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People v. Henderson

California Court of Appeals, Third District, Sacramento
Jul 8, 2008
No. C053196 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TOMMY HENDERSON, Defendant and Appellant. C053196 California Court of Appeal, Third District, Sacramento July 8, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 04F09012

DAVIS, Acting P.J.

In the initial trial of this matter, a jury deadlocked on whether defendant Tommy Henderson committed an act of forcible oral copulation, and acquitted him of the remaining charged offenses; it convicted him of a lesser offense of attempting to bribe the victim. On retrial, a second jury convicted him of forcible oral copulation. Based on his substantial criminal history, Judge White sentenced him to the upper term for forcible oral copulation. Judge Balonon, who presided over the first trial, subsequently designated the attempted bribery conviction as the principal term, imposed the upper sentence based in part on his prior unsatisfactory performance on probation and parole, then imposed a full consecutive sentence for the sexual offense based on its occurrence at a different time and place and on defendant’s criminal background. Neither of the trial judges found any mitigating circumstances.

On appeal, defendant contends it was error to deny his pretrial motions to suppress evidence or dismiss the charges; to limit cross-examination of a witness testifying about the attempt to bribe the victim; to exclude evidence of the victim’s sexual conduct; and to sentence him to consecutive upper terms. We shall affirm.

As we are not called upon to assess the sufficiency of the evidence or the prejudicial effect of any error, we do not need to relate the entirety of the evidence underlying defendant’s convictions. We will incorporate the facts pertinent to these claims in the Discussion.

DISCUSSION

I

A

As defendant was awaiting his first trial, the attorney of his cellmate notified detectives that defendant had been talking to the cellmate about wanting to prevent the victim from testifying. A detective went to the jail (with the permission of the attorney) to interview the cellmate. The cellmate told the detective that defendant had begun to talk about the pending charges against him, expressing concern that the DNA evidence and the testimony of the witness would lead to his conviction. He stated his willingness to pay $4,000 for someone to get rid of the victim (out of an inheritance that he was anticipating), and that he was trying to get in touch with his son to arrange this. He mentioned learning the address of the victim from discovery documents. The detective told the cellmate that regardless of the result of this information, there would not be any form of benefit in exchange to the cellmate in his own pending case. The cellmate nonetheless was willing to work with the detective (stating at trial that he was feeling regret about the death in the case in which he was involved, and wanted to prevent harm from happening to someone else).

Indeed, the cellmate had brought this information to his attorney’s attention in the course of a meeting conveying the prosecution’s plea offer for testifying against the cellmate’s codefendants in the murder charge against them. In exchange for his truthful testimony, the prosecutor would allow the cellmate to plead guilty to voluntary manslaughter (along with a firearm enhancement) with a stipulated term of seven years. This offer had rejected a defense proposal for a seven-year maximum, but the prosecutor agreed to consider that possibility.

In his second meeting with the detective, the cellmate agreed to wear a recording device when he returned to their cell. Because defendant had been having trouble contacting his son about silencing the victim, the cellmate told him about a fictitious “hit man” named “Slim,” whom defendant’s daughter could arrange to contact.

The jury heard a tape of this conversation with defendant.

A deputy posing as Slim met at the jail with defendant and recorded their conversation (again, the jury heard the tape of this meeting). The decoy was unable to get defendant to incriminate himself; in fact, defendant broke off the parley and returned to his cell. After covering a microphone in their cell with a pack of cards, defendant told his cellmate that he had met with Slim and intended to have his daughter contact Slim again. The cellmate obtained a phone number to use from the detective, written on a small piece of paper that the cellmate left on the cell’s windowsill. The cellmate was not sure what happened to the piece of paper.

On two occasions when defendant’s daughter visited him at the jail, she copied identifying information about the victim from a court document that defendant pressed against the glass. After he had met with Slim, defendant told her to pass the identifying information on to her brother, who would be dealing with Slim. Slim later called her directly, however. Having misplaced the written information about the victim, she told him what she could remember of it. The police arrested her and searched her home, finding another paper on which she had also copied the information about the victim.

The detective in charge of the sting ordered a search of defendant’s cell on the night of the daughter’s arrest. The police seized defendant’s Bible, which contained a piece of paper bearing Slim’s name and the phone number that the detective had given the cellmate; the handwriting was not the detective’s. They also seized documents from defendant’s papers that had information about the victim corresponding to that found in his daughter’s possession, as well as a two-page investigative report prepared for the defense that apparently only included her name and her husband’s.

The cellmate subsequently entered his plea in his own case. The prosecutor had acceded to the defense request for a maximum rather than stipulated term of seven years. The recitals did not include any agreement about testifying in defendant’s case. In his discussions in chambers, however, defense counsel cited the cellmate’s involvement in the present case for the court’s consideration in sentencing the cellmate to the lower term of four years. At the time of his testimony at defendant’s first trial, the cellmate had yet to be sentenced because he had not yet testified in his own murder trial (and therefore had yet to comply with the condition of truthful testimony) or in the present case. He admitted that he hoped his efforts in the present case would convince the court to sentence him to the lower term in his own. He also admitted to the jury that he had previous convictions for burglary, theft, and credit card fraud.

B

Before his first trial, defendant moved alternately to dismiss all charges against him and to suppress evidence seized in a search of his jail cell. The motions invoked both the right to effective counsel and the Fourth Amendment. The court denied the motions except to suppress the two-page report of the defense investigator. Defendant challenges these rulings.

The detective testified at the hearing on these motions. He specifically denied searching defendant’s cell for any evidence related to the underlying sex charge because he did not want to prejudice its prosecution. He found an envelope or folder containing what was apparent to him were documents relating to the defense against the underlying crime. There were about 200 sheets of paper in the folder. He set this aside as he completed the rest of the search until he could go through it in defendant’s presence. Having found information about the victim’s identity in the search of the daughter’s home that she admitted obtaining from defendant, he wanted to determine if similar information was present in defendant’s folder of papers to corroborate her statement. As defendant sat there, the detective skimmed through the pages in the folder looking for the name of the victim and whether any identifying information was also present. In the course of his skimming, he did not acquaint himself with any of the information relating to defense strategy or tactics in the underlying crime as he seized the various documents. He did not share anything he obtained in the course of the search with anyone, other than the documents that he seized. Copies of all these documents were retained in the department’s records system, but the report of the defense investigator was not part of the documents that he sent to the prosecutor. He did not want to retain the entire folder while attempting to get authorization to review it because defendant might need to have access to it in the interim.

1.

We first make short shrift of defendant’s argument that the search of his cell violated his constitutional rights under the Fourth Amendment. The issue is conclusively resolved against him under California law. Any jailhouse search, regardless of its purpose, is valid even for pretrial detainees, because “persons held pretrial in a jail . . . have no expectation of privacy . . . .” (People v. Davis (2005) 36 Cal.4th 510, 527.) Although defendant devotes considerable effort toward explaining why Davis incorrectly resolved conflicting lines of federal and state authority, that is not a conclusion we are permitted to reach. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

2.

This leaves defendant’s motions to dismiss and suppress because the seizures interfered with his right to counsel. Defense counsel had argued at the hearing that the officers investigating the underlying crime could have had access to the investigator’s report through the department’s records system, and the detective’s failure to seize the items for a magistrate’s review rather than his own resulted in a violation of attorney-client privilege because the information to which he had access must be imputed to the prosecution. The court did not dispute that it would have been preferable to have a magistrate review the folder rather than the detective, and that there was a violation of defendant’s right to effective counsel in this search and in the seizure of the investigator’s report. However, in its review of the report, the court did not find anything that would have a negative impact on the defense of the underlying crime or counsel’s effectiveness. Given the absence of any prejudice (the trial court expressly crediting the detective’s claim that he did not recall any of the information he had scanned or impart it to the prosecution), dismissal was not necessary, nor suppression of anything other than the already sealed report (and the direction to remove it from the records system).

The magistrate had retained this report as a sealed exhibit at the time of defendant’s preliminary hearing, and the trial court reviewed its contents in camera.

In order to derive the full benefit of the right to counsel, a defendant must have private and confidential communications with counsel about a pending case. (Barber v. Municipal Court (1979) 24 Cal.3d 742, 751 (Barber).) When an agent of the People is privy to such communications, it is a violation of this right. (Id. at p. 752.) Even the interest of the state in detecting crime must be subordinate to this right. (Id. at pp. 752-753.)

On the question of the proper remedy for a violation of this right, Barber presented unusual circumstances, in which a police agent’s undercover presence at group discussions of legal defense strategies in civil disobedience cases ultimately disrupted the relationship between the defense attorneys and their clients, the prejudice from which the Barber court found incalculable. (Id. at p. 756.) The court also cautioned that it would be impossible to determine the degree to which witnesses privy to confidential information might shade their testimony even if it is not shared directly with the prosecution. (Id. at p. 757.)

Dismissal, however, is not the proper remedy if a court can actually assess prejudice. (People v. Towler (1982) 31 Cal.3d 105, 122-123 [absence of pertinent facts on question of prejudice precludes defendant from raising issue for first time on appeal]; People v. Cantrell (1992) 7 Cal.App.4th 523, 550-551 [no evidence that prosecution was privy to any privileged material or had any communication about their contents with agent that had skimmed and seized them, so no prejudice warranting dismissal]; People v. Glover (1985) 169 Cal.App.3d 689, 699 [no quantifiable prejudice, so defendant not entitled to dismissal].)

On the question of prejudice, defendant’s assertion that the detective obtained “an inside look at the defense case” disregards the trial court’s express credibility resolution to the contrary. Defendant does not dispute the court’s finding that no prejudice resulted from the seizure of the investigator’s report (at least arguendo). He simply contends that the seizure of his copies of police and court documents that had information identifying the victim in them, and the use of them to prosecute him for his attempt to prevent her from testifying, is sufficient identifiable prejudice. This argument, however, does not identify a cogent basis for considering these documents to be privileged. As a result, they are not within the scope of protected attorney-client communications.

C

At the outset of cross-examining the cellmate, the defense attorney began questioning him about his motivation for his coming forward and making a statement to the police about the murder in which he was involved. After the cellmate said that he had wanted to tell the truth and receive punishment commensurate with his limited involvement, defense counsel asked in a sidebar for permission to establish the extent of the cellmate’s complicity in the murder to show that it was more than marginal and therefore counter any impression that the cellmate had cooperated with the police in his own murder case only on altruistic grounds. The prosecutor opposed the request as exceeding the scope of issues relevant in the present proceedings. The trial court agreed with the prosecutor. Defense counsel also unsuccessfully sought to obtain permission to establish inconsistencies between the initial statement of the cellmate to the police in the murder case and the actual facts to impeach the cellmate’s veracity.

Defendant contends that this restriction on his cross-examination of the witness violated his constitutional rights. A court’s informed exercise of its discretion to restrict cross-examination on issues that are repetitive, marginal, confusing, or unduly prejudicial does not violate any trial rights under the constitution except where the restriction would leave the jury with a significantly different impression of the credibility of the witness. (People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.)

There were significant challenges raised to the cellmate’s veracity even without the excluded matters. He admitted having several previous convictions for crimes directly reflecting his dishonesty, as well as his pending crime reflecting at least a readiness to do evil. The jury was also aware that by the time of trial he had an expectation that his cooperation with the police and the prosecution in the present case would earn him good will in his own case. The extent to which he may have been dishonest with the police in the murder case, or the extent to which he acted out of self-interest in cooperating in that case, were only cumulative at the margins to matters already before the jury. We therefore conclude that the court properly exercised its discretion, which did not violate any constitutional right.

II

The only issue defendant raises in connection with his conviction for oral copulation is Judge White’s exclusion of evidence that would have purportedly impeached the victim. As a result, we do not need to relate more than a few essential facts.

A

The events underlying the conviction for oral copulation took place in March 1996. The victim testified at both trials that defendant approached her parked car, took control of it at gunpoint, forced her to orally copulate him several times while he drove, and eventually pushed her out of the car (which the police found abandoned the next day). Although the victim had rinsed out her mouth after the attack, swabs taken that night eventually were subjected to DNA analysis in 2003, resulting in a tentative DNA match with defendant (later confirmed in 2004).

Defendant testified at both trials. Each time, he asserted that his encounter with the victim was a consensual trade of sex for drugs. She drove him to a parking lot, where she orally copulated him. He ejaculated in her mouth despite having assured her that he would not. This angered her and she jumped out of the car. He slid over to the driver’s seat and drove off in order to retain the benefit of the proposed deal without parting with his product.

B

Before the first trial, the prosecution moved to exclude evidence that it believed the defense intended to introduce regarding the victim’s January 2005 arrest for being drunk in public, which resulted when the police had discovered the now-married victim kissing an old friend in the back seat of a car after they had been drinking in a bar. The prosecution noted it had not received any written notice of the intent to introduce evidence of the victim’s sexual conduct (Evid. Code, § 782), and that it was more prejudicial than probative (id., § 352). The defense responded with a formal motion to admit the evidence. The motion noted that the car had been parked outside a grocery store, and that the victim had told a detective in the case at bar that she had never informed her husband of the arrest, for which reason she did not want it revealed at trial (although she ultimately spoke to him about it as a result). The defense argued that the incident indicated her willingness to engage in less than circumspect behavior in public, and was also relevant to her veracity. Judge Balonon granted the motion to exclude the evidence except in connection with defendant’s state of mind in connection with the attempted bribery of the victim. As a result, defendant was permitted to testify that he knew the details of the incident, which made him believe that she would be receptive to an inducement not to testify in order to keep her husband from learning of the circumstances of the arrest. Defendant also asserted his belief that the incident showed the victim’s “promiscuous” character and her lack of honesty.

The prosecutor had the arrest report on display for the jury as an exhibit as he questioned the defendant about its details.

Before the start of the second trial, the defense renewed its motion to introduce this evidence, reiterating the points previously presented without embellishment about the incident’s relevance to the victim’s veracity and willingness to act inappropriately in public (to overcome any presumption on the part of a jury that a woman would not behave in this manner). Judge White found the comparison between performing a sex act in public and kissing in public nine years later too attenuated to provide any insight on the victim’s likely behavior in 1996, and her initial failure to tell her husband about the arrest insufficiently mendacious to reflect on her capacity to tell the truth. Judge White therefore denied the motion to admit the incident for any purpose without prejudice in the event of new evidence.

C

Defendant predictably contends that the evidence of the circumstances surrounding the victim’s 2005 arrest was of such monumental probative value in resolving the credibility contest between his version of events and the victim’s that Judge White’s exclusion of it was an abuse of discretion and a violation of his constitutional right to present a defense. Neither of these propositions is correct.

Defendant also disputes the applicability of the statutory restriction on admission of evidence of a victim’s sexual conduct (Evid. Code, § 782) to the 2005 incident. As we may uphold the ruling on Judge White’s alternative ground under Evidence Code section 352, we do not need to consider the argument regarding the other statute.

We will not belabor defendant’s argument involving the manner in which Judge White exercised his discretion. It does not amount to anything more than an effort to view the facts differently, without establishing that Judge White’s resolution was beyond the bounds of reason. That the victim wound up in the back seat of an old flame’s car, kissing him when in a state of what was apparently advanced inebriation provides little if any insight on her willingness to orally copulate a total stranger in order to obtain drugs nine years earlier. Her reluctance to inform her husband of the arrest similarly does not give any indication of whether she would be likely to lie when directly asked about it in court or elsewhere. Moreover, determining the exact nature of the circumstances under which the drunken stolen kisses took place would have led the proceedings down an extensive rabbit trail after this miniscule prey. The potential of prejudice to the prosecution from having the jury view the victim as dissolute for reasons having nothing to do with the material issues at trial has the greater weight in the balance. We accordingly decline to find any abuse of discretion in the ruling.

As for defendant’s inevitable claim that the ordinary application of our rules of evidence deprived him of his constitutional right to present a defense, this is true only where it results in the evisceration of a defense, or where a rule mandates the general exclusion of a category of evidence on an arbitrary basis rather than as the result of an individualized exercise of discretion. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal.4th 585, 611.) Neither circumstance is present.

IV

Defendant contends that judicial determination of sentencing factors, independent of any jury findings, to impose an upper term or to impose consecutive sentences is a violation of his constitutional right to a jury trial. These arguments are conclusively resolved against him in controlling authority that the United States Supreme Court has declined to review, and we therefore refuse to elaborate on them any further. (People v. Black (2007) 41 Cal.4th 799, 816, 819-820, 823, cert. den. sub nom. Black v. California (2008) ___ U.S. ___ [169 L.Ed.2d 813].)

Defendant additionally claims that Judge White abused his discretion in imposing the upper term for his conviction for oral copulation because “[t]here was nothing else remarkable about the facts of the [offense] . . . .” This disregards Judge White’s focus on the nature of the offender: “I see somebody who has conducted himself in an antisocial fashion, committing one crime after another with no concern or consideration for the society he lives in or for the victims he inflicts himself upon. So I think [defendant] is richly deserving of the upper term, and I say that not lightly.” We do not discern any abuse of discretion in this regard.

Apparently conceding that Judge Balonon had authority to recharacterize the principal and subordinate terms in imposing consecutive sentences even after Judge White had imposed sentence on the oral copulation conviction (Pen. Code, § 669; see People v. Scott (1993) 17 Cal.App.4th 1383, 1385-1386), defendant contends that Judge Balonon could not invoke the harsher sentencing scheme of full consecutive terms for certain enumerated sexual offenses such as his (Pen. Code, § 667.6, subd. (c)) because Judge Balonon did not preside over the trial resulting in a conviction for this offense. Other than state that “[i]t is logically contemplated that the judge imposing the special full consecutive sentence on the sexual offense would have heard the trial of that sexual offense,” he does not provide any authority for this proposition. Nothing in either of these two statutes expressly provides for this result. We therefore believe the Legislature intended for the ordinary effect of the earlier-enacted Penal Code section 669 to apply. There is no cogent reason why a judge imposing a subsequent sentence cannot obtain the necessary information from a probation report and counsel, rather than firsthand.

DISPOSITION

The judgment is affirmed.

We concur: MORRISON, J., ROBIE, J.


Summaries of

People v. Henderson

California Court of Appeals, Third District, Sacramento
Jul 8, 2008
No. C053196 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Henderson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TOMMY HENDERSON, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jul 8, 2008

Citations

No. C053196 (Cal. Ct. App. Jul. 8, 2008)

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