Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWF009972. Mark Ashton Cope, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found Mark Steven Blair guilty of one count of first degree murder (Pen. Code § 187, subd. (a)) and found the murder was committed during a rape by instrument (§ 289) within the meaning of section 190.2, subdivision (a)(17)(K). Defendant pled guilty to the charge of being a felon in possession of a firearm. (§ 12021, subd. (a)(1); count 2.) The trial court sentenced defendant to life in prison without the possibility of parole for the murder and a concurrent upper term of three years for the firearm possession.
All further statutory references will be to the Penal Code unless otherwise indicated.
On appeal, defendant claims: (1) inadmissible hearsay from the victim was erroneously admitted, (2) improper references were made to a polygraph test defendant took, (3) the trial court erroneously denied his motion for new trial, (4) the trial court failed to instruct the jury that they must find the victim was alive at the time of the unlawful penetration, and (5) the upper term was wrongfully imposed for the firearm possession. We reject all of defendant’s claims and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
To provide an overview, evidence was presented at trial that defendant strangled Rebecca Cole (Cole/victim) after she refused to allow him to sodomize her with a rum bottle. Rather than set out a separate statement of facts and procedural history, we will incorporate the portions of the evidence relevant to our discussion as to each of defendant’s separate contentions.
DISCUSSION
A. While It Was Error to Admit Evidence of a Polygraph Test, the Error Was Harmless.
At the beginning of trial, the parties discussed the schedule for the presentation of evidentiary matters. As a part of that discussion, the attorneys examined transcripts of defendant’s interviews with police where he confessed to strangling the victim. Those transcripts contained several references to defendant taking a polygraph exam.
Defense counsel objected to the transcribed interviews on the grounds of Miranda and inadmissible polygraph evidence. The prosecutor informed the court he would not seek to admit polygraph evidence. The trial court instructed the deputy district attorney to redact all references to “polygraph,” “instrument,” and “machine.” Both counsel agreed to work together in redacting all inadmissible references to a polygraph exam.
Despite the best intentions of all parties, several references remained within the body of the transcript presented to the jury. They include the following three instances:
1. “[Officer]: You are lying to us. [¶] . . . [¶]
“Defendant: No I’m not. Give me a lie detector test. Because I’ll, I’ll tell you I don’t know what happened to her, I don’t.”
2. “[Officer]: Okay. Okay. I’m just waiting for them to call me back and then we’ll go up to the polygraph. I just wanted to uh, talk to you some more. . . .”
3. “[Interviewer]: If I ask you a question on the polygraph, okay. Did you inflict any or all the injuries to her that led to her death?”
We note that the jury sent a note to the court asking, “What is the profession of Michelle the interviewer of [defendant]? Does she freelance this type of work?” While it is possible that the jury had questions regarding the polygraph examination because it referred to Michelle Gamboa, the polygraph examiner, it was unclear what the jury’s intention was in asking that question.
Defense counsel had failed to object to the unredacted polygraph references at the time the transcript was admitted at trial, and as such, the evidence was presented to the jury.
Defendant now argues the prosecutor committed misconduct by improperly admitting evidence relating to polygraph examination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and alternatively, that defense counsel rendered ineffective assistance by failing to ensure that the redactions were made. We agree it was error to admit references to the polygraph test. However, any reference to the polygraph exam was harmless because the result would have been the same.
Evidence that a defendant took a polygraph test would violate California statutory law. (People v. Sapp (2003) 31 Cal.4th 240, 299.) Evidence Code section 351.1 provides that results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding. It was clearly error to admit into evidence defendant’s offer to take a polygraph test, and both the officer’s and examiner’s acknowledgement that defendant took a polygraph exam.
The issue then becomes whether defendant suffered prejudice as a result of the error. Whether the error is considered prosecutorial misconduct or ineffective assistance of counsel, the standard of review is the same: any error is harmless unless it is reasonably probable that a more favorable result to the defendant would have occurred in the absence of the error. (People v. Parsons (1984) 156 Cal.App.3d 1165, 1171-1172.) In this case, the error was harmless. The fact that the jury heard evidence that defendant took a polygraph test would have a de minimis influence in changing the result. It was the overwhelming evidence that defendant murdered Cole by strangling her to death that resulted in the murder conviction, rather than the fact that defendant took a polygraph test.
After a night on the town together, defendant and Cole went to defendant’s home. Once there, the two decided to go into the backyard spa. Defendant entered the spa naked and Cole wore panties and a t-shirt, which were later removed and tossed outside the spa. Defendant brought a rum bottle with him into the spa and both began to drink. Cole sat in defendant’s lap, facing away from him. She leaned backward, turned at an angle, and the two kissed. Defendant then inserted his finger into Cole’s vagina. Cole told defendant they were not going to have sex. Defendant’s next-door neighbor, Natividad Perez, overheard defendant’s raised voice angrily yell at Cole “bitch,” “Get up,” “Spread your legs,” and “I’m going to ‘fuck you in the ass.’”
When Cole refused, defendant grabbed her around the throat and strangled her. Perez heard a woman making gurgling sounds, followed by a thump. After Cole stopped struggling, defendant pushed her body out of the spa. He went inside his home and slept for several hours. The next morning, he saw Cole’s body lying on the cement outside the spa and called the police.
The medical evidence overwhelmingly demonstrated Cole died from strangulation and not as a result of a fall. An autopsy was performed on Cole’s body. The coroner determined the cause of death was strangulation. He ruled out the possibility that Cole died from a fall because Cole’s neck was not broken and there were no skull fractures. He opined that Cole’s injuries were more consistent with concussive, impact forces, rather than an accidental tumble—a person who had fallen would have sustained injuries on the highlight portions of the face, such as the nose and brows, and would only be injured on one side of the face.
Here, Cole had injuries on both sides of her face and on top of her head. The pathologist observed six separate lesions to her scalp, each caused by a separate impact.
On the front of her face was a small bruise on her chin, scraping and bruising on her lower lip, a tear and extensive bruising on the inside of her lips, and two small lacerations above her right eyebrow.
On the left side of her forehead, she had several small one-inch abrasions, and a small purple bruise. Inside her eyelids were areas of confluent hemorrhages, caused by the backup of blood flow to the area when her neck was squeezed. There was also bleeding inside her eyes.
The victim had several bruises around the base of her neck and her collarbone. There were bruises on the right side of her neck, just underneath the chin. There were four small oval bruises in the front of her neck, two on each side of her neck that were consistent with fingers being applied from behind. There were numerous hemorrhages in the muscles deep inside her neck. There was no post-mortem blood clotting, as asphyxia causes lack of oxygen which prevents clotting. There was bleeding on the side of her head caused by ruptured capillaries resulting from pressure building up inside the head when the jugular vein is compressed.
There was approximately one liter of fluid inside her stomach that Cole probably swallowed when she was being choked inside the spa. This was corroborated by the neighbor Perez who heard a gurgling noise. In cases of manual strangulation, it is usually the constriction of the carotid and jugular vein depriving the brain of oxygen that causes death, and not closure of the air passage. Thus, the swallowed fluid was consistent with strangulation.
The coup de grace was that defendant admitted he killed Cole. Defendant confessed to police that he choked Cole after she refused his sexual advances. Defendant also evinced consciousness of guilt when he told Cole’s best friend for 30 years, Mitzi Miller (Miller), that “‘he was off the hook’” for Cole’s death.
Based on the totality of the evidence, we conclude that the result would not have been different had the polygraph evidence been excluded. It was defendant’s confession and the overwhelming forensic evidence, and not the improper reference to the polygraph exam, that led to defendant’s murder conviction.
B. The Victim’s Prior Refusal of Defendant’s Earlier Sexual Overtures is Admissible Evidence.
During trial, the prosecution called Miller to the stand in its case-in-chief. Miller testified that approximately 18 years ago, Cole lived with defendant for a short period of time at his residence a few blocks away from her home. Miller was familiar with defendant because she had gone to defendant’s house to help Cole move out of his home. The prosecutor inquired what defendant’s demeanor was at that time. Miller stated that he seemed frustrated and angry that Cole was leaving.
On redirect, the prosecutor asked Miller, “On that day that you went to [defendant’s] home to help . . . Cole move out, did you notice anything about her physically? . . . did you notice any marks on her body?” Miller replied that she noticed a bruise on Cole’s face. The prosecutor continued, “[D]id she indicate to you why she was moving out?” Miller said that defendant kept propositioning Cole for sex and that “she did not want to do it.” When the prosecutor asked Miller, “Did she tell you where the bruise came from?” Miller answered, “He smacked her in the face.”
On appeal, defendant contends that Cole’s two statements to Miller (1) that she was moving out because defendant kept propositioning her for sex, and (2) that the bruise came from defendant smacking her in the face, are inadmissible hearsay, inadmissible character evidence, and improper corroboration. He also asserts that the statements were more prejudicial than probative under Evidence Code section 352. Finally, he complains that these statements prejudiced him because they undermined his defenses: (1) that the victim consented to penetration while in the spa, (2) he actually and reasonably believed she was sober enough to consent, (3) he was too drunk to penetrate her, (4) her accidental drunken fall in a wet area combined with his botched drunken rescue by grabbing her neck resulted in her death.
That is to say, he claims the juxtaposition of the two statements gave the jury the unmistakable impression that defendant smacked Cole because she refused to have sex, although there was no evidence that was true. He opines defendant could have smacked her for some other reason such as nonpayment of rent or leaving a messy bathroom.
1. Waiver.
To begin with, the two statements came in without objection. Failure to timely object to Cole’s prior statements on the grounds of hearsay and inadmissible character evidence waived the issue on appeal. (Evid. Code, § 353; People v. Barnett (1998) 17 Cal.4th 1044, 1121.) If defendant had objected, the trial court could have given a limiting instruction.
2. Ineffective Assistance of Counsel.
In arguing against waiver, defendant claims that his trial counsel rendered ineffective assistance as there could be no tactical reason for failing to object because counsel immediately brought up a prior fight Cole engaged in a week before her murder.
During recross, defense counsel engaged in the following line of questioning with Miller:
“[Defense Counsel]: And you told the officer that had occurred 18 years prior to her death; is that correct?
“[Miller]: Yes, sir.
“[Defense Counsel]: And had she ever moved back in with [defendant] in that [sic] 18 years?
“[Miller]: No, sir.
“[Defense Counsel]: Now, you know what her conduct was like. Had she ever gotten in fights with other people that you know of?
“[Prosecution]: Objection. Inadmissible character evidence.
“The Court: Overruled.
“[Miller]: Just her common-law husband. They would argue sometimes.
“[Defense Counsel]: And she caused a scene at a bar called Chappie’s about a week before that?
“[Prosecution]: Again, objection.
“The Court: Sustained. [¶] You want to approach?
“[Defense Counsel]: No, I will withdraw the question.
“The Court: All right.
“[Defense Counsel]: Do you know if she was involved in a fight
“[Prosecution]: Objection.
“[Defense Counsel]: —about a week before her death?
“[Prosecution]: Objection.
“The Court: Counsel, approach.”
Outside the presence of the jury, the trial judge said, “I don’t know where you’re going with it.” Defense counsel responded: “Well, he just asked about an incident that occurred 18 years prior to her death where [defendant] supposedly smacked her, and this lady had a conversation with . . . Cole about an incident that occurred one week prior to her death where she fell down—got drunk, fell down, and caused a scene at a bar. And I think that’s irrelevant because he’s already asked questions. We got Mother Teresa on one hand, and Mr. Violent Blair on the other hand, and that’s not the real picture that exists at all, because a week prior she was engaged in the same conduct.
The Court ruled: “Not being an advocate in the matter, I don’t see Mother Teresa or the Pope here, and I don’t think that—that is not the relevance of . . . Cole’s statements. The relevance is it goes to the issue of—of consent, which it is their burden of proof. I don’t see how this fight is relevant at all, other than to paint her as not Mother Teresa, and that’s not admissible . . . .”
To prove an ineffective assistance claim, a defendant must show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687, 692.) When evaluating the adequacy of counsel’s performance, a court asks whether counsel’s assistance was reasonable “under prevailing professional norms” and in light of all circumstances existing at “the time of counsel’s conduct.” (Id. at pp. 688-690.) To prove prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
There was no ineffective assistance because Cole’s two statements were admissible as nonhearsay, and under Evidence Code section 1101, subdivision (b). Moreover, the statements did not prejudice the defense because the jury heard that the victim was combative when drunk.
3. Standard of Review.
Even if the objections were not waived, Cole’s prior statements were admissible. Applying the abuse of discretion standard of review to a trial court’s ruling on the admissibility of evidence (People v. Hoyos (2007) 41 Cal.4th 872, 898), we find that the victim’s statements were admissible as nonhearsay circumstantial evidence of her state of mind and to prove lack of consent to an unlawful sexual act and motive pursuant to Evidence Code section 1101, subdivision (b).
While Cole’s statements were remote in time and somewhat prejudicial, it was not outside the bounds of reason to admit them, thus their admission was not an abuse of discretion. While reasonable minds may differ, we cannot say the trial court was unreasonable in admitting them under Evidence Code section 352.
4. Nonhearsay Statement.
Cole’s statement that defendant kept propositioning her for sex and that she did not want to do it was not admitted for the truth of the matter asserted. Rather, it was a nonhearsay statement which is circumstantial evidence that the victim did not consent to have sex with defendant when he propositioned her while they lived together. The statement is relevant to refute defense claims that the victim consented to have sex with him in the spa prior to her death. This would vitiate the unlawful penetration element of section 289, eliminating the grounds for the felony-murder rule.
Thus the hearsay state of mind exception is not applicable. (People v. Sanders (1995) 11 Cal.4th 475, 517.)
5. Evidence Code Section 1101, Subdivision (b).
Cole’s prior statement is also admissible under Evidence Code section 1101, subdivision (b). Defendant’s previous sexual proposition was relevant to prove whether defendant did not reasonably and in good faith believe that she consented to be sexually penetrated. In order to rebut defendant’s assertion that Cole consented to the rum bottle’s insertion into her vagina and anus, the prosecution could show that when defendant previously sexually propositioned her, she refused to the point of moving out of his home.
Evidence Code Section 1101, subdivision (b) provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Miller’s testimony regarding Cole’s second statement—that she received her bruise when “[h]e smacked her in the face” was inadmissible hearsay—it was an out-of-court statement offered for the truth of the matter that defendant hit her. However, it is admissible under Evidence Code section 1101, subdivision (b) to rebut defendant’s claim that Cole died accidentally by drowning or tripped and fell, and that there never was a struggle. The prosecution was entitled to bring up defendant’s prior bad act in order to refute the defense theory that Cole died accidentally. By showing motive and absence of accident—that defendant was frustrated and reacted angrily when she moved out after he propositioned her for sex—shows that it was unlikely that Cole consented and more likely that she rebuffed his demand that she “spread [her] legs” so he could “fuck her in the ass.” Defendant had a motive to strangle Cole—she had previously spurned him and he was going to subdue her by hitting and scratching her face and chest, and grabbing her neck to choke her. Thus, it was unlikely that she drunkenly tripped and fell.
C. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Motion for New Trial.
Defendant brought a motion for new trial on the grounds that the evidence was insufficient to convict and that the deputy district attorney committed prosecutorial misconduct. The defense claimed that the prosecutions failure in disclosing Perez’s prior felony convictions, made his testimony appear more credible than it was. Perez’s statements that he heard yelling about anal sex and a gurgling sound erroneously corroborated the pathologist’s equivocal opinion that Cole consented to the penetration.
Perez suffered three prior felonies: inflicting corporal injury on a spouse in 1997 and 1999 (§ 273.5) and for possessing a controlled substance in 1999. (Health & Saf. Code, § 11378.) All three are crimes of moral turpitude. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402; People v. Castro (1985) 38 Cal.3d 301, 317.)
The trial court denied defendant’s motion. Although it found the prosecution violated its Brady obligation in failing to turn over impeachment evidence favorable to defendant, it determined the evidence did not prejudice the defense, as Perez’s testimony was not as useful to the prosecution as the defense posited. It found it highly unlikely that the jury would have concluded the victim’s injuries were a result of consensual contact. The pathologist’s purported “equivocation” was in reality a professional open mindedness that allowed for the possibility of other explanations for the injury. It was not a statement that his opinion was wrong. Additionally, the trial court found there was sufficient evidence to support the conviction.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Defendant renews on appeal his contention that the prosecution committed misconduct. By failing to timely provide Perez’s rap sheet, the prosecution violated both state discovery statutes and federal Brady requirements, thus warranting a new trial. He asserts the trial court erroneously denied his motion for new trial because: (1) it did not correctly assess the damage based on all the evidence presented at trial, (2) any request for a mistrial would have been futile, (3) the parties’ stipulation to Perez’s convictions did not cure the damage, and (4) the stipulation unduly restricted cross-examination by depriving the jury the opportunity of assessing Perez’s demeanor.
He claims this was demonstrated by a juror’s question, “Since Mr. Perez (first witness) had such a violent past and was close to [the] scene should he have been questioned more?”
“‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (People v. Davis (1995) 10 Cal.4th 463, 524.) We find that the trial court did not abuse its discretion in denying defendant’s motion for new trial.
1. Violation of State Discovery Statute.
In order to prevail on appeal for a state pretrial discovery violation, “the defendant must establish that ‘“there is a reasonable probability that, had the evidence been disclosed . . . the result of the proceedings would have been different.”’ [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano).)
Section 1054.1 provides in relevant part: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney . . . . [¶] . . . [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.”
2. Brady violation.
Under Brady, supra, evidence favorable to the defense includes evidence which undermines the credibility of a prosecution witness. (United States v. Bagley (1985) 473 U.S. 667, 676 (Bagley).) “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 682.) Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. (Zambrano, supra, 41 Cal.4th at p. 132, citing Bagley, at pp. 682-683.) Evidence is material only if there is a reasonable probability of a different result. (Kyles v. Whitley (1995) 514 U.S. 419, 434; Bagley, at p. 678.)
To prevail on the basis of a federal Brady violation, a defendant must demonstrate (1) the evidence is favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) the People willfully or inadvertently suppressed the evidence, and (3) the defendant was prejudiced. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) A reversal is required only if “‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation.]” (Id. at p. 290.)
3. Lack of Prejudice.
For both state and federal discovery violations, an appellant is required to show the result would have been different if the evidence had not been suppressed. Under either the state or federal standard, we conclude that defendant has failed to show prejudice. (Zambrano, supra, 41 Cal.4th at pp. 1135-1136.)
Here, Perez’s prior felony convictions were clearly favorable to the defense, as it would have impeached a prosecution witness that heard the murder taking place. The trial court correctly assessed that the prosecution’s failure to timely provide the defense with Perez’s rap sheet was a discovery violation. However, that favorable evidence would not have put the case in a different light so as to undermine the confidence of the verdict.
The jury learned from the parties’ stipulation that Perez was a three-time convicted felon and that the prosecution failed to disclose his criminal background. The trial court instructed the jury that the prosecution committed the violation and that they were free to assess the weight and significance of that late disclosure of evidence. (Judicial Council of California Criminal Jury Instruction, CALCRIM No. 306.)
Whether it was relevant, deprived the defense of the ability to counter the evidence, and whether defendant received a fair trial.
In his closing argument, defense counsel argued that the jurors should discount Perez’s testimony because a convicted felon is not a credible witness. He stated, “[W]hy do I think it is important? . . . We got a guy out there who’s convicted of dealing drugs, possession with the intent to sell, and domestic violence. He’s a wife beater. Now, does that in and of itself make him disbelieveable [sic]? [¶] Well, maybe not, but listen to what he said,” then counsel summarized Perez’s testimony. Counsel continued, “I got to wonder about Natividad Perez. But, see, I didn’t have the opportunity to confront him with those felony convictions, to ask him about his truthfulness, to see what his reaction would be on the witness stand. Remember that laundry list I just presented you with? I couldn’t tell you—I couldn’t show you how he would react on the witness stand because they didn’t let me know about those convictions. That deprives us of a fair trial. That deprives us of the right to present that witness in his full and unvarnished glory to you. [¶] Because when Natividad Perez got up there on the witness stand and swore to tell the truth, he sounded like Joe average. And he said, This is what I heard, and I’m a good citizen, and I’m coming forth with the truth. [¶] And it turns out he’s not only not a good citizen, but he may not have been telling the truth.”
Defense counsel’s strongly worded argument highlighted for the jury Perez’s “shady” background and urged them to discount all of his testimony as he was not credible. On this record, it appears that Perez’s credibility was not the touchstone upon which defendant’s conviction rested. Rather, it was the strength of the medical evidence that the jury was focused on, and not Perez’s testimony that resulted in the jury finding true the murder was committed during a rape by instrument.
The jury asked for a readback of the entirety of the pathologist’s testimony.
The forensic pathologist testified that Cole sustained several injuries that were not consistent with consensual sex. The pathologist observed bruising circumferentially around her anal sphincter. There was also a tear in the anal sphincter’s mucosa that was one-quarter of an inch long. Several injuries were inflicted upon her vaginal area: there was a laceration one-quarter of an inch long and one-sixteenth of an inch deep on her left labia, and there was bruising around the urethral opening. There was dried blood throughout the anal and vaginal area. Small bruises on the upper thigh, just outside of the vaginal area, were consistent with fingers.
Cole had had multiple abrasions in the middle of her chest. Below her left breast she had multiple horizontal red and brown abrasions. Two vertical red and brown abrasions were on the left side of her chest. The injuries were fresh in appearance, as they were red and purple and were not scabbed or multicolored.
The expert opined that the injuries would have caused pain to the victim. He also believed that the bruises most likely resulted from several strikes of blunt force impact. In his professional judgment, the force needed to cause the bruising would have been more than necessary to simply insert the bottle into the body’s orifices.
It was the overwhelming force of the medical evidence that there was an unlawful penetration that occurred at the time of the murder. The medical evidence vividly demonstrated the lack of consent of the victim’s part. Perez’s additional statement that defendant said, “Spread your legs,” “I’m going to fuck you in the ass” merely corroborated the undisputed medical evidence that defendant forced an instrument into Cole’s bodily cavities.
We conclude that the trial court did not abuse its discretion in denying defendant’s motion for new trial, as the suppression of Perez’s felonies could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.
D. The Instructions Properly Required the Jury to Find that the Victim Was Alive at the Time of the Sexual Assault.
Defendant contends that the trial court failed to comply with its sua sponte duty to instruct on all elements of section 289, the predicate crime for felony murder and special circumstance. He complains that the trial court committed prejudicial error because it did not instruct the jury that the rape victim had to be alive during the unlawful penetration. He also asserts that there was sufficient evidence to instruct on the defense theory of the case that defendant penetrated Cole only after he strangled her for rebuffing his sexual advances, thus it should have instructed on the element that the victim must be alive at the time of the crime.
At the outset, we note that the defense never argued, nor did it rely on the theory that defendant penetrated Cole after she died. Indeed, it argued the opposite: Cole, a practiced drunk who could handle being intoxicated, consented to sex play with the rum bottle and the two “got a little frisky.”
“[A] trial court has a duty to instruct, sua sponte, ‘on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.’ [Citation.] This includes the duty to give instructions concerning defenses on which the defendant relies or which are not inconsistent with the defendant’s theory of the case. [Citation.] The trial court has no duty to instruct on a defense that is not supported by substantial evidence. [Citation.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) As the defense theory at trial was that Cole consented to the penetration, it would have been inconsistent with the defense’s claims to give an instruction on the theory that defendant penetrated Cole only after she died. (See People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter).)
Unlike the case of People v. Sellers (1988) 203 Cal.App.3d 1042, 1051, cited by defendant, counsel here never advanced the defense theory that intercourse occurred after death—the only issue was that Cole consented to the penetration. Nor was there any evidence to support that theory—defendant did not testify at trial and never admitted any prior statements that he had sex with Cole’s body after she died.
The medical evidence showed that the unlawful penetration to the victim occurred first, and then the death occurred, and not the other way around. The vaginal and anal injuries had a fresh appearance—the abrasions were red and the contusions were purple—as would occur when a person is alive. Cole had tears in her vagina and anus and dried blood in that area. The pathologist testified blood would not have oozed out of the lacerations unless the victim’s heart had continued beating for a short time after her death.
Moreover, the legal issue of whether a trial court must instruct that the rape must take place before death has already been resolved. In Carpenter, supra, the California Supreme Court held instructing a jury that rape requires intercourse “‘against the will’” of the victim “‘accomplished by means of fear of immediate and unlawful bodily injury to such person’” implies that the victim must be alive, as a dead body can neither have a “will” nor can it “fear bodily injury.” (Carpenter, supra, 15 Cal.4th at p. 391.)
Similarly here, rape by instrument must occur prior to the victim’s death. The trial court properly instructed the jury that Cole had to be alive at the time the sexual penetration took place. As respondent notes, the trial court gave CALCRIM Nos. 521 and 540A which required the jury to find the murder was committed during the course of an unlawful sexual penetration. It also gave CALCRIM No. 1045 that required the jury to find the victim did not consent; defendant accomplished the act by force, violence, duress, menace or fear of bodily injury. As in Carpenter, supra, a victim of rape by instrument cannot consent or feel fear or duress unless she is alive. Finally, the trial court gave CALCRIM No. 1047, which implied that only a live person, and not a dead body, could be intoxicated to the point that she was unable to resist.
In light of the instructions as a whole, we conclude it was not reasonably likely that the jury would have been misinformed that the death could have preceded the sexual assault.
E. Defendant Was Properly Sentenced to the Upper Term on the Firearm Conviction.
Defendant maintains that the trial court improperly sentenced him to the upper term for his firearm conviction based upon the fact that he was on probation at the time of the murder. We disagree.
The Sixth Amendment compels any fact, which exposes a defendant to a greater potential sentence, be found by a jury—not a judge—and established beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 835, citing, Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 863-864] (Cunningham).) Under Cunningham, the midterm was the “statutory maximum” that a judge may impose based on the facts found in the jury’s verdict alone, without a judge finding any additional aggravating facts. (Cunningham, at pp. 870-871.)
However, a trial judge is not limited to the midterm and thus may impose the upper term in two instances: (1) if a defendant admits a fact, or (2) a defendant has suffered a prior conviction. (People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.)
The exception to the jury trial right for prior convictions, “is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a ‘violent’ felony) that renders the defendant subject to an enhanced sentence.” (People v. McGee (2006) 38 Cal.4th 682, 704 (McGee).) There is a difference between “sentence enhancements that require fact-finding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’—a task identified by Apprendi as one for the jury—and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’” (Id. at p. 709.)
McGee, supra, 38 Cal.4th at pp. 700-701, specifically approved cases such as People v. Thomas (2001) 91 Cal.App.4th 212, 222-223, which held that: “In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres [(1998) 523 U.S. 224] is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, ‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id. at pp. 222-223)
Recently, the court in People v. Black (2007) 41 Cal.4th 799, 820 again reiterated that Almendarez-Torres should be read expansively to include issues related to a prior conviction that can be determined by examining the records of the prior convictions: “As we recognized in McGee, supra, numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citation.]” (Id. at p. 819, fn. omitted.) Defendant’s criminal history, the court concluded, established an aggravating circumstance that satisfied the Sixth Amendment and rendered him eligible for the upper term. (Id. at p. 819, fn. omitted.)
McGee and Thomas make it clear that the fact that defendant was on probation or parole at the time of the current offense is a fact intrinsically related to a prior conviction, and may be found by the trial court. Once having found that fact, the trial court may properly use it to impose an upper term sentence without violating Cunningham. We therefore find that the trial court did not indulge in the kind of improper factfinding which Cunningham subsequently held was a violation of the Sixth Amendment right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., GAUT, J.