Opinion
A128526
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. CLEMENTE MEJIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-091223-8)
Defendant Clemente Mejia appeals after a jury convicted him of rape, forcible oral copulation, forcible sexual penetration, and making criminal threats. The victim testified to defendant's commission of all of the sexual acts, and defendant testified that all were consensual. He challenges the trial court's exclusion of evidence that the victim lied on a different occasion, and its instruction to the jury that it could consider his failure to explain or deny inculpatory evidence. He also asks this court to review an in camera discussion with the attorney for a witness who invoked the privilege not to testify under the Fifth Amendment to the United States Constitution. We find no error and, therefore, shall affirm but remand for correction of a sentencing error.
BACKGROUND
The then 21-year-old victim, E.T., testified she has a large family, with many aunts, uncles, and cousins. She was especially close with two of her aunts, C.M. and Michelle M. In July 2009, E.T. was living with C.M. and C.M.'s husband, defendant.
To facilitate comprehension, and with no disrespect, we shall refer to several family members and witnesses by their first names.
On July 3, 2009, E.T., C.M., Michelle and a fourth woman, Letitia Guiterrez, went to a bar in Brentwood. Letitia drove. C.M., Michelle and Letitia each had "a lot" to drink and when driving home were pulled over by a police officer and arrested. A friend drove E.T. home.
E.T. was preparing food when defendant entered the house. She informed him that C.M. and Michelle had been arrested. She told him that they would not be released until the morning and then went to her room. Defendant went into the garage, then came into E.T.'s room and again asked when C.M. and Michelle would be home. She repeated that they would not be home until the morning. Defendant walked towards the garage, then returned and asked the same question a third time. E.T. testified that "I told him again in the morning, but possibly in a couple of hours, because at that point I thought it was weird." Defendant again left the room.
Soon thereafter, all of the lights in the house went off. Defendant then entered E.T.'s room "completely naked," "asking me where my Aunt C.M. was." E.T. again told defendant that she was in jail and asked defendant what he was doing. "He said I was lying and she was out partying." Defendant pushed E.T. against the wall. She testified that "he was trying to pull down my pants, and I was holding them up. I didn't know what he was doing. And then he started choking me . . . ."
E.T. "was yelling and screaming, 'Don't. What are you doing?' And he put his hand over my mouth." She was trying to hold her pants up to prevent him from pulling them off. She felt dizzy and thought she might pass out from being choked. She believed she might die. Defendant told E.T. "You're lying to me, girl. I know your aunt is out doing something. She's out partying." E.T. told him that C.M. was really in jail, and defendant told her to go to the bathroom and wash her face. As she entered the bathroom, defendant "pushed the door open and then he pushed me against the wall again and he said, 'I don't believe you. You're lying.' He pushed me against the wall and he had me against it and he tried to pick me up."
E.T. managed to escape from defendant's grip and ran to the hallway, but defendant pushed her into the kitchen. He was telling her "to shut up and to stop fighting." She asked him to stop and asked "why he was doing this." Defendant replied, "If you don't be quiet, I'm going to kill you." She was scared because she believed he would kill her, as she knew that he had guns in the house. E.T. testified that "[t]he more I struggled, the more forceful he got. He's very strong."
Defendant pushed E.T. into the family room and continued trying to pull down her pants. He was also kissing her neck and chest. She cried and begged him to stop. Defendant pushed her onto the floor and E.T. hurt her head as she was falling. Defendant, still naked, continued to threaten E.T. that he would kill her, so she stopped fighting. He then removed her pants. Defendant "has long fingernails and he scraped" her hip as he was doing so. He then began to perform oral sex on E.T. He also inserted a finger into her vagina. E.T. was "hysterical. I was crying and asking him to stop. And then he tried . . . to put his penis into my vagina." He was holding his penis with his hand and although it was soft, she felt it go inside her vagina. "[H]e was soft, and it was small, so he couldn't put it in. He put it in, but he couldn't keep it in." "He was getting more frustrated, and he was grunting because he was frustrated, so he was getting angry." Defendant next attempted to penetrate E.T.'s anus with his penis "but he couldn't get it in there either because it was soft."
E.T. testified that while these events were happening, her telephone rang. She told defendant that it was probably C.M., which caused defendant to pause, allowing E.T. to push him off and run to her room. The phone call was from C.M., but because E.T.'s phone was broken, C.M. could not hear E.T. E.T. told defendant that C.M. was on the phone and "[h]e took the phone, he tried to talk to her." While he was talking, E.T. was able to pull up her pants. When defendant discovered that C.M. could not hear him, he became frustrated and pushed E.T. onto the bed. She testified that, "I put my thumbs in my belt loops again because that seemed to work. [A]nd I curled up into a ball with my back against the wall and I just held a fetal position for a long time. [¶] Q. . . . [¶] A. He stayed there for a while and then he got up and he went into the hallway. I could see his shadow for a while and then I heard him walk off more. And he was gone for a while, and I tried to move and the bed made a noise. Because I didn't know where I was going to go, but I was going to run. And the bed made a noise, so I stopped. So I just laid there and I acted like I was sleeping."
Defendant then returned to the room and laid down next to E.T. There was a knock at the front door of the house. E.T. testified that defendant "jumped up and I heard footsteps to the front door, and then I heard him run to the garage." E.T. put on her shoes, picked up her phone and ran to the front door, but was unable to open it. She went to a window in the living room, opened it and jumped out. She saw her uncle, Richard, and her grandmother, E., standing at the front door. She told them, "Clemente raped me." The grandmother took E.T. from the house and called the police, then took her to a hospital.
E.T. had been told that defendant would be out all night. She was concerned to know where he was because she testified that "a few months before when I was living there . . . I was sleeping and he came into my room and he jumped on top of me, and he held my wrists down." E.T. asked defendant what he was doing and called to C.M. for help. Defendant shook his head, said, "Oh, I'm sorry, I'm drunk," then left the room.
E. testified that she had received a telephone call from C.M. asking her to go to her home and tell defendant that she was in jail. C.M. also asked E. to pick up E.T. E. was concerned for E.T.'s safety. When E. arrived at the house, she went to the garage door and knocked, because defendant was often in the garage. All of the lights in the house were off. When no one opened the garage door, E. went to the front door and knocked. After a short time, E.T. jumped out a nearby window. E.T. "was scared." She looked as if she had been crying, and "she had big, red bruises on her neck." She spoke to E.'s son-in-law, Richard, who was also standing by the door and said, "Mente raped me." E.T. saw E. and repeated, "Grandma, Mente raped me." E. testified that E.T. "was holding on to me. She wasn't sobbing, she was—tears coming down her face, but she was shaking." When E. tried to enter the house, E.T. said, "No, grandma, he's going to kill me. He has a gun." E. and Richard called the police and stayed with E.T. until they arrived.
"Mente" is a nickname used by defendant.
Oakley Police Officer George Kousobos testified that he responded to the Mejia residence on the morning of July 4, 2009. He and two other officers knocked loudly on the front door, rang the doorbell and announced themselves as police officers. When they received no response, they began walking around the perimeter of the house. One officer left to interview E.T. The remaining two officers observed that one of the windows was open. They heard a dog barking inside the house so did not enter immediately. They continued to attempt to make contact with someone inside the house for approximately 30 minutes while they waited for animal control to arrive.
Officer Lance Morrison testified that when he interviewed E.T. before defendant was arrested, "I saw fear, emotional upset, crying, trembling, shaking, tears." E.T. told Morrison that defendant had raped and choked her and he observed red marks and scratches on her neck.
One of E.T.'s uncles, Paul, arrived and attempted to corral the dog, walking around the house calling for the dog. After a few minutes Officer Kousobos realized that Paul was no longer calling for the dog but was speaking with someone in the house. Paul suddenly yelled, "He's got a gun." Kousobos drew his gun and approached Paul. When he reached the front door of the house, he saw defendant. Defendant seemed upset and angry and yelled, "What the fuck? What the fuck is going on?" Officer Morrison also approached the house with his gun drawn. The officers ordered defendant to put his hands up and get on the ground. Morrison took defendant to the ground by kicking his legs out from underneath him and then placed handcuffs on him. After defendant was taken into custody, the officers recovered a loaded .44 Magnum handgun.
A sheriff's deputy took defendant into custody and at a detention facility photographed his body. The photographs show "[a] scratch mark starting on his left side, back, and wrapped around the side of his," a single scratch mark on his left upper shoulder, scratches on the inside of his right arm, upper right arm, the right side of his mid back, the right lower portion of his torso, and on his right lower forearm.
The nurse who examined E.T. testified that E.T. had abrasions and complained that she had tenderness in her pelvic area. She was bruised on her calf, a fingernail had been pulled off, she was tender on the back of her neck, there were a cluster of scratch marks on her buttocks and hips, a bruise on her left thigh, and an abrasion on her left hip. E.T. told the nurse that she had none of these injuries before the incident. By E.T.'s nose and left eyelid the nurse also observed petechiae, or small reddish-purple spots just under the skin caused by broken capillary vessels. She testified that petechiae are associated "with strangulation of some sort." E.T. had an abrasion that was "consistent with somebody [who] while being strangled, is trying to pull somebody's arm off or hand off of them . . . ." There were also abrasions on the left side of E.T.'s chin that continued down her neck. These abrasions had a downward direction consistent with a victim of strangulation trying to escape the assailant's grip.
The nurse observed "little moon marks . . . consistent with fingernails [that] have been dug in when trying to pull something" on E.T.'s upper thigh. These marks contained dried blood. The nurse testified that "[t]hese types of injuries cannot be self-inflicted because the moons are going downward. So this is consistent with something being pulled down . . . ." The nurse also noted that "[b]ecause [E.T.] does have acrylic nails you won't get kind of moon injuries [from] people that have acrylic nails because they don't have the sharpness to dig into the skin or make moon marks." The scratches on her buttocks and thighs had a downward direction and continued to her knee. There was a large bruise on E.T.'s inner thigh that was "consistent with somebody who's trying to keep their legs closed and someone trying to force their legs apart in some manner." There was a bruise shaped like a finger or a thumb on E.T.'s buttocks. E.T. also had abrasions on her vagina.
The narrative of the assault that E.T. gave the sexual assault nurse was consistent with her trial testimony.
Michelle testified that she spoke with E.T. on July 5. The two spoke on the telephone and Michelle characterized E.T.'s demeanor as "very calm. She talked very casually. She was chewing or eating something. . . . [I]t sounded like maybe she was even sucking off of her finger. . . . She was eating and chewing and talking about, you know, the night before just very casually. Just very—like it wasn't anything to her." E.T. told Michelle that she had been in the bathroom the night before and that defendant had kicked the door in. However, Michelle had not noticed any damage to the bathroom door. E.T. also told her during that conversation that the power in the house went off, that defendant came into the room where she was naked, and that he had raped her.
C.M. testified that she believes E.T. "lies a lot. She's . . . always lied."
Defendant testified that on July 3, he knew his wife was planning to go out with friends. He spent the evening with a cousin and a friend and "was pretty drunk" before returning home. After he came home, he drank more. Some time later, E.T. returned home. E.T. told him that C.M. had been arrested, but did not seem upset. Defendant was "shocked, worried, but . . . she had told me that it was nothing serious." Defendant proceeded to describe at some length his version of a consensual sexual encounter with E.T. He did not know what caused the marks on E.T.'s body or the marks on his own body. He was awakened some time later by dogs barking. He armed himself with a gun that he keeps next to his bed because he heard noises inside the house. As he walked down the hallway he noticed that the front door of the house was open. He also saw his brother-in-law, "Pop," running outside of the house and saw several police officers with their guns drawn. When he saw the police, he set his gun down. When the officers ordered defendant to come out of the house, he exited immediately. One of the officers rushed over and pushed defendant to his knees. Defendant testified that "I started cussing them out because all of a sudden these guys are . . . just rushing me. And they're not really explaining themselves. And there's no reason for them to come running at me like that and dropping me on the floor like they did."
According to defendant, the two began "talking like we usually do." "[W]e got into a conversation about her tattoos." Defendant told E.T. "that a lot of girls didn't look good with tattoos, but she did." E.T. "kind of like in the flirty motion, she came over and she . . . asked me if I wanted to see them. . . . And she actually showed me—pulled down her shirt and showed me her tattoos." Defendant testified that "that's when we just kind of just looked at each other. We kind of just started kissing from right there." After that, he testified that "[w]e started going towards the couch . . . . At the time there was a mattress and we went against that and slid down onto the floor." "We just continued kissing. Um, kind of just touching each other over the clothes. [¶] Q. . . . [¶] A. Um, she—she started to unbuckle her pants." "[S]he started taking them off and I grabbed them from the top and pulled—helped her pull them down."
Defendant testified that he took his pants off, then E.T. asked him to turn the kitchen light off. He did so, and returned to E.T. He took his shirt and boxers off. E.T. still had her shirt on and was taking her underwear off. Defendant lay down on E.T. and they continued kissing. He testified that "she was touching my penis area . . . and I was touching—I was just—we was just touching each other." He testified that E.T. "grabbed me by my waist and pulled me into her. [¶] Q. . . . [¶] A. . . . [W]hen she pulled me in, . . . I wasn't able to go in her because my penis was not up." He continued, "[m]aybe like my tip went in her." He testified that E.T. told him he "was being a little rough," at which point they went back to kissing. She did not tell him "no" or ask him to stop. "That's all she said. She said you're getting a little rough. She said relax." "[W]hile we was kissing I felt her hand on top of my head, and she was kind of like pushing my head down. Kind of motioning me to go down on her." Defendant "went with it and went down on her." He performed oral sex for less than a minute, then they moved into "like a doggiestyle position." Defendant was still unable to penetrate E.T. After this, defendant testified, "I laid on my back and she got on top of me." Defendant denied that he attempted to have anal sex with E.T. He denied attempting to choke her or squeezing her throat.
While she was on top of defendant, E.T. "started to say that she was starting to feel the drink and she started to fall forward." Defendant "quickly put my hand up, otherwise we would have bumped heads." Defendant pushed her off of him and asked if she was okay. Defendant testified that he handed E.T. her clothes and they both got dressed, then he walked her to her room. Defendant returned to his bedroom and passed out.
Defendant denied that when the police told him he was being charged with rape, forced oral copulation, and sexual battery of E.T. he responded, "That's sick. I never touched her." He testified that he told police, "I never raped her. That's sick."
Defendant was charged by felony complaint with one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible sexual penetration (§ 289, subd. (a)(1)), one count of attempted sodomy by use of force (§ 286, subd. (c)(2), 664), one count of criminal threats (§ 422), and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1).)
Further statutory references are to the Penal Code unless otherwise specified.
The jury found defendant guilty of rape, forcible oral copulation, forcible sexual penetration, and making criminal threats. The jury did not return a verdict on the charge of attempted sodomy. Defendant was sentenced to the aggravated term of eight years for the rape; a consecutive aggravated term of eight years for the oral copulation; the midterm of six years for the sexual penetration, stayed pursuant to section 654; and a consecutive midterm of two years for the criminal threats, for an aggregate term of 18 years. Defendant timely noticed an appeal.
DISCUSSION
Exclusion of evidence
Defendant argues that the trial court erred in excluding evidence that E.T. had lied about the circumstances of a car crash in April 2009. The court allowed defendant to introduce evidence that E.T. had taken her aunt Michelle's car without Michelle's permission. Defendant sought to question E.T. about a statement she made to Michelle after she crashed, that "people were chasing her," causing the crash, and a later statement that her former boyfriend was chasing her when the crash occurred. Defendant also sought to introduce evidence that E.T. initially told Michelle that the crash occurred in Pittsburg, but that when confronted with the fact that the responding police officers were from Antioch, admitted that the crash occurred near the house of her ex-boyfriend and that he had broken the window of the car before she fled and crashed the car.
In ruling that evidence concerning the circumstances of the accident was inadmissible, the court stated: "The part that . . . comes in for impeachment . . . is the statements about stealing the car and taking the car without permission. That part comes in. But the rest of it, I think it's an undue consumption of time, and I do think there's a danger of confusing the jury because it's not clear on the face of these statements that it's . . . some small inconsistency in the statements doesn't seem to me to amount to moral turpitude. It seems to me there's a statement, and later there's a clarification and it doesn't seem to me that there was another big lie about the circumstances of the accident."
Evidence Code section 780, subdivision (e) provides that the jury "may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including . . . [¶] [h]is character for honesty or veracity or their opposites." Such evidence may nevertheless be excluded under Evidence Code section 352, which provides that "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Wright (1985) 39 Cal.3d 576, 587-588.) The decision to exclude evidence under section 352 is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We review the trial court's decision for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
Defendant cites People v. Wall (1979) 95 Cal.App.3d 978. In that case, the victim accused the defendant of rape and the defendant testified that the two had not engaged in intercourse. There was no physical evidence of rape. The trial court admitted the testimony of the victim's ex-boyfriend that she had threatened to make a false allegation of rape against him (id. at p. 983), but the following day instructed the jury to disregard that testimony, based on Evidence Code section 787 (id. at pp. 983-984). Section 787 provides that "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." In reversing the defendant's conviction, the appellate court held that "in a criminal trial on a charge of rape by force and violence or threats of great and immediate bodily harm, the trial court—under the exercise of discretion conferred by Evidence Code section 352—may allow collateral evidence of specific instances of the complaining witness' nonsexual conduct as proof of a character trait tending in reason to disprove the truthfulness of her testimony at the trial." (Wall, supra, pp. 984-985.) The trial court there erred in concluding that section 787 mandated the exclusion of the evidence. (Id. at p. 989.)
The disputed testimony in Wall, that the victim previously had falsely accused another person of raping her, was highly probative of the truth of the victim's accusation then on trial. The Court of Appeal implicitly recognized that in initially permitting the testimony, before concluding that it was barred by section 787, the trial court had determined that the section 352 factors militated in favor of admission. Here, the trial court did not rely on section 787 but considered the proper factors under section 352 and found them to weigh in favor of exclusion. While the excluded testimony was relevant to E.T.'s general character for truthfulness, the falsehood related to a very different subject matter than sexual offenses and was far less probative of the victim's relevant character trait than was true in Wall. The excluded testimony was somewhat cumulative—E.T. acknowledged that she had taken her aunt's car without permission, and C.M. testified that E.T. was often untruthful. The value of the additional testimony would have been marginal at best since, as the trial court explained, the contradictions between E.T.'s version of events immediately following the crash and her version later could just as well be explained as clarifications or confusion. Attempts to characterize the previous misstatement one way or the other through examination and cross-examination could have consumed substantial time. The trial court did not abuse its discretion in concluding that the potential for distraction and wasteful time consumption outweighed the marginal value of admitting this testimony.
Moreover, given the strong physical evidence supporting E.T.'s version of events, admission of this weak testimony almost certainly would not have affected the outcome. In asserting that exclusion of the evidence was prejudicial, defendant argues that "[t]he prosecutor exploited the error in closing argument." He points to the prosecutor's argument that the victim had no motive to lie and that " „[t]here's no evidence that she has any bias against the defendant or that she has any personal stake in what happens here.' " However, evidence that E.T. had lied about the crash would not have tended to show she had a motive to lie about the rape or that she had a bias against defendant. Defendant also argues that the jury's failure to reach a verdict on the sodomy count suggests the jury was skeptical of E.T.'s version of events. However, the jury's indecision on this count more likely is explained by the fact that this was the only act that defendant did not admit performing and for which there was no corroborating physical evidence. Jury instruction
Defendant argues that the trial court erred by instructing the jury with CALCRIM No. 361. The jury was instructed: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough, by itself, to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Defendant objected to this instruction, arguing that "[h]e did explain how the . . . acts occurred. His failure to recall specifically how different scratches occurred, I don't think, gives rise to this instruction. . . . [T]here's a significant omission on the part of the defendant to explain or deny."
In explaining its decision to give the instruction, the trial court stated, "there are many instances where all of the following apply: one, he was confronted with significant evidence that was incriminating; two, he did not deny the evidence; three, he did not explain the evidence; four, he did not say that he did not recall; five, he was in a position to explain or deny; and six, it occurred during the scope of permissible cross-examination. There were several instances both with regard to being confronted with scratches on his own body, and evidence there of being confronted with evidence of injuries to the victim. And, unlike [People v.] Haynes [(1983) 148 Cal.App.3d 1117] . . . here, the evidence that Mr. Mejia was confronted with in cross-examination, was evidence which formed a significant part of the prosecutor's case. The . . . physical evidence, including photographs of her injuries, [the sexual assault nurse's] testimony, which was at some point that some of the scratches could not have been self-inflicted, . . . evidence of that nature. And Mr. Mejia's responses . . . consisted of 'I couldn't tell you.' It wasn't a statement denying that these happened. It wasn't a statement explaining what . . . happened. And he didn't say that he didn't recall."
Defendant argues that this instruction was inappropriate because he testified that he did not know how he got the scratches on his body, nor how E.T. obtained the wounds on her body. He argues that this instruction is appropriate only "where the defendant's trial testimony leaves huge material gaps unanswered," and that his failure to explain the scratches and other wounds is not such an omission.
The propriety of CALCRIM No. 361 "depends upon the facts of the case. [Citation.] If the defendant has not been asked a question calling for an explanation or a denial, as a matter of law the instruction may not be given. [Citation.] Additionally, if the defendant does not answer such a question because of some fact which precludes his knowledge of it (like an alibi which removes him from the scene), a denial of guilt is deemed to have been made. [Citation.] If he fully accounts for his whereabouts and denies the crime, the mere fact that defendant's story is contradicted by other prosecution evidence does not pave the way for giving the instruction, because contradiction is not by itself a failure to explain or deny. [Citations.] However, if the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury." (People v. Mask (1986) 188 Cal.App.3d 450, 455.)
Defendant failed to explain the scratch marks on his body, though he admitted to engaging in various sex acts with E.T. He did not testify that the scratches were caused by something other than having sex with E.T., with the exception of one scratch that he believed was caused by the police during his arrest. When asked on cross examination if he knew how he had obtained the marks he answered, "I cannot tell you how I got them." When asked if he could explain the scratch marks on E.T's body, defendant replied, "No." The extent of injuries to both defendant and E.T. strongly support E.T.'s version of events and render defendant's story of a consensual encounter and his statement that he did not know how they were incurred inherently implausible. "When a defendant testifies but fails to deny or explain inculpatory evidence or gives a 'bizarre or implausible' explanation, giving the instruction is proper." (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) The jury was entitled to consider the lack of explanation in evaluating defendant's credibility.
Defendant also contends CALCRIM No. 361 is flawed because it "fails to provide the jury with standards to apply in evaluating evidence, fails to convey the necessary requirement that the defendant have knowledge of the facts he did not explain or deny, and lightens the prosecutor's burden of proof." First, he argues that the instruction "instructs the jury that it should 'do something' if a defendant failed to explain or deny the evidence against him, but does not say what to do." On the contrary, the jury is instructed to use the failure to explain or deny in weighing the credibility of a defendant's testimony. As noted by the court in People v. Haynes, supra, 148 Cal.App.3d at page 1120, "In the typical case [CALCRIM No. 361] will add nothing of substance to the store of knowledge possessed by a juror of average intelligence. Furthermore, if its terms are adhered to, as presumably they will be, its message will be essentially irrelevant in the absence of some designated glaring hiatus in the defendant's testimony. In such an instance, of course, this lacuna will presumably be the subject of debate and emphasis during the parties' arguments to the jury, with or without the neutral guidelines contained in this recently disfavored instruction."
The cases to which the Haynes court referred as giving "a hostile reception [to] this instruction . . . from legal logicians and semanticists" are People v. Peters (1982) 128 Cal.App.3d 75, 84 and People v. Campbell (1978) 87 Cal.App.3d 678, 684. (People v. Haynes, supra, 148 Cal.App.3d at p. 1119.)
Defendant next faults CALCRIM No. 361 for failing to explicitly instruct the jury that defendant may not be penalized for failing to explain or deny evidence if he had no actual knowledge. He notes that CALJIC No. 2.62 included the added instruction that, "If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence." CALCRIM No, 361 does not include similar language. However, the instruction tells the jury to consider the reasonableness of defendant's failure to explain or deny "based on what he knew." Thus, that the defendant must have knowledge of the facts that he does not explain or deny is included in the instruction.
Finally, defendant argues that CALCRIM No. 361 lightens the prosecution's burden of proof because, although it repeats the reasonable doubt standard and instructs that failure to explain or deny is insufficient by itself to prove guilt, "it provide[s] no further indication of what sort of evidence the failure to explain or deny need be coupled with in order to establish guilt. The use of the phrase 'to prove guilt' likely caused confusion since CALCRIM No. 361 is supposed to govern the evaluation of evidence, not provide guidance in evaluating whether the elements of the offense have been proven. As such, the instruction encourages the jury to equate non-evidence (the failure to explain or deny) with the substantial evidence necessary to support a conviction, lowering the prosecutor's burden of proof."
" ' "[W]e must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) In addition to the contested instruction, the jury was instructed on the elements of each of the crimes with which defendant was charged and told that each element of each crime must be proved beyond a reasonable doubt in order to find defendant guilty. In context with these other instructions, CALCRIM No. 361 did not lessen the prosecutor's burden. Cumulative error
Defendant argues that even if the individual alleged errors are not in themselves prejudicial, taken together they denied defendant his right to a fair trial. Having found no error, this argument is likewise rejected. Sealed transcript
Defendant requests this court to examine the sealed record of an in camera hearing held on February 18, 2010.
Defendant previously made a motion in this court to unseal this record, which the court denied.
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At a hearing outside the presence of the jury, a witness testified that E.T. had once accused Miguel F., a former boyfriend, of rape. E.T. denied that she had made such an accusation, explaining that she had told the witness only that she had refused to engage in anal sex with Miguel F. Miguel F. was then called by the defense and testified that he and E.T. had a sexual relationship. He began to describe a specific incident "around . . . Christmas time of '08," when the two had sex "one night after a party." The prosecutor then interjected, "at this point I think that Mr. [F.] is going to be testifying or presenting compelled testimony that may tend to incriminate him." Miguel F. stated that he wished to speak with an attorney before testifying further and after doing so invoked his right not to incriminate himself under the Fifth Amendment. Defense counsel asked the court to order Miguel F. to testify, stating, "I don't believe that there is an appropriate basis for claiming the Fifth Amendment right." The court then spoke with Miguel F.'s attorney in camera and was satisfied that there was a good faith basis for Miguel F. to invoke the privilege. Defendant asks that we review the transcript of the in camera proceedings to determine whether the trial court properly permitted Miguel F. to assert the Fifth Amendment privilege, and we have done so.
"Parties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable 'must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record.' " (People v. Price (1991) 1 Cal.4th 324, 493.) Having reviewed the sealed transcript, we find no error in the trial court's ruling allowing Miguel F. to invoke the privilege against self-incrimination. Sentencing
Defendant did not initially challenge his sentence on appeal, but this court requested the parties to address whether the sentence for count 5, making criminal threats, should be reduced from two years (the midterm) to one-third the midterm, or eight months, pursuant to section 1170.1, subdivision (a).
At sentencing, the trial court designated count 1, rape, as the principal term, and then exercised its discretion under section 667.6, which authorizes full, consecutive terms for certain enumerated sexual offenses, to impose the full upper term of eight years for count 2, forcible oral copulation, and the midterm of six years on count 3, forcible sexual penetration. All three of these crimes are specified in section 667.6, subdivision (e) as crimes for which the trial court may impose full consecutive terms "if the crimes involve the same victim on the same occasion." (§ 667.6, subd. (c).)
The court also imposed the full midterm of two years consecutively for count 5. This offense is not enumerated in section 667.6, and the Attorney General acknowledges that the trial court erred in imposing a consecutive full term on that count. Nonetheless, the Attorney General argues that defendant's sentence should not be reduced because the trial court could have chosen count 5 as the principal term and imposed full consecutive sentences for the sex crimes under section 667.6, which would have resulted in the same aggregate sentence of 18 years.
Rather than speculate as to whether the trial court will see fit to rectify its error by changing its designation of the principal offense or by modifying the term imposed on count 5, we deem it preferable to remand the matter to the trial court for resentencing.
DISPOSITION
The matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects the judgment is affirmed.
Pollak, J. We concur: McGuiness, P. J. Siggins, J.