate this victim of a sexual assault for refusing to testify concerning that assault. (Code of Civil Procedure § 1219, subd. (b).) [D]efendant argu[es that] the court should at least have fined her for contempt of court. [However,] trial courts ‘do not have to take extreme actions before making a finding of unavailability.’ [Citation.] Defendant did not ask the court to take stronger action against her, which was understandable. Because [she] was clearly trying to help defendant in refusing to testify against him, he could reasonably not have actually wanted to force her to testify by threat of contempt charges. Under the circumstances, the court did not actually have to fine [her].” (Id at p. 624.)
The defendants contend that the trial court did not act reasonably here because it did not “engage in age-appropriate exchanges” with the victim in order to persuade her to testify. The defendants assert that the trial court could have explained the court process, how important her testimony was and reassured her she would not be punished for telling the truth. However, the victim was represented by counsel throughout these proceedings. We are confident that the victim’s attorney explained all these things to her. The fact that she refused to testify, even if all she had to do was testify as a witness for her mother, convinces us that no amount of “Father Knows Best” talking by the trial court would have changed her mind.
The victim had stated that she would not testify even if the trial court ordered her allowance, Walkman or CDs taken away or she got into trouble for it.
When asked by the trial court on the second day of proceedings concerning this issue if the attorney for the victim had a chance to discuss with the victim whether she was willing to testify, counsel said, “I have. And she is not. She reiterated this morning that she does not want to testify. I do not believe that any further discussion will change her mind. I have indicated to her that that is technically not her choice; that she is obligated to testify if correctly subpoenaed, and she has declined to follow through with that.”
We feel similarly about the defendants’ suggestion that the court could have offered her a support person in the courtroom. First, she had her own attorney in the courtroom. Additionally, nothing in the record shows that she had not been offered the services of a court advocate, who either could have been personally present with her or could have arranged to have such a person with her.
Even more unrealistic is defendants’ suggestion that her testifying via closed circuit television “could have been explored” or closing the courtroom to the public. It is clear from the victim’s own testimony that she was not refusing to testify because she was embarrassed about describing what had happened to her. She was refusing to testify because she believed that by doing so, she was doing the best thing she could to ensure that her mother would not go to prison and be separated from her. She was also tired of having her life disrupted by the trial and having the prosecutor’s investigator trying to get her to do something she felt was detrimental to her relationship with her mother, matters that would not be resolved by her testifying over closed circuit television or in a courtroom devoid of spectators.
We believe this is the more accurate interpretation of the victim’s complaint about the prosecutor’s investigator. It makes no sense that if she believed his prediction that her mother would go to prison and her stepfather would be free if she refused to testify, that she would continue to refuse. What does make sense, and is consistent with her other remarks, including that to her grandmother, is that she was fed up with him trying to persuade her to do something she believed might ensure that she would not be able to be with her mother, i.e., testifying at trial. (See fn. 6, ante.)
The defendants’ assertion that the trial court should have simply ordered her to take the stand and testify is meritless. She had repeatedly stated her refusal to testify while frequently consulting with her attorney. The fact that it was questions by counsel that elicited most of the victim’s statements that she would not testify and why, and not questions by the trial court, does not, as the defendants assert, demonstrate that the trial court made only a cursory effort to persuade her to testify.
We fail to see what difference it makes who elicited the victim’s testimony about her refusal to testify. The point was she persisted in her refusal, despite being threatened with a number of sanctions.
The hearings on this matter consumed 53 pages of transcript, and stretched over six days, hardly an inconsequential amount of effort to resolve it.
Defendants also fault the trial court for failing to follow up on the possibility the prosecutor’s investigator had actually discouraged her from testifying. At the beginning of the hearings on the victim’s unwillingness to testify, trial counsel for the stepfather asserted that the victim’s refusal was caused by her feeling threatened by the prosecutor and his investigator, which counsel later described as “circumstances dealing with the prosecution, and more specifically the investigating officer [for the] prosecution. Trial counsel for the mother echoed this sentiment days later, accusing “law enforcement” and the investigator. When the victim’s grandmother was asked if anything had been done by law enforcement or anyone from the prosecutor’s office that would prevent the victim from getting her mother back, the grandmother pointed to the protective order that had been issued. As stated before, the victim gave as one reason for her continued refusal to testify the fact that after she had initially asserted her refusal, the prosecutor’s investigator told her that if she did not answer “the” questions or talk to him, her stepfather would go free and her mother would go to prison. However, she offered other reasons for her continued refusal to testify, not the least of which, we are certain, was that she wanted her mother back.
After the trial court concluded that the investigator’s prediction to the victim that if she refused to testify, her mother would go to prison and the stepfather would be set free would not have been an inducement for the victim to continue with her refusal, the stepfather’s trial attorney said he had additional evidence on the matter that he had just obtained. Specifically, he said that when the prosecutor’s investigator contacted the stepfather’s minor nephew a day or two previously, the investigator falsely represented to the latter that he was speaking on behalf of and working as an agent for the trial court. The trial court told counsel that as soon as he obtained more information about the matter, a hearing could be held. The trial court added that even if information that the misrepresentation had occurred was discovered after evidence it affected had been admitted at trial, and the trial court concluded that the misrepresentation deprived a defendant of due process, a mistrial could be declared. Trial counsel for the stepfather then read from a transcript of an interview of the nephew by the prosecutor’s investigator. In it, the investigator, told the nephew that trial counsel for the stepfather had been told by the nephew that the victim had called him and told him that she had lied about the crimes and the trial court had told the prosecutor’s investigator it needed more information about this and to talk to the nephew. When invited by the trial court to explain his investigator’s behavior, the prosecutor said that the nephew had refused to speak with his investigator and the prosecutor assumed that his investigator was attempting to put the nephew at ease, so he would agree to be interviewed. The trial court said it was disturbed that the prosecutor’s investigator told the nephew that the court has asked the investigator to talk to the latter. The court said that this probably put extraordinary pressure on the nephew to talk. The court expressed concern about the propriety of the prosecutor’s investigator doing this, stating its confidence that there was a remedy for such action and wanting assurance that it would not happen again. The trial court asked that that portion of the transcript which trial counsel for the stepfather had read into the record about what the prosecutor’s investigator had said to the nephew be forwarded to the assistant district attorney, for appropriate action to be taken by that office. None of the parties pursued the matter further in the context of the victim’s refusal to testify, even though trial counsel for the stepfather said that his research revealed that the prosecutor’s investigator may have broken the law and prejudicially impacted the trial by his actions. However, his promise that he would do further research and readdress the matter later went unfulfilled.
The nephew eventually testified at trial as a character witness for his uncle, giving testimony favorable to him. He also testified that, after the trial court ruled that the victim’s preliminary hearing testimony would be read into the record, the victim had called him just before trial began and told him that she had lied about the incidents for which her mother was charged. He added that he initially declined to speak to the prosecutor’s investigator when contacted by the latter before trial. However, he changed his mind after the investigator told him that he had been sent by the court to interview him and trial counsel for the stepfather had given his permission for the witness to be questioned by the investigator. While on the stand, the investigator admitted lying by telling the nephew that the prosecution had called the step father’s trial attorney, but he said he did so to make the nephew sufficiently comfortable to talk to him. However, he denied that he lied when he told the nephew that the stepfather’s trial attorney had given his permission for the nephew to be interviewed by the prosecution because, he claimed, the prosecutor had given the investigator the nephew’s telephone number, saying it had come from the stepfather’s trial attorney, and had told him that he could talk to the nephew. He admitted “misdirecting” the nephew and not telling him the truth when, after the nephew still appeared reticent to talk to the investigator, the latter told him that the stepfather’s trial attorney had personally given him permission to speak to the nephew. He further admitted twice that telling the nephew that the court had sent him to interview the nephew was a “ruse” to get the nephew to come forward with accurate information, and it was a lie.
The defendants contend that, considering this information, the trial court erred in concluding that what the investigator had said to the victim could not have induced her to refuse to testify. However, the trial court’s conclusion was more logical than is defendants’ current speculation that if the prosecutor’s investigator lied to the nephew, he must have also lied to or pressured the victim other than what she reported to the court he had said to her. Having so concluded, we necessarily reject the defendants’ assertion that the trial court had an obligation to do more fact finding regarding the “tactics” utilized by the investigator in an effort to uncover evidence that he had, indeed, pressured the victim not to testify.
When trial counsel for the mother cross examined the prosecutor’s investigator, he asked him if he had used any ruse, misdirection or trickery as a strategy with any other witnesses. The investigator said he had. Counsel asked if he had used any with the mother. The investigator said he had. The investigator was never asked if he used such methods on the victim. Although he testified three different times, he was never asked by either defense attorney what he had said to the victim that might have induced her to refuse to testify, other than what she had told the court. The defendants’ assertion that the trial court “denied [them] the opportunity to prove [the victim’s] unavailability was caused by one of the prosecutor’s own agents . . . .” is not supported by the record. The court said nothing precluding either counsel from broaching the matter again, as evidence concerning what the prosecutor’s investigator had said to the stepfather’s nephew developed during trial. In fact, at one point in the proceedings, the trial court pointed out to defense counsel that they could subpoena the investigator and ask him what he had said to the victim. The fact that they chose not to is not the fault of the trial court, as the burden was on them.
The defendants concede that they had the burden below to prove that the victim’s unavailability was procured by the prosecution. (People v. Cummings (1993) 4 Cal.4th 1233.) They not only failed to carry this burden, they failed to even pursue the matter. As the proponent of this evidence, it was their duty, not that of the trial court, to ask the investigator, who was present throughout trial, what he said to the victim that might have, in part, induced her silence. They didn’t. Their failure did not make it the trial court’s obligation.
Finally, it cannot be forgotten that the victim was, according to her own attorney, “adamant” about not testifying before the defense investigator said the only thing the record before us shows that he said to her. Under the circumstances, the trial court did not act unreasonably in declaring her unavailable and admitting her preliminary hearing testimony.
While, in their reply brief, the defendants correctly point out that trial counsel for the stepfather told the court before the investigator talked to the victim about not testifying that the victim “feels coerced and threatened by both the district attorney and by [his] investigating officer.” However, counsel never provided any support for this assertion. Moreover, the victim said that the only thing that the investigator said that was part of the reason for her continuing to refuse to testify was his statement about her mother going to jail.
2. Jury Instruction
In instructing the jurors on reasonable doubt for both the charged offenses and the enhancements, they were told, “In deciding whether the People have proved the [charged crimes and enhancements] beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.” In instructing the jurors on the evidence, they were told, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom.”
These portions of the California Criminal Jury Instructions (CALCRIM) are restatements of the following portions of CALJIC Nos. 1.00 and 1.03, “You have heard all the evidence . . . and now it is my duty to instruct you on the law that applies to this case. [¶] You must base your decision on the facts and the law. [¶] You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A “fact” is something proved by the evidence . . . . Second, you must apply the law that I state to you, to the facts, as you determine them.” (CALJIC No. 1.00.) “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.” (CALJIC No. 1.03.) The mother requested both CALJIC instructions. Therefore, she waived any objection to the CALCRIM instructions given. (People v. Hardy (1992) 2 Cal 4th 86, 152.)
We pause here to express our consternation with a practice that, unfortunately, seems to be becoming more prevalent as time goes on. There is no record of the instructions trial counsel for the stepfather requested. Despite this, comments he made to the trial court on the record indicate that he did, indeed, make some requests, whether oral, in writing, or both. Also, two instructions which appear in the record modified specifically for the stepfather are marked “withdrawn” and “refused” respectively Therefore, we know that trial counsel for the stepfather made certain requests. However, a written list of requests, such as the one the mother’s trial counsel submitted, is not included in the record before us and we are informed by the trial court that it is not part of their record. Counsel and the trial court engaged in discussions concerning jury instructions, but most of them were in chambers and were not recorded. Perhaps at that unrecorded discussion, trial counsel for the stepfather joined in the requests by trial counsel for the mother. But we will never know. Finally, the trial court failed to mark on each instruction by whom it was requested. We are puzzled as to why this practice goes on at the trial level, especially in light of the existence of the law on invited error.
The stepfather claims that the error in giving the disputed portions of the instructions affected only his conviction of Count 5, with which the mother was not charged. However, because, if there was error in giving the portions at issue, it could affect the counts for which the mother was convicted, we address her standing to join in the stepfather’s argument that those portions were defective.
The stepfather contends that the instructions at issue “expressly limit[] the jury’s consideration to evidence which was affirmatively presented at trial [and] precluded the jury from also considering constitutionally relevant evidence concerning the lack of evidence in determining whether a reasonable doubt existed as to [the stepfather’s] guilt.” (Italics original.) However, it is not reasonably likely that the stepfather’s jurors applied the contested portions of the instructions in a way that denied him fundamental fairness. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73 [112 S.Ct. 475]; People v. Clair (1992) 2 Cal.4th 629, 663.) The passages at issue did not address the absence of evidence, but other portions of the same instructions and of others did. They must be considered with those other portions, which, together, clearly conveyed the idea that the People had the burden of proof beyond a reasonable doubt as to each offense and enhancement and if that proof was lacking, the jurors must not find the stepfather guilty (or the enhancements true). Unlike the instructions in the cases the stepfather cites in support of his contention, People v. McCullough (1979) 100 Cal.App.3d 169 and People v. Simpson (1954) 43 Cal.2d 553, these did not inform the jurors that they may rely only on the evidence in forming a reasonable doubt.
The stepfather ignores, in his argument, a portion of CALCRIM No. 223, which was also given to the jurors. It states, “You must decide whether a fact in issue has been proved based on all the evidence.” Following the stepfather’s analysis, this portion is just as defective as the ones he cites because it does not address the asserted “constitutionally relevant evidence concerning the lack of evidence.”
3. Sentencing
According to the People’s argument to the jury, defendant committed the lewd and lascivious act alleged in Count 5 when he touched the victim all over her body and rubbed her vagina. During the same encounter, he also forcibly had her orally copulate him and he raped her, which was charged in Counts 6 and 7. At the sentencing hearing, defendant contended that the sentence for count 5 should be stayed. The trial court, however, imposed a consecutive term. Defendant here contends this was error, because, he asserts, the touching of the victim’s body and vagina were “merely incidental to and facilitative of” the forced oral copulation and rape.
Using the same reasoning, one could assert that the forced oral copulation was merely incidental to and facilitative of the rape, and, therefore, punishment for it should also be stayed. However, three distinct sets of criminal acts were committed by defendant, i.e., lewdly and lasciviously touching the victim’s body and vagina, forcibly orally copulating her and raping her. To accept defendant’s argument is to give him a pass on the first set of acts. The trial court impliedly found that 654 did not apply to this set of acts and substantial evidence supports this. (People v. Perez (1979) 23 Cal.3d 545, 553-554 [“[Orally copulating the victim, sodomizing her and having her orally copulate him] was [not] committed as a means of committing [the subsequent rape], [they did not] facilitate[] . . . commission of [the] other and none was incidental to the commission of any other.”]. Therefore, we will not stay punishment for Count 5. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
b. Consecutive Sentences
The defendants contend that the sentencing court was obligated under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] and Cunningham v. California (2007)___U.S.___ [127 S.Ct. 856] to impose consecutive sentences based only on findings made by the jury. This position has recently been rejected by the California Supreme Court in People v. Black (2007) 41 Cal.4th 794, 823.
Disposition
The judgments are affirmed.
We concur: McKINSTER, J., GAUT, J.
Defendants’ assertions in their reply brief that this asserted coercion and threats occurred during the preceding 12 days and that the victim “testified unambiguously that the [prosecutor’s] investigator was using repeated coercive measures to scare and threaten her into testifying” is not supported by the record.