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People v. Freeman

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
B231415 (Cal. Ct. App. Feb. 9, 2012)

Opinion

B231415

02-09-2012

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO DURELL FREEMAN, Defendant and Appellant.

Verna Wefald , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA112274)

APPEAL from a judgment of the Superior Court of Los Angeles County, John Torribio, Judge. Affirmed.

Verna Wefald , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Antonio Durell Freeman, appeals the judgment entered following his conviction for rape, forcible oral copulation, dissuading a witness, and elder abuse, with an enhancement for committing burglary with intent to commit theft (Pen. Code, §§ 261, 288a, subd. (c)(2), 136.1, subd. (c)(1), 368, subd. (b)(1), 667.61).He was sentenced to state prison for a term of 29 years to life.

All further statutory references are to the Penal Code unless otherwise specified.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

Mary R. was an 84-year-old Norwalk resident who lived in a condominium complex. Because she suffered from macular degeneration and optic nerve damage, her eyesight was very bad. Although she could see people, she could not make out their features.

At about 3:30 a.m. on May 1, 2009, Mary was awakened by the sound of breaking glass. When she went downstairs to investigate, she saw someone standing by her patio door asking to be let in. Thinking it was a neighbor who had locked himself out, Mary opened the door. A man came in and demanded money. He rifled through Mary's purse but found nothing. Then he went into the kitchen, continuing to ask "Where's the money?"

The man dragged Mary upstairs by her wrist: "He started looking around to see what I had there. I kept telling him, 'You are not going to find any money up here . . . .' " The man kept looking around anyway, searching behind the window blinds and turning her mattress over. Then he pushed her onto the bed, forced his penis into her mouth and raped her. Mary fought him the whole time.

Afterwards the man went back downstairs, still looking for Mary's money. She offered him $60, hoping he would just take it and go away. He did, warning her not to call the police. While holding some kind of metal bar in his hand, he said, "Don't call the cops," and "Remember, I know where you live and I'll be back." As soon as the man left, Mary called her neighbor, Carole Strode.

Strode testified Mary called her shortly after 3:30 a.m. that morning. Strode got dressed and drove over to Mary's apartment, arriving at about 4:00 a.m. when it was still dark outside. She found Mary "sitting there at the dining room table in a short nighty just rocking back and forth." Strode testified, "I kept asking her if she called the police and she said, yes, she did. But they didn't come and they didn't come . . . . Finally after about an hour, they showed up. They had flash lights. They said they were out checking the area. They couldn't get their cars into the complex. It's gated. They couldn't drive their cars in so they had crawled over the wall."

Mary was taken to the hospital. Her body was covered in bruises and abrasions, and there was a large tear in her vagina for which she was referred to the emergency room. Semen was found in Mary's vagina and on her bed sheet.

The police obtained DNA samples from defendant Freeman after he was arrested on September 8, 2009. A senior criminalist with the Los Angeles County Sheriff's Department Scientific Services Bureau tested the bed sheet and the sexual assault kit, and determined the semen found in Mary's vagina and on her bed sheet had come from Freeman.

Mary denied having ever paid money to engage in sex with a young black man who lived in her condominium complex. She also denied having consented to the sexual acts which occurred that night.

2. Defense evidence.

Coreen Negrete was a neighbor of Mary's in the condominium complex. About 5:00 a.m. that morning, Negrete saw Mary at her desk going through some papers. Negrete also saw a white man standing near Mary.

Freeman testified in his own defense. He used to reside in the same condominium complex as Mary when he was living with a former girlfriend. One day he helped Mary dump her trash. They struck up a conversation and Mary said she liked younger men and wanted to have sex with him. Freeman told her "it wasn't going to be free." Thereafter, he had sex with her about once a week. He accepted money from her because, although he was employed at the time, he always needed money. He had to support six children he had fathered by five different women. At the time Mary was assaulted, Freeman had a girlfriend and was seeing other women as well.

Freeman testified he moved out of his girlfriend's condominium in August 2008, but he continued to visit the complex and have sex with Mary in exchange for money. The last time he had sex with her was near the end of April 2009. At that time, he told her he was ending their relationship and he never saw her again.

Freeman testified that when he was interviewed by the police after his arrest, he told them he had been having sex for money with an elderly woman who lived next door to him in the condominium complex. But on cross examination, Freeman admitted he told police Mary had given him money because he was having financial problems, not because she was paying him for sex. He did not want to admit to the police that Mary had been paying him to have sex with her.

CONTENTIONS

1. There was insufficient evidence to sustain Freeman's convictions.

2. The trial court erred by refusing to admit lack of motive evidence.

DISCUSSION

1. There was sufficient evidence to sustain the convictions.

Freeman contends there was insufficient evidence to sustain his convictions. This claim is meritless.

a. Legal principles.

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

" 'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (Ibid.)"If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores." (Id. at p. 1574.)

b. Discussion.

Freeman does not dispute that the forensic evidence proved he had sex with Mary. Rather, he claims their sex was consensual and had taken place at earlier times than the day she was assaulted. He points out Mary could not identify her assailant and Negrete testified she saw a white man in Mary's condominium early that morning, whereas he is black. But Strode testified she arrived at Mary's condominium an hour before Negrete's observation, which was therefore likely to have been of someone responding to the crime scene. Most significantly, Mary testified she never had consensual sex with Freeman.

Freeman argues: "Even viewing [Mary's] denials of consensual sex with appellant as circumstantial evidence of guilt, it was certainly plausible that [Mary] was not truthful." But that, of course, was a question for the jury. Certainly there was nothing inherently improbable about her testimony. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206 [it is trier of fact's exclusive province to determine witness credibility].) "To warrant the rejection of the statements given by a witness who has been believed by the [jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." (People v. Barnes (1986) 42 Cal.3d 284, 306.)

There was sufficient evidence to sustain Freeman's convictions.

2. Exclusion of evidence does not require reversal.

Freeman contends his convictions must be reversed because the trial court erroneously excluded two witnesses who would have testified they were Freeman's girlfriends and had been sexually active with him near the time Mary was assaulted. This claim is meritless.

a. Background.

Defense counsel told the trial court he wanted to call as witnesses two women in order "[t]o establish that at the time this incident occurred they were both intimately involved with Mr. Freeman, that they were engaged in sex with him. It goes toward motive, Your Honor."

The trial court disagreed: "Well, I really don't think it does. It seems to me it doesn't meet any issues at all because this started out as a robbery and segued into rape. It wasn't a rape in which robbery was the secondary motive. . . . He didn't immediately jump on her and do anything sexually towards her. That came after he . . . confronted [her] and said where's the money, where's your money. She was quite direct in saying he became very frustrated by the inability to find anything of value. I don't think those witnesses really are relevant."

Defense counsel argued that during his police interview Freeman "consistently maintained that he didn't have to rape anyone, that he had girlfriends, that he didn't have to rape someone for sex. I think . . . it goes toward a lack of motive."

The prosecutor replied: "I think it has absolutely no relevance . . . whatsoever whether somebody is having consensual sex with one other person or ten other individuals at the time that the sexual assault is committed. If it was something dealing with his prior relationship with Mary [R.], that would be relevant. . . . I don't think that one has a need to go out and rape because they're not having sex. I think rape is a crime of violence that is completely different and separate from that concept, completely."

To which defense counsel replied: "[W]hat counsel thinks is one thing, what I think that's one thing, but . . . the jury is entitled to hear any evidence with respect to lack of motive and determine what weight they're going to give. I think that what counsel is saying is argument . . . ."

The trial court ruled Freeman could not put on these two witnesses. Based on Freeman's police statement, defense counsel told the jury during closing argument that Freeman had no motive to rape Mary because he had girlfriends.

b. Discussion.

"[R]elevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) 'The test of relevance is whether the evidence tends " 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." ' " (People v. Guerra (2006) 37 Cal.4th 1067, 1116-1117.)

Although not an element to be proved by the People, motive is always a relevant fact in a criminal prosecution. (People v. Sykes (1955) 44 Cal.2d 166, 170 ["Motive is a material fact."]; People v. Perez (1974) 42 Cal.App.3d 760, 767 ["Motive is always relevant in a criminal prosecution."].) Similarly, lack of motive is a relevant fact. (People v. Snow (2003) 30 Cal.4th 43, 89 [where defendant charged with murder to prevent victim's testimony against him in robbery case, defendant's knowledge of weaknesses in prosecution's robbery case was relevant as tending to show his lack of motive to commit the murder]; see also People v. Sears (1970) 2 Cal.3d 180, 190 ["Instructions generally pointing out the relationship of motive and lack of motive to guilt and innocence have long been approved in this state. [Citation.] Lack of motive is not only relevant on the issue of identification but also to the issue of premeditation and deliberation, and no reason appears why a defendant upon request should not be entitled to a specific instruction pointing out that lack of motive is a circumstance which may be considered by the jury in determining the issue of premeditation and deliberation."].)

Freeman's jury was instructed on motive as follows: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
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In this case, we are persuaded the relevance of the proposed lack-of-motive evidence was so slight the trial court did not abuse its discretion by excluding it. Both the legal community and our wider society have moved beyond the old-fashioned notion that rape is a crime of sexual passion. As the prosecutor noted below, it is widely recognized today that rape is a crime of violence. That Freeman may have been involved in one or more on-going intimate relationships at the time Mary was assaulted did not make it less likely Freeman was the perpetrator, especially given that the initially-intended crime was not rape but theft. Moreover, even if probative, the evidence would have been highly speculative. (See People v. Clark (2011) 52 Cal.4th 856, 924 [error to admit testimony from defendant's domestic partner that they had not been sexually active during the two weeks prior to a sexual assault/murder: "To infer from such testimony that at the time of the crimes defendant was sexually frustrated and thus motivated to rape [the victim] was highly speculative and thus irrelevant."].) Hence, the trial court did not err by excluding this evidence.

In any event, even assuming arguendo the trial court did err by excluding this evidence, the error was harmless. (See People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4 ["proper standard for review of the assumed evidentiary error here [i.e., improperly excluding relevant evidence] is that for state law error under People v. Watson (1956) 46 Cal.2d 818, 836"].) The essential evidentiary conflict in this case was a simple one. Freeman claimed he had been having a consensual sexual relationship with Mary, which explained away the forensic evidence tending to show he had been the perpetrator. Mary testified this alleged consensual sexual relationship never existed. Particularly given Freeman's performance on the witness stand, in which he contradicted the story he had given to the police, there was overwhelming evidence in support of Mary's testimony.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J. ALDRICH, J.


Summaries of

People v. Freeman

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
B231415 (Cal. Ct. App. Feb. 9, 2012)
Case details for

People v. Freeman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO DURELL FREEMAN, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Feb 9, 2012

Citations

B231415 (Cal. Ct. App. Feb. 9, 2012)