Opinion
B160991.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. JHONI HERNANDEZ FRANCO, Defendant and Appellant.
Gary v. Crooks, under appointment by the Court of Appeal, for Jhoni Hernandez Franco, Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Jhoni Hernandez Franco was convicted by jury of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) and sentenced to six years in state prison. He appeals his conviction, alleging evidentiary and instructional error and raises a claim of prosecutorial misconduct. We affirm.
FACTS
Prosecution
Marcenia J. is homeless and lives on the street with her boyfriend. They sometimes sleep at a 24-hour laundromat where people gather to talk and watch TV. Across the street is a liquor store. Late one evening Marcenia visited the laundromat and sat on a bench outside. She was crying because she had argued with her boyfriend that day. Earlier that afternoon Marcenia drank a "2-11," a malt liquor, had a second beer several hours later and a third beer at about 10 p.m.
Close to midnight Marcenia saw appellant walk through a back alley that led to the rear of the laundromat. She recognized appellant, having seen him in that area before. He walked up to the bench and spoke to a man seated nearby. Appellant then turned to Marcenia and, speaking to her in English, offered her a beer, which she accepted. Appellant went to the liquor store and returned five to six minutes later carrying a black plastic bag.
Marcenia suggested they sit on steps behind the laundromat to drink their beer. The back steps are illuminated by lights from the street. Appellant said, "Lets go over here," and Marcenia assumed he was directing to her a couch near the steps. Instead, he pulled her toward a darkened area. Marcenia refused to follow, saying it was too dark. Appellant pulled her down a ramp, which led into a recessed area that was extremely dark and foul-smelling. On the ground were broken bottles, glass, rocks, feces and urine.
Appellant grabbed Marcenia and pushed her onto the ground. It was pitch dark, but she could feel bricks, rock, gravel and garbage beneath her. She screamed repeatedly, "Dont do this," but appellant told her to "shut up." She screamed, "Please somebody help me. I am being raped." Appellant put one hand over Marcenias mouth and held her down with the other. He released his hand and unzipped her pants and pulled them down to her knees. Appellant unzipped his pants and inserted his penis in her vagina. Marcenia continued to scream and struggle.
About 50 yards from the ramp were several bungalows. One of the residents was awakened about midnight and heard a woman screaming, "Help me, I am being raped." He grabbed a baseball bat, ran to the entrance of the ramp and called 911 from his cell phone. The officers arrived, heard the screams, and ran down the ramp.
Appellant was lying face down with his palms at his sides as if he were doing push-ups. An officer ordered him to get up and he rolled over and shoved something into his pants at the waistband. The police then saw Marcenia laying face-up on the debris. Her pants were around her ankles and her jacket was unzipped. She was trembling and appeared shocked and distressed. Appellant was taken into custody.
A nurse from the Sexual Assault Response Team (SART) examined Marcenia several hours later. She had vegetable-type debris in her hair and on her clothing. There was an abrasion on the bridge of her nose, buttocks, the small of her back, her legs and the backs of her thighs. Marcenia had bruises, redness and two abrasions on her external vaginal area and the vaginal wall. The injuries were consistent with her description of the assault. Marcenia testified that appellant had not used a condom and she did not think he had ejaculated.
The SART nurse testified that Marcenia smelled of alcohol but did not appear to be intoxicated. Although her speech was a little slurred, she was able to understand and cooperate with the examination. The nurse also examined appellant, who had abrasions on his right and left forearms, right index finger and on the backs of his knees. Marcenia testified that she never consented to sex with appellant nor did she offer sex in exchange for money. The police did not find cash in Marcenias purse or in the area where the rape allegedly occurred.
Defense
Appellant testified that he first saw Marcenia at the laundromat. She was
sitting on a bench, but stood up and walked towards him. He does not speak English, so she communicated through signs that she wanted a beer. She held her fist up with her thumb extended towards her mouth. Appellant gave her a beer and she said "sexo." She indicated she wanted money by extending her hand and rubbing her thumb and forefinger together. Appellant understood by Marcenias gestures that she would give him sex in exchange for money and beer. Marcenia held up 10 fingers, so appellant gave her a $10.00 bill. He had $3.00 left in his jacket.
Marcenia took appellant by the hand and led him into the alley. She took her pants down and unbuttoned her jacket. They undressed and began having vaginal intercourse. While appellant was on top of Marcenia she suddenly started screaming "like a crazy woman." Appellant tried to calm her down, but she continued to scream. The police arrived and took him into custody. Under questioning, appellant gave two different versions of events. He first told the police that he had never touched Marcenia. Later he said that he heard Marcenia screaming and helped her up. Appellant admitted that he had lied because he was afraid the police would tell his wife that he patronized a prostitute.
A laundromat employee testified that he saw Marcenia about 11:00 p.m. on the evening of the alleged rape. She was sitting on an outside bench, drinking a 40-ounce bottle of beer and crying. Fifteen to thirty minutes later, he saw her walking alone down the alley. A defense expert, an obstetrician/gynecologist, testified that Marcenias injuries were consistent with consensual sexual intercourse.
Appellants wife and his employer are both bilingual. They testified that appellant speaks only Spanish and could not have communicated with Marcenia in English.
Admission of Evidence of Prior Sexual Conduct
After hearing the defense testimony, the trial court granted a defense request to admit evidence of Marcenias arrest in 1998 for solicitation of prostitution. Jason Clawson was an officer with the Pasadena Police Department. He testified that four years earlier he was an undercover officer working vice crimes. While working in an area known for prostitution he saw Marcenia standing at a pay phone. He approached and asked if she was waiting for a phone call. She answered that she was not. She moved away from the phone and the officer made a fictitious phone call. When he hung up, he offered her a beer. Marcenia indicated that she wanted a Colt 45, a type of malt liquor. Clawson told her that his friend was going to pick him up in an hour and a half because his car was in the shop. He asked her if they could "go party" and she answered that there was no place to party. Clawson told her he could rent a room and had $40 to spend. She said that he was probably a cop and told him to get the beer.
When Clawson returned with the beer, he saw a woman standing next to Marcenia and a man a short distance away. Clawson asked her to step away so he could speak to her privately. He then asked if they were going to party and Marcenia asked how he was going to get a motel room if he had only $40. Clawson said he would use his credit card. He asked what he would get for $40 and she said "regular sex." He asked if she would orally copulate him and she said she was "not good at it." Clawson asked if she liked anal sex. She said "sometimes" but he would first have to pay $10 to the man standing nearby. Clawson gave a predetermined arrest signal. His partner arrived and they arrested Marcenia and the man for solicitation of prostitution.
After their arrest, they were placed together in custody. Their conversation was monitored, and they claimed they did not know one another. Marcenia told the man that she was waiting for her boyfriend to pick her up and Clawson had propositioned her. She later told Clawson that she was not going to have sex with him, but thought he was a nice guy.
After hearing Clawsons testimony, the trial court granted a defense motion to admit evidence of Marcenias arrest. The court reasoned, "The event that occurred in 1998 bears a striking resemblance to the testimony of the defendant, at least with respect to the alcoholic beverage, the beer, with respect to the amount of money for sex." The trial court concluded that the evidence was admissible under Evidence Code section 782 to allow the jury to assess Marcenias credibility.
DISCUSSION
Appellant contends that the trial court made a series of instructional errors of constitutional dimension requiring reversal. The Attorney General counters that we need not consider appellants claims of error because the instructions were based on inadmissible evidence. They ask us to review its admissibility under Penal Code Section 1252.
Penal Code Section 1252Penal Code section 1252 provides in part, "On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General." (People v. Braeseke (1979) 25 Cal.3d 691, 698, vacated 446 U.S. 932, on remand 28 Cal.3d 86.) The People seek to refute appellants claims of instructional error by contending that the instructions were based on inadmissible evidence and any argument is therefore moot. They reason that failure to instruct is not error because "the trial court ought not to have allowed the introduction of the evidence in the first place."
The People are not requesting that we consider their argument "in addition to the issues raised by the defendant," as specified by section 1252. Rather, they are asking us to rule on the admissibility of the evidence and dispense with any consideration of appellants claims. We deny their request.
CALJIC 2.23.1
Appellant acknowledges that the trial court properly instructed the jury with CALJIC 2.20, but contends it should have further instructed with CALJIC 2.23.1. CALJIC No. 2.20 outlines the factors to be considered in assessing witness believability. The factors include the witnesss ability to perceive events, remember and communicate; the character and quality of the testimony; the existence or nonexistence of a bias; and the existence or nonexistence of a fact testified to by the witness. The jury was also instructed that it could consider "[p]ast criminal conduct of a witness amounting to a misdemeanor."
CALJIC 2.23.1 informs the jury that a witnesss believability is not necessarily impaired because she has committed a misdemeanor. Appellant contends that failure to give CALJIC 2.23.1 was error because he was "allowed to produce the impeaching evidence, [but] he was not allowed to have full instruction to the jury on how to utilize it."
Appellant concedes that the record does not indicate whether defense counsel requested instruction with CALJIC 2.23.1. He argues, however, that the trial court had a sua sponte duty to instruct because the Use Note to CALJIC 2.20 specifies that CALJIC 2.23.1 "must be given, as well as instructions defining the misdemeanor, where appropriate." It is difficult to see how appellants argument advances his position. It would seem that instruction with CALJIC 2.23.1 would be undesirable to the defense. The instruction informs the jury that the believability of a witness is not necessarily impaired although that witness has committed a misdemeanor.
Although there was a sufficient evidentiary basis to instruct with CALJIC 2.23.1, neither side requested it, and appellant has failed to provide authority that a trial court has a sua sponte duty to instruct with CALJIC 2.23.1. No error occurred.
CALJIC 2.03
The trial court instructed the jury with CALJIC 2.03, concerning consciousness of guilt. The instruction provides that, if the jury finds the defendant made a willfully false or misleading statement concerning the crime, the jury may use that statement as tending to prove consciousness of guilt. Appellant requested the court to instruct the jury that CALJIC 2.03 applies to a victim as well as a defendant. He argues that the instruction placed undue emphasis on his testimony without subjecting Marcenias testimony to the same scrutiny.
Appellant appears to argue that the jury should have been permitted to consider whether Marcenias statements showed a consciousness of guilt. We fail to see how he could have benefited from such an instruction. Appellant was on trial for rape, thus his guilt or innocence was in issue. Marcenia had not been charged with any crime, thus CALJIC 2.03 was inapplicable to her testimony. The trial court correctly refused appellants request.
Instruction on Solicitation of Prostitution
Appellant contends that the trial court erroneously refused his request for an instruction that solicitation of prostitution is a misdemeanor. This omission, he alleges, precluded the jury from learning that this conduct was unlawful. Appellant further argues that the case was a credibility contest, and the trial courts error "may have tipped the balance" in favor of the People. He contends that, had the jury been so instructed, it is reasonably probable he would have received a more favorable outcome. Appellant argues that the resulting prejudice constituted reversible error.
We determine whether the trial court erred in its instructions to the jury by reviewing the charge as a whole in the context of the entire record. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Haskett (1990) 52 Cal.3d 210, 235.) A jury is presumed to understand and follow its instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
The jury heard testimony that Marcenia was arrested for soliciting an act of prostitution. They were also instructed that a misdemeanor offense could be considered in assessing witness credibility. (CALJIC 2.20.) Under these circumstances, it is not reasonably likely that the jury believed that solicitation of prostitution was lawful. (See People v. Kelly (1992) 1 Cal.4th 495, 525 [there was no reasonable likelihood that the jury understood the charge as asserted by defendant].) It was not necessary for the trial court to give the requested instruction.
Cross-Examination of Victim
During cross-examination, defense counsel asked Marcenia whether she had anything to drink that day and was aware that she smelled of alcohol. The trial court sustained a relevancy objection and refused to allow defense counsel to inquire into Marcenias state of sobriety. During a recess, defense counsel argued that he had been denied an opportunity to attack Marcenias credibility. The trial court responded that counsel had been permitted to ask questions, but would not be allowed to testify as to what he smelled. Defense counsel responded, "Well then, I ask that the jurors all be allowed to go up and look at her and smell her." He then asked the court to take judicial notice that she was intoxicated. The court refused and counsel asked for a recess to obtain an investigator to testify to Marcenias state of sobriety.
The trial court denied counsels request under Evidence Code section 352. It concluded that this was a collateral issue and an investigation would be unduly time consuming and of little assistance to the jury. Appellant argues that the court erred in ruling that Marcenias intoxication during her testimony was irrelevant. He contends that the trial court violated his right to "constitutional due process and the right to a fair trial."
We disagree. The trial court has broad discretion to exclude impeachment evidence on a collateral matter. (Evid. Code, § 352; People v. Mayfield (1997) 14 Cal.4th 668, 748.) Appellant was allowed an opportunity to impeach Marcenias credibility by asking if she had anything to drink. Whether Marcenia was intoxicated at trial bore little relevance to the events that occurred on the night of the alleged offense. The court was under no obligation to grant a recess to allow defense counsel to gather evidence of Marcenias intoxication. There was no abuse of discretion.
Prosecutorial Misconduct
Appellant argues that the prosecutor engaged in misconduct during closing argument by vouching for witnesses and arguing facts not in evidence. The prosecutor contended that the money appellant allegedly paid Marcenia was never found. "[The] defense said that there is no evidence that [Marcenias] jeans were ever searched. The prosecution is required to turn over any evidence that we have. The defense is — "Defense counsel objected on the grounds that the prosecutor was vouching and referring to facts not in evidence. The trial court overruled the objection, stating that the comments were argument, not evidence. The prosecutor continued, "As I said before, if that $ 10 had been recovered, believe me it would have been paraded in front of you."
Appellant asserts that the prosecutor argued facts not in evidence by implying that Marcenias jeans had been searched and no money found. He claims the statements also vouched for the truth of Marcenias testimony that she had not received any money. We disagree. The prosecutor pointed out that there was no evidence to support appellants testimony that Marcenia accepted money in exchange for sex. This was a comment on the state of the evidence. The prosecution may properly refer to the absence of exculpatory evidence in closing argument. (People v. Mitcham (1992) 1 Cal.4th 1027, 1051.) There was no prosecutorial misconduct.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., and PERREN, J. --------------- Notes: The requested instruction read, "Every person who solicits anyone to engage in or who engages in any act of prostitution is guilty of a misdemeanor."