Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Morris B. Jones, Judge. Los Angeles County Super. Ct. No. BA260939.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Sonya Roth, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Michael Brownlee appeals from the judgment entered after a jury convicted him of two counts of rape and one count of false imprisonment. We affirm, holding that: (1) the trial court did not err by finding the victim was unavailable to testify, thereby allowing in evidence her testimony from two previous trials; and (2) the jury instruction concerning evidence of certain prior sexual assaults by Brownlee was proper.
Because the facts underlying the crimes are not relevant to the issues on appeal, we summarize them.
In February 2004, 17-year-old A.R. and her one-year-old daughter left the foster care group home where they were living and, through a series of circumstances not relevant here, found themselves in a Hollywood motel with Michael Brownlee. Brownlee wanted to become A.’s pimp, and raped her several times over the next few days, sometimes at knifepoint, when she refused to become his prostitute. Brownlee was charged with two counts of rape, one count of false imprisonment, and one count of making terrorist threats. At trial, A.R. refused to testify. The court found her unavailable as a witness and allowed her previous testimony in evidence. There was also evidence from three women who claimed Brownlee had raped them. Two of those claimed he had also asked them to prostitute for him. A jury acquitted Brownlee of making terrorist threats, but convicted him of the other three counts.
This was Brownlee’s third trial. The first ended in a mistrial due to a hung jury. The second resulted in his conviction on all counts, but we reversed because the trial court erred during the jury deliberations when it refused to allow the jury to re-read portions of A.’s testimony. (People v. Brownlee (Oct. 24, 2006, B184924) [nonpub. opn.] (Brownlee I).)
Brownlee contends the trial court erred by finding A. was unavailable to testify, and that the CALCRIM No. 1191 instruction on evaluating the testimony of his other sexual assault victims violated his constitutional due process rights.
DISCUSSION
1. No Error In Finding A. Was Unavailable to Testify
Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right to confront and cross-examine adverse witnesses. The right is not absolute, however. If a witness is unavailable at trial, but testified against and was subject to cross-examination by the same defendant at an earlier trial, the previous testimony may be admitted. (People v. Smith (2003) 30 Cal.4th 581, 609; Evid. Code, § 1291.) A witness who is present in court but refuses to testify may be deemed unavailable for this purpose. (Smith, at pp. 623-624.) Before making that finding, however, the trial court must take “reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing.” (Id. at p. 624, citations and internal quotation marks omitted.)
Under questioning by the prosecutor, A. said that for the past year she had made clear her refusal to testify. According to A., she now had five children in her care, testifying again would cause her great emotional pain and leave her a “wreck,” and she did not want to put herself or her family through all of that. A. said her mother had been trying without success to convince her to testify, and that there was nothing anybody could do to make her testify. A. said she was “tired of going through with it. If the jury believes me, the jury believes me. The first time I know it was a hung jury, and the second time they found something, and so I just believe in God, and I believe God will do his will.” As a sexual assault victim, A. could not be jailed for contempt for her refusal to testify. (Code Civ. Proc., § 1219, subd. (b).) Defense counsel asked if she was aware the court could fine her for refusing to testify, and A. said she was willing to accept a fine, even one as high as $1,000, rather than testify again.
The court then questioned A. She reaffirmed her refusal to testify even if fined $1,000. She told the court that even though she understood she could be found in contempt and that a more severe type of punishment could be imposed, she still refused to testify. The court asked A. to explain her belief that God’s will would prevail. She replied that she was relying on that belief, not the judicial system, as the motivation for her decision. A. then agreed it was her “absolute contention that under no circumstances would [she] be willing to testify in this matter.” Based on that, the court found her unavailable and allowed her earlier testimony in evidence.
Brownlee contends this was insufficient to support a finding of unavailability. Instead, he contends the trial court should have held A. in contempt, conditionally imposed a fine, and advised her of the many court appearances she would have to make as part of a criminal contempt proceeding. On nearly identical facts, the court in People v. Smith, supra, 30 Cal.4th 581, disagreed. The witness there was also a sexual assault victim who could not be jailed for refusing to testify. She wanted to tell the jury the punishment she believed the defendant should receive, but such evidence was not admissible. Therefore, she refused to testify even after being cautioned about the prospect of being sanctioned and held in criminal contempt. On appeal, the defendant argued the trial court should have at least fined the witness, but the Supreme Court rejected that notion, holding that “[t]rial courts do not have to take extreme actions before making a finding of unavailability.” (Smith, at p. 624, citation and internal quotation marks omitted.)
Based on the holding in Smith, we hold that the trial court properly found A. was unavailable to testify and did not err by allowing her previous testimony in evidence.
2. CALCRIM No. 1191 Is Constitutional
In connection with the testimony of Brownlee’s three other rape victims, the jury was instructed with CALCRIM No. 1191. The instruction cautions the jury that it may only consider the evidence if it finds true by a preponderance of the evidence that Brownlee committed those uncharged crimes, and defines that burden of proof. If the burden of proof is not met, the jury was told it had to entirely disregard the evidence. The instruction then told the jury that if it found Brownlee had committed those uncharged crimes, it may, but was not required to, “conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit, and did commit,” the offenses charged in this case. If so, however, that was only one factor to consider along with all the other evidence, and was not sufficient by itself to prove that Brownlee committed the charged offenses. Finally, the instruction reminded the jury that the prosecution had to prove beyond a reasonable doubt the charges for which Brownlee was being tried.
Brownlee contends this instruction violated his constitutional due process rights. Our courts have already considered and rejected that contention, and we join them in doing so here. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [approving CALJIC No. 2.50.01, the nearly identical predecessor version of CALCRIM No. 1191]; People v. Cromp (2007) 153 Cal.App.4th 476, 480 [applying Reliford reasoning to hold CALCRIM No. 1191 constitutional].)
In Brownlee I, supra, we rejected this same contention in regard to CALJIC No. 2.50.01, as well as a companion contention that the introduction of the prior rape evidence itself was a constitutional violation. (Brownlee I, supra, B184924 at pp. 1-2.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.