Opinion
G061327
09-29-2023
THE PEOPLE, Plaintiff and Respondent, v. DALANTE JEROME BELL, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 21CF2833 Michael J. Cassidy, Judge. Affirmed as modified and remanded with directions.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Dalante Jerome Bell appeals from a judgment after a jury convicted him of assault with intent to commit a sexual offense and forcible sexual penetration. Bell argues the trial court committed misconduct in answering the jury's question and it erred in imposing no-contact orders. We agree the court erred in imposing no-contact orders and remand for the court to remove persons from those orders. Bell's other contention has no merit. We affirm the judgment as modified and remand with directions.
FACTS
Bell does not challenge the sufficiency of the evidence to support his convictions. Under established appellate principles, we recite the facts in the light most favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
Around midnight, Jane Doe was talking on her cell phone with her boyfriend outside of her university residence hall. Doe saw a man, later determined to be Bell, wearing a mask covering his face.
At trial, the parties referred to the victim as Jane Doe. We will refer to her as Doe although the California Style Manual advises against it. (Cal. Style Manual (4th ed. 2000) § 5:9, ¶ 2.)
As Doe tried to walk past Bell, he punched her in the face, knocking her down. Bell climbed on top of Doe and hit her while she screamed for help.
Bell digitally penetrated Doe through her sweatpants. Bell eventually got up and fled. Doe chased him to no avail. Numerous people heard Doe's screams and called 911. Surveillance cameras captured the assault and Bell's flight from campus.
Police arrived. Doe told responding officers that Bell forcefully grabbed her genital area and tried to "'finger'" her. During subsequent police interviews, officers asked Doe what "fingering" meant. Doe explained Bell did not push his finger in "very far" because she was wearing clothing, but his finger passed the outside of her vagina. Doe said Bell used moderate to severe force, and he would have fully inserted his finger into her vagina if she not been wearing pants.
Bell's mother recognized him in surveillance footage on television news and his father took him to the police station. DNA testing revealed Bell's DNA was on the external crotch area of Doe's sweatpants and the left breast area of Doe's shirt.
An amended information charged Bell with assault with intent to commit a sexual offense (Pen. Code, § 220, subd. (a)(1), count 1) and forcible sexual penetration by a foreign object (§ 289, subd. (a)(1), count 2). As to both counts, the information alleged Doe was particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(3).)
All further statutory references are to the Penal Code.
At trial, Doe testified Bell tried to "finger" her. At the prosecutor's suggestion, Doe demonstrated what she meant by "fingering" by using a tissue box. She felt Bell's fingers and her clothing go inside her vagina due to the force he used. When the prosecutor asked her whether Bell's fingers would have gone all the way into her vagina if she were not wearing pants, Doe replied, "Probably, yeah." The trial court did not admit the tissue box into evidence.
The jury convicted Bell of counts 1 and 2. In a bifurcated proceeding, the jury was unable to reach verdicts on the allegations and the court declared a mistrial.
The court denied Bell's motion for new trial and motion for violation of the Racial Justice Act (§ 745). The court granted the prosecution's motion to dismiss count 1 (§ 1385). The court sentenced Bell to six years on count 2. The court ordered Bell have no contact with Doe, her parents, or her boyfriend (§ 136.2, subd. (i)(1)).
DISCUSSION
I. Judicial Misconduct
Bell argues the trial court committed misconduct when it referred to the tissue box to define penetration and allied itself with the prosecution. We disagree.
A. Background
Citing to CALCRIM No. 1045's definition of penetration as "however slight," the prosecutor explained Doe consistently stated in her police interviews and in her trial testimony that Bell "fingered" and penetrated her genital area. The prosecutor stated he asked Doe to demonstrate the penetration using the tissue box and she pushed the tissues back through the box's opening. The prosecutor said the following: "That's penetration. That is through the opening of the vagina."
Bell's trial counsel admitted Bell was the person in the video. Counsel argued though the surveillance video (exhibit No. 5) did not show penetration and thus the evidence was insufficient to establish a sexual assault.
With respect to count 2, the trial court instructed the jury with CALCRIM No. 1045. As relevant here, that instruction stated, "Sexual penetration means penetration, however slight and regardless of whether it was outside or inside clothing, of the genital or anal opening of the other person, for the purpose of sexual abuse, arousal, or gratification."
The jury began deliberating the morning of March 28, 2022. That afternoon, the jury requested among other things a readback of Doe's testimony. The clerk readback her testimony. The jury continued deliberating but was unable to reach a verdict.
The next morning, the jury continued deliberating. Before the lunch break, the jury requested "clarification on the word definition and nature of '[p]enetration.'"
Following the lunch break, the jury resumed deliberations. After conferring with counsel, the court instructed the jury the definition of penetration was contained in CALCRIM No. 1045.
An hour later, the jury stated it was having difficulty agreeing on count 2. After conferring with counsel, the court brought the jurors into the courtroom to provide "further definitions . . . or see what specifically their hang up [was]."
When the court asked the jury foreperson if it could provide assistance, the foreperson explained there was disagreement concerning what qualified as penetration and how to interpret "'fingering.'" The court said "'fingering' [was] not a legal term" and recited the definition, including that penetration could be "slight," which "everybody knows." Juror No. 184 replied the meaning of "slight" was the problem. After the court recited the definition and asked if it could clarify the definition further, the foreperson said, "[N]o." Juror No. 184 asked the following: "If a fingernail goes through the outside of the vaginal lips, very outside part, not in the hole, let's say -- you know, I'm not a doctor, so I apologize ahead of time for this -- does that count or does it need to be more hole-related? It can be up where near the clitoris is, could it be --." The court asked to see counsel.
Outside the presence of the jury, the court mused anything it said would be commenting on the evidence. The prosecutor suggested reopening closing argument. After Bell's counsel requested the court provide further instruction, he agreed to reopen closing argument.
The court told the jury any response would be commenting on the evidence. The court said it would give each attorney 10 minutes to present additional closing argument.
The prosecutor used a tissue box to illustrate the concept of penetration. He stated, "So this is what the vagina is, as crass as that may sound." The prosecutor stated anything that "slightly" "crosses," "touches," or "passes through the barrier" is penetration. He described it as a "plane of existence." He cited to Doe's testimony that Bell pushed her "clothing and her underwear . . . into the vaginal opening." He concluded that was "penetration legally."
Bell's counsel argued the prosecution did not satisfy its burden and rhetorically asked the jury to "see where a finger went in a vagina on that [surveillance] video." He emphasized Doe said "fingering," not penetration.
Juror No. 184 inquired whether jurors could ask questions and requested the prosecutor argue how the evidence showed penetration. The court allowed each side to continue arguing because they had each used less than 10 minutes.
Citing to the principle the jury may convict based on the testimony of a complaining witness in a sexual assault case (CALCRIM No. 1190), the prosecutor argued that if the jury found Doe credible and she testified there was penetration, that was sufficient. The prosecutor also cited to the DNA evidence on the crotch area of Doe's pants and the surveillance video showing Bell's hand slide between her legs.
Bell's counsel repeated his previous argument. He acknowledged there was an altercation but asserted it was not sexual.
Beginning at 3:00 p.m., the jury deliberated for 25 minutes before taking a 15-minute break. About 10 minutes after resuming deliberations, the jury asked the court the following question: "Prosecution referred to 'crossing the plane' as qualification of penetration we request judges [sic] comment on whether the law explicitly says that, is the prosecution's example, accurate to the law. Without a unanimous decision on charge 2, can we convict on lesser charges listed under count 2."
Without conferring with counsel, the court answered the jury's questions as follows: "The law doesn't use the terms 'crossing the plane.' But case law talks about -and I'm as uncomfortable talking about the female anatomy as, I guess, any other judge is, I guess -- but the vagina includes the outer -- they call it the lips of the vagina, which in the case law they refer to as the labia majora, which are right there at the opening where the actual hole or insert, the vagina is inside that. [¶] So it's the slightest penetration of even the outside lips, any part of that genital opening is penetration. Any part. It doesn't have to go all the way in. It doesn't have to go into the vagina itself. The outer parts of the vagina are enough. [¶] The second part of your question, no, you can't -- without a unanimous decision on Count 2, you can't convict on a lesser charge. [¶] You can consider the charges in any order that you want to, but I can't accept a guilty verdict on a lesser offense unless you first give me a not guilty verdict on the greater offense that is charged. [¶] Okay. Anybody need any more clarification on that? [¶] So in using the tissue box, as an example, anything that penetrates, even if you use that as the outer opening of the vagina, anything that penetrates that, as [the prosecutor] pointed out, that's sufficient for slight penetration. [¶] Okay. All right. See you when you have another question or if you have a verdict."
After the jury resumed deliberations, Bell's counsel noted the court did not give counsel an opportunity to hear the court's response beforehand. Counsel said some of the court's comments were proper and some were improper. When the court inquired what comments were improper, counsel stated the prosecutor said "crossing the plane," not Doe. The court replied it told the jury that phrase was not a legal standard. After counsel said the court should have stopped there, the court stated the following: "I think I stayed within the law. [¶] Any penetration, even the outer vagina, is enough, if they -if they believe the evidence." Counsel said, "And neither was the Kleenex box entered into evidence." The court agreed it was not admitted into evidence and began to say, "[B]ut [the prosecutor] did . . .," before counsel interjected that was where the court "went a little farther than I would have liked it to go." The jury resumed deliberations.
The court brought the jury in and stated that although it did not think it commented on the evidence, it wanted to instruct the jury with the following: "'Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, or what your verdict should be.' [¶] The instruction goes on to say, 'Now I will comment on the evidence only to help you decide the issues in this case.' And I just explained the law to you last time. [¶] 'However, it is not my role to tell you what your verdict should be. You are the sole judges of the evidence and believability of the witnesses. It is up to you, and you alone, to decide the issues of this case. [¶] 'You may disregard any and all of my comments about the evidence or give them whatever weight you believe is appropriate.'" (CALCRIM No. 3530.)
The jury resumed deliberating at 4:18 p.m. When the jury left for the evening recess 12 minutes later, the foreperson informed the bailiff the jury reached a verdict.
The next morning, Bell's counsel filed a motion for a mistrial, arguing the court prejudiced him by "commenting on the evidence in a manner that reinforced the Kleenex box demonstration ...." The court denied the motion. The court opined it did not comment on the evidence but instead explained "the definition of what penetration is." The jury convicted Bell of counts 1 and 2. The court denied Bell's counsel's request to ask the jury, "Was the judge's comments about the Kleenex box demonstration and penetration helpful in reaching the verdict?"
Later, Bell filed a motion for new trial arguing inter alia the court committed misconduct when it allied itself with the prosecution. The court denied the motion.
Bell does not argue the court erred by denying his mistrial motion or his motion for a new trial.
B. Law and Analysis
Due process requires a fair trial in a fair tribunal. (People v. Freeman (2010) 47 Cal.4th 993, 1000.) Judicial misconduct occurs when a trial judge strongly suggests to the jury he disbelieves the defendant's case or otherwise favors the prosecution. (People v. Houston (2012) 54 Cal.4th 1186, 1219 [judicial misconduct to create impression allying itself with prosecution].) "'[A] judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.' [Citation.] [¶] Trial judges 'should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.' [Citation.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237-1238 (Sturm).) To violate a defendant's right to a fair trial, the judge's intervention must be significant and adverse to a substantial degree. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320-1321 (Seumanu) [solitary, fleeting, and ambiguous comment not expression of where the court's sympathies lay].)
"'"'[O]ur role . . . is not to determine whether the trial [court's] conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the [court's] behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.'"'" (Seumanu, supra, 61 Cal.4th at p. 1321.)
Here, the trial court's reference to the tissue box to explain penetration was not misconduct. Tellingly, Bell does not argue the court misstated the law. His sole argument is the court improperly allied itself with the prosecution by referring to the tissue box as the prosecutor suggested Doe use when testifying how Bell penetrated her. In referencing the tissue box, the court did not throw the weight of its judicial position in favor of the prosecution.
After correctly stating the law did not use the phrase "crossing the plane" and that penetration could be slight, the court referenced the tissue box to explain slight penetration. Contrary to Bell's claim, the court's explanation of the law was necessary because one or more jurors was having difficulty understanding what legally sufficed as penetration. However unconventional that illustration was, it did not misstate the law. (§ 289, subd. (k)(1); People v. Quintana (2001) 89 Cal.App.4th 1362, 1367.)
Importantly, in making that illustration, the court did not comment on Doe's credibility or the significance of any evidence, i.e., the surveillance video or the DNA evidence. (People v. Santana (2000) 80 Cal.App.4th 1194, 1207 [court prejudicially erred by belaboring evidence damaging to defendant].) Additionally, the court did not implicate Bell, describe his finger as a "foreign object," or denigrate the defense (see Sturm, supra, 37 Cal.4th at p. 1238). Instead, the court simply used the tissue box as an anatomical model and left it to the jury to determine whether there was evidence of slight penetration. The court's reference to the tissue box did not bolster the prosecution's case because it did not refer to any evidence. Because the court neutrally responded to the jury's question, it was not acting as an advocate and did not engage in any judicial misconduct.
Although the trial court's single, brief reference to the prosecutor's example of the tissue box was not misconduct or a prejudicial comment on the evidence, we caution the court to avoid making statements that could be interpreted as comments on the evidence when answering jury questions.
When read in their entirety, the trial court's comments reflect it had properly answered the jury's questions and concluded by asking, "Anybody need any more clarification on that?" It was then the court continued on and referred to the tissue box. It's often when the court has answered the question, in an effort to assist the jury, it continues talking and gets perilously close to making improper comments. As our Supreme Court has cautioned, some things are better left unsaid. (People v. Blacksher (2011) 52 Cal.4th 769, 824.) Trial judges must be exceedingly discreet in what they say and do in the jury's presence. The best explanation of the law is the jury instructions, and it is most often wise to stop there. Because we have concluded the court did not ally itself with the prosecution and commit misconduct, we need not address Bell's contention he was prejudiced.
II. No-contact Order
Bell contends the order prohibiting him from contacting Doe's parents and her boyfriend was error. The Attorney General concedes the issue. We agree the order must be modified.
Section 136.2, subdivision (i)(1), authorizes a trial court to issue protective orders when a defendant is convicted of inter alia "a crime that requires the defendant to register pursuant to subdivision (c) of [s]ection 290 ...." Specifically, the statute states that "at the time of sentencing, [the court] shall consider issuing an order restraining the defendant from any contact with a victim of the crime." (§ 136.2, subd. (i)(1).) "'Victim' means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated." (§ 136, subd. (3).) An appellate challenge to a criminal protective order is not forfeited by a failure to object in the trial court when the order is not statutorily authorized. (People v. Robertson (2012) 208 Cal.App.4th 965, 995-996.)
Here, the trial court erred by including Doe's parents and her boyfriend under the postconviction protective order. Bell was required to register pursuant to section 290 because the jury convicted him of count 2, and thus the court properly imposed a protective order. However, only Doe qualifies as a victim for purposes of a protective order under section 136.2, subdivision (i)(1). The Attorney General concedes Doe's parents and her boyfriend do not qualify for a protective order as victims of Bell's offense.
Doe's parents and her boyfriend were of course traumatized by Doe's sexual assault and the boyfriend heard the crime, but they were not victims as statutorily defined. (§ 136, subd. (3).) The record includes no evidence "any crime was being or had been perpetrated or attempted to be perpetrated against" Doe's parents or her boyfriend. (People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211.) We therefore order that Doe's parents and Doe' boyfriend be removed from the protective order.
DISPOSITION
Doe's parents and her boyfriend shall be deleted as protected persons under the postconviction protective order. We remand the matter with directions to the trial court to modify the protective order to remove Doe's parents and Doe's boyfriend. As so modified, the judgment of conviction is affirmed in its entirety.
WE CONCUR: MOTOIKE, J. DELANEY, J.