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People v. Neff

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 31, 2012
2d Crim. No. B222279 (Cal. Ct. App. Jan. 31, 2012)

Opinion

2d Crim. No. B222279

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. STEVEN NEFF, Defendant and Appellant.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 1218685)

(Santa Barbara County)

Steven Neff appeals the judgment following his conviction for two counts of attempted unlawful sexual penetration by an unknown object. (Pen. Code, §§ 664/289, subd. (a)(1).) As to each count, the jury found allegations to be true that he personally inflicted great bodily injury upon the victim (§ 12022.8), personally used a deadly weapon (syringe containing ketamine) (§ 12022.3), and administered a controlled substance for purposes of committing a felony (§ 12022.75). We affirm.

All statutory references are to the Penal Code unless otherwise stated.
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Neff was tried twice. In his first trial, the jury deadlocked on charges of rape and two counts of sexual penetration by a foreign or unknown object, but convicted him of two counts of attempted sexual penetration by a foreign or unknown object. After the trial court granted his motion for new trial, Neff was retried and again convicted of the two attempted sexual penetrations and accompanying enhancements. Neff contends his retrial of the attempted sexual penetration charges was barred by the prohibition against being placed in jeopardy twice for the same offense. He also claims insufficient evidence of one of the convictions, and instructional error.

FACTS AND PROCEDURAL HISTORY


Facts

In 2002, F.O. was a college student living in Santa Barbara. On April 5, 2002, she was running on a beach near her home. Neff ran by her going in the opposite direction, turned around, and grabbed her from behind, and knocked her to the ground. While lying on the sand with Neff on top of her, F.O. felt a sharp pain in her buttocks which was later determined to be an injection of the drug ketamine. F.O. became dizzy and saw Neff holding a syringe in his hand. He said, "Shut up, you're going to be fine." F.O. then fell into unconsciousness.

F.O. awoke two hours later. Neff was gone. Help was summoned and she was taken to the hospital. A SART (sexual assault response team) examination showed abrasions and other signs of friction consistent with penetration by an object.

Courtney L. lived in Santa Barbara with two roommates. She worked as a telemarketer selling certification programs for physical fitness trainers. Neff worked at the same company and they were acquainted. She drank alcohol and smoked marijuana on a regular basis, and occasionally used other drugs.

On November 23, 2002, a Saturday, Courtney and Neff planned to attend a party at the Muddy Waters coffee shop. Neff drove Courtney to her apartment to pick up some clothes and then to his rented house. Neff and Courtney smoked a small amount of marijuana, and drank alcohol. Courtney drank more than Neff. Neff went to take a shower and returned wearing nothing except a towel around his waist. He sat down next to Courtney and reached around her. Courtney felt a prick on the back of her neck from an injection of what was later determined to be ketamine. After that, everything "went really hazy."

Neff hit her on the head with a bottle. Although drugged, Courtney remembered her elbows and knees being bound together and feeling something around her neck. She also felt a stinging and burning sensation and pain in her rectum. She believed she had been given an enema. Neff had something dark smeared on his face that may have been fecal matter. Neff placed his fingers in her mouth and on her face.

Neff then washed Courtney's face and drove her to her home. Neff and Courtney went inside Courtney's apartment and sat down on a couch. Neff made a sexual advance. Courtney tried to run away from Neff, but fell and hit her head.

After Neff left her apartment, Courtney was still too "drugged up" to remember much but told her roommate, Brook R., she had been crying and that her head hurt. Courtney left her apartment later in the evening and went to the party at the Muddy Waters coffee shop. While there, she thought she might be bleeding from her vagina but saw no blood when she went to the restroom. When Courtney returned to her apartment, she fell asleep and slept the entire day on Sunday.

When she awoke on Monday, Courtney had two large bumps on her head. She remembered events on Saturday night up to her injection but was confused about later events. She thought she may have been "date raped" by Neff and tried unsuccessfully to telephone him to find out. She went to the hospital with Brook R. and the police were contacted. She told a police officer that she may have been raped. She told the officer that she did not want to contact Neff and avoided him at work during the week. About a week after the incident, Courtney began remembering. She remembered being hit with a bottle and remembered the injection. A few weeks later she filed a police report accusing Neff of attacking her.

Brook R. testified that she and Courtney were supposed to meet at the Muddy Waters coffee shop Saturday night, but Brook R. did not see Courtney there. Brook R. found Courtney with Neff at her apartment and saw that Courtney was crying, could not keep her eyes open, and had a lump on her head. Brook R. also saw bruises on Courtney's back. When she asked Courtney what had happened, Courtney told Brook R. that Neff had told her that she had fallen. Courtney and Brook R. went to a rape counselor at the hospital on the following Monday.

Neff was not charged with the offenses for several years. It was not until 2006 that police made a DNA match implicating Neff. In January 2002, Neff had injected ketamine into Helene R. on a Santa Barbara beach and into Cecile Z. in Mammoth Mountain, California. DNA was found at the scene of the Mammoth Mountain incident and, in 2006, it was matched to Neff's DNA which had been discovered belatedly in a spot of semen on the waistband of the jogging pants F.O. wore when she was attacked in April 2002.

In a search of Neff's residence in March 2007, police found a syringe and hypodermic needle, and an eyedropper. Ketamine residue was found in the needle and ketamine, cocaine, and morphine residue were found in the eyedropper. The police also found many years of calendars with several references to "K," including one the day of the Helene R. incident.

Ketamine is an anesthetic which distorts the brain's ability to interpret sensory input causing disorientation and hallucinations. Ketamine is dangerous when administered in an uncontrolled situation and when combined with alcohol.

Ketamine does not prevent the feeling of pain, but causes a loss of memory which may be recovered in time. The effects of ketamine progress from grogginess to unconsciousness depending on the dosage, and last for approximately an hour. A "traumatic dissociation" disrupting memory of an event also may be experienced by a victim of sexual assault who has not been drugged in any manner.

Neff testified at trial that he had a college degree in writing and wrote scripts for a living. He admitted attacking F.O. as she described the event, but claimed his objective was only to rob her. He denied any sexual penetration of F.O., and claimed he had masturbated while holding F.O. down. Neff also admitted attacking and injecting ketamine into Helene R. and Cecile Z., and that he repeatedly injected his girlfriend with her consent.

Neff denied injecting Courtney L. He testified that he and Courtney got together on November 23, 2002. They drank alcohol at her apartment and she went into the bathroom several times. On one of these occasions, Courtney hit her head when she fell while reaching for something. Neff testified that he and Courtney continued to interact at work without incident. He testified that references to "K" in his diaries did not refer to ketamine but identified days when he did not masturbate.

Procedural History

Charges were initially brought against Neff in 2007. He was charged with the forcible rape of F.O. and the sexual penetration of F.O. and Courtney L. with foreign or unknown objects. The rape and sexual penetration counts regarding F.O. were alternative counts permitting conviction for only one. A jury trial was conducted in October 2008. When the jury announced a deadlock on all counts, the trial court gave additional instructions to the jury on the lesser included offenses of attempted rape and attempted sexual penetration, as well as instruction on simple assault and battery. After further deliberations, the jury returned verdicts of guilty on attempted sexual penetrations of F. and Courtney and found the enhancements to be true.

On December 16, 2008, Neff filed a motion for new trial claiming trial court error in giving instructions on attempted sexual penetration during jury deliberations after the jury had advised the trial court that it was deadlocked. The trial court granted the motion and a new trial of the attempt offenses was conducted in 2009. Neff was convicted of both counts of attempted sexual penetration offenses and the jury again made true findings as to the enhancements. The instant appeal is from that judgment.

DISCUSSION


No Violation of Prohibition Against Double Jeopardy

Neff contends double jeopardy barred his retrial on the attempted sexual penetration offenses. He argues that the jury's failure to reach a verdict on the completed sexual penetration offenses constituted an implied acquittal of those offenses and barred retrial of lesser offenses of attempted sexual penetration. We disagree.

The double jeopardy clauses of both the federal and state Constitutions provide that a person may not be placed "in jeopardy" twice for the "same offense." (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy doctrine prevents a second prosecution for the same offense after either an acquittal or a conviction. (People v. Anderson (2009) 47 Cal.4th 92, 103-104.)

"[B]oth federal and California law generally treat greater and lesser included offenses as the 'same offense' for purposes of double jeopardy." (People v. Anderson, supra, 47 Cal.4th at p. 104; see Brown v. Ohio (1977) 432 U.S. 161, 165-169.) In particular, section 1023 provides: "When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading."

Consequently, double jeopardy prohibits retrial of a greater offense where a jury convicts on a lesser included offense but is unable to reach a verdict on the greater offense. (People v. Anderson, supra, 47 Cal.4th at p. 104; People v. Fields (1996) 13 Cal.4th 289, 299.) A jury deadlock on the greater offense is treated as an implied acquittal. (Fields, at pp. 309-310; Porter v. Superior Court (2009) 47 Cal.4th 125, 135.)

Conversely, it is permissible to enter a guilty verdict on one count in a multiple count trial even if the jury is unable to reach a verdict on another count. (People v. Anderson, supra, 47 Cal.4th at pp. 104-105; People v. Fields, supra, 13 Cal.4th at p. 300; § 1160.) Unquestionably, it was permissible to convict Neff of attempted sexual penetration in his first trial despite the jury's failure to reach a verdict on the greater charges. If the conviction had been unchallenged, the case would be completed and there could be no retrial of the greater offenses.

The conviction for the attempted sexual penetrations, however, was challenged through Neff's motion for a new trial. A conviction set aside after a new trial is granted may be retried without running afoul of the double jeopardy doctrine. (Porter v. Superior Court, supra, 47 Cal.4th at p. 133; People v. Lagunas (1994) 8 Cal.4th 1030, 1038-1039; see § 1181.) When a defendant moves for a new trial motion, the defendant waives any double jeopardy claim on retrial. (Ibid.) "The granting of a new trial places the parties in the same position as if no trial had been had." (§ 1180, italics added.) Accordingly, Neff's retrial on the attempted sexual penetration offenses was not barred by the double jeopardy doctrine.

Neff simply argues that his implied acquittal of completed sexual penetration barred retrial for attempted sexual penetration because an attempt is a lesser offense of the completed offense. As we have outlined, this would be true only if Neff had not been convicted of the attempt offenses in his first trial.

Neff also argues that double jeopardy and due process prohibited the admission of evidence or argument in his second trial to the effect that the sexual penetrations of F. and Courtney were completed and not just attempted. He asserts that by admission of such evidence and argument, the second trial was, in effect, converted into a retrial of the completed sexual penetration charges. Neff is essentially arguing that the prosecutor in the second trial was required to omit all evidence consistent with completed sexual penetrations and offer only evidence that would negate the completed act and show only an incomplete attempt.

The double jeopardy doctrine is not an evidentiary rule that permits and prohibits the admission of evidence. As with any trial, relevant evidence was admissible, including evidence that was consistent with a completed sexual penetration of both victims and, in part, inconsistent with only an attempt. Such evidence did not expand the charges against Neff or convert the trial into a retrial of the original completed sexual penetration charges. The evidence was admissible to remove ambiguity concerning Neff's state of mind in committing the offenses.

Neff also asserts that sexual penetration by a foreign object is a different offense from sexual penetration by an unknown object. From this assertion, he argues that his conviction for attempted sexual penetration by a foreign object in his first trial barred, on double jeopardy principles, his second trial which was for attempted sexual penetration by an unknown object.

Because this argument was raised for the first time in Neff's reply brief, we are not required to consider the argument at all. (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) In any event, the argument is unpersuasive on its merits.

As Neff points out, the object was identified in the jury instructions in his first trial as a foreign object, whereas the object was identified as an unknown object in the second trial. Contrary to Neff's assertion, however, section 289, subdivision (k)(1) sets forth a single offense which is the act of causing the penetration, however slight, of the genital or anal opening of any person for the purpose of sexual arousal, gratification, or abuse accomplished against the victim's will by any foreign object, substance, instrument or device, or by any unknown object. Both trials were for an attempt of this offense. Section 289, subdivision (k) separately defines "'[f]oreign object, substance, instrument, or device'" as excluding a penis and "unknown object" as including a penis, but does not divide the statute into two separate criminal offenses.

The accusatory pleadings and jury instructions, fairly read, sufficiently apprised Neff that he was charged with attempted sexual penetration as set forth in section 289, subdivision (a)(1). A juror could not reasonably conclude that Neff would be convicted or acquitted on the basis of the difference in the definitions of foreign and unknown objects. Also, Neff never relied upon that difference and was not limited in his ability to present a complete defense.

Substantial Evidence Supports Conviction

Neff contends there was insufficient evidence to support his conviction as to victim Courtney L. or the jury's findings on the enhancements to that offense. He argues that Courtney's testimony was unbelievable, inconsistent, and lacking in corroboration that the conviction was based on speculation, conjecture, and unreasonable inference. We disagree.

When reviewing a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) A judgment will be reversed only if no substantial evidence supports the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Unless material testimony is physically impossible or inherently improbable to the point that its falsity is apparent, testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Mere inconsistencies or improbabilities in the testimony of a witness who has been believed by the jury do not justify a reversal. (People v. Jones (1990) 51 Cal.3d 294, 314.)

Neff claims that Courtney's testimony that Neff gave her an enema and smeared feces on her face lacks credibility. He also claims that important parts of her testimony were not corroborated, and that much of her testimony suggests that she was intoxicated or on drugs rather than reacting to an injection of ketamine or the emotional distress of being attacked. Neff cites a variety of purported inconsistencies regarding the number of bumps on Courtney's head, the absence of odor from the enema, and other conflicting evidence regarding her memory and injuries.

Although there may have been some inconsistencies in Courtney's testimony and differences between Courtney and Brook R.'s testimony, the discrepancies were not critical, and substantial credible evidence establishes the elements of the offense and enhancements. The effects of ketamine and the stress and trauma of the events affected Courtney's recollection of the events but did not render her testimony "fantastic," or inherently improbable or unreliable.

No Error by Trial Court in Responding to Jury Questions

Neff contends that the trial court erred in responding to a jury question regarding a portion of CALCRIM No. 460 (attempt other than attempted murder). He argues that the trial court improperly advised the jury regarding how it should apply the law to specific facts.

Trial courts are required to instruct jurors during deliberations "if they desire to be informed on any point of law arising in the case." (§ 1138; see People v. Smithey (1999) 20 Cal.4th 936, 985.) The court must "clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, overruled on another ground in In re Steele (2004) 32 Cal.4th 682, 691.)

Generally, a trial court satisfies this duty by rereading to the jury instructions it has already given. (People v. Gonzalez, supra, 51 Cal.3d at pp. 1212— 1213; People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) But, the trial court has broad discretion to determine in what manner it should respond to a jury request for further instruction, and may answer any question that qualifies as a proper legal inquiry based upon the facts. (People v. Thoi (1989) 213 Cal.App.3d 689, 697-698.) We will uphold a trial court's response to a jury's request for information absent a manifest abuse of discretion. (People v. Smithey, supra, 20 Cal.4th at p. 985; People v. Eid (2010) 187 Cal.App.4th 859, 882.) There was no abuse of discretion in this case.

The CALCRIM No. 460 instruction as given states that to prove an attempt, the People must prove the defendant "took a direct but ineffective step toward committing the crime of unlawful penetration with an unknown object." During deliberations, the jury asked for clarification of the phrase "direct step" when there are multiple steps. In response, the trial court stated that the term "direct step" is defined in the instruction and advised the jury to reread the instruction. The jury sent a second question "Re: more specificity" and asked whether certain acts were direct steps. The acts were "Tackle someone on beach," "Inject with Ket," "Straddle body," "Did or did not attempt to penetrate." The court responded that it is for the jury to decide which act or acts constitute a "direct step" and that the jury should look to the instruction for guidance. The court then stated: "Each of the acts contained in your inquiry could qualify as a direct step if you believe the acts conform to the requirements contained in the instruction and if the acts were committed with the requisite intent."

The second question by the jury may have asked the trial court to perform the jury's function to some extent, but the trial court did not respond in that fashion. The court directed the jury to the definition of "direct step" in the instruction and stated that the jury must make the decision. The reference to the specific factual examples did not constitute advice or direction that any of the specific acts constituted a "direct step." No Prejudicial Error in Deadly Weapon Enhancement Instruction Neff contends that the trial court erred in instructing the jury on the section 12022.3 enhancement for use of "a firearm or a deadly weapon." Neff argues that the court incorrectly instructed the jury that it could find the allegation to be true if it found that he used a "deadly or dangerous weapon" rather than a "deadly weapon." Neff claims further error in the identification of the weapon as "a syringe with the drug Ketamine." We disagree.

Section 12022.3 provides for an enhancement when a defendant "uses a firearm or a deadly weapon" in the commission of a section 289 offense. It does not refer to a "dangerous" weapon. The bench notes for the pattern instruction, CALCRIM No. 3145, state that the words "deadly or dangerous weapon" should be used only when the statute uses that phrase and that the words "deadly weapon" should be used when the statute uses only the word "deadly" to describe the weapon.

The trial court's insertion of "or dangerous" to describe the weapon was error, but harmless under any standard. The definition of "deadly or dangerous" weapon is identical to the definition of "deadly" weapon. "A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (CALCRIM No. 3145.) The jury would have to make the exact same determination to find the weapon to be "dangerous" as it would have to find the weapon to be "deadly."

We also disagree with Neff's argument that identification of the weapon at issue instructed the jury that a "syringe with the drug ketamine" was necessarily a deadly weapon per se. There is no prohibition regarding the identification of the weapon or alleged weapon in the pattern instructions. Also, a reasonable juror would not interpret the instruction as removing the determination of whether the syringe with ketamine was a deadly weapon from the jury. Otherwise, the instruction would have had no purpose. A reviewing court presumes that jurors are intelligent and capable of understanding the instructions given by the court. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Rick S. Brown, Judge

(Retired Judge of the Santa Barbara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Superior Court County of Santa Barbara

Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Analee J. Brodie, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Neff

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 31, 2012
2d Crim. No. B222279 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Neff

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN NEFF, Defendant and…

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

Date published: Jan 31, 2012

Citations

2d Crim. No. B222279 (Cal. Ct. App. Jan. 31, 2012)