Opinion
A148576
01-04-2019
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO ELLISON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 51213404)
In August 2002, 18-year-old Jane Doe was raped by multiple men. Fourteen years later, a jury convicted defendant Orlando Ellison of her rape. He asserts a multitude of alleged errors on appeal, including that his prosecution was barred by the statute of limitations, various evidentiary errors, prosecutorial misconduct, ineffective assistance of counsel, and erroneous denial of his motion to dismiss based on preaccusation delay. We conclude that none of his arguments has merit, and we affirm.
BACKGROUND
Evidence at Trial
Jane Doe
In the summer of 2002, Jane Doe was 18 years old, had recently graduated from high school, and was living with her parents in Pittsburg and Antioch. On three or four occasions, she and her best friend, Tennille Gresham, had spent time hanging out at an apartment in Antioch, where Gresham introduced her to a group of men. The men included Alphonso Wilson, who lived at the apartment; defendant, who was Wilson's cousin and was staying at the apartment for two months; Brian Bickham, whom Doe knew in passing from school and whom Gresham had previously dated; and Lorenzo Preston, who was Bickham's cousin. At the apartment, the group would play video games, listen to music, smoke, and drink alcohol. Before the night of the rape, Doe had not been to the apartment for a week or two, and she had never gone there by herself.
On August 4, Doe was upset because she and her boyfriend had broken up that morning. That afternoon, she spoke with Gresham, who convinced her to go out instead of sitting around and moping. They agreed to meet at the apartment in the early evening, but when Doe got there, Gresham had not yet arrived. Defendant, Bickham, Wilson, Preston, and one other man were there, some sleeping, others smoking marijuana and playing video games.
Others testified Isaac Prince, a friend of defendant's, was there that evening.
After a while, Doe, Bickham, and Preston drove to a nearby liquor store, where they ran into Gresham, who was with her boyfriend and Doe's (now ex-) boyfriend. Following a minor confrontation, Doe, Bickham, and Preston returned to the apartment with cigarettes and a bottle of rum.
It was stipulated that, contrary to Doe's recollection, Gresham's boyfriend was in fact incarcerated at the time.
Once back at the apartment, defendant offered Doe some Kool-Aid, which she drank. Bickham poured some rum into her glass, and she drank that too. According to Doe, she did not drink much alcohol because she was still planning on going out with Gresham.
All of a sudden, Doe felt "hot and dizzy," so she went to the bathroom and splashed water on her face. Her recollection of what followed was spotty, as she was slipping in and out of consciousness. She remembered Bickham coming in and defendant standing in the doorway, both asking if she was okay and laughing because they thought it was funny. The rest of her memories were "flashes"—seeing faces, Bickham on one side of her and defendant on the other trying to hold her up, feeling Bickham and defendant grabbing her, being moved around, coughing up water, hearing Bickham and defendant, opening her eyes and seeing Gresham slapping her, and finally waking up in the hospital.
At the hospital, Doe submitted to a sexual assault examination. She "flipped out" and was "screaming and crying" when she found out she had been sexually assaulted. She had no romantic interest in the men at the apartment and would not have agreed to have sex, which was the furthest thing from her mind and was "just not [her] character." She denied ever having had consensual sex with defendant.
Tennille Gresham
Gresham testified that she and Doe made a plan to meet at the apartment the evening of August 4, but instead they ran into each other at a liquor store, she with Doe's ex-boyfriend, Doe with a few men from the apartment. When Gresham returned home later that evening, her mother told her Doe had left several unintelligible messages on the answering machine and she should go check on her.
Gresham and a friend went to the apartment and initially did not see either Doe or Bickham. As they sat on the couch while the men partied, Gresham observed men going back and forth to the bathroom. She got up to use the bathroom but was turned away by two or three men who were listening at the bathroom door and laughing. Returning to the living room, she told her friend she thought there was a girl in the bathroom. After more time passed, the two women went to see who was in there. Inside, they found Doe unconscious and bent backwards over the side of the bathtub, her bra pulled up, her pants pulled down, and semen on her thighs and stomach.
Gresham confronted the men about what had happened to Doe and said she was going to get help. After briefly being obstructed, Gresham and her friend were able to leave the apartment. They later returned with Doe's ex-boyfriend, who kicked in the front door. Doe was no longer there, but the men who were there said they would bring her back if Gresham would let it all go.
Police Investigation
Antioch police officers responded to the apartment at 3:03 a.m. on August 5, where an officer interviewed Gresham and her friend. Gresham told the officer she went to the apartment at 1:15 a.m. She was prohibited from entering the bathroom, and Bickham later emerged. He would not let anyone leave and pushed Gresham's friend down onto the couch. Gresham left the apartment at 1:40 a.m.
Antioch police officer Michael Schneider arrived at the apartment at 9:00 a.m. to collect evidence. On the kitchen counter, there were several drinking and shot glasses with apparent punch residue in the bottom. There was also a garbage can with an empty bottle of Bacardi rum and an empty bottle of Sierra Tiki Punch on top. Underneath those bottles, there was a crushed drink cup and another bottle. Next, there was "miscellaneous junk," including an old newspaper and a broken plate.
About 10 inches below the rum and punch bottles, condom wrappers and used condoms were scattered amongst the garbage. There were four Lifestyle Tuxedo Black wrappers (assigned evidence numbers E-22, E-24, E-27, and E-28), two whole Durex wrappers (E-23 and E-26), and half of a Durex wrapper (E-25). There were two black condoms (E-31 and E-32), two clear condoms (E-29 and E-33), and one clear, partial condom (E-30). The condoms were not all bunched together, with the two clear condoms and some wrappers the first ones visible as Officer Schneider dug into the garbage can past the miscellaneous garbage. Asked where the remaining condoms were in relation to the first condoms, Officer Schneider answered: "The first ones I noticed were approximately a quarter of the way down. These are all approximations, okay. The other ones were below that, but not—not two-thirds down, but more towards the bottom. They're all in the same general area, but the other ones were below the first ones, which were about a quarter of the way."
Officer Schneider also collected evidence from the hallway bathroom. Underneath the rug, there was half of a condom wrapper (E-21) that appeared to be the other half of the half-wrapper found in the kitchen garbage can. In the garbage can, there was a clear, used condom, which Officer Schneider numbered E-34, although he mistakenly designated it E-29 in his report. He "believ[ed]" E-34 was a complete condom, and it appeared to be a Durex brand.
In one of the bedrooms, there was a wallet and other paperwork identifying Wilson as the owner. Next to the identification, there was an unused Durex condom.
Investigation by Antioch Police Detective Augusta
Antioch police detective Vince Augusta was the lead investigator assigned to the case. Around 12:15 p.m. on August 5, he interviewed defendant who, along with Wilson and Prince, had been arrested earlier that morning. In the interview, he asked defendant if he knew Doe, and defendant answered he had met her about a month earlier when Wilson invited her and Gresham to the apartment. As to what had happened the previous night, defendant said Doe had shown up with Bickham and Preston and was already intoxicated. The three of them left to go to the store and came back with rum, which Doe and Bickham proceeded to drink. Doe got up and went to the bathroom, with Bickham following 10 seconds later. After about 15 or 20 minutes, Bickham came out and Preston went in. Defendant realized they had been in the bathroom for a while with doors slamming, so he went to see what was going on. He found Doe sprawled out over the tub with her legs spread apart. Defendant and Wilson helped put her clothes on and asked Bickham what he was doing. Bickham, who was drunk, said he was going to take her home, and then Gresham arrived, saw Doe's condition, panicked, and left to get help. Bickham left with Doe; when he returned, he said he had left her near her home. Defendant, Wilson, and Prince decided they should look for her, so they left, eventually finding her and taking her home.
Two hours after the initial interview, and having now learned that used condoms had been found in the apartment, Detective Augusta interviewed defendant again. He asked defendant if he knew anything about the condoms, and defendant answered that Bickham may have used one and Wilson used one for sure. When asked if he knew anything about the condoms found in the kitchen garbage can, defendant responded, "Nah."
Detective Augusta submitted Doe's vaginal swab from the sexual assault examination for DNA testing, and a February 24, 2003 report cleared defendant, Prince, and Wilson as donors of DNA found on the swab. In light of this result, Detective Augusta no longer considered the three of them suspects, focusing his investigation on Bickham and Preston. In August 2003, after minimal—and admittedly poor—police work, Detective Augusta suspended his investigation.
Detective Augusta testified he "jumped the gun" and "didn't look at the big picture" when he neglected to submit the condoms for DNA analysis at the same time he submitted Doe's vaginal swab. In closing argument, the prosecutor described the investigation as "shoddy" and "terrible."
2009-2012 Investigation
In 2009, Antioch police officer Danielle Joannides was assigned to reopen the case after a "CODIS hit" linked Bickham to DNA collected following the 2002 rape. In 2011, she submitted the condoms from the apartment for DNA testing. The results identified defendant and Doe as the sources of DNA on one of the condoms. In light of this, on September 13, 2011, Officer Joannides interviewed defendant at his apartment in Sacramento. Before interviewing him, she reviewed the statement he gave immediately following the rape and realized he had not been asked if he had had any relationship, sexual or otherwise, with Doe. During the interview, she did not reveal that DNA evidence linked him to a condom recovered from the apartment.
When Officer Joannides showed up, defendant said he had a sense of what she wanted to talk about because he had "been hearing a lot of . . . stuff from Bickham, who had called him out of the blue about two weeks earlier. She asked defendant if he knew Doe, and he claimed he did not remember her. Asked what he remembered from the day of the incident, defendant said he did not remember anything, and he repeated that he did not remember Doe because "it was just too long ago." As to whether he had a relationship with Doe, "like, boyfriend/girlfriend type of relationship," defendant said, "Naw, it wasn't a boyfriend/girlfriend or anything. Like, she just was coming to visit our home a few times." Expressly asked if he ever had sex with Doe "at all," defendant answered, "No, I'm not—not that I—I don't remember . . . . I don't remember anything. It's been too long for me to even . . . [¶] . . . [¶] . . . remember anything." Asked if it was possible they may have had sex, he answered, "I don't remember. I don't recall anything honestly. I'm just being perfectly honest with you." In response to Officer Joannides confirming defendant's statement that he did not know if he had, or remember ever having, a relationship with Doe, defendant answered, "No, I didn't. I don't—I mean, she was just a friend of ours and, ah, you know, she was coming but she knew Brian or whatnot."
Defendant then told Officer Joannides he did remember asking Bickham what happened because Doe was unconscious in the bathroom, adding: "[S]he was very responsive with me and everybody else before her and Brian had went to the bathroom and whatnot. And when he came out, he didn't have nothing to say to me and he left out of the house, you know what I mean? When he left, his cousin had already ran and left out also, you know what I mean? So it was just me and my cousin left. And we called him to come back. He did come back and, you know, we told him, you know what I mean, you need to take her to her mother or you need to—we need to call the police and we need to get the police here. So he ended up taking her. And what he did was he dropped her off somewhere. So that left—that left it to, you know, now, okay, her brother come in and kicking our door, where's our sister? So now it's left up to me and my cousin to find her. So we went out and I called Brian and he told me he dropped her off in her car somewhere and we went out and found her in her car. And my cousin got in and I followed and we took her to her home and dropped her off to her parents." At the house, the police asked them some questions and told them to come down to the police station, where they were arrested.
Officer Joannides again asked defendant about him and Doe, and he answered that "she was only around, like, maybe—I don't even remember how many days but I know she was around for a little while, her and her friend, like, they would come over to our house" and hang out. She asked if there was any reason his DNA "would be anywhere on her, in her, any of those," and he answered, "I don't know—recall none of—none of that, it shouldn't. No." She asked if it was "possible that you guys did this around back then? 'Cause I know it's a long time," and he agreed it was possible. Asked if it would have been "that day," a day before, or a couple of days before, defendant responded that it was not that day. Pressed as to when it was, defendant answered, "I don't—I don't even remember that. I—I don't remember. I just—I just—all I remember really is just walking in and just seeing her." Officer Joannides sought to clarify that defendant was saying although he did not remember, he possibly had a relationship with Doe before that night, and he responded that what he remembered was them talking. Again asked if they had a sexual relationship, defendant said he could not recall. When he persisted in answering that he really did not remember, she asked if it was possible, and he said, "It could be possible."
Forensic Evidence
Based on a sample of Doe's blood taken at 3:23 p.m. on August 5, as well as Doe's weight and the average burn off rate, it was estimated that her blood-alcohol concentration was 0.31 percent the night before.
DNA found on Doe's underwear matched Bickham and Preston.
Condom E-29, found in the kitchen garbage can, contained defendant's DNA on the inside and Doe's DNA on the outside. There was a pinkish-red waxy substance on the outside of the condom. The substance, which was not tested, behaved more like lipstick than soda, which would typically be sticky. The substance could have been the same reddish liquid seen in a photograph of the clear condoms Officer Schneider found in the garbage can.
Condom E-33, also found in the kitchen garbage can, contained Bickham's and Doe's DNA on the inside and Preston's DNA on the outside.
Condom E-34, found in the bathroom garbage, contained Bickham's and Doe's DNA on the inside and Doe's DNA on the outside.
The two black condoms recovered from the kitchen garbage can (E-31 and E-32) contained Wilson's DNA on one side and an unknown woman's DNA on the other.
Alphonso Wilson
Wilson testified as a witness for the defense. He described how on the night in question, Doe, Bickham, and Preston went to the store and returned with a bottle of rum, which they started drinking at the table. Bickham was pouring Doe large cups of rum that she was gulping down.
At one point, Doe went to the bathroom by herself. Bickham followed her, and Wilson later noticed Preston was no longer at the table.
Wilson realized that Doe was very intoxicated, and either he or defendant attempted to reach Gresham to tell her to come get Doe. Gresham did not answer the call, but she and a friend soon appeared at the apartment. Wilson told them Doe was in the bathroom. Gresham attempted to open the door, but it was locked so Wilson tried to open it with a butter knife. Eventually, the door opened, and Preston and then Bickham walked out.
Gresham became hysterical when she saw Doe. Bickham, who was also hysterical and very aggressive, initially blocked Gresham and her friend from leaving the apartment, although they were able to leave a few minutes later. Bickham then gathered up Doe and walked her out of the apartment.
Defendant, Wilson, and defendant's friend Prince were leaving the apartment when they encountered Bickham, who told them he had dropped Doe off at some location. The three of them drove off in search of her, eventually locating her passed out in her car. They took her home, where they encountered the police. After directing the police to the spot where they found her, they went to the police station and were taken into custody.
Wilson testified that about two or three days before the incident, he had walked into his bedroom to find the bed disheveled and Doe and defendant getting dressed. He had never seen Doe naked before so it was hard to forget. He did not mention it to Detective Augusta in 2002 because he was never asked about it.
Defendant
Defendant testified in his own defense, as follows:
In the summer of 2002, he had just moved back from Tennessee and was temporarily staying with Wilson at the apartment. He had met Doe before the incident, and she had displayed an interest in him during previous visits to the apartment, lying down in his lap while they watched a movie. One day, she dropped by when he was home alone. Because defendant did not have a bed of his own, they had sex in Wilson's bed. They used a condom, which he threw in the kitchen garbage can. After Wilson came in, Doe got dressed and left.
Defendant described how on the night of August 4, Doe was drinking a lot of rum with Bickham and Preston. As he was playing a video game in the living room, Wilson told him he thought Doe, Bickham, and Preston were all in the bathroom. Defendant had already told Doe to slow down with the alcohol and was worried about her driving, so he called Gresham, although he did not recall if he spoke to her or left a message.
Gresham and a friend showed up, and defendant directed them to the bathroom, where Wilson was already at the door trying to get in. Defendant knocked on the door, telling the occupants to come out. Preston came out first, followed by Bickham. Inside, Doe was sitting with her back up against the tub, partially clothed. Defendant was angry at Bickham, who was trying to leave the apartment, and wanted him to take Doe home rather than leaving her there. After Gresham and her friend left, defendant and Wilson helped Bickham get Doe dressed, and then Bickham left the apartment with her.
Prince subsequently left the apartment, and defendant and Wilson were "just chillin' " when four men with ski masks and guns broke in, demanded to know where their sister was, stole some items, and left. Defendant called Prince and told him to come back because defendant and Wilson wanted a ride so they could get away from the apartment. Right after Prince returned, Bickham showed up and told them he had dropped Doe off by a construction site in Antioch. Defendant, Wilson, and Prince left to find her, driving around for about three hours until they eventually located her in her car and drove her home.
The police pulled up when the three men were dropping Doe off. They briefly described to an officer what had happened, escorted the officer to where they had found her, and then followed the officer to the police station, where they were all arrested. They were released that day, and a few months later, defendant was told he was no longer a suspect.
When Officer Joannides contacted him years later, she told him he was not in trouble but she had questions regarding Bickham and Preston, who were going to trial soon. Towards the end of their conversation, she asked a few questions about Doe. Defendant said it was possible he may have had sex with her prior to the rape. She also asked him about any of his DNA found on Doe, which he did not know anything about. When she mentioned DNA, he said he wanted to get an attorney. No one had previously asked if he had sex with Doe, and he denied he had sex with her on the night of the rape.
Defendant acknowledged he did not tell Detective Augusta he had sex with Doe a few days before the incident. When the detective asked him if he knew anything about the condoms in the kitchen garbage can, he had said no because he thought the detective was talking about the night of the incident. He denied attempting to clean up the apartment after the incident or moving any condoms or wrappers from the bathroom to the kitchen garbage.
On recall, Doe denied ever cuddling or having consensual sex with defendant, and she denied ever flirting with him or anyone else in the apartment.
Procedural Background
On June 12, 2012, the District Attorney of Contra Costa County filed a complaint charging defendant, Bickham, and Preston with three counts each of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3) ).
All statutory references are to the Penal Code except where otherwise noted.
In an information filed on May 7, 2014, defendant was charged with three counts of rape of an intoxicated person (one count as the perpetrator, two counts as an aider and abettor).
On March 8, 2016, a jury convicted defendant of one count of rape of an intoxicated person and acquitted him of the two aiding and abetting charges. He was sentenced to four years' probation, with 365 days in county jail and credit for time served.
Bickham and Preston were jointly tried in 2012. They were both found guilty of one count of rape of an intoxicated person. Bickham was sentenced to six years in state prison, Preston eight years. In 2015, we affirmed their judgments of conviction. (People v. Bickham (Aug. 31, 2015, A137657) [nonpub.].)
This timely appeal followed.
DEFENDANT'S ARGUMENTS
Defendant asserts that the following 11 errors require reversal of his conviction: (1) his prosecution was barred by the statute of limitations; (2) the trial court erred when it excluded evidence that Doe had condoms in her car and was pregnant the night of the incident; (3) the exclusion of impeachment evidence violated his Sixth Amendment right to confrontation and cross-examination; (4) the prosecutor failed to establish the chain of custody as to the condom containing his DNA; (5) the prosecutor committed misconduct when he misstated facts regarding the condom evidence; (6) the prosecutor committed misconduct when he suggested the jury use defendant's felony conviction to find that he was a bad person; (7) defendant did not forfeit his prosecutorial misconduct challenges by his counsel's failure to assert timely objections; (8) the prosecutor committed misconduct and deprived him of his right to trial by jury during closing argument; (9) defense counsel provided ineffective assistance when he failed to obtain a ruling on the admissibility of defendant's felony conviction before placing the conviction before the jury; (10) the trial court erred when it denied his motion to dismiss for delay in prosecution; and (11) cumulative error deprived him of his right to a fair trial.
DISCUSSION
The Charges Against Defendant Were Not Barred by the Statute of Limitations
Background
As noted, the rape of Jane Doe occurred in August 2002. The complaint charging defendant with her rape was filed on June 12, 2012. At a preliminary hearing in April 2014, defense counsel moved to dismiss the charges on the ground they were time-barred because the prosecution was commenced well outside what counsel contended was a six- year statute of limitations. The trial court denied the motion, and an information was filed on May 7, 2014, nearly 12 years after the sexual assault.
At the time of the offense, the statute of limitations for a violation of section 261, subdivision (a)(3) was six years. (§ 800.) In 2005, the limitations period was increased to 10 years. (§ 801.1, subd. (b).) The 10-year period applied here because the charges against defendant were not time-barred at the time the limitations period was extended. (§ 803.6, subd. (b) ["Any change in time period for the commencement of prosecution described in this chapter applies to any crime if prosecution for the crime was not barred on the effective date of the change by the statute of limitations in effect immediately prior to the effective date of the change"]; see also People v. Hollie (2010) 180 Cal.App.4th 1262, 1272-1273.)
In his opening brief, defendant acknowledges the 10-year statute of limitations but nevertheless renews his claim that the prosecution was time-barred, this time arguing that the complaint, which was filed within 10 years of the offense, was inadequate to toll the statute of limitations because a complaint only suffices for a misdemeanor charge, and the information was filed 12 years after the incident—and thus outside the limitations period.
In their respondent's brief, the People argued the prosecution was timely pursuant to section 804, subdivision (c), which provides that prosecution commences when defendant is arraigned on a complaint that charges him with a felony. According to the People, court minutes from July 1, 2012, show that on that date, defendant waived formal arraignment and entered a plea of not guilty and was thus arraigned within 10 years of the August 5, 2012 sexual assault.
In his reply brief, defendant challenges the factual support for the People's claim, pointing out that the minutes on which they were relying suggested at first glance a July 1, 2012 arraignment based on a handwritten date at the top of the page. However, closer examination revealed that the trial court signed the document on July 1, 2013, and the minutes bear a date stamp of July 2, 2013. Defendant also identified other events in the trial court docket that confirm he was in fact arraigned in July 2013—not July 2012—and thus outside the limitations period.
The People conceded the merit of defendant's position, withdrawing their argument based on his arraignment date and filing a supplemental respondent's brief arguing that the issuance of a warrant for defendant's arrest timely commenced his prosecution. Specifically, pursuant to section 804, subdivision (d), prosecution commences when "[a]n arrest warrant or bench warrant is issued, provided that the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." And, they submit, on June 12, 2012, an arrest warrant was issued for defendant, identifying him by name, birth date, driver's license number, and physical description. In support, the People seek to augment the record with a copy of an arrest warrant issued for defendant on June 12, 2012.
On April 4, defendant filed an objection to the People's motion to augment. Citing California Rules of Court, rule 8.155(a)(1)(A), he argues that augmentation can only be ordered for " 'any document filed or lodged in the case in superior court,' " which he claims was not true of the alleged arrest warrant. He contends the People established no foundation for the "purported" warrant, and he "had no opportunity to address any foundational issues regarding the document, or to otherwise investigate its authenticity" because the People were just now asserting the warrant as the basis for the timeliness of his prosecution. He urges us not to consider the People's argument because this was a new claim not raised below and it is not our job "to resolve factual disputes or to establish the truth of the material contained within documents never submitted to a trial court."
In an April 12 reply, the People point to a clerk's stamp on the arrest warrant stating that it was "a correct copy of the original on file in this office," establishing that the warrant was lodged in the superior court. As to defendant's argument that we should not consider a theory not raised below, the People respond that defendant's argument below was also different (that the statute of limitations was 6 years, not 10) and, further, because the statute of limitations can be raised at any time, including on appeal, the People may assert a new theory as to why defendant's prosecution was timely.
On April 13, we ordered that we would rule on the People's motion to augment concurrent with our decision on the merits of defendant's appeal.
On May 3, defendant filed a supplemental appellant's reply brief in which he renews his objection to the People's augmentation request, again arguing that because the warrant was not filed or lodged in the court below it was not the proper subject of a motion to augment. Alternatively, he argues that even if we consider the "purported" warrant, it is insufficient to operate as a "legitimate" warrant. He reasons that an arrest warrant can only be issued by a magistrate based upon probable cause provided by a police officer, and the People have not "pointed to any basis beyond the bare arrest warrant that does not contain a file stamp, that the warrant was issued on the basis of probable cause provided by an officer."
On May 24, we ordered the parties to file simultaneous letter briefs addressing the following question: "Assuming this court can take judicial notice of an arrest warrant issued by the superior court (Evid. Code, §§ 452, subd. (d) [judicial notice of court records], 459 [judicial notice by reviewing court]; Smith v. Selma Community Hosp. (2010) 188 Cal.App.4th 1, 45 [sua sponte judicial notice]; People v. Gordon (1985) 165 Cal.App.3d 839, 851, fn. 10, overruled on other grounds in People v. Frazer (1999) 21 Cal.4th 737), is the document submitted by the Attorney General as Exhibit A to his motion to augment the record on appeal sufficient for this purpose?" On June 4, both sides filed a responsive letter as ordered. Because we determine that the People's motion to augment is well taken, we need not exercise our authority to sua sponte take judicial notice of the arrest warrant.
Analysis
There is no dispute that the statute of limitations applicable here is 10 years. (§ 801.1.) The sexual assault occurred on August 5, 2002, meaning the district attorney had until August 5, 2012, to commence prosecution of defendant. Defendant contends the district attorney failed to commence prosecution by August 5, 2012, such that the case against him was time-barred. He is mistaken.
Section 804 identifies four different events that trigger the commencement of prosecution, one of which is the issuance of an arrest or bench warrant, "provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." (§ 804, subd. (d).) Over defendant's objection, the People seek to augment the record with a document that purports to be an arrest warrant issued on June 12, 2012, by the Contra Costa County Superior Court. The document authorizes defendant's arrest and lists his driver's license number, date of birth, hair and eye colors, height, weight, and race. The record on appeal may be augmented with records that were lodged or filed in the case in the superior court (Cal. Rule of Court, rule 8.155(a)(1)(A)), and we conclude the arrest warrant satisfies that requirement.
The other three events are the filing of an indictment or information (§ 804, subd. (a)), the filing of a complaint charging a misdemeanor or infraction (id., subd. (b)), or arraignment on a felony complaint (id., subd. (c)).
Defendant's objections to the warrant are essentially threefold. First, he contends there is inadequate foundation establishing that the warrant is in fact what it purports to be, that is, an arrest warrant filed in the superior court. He is incorrect. Evidence Code section 1530 provides in pertinent part, "A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if: [¶] . . . [¶] (2) [t]he office in which the writing is kept is within the United States . . . and the copy is attested or certified as a correct copy of the writing or entry by a public employee . . . having the legal custody of the writing . . . ." (Id., § 1530, subd. (a)(2).) Here, the warrant submitted by the People bears a stamp attesting by the clerk of the Contra Costa County Superior Court that "the foregoing instrument is a correct copy of the original on file in this office." Defendant has not rebutted that prima facie showing.
Second, defendant contends the arrest warrant is inadequate because nothing demonstrates it was supported by probable cause provided by a police officer. The question for commencement of prosecution purposes is whether the arrest warrant was timely issued. (§ 804, subd. (d).) Defendant cites no authority suggesting the issue of probable cause, which goes to whether there was adequate ground for defendant's arrest, is in any way relevant to the statute of limitations issue. The case he does cite—People v. Sesslin (1968) 68 Cal.2d 418—did not involve the statute of limitations and instead questioned whether probable cause for the warrant was lacking such that defendant's arrest was illegal (id. at pp. 422-425), an issue not raised here or below.
Finally, defendant submits we should not consider the arrest warrant because the People did not raise the warrant below when his counsel asserted a statute of limitations challenge. But his statute of limitations argument below—that the supposed six-year limitations period had run—gave the prosecutor no cause to raise the warrant. And since it is proper for defendant to assert a new theory of untimely prosecution on appeal (People v. Williams (1999) 21 Cal.4th 335, 341 [defendant may raise statute of limitations at any time where charging document indicates on its face that the action is time-barred]), it must likewise be proper for the People to counter that new theory with a new response.
Based on the foregoing, we grant the People's motion to augment the record, and conclude defendant's prosecution was not barred by the statute of limitations.
The Trial Court Did Not Err in Excluding Evidence that Doe Had Condoms in Her Car and Was Pregnant When She Arrived at the Apartment
Background
Prior to trial, defendant moved pursuant to Evidence Code section 782 to introduce evidence of Doe's prior sexual conduct. Specifically, he sought to introduce evidence that when Doe arrived at the apartment on August 4, she had condoms in her car and was pregnant by her boyfriend. Defense counsel argued the condoms were relevant to her credibility because she claimed she had no intent to engage in sex at the apartment yet had condoms in her car that were of the same brand as those found in the apartment. He argued evidence of her pregnancy was relevant to her credibility because it showed she had a motive to deny engaging in sexual activity with anyone but her boyfriend. The prosecutor opposed the motion, contending the sole purpose of the evidence was to "dirt[y] up" the victim.
Doe did not know she was pregnant, learning so only as she was recovering at the hospital.
The trial court denied the motion, ruling as follows:
"So I'll start, first of all, with the evidence that Ms. Jane Doe found out she was pregnant by her boyfriend when she was at the hospital for the examination. The Court has considered everything that you have in your papers, as well as the arguments that you've given in court today; certainly, there is no dispute that generally the defendant can question a sexual assault victim about prior sexual activity under Evidence Code section 1103(c)(4). We do have Evidence Code section 782, which is designed to protect victims from embarrassing, personal disclosures unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility. And as to that—as that relates to the issue of whether evidence of her pregnancy should be allowed, the Court does not believe that this particular evidence should be allowed.
"True, as stated in the defense motion—or reply, it is evidence that might make her look bad in front of the eyes of the jury; but that's not really a relevant theory as to her credibility. There's only speculation provided to the Court that somehow this whole incident was a retaliation against the boyfriend or that somehow she had an interest when she finds out that she's pregnant to color her story about what happened or even to minimize her sexual activity.
"So the Court really does not find that there has been a showing made to this Court that the victim's sexual conduct with respect to finding out, after the event, in the hospital that she was pregnant would relate to her credibility.
"As to the condoms and the lubricating gel that was found in the victim's vehicle, again, the Court does not find that this would go to the . . . issue of the victim's credibility. There is no showing in advance, without these condoms, no evidence or no factual basis set forth before the Court that she brought any condoms into the apartment, no offer of proof, no factual basis on that issue.
"Certainly, with respect to the issue of whether or not she had consensual sex with the defendant, these condoms would not be relevant to that because the testimony or the information provided in the brief from the defendant is that he did not have sex with her on that night, that he had sex with her on another time at the apartment. So the fact that she may have brought condoms on the night in question would not go to her credibility as to whether or not she consented to have sex with Mr. Ellison on another occasion.
"Also, there is no offer of proof that she provided condoms for the sex that took place on the night in question, no offer of proof that she provided any lubricant, nothing to even suggest that she went to her car or got condoms out of her car or brought condoms into the apartment. So I just don't believe that there's been a proper showing that that issue would go to attack her credibility, because there's nothing shown in advance that the condoms in the car would lead to her credibility in this particular case. And the Court has analyzed both the condoms, the lubricant, and the pregnancy, also, with respect to [Evidence Code section] 352."
Analysis
Defendant contends the trial court's ruling on the condom and pregnancy evidence was erroneous for two reasons. First, he claims the evidence did not fall within the scope of Evidence Code section 782, which allows, subject to specific procedures, evidence of a complaining witness's sexual conduct for the limited purpose of impeaching his or her credibility. Second, he argues that if the evidence was within the scope of the statute, it was an abuse of discretion to exclude it because it went to Doe's credibility. Both arguments lack merit.
Evidence Code section 1103, subdivision (c)(1) generally prohibits the introduction of evidence of a victim's sexual conduct to prove consent in a rape case. Evidence Code section 782 sets forth a narrow exception for "evidence of sexual conduct of the complaining witness" if the proffered evidence is relevant to the victim's credibility and is not made inadmissible by Evidence Code section 352. The statute "vests broad discretion in the trial court to weigh the defendant's proffered evidence prior to its submission to the jury and to resolve the conflicting interests of the victim and the defendant." (People v. Casas (1986) 181 Cal.App.3d 889, 895-896; accord, People v. Rioz (1984) 161 Cal.App.3d 905, 916.) As to what falls within the scope of conduct subject to the section 782 procedures, the court in People v. Franklin (1994) 25 Cal.App.4th 328, 334 stated that sexual conduct "encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity." (Accord, Casas, at p. 895.) Further, the court recognized that the term "sexual conduct" "should not be narrowly construed." (Franklin, at p. 334.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing issues, or of misleading the jury."
Notwithstanding defense counsel's acknowledgment below that the condom and pregnancy evidence was subject to Evidence Code section 782, defendant first contends here that the condom evidence did not in fact come within the statute because he sought to introduce it not to demonstrate Doe's willingness to have sex but because the "condoms in her car were the same as the clear Durex condoms inside the house, suggesting that Doe was responsible for bringing the condoms in to her drinking binge." Similarly, he contends Doe's pregnancy "demonstrated a motive to claim she had no knowledge or consent to the sexual activity at the apartment, because of a close relationship with her boyfriend . . . ." The claimed purpose for which defendant sought to introduce the evidence has no bearing on whether or not the evidence fell within Evidence Code section 782. That determination hinges solely on whether the evidence reflected Doe's willingness to engage in sexual activity, and defendant makes no effort to explain how Doe's possession of condoms and her pregnancy did not relate to her sexual conduct. Given that " '[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a "back door" for admitting otherwise inadmissible evidence' " (People v. Fontana (2010) 49 Cal.4th 351, 363), and further given the broad scope of activity that falls within the protection of Evidence Code section 782, the trial court properly treated the evidence of Doe's possession of condoms and her pregnancy as subject to the statute. As such, the evidence was only admissible if it was relevant to Doe's credibility. It was not.
Aside from the fact that we find this argument unpersuasive, the evidence was irrelevant for this purpose. Defendant denied having sex with Doe the night of the rape so it was irrelevant whether she had condoms with her that night. Faced with this flaw in his argument, defendant suggests that the condoms in her car were evidence she brought condoms into the apartment "at some point," such as when she allegedly had consensual sex with defendant a few days before the incident. Possession of condoms on the day of the rape does not tend to prove she provided a condom days earlier.
Defendant reasons that the condom evidence was relevant to Doe's credibility because "having several condoms in her possession directly contradicted her statement that sex was the last thing on her mind and that it was not within her 'character' to do something like that." The fact that Doe had condoms in her car did not support a reasonable inference that when she went to the apartment on the evening of August 4, she was interested in having sex with the men in the apartment or that it was her nature to have sex with men she barely knew. This is precisely the kind of evidence Evidence Code section 782 is designed to exclude—evidence that serves only to sully the victim's reputation.
Similarly, evidence that Doe was pregnant was not relevant to her credibility. Defendant lists the purported reasons Doe's "credibility flaws were significant," and then reiterates that the pregnancy gave her a motive to lie about having consensual sex with other men so she would not "devastate her boyfriend with the news that she was voluntarily engaged in sexual activity." To use the language of the prosecutor, it is a "huge jump"—and an unreasonable one at that—from Doe's pregnancy (which she only learned about after the sexual assault) to her drinking herself unconscious and denying consensual sex with multiple men so as not to wound the feelings of her ex-boyfriend. It is an even larger leap as to defendant (compared to Bickham and Preston) since he was not identified as a suspect until nine years after the rape. It is irrational to think Doe would deny having had consensual sex with defendant nearly a decade earlier to belatedly protect her ex-boyfriend's feelings, especially given the lack of evidence she had even maintained contact with him in the intervening years.
But even if the proffered evidence was relevant to Doe's credibility, the court had the discretion to exclude it if it was unduly prejudicial. And the court's conclusion it was unduly prejudicial did not constitute an abuse of discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711 [trial court's ruling under Evidence Code section 782 will only be reversed for an abuse of discretion].) As the prosecutor rightly described it, the condom and pregnancy evidence would serve to "dirt[y] up" Doe's reputation. The fact that Doe, who was 18 years old and unmarried, kept condoms in her car and was pregnant may have caused jurors to perceive her as promiscuous and be biased against her. It was thus not an abuse of discretion to exclude this unduly prejudicial evidence.
Defendant incorrectly claims "the trial court did not even reach the question of prejudice." At the end of its ruling, the court stated, "And the Court has analyzed both the condoms, the lubricant, and the pregnancy, also, with respect to 352," the implication being that it was unduly prejudicial under Evidence Code section 352.
The Exclusion of the Condom and Pregnancy Evidence Did Not Violate Defendant's Sixth Amendment Right to Confrontation
Defendant asserts an additional argument concerning the condom and pregnancy evidence, that is, the exclusion of this "impeachment evidence" violated his Sixth Amendment right to confrontation. However, " ' "[a]pplication of the ordinary rules of evidence generally does not impermissibly infringe" ' " on a defendant's constitutional rights. (People v. Eubanks (2011) 53 Cal.4th 110, 143; accord, People v. Casares (2016) 62 Cal.4th 808, 830; People v. Gurule (2002) 28 Cal.4th 557, 620.) Defendant has not demonstrated that the application of the rules of evidence here violated his right to confrontation.
Beyond that, while the Sixth Amendment to the United States Constitution affords a criminal defendant "the right . . . to be confronted with the witnesses against him," the right is not absolute. (Champers v. Mississippi (1973) 410 U.S. 284, 295.) Rather, the trial court "retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; accord, Ortiz v. Yates (9th Cir. 2012) 704 F.3d 1026, 1035.) " 'Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.' [Citation.] 'A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' " (People v. Bautista (2008) 163 Cal.App.4th 762, 783.) For the reasons discussed above, precluding defendant from cross-examining Doe about the condom and pregnancy evidence was a reasonable limitation.
The Prosecution Established the Chain of Custody of Condom E-29
Background
As noted above, Officer Schneider testified that when he processed the apartment for evidence, he collected numerous condom wrappers and used condoms from the kitchen garbage can. He numbered the condom wrappers E-22 through E-28. There were four Lifestyle Tuxedo Black wrappers (E-22, E-24, E-27, and E-28), two whole Durex wrappers (E-23 and E-26), and half of a Durex wrapper (E-25). He numbered the used condoms E-29 through E-33. They consisted of two black condoms (E-31 and E-32), two clear condoms (E-29 and E-33), and one clear, partial condom (E-30).
Officer Schneider also collected evidence from the hallway bathroom. Underneath the rug, there was half of a condom wrapper (E-21), which appeared to be the other half of the half-wrapper found in the kitchen garbage can. In the garbage can, there was a clear, used condom, which Officer Schneider numbered E-34, although he mistakenly designated it E-29 in his report. He "believ[ed]" E-34 was a complete condom, and it appeared to be a Durex brand.
Officer Schneider placed each condom in a separate envelope, labeled with its evidence number. He then placed the six envelopes inside a larger envelope. He labeled the larger envelope with the case number, the evidence numbers, and his initials. At trial, Officer Schneider identified a photograph of the six smaller envelopes and the larger, outer envelope as the envelopes he labeled at the apartment.
Criminalist Tuscher conducted the DNA testing on the condoms. She identified the photograph of the large envelope and six small envelopes earlier identified by Officer Schneider as the envelopes she received, and confirmed the small envelopes contained the six condoms she tested.
Analysis
Defendant challenges the prosecutor's introduction of evidence pertaining to condom E-29, the condom containing his DNA on the inside and Doe's DNA on the outside, on the ground the prosecutor failed to establish the chain of custody. Defendant identifies the following purported deficiencies: Officer Schneider's report identified the condom found in the bathroom as E-29, which was the same designation given to the condom found in the kitchen that was linked to defendant, and he testified he placed six smaller envelopes, each containing one condom and labeled E-29 through E-34, in a single, larger envelope, but the exterior of the larger envelope only identified five condoms, E-29 through E-33, failing to account for E-34. According to defendant, these deficiencies were compounded by defective digital images of the condom evidence that did not adequately depict the condoms removed from the garbage can, were dated December 31, 2000, and bore the name "West Coast Jewelers" as the jpeg image name.
Defense counsel below did not assert a chain of custody objection when the prosecutor introduced the condom evidence, only mentioning it during closing argument. Defendant's chain of custody challenge was thus forfeited. (Evid. Code, § 353; People v. Hall (2010) 187 Cal.App.4th 282, 292 [party finding fault with chain of custody must timely object at trial to preserve the issue for appeal].)
Recognizing his counsel's failure to properly object, defendant asserts this failure constituted ineffective assistance of counsel. Because his substantive argument lacks merit, there was no ineffective assistance of counsel.
We also note that "[t]he decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent." (People v. Lucas (1995) 12 Cal.4th 415, 444.) This is especially true of a chain of custody objection, as "an objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt." (Id. at p. 446.)
To establish chain of custody, "[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." (People v. Riser (1956) 47 Cal.2d 566, 580-581, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2; accord, People v. Diaz (1992) 3 Cal.4th 495, 559; People v. Williams (1989) 48 Cal.3d 1112, 1134.)
As detailed above, Officer Schneider testified that at the apartment he found five used condoms in the kitchen garbage can. He gave these condoms five separate evidence numbers, E-29 through E-33, and placed each condom in its own envelope, which he labeled with its individual evidence number. He collected a sixth condom from the bathroom, which he designated E-34, and placed it in an envelope that he labeled E-34. He placed the six smaller envelopes, labeled E-29 through E-34, into a single large envelope on which he wrote the case number, the evidence numbers, and his initials. At trial, Officer Schneider identified a photograph of the condom evidence. It depicted a single large envelope and six small envelopes labeled E-29 through E-34. Criminalist Tuscher identified the same photograph as the evidence she received and tested.
Despite this testimony tracing the chain of custody, defendant claims "[t]here is no reasonable certainty" that the condom associated with him was in fact the same one taken into evidence by Officer Schneider. His argument is primarily based on the photographs of the condom evidence recovered from the kitchen garbage can, which photographs he contends "are not compelling in terms of demonstrating that there were indeed three clear condoms located in the kitchen garbage as described" or in terms of depicting where the condoms were located in the garbage. But these complaints go not to the chain of custody, which was established by the testimony of Officer Schneider and criminalist Tuscher, but to the weight of the evidence to support the prosecution's theory about when the condom containing Doe's and defendant's DNA was placed in the garbage can.
Defendant also correctly notes that the outer envelope did not list condom E-34 among its contents. Although the evidence showed that Officer Schneider placed condom E-34 in a small envelope, labeled that envelope E-34, and placed that envelope in the larger envelope containing the other five condoms, he apparently neglected to add condom E-34 to the outside of the larger envelope, which already listed condoms E-29 through E-33. Given the testimony of Officer Schneider and Tuscher about how the condoms were collected and traced, however, this oversight did not make it reasonably likely that the condom Tuscher tested was not the condom the officer recovered from the kitchen garbage can. Rather, it was a "minor defect[]" that went to its weight, not its admissibility. (People v. Lucas (2014) 60 Cal.4th 153, 285, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1.)
Nor did Officer Schneider's error in his report undermine the chain of custody. He acknowledged that in his report he mistakenly identified condom E-34 as E-29, but his report was unrelated to the chain of custody of the condoms. And, as already noted, the testimony of Officer Schneider and criminalist Tuscher, combined with the envelope evidence, demonstrated with reasonable certainty that the condoms tested by the forensic lab were taken into evidence as Officer Schneider testified.
The Prosecutor Did Not Commit Prosecutorial Misconduct by Misstating Evidence Regarding the Condoms
Background
In order to prove defendant had sex with Doe on the night of the rape, not days before as he claimed, the prosecutor sought to link defendant's condom to other objects definitively connected to that night, as follows: defendant's condom: (1) was found in the kitchen garbage can just under the party trash, not lower down as would be expected had it been used days prior; (2) was found next to the top portion of another clear condom, and what appeared to be the bottom portion of that condom was found in the bathroom garbage with Bickham's and Doe's DNA on it; (3) was found next to a torn condom wrapper, and the other half of that wrapper was found under the bathroom rug; and (4) had a pinkish stain that was consistent with drops of punch that could be seen on it and other items near it in a photograph of the kitchen garbage can contents. In explaining this theory to the jury, the prosecutor's closing argument included the following:
"Circumstantial evidence is, for example, you have a portion of a condom in this wastebasket, that's Bickham's condom. I believe that's E34. It's the bottom portion. You have a top portion in this garbage, that's not examined, that is E30. . . . I would argue that there are two pieces of the same condom, not just because there's a top in one garbage and a bottom in the other; but if you consider all the other evidence, the way the wrappers match up and the way the condoms match up to the wrappers, then you can infer that the bottom portion in the bathroom is part of that top portion in the kitchen garbage. So that's circumstantial evidence.
"Is there another reasonable interpretation of whether those two are part of the same condom? Not really in this case, because there's no other condom evidence. And . . . you can infer that the bottom portion of the condom and the top portion are from the same condom. That's just an example. [¶] . . . [¶]
"So let's get to the scientific evidence. . . . [¶] . . . [¶]
" . . . Exhibit 10A photo of 047. This is an overview shot of the garbage. The next photo, 048, which I didn't put in here, is a close-up. . . .
"Now, here you have a wrapper. You have another wrapper here. And there is a partial one right in here, which we can't see.
" . . . Here is a wrapper. There is a little pink droplet on it, there are actually three pink droplets on it. This is a condom right here. And it's got a pretty distinct purple-ish-pinkish droplet on it down here. You can see . . . upon careful review, other reddish—the same pinkish-like juice or whatever it is. So why is that all significant? This is a partial. You can see that because, when you pull this up closely, you can read the writing on the Coke bottle that it lays on top of. And if it was covered by the condom, you'll see when you look at other writing right around the edge here, you can't see the writing. So is your partial. This is a whole condom. And point about this is it is Mr. Ellison's condom. This is E29 over here. The significance of this is the timing of its deposit, okay. Figure everyone kind of had an idea because of the questioning. . . . It's kind of like the Grand Canyon. It deposits sediment. And the same thing in a garbage can. Circumstantially, if you took out garbage and analyzed it, you would see that it has layers; and that the layers are consistent with when these items were deposited. And geologists go to the Grand Canyon and they look and find a layer in rock and can tell how many millions of years ago that layer was deposited and tell about, you know, the meteors and dinosaurs and all this stuff. Well, this isn't quite as scientific, obviously; but absent some sort of evidence that a condom migrated that was deposited earlier, one to seven days earlier, absent some evidence that it somehow migrated its way up or was deposited at a later time, there is none in this case. This is highly probative evidence of the timing in which the condom was used.
"And since this condom, Mr. Ellison's condom, the only red-stained condom, out of all the ones that were collected, sits next to two and a half wrappers, and the top whose match is over in the bathroom, and the half wrapper is a match to one found under the mat, that's what connects Mr. Ellison's condom to this bathroom. And there is no other reasonable explanation to it, if you look at this condom evidence real carefully.
"Now, this—these photographs don't show anything else. . . . They don't [sh]ow what's beneath these items that you can see. But one thing that's interesting, right here you'll see a pitcher. We know Mr. Ellison used a pitcher that night. Above these items was the empty bottle of Bacardi and an empty bottle of Tiki Punch. You remember, another full bottle of Bacardi in the fridge and Tiki in the fridge. But this is party garbage. Here is a plate, it appears to be broken. And if you look at this plant material, can't tell definitely what it is, but it's unusual. These are items that got deposited at the same time. And if the Tiki Punch bottle has red punch, it's a likely source of the reddish stain here and the droplets on this condom wrapper which overlaps Mr. Ellison's condom and the source of the droplets on Mr. Ellison's condom. So if he, in fact, you know, had sex with (Jane Doe), one, two, three, or seven days before, his condom would be lower in the garbage. Keep in mind, the evidence was from Detective Schneider that all the condom evidence was found in a particular section. It wasn't at the bottom. It wasn't at the top. He removed a couple items, and then there you had it. This is the first of it, this photograph. Underneath, he said this pitcher, were the other condoms, including—and it has to be—Preston's condom because it's nowhere else. It was in the garbage. It's not the partial. It's not Mr. Ellison's. So Preston's condom is under this pitcher. Preston had sex—or raped (Jane Doe) that night. His condom was deposited under that pitcher. The pitcher is thrown away, the plate, the condoms, all at the same time. And here is the picture—and you can't see it—but when you look at it on the computer, you will see the red stain. It's quite clear. The only condom with any red staining.
"So the beauty of the scientific evidence is that over the, the pictures . . . they don't fade; and the scientific evidence, it doesn't go away. It doesn't change. These items are frozen. They're kept frozen. You pull them out nine years later, test 'em, and it still shows what it showed when they were collected. It's objective. It's unbiased. And it . . . points to one thing, the central issue in this case, When did Mr. Ellison have intercourse with (Jane Doe)? Was it that night or, like he said, days before? If it was days before, his condom would not be right here. So that's scientific evidence that supports, corroborates (Jane Doe)."
Analysis
Defendant asserts that the prosecutor committed misconduct by making the foregoing argument because it was based on a "carefully orchestrated distortion of the record built with various methods of distortion" using "conjecture, misleading evidence and actual fabrication" and "faux junk science." Dramatic rhetoric aside, defendant's argument is meritless.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' " Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Samayoa (1997) 15 Cal.4th 795, 841; accord, People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v. Strickland (1974) 11 Cal.3d 946, 955.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, n. 22.) As the prosecutor did not misstate the record, there was no such likelihood here.
Defendant claims the prosecutor made three misstatements during closing argument. First, he contends the record does not support the prosecutor's contention that the condom from the bathroom that contained Bickham's DNA was the bottom portion of a condom, the top portion of which was found in the bathroom garbage can. He cites Officer Schneider's testimony that the condom in the bathroom was a full condom and criminalist Tuscher's testimony that she was unable to definitively state that the partial condom in the kitchen garbage can was the top portion of the partial condom found in the bathroom garbage can. This testimony, defendant submits, constituted a "huge discrepancy" and was inconsistent with the prosecutor's argument. Further, he claims, it suggests Tuscher may not have even been testing condom E-34 since what she said was E-34 was a partial condom but Officer Schneider testified E-34 was a full condom. The prosecutor's argument regarding the two partial condoms did not misstate the record.
When asked if condom E-34 was full or partial, Officer Schneider actually testified, "I believe it was a full condom." (Italics added.) Given this equivocal testimony, along with the facts that Officer Schneider collected but did not examine or test the evidence and Tuscher testified that condom E-34 was "folded over or compressed on itself," it was reasonable to infer that Officer Schneider did not notice the bathroom condom was missing its top ring and that Tuscher, who examined and tested the condom, was correct that E-34 was partial condom. Based on this record, it was a reasonable inference that the two pieces were the top and bottom of a single condom. (Hill, supra, 17 Cal.4th at p. 819 [" ' " 'The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom' " ' "].) And, in fact, the prosecutor told the jury that he was drawing an inference: "I would argue that there are two pieces of the same condom, not just because there's a top in one garbage and a bottom in the other; but if you consider all the other evidence, the way the wrappers match up and the way the condoms match up to the wrappers, then you can infer that the bottom portion in the bathroom is part of that top portion in the kitchen garbage."
Second, defendant takes exception with the prosecutor's argument that a photograph of the contents of the kitchen garbage can depicted the condom associated with defendant next to the partial condom that matched the partial condom in the bathroom. According to the prosecutor, that was defendant's condom because the photograph showed drops of a pink liquid on and near it, which was consistent with Tuscher's testimony that the condom associated with defendant had a "pinkish-red" "waxy" substance on it. Defendant labels this conclusion "wrong on many levels." First, he claims that it was not possible to determine from the photo whether the pinkish drops were on the condom or on a piece of trash lying in the garbage. Second, he claims that it could not be conclusively determined from the photograph that the second condom on top of the Coke bottle, the one not associated with defendant, was a partial condom because there is a pitcher obscuring part of the condom. The prosecutor's assertions, he submits, "are completely speculative, and are not based on any scientific evidence, or collection protocol." But what he labels "speculative" was in fact reasonable inference drawn from the evidence.
Third, defendant claims the prosecutor's Grand Canyon geology comparison suggested he had "some level of expertise in deciphering the meaning of garbage layering," and his attempts to discern the date defendant's condom was placed in the garbage can was "faux junk science." As such, he submits, the theory should have been introduced by a qualified expert, not the prosecutor. Expert testimony was not required, however, as this was not " ' "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' " (Burton v. Sanner (2012) 207 Cal.App.4th 12, 19.) The prosecutor was simply making an analogy derived from common sense—that items place higher up in a garbage can were placed there more recently than those items lower down. (Hill, supra, 17 Cal.4th at p. 819 [" ' " 'counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience' " ' "].)
The Prosecutor Did Not Commit Misconduct by Commenting on Defendant's Prior Conviction During Closing Argument
Background
It was revealed during trial that defendant had a felony conviction for inflicting corporal injury on a spouse or cohabitant. During closing argument, the prosecutor told the jury: "Conviction of a felony. How do you use that? Well, Mr. Ellison has been convicted of a felony for inflicting corporal injury on a spouse or cohabitant. I can't say because he's been convicted of that that he's a bad person, he's therefore more likely to have committed this, can't argue that. This goes solely to his credibility. And the point there, and I think the instruction says this, is that, if somebody is—has committed that kind of a crime, you should consider whether they're capable of doing that, they might not really take an oath too seriously when they come to court to testify in a trial. So that's how you use that."
Analysis
Defendant contends this constituted prosecutorial misconduct because "the prosecutor's recitation of what the evidence was not supposed to be used for, effectively gave them the idea, if not the encouragement to use the evidence for the inadmissible propensity use." There was no misconduct.
The prosecutor did not encourage the jury to use defendant's felony conviction as propensity evidence. Rather, he correctly stated the law—that the jury could not use the conviction as propensity evidence but could use it to evaluate defendant's credibility. This was consistent with the instruction subsequently given to the jury: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
Defendant relies on two cases to support his argument. Both are irrelevant. He cites People v. Williams (2009) 170 Cal.App.4th 587, 629 for the following proposition: "Arguing evidence for an improper purpose, e.g., when the judge has ruled the evidence inadmissible or admissible only for a specific purpose is misconduct." While that may be a correct statement of the law, it has no applicability here, as the prosecutor did not argue defendant's conviction for an improper purpose.
The second case—People v. Wrest (1992) 3 Cal.4th 1088—is no more availing. There, during the penalty phase of a capital case, the prosecutor told the jury there was not enough time to argue all the things he wanted to argue so he had to edit things out, going on to list a number of thing he was not arguing, some of which were improper argument. The Supreme Court reversed, in part taking exception with the prosecutor's rhetorical strategy: "Although the prosecutor's comments here were strategically phrased in terms of what he was not arguing, they embody the use of a rhetorical device—paraleipsis—suggesting exactly the opposite. Repetition of the statement, 'I am not arguing X,' strongly implied the prosecutor was in fact asserting the validity and relevance of X, but, for lack of time, was concentrating on other, presumably more important topics." (Id. at pp. 1106-1107.) That was not what the prosecutor did here. He once—not repeatedly—told the jury it could not use defendant's prior conviction as propensity evidence. There was no prosecutorial misconduct.
Defendant contends that defense counsel provided ineffective assistance of counsel by failing to object to the two alleged incidences of prosecutorial misconduct. Because we conclude there was no prosecutorial misconduct, there was no basis for objection.
The Prosecutor Did Not Impugn the Integrity of Defense Counsel During Closing Argument
Background
The prosecutor's rebuttal closing argument began with the following argument and defense counsel's unsuccessful objections to it:
"[THE PROSECUTOR]: . . . I left you Friday with a request to be on the lookout in the defense closing for an emphasis on issues that don't really have a bearing on this case. So a friend of the defense is to confuse jurors and get 12 people, most of whom aren't experienced with the law, to be talking about a bunch of different issues. That fact alone sometimes prevents jurors from coming to a consensus. Of course, we need 12 out of 12 to find guilt or not guilt. Otherwise, it's a hung jury, and we have to do this all over again and
"[DEFENSE COUNSEL]: Objection, Your Honor. His reference to counsel confusing the jurors implies I'm misstating the law and is improper argument.
"THE COURT: Overruled.
"[THE PROSECUTOR]: . . . What I failed to prepare you all for, what I didn't anticipate, at least to the extent that we saw that, was the employment of a specific tactic, and that's to arouse your passions and emotions in analyzing the evidence in this case. And that too can be a very effective tactic for jurors because it prevents some jurors from effectively objectively analyzing the facts in the case.
"If you are worked up emotionally, just like if you are in an argument with your spouse, you can't really talk very well about what went down. You need a little break, and then, hey, let's be a little more rational, and that can happen to some extent with jurors. With the other tactic, this can be effective. If there is just one of you that has an 35 emotional attachment to one issue in this case, then that prevents you, whether consciously or subconsciously, from analyzing the facts. What do we got? We got a hung jury
"[DEFENSE COUNSEL]: Objection, Your Honor, improper argument.
"THE COURT: Overruled."
Analysis
Defendant contends this rebuttal argument constituted prosecutorial misconduct for two reasons, first because it "maligned" his attorney by "suggesting that his job was to confuse the jury with misleading facts." We disagree.
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] 'An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.' " (Hill, supra, 17 Cal.4th at p. 832.) At the same time, "the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, the prosecutor's argument that defense counsel was emphasizing irrelevant facts to distract the jury from the relevant evidence and was playing to the jury's emotions could not reasonably be construed as attacking the integrity of defense counsel.
The California Supreme Court rejected a similar claim in People v. Zambrano (2007) 41 Cal.4th 1082, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, n. 22. There, in rebuttal argument, the prosecutor told the jury that defense counsel's argument was " 'what I call something that has nothing to do with the facts. It's what I call a lawyer's game because it's an attempt to draw something out of the transcript that was a mistake, a misstatement by the witness, and using it to try to confuse a clear issue.' " (Id. at p. 1152.) Defense counsel objected, and the court admonished the jury that the statements of the attorneys were not evidence. (Id. at p. 1153.) Among other things, the Supreme Court rejected defendant's claim that the prosecutor improperly disparaged defense counsel by labeling his argument a " 'lawyer's game' and an attempt to confuse the jury by taking the witness's statement out of context." (Id. at p. 1154.) According to the court, there was no misconduct: "The prosecutor did not engage in such forbidden tactics as accusing defense counsel of fabricating a defense or factually deceiving the jury. [Citation.] He simply used pungent language to describe defense counsel's tactical effort to exploit what the prosecutor considered a slip of the tongue by a People's witness. [¶] It was clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally. We have found no impropriety in similar prosecutorial remarks. (E.g., [People v.] Stitely [(2005)] 35 Cal.4th 514, 559-560 [argument that jurors should avoid ' "fall[ing] for" ' defense counsel's ' "ridiculous" ' and ' "outrageous" ' attempt to allow defendant to ' "walk" free' by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 [argument that defense counsel was talking out of both sides of his mouth and that this was ' "great lawyering" ']; People v. Breaux (1991) 1 Cal.4th 281, 306-307 [argument that law students are taught to create confusion when neither the law nor the facts are on their side, because confusion benefits the defense]; People v. Bell (1989) 49 Cal.3d 502, 538 [argument that defense counsel's job is to ' "confuse[]" ' and ' "throw sand in your eyes," ' and that counsel ' "does a good job of it" '].)" (Id. at pp. 1154-1155.) As in Zambrano and the cases collected therein, the prosecutor here made no improper, disparaging remarks.
While the cases above are on point and unfavorable to defendant, the cases defendant cites are factually distinguishable and thus unhelpful to his position. (See Hill, supra, 17 Cal.4th at pp. 833-834 [prosecutor called defense counsel " 'unprofessional' " and " 'contemptuous' "; defamed an expert witness; laughed during defense counsel's examination of witnesses; and engaged in other "petty and childish" behavior]; People v. Hawthorne (1992) 4 Cal.4th 43, 59-60 [improper for the prosecutor to quote dissent of Justice White that law enforcement has an obligation to ascertain " 'the true facts surrounding the commission of the crime' " but defense counsel does not]; People v. Bell (1989) 49 Cal.3d 502, 538 [prosecutor's argument was improper to the extent it suggested defense counsel "was obligated or permitted to present a defense dishonestly"]; People v. Bain (1971) 5 Cal.3d 839, 845-848 [prejudicial error for prosecutor to accuse defense counsel of fabricating evidence]; People v. Herring (1993) 20 Cal.App.4th 1066, 1075-1077 [misconduct for prosecutor to comment that his people were victims but defense counsel's people were " 'rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth' "]; Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193, 1194 [improper for prosecutor to suggest that the fact defendant hired counsel indicated guilt and to state that "all defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client's involvement with the alleged crimes"].)
Defendant contends the prosecutor's argument was improper for a second reason: he purportedly misstated the law by stating that a hung jury would necessarily mean the case would be retried. This, defendant claims, was similar to an "improper Allen-type instruction that suggested the jury consider other factors in their deliberation, such as the hassle and cost to retry appellant if they did not reach a consensus." An Allen instruction is an improper "jury instruction designed to 'blast' a verdict out of a deadlocked jury." (People v. Barraza (1979) 23 Cal.3d 675, 682; see Allen v. United States (1896) 164 U.S. 492, 501; People v. Gainer (1977) 19 Cal.3d 835, 847-852, disapproved in People v. Valdez (2012) 55 Cal.4th 82, 163.) Aside from the obvious point that the challenged argument was just that—argument, not a jury instruction—the prosecutor did not misstate the law or encourage the jury to consider matters outside the record by asking it to reach a guilty verdict to avoid the cost of another trial. The prosecutor merely stated that if there was a hung jury, they would have to "do this all over again," without providing any specifics.
Defendant cites without discussion People v. Butler (2009) 46 Cal.4th 847 and People v. Belmontes (1988) 45 Cal.3d 744. Both cases involved an Allen instruction and have no applicability here. (Butler, at p. 883; Belmontes, at p. 814.)
Defense Counsel Did Not Provide Ineffective Assistance with Respect to His Handling of Defendant's Prior Conviction
Background
Prior to trial, the prosecutor moved to admit defendant's prior felony domestic violence conviction for the purpose of impeachment in the event he testified. At the hearing on the motion, the trial court observed that the offense was a crime of moral turpitude. Defense counsel objected on the ground that the conviction was nearly 10 years old. After the prosecutor argued the conviction was relevant to defendant's credibility, the court stated it was inclined to admit the prior but was willing to listen to defendant's testimony and then rule as to whether it would be allowed to impeach him.
During the defense case but prior to defendant testifying, defense counsel called a long-time friend of defendant's to testify regarding defendant's character for honesty. The witness described defendant was an "[h]onest person, loyal, good person." Defense counsel asked whether his opinion would change if he knew defendant suffered a felony conviction in 2006, and the witness responded it would not. On cross-examination, the prosecutor asked if his opinion would change if he knew the conviction was for inflicting corporal injury on a spouse or cohabitant. Again, the witness answered no.
Analysis
Defendant contends defense counsel provided ineffective assistance by calling a character witness to the stand prior to obtaining a ruling on the prosecution's motion to introduce his 2006 felony domestic violence conviction. He argues the conviction was inadmissible, and he was prejudiced by his counsel's failure to prevent its introduction. Contrary to defendant's assertion, the conviction was admissible, and defendant did not receive ineffective assistance of counsel.
We are not entirely persuaded the court never ruled on the admissibility of the conviction. The afternoon session on March 1, 2016, concluded with this exchange:
"[THE PROSECUTOR]: As far as any character witnesses, I think I should have in limine got the Court's approval to ask them, if it becomes relevant, if they're aware of the conviction.
"THE COURT: That's fine. So I don't know—you need to tell me which ones are character witnesses so I can be on alert for that.
"[DEFENSE COUNSEL]: I'll tell you tomorrow when I have everybody lined up and give you everything."
The next morning, March 2, the court session was canceled when a juror notified the court she had been in a car accident and would not be available that day.
The morning session on March 3 began with the testimony of defendant's character witness, discussed above. Given the March 1 exchange regarding character witnesses and defendant's prior conviction, it seems likely the subject was again raised, either on March 2 or 3, with the court ruling it would allow the conviction. As no such conversation appears in the reporter's transcript, however, we proceed on the assumption that the court did not in fact rule on the admissibility of defendant's prior felony conviction.
A witness may be impeached with evidence that he or she suffered a prior felony conviction involving moral turpitude, that is, a " 'readiness to do evil.' " (People v. Castro (1985) 38 Cal.3d 301, 314.) In 2006, defendant was convicted of felony domestic violence in violation of section 273.5. California courts have uniformly held that a violation of section 273.5 is a crime of moral turpitude. (People v. Burton (2015) 243 Cal.App.4th 129, 134 (Burton); People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402; see also Donley v. Davi (2009) 180 Cal.App.4th 447, 461; People v. Martinez (2002) 103 Cal.App.4th 1071, 1081.) The court in Burton explained the reason for this: "California courts have held that section 273.5 is a crime of moral turpitude because the statute protects individuals who are in special relationships 'for which society rationally demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it wilfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude.' " (Burton, at p. 134, fn. omitted.)
Despite the unanimity on this issue, defendant submits that "[t]he question of whether section 273.5 is a crime of moral turpitude such that impeachment with a prior conviction is permissible, has not been conclusively resolved." In claimed support, he relies on a Ninth Circuit opinion, Morales-Garcia v. Holder (9th Cir. 2009) 567 F.3d 1058, which held that a conviction under section 273.5 is not a crime of moral turpitude for federal immigration purposes. (Morales -Garcia, at p. 1060.) His attempt to distinguish the California authorities—which he labels "wrongfully decided"—is unpersuasive, and we can perceive no reason to follow a federal immigration case in lieu of California cases that are on point. In fact, the court in Burton, supra, 243 Cal.App.4th at pp. 135-136 rejected the identical argument defendant makes here, and we see no reason to diverge from that result.
Accordingly, because defendant's domestic violence conviction was admissible and the trial court had already tentatively indicated it was inclined to allow it, defendant has not demonstrated that his counsel's conduct fell below "an objective standard of reasonableness under prevailing professional norms." (People v. Hawkins (1995) 10 Cal.4th 920, 940.)
The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Motion to Dismiss Based on Preaccusation Delay
Background
On February 10, 2016, defendant filed a motion to dismiss the charges against him based on the delay between Doe's 2002 rape and the filing of the charges against him. He argued that the unreasonable delay deprived him of due process because evidence that could have been used for his defense was not preserved (specifically, a voicemail message he left for Gresham telling her Doe was very intoxicated), and evidence that could have exonerated him was destroyed (the clothing he was wearing the night of the incident).
Following the close of evidence, the trial court found defendant had not demonstrated prejudice and denied the motion.
The Law Applicable to a Motion to Dismiss Based on Preaccusation Delay and Standard of Review
The law governing a claimed due process violation based on a delay in prosecution is well established. As the California Supreme Court has summarized: "An unreasonable delay between the time an offense is committed and an accusatory pleading is filed may violate a defendant's right to a fair trial and due process of law under article I, section 15, of the California Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. [Citation.] In evaluating a claim of precomplaint delay, 'any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.' [Citation.] 'In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed.' " (People v. Morris (1988) 46 Cal.3d 1, 37 (Morris), disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; accord, People v. Catlin (2001) 26 Cal.4th 81, 107; Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-507.) The evaluation of a claim of precomplaint delay has been described as a three-step process: "First, the defendant must show he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911 (Dunn-Gonzalez); accord, People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328 (Mirenda).)
Prejudice may be shown by a loss of material witnesses due to lapse of time or loss of evidence because of fading memory attributable to the delay. (Morris, supra, 46 Cal.3d at p. 37; Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) Prejudice can also result from the loss or destruction of material evidence. (Serna v. Superior Court (1985) 40 Cal.3d 239, 251.) "The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice." (Mirenda, supra, 174 Cal.App.4th at p. 1328.) The defendant must establish actual prejudice shown by particular facts, not bare conclusory statements. (See Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) Where defendant fails to demonstrate prejudice, "the court need not inquire into the justification for the delay since there is nothing to 'weigh' such justification against." (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) Even a minimal showing of prejudice, however, requires the prosecution to explain the reasons for the delay. (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1540-1541.)
A federal due process claim based on precharging delay requires an additional showing by defendant that the state delayed in charging defendant "in a deliberate attempt to gain an unfair tactical advantage or over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant's ability to defend against the charges." (United States v. $8,850 (1983) 461 U.S. 555, 563.) Defendant makes no such claim here. --------
We review the trial court's ruling on a motion to dismiss for abuse of discretion, deferring to any underlying factual findings made by the court if they are supported by substantial evidence. (People v. Jones (2013) 57 Cal.4th 899, 922; People v. Cowan (2010) 50 Cal.4th 401, 431; People v Alexander (2010) 49 Cal.4th 846, 874; Mirenda, supra, 174 Cal.App.4th at p. 1330.) Whether defendant was prejudiced by a preaccusation delay is a question of fact to be determined by the trial court. (Mirenda, supra, 174 Cal.App.4th at p. 1328; Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912.)
Analysis
Defendant contends that, contrary to the trial court's finding, he was prejudiced by the delay, citing the clothes taken from him when he was arrested in the early morning hours following the rape, which clothes were inexplicably destroyed by the police in 2009. He also relies on the phone message he purportedly left for Gresham that was not collected as evidence because he was told he had been cleared as a suspect. Defendant has not, however, identified how either item was potentially exculpatory. How could any evidence on his clothing clear him of sexual contact with Doe on the night of the rape? Certainly, evidence on his clothing, such as semen or Doe's DNA, could implicate him, but a lack of biological evidence would not make it less likely he had a sexual encounter with Doe that night, nor would it support his defense that he had a sexual encounter with her some days before the rape. Criminalist Tuscher testified that the absence of biological evidence on defendant's clothing would not clear him of sexual contact with Doe on the date in question because if a man used a condom, the majority of the contact with the victim would be the condom, not the clothing. The presence of Doe's DNA on defendant's clothing would be relevant to show that the two had close contact at some point, but that would be inculpatory evidence, the loss of which would not have prejudiced defendant.
Likewise, what could possibly have been in the message defendant (or Wilson) left for Gresham regarding Doe's state of intoxication that could have a tendency to prove he did not have sex with Doe on the night of the rape? Defendant does not answer this question.
Lastly, defendant correctly notes that his DNA was collected in 2002 but remained untested until 2011. And he correctly notes that the prosecutor "did not provide any persuasive reason for sitting on the evidence in this case." But before the burden shifts to the prosecutor to offer a reason for the delay, defendant must first show prejudice. (Morris, supra, 46 Cal.3d at p. 37.) This, he fails to do.
Defendant Was Not Prejudiced by Cumulative Error
Because there was no error, there was no cumulative error.
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Richman, Acting P.J.
We concur:
/s/_________
Stewart, J.
/s/_________
Miller, J.