Opinion
NOT TO BE PUBLISHED
Received for posting 11/8/10
Super. Ct. No. CM029141
ROBIE, J.
A jury found defendant Michael Dean Nunley II guilty of rape of an incompetent person, forcible rape, sexual battery, failure to register as a sex offender, and escape while felony charges are pending. The trial court found that he had a prior strike conviction. Defendant was sentenced to state prison for 26 years 8 months. Sentence on the rape of an incompetent person was stayed pursuant to Penal Code section 654.
Further undesignated statutory references are to the Penal Code unless otherwise indicated. The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a violent felony. (§§ 667.5, subd. (c)(3), 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
On appeal, defendant contends: (1) the trial court committed evidentiary error and his trial counsel rendered ineffective assistance when the court ordered his former attorney to testify against him during the prosecution rebuttal case; and (2) he was improperly convicted of two counts arising from a single act of intercourse; thus, either the rape of an incompetent person or the forcible rape charge must be reversed. The People concede the latter point. We shall reverse the rape of an incompetent person charge and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Failure To Register
The registration requirement on defendant dates to March 1978, when defendant was convicted of forcible rape in Butte County. The trial court instructed the jury that the conviction was the basis of defendant’s duty to register as a sex offender and evidenced his propensity to commit sex crimes.
James O’Keefe lived in Palermo, California, with his mother. O’Keefe has known defendant since they were kids. For a time, defendant lived in his motor home on O’Keefe’s property. However, about a year before trial, defendant moved his motor home to an automobile shop in Gridley. Thereafter, defendant would ride his motorcycle to the Palermo property to get his mail, but he never brought the motor home back to that address. Defendant did not register the Gridley address for purposes of section 290.
Rape And Sexual Battery Charges
The victim in these charges was A. F. who was 25 years old at the time of trial. She resided in an apartment in Chico. A. F.’s living expenses were paid by her payee, Morag Shanks. A. F. does not have a driver’s license. She is aware of what sex is and has had consensual sex with a former boyfriend.
A clinical psychologist examined A. F. in April 2002. He determined that she had a verbal IQ of 69, a performance score of 55, and a vocabulary score of 3. The last score placed A. F. in the bottom one percentile for her age group. On the Peabody picture test, A. F. scored similar to a six-year-seven-month-old child. A. F. recognized that she has a “learning disability” because, as she explained, “when I was seven years old, I got ran over by a car and ran over half of my brain.”
On July 6, 2008, A. F. went to her friend Jenny’s house. She was planning to spend the night in Oroville at the house of Jenny’s uncle, Jason “Jake” Valentine. Later, at Valentine’s house, A. F. met defendant, who asked A. F. and Jenny to clean his motor home. Thereafter, defendant, Valentine, Jenny, A. F., and her ex-boyfriend, Ted, all went to defendant’s motor home in Gridley. A. F. and Jenny cleaned the residence while the men sat outside and talked.
Later, back at Valentine’s house, Ted and Valentine got into an argument. Ted left in a huff, and Valentine told A. F. that she could not spend the night at his house. Jenny attempted to telephone her father (Valentine’s brother) to see if A. F. could spend the night at his house. Defendant then asked A. F. if she wanted a ride. After A. F. indicated that she did not know defendant, he told her it would be okay and she got into his car.
Defendant drove A. F. back to his motor home. Along the way, she told him to take her to Jenny’s house or to Ted’s house, but he said, “no” and drove to Gridley. At his motor home, defendant told A. F. that she could sleep in his bed and that he would not bother her. Without removing her clothes or glasses, she lay down on the bed and pulled the sheet over her.
Defendant entered the room, pulled off the sheet, held A. F.’s hands to her side, lifted up her shirt, put his mouth on her breasts, pulled down her shorts and underwear, and placed his penis in her vagina. The penetration was painful and she was scared. He moved his body up and down on top of her. She told him to stop and said that she would tell her boyfriend and call the police.
Defendant then offered A. F. $50 for having sold her body. After protesting that she did not do that sort of thing, she told him to take her to the residence of an ex-boyfriend, Mike. Defendant told her not to tell anyone what he had done or he would “do something else” to her. Around 3:00 a.m., defendant dropped off A. F. at Mike’s house where she fell asleep on the couch. When she awoke she called the police. A. F. identified defendant at trial as the person who had raped her.
A registered nurse examined A. F. at Oroville Hospital. Her vagina had bruising, redness, and discoloration. There were also some “heavy vaginal white secretions.” A. F.’s cervix showed redness and was oozing blood. The nurse took swabs of A. F.’s breasts. Later that day, the nurse examined defendant. She determined that he had visible genital warts.
Butte County Sheriff’s Deputy Robert Allen spoke with defendant at his motor home in Gridley. Defendant said that “he’d been residing at [the Gridley address] for approximately three weeks on and off.”
Defendant was arrested and booked into jail. He gave a police interview that was played for the jury. Defendant told Detective Tom Dryden that while he was at Valentine’s house, he offered to pay Jenny to clean his motor home. Later, Valentine got mad at Jenny and told her to leave his house. Jenny obtained permission from her father to have A. F. stay at their residence. Valentine asked defendant to drive A. F. to Jenny’s residence, and he agreed. However, defendant could not find Jenny’s residence, so he dropped off A. F. at some apartments by the fire department. Defendant claimed that he did not have sex with A. F. In fact, he claimed he “can’t have sex, ” evidently due to his genital warts.
DNA test results later revealed that defendant’s genetic profile was on the swabs taken from A. F.’s breasts.
At trial defendant testified that he asked a friend’s niece (Jenny) and her friend (A. F.) to clean his motor home in Gridley. While the women were cleaning the motor home, A. F.’s boyfriend Ted “grabbed Jenny on the butt.” Thereafter, Jenny told A. F. what Ted had done. A few minutes later, A. F. stood in front of defendant and allowed him to lick both of her breasts.
In rebuttal testimony, Detective Dryden said during his interview in July 2008, defendant never mentioned that A. F. had given him permission to touch or suck on her breasts. Dryden asked defendant seven times whether he had touched A. F. On a number of occasions, defendant said he never had sex with her. At least once or twice, he said that he had never touched her.
A. F. testified that she did not see or hear anything about Ted touching Jenny’s butt. She also did not give defendant permission to touch or suck on her breasts.
Defendant’s former counsel, Danny Brace, testified that it is his practice to share criminal discovery with his clients. In December 2008, Brace shared some DNA evidence with defendant.
DISCUSSION
I
Testimony Of Defendant’s Former Attorney
Defendant contends the trial court committed evidentiary error, and his trial counsel rendered ineffective assistance, when the court ordered Brace, his former counsel, to testify against him during the prosecution’s rebuttal case. Defendant argues the error and ineffective assistance collectively destroyed his credibility with the jury and all counts must be reversed. We are not persuaded.
During his July 2008 interview with Detective Dryden, defendant never mentioned that A. F. had given him permission to touch or suck on her breasts. He said once or twice that he had never touched her.
DNA test results later revealed that defendant’s genetic profile was on the swabs taken from A. F.’s breasts.
On direct examination, defendant testified that after A. F.’s boyfriend, Ted, grabbed Jenny’s butt, A. F. stood in front of defendant and allowed him to lick both of her breasts. The following cross-examination then took place:
“Q. [BY THE PROSECUTOR]: [A. F.] didn’t let you fondle her breasts, did she?
“A. Yes, she did.
“Q. You didn’t even come up with that story until after the DNA [evidence] came back on December 3rd, 2008, did you?
“A. No, I did not -- came up when I had my other lawyer.
“Q. Didn’t you say that you never touched her at all?
“A. No. They said I raped her. No, I did not.”
Later, the cross-examination continued:
“Q. Well, did you get a copy of the DNA report?
“A. No.
“Q. Did your attorney tell you that there was a copy of a DNA report?
“A. No.
“Q. Did your last attorney tell you that the DNA swabs came back identifying that your saliva was found on [A. F.’s] breast?
“A. No, they [sic] did not.
“Q. He never told you that?
“A. No.”
Following defendant’s testimony, the prosecutor told the court that she intended to call defendant’s former attorney, Brace, to testify that he told defendant about the DNA results. The court later held an Evidence Code section 402 hearing outside the jury’s presence.
Defendant’s trial counsel objected to calling a former attorney to the stand. The court overruled the objection because defendant “took the stand on his own behalf” after being “advised of his right not to do so.” “[T]here was an allegation that his defense was recently fabricated. And that the fabrication occurred after he had been advised of the results of DNA tests showing that the saliva... sample taken from... [A. F.’s] breast was... [defendant]’s. [¶] And therefore, he opened the door as to the limited area whether or not Mr. Brace advised him. Because, he denied he advised him of the results of that test either in writing or orally.” (Italics added.)
When Brace was asked if he shared the DNA results with defendant in December 2008, Brace asserted the attorney-client privilege. The court ruled that defendant, the holder of the privilege, had waived the privilege as to that one answer by testifying that Brace had not provided him the DNA evidence. Brace answered that in December 2008, he and defendant had discussed the DNA results.
In front of the jury, Brace testified that he represented defendant in this case prior to the end of January 2009. Brace testified that in December 2008, he shared DNA evidence with defendant.
Defendant contends the trial court erred when it ruled that he had waived his attorney-client privilege on the specific question of whether he and Brace had discussed the DNA results by testifying that they had not discussed those results. The point has no merit.
The trial court’s rulings on the admissibility of evidence are reviewed for abuse of discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290; People v. Thornton (2007) 41 Cal.4th 391, 444-445.) This includes an evidentiary objection based on a claim of privilege. (Deary v. Superior Court (2001) 87 Cal.App.4th 1072, 1077, 1081.)
Evidence Code section 912, subdivision (a), provides in relevant part: “Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege)... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.” (Italics added.)
In this case, defendant testified on cross-examination that Brace: (1) did not tell him that there was a copy of a DNA report; and (2) did not tell him that the DNA swabs revealed that his saliva was found on A. F.’s breasts.
During discussion of whether attorney Brace could testify, the prosecutor described defendant’s testimony set forth above as “a bold-face lie.” In his opening brief, defendant “wonders” how the prosecutor “could be so absolutely certain” that defendant had lied, unless she had already questioned Brace and he had answered her notwithstanding the attorney-client privilege. In his reply brief, defendant chides the People for failing to respond to the issue. We decline to deduce from the silent record either that Brace had breached the privilege or that the prosecutor had engaged in anything more nefarious than overly puffing her argument.
Defendant, the holder of the privilege as to his conversation with Brace, had the legal standing and opportunity to claim the privilege in response to the prosecutor’s questions. He did not do so and instead provided the answers set forth above.
Nothing in the record suggests that defendant’s answers were accidental or inadvertent. (See State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 654 [waiver under Evid. Code, § 912 does not include accidental, inadvertent disclosure of privileged information by an attorney].) Objecting to the questions, or failing to answer them, would have invited the jury to speculate that Brace had provided the information.
Under Evidence Code section 912, subdivision (a), defendant’s failure to claim the privilege manifests his consent to disclosure of that portion of the conversation. The trial court’s finding that defendant had waived the privilege was not an abuse of discretion. (People v. Thornton, supra, 41 Cal.4th at pp. 444-445; Deary v. Superior Court, supra, 87 Cal.App.4th at pp. 1077, 1081.) Defendant’s statutory waiver in the trial court forfeits his appellate claim of improper admission of evidence. (People v. Wilson (2005) 36 Cal.4th 309, 336.)
Because the statutory waiver consists of defendant’s failure to claim the privilege, it does not matter whether his ensuing testimony affirmatively disclosed privileged matters or, as here, denied that the matters had been discussed.
It is not necessary to consider defendant’s argument that he had not previously waived the privilege during the colloquy on when he had “come up with the story” of A. F. allowing him to fondle her breasts. Even if he had not waived the privilege at that point, he did so during the exchange that followed.
Defendant’s reliance on Mitchell v. Superior Court (1984) 37 Cal.3d 591 is misplaced. As noted, Evidence Code section 912, subdivision (a), provides that the privilege is waived either: (1) when the holder has disclosed a significant part of the communication; or (2) when the holder has consented to disclosure, which may be manifested by “failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.” (Italics added.)
Mitchell involved the first form of waiver, whereas the present case involves the second form. (Mitchell v. Superior Court, supra, 37 Cal.3d at p. 601.) As we have explained, defendant failed to claim the privilege in a proceeding where he had the legal standing and opportunity to do so. Whether he also disclosed a significant portion of the communication is not relevant to our analysis.
This leaves defendant’s claim that his trial counsel’s failure to assert the attorney-client privilege was ineffective and prejudicial. This claim has no merit.
“[A] conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, ‘“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”’” (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1126.)
In this case, there is no reasonable probability of a more favorable determination but for counsel’s failure to assert the attorney-client privilege. We agree with defendant that the sex counts presented a credibility contest between himself and A. F. However, A. F.’s credibility was bolstered by the fact that she never wavered from her assertion that defendant held her down and raped her. The physical evidence, even apart from the DNA swabs, further corroborated her testimony.
Conversely, the great blow to defendant’s credibility came not from attorney Brace but from defendant himself, who first told the police that he had not touched A. F. and then told the jury that she had let him lick both of her breasts. Even if the rebuttal had not mentioned the DNA evidence, defendant’s contradictory statements -- and the facial absurdity of the notion that A. F. retaliated against her boyfriend’s transgression by having defendant lick her breasts -- would have utterly destroyed defendant’s credibility. Any ineffective assistance could not have been prejudicial. (Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1126.)
II
Conviction Of Rape Of An Incompetent Person And Forcible Rape
Defendant contends, and the People concede, he was improperly convicted of both rape of an incompetent person (§ 261, subd. (a)(1)) and forcible rape (§ 261, subd. (a)(2)) based upon a single act of sexual intercourse. We accept the People’s concession.
“Rape is an act of sexual intercourse with a person without that person’s effective consent.” (2 Witkin, Cal. Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 1, p. 317.) The various subdivisions of section 261 set forth the circumstances under which the victim’s lack of effective consent may be demonstrated, but these subdivisions “are not separate crimes; hence, one act of intercourse results in only one punishable offense of rape, even though it may come within more than one subdivision.” (2 Witkin, Cal. Criminal Law, supra, Sex Offenses and Crimes Against Decency, § 7, at pp. 321-322; see People v. Maury (2003) 30 Cal.4th 342, 427; People v. Collins (1960) 54 Cal.2d 57, 59.)
Thus, in People v. Craig (1941) 17 Cal.2d 453, an information charged the defendant with two counts of rape because a single act of intercourse violated two different subdivisions of section 261; the defendant was convicted of both counts. (Craig, at pp. 454-455.) The Craig court recognized that section 954 permits the prosecutor to state the same offense in separate counts, but concluded it was improper to enter a judgment of conviction for multiple rape offenses:
“Under [section 261], but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the foregoing subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act. This conclusion finds support in section 263 of the Penal Code which provides that ‘The essential guilt of rape consists in the outrage to the person and the feelings of the [victim of the rape].’ The victim was not doubly outraged, once because she was forcibly attacked and once because she was under 18 years of age. There was but a single outrage and offense.” (People v. Craig, supra, 17 Cal.2d at p. 455.)
Here, the trial court permitted multiple convictions to remain but applied section 654 to stay punishment for rape of an incompetent person. By its terms, section 654 operates where the “act or omission... is punishable in different ways by different provisions of law.” Here, however, the two rape convictions are punishable in the same way by the same provision of law, i.e., section 261. We shall reverse the conviction for rape of an incompetent person and order preparation of an amended abstract of judgment. Remand for resentencing is not required.
DISPOSITION
Defendant’s conviction for rape of an incompetent person is reversed and the trial court is ordered to enter judgment of dismissal on that count. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P. J.; BUTZ, J.