Opinion
D057182 Super. Ct. No. RIF118815
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID GREGORY KUSHNER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Charles W. Morgan, Judge. Affirmed.
The People filed an amended 18-count information charging David Gregory Kushner with various crimes against five women: oral copulation accomplished against the victims' will by threatening to use the authority of a public official to incarcerate or arrest (Pen. Code, § 288a, subd. (k)); kidnapping to commit oral copulation (§ 209, subd. (b)(1)); other sexual crimes (§§ 261, subd. (7), 286, subd. (k), 243.4, subd. (a), 664/261, subd. (7)) and assault (§ 245, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise stated.
At the end of the prosecutor's case-in-chief, Kushner moved for a judgment of acquittal on all counts (§ 1118.1); however, the court granted the motion as to only one count. A jury convicted Kushner of two counts against Monica S: oral copulation under section 288a, subdivision (k) and simple kidnap, a lesser included offense of kidnap to commit oral copulation (§ 207). It acquitted him of 14 counts, and was unable to reach a verdict on one count, which the court dismissed in the interest of justice. (§ 1385.) The court suspended imposition of sentence, placed Kushner on probation for five years and ordered him to serve 365 days in jail.
Kushner contends: (1) insufficient evidence supported the convictions; (2) the trial court erroneously denied his new trial motion brought on ground that the prosecutor withheld critical evidence from the defense in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady); (3) the prosecutor committed misconduct during closing arguments; and (4) there was cumulative error. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Monica S.'s Testimony
Monica S. testified that on the night of May 21, 2002, she had been drinking and using methamphetamine, and asked a male friend for a ride from the motel where she was staying in Moreno Valley, California. Kushner, who was a Riverside County Sheriff's deputy, pulled them over, searched the car, released the friend but detained Monica, who had three outstanding warrants. Kushner handcuffed her and placed her in the back of his patrol car. Two other deputy sheriffs arrived but Monica had no dealings with them. Monica told Kushner the authorities had removed her children from her care, and she was on a waiting list for drug rehabilitation. She cried as Kushner threatened her with both jail time and permanent removal of her children. He accused her of lying in response to his questions.
Kushner drove her in a patrol car to the Edgemont area of Moreno Valley and asked her to point out drug houses. After she identified one, he said she had to "work off" her other two outstanding warrants. Monica asked him if by that he was referring to sexual favors, and he responded to the effect, "I might be able to work with something like that." He drove her to an isolated church parking lot, exited the car, opened the back door, removed her handcuffs, and stood in front of her with his penis exposed. Monica was in shock and cried, but she orally copulated him, believing she was "working off" her warrants. Afterwards, Kushner offered to drop her off near her motel. She agreed and asked for paperwork showing he had arrested and released her, lest her friends thought she had snitched. He gave her a partially filled out ticket that did not include his name. She did not report the incident to authorities at that time because she thought they would believe him over her. But she discussed it with her mother and another friend, who both testified that she had cried when recounting it.
In August 2003, Monica again met Kushner when he responded to a domestic violence incident at a Moreno Valley apartment where Monica was staying with a friend. Monica participated in court proceedings, and reported her previous sexual encounter with Kushner to the prosecution's investigator.
In July 2004, Monica and a female friend were driving in Moreno Valley and Kushner pulled them over, searched the friend's car, and found drug paraphernalia. They were arrested and transported separately to a local police station, with Kushner transporting Monica's friend in his patrol car. Monica informed police about her sexual encounter with Kushner.
Riverside County Sheriff's Department Sergeant Don Plata confirmed that on May 22, 2002, at approximately 1:24 a.m., he provided backup while Kushner executed a traffic stop in Moreno Valley. Sergeant Plata stayed at the scene for approximately 15 minutes, but he did not identify the person in the back seat of Kushner's patrol car.
Riverside County Sheriff's Department Sergeant David Knudson testified that in investigating Kushner's crimes, he interviewed Monica and showed her a single photo of Kushner. He looked for all available logs of Kushner's payroll and activity. Knudson determined that Kushner had worked overtime beginning at 11:00 p.m. on May 21, 2002, and ending at 4:00 a.m. the next day. A page of a log report, admitted into evidence as exhibit No. 49, shows Kushner conducted a traffic stop at 1:24 a.m. and received backup from Sergeant Don Plata. Kushner later transported an unknown nonprisoner female to the Edgemont area, and dropped her off at 3:10 a.m. near the motel where Monica was staying.
Other Uncharged Acts Testimony
Under Evidence Code section 1101, subdivision (b), four women testified regarding Kushner's uncharged acts of sexual harassment committed while he was in uniform. Diane M. testified that around the year 2000, a previous boyfriend was stalking her while she was driving, and she reported it to Kushner and another deputy, who detained the man. Kushner also detained her, denied her repeated requests to leave the scene, and directed her to sit in his patrol car. She challenged her detention but he told her, "[S]hut your mouth. You have a really big mouth." He told his partner that Diane "wants to go to jail tonight." He searched her vehicle and released her.
Months later, Kushner visited Diane's house. She was wearing a low-cut T-shirt and a skirt that reached just above the knees. He told her that her ex-boyfriend had stated Diane "was a bitch and that [she] had broke[n] his heart and got him into drugs, and [Kushner] knew all about [Diane] and what a whore [she] was." Kushner searched her purse and bedroom furniture for drugs but found none. He told her to close her eyes and lean her head back for him to perform a test for drug use. She complied. He was about four inches from her, and she felt his breath on her chest. He gave her his phone number and said, "If you ever need to talk, give me a call." She telephoned Kushner seeking drug rehabilitation help for her ex-boyfriend, but Kushner was not helpful, and she concluded Kushner was sexually harassing her.
Diane later had about four encounters with Kushner. In March 2003 she was a passenger in a friend's car and Kushner pulled them over and asked for their identification cards. The driver did not have one, and Diane became upset and asked Kushner to stop pulling her over for no reason. Although Kushner told her she had "two choices," he only stated she could leave in handcuffs, and asked how she wanted to handle it. Diane responded, "Fuck you. Take me to jail." Kushner handcuffed her. He searched the vehicle and found a drug pipe in it. He laughed and told her, "See? I told you you could have handled this one of two ways." A few months later, Kushner followed Diane but he did not pull her over and she did not stop. Another time, he followed her to her home and smirked at her as she was getting her son from her car. Diane "flipped him off."
In 2002, Kushner and other deputy sheriffs responded to a vacant house where Cindy C. was squatting, found drugs there, and questioned her about the drugs and drug dealers. She gave Kushner a fake name of a dealer, and he told her they already knew that individual; therefore, he would return for more information from her. He returned on approximately ten consecutive days and knocked on the door but she did not answer. Believing he was seeking sexual favors from her, she eventually left California to avoid meeting him.
In July 2002, Kushner conducted a traffic stop of E.G. and discovered she was driving without a valid driver's license. She was wearing a skirt that reached above her knees, and he stared at her legs. He directed her to sit in his patrol car. He initially said he would take away her car, but decided against it. He said she had to be good to him, and he was not referring to her money. He asked if her husband was at home. She said yes, and he proposed going to a hotel. He gave her his telephone number.
In March 2003, L.G. noticed Kushner's patrol car parked across the street from her house. She next drove by, accompanied by her daughter, and Kushner stopped her and ordered her out of her vehicle, leaving her daughter inside. He said L.G. looked suspicious, and searched her purse. He said he had noticed her earlier "looking nice" in a yellow outfit as she mowed her lawn. She told him she thought her driver's license was suspended. He replied he would escort her home and not write her a ticket or take her to jail at that time. He also said she was a pretty, blonde girl living in a bad neighborhood, and if he was her husband, he would not allow her to drive alone. She replied that the neighborhood was good except for specific neighbors, who were involved in drug activity. He asked her to telephone him with those neighbors' address. He moved close to her and his chest almost touched hers. He told her several times that she owed him because he did not take her to jail. He said it was hot outside, asked if she had air conditioning at home, and if he could go inside her house. She refused, explaining that her husband was away. After about thirty minutes, Kushner told L.G.'s daughter that he could take L.G. to jail. L.G. told him he needed to either arrest her, give her a ticket or do anything else, because he was scaring her and her daughter.
During the next month, Kushner telephoned L.G. approximately ten times and asked her out for drinks, but she declined the invitations. She saw him in her neighborhood for about two months, and at one point, when her husband was not at home and she was alone, she missed work for one week because she did not know what Kushner would do. She finally asked him to stop calling her and parking near her house because it was affecting her marriage.
Defense Case
On cross-examination, Kushner was asked if he ever did a traffic stop involving Monica and her friend, and he replied, "Not that I am aware of." He also denied ever driving around with Monica for two hours or letting her orally copulate him.
New Trial Motion
Kushner moved for a new trial on grounds the People violated his right to due process by committing Brady error (Brady, supra, 373 U.S. 83); specifically, he argued the People withheld exhibit No. 49 from the defense. He argued that exhibit No. 49 did not identify Monica as the person stopped; the defense obtained newly acquired evidence showing that approximately one month after Kushner first stopped the car Monica rode in, the deputy sheriffs made a traffic stop of someone named Keith Dean, who was in the same car; therefore, Dean might also have been stopped in lieu of Monica, thus invalidating Kushner's convictions. Finally, he claimed the prosecutor committed misconduct during closing arguments. (§ 1181, subds. (5), (8).)
The People opposed the motion, pointing out they had not withheld documents from Kushner: "Defense is fully aware that an audit trail on Monica S.'s name was run through the county computer system. There were exactly five occurrences, with the last entry on 5/22/02 at 1:34:57 . . . . [exhibit No. 49] According to Defendant's Unit History for 5/22/02, it confirmed that at 1:24 am, Defendant initiated a traffic stop . . . and put out a plate number of the same car that Monica reported . . . . It is no coincidence that Monica's name was [run] through the county computer system for warrants only 10 minutes after the stop was initiated, particularly since Defendant's own Unit History corroborated that he did not clear the . . . detention until 3:23 am, two hours after the initial stop. [¶] . . . Even after the defense received the document as an attachment to Knudson's initial report . . . the prosecutor provided the document again by attachment to a 2/7/05 discovery letter."
Finding no prosecutorial misconduct and no Brady error, the court denied the motion, ruling: "I believe after going through all this information, of course, sitting through the trial and hearing the testimony come forward, that there is no Brady error. This is — there's no showing of anyone other than Deputy Kushner or even in a reasonable inference from the evidence and that which is contained in the declarations, that anyone other than Deputy Kushner made the stop of that vehicle on that occasion. And anything from that would be sheer speculation. [¶] Mr. Dean is a great example of that. A month later he's stopped in that vehicle. There's absolutely no showing that he was in the vehicle a month prior thereto. There just isn't."
DISCUSSION
I.
Kushner contends there was insufficient evidence for his convictions, which he further attacks on these additional grounds: The prosecution misrepresented what exhibit No. 49 showed regarding Kushner's traffic stop involving Monica S.; the exhibit did not corroborate Monica's testimony because it did not show Kushner searched Monica's name in his computer, and the information it included regarding the time of the detention and other details regarding the traffic stop differed from her testimony; the jury rejected the uncharged acts testimony because it convicted Kushner of only two crimes; Monica did not complain to law enforcement until 15 months after the traffic stop; Monica did not identify Kushner by name to her mother and friend; Monica identified Kushner to authorities based on a suggestive method involving a single photograph that Sergeant Knudson showed her.
Unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) When sufficiency of the evidence is challenged on appeal our role in reviewing the evidence is limited. We do not reweigh the evidence and substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th 477, 481.) Instead, we must determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 314.) We view the entire record in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Abrego (1993) 21 Cal.App.4th 133, 136.) This standard applies whether direct or circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) This court's authority begins and ends with a determination of whether any substantial evidence, disputed or not, supports the verdict. Thus, where the record discloses substantial evidence — that is reasonable, credible and of solid value — we accord due deference to the trier of fact. (People v. Jones, supra, 51 Cal.3d at p. 314.)
Section 207, subdivision (a) states: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another . . . part of the same county, is guilty of kidnapping." (See CALCRIM No. 1215.)
Section 288a, subdivision (k) states: "Any person who commits an act of oral copulation, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years." (See CALCRIM No. 1015)
The trial court instructed the jury with CALCRIM No. 301: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." We conclude Monica's testimony, set forth above, was not physically impossible; therefore, it sufficed to support Kushner's convictions for oral copulation and simple kidnap. The jury reasonably could conclude Kushner used his law enforcement officer position, availed himself of information regarding Monica's children and outstanding warrants, drove her to an isolated place and received oral sex from her against her will. Monica's testimony was corroborated in its essential points by exhibit No. 49, which showed Kushner picked up a non-prisoner female, drove her to the Edgemont area of Moreno Valley, and after approximately 2 hours dropped her off near the motel where Monica was staying. Although there was discrepancy between Monica's testimony and exhibit No. 49, it was the jury's duty to resolve the inconsistency. It was instructed with CALCRIM No. 226 that it was sole judge of witness credibility, and not to automatically reject testimony just because of inconsistencies or conflicts, but to consider whether the differences are important or not because people sometimes honestly forget things or make mistakes about what they remember. The jury also was entitled to rely on Kushner's uncharged crimes, which evince a pattern of him sexually harassing other female drivers.
Kushner's appellate arguments listed above amount to an invitation that we reweigh the evidence. We decline the invitation. "The existence of possible exculpatory explanations, whether they are simply suggestions not excluded by the evidence or even where they could be reasonably deduced from the evidence, could not justify this court's rejecting the determination of the trier of fact that defendant is guilty unless on appeal it 'be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the [trial court.]' " (People v. Redrick (1961) 55 Cal.2d 282, 290.) We also note that Kushner did not object to the admission into evidence of exhibit No. 49 at trial; therefore, he has forfeited any challenge to that evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 135, fn. 10.)
II.
Kushner reiterates that his trial was fundamentally unfair because the prosecution did not disclose to him critical evidence as required under Brady, thus violating his due process rights under the state and federal Constitutions. As noted, the newly acquired evidence was that approximately one month after Kushner stopped Monica, police had stopped Dean in the same car as the one Monica rode in when police stopped her.
On appeal, Kushner "does not simply seek a new trial"; rather, arguing that "the evidence marshaled against him is . . . insufficient as a matter of law to sustain his two convictions," he requests that we "reverse the judgment and [] order an acquittal on both counts on the ground that insufficient evidence exists to support the charges."
A.
A trial court's determination of a motion for a new trial will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 329.) This standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the defendant to show the trial court's decision was " 'irrational or arbitrary,' " or that it was not " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
We conclude the trial court did not err in denying Kushner's new trial motion. Rather, it applied the correct standard, including by evaluating the probative value of the evidence. Its conclusion the newly acquired evidence was speculative fell within its broad discretion, and we have no basis to disturb it. As noted, to the extent Kushner's new trial motion relied on the admission of exhibit No. 49, that portion of the claim was forfeited by his failure to object to its admission.
B.
" ' "The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " [Citation.] "The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.(People v. Arias (2011) 193 Cal.App.4th 1428, 1437.) Based on the above standard, we deny Kushner's request for a judgment of acquittal by applying the same analysis we used in rejecting his sufficiency of the evidence challenge.
III.
Kushner contends the prosecutor committed misconduct by "repeatedly indoctrina[ting the jury] with the idea that [he] was, as the prosecutor described him, a dirty 'rogue cop who ha[d] a walking erection, hard-on'. He was 'guilty, guilty, guilty,' and it was the jury's duty to 'clean up our streets. Make sure that everyone is protected. And that no one is above the law, including that man!' "
In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.(People v. Gonzales (2011) 51 Cal.4th 894, 920, quoting People v. Friend (2009) 47 Cal.4th 1, 29.)
Kushner concedes that at trial he neither objected to the prosecutor's comments on grounds of prosecutorial misconduct, nor requested a jury admonition to cure any harm caused by those comments. Accordingly, we conclude the contention is forfeited because we cannot say that any harm would not have been cured by a timely admonition. (People v. Stewart (2004) 33 Cal.4th 425, 502.)
IV.
Kushner contends there was cumulative error. In a close case, the cumulative effect of multiple errors may be sufficient to cause the trial to have been unfair and hence cause a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403, 415.) Multiple errors may require reversal even when the errors, considered individually, would not warrant the same conclusion. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors, it is reasonably probable that the jury would have reached a result more favorable to a defendant, the decision must be reversed. (People v. Holt (1984) 37 Cal.3d 436, 459, superseded by statute on another ground as stated in People v Muldrow (1988) 202 Cal.App.3d 636, 645.) We have found no error, much less cumulative error.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.