Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA030782 Lisa Mangay Chung, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Marcel Douglas Ford appeals from a judgment of conviction entered after a jury trial. The information filed on February 28, 2005 charged a total of 12 counts against defendant and two codefendants. Defendant was convicted of forcible sexual digital penetration (Pen. Code, § 289, subd. (a)(1), count 2); false imprisonment by violence (§ 236, count 3); assault and battery (§§ 240, 242, as lesser included offenses in count 5); forcible oral copulation while acting in concert (§ 288a, subd. (d), count 10); and forcible rape while acting in concert (§ 264.1, count 11).
Codefendants Kimberly Morton and Gary Cooper entered guilty pleas on November 29, 2005 and are not parties to this appeal.
All further statutory references are to the Penal Code, unless otherwise specified.
Following his conviction, defendant waived his right to a jury trial as to the prior conviction allegations. The trial court found true the allegations that defendant had served four prior prison terms (§ 667.5, subd. (b)) and that he had suffered two prior serious or violent felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12).
The trial court selected count 10 as the principal term and imposed the upper term of nine years, tripled to 27 years to life under the Three Strikes law. It added two five-year enhancements on the serious felony priors, plus two one-year enhancements for two of the prison priors. It dismissed the other two prison priors.
The court imposed a concurrent Three Strikes sentence of 25 years to life, plus 12 years for the prior convictions and prison terms, on count 2. It stayed sentence on count 3 under section 654. On count 5, the court imposed 120 days in county jail for the battery conviction and stayed the sentence under section 654. It dismissed the count 5 assault conviction under section 1385. The trial court imposed a concurrent sentence on count 11 identical to that imposed on count 10: 27 years to life plus 12 years.
On appeal, defendant contends that the trial court erred by excluding testimony of the victim’s prior drug history and failure to appear at court hearings; the jury should have been instructed with CALCRIM No. 3406 regarding consent to the sexual offenses; the trial court imposed a disparate sentence and erred in entering two judgments of conviction for the lesser offenses in count 5; and the upper term sentenced violated defendant’s constitutional rights. We affirm the judgment.
FACTS
A. Prosecution
On January 12, 2005 at about 10:00 or 10:30 p.m., defendant invited L. R. to his hotel room in Palmdale. They had known each other a few weeks, and L. R. had no place to stay. L. R. and defendant had consensual sex. Defendant and L. R. consumed rock cocaine.
Around midnight, Kimberly Morton (Morton) and Gary Cooper (Cooper) arrived. Morton supplied Cooper, defendant and L. R. with a piece of rock cocaine. They all smoked the cocaine. A few minutes after arriving, Morton and Cooper started taking off their clothes and began having sex. L. R. and defendant were playing cards. Defendant then went over to Morton and Cooper, took off his pants and T-shirt, got on the floor with them, and engaged in sexual activities with them.
At some point, Morton told L. R. that she had to join them. L. R. refused and Morton told her that she was not going to smoke her dope and Morton was not going to “f--- these guys” by herself. L. R. said that Morton could have her dope back. L. R. then took the piece of rock cocaine and her crack pipe and smashed them against the wall.
Morton jumped up and began hitting L. R. Morton bit L. R.’s ear and L. R. screamed for defendant and Cooper to make Morton stop, but neither came to her aid. After 15 to 20 minutes, Cooper eventually broke them up. Morton was bleeding.
Morton pulled out a box cutter and told L. R. she was going to have sex. When L. R. continued to refuse, Morton cut L. R.’s right arm. Morton kept threatening and lunging at L. R. with the box cutter.
Morton forced L. R. to undress. She told L. R. to orally copulate defendant. Morton was threatening to kill L. R., so L. R. complied with Morton’s request. While she was orally copulating defendant, Morton stabbed L. R. in her right foot with the box cutter because she was not doing it right.
Defendant turned L. R. around and penetrated her vagina from behind with two of his fingers. He then penetrated her vagina with his penis. L. R. tried talking to defendant, but he told her to shut up and hit her on the head when she complained and tried to resist. Defendant eventually made L. R. orally copulate him again. He hit her whenever she talked. L. R. did not try to leave because Cooper was acting as a bodyguard.
Morton and Cooper went into the bathroom for privacy. When L. R. noticed defendant falling asleep, she grabbed a jacket and left the room. L. R. went to a friend’s room and the police and paramedics were called. Deputy William McCormick spoke to L. R. in the parking lot of the hotel. She was being treated in an ambulance. She said she had been gang-raped and stabbed. She accused “Marcel.”
L. R. was taken to the hospital for a sexual assault exam and treatment of her injuries. She had a sprained toe, a cut on her arm and a bite mark on her cheek. The cut on her arm required 13 stitches.
Deputy McCormick also questioned L. R. at the hospital. L. R. stated that she met defendant four days earlier and he wanted sex. She told Deputy McCormick that Morton and Cooper had sex on the floor and defendant joined them. She declined to join and the others were upset. Morton told L. R. that if she smoked, she had to orally copulate defendant. L. R. added that Morton chased her from the hotel room, and she fought with Morton in the parking lot. Deputy McCormick later wrote a report that L. R. stated she was not raped.
L. R. testified that at the hospital, she was in and out of sleep and did not recall her statement. L. R. denied fighting with Morton in the parking lot.
Detective Gregory Minster interviewed defendant. He denied having any sexual contact with L. R.
B. Defense
Defendant did not testify and presented no testimony in his defense.
DISCUSSION
A. Limitation of Evidence Regarding Victim’s Drug History and Failure to Appear
Defendant contends that the trial court erred in limiting defense counsel’s cross-examination of L. R. regarding her prior drug case and failure to appear at court hearings in the instant case. Defendant contends that he was prejudiced when his attorney was precluded from attacking L. R.’s credibility. We disagree.
The People submit that defendant has waived this claim. Defendant’s trial counsel objected to the trial court’s ruling based on violation of “his constitutional right to present evidence.” Defendant did not specifically object on the grounds he now raises, that his federal constitutional rights to a trial, to present a defense, and to confront witnesses were being violated. We do not find that defendant’s constitutional arguments are forfeited on appeal due to the lack of specificity. (See People v. Partida (2005) 37 Cal.4th 428, 435-438.) In any event, defendant’s contention fails on its merits.
During cross-examination of L. R., the prosecutor objected under Evidence Code section 352 to the continued questioning regarding L. R.’s past drug usage, on the ground that the information was irrelevant and substantially more prejudicial than probative. Her prior objections to the questions had been overruled. The prosecutor also requested that the evidence be excluded or the jury admonished to disregard it. The trial court did not specifically rule on the objection, but it declined to admonish the jury and stated that any objections to further questions regarding L. R.’s history of drug usage or pending cases would be sustained.
The trial court indicated that it had reviewed L. R.’s criminal history and her prior misdemeanor vandalism case. The trial court indicated that her “Prop. 36 cases” were not proper impeachment because they were not crimes of moral turpitude. Finally, the trial court ruled that regarding her nonappearances in other cases, “there has been insufficient connection to make a link regarding her credibility as to this case.”
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, gives drug offenders several opportunities for probation before they are imprisoned for drug-related offenses. (People v. Enriquez (2008) 160 Cal.App.4th 230, 240.)
Evidence Code section 352 gives the trial court the discretion to “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 the issues, or of misleading the jury.” If evidence is excluded under Evidence Code section 352 and that exclusion was erroneous, reversal is not required “unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (Id., § 354.) There has been a miscarriage of justice if it is reasonably probable that, absent the error, defendant would have received a more favorable result. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
While a defendant has the right to present evidence relevant to the theory of his defense, this right “does not require ‘the court [to] allow an unlimited inquiry into collateral matters.’” (People v. Ayala (2000) 23 Cal.4th 225, 282.) The proffered evidence must be of more than slight or limited probative value. (Ibid.; People v. Reeder (1978) 82 Cal.App.3d 543, 553.) Trial courts do not abuse their discretion in excluding evidence marginally relevant for impeachment purposes in order “‘to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral . . . issues.’” (Ayala, supra, at p. 282.)
Defendant contends that L. R.’s drug cases showed that her drug use was more extensive than she admitted at trial. While her credibility was certainly at issue, she was not on trial. Evidence that L. R. used drugs was admitted at trial. L. R.’s ability to perceive and remember the events during the evening in question was more than adequately explored by defendant’s counsel during cross-examination. Additionally, any alleged inconsistencies in L. R.’s statements to the 911 operator, law enforcement, and at trial were explored during her testimony. The trial court did not abuse its discretion under Evidence Code section 352 in refusing to allow extensive inquiry into L. R.’s past drug cases. (People v. Ayala, supra, 23 Cal.4th at p. 282.)
Defendant also contends that L. R.’s failures to appear in the instant case showed her poor attitude toward the proceedings and tended to discredit her. While the trial court specifically ruled that L. R.’s “nonappearance on those other cases” was insufficient to affect her credibility in this case, the record indicates that she was ordered back numerous times during the lengthy proceedings in the instant case and did make some of her appearances. The trial court, in exercising its discretion, did not find that there was a sufficient connection between L. R.’s nonappearances and her credibility. Neither do we, and we find no abuse of discretion in excluding the evidence. (Evid. Code, § 352.)
B. Failure to Instruct with CALCRIM No. 3406
Defendant contends that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 3406 concerning an honest and reasonable belief that there was consent to the sexual offenses in counts 2, 10 and 11. We disagree.
CALCRIM No. 3406 is required if “there is substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented” to the charged sexual offenses. (People v. Williams (1992) 4 Cal.4th 354, 361.) However, defendant’s reliance on People v. Mayberry (1975) 15 Cal.3d 143 for the proposition that the trial court had a sua sponte duty to give CALCRIM No. 3406 is misplaced. The facts of the instant case do not support a sua sponte obligation to give the instruction.
CALCRIM No. 3406 states:
In Mayberry, defendant requested the instruction on reasonable belief in consent, and the trial court refused. (People v. Mayberry, supra, 15 Cal.3d at p. 153.) The court held that so long as “there was some evidence ‘deserving of . . . consideration’” of a reasonable belief as to consent, the instruction should have been given. (Id. at p. 157.)
Where, as here, defendant does not request an instruction on reasonable belief as to consent, a sua sponte duty to give the instruction arises only when “‘it appears that a defendant is relying on [the defense of mistake of fact], or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Romero (1985) 171 Cal.App.3d 1149, 1156.) If there is no conduct that would lead a defendant to reasonably and in good faith believe consent existed, a Mayberry instruction is not required. (People v. Williams, supra, 4 Cal.4th at pp. 360-361.)
Reasonable belief as to consent has both a subjective and an objective component. “The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.)
At trial, the defense argued that the victim was a liar and could have been involved in an all night sex party. During discussion with the trial court concerning jury instructions, defendant’s counsel specifically stated that he did not have a Mayberry defense.
On appeal, defendant contends that he was entitled to have the jury instructed pursuant to CALCRIM No. 3406 because he could have reasonably believed that L. R. had consented to the sexual activity, because the undisputed evidence is that she consented to sexual intercourse two hours earlier when she was alone with defendant. Since defendant argued consent at trial, rather than a defense based on equivocal conduct that the defendant may have interpreted as consent, CALCRIM No. 3406 was not appropriate. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148-1149; People v. Maury (2003) 30 Cal.4th 342, 424-425.)
Defendant also asserts that substantial evidence required instruction with CALCRIM No. 3406. We disagree. The evidence showed that defendant committed the charged offenses after L. R. and Morton engaged in a fight during which L. R. was bitten on the cheek and stabbed in the arm. Morton then ordered L. R. to orally copulate defendant. The remaining offenses occurred while L. R. was being held in a hostile environment and threatened with a box cutter.
As the trial court properly determined, the instruction was not required because “this is a situation if [the jurors] don’t believe [L. R.], they will acquit . . . [b]ut it’s not an issue of reasonable though mistaken belief.”
C. Disparate Sentences
Defendant received a state prison sentence of 27 years to life, plus 12 years. Morton received a low term sentence in state prison of two years, and Cooper received a sentence of time served and formal probation after entering guilty pleas. Defendant contends that his sentence was a disparate sentence and violates his federal and state constitutional rights to a jury trial, due process and equal protection. We disagree.
Morton and Cooper were both given credit for 679 actual days in custody and 338 days of good time/work time credit, a total of 1017 days.
Defendant relies in part on the case of People v. Dillon (1983) 34 Cal.3d 441. In Dillon, defendant, who was convicted of first degree felony-murder, was an unusually immature 17-year-old, in no prior trouble with the law, who shot the victim in response to a suddenly developing situation which he perceived as threatening to his own life; while defendant largely created the threatening situation, his immaturity prevented him from seeing the risk he created or from extricating himself from the situation without panicking. (Id. at p. 488.) Additionally, his co-participants in the underlying crime, who could have been liable for the killing as aiders and abettors, received only minimal punishment; none was convicted of any form of homicide. (Ibid.) For these reasons, the court held punishment as a first degree murderer with life imprisonment was cruel or unusual, and it reduced defendant’s conviction to second degree murder. (Id. at p. 489.)
In the instant case, defendant was convicted of forcible sexual digital penetration (count 2), false imprisonment by violence (count 3), assault and battery (count 5), forcible oral copulation while acting in concert (count 10), and forcible rape while acting in concert (count 11). Defendant was a 34-year-old recidivist, with a criminal history dating back 20 years. The trial court in sentencing defendant noted that the instant crimes were serious felonies and violent. In addition, the trial court reviewed defendant’s record, which included two strikes, a robbery and residential burglary, misdemeanors and a section 243, subdivision (c), battery on a peace officer. Defendant also had been on probation and on parole. His situation was totally different from that of the immature teenager in Dillon, with no prior record.
Additionally, defendant was sentenced pursuant to the Three Strikes law, meaning that his sentence was increased due to his recidivist behavior. Under the circumstances, the sentence was not disproportionate to the instant offense and his criminal history. (People v. Cooper (1996) 43 Cal.App.4th 815, 820-823.)
Defendant’s attempt to minimize his role in the instant offenses is not persuasive. While it is true that Morton initially physically assaulted L. R., the evidence is clear that defendant willingly participated in the sexual assault of L. R. He also physically assaulted her when she attempted to get him to stop.
Defendant’s reliance on United States v. Stockwell (9th Cir. 1973) 472 F.2d 1186, certiorari denied (1973) 411 U.S. 948 is also misplaced. While lower federal court decisions are not binding on this court (People v. Seaton (2001) 26 Cal.4th 598, 653; People v. Williams (1997) 16 Cal.4th 153, 190), Stockwell is in any event distinguishable from the instant case. In Stockwell, the trial judge told defendant before trial that if he pled guilty he would receive three years, and that if he went to trial and were convicted he would receive five to seven years. Defendant went to trial, was convicted, and received seven years. (Stockwell, supra, at p. 1187.) The court of appeal remanded the case for resentencing, because the record was clear that defendant received four additional years for going to trial. (Ibid.) Defendant’s claim that he received a greater sentence after trial than his codefendants received pursuant to their plea agreements because he exercised his Sixth Amendment right to a jury trial is not supported by the evidence.
At the time Morton and Cooper pled guilty, defendant was offered 16 years in state prison, with a maximum exposure calculated to be 150 to 175 years to life. The offer prior to trial was 8 times longer than the sentence Morton, the allegedly more culpable individual, received in her plea agreement. As stated above, however, defendant was a career criminal and was sentenced pursuant to the Three Strikes law. This accounts for the longer sentence he received, not the fact that he exercised his right to a jury trial.
D. Sentencing on Count Five
Defendant contends, and the People agree, that the trial court erred in entering judgments of conviction on count 5 for both simple assault and simple battery. While defendant was charged in count 5 with assault by means likely to produce great bodily injury, the jury returned a guilty verdict on both lesser included offenses of assault and battery.
Generally, a person may be convicted for more than one offense arising out of the same act or course of conduct. (People v. Sloan (2007) 42 Cal.4th 110, 116.) However, multiple convictions are prohibited based on necessarily included offenses (People v. Medina (2007) 41 Cal.4th 685, 702). Since simple assault is a lesser included offense of simple battery, defendant cannot be convicted of both. (People v. Colantuono (1994) 7 Cal.4th 206, 216-217; People v. Moran (1970) 1 Cal.3d 755, 763.)
The trial court recognized this and dismissed defendant’s assault conviction pursuant to section 1385. There thus was no error.
Defendant also contends that one of the concurrent sentences imposed for the assault or battery convictions must be stayed pursuant to section 654. The trial court did not impose a concurrent sentence for the assault. There is nothing to stay.
E. Upper Term Sentencing
Defendant contends that under Cunningham v. California (2007) 549 U.S. 270, the trial court erred by imposing an upper term sentence based on facts that were neither found by the jury nor admitted by defendant. We disagree, because the trial court based the upper term on defendant’s recidivism.
The California Supreme Court held in People v. Black (2007) 41 Cal.4th 799 at page 813, that to the extent that there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. Defendant’s prior criminal history was a recidivist factor justifying imposition of the upper term sentence. (Id. at pp. 818-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendant’s upper term sentence consequently is constitutional. (Black, supra, at p. 813.)
That defendant had served prior prison terms is a further recidivist factor that justified the imposition of the upper term sentence. (People v. Black, supra, 41 Cal.4th at pp. 818-820; People v. Yim, supra, 152 Cal.App.4th at pp. 370-371.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.
“The defendant is not guilty of ____________ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
“If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ___________ <insert crime[s]>.
“If you find that the defendant believed that ___________ <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for ___________ <insert crime[s]>.
“If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ___________ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”