Opinion
A145004
10-12-2016
THE PEOPLE, Plaintiff and Respondent, v. JOHN RICHARD KANNON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 174846)
INTRODUCTION
Defendant Kannon appeals from his conviction for assault with intent to commit a sex crime. (Pen. Code, § 220, subd.(a)(1).) The main issue on appeal is whether the trial court erroneously instructed the jury that it could consider expert testimony regarding rape trauma syndrome (RTS) in evaluating the believability of the victim's testimony. Defendant also complains he did not receive the proper amount of presentence credit, and the People agree. We order the trial court to correct the abstract of judgment with respect to the credits. In all other respects the judgment is affirmed.
Unless otherwise indicated, all statutory references are to the Penal Code. --------
STATEMENT OF THE CASE
An amended information was filed in Alameda County charging defendant in count 1 with assault with intent to commit a sex crime and in count 2 with rape of an unconscious person on May 9, 2014. (§ 220, subd. (a)(1); 261, subd. (a)(4).) The information also alleged defendant had suffered three prior felony convictions and served one prior prison term. (§ 667.5, subd. (b).) On February 5, 2015, a jury found defendant guilty of assault in count 1 and not guilty of rape in count 2. However, in count 2 the jury found defendant guilty of the lesser offense of attempted rape of an unconscious person. (§§ 664/261, subd. (a)(4).) On February 9, 2015, the court found true one of the prior felony allegations and dismissed the rest. On April 17, 2015, the court sentenced defendant to four years in state prison on count 1. Pursuant to section 654, the court stayed the three-year sentence on count 2. The court award defendant 318 days' credit for time served.
STATEMENT OF FACTS
On May 9, 2014, Maria R. went to a concert at Ashkenaz Dance Center in Berkeley with her roommate Pat (John Patrick Murphy ), her sister Sophia, and friends Kosher and Al. Before the show, Maria R. had one or two beers at home. During the show, she drank five bottles of beer and a shot of whiskey. She felt "very drunk."
During a break in the show, an acquaintance, Sparkles, approached Maria R.'s group. Maria R. greeted her with a hug and Sparkles introduced defendant as her friend John. Maria R. then gave defendant a side hug with her right arm. She told defendant she loved Louisiana; they spoke for "[m]aybe one minute." She had no other interaction with defendant at the club that night.
After the show, Maria R. went home with Pat, Sofia, Kosher, and Al. Defendant went with them. Maria R. had not invited him, and she did not know who had. Although she thought it unusual, she trusted her friend's opinion. On their way home, the group stopped at a liquor store and Maria R. bought a bottle of champagne.
The group arrived home at about 1:00 a.m. and sat in the living room drinking alcohol, smoking marijuana, and chatting. Maria R. drank about half of the bottle of champagne and was "[p]retty intoxicated." About an hour later, the two sisters got into a physical altercation in Maria R.'s bedroom. The men came into the room to break it up. Everyone left the room except Maria R., who soon went to sleep on her full-sized bed.
It was not unusual for new people to come over to the apartment after an Ashkenaz concert and spend the night sleeping on couches or on the floor in the living room. However, guests were not allowed inside Maria R.'s room without her express permission. Defendant neither requested, nor received, Maria R.'s permission to be in her room. Nevertheless, Pat Murphy testified he saw defendant walk down the hallway toward Maria R.'s room around 3:00 or 4:00 a.m. He also acknowledged he told police he saw defendant go into her room, although his memory of that had since faded.
Around sunrise, Maria R. woke up to defendant touching her breasts, buttocks and thighs over her clothes. His body was behind hers. She told him "no." He stopped, and Maria R. went back to sleep.
Some time later, Maria R. woke up a second time to defendant touching her chest and actively trying to pull down her pants. She told defendant, "[N]o, stop. I am with somebody I love," as she pulled up her pants. Defendant responded, "I don't care," and stood in front of her fully naked. Holding his erect penis in his hand, he said, "[Y]ou don't want any of this." Maria R. said "no." She curled back up again and tried to go back to sleep. She did not tell him to leave because she was feeling a mixture of fear and shock. She was also still feeling the effects of the alcohol.
Maria R. woke up a third time with defendant above and behind her, attempting to penetrate her vagina with his penis pushing against her skin. "[A]s I was arising, he actually entered me about three or four times." She was taken aback and very confused. She pulled up her pants and curled up into a fetal position. Maria R. told defendant, "[N]o, stop," and he did. She did not yell for help because she "didn't want to start a big chaotic mess in [her] house" and she did not tell defendant to leave because she was scared. He rolled off her and she felt the bed move in a "pretty consistent pattern and rhythm." She fell asleep again for 10 or 15 minutes and got up at 7:00 a.m. to make coffee. No one else was awake. She did not say anything to the others as they started to get up because she did not want to start a fight. She saw defendant come into the living room a little while later but she did not say anything to him because she was still very confused and shocked.
Later in the morning, the group went out to breakfast, then returned to the apartment. She did not interact with defendant at the restaurant. She was getting "increasingly angrier." Pat Murphy noticed Maria R. seemed a little awkward and was being quieter than normal. The guests started to leave around noon. Defendant was the last to leave.
As soon as defendant left, Maria R. told Murphy defendant had come into her room without her permission, and he was no longer allowed in the apartment. She did not give him any details about what happened. According to Murphy, Maria R. told him defendant had come into her room and molested her.
Maria R. never asked defendant to "spoon" with her, never pressed her body against his, and never consented to have sex with him.
About six days later, Maria R. noticed some chafing on her inner left thigh next to her labia that turned into a sore. She saw a doctor, who diagnosed genital herpes. She had never had chafing or sores before.
At this point, she told her boyfriend what had happened. He was angry at defendant, and urged her to call the police. She called the police dispatcher in her boyfriend's presence. A police officer called her back. She was feeling "very overwhelmed" and did not give the officer all the details. The next day, May 29, 2014, she was interviewed by police at the police station. She did not tell the police defendant had penetrated her because she "was in denial about the details [she] had left out and thought that what [she] was saying was enough."
Before the preliminary hearing, she met with a deputy district attorney, but continued to withhold the information that defendant had penetrated her because she "just wasn't ready to say it yet." Withholding the information, however, made her feel "[r]eally awful." Finally, she decided she could not proceed to trial being untruthful, and she told the deputy district attorney and the police that defendant had penetrated her.
Marcia Blackstock, executive director of Bay Area Women Against Rape, testified as an expert on RTS and the emotional response to sexual assault. RTS is the "theory that's behind how sexual assault survivors respond to their sexual assault." In Blackstock's opinion, the overwhelming majority of victims of sexual assault internally experience the same emotion, but how they express themselves outwardly with their behaviors "is as varied as the day is long." Some survivors go into denial that a sexual assault occurred. Many rape victims never report the assaults, and it is common for those who do report to report only part of what happened. Presented with hypothetical questions based on Maria R.'s account of the assault, Blackstone opined it was not unusual for the hypothetical victim to stay in bed, say nothing the day after, delay reporting to the authorities, and delay disclosing she was penetrated. Blackstock did not know anything about the case except what was presented in the hypothetical, had not met the victim, or reviewed any police reports.
Dr. Kadeer Halimi testified as an expert in emergency medicine. He reviewed defendant's medical records for June 30, 2014. On that day, defendant was diagnosed with "herpes penis" and prescribed Acyclovir. Defendant reported that he had had blisters on his penis four months earlier. An asymptomatic carrier of genital herpes can transmit the virus by shedding cells. Genital herpes can cause blisters on the genital area within four or five days of exposure. The virus is usually transmitted by skin-to-skin contact in the genital area. Intercourse is not required.
Defendant testified on his own behalf. He did not rape Maria R. or intend to rape her. He did not put his penis in her vagina or touch her against her will.
He asked Maria R. if he could "lay down in bed," and she assented. When defendant lay down on the bed, Maria R. asked him if he would spoon her, so he did. Defendant testified that three times Maria R. initiated sexual contact by pushing against him and moaning, to which he responded with caresses. However, each time she changed her mind and said no. Each time she said no, he stopped.
Defendant admitted the second time it happened, defendant put his penis against Maria R.'s backside, "kind of in between her thighs." The third time it happened, his penis touched her thighs and "probably vaginal area."
Defendant went to the doctor on June 30 and was diagnosed with herpes. However, when defendant spoke with investigators after his July 16 arrest, he told them he did not have a sexually transmitted disease.
DISCUSSION
CALCRIM No. 1192 Was Properly Given.
Defendant argues the trial court erred in giving the following italicized portion of CALCRIM No. 1192: "You have heard testimony from Marcia Blackstock regarding rape trauma syndrome. Marcia Blackstock's testimony about rape trauma syndrome is not evidence that the defendant committed any crime charged against him. You may consider this evidence only in deciding whether or not Maria [R.]'s conduct was not inconsistent with the conduct of someone who has been raped and in evaluating the believability of her testimony." Adequacy of jury instructions is subject to de novo review. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
The Attorney General argues defendant invited any error by requesting the instruction and specifically approving its wording. Defendant argues his failure to object to the instruction does not constitute waiver of appellate review under section 1259, and "[s]ince no conscious, deliberate, or tactical reason was stated for concurring in the instruction[], there was no invited error or waiver of the instructional error claim[]." (People v. Collins (1992) 10 Cal.App.4th 690, 694-695.) It is true defense counsel never stated a reason for requesting the instruction, but the record belies defendant's argument that counsel acted without a conscious, deliberate or tactical reason.
Defense counsel did not request the instruction before trial; the prosecutor did. However, during trial defense counsel submitted a supplemental list of instructions, which included CALCRIM No. 1192. During a reported instructional conference, the court and counsel discussed instructions which were being withdrawn from or added to the original set. Counsel stated: "I would ask to include 1192, testimony on rape trauma syndrome." Later in trial, the court asked specifically, "Are all parties in agreement with the wording of [CALCRIM No.] 1192?" [¶] . . . [¶] Counsel for the defense?" Defense counsel answered, "Yes." Finally, during closing argument, defense counsel read the instruction to the jury and argued, "So you can only use it in that narrow way." She also used the instruction as a jumping off point for arguing perceived weaknesses in Marcia Blackstock's testimony about RTS.
"Under the invited error doctrine, a defendant cannot complain that the court erred in giving an instruction that he requested. (People v. DeHoyos (2013) 57 Cal.4th 79, 138.) The invited error doctrine applies when the defense has made a ' " ' "conscious and deliberate tactical choice" ' " ' in asking for the instruction in question. (People v. Harris (2008) 43 Cal.4th 1269, 1293.)" (People v. Merriman (2014) 60 Cal.4th 1, 104. In Merriman, defense counsel requested the jury be instructed not to consider defendant's "lifestyle or background" as an aggravating factor. On appeal, defendant challenged the adequacy of the instruction. In light of the discussion had by court and counsel over penalty phase instructions, the court determined the record supported the conclusion that counsel had made such a choice in that case, even though counsel did not state in so many words he was making a tactical decision. (Id. at p. 103.) In this case, we also think the record reveals a tactical decision to request CALCRIM No. 1192 in its entirety.
Assuming the error was not invited, the instruction is not erroneous, as it is consistent with People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe) and People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin). In Bledsoe, our Supreme Court held that expert testimony about rape trauma syndrome is admissible to "disabus[e] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths." (Bledsoe, at pp. 247-248, italics added.) For example, where the defendant suggests "that some conduct of the victim after the incident—for example, a delay in reporting the sexual assault—is inconsistent with her claim of having been raped," RTS evidence rebuts this commonly held inference "by providing the jury with recent findings of professional research on the subject of a victim's reaction to sexual assault." (Id. at p. 247.) Nevertheless, such evidence may not be used by the jury to infer that if a complaining witness suffers from RTS, then the witness must have been raped. (Id. at p. 251.)
Bledsoe's reasoning was later extended to child sexual abuse accommodation syndrome (CSAAS) evidence. (People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.) In that context, our Supreme Court observed in McAlpin: "It is reasonable to conclude that on the basis of their intuition alone many jurors would tend to believe that a parent of a molested child, naturally concerned for the welfare of the child and of other children, would promptly report the crime to the authorities, just as a parent would be likely to do if the child complained of someone who had beaten him or stolen his pocket money. Yet here the prosecution had evidence to the contrary—the expert opinion of Officer Miller that in fact it is not at all unusual for a parent to refrain from reporting a known child molestation, for a number of reasons. Such evidence would therefore 'assist the trier of fact' (Evid. Code, § 801, subd. (a)) by giving the jurors information they needed to objectively evaluate [the parent's] credibility." (McAlpin, supra, 53 Cal.3d at p. 1302, italics added.)
CALCRIM No. 1192, in general, is a response to the holding in People v. Housley (1992) 6 Cal.App.4th 947, that to avoid or prevent misuse of RTS evidence, courts must instruct sua sponte that "(1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Id. at p. 959.) In our view, CALCRIM No. 1192's inclusion of language indicating the jury may consider RTS evidence "in evaluating the believability of [the victim's] testimony" is a response to our Supreme Court's specific observations that, despite these limitations, syndrome evidence is admissible for the purpose of assisting the jury to evaluate the credibility of the complaining witness or corroborative witnesses. We therefore reject defendant's argument that the italicized language violates Bledsoe and McAlpin by inviting the jury to apply the expert's testimony about RTS or CSAAS in general "case-specifically" to evaluate the credibility of the victim's testimony.
Here, it was argued the credibility of the victim's accusations was diminished by her late reporting of the sexual assault, and even later reporting that sexual penetration occurred. On these facts, CALCRIM No. 1192 essentially instructed the jury it could consider the RTS testimony "only in deciding whether or not" her late reporting was inconsistent with what a rape victim would do, and therefore in evaluating her credibility as a witness, but it could not consider the RTS testimony as evidence that defendant committed the crimes charged. Under Bledsoe, Housley and McAlpin, this was not error.
The Abstract of Judgment Must Be Corrected.
At sentencing, the court awarded defendant 318 days of presentence credit, consisting of 276 actual days in custody and 42 days of earned credit. However, the abstract of judgment reversed the numbers, listing 42 "actual" days and 318 "local conduct" days, for a total number of 276 days of total credit. The Attorney General agrees the abstract of judgment is incorrect, and we concur. "[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will "order the trial court to correct the abstract of judgment" accordingly. (Id. at p. 188.)
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect defendant has 318 days of presentence credit consisting of 276 actual days in custody and 42 local conduct days. In all other respects, the judgment is affirmed.
/s/_________
DONDERO, J. We concur: /s/_________
MARGULIES, Acting P. J. /s/_________
BANKE, J.