Opinion
NOT TO BE PUBLISHED
Super. Ct. No. S05CRF0209
CANTIL-SAKAUYE, J.
A jury convicted 23-year-old Micah Patterson of unlawful sexual penetration of an unconscious person in violation of Penal Code section 289, subdivision (d). The trial court suspended imposition of sentence and placed defendant on probation for three years subject to numerous conditions, including one year in jail and registration as a sex offender pursuant to section 290.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends he is entitled to reversal due to instructional error relating to voluntary intoxication and mistake of fact. Defendant also argues that substitute defense counsel was ineffective in failing to adequately investigate all possible grounds for new trial. Finally, defendant maintains the prosecutor committed misconduct by knowingly presenting false evidence at trial. We shall affirm the judgment.
FACTUAL BACKGROUND
The facts giving rise to the felony charge are generally undisputed. Defendant met the victim in early 2004, just before he turned 21. She was a few years older. Their relationship had been strictly platonic with the victim and her female friends often referring to defendant as their “little brother.” However, defendant had a crush on the victim, which was apparent to some of their friends.
In June 2005, the victim and her friends socialized with defendant over the course of an afternoon and then arranged to go out drinking that evening. Before leaving for the nightclub, the victim wrote “Micah’s a hottie” or “Micah is hot” in the dust on defendant’s car. He took this as a signal that she might be thinking of him in a different light.
Both defendant and the victim had a significant amount to drink that night before they returned with the other revelers to the apartment the victim shared with her roommates. The critical issue at trial was whether defendant knew the victim was unconscious when he began to penetrate her vagina with his finger as she lay on a sofa in the living room.
The victim and her friends, including defendant, left the nightclub first. One of the victim’s roommates arrived later to find the victim asleep on the living room sofa and defendant asleep on the floor beside her. The roommate tried unsuccessfully to awaken the victim to tell her something that happened that evening. Another visitor to the apartment returned later and went to sleep on another sofa in the living room. The parties stipulated that the visitor heard and saw nothing. Later, a guest who was sleeping in the victim’s bedroom went to the kitchen for some chips. She testified that both the victim and defendant appeared to be asleep. However, defendant testified at trial that he was awake and aware of her trip to the kitchen.
Defendant interpreted the victim’s choice to lie down on the sofa near him, rather than go to her room, as another sign of her interest in him. Without speaking to the victim or engaging in any conversation with her, he initially placed his hand on her hip, and when she did not object began rubbing her thigh and buttocks. Defendant admitted at trial that the victim did not respond in any manner to these advances. He nonetheless assumed she was awake and passively accepting his foreplay, because he and the guest in the bedroom were both awake, and he himself would not have slept through similar intimate touchings. Acting on his assumption that the victim accepted the touching, defendant got on his knees and moved the victim’s leg so he could rub her inner thighs and lower stomach. He then spit on his finger and began to rub her vaginal area and clitoris. At that point the victim woke up, protested, and pushed defendant away. She fled to the bedroom and told her house guest, “I think [defendant] was just licking my pussy . . . .” The defendant followed, telling the victim that he thought she was awake and correcting her mistaken impression that he had been orally stimulating her. He said he was only “spitting on [his] fingers so [he] could stick them in her pussy.”
DISCUSSION
I.
Jury Instructions
A. Instructions on Voluntary Intoxication:
The information charged defendant with violating section 289, subdivision (d) which reads in relevant part: “Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act . . ., shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (1) Was unconscious or asleep. . . .” (Italics added.) The defense was based on defendant’s erroneous belief the victim was sending him sexual signals that night. Defendant’s admitted intoxication lowered his inhibitions to a point where he sexually touched her. Defendant testified that he thought the victim was awake and gave several reasons why he did not know she was asleep when he inserted his fingers into her vagina.
Section 289, subdivision (k)(1) defines “‘sexual penetration’” as “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”
Defendant contends the court’s refusal to modify Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 3426 on voluntary intoxication to include reference to the knowledge element of Penal Code section 289, subdivision (d) violated his state and federal constitutional rights to present a defense, to jury trial and to due process. He maintains that the court’s modified version of CALCRIM No. 3426 “precluded the jury from determining that [defendant] had been drunk enough to raise a reasonable doubt that he possessed such knowledge.”
Although the court has no duty to instruct sua sponte on an affirmative defense such as voluntary intoxication (People v. Saille (1991) 54 Cal.3d 1103, 1119 (Saille)), it must give an instruction pinpointing the theory of the defense if requested to do so. (People v. Wharton (1991) 53 Cal.3d 522, 570.) On appeal, we examine the challenged instruction as well as the entire charge to determine whether the court conveyed the applicable law to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525-526 (Kelly).) The ultimate question is whether there is a reasonable likelihood that the jury understood the charge in a way that prevented the consideration of constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 329]; Kelly, supra, at p. 525; see People v. Smithey (1999) 20 Cal.4th 936, 981 (Smithey).) We conclude the trial court erred in failing to include the mental state of knowledge in the voluntary intoxication instruction. However, in light of the entire charge, defendant suffered no prejudice because there is no reasonable likelihood that jurors would have interpreted these instructions as defendant suggests. There was no constitutional violation.
After extended discussion with counsel, the court rejected trial counsel’s proposed modifications of CALCRIM No. 3426. It acknowledged that the prosecution had the burden of proving beyond a reasonable doubt that defendant acted with knowledge that the victim was unconscious of the nature of the act. However, the court did not believe the additional language proposed by the defense belonged in the voluntary intoxication section of the instructions “because that [had] to do with his affirmative defense and not defining the elements of the crime charged.”
With trial counsel’s acquiescence, the court read the following modification of CALCRIM No. 3426 to the jury: “[Y]ou may consider evidence, if any, of the Defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the Defendant acted with the intent to do the act required. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of Penal Code Section 289(d), the People have the burden of proving beyond a reasonable doubt that the Defendant acted with the knowledge that [the victim] was unconscious of the nature of the act, and that the Defendant acted with the intent to cause sexual arousal, gratification, or abuse, and with the knowledge that she was unconscious of the nature of the act. If the People have not met this burden, you must find the Defendant not guilty of Penal Code Section 289(d). [¶] You must not consider evidence of voluntary intoxication for any other purpose.” (Italics added.)
We begin by rejecting the People’s forfeiture argument. Under well-established law, a defendant may challenge the legal adequacy of an instruction -- even in the absence of a contemporaneous objection -- by claiming that it affected his or her substantial rights. (§ 1259; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34; Smithey, supra, 20 Cal.4th at p. 976, fn. 7.) Although trial counsel responded, “Okay. That seems okay,” when the court read it’s modified version of CALCRIM No. 3426, he now claims that the alleged instructional error deprived him of substantial rights under the federal and state Constitutions.
Turning to the merits, defendant argues at length that the jury would not construe the italicized portion of the court’s instruction -- which limited use of evidence of his intoxication to “an intent to do the act required” -- to extend to the element of knowledge. However, the court’s version of CALCRIM No. 3426, as well as the other instructions, adequately covered the knowledge element. (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753.) The court separately instructed the jury on the elements of section 289, subdivision (d) in accordance with CALCRIM No. 1048 and on the necessity for proof of the union or joint operation of act and a particular intent or mental state pursuant to CALCRIM Nos. 225 and 251. These instructions made clear that the offense included both an intent and a knowledge element and twice reminded the jury that the intent or mental state had to coincide with the prescribed act. The court’s modified version of CALCRIM No. 3426 expressly referred to both the necessary intent and the knowledge element as part of the People’s burden before cautioning that intoxication was not relevant to any other issue.
CALCRIM No. 1048 reads in relevant part: “The defendant is charged with sexual penetration of a person who was unconscious of the nature of the act.
CALCRIM No. 225 reads in relevant part: “The People must prove not only that the Defendant did the acts charged, but also that he acted with a particular intent or mental state. The instructions for each crime explain the intent or mental state required.”
In addition, the closing arguments correctly explained the relevant law. (Kelly, supra, 1 Cal.4th at pp. 526-527.) The arguments of both counsel explicitly connected the knowledge element with the defendant’s intoxication as the only real issue in the case. And although the arguments of counsel are no substitute for the jury instructions, the arguments show that even counsel understood the court’s instruction on voluntary intoxication to include both the specific intent and the mental state of knowledge. Based on this record, we do not believe any reasonable juror would have ignored the effect of intoxication on the defendant’s actual knowledge of the victim’s unconsciousness merely because of the court’s phrasing of the instruction on voluntary intoxication.
There was also no prejudice for another reason -- defendant did not rely on voluntary intoxication to negate the knowledge element of the offense. A close review of defendant’s trial testimony indicates he never testified that his intoxication prevented him from knowing whether the victim was conscious. In fact that claim could well have backfired. After all, his intoxication level did not seem to prevent his sexual calculations. As is evident from his admitted foreplay, first he placed his hand on the victim’s hip, and when she did not object he began rubbing her thigh and buttocks. He testified she did not respond in any manner to these advances. He knelt next to the victim and moved her right leg in order to rub her lower stomach, inner thighs and clitoris. Defendant then spit on his finger when he began to rub the victim’s genital area, intending to have a sexual relationship with her. Defendant testified only that his intoxication lowered his inhibitions and gave him the confidence which allowed him to make the sexual advances toward the victim. In support of the argument that he lacked knowledge that the victim was unconsciousness, defendant testified that he assumed she was awake and passively accepting his foreplay, because he and the guest in the bedroom were awake and he himself would not have slept through similar intimate touchings. Moreover, we note that in closing argument defense counsel reiterated the defendant’s long-standing crush and the misperceived signals. However, at no point did defense counsel argue that defendant’s intoxication prevented defendant from knowing the victim was unconscious.
B. Instructions On Mistake Of Fact:
Defendant contends the trial court erred in failing to instruct sua sponte with CALCRIM No. 3046, mistake of fact, as it applied to defendant’s knowledge that the victim was not conscious of what defendant was doing. In the alternative he argues that if the instruction on mistake of fact is considered a pinpoint instruction, trial counsel was ineffective in failing to request it. There is no merit in defendant’s contentions.
CALCRIM No. 3406 is the form instruction on mistake of fact and reads: “The defendant is not guilty of _________________ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
“At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act with which the person [was] charged an innocent act, was a good defense.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425 (Russell).) The common law rule is codified in section 26, subdivision three, which provides: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.” Under this defense, the defendant’s guilt or innocence is determined “‘“as if the facts were as he perceived them.”’ [Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396.)
The court “must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, the obligation to instruct on defenses such as mistake of fact arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Barton (1995) 12 Cal.4th 186, 195.) Where the court has instructed the jury fully on the legal principles applicable to the case, the court is not required to give pinpoint instructions in the absence of a request. (People v. Bolden (2002) 29 Cal.4th 515, 559; Saille, supra, 54 Cal.3d at p. 1119.) A pinpoint instruction is not a complete defense. Instead, it highlights a defense theory and relates specific evidence to an element of the offense, the absence of which may reduce the offense to a lesser crime. (See Saille, supra, at pp. 1109-1110; People v. Middleton (1997) 52 Cal.App.4th 19, 31-32, disapproved on another ground in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.) The mistake of fact instruction as proposed here would be a pinpoint instruction which highlighted a required element of section 289, subdivision (d), the absence of which could reduce the felony charge to misdemeanor battery. Defendant did not request the mistake of fact instruction at trial and the court was not required to give it sua sponte. (Saille, supra, at p. 1109.)
In reaching this conclusion, we distinguish Russell, the case defendant cites in support of the argument there was prejudicial instructional error. In that case, a jury convicted defendant of receiving a stolen motor vehicle –- namely, an old motorcycle that defendant had taken from where it was parked outside a motorcycle repair shop. (§ 496d; Russell, supra, 144 Cal.App.4th at pp. 1419-1422.) To convict defendant of the crime, the prosecution had to prove that defendant knew the property was stolen. (Russell, supra, at p. 1425.) Defendant testified at trial, stating that he believed the motorcycle had been abandoned based on its condition and his understanding that the shop’s policy was to bring all the motorcycles inside the shop at night. (Id. at pp. 1421-1422.) However, trial counsel did not request a mistake of fact instruction. (Id. at p. 1431.) On appeal, the court found there was more than “minimal or insubstantial” evidence that defendant acted as if he believed he was entitled to possess the motorcycle. (Id. at p. 1431.) It ruled that the failure to instruct sua sponte on mistake of fact was prejudicial, because an element of knowledge is akin to specific intent and the instruction on the elements of the offense did not expressly explain that his knowledge of the stolen status of the property need only be sincere and not objectively reasonable. (Id. at p. 1433; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 (Navarro).)
The case before us is different from Russell. First, in Russell a mistake of fact defense to the receiving stolen property charge, if believed by the jury, would have been a complete defense rendering Russell innocent. Thus, in Russell, the instruction was not a pinpoint and the judge had a sua sponte duty to so instruct. However, here, as we explained earlier, the mistake of fact instruction would have reduced the charge to the lesser included offense of battery. Further, unlike Russell the mistake of fact theory was not expressly argued to the jury.
We also reject defendant’s claim that trial counsel was ineffective for failing to request CALCRIM No. 3406 on mistake of fact. In order to prove Sixth Amendment ineffective assistance of counsel, defendant must show that his attorney’s conduct fell below the general level of competence to be expected of criminal practitioners in the community, and that he was prejudiced by his attorney’s actions or inaction. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693 [80 L.Ed.2d 674, 693-694, 697] (Strickland).) On the question of competence, we recognize that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Id. at p. 690 [80 L.Ed.2d at p. 695].) Moreover, “[i]f the record does not disclose why counsel acted or failed to act in the manner challenged, then, unless counsel was asked for and failed to provide an explanation or there could be no satisfactory explanation, we reject the claim on appeal and affirm the judgment. Under such circumstances, the claim is more appropriately made in a petition for habeas corpus.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) To establish prejudice, defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694 [80 L.Ed.2d at p. 698].)
Although there is nothing on the record to explain defense counsel’s failure to request the mistake of fact instruction, it is possible that defense counsel simply elected not to highlight the reasons defendant thought the victim was awake. In any event, other instructions adequately covered the defense theory. As we already explained, the court properly instructed the jury on the elements of section 289, subdivision (d) and the joint operation of act and mental state using CALCRIM Nos. 225, 251, 1048 and its modified version of 3426. We conclude that these instructions were sufficient to communicate the concept of mistake of fact as it related to the question whether defendant in fact knew the victim was unconscious of the nature of the act. Additional instructions would have been redundant, perhaps even confusing. For these reasons, we conclude that neither court nor counsel can be faulted for failing to include or request CALCRIM No. 3406.
II.
Ineffective Assistance of Substitute Counsel
The jury announced its verdict on March 10, 2006. After receiving a letter from a friend of defendant recounting defendant’s dissatisfaction with his trial counsel, the court appointed a substitute defense attorney, Lori London, for the limited purpose of determining the competency of trial counsel. London filed a motion for new trial on defendant’s behalf. On appeal, defendant argues he was denied his constitutional right to effective assistance of counsel because London did not adequately investigate all possible grounds for the new trial motion. Specifically, he asserts that she “failed to accept the court’s offer to prepare a trial transcript so that she could made [sic] strategic decisions about [defendant’s] new trial motion based on thorough investigation and preparation.” There is no merit in defendant’s argument.
As we explained, in order to prove Sixth Amendment ineffective assistance of counsel, defendant must show that his attorney’s conduct fell below the accepted level of competence and that he was prejudiced by his attorney’s actions or inaction. (Strickland, supra,466 U.S. at p. 693 [80 L.Ed.2d at p. 697].) Defendant’s claim of ineffective assistance is directed to London’s representation in connection with the motion for new trial. Grounds for new trial include jury misconduct, trial or instructional error, prosecutorial misconduct, a verdict contrary to the law or facts, and newly discovered evidence. (§ 1181, subds. 3-8.) A criminal defendant is also entitled to bring a nonstatutory motion for new trial based on ineffective assistance of trial counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) “A court may grant such a motion if and only if the defendant demonstrates the existence of an error or other defect that is reversible.” (People v. Clair (1992) 2 Cal.4th 629, 667.) Based on our review of the record, we conclude that even if we were to conclude London committed misconduct by failing to order and review the trial transcript, there was no prejudice under the applicable standards.
In a letter dated August 5, 2006, the defendant himself complained to London that she had spoken with him briefly on one occasion and did not seem well-informed about his case. On August 7, London filed a request for a transcript, and a motion for new trial. The latter motion was based on the defendant’s affidavit which complained of concessions made by trial counsel in his opening remarks, inadequate cross-examination of the victim and other witnesses, and trial counsel’s failure to object to a misstatement of the law in the prosecutor’s closing arguments.
The August 14 hearing on the new trial motion was conducted before the court ruled on London’s request for the trial transcript. London reiterated that the motion was based strictly on the defendant’s complaints in his affidavit rather than any review of the trial transcript, and therefore it would be for the court to determine whether there was any merit in his complaints since she had not been present at trial. The court disagreed with the defendant’s characterization of trial counsel’s conduct and denied the motion. It noted that the defendant had never expressed any dissatisfaction with trial counsel’s performance prior to the verdict. The court set the matter for a sentencing hearing.
The defendant sent another letter to London on August 15 which expressed his dissatisfaction with what he believed was a perfunctory performance that resulted in an incomplete motion for a new trial. He sent copies of the August 5 and August 15 letters to the trial court.
At the time of the initial sentencing hearing on August 28, 2006, trial counsel announced that there was legal cause why the court should not pronounce sentence at that time. He indicated that defendant was asserting that London had failed to address an issue in the motion for new trial. When the court asked defendant to describe the issue, defendant replied, “There is a big piece of evidence that was used in the court case that is totally fictitious. [¶] It’s not . . . real. It was never said by me. It was one of the things that [the prosecutor] wrote up on the big piece of paper over there as a quote by me [that] I never made. I never said it.” The court responded that to the extent that he was referring to arguments of the prosecutor, it was not evidence, and to the extent there was testimony to that effect without objection, it would not have changed the verdict if excluded. Nevertheless, the court postponed sentencing in order to consider the defendant’s claim that London failed to address an important issue.
In the opening statement that defendant challenged, the prosecutor recounted the detective’s interrogation of defendant: “Next the Defendant is asked this series of questions by the detective. [The detective] asks him, ‘Well, then why did you do it?’ [¶] The Defendant says, ‘I was intoxicated and wanted to see if I could,’ with his friend sleeping on the couch. That’s 243(d), ladies and gentlemen. That’s an unlawful sexual penetration with your finger . . . .” During direct examination, the prosecutor questioned the detective in detail about the interview:
Thereafter, on September 14, the court held an in camera Marsden hearing with London and the defendant. The defendant accused London of failing and refusing to confer with him about the issues to be raised in the new trial motion and giving only the appearance of representing him. When pressed to be more specific about London’s conduct, defendant cited her failure to present critical evidence, including the prosecutor’s citation of the allegedly fictitious testimony in his opening statement. London stated that defendant had not identified anything that she did not include in her motion for a new trial; everything else was beyond the limited scope of her representation. The court denied the Marsden motion. After sentencing, the defendant filed another Marsden motion regarding trial counsel. The court denied the motion as untimely.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
There was no prejudice on this record. Although London had not reviewed the trial transcript, the court indicated that based on its evaluation of trial counsel’s performance it did not find any grounds for granting new trial. Given the court’s comments, competent counsel reasonably could have decided it was unnecessary to pursue the request for a transcript. Moreover, the trial transcript did not include the transcript of defendant’s interview with the police detective. While the trial transcript would have included the prosecutor’s opening statement and the detective’s testimony, it would not have revealed the alleged falsity of the detective’s testimony. And, in any event, as the court indicated, there was strong evidence to support the verdict. Finally, even if defendant did not say the exact words cited by the detective at trial, the prosecutor’s statement and the detective’s testimony were a reasonable summary of what defendant stated in his own trial testimony. In redirect examination, defendant described his attempt to explain to the detective the effects of intoxication on his behavior: “I was trying to explain to him that I was intoxicated, and that my judgment was –- my inhibitions were somewhat lowered, and that I thought it would be okay to try and make advances and see if they were accepted.” Later, defendant wrote in his statement attached to the probation report: “I did not commit the crime. I thought she was awake and acceptant of my advances. I made a move on her because she had given me reason to believe she was interested and she was right next to me so I figured hey why not, what can I lose[?] The worst that could happen was rejection. Boy was I wrong.” Neither statement differs materially from the opening statement challenged as fictitious –- that “[he] was intoxicated and wanted to see if [he] could.” And although the statement may have been wrongfully punctuated as a quote from defendant, he testified and explained away the nefarious connotation attributed to the quote. We conclude that it is not reasonably probable that defendant would have received a more favorable outcome had London presented these arguments at the motion for new trial. (Strickland, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 697].)
Because we found no merit in defendant’s claims of instructional error as discussed in the previous section of this opinion, we also find no prejudice in London’s failure to advance those points in the motion for new trial. Finally, we find no other support in the record for defendant’s claim he was prejudiced by London’s performance.
III.
Prosecutorial Misconduct
The defendant argues the prosecution committed misconduct by knowingly introducing and relying on false evidence during opening statement -- specifically, by representing that defendant told the detective during his interview that he penetrated the victim because “he wanted to see if [he] could.” Based on documentation not before the trial court in the posttrial proceedings, defendant contends that the transcript of the interview did not reflect any such remark on his part. Acknowledging that trial counsel did not object to the prosecutor’s opening statement, defendant maintains he is entitled to raise the matter for the first time on appeal because the failure to object constituted ineffective assistance of counsel.
Neither of the statements made by defendant and trial counsel at the August 28, 2006 hearing was sworn testimony. Accordingly, they are not competent evidence. Nothing in the record supports defendant’s passing suggestion that the prosecution’s failure to counter those statements was an adoptive admission. The prosecutor made clear at the September 18, 2006, sentencing hearing his view that defendant had failed to learn from his experience and take responsibility for his actions in this case. In coming to its ultimate decision to grant defendant probation, the court discussed at length the prosecution’s concerns. The court specifically told defendant that even if false, the prosecutor’s statement and detective’s testimony did not undermine the validity of his conviction or allay the court’s concerns about his potential for success as a probationer. Given the manner in which the sentencing hearing unfolded, it was not incumbent upon the prosecutor to respond to the defense claim that the police reports did not accurately reflect the transcript.
We cannot augment the record on appeal with an interview transcript that the court never admitted into evidence at trial. (9 Witkin, Cal. Procedure (5th ed. 2008), Appeal, § 646, p. 721.)
DISPOSITION
The judgment is affirmed.
I concur: SCOTLAND, P. J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The focus of the trial was on the need to resolve whether defendant knew that the victim was unconscious when he penetrated her vagina with his finger or whether he believed that she was awake and consenting to the touching. Apparently well aware that this would be the primary issue, the prosecutor chose to conclude his brief opening statement by attributing to defendant a highly incriminating explanatory statement for the penetration--a statement defendant had never made.
During his opening statement, referring to defendant’s interview with Detective Michael Dente, the prosecutor concluded by telling the jury: “Next the Defendant is asked this series of questions by the detective. Dente asks him, ‘Well, then why did you do it?’ [¶] The Defendant says, ‘I was intoxicated and wanted to see if I could,’ with his friend sleeping on the couch. That’s [section ]243[, subdivision ](d), ladies and gentlemen. That’s an unlawful sexual penetration with your finger, which is referred to as a foreign object under law. I submit that the gentleman is guilty. Thank you for your attention.”
Thereafter the prosecutor called Detective Dente to the stand. The detective testified that he did not find defendant to be forthcoming, and claimed defendant gave conflicting answers about whether he believed the victim was awake. When Dente pressed defendant to explain the basis for his belief that the victim was awake despite the absence of any vocal or physical response to his actions, the detective incorrectly testified that defendant cited only his own wakefulness.
Later on cross-examination, the detective acknowledged that defendant had also expressed the belief that no one would have slept through the intimate touchings that preceded the penetration.
At this point the prosecutor asked if “these statements that you’re telling us here, are these quotes from . . . the interview?” The detective said yes, and then the prosecutor told the witness, “I’ve written down some quotes from the tape” and asked his witness to review the bottom four lines to refresh his recollection (after giving defense counsel a chance to review it). The prosecutor then asked the detective a number of questions calling for statements made by defendant during the interview.
Neither party introduced a recording or transcript of the interrogation.
The prosecutor concluded direct examination by first having the detective testify that defendant admitted knowing that the victim had a boyfriend and that she was not promiscuous. He then wrapped up the detective’s testimony with the following exchange: Question: “Did you ask [defendant] then why he felt he could insert his fingers into her vagina?” Answer: “Yes.” Question: “What did he tell you in that regard?” Answer: “He -- he responded that he was intoxicated and wanted to see if he could.” Question: “Did you ask [defendant] whether or not he thought that he did something wrong?” Answer: “Yes.” Question: “What did he tell you?” Answer: “He thought that he had done something wrong.” Prosecutor: “I’ve got no further questions. Thank you.” When the prosecutor asked defendant what the defendant told the detective about why he felt he could insert his fingers into her vagina, “He . . . responded that he was intoxicated and wanted to see if he could.”
In his own testimony, defendant contended the detective was not really listening to what he had to say and was instead trying to impose his preconceived notion of what had taken place on defendant’s responses. In particular, the detective would not accept his claim that he had thought the victim was awake. Defendant had also been trying to explain to the detective that because he was drunk his inhibitions were lowered and he “thought it would be okay to try and make advances and see if they were accepted”; he was not trying to take advantage of the victim, and had in fact previously shared a bed with her on a trip without incident.
In closing argument, the prosecutor asserted that the only issue was “did the Defendant have any reason, any reasonable reason under common sense and experience, to think that [the victim] was awake, consenting to the act?” He argued that defendant’s claim to that effect could not withstand “your common sense and experience tell[ing] you that that’s not the truth.”
Defense counsel summarized various circumstances leading defendant to believe that the victim was interested in him, the reasons why it was plausible to construe her unconsciousness as being passive acceptance, and the way in which defendant’s actions were consistent with a romantic interest in the victim rather than exploitation of her unconscious state. Addressing the remark highlighted in the prosecution’s opening argument (and which apparently the prosecutor had written on the board at some point), defense counsel argued that defendant was not admitting that alcohol had emboldened him to take advantage of the victim, but rather to see if she would accept his advances.
In rebuttal, the prosecutor again argued that defendant’s asserted belief in the victim’s conscious state was not “reasonable,” and emphasized defendant’s admission that he needed to move her leg into position and also referred to unspecified inconsistent responses defendant had made to the detective. He asserted that defendant’s actions were that of an emboldened drunk taking advantage of the situation to grope an insensate victim. The prosecutor urged the jury to rely on “Detective Dente’s testimony about the Defendant changing his story numerous times while Dente interviewed him,” rather than defendant’s eight-month-old version that he testified to at trial. Summing up, he told the jury: “So finally we come down to -- and I guess it’s the -- we come down to whether or not you believe him. And what is logical? What is reasonable? How do we know?” [Then, after referring to some wisdom by Ann Landers,] “The point is that anyone that would go through and who would be groping an unconscious woman on a couch would sure -- would surely come in here and lie about it to escape liability.”
He also tied his argument about the implausibility of any belief that the victim was awake to the burden of proof, arguing that this did not create reasonable doubt. “So finally we come down to . . . whether or not you believe him. And what is logical? What is reasonable? How do we know?”
Defendant contends the prosecution knowingly introduced and relied on false evidence: namely that defendant offered the incriminating explanation for his conduct to Detective Dente that he penetrated the victim because he “wanted to see if [he] could.” Defendant maintains that the actual transcript of the interview--which is not part of the record--does not contain the remark. He relies on the unchallenged posttrial representations of defendant and his attorney to this effect. He therefore argues that the prosecutor committed misconduct in introducing and relying on this false evidence, which he may contest for the first time on appeal because the lack of objection from his trial attorney was ineffective assistance of counsel.
My colleagues have concluded that defendant’s contention fails because its factual predicate is missing--namely that the statement was never made. This is because the transcript of the interview is not part of the record and they fail to find that the prosecutor’s silence constitutes an adoptive admission. I find that the prosecutor’s silence is an implied stipulation that the statement was never made. As such it is a judicial admission. I further find that the misconduct warrants a new trial.
In his treatise on California evidence, Bernard Witkin concludes that the conduct of counsel can constitute an implied stipulation. (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 100, p. 803.) He cites the case of People v. Peters (1950) 96 Cal.App.2d 671, where the court held that express admissions of counsel at trial are binding and that “‘[t]he principle laid down applies equally to the unequivocal conduct of counsel from which the jury could properly and reasonably consider that the fact was conceded.’” (1 Witkin, Cal. Evidence, supra, § 100, p. 803, quoting Peters, supra, at p. 677.)
I find the principle applicable here. At the Marsden hearing prior to sentencing, defendant leveled one of the most professionally threatening and serious charges anyone can make against a prosecutor--a charge that defendant supported by reference to a transcript and a charge that, if false, could have been rebutted by reference to that very transcript. Instead, the prosecutor remained silent. Then at sentencing, trial counsel objected to this highly incriminating statement being included in the probation report because he could not find it anywhere in the transcript of the interrogation. Again, the prosecutor remained silent. Tellingly, the People’s brief does not allude to the lacuna my colleagues now rely on. If, as I suspect, the deputy attorney general has reviewed the transcript and confirmed the absence of the statement--she deserves to be commended for not implying otherwise.
People v. Marsden (1970) 2 Cal.3d 118.
In contrast to the professionalism exhibited by the deputy attorney general, I find the deputy district attorney’s silence inexcusable. The troubling nature of his silence is certainly not dissipated by the following comment he made about defendant and his own character at sentencing: “You know, if I was in his position here today, I’m going to say that I could fly the space shuttle, if I thought it would get me a lighter sentence from this court.”
The jury did not have an actual interrogation transcript, and the examination of Detective Dente was conducted in a fashion that gave the impression that he was providing exact quotes of defendant’s remarks. Although during the examination of defendant, defense counsel explored the issue of the detective’s preconceived bias coloring the interrogation, he failed to challenge the detective to authenticate the purported quote.
And while the trial court remarked in passing during sentencing that it did not believe the false evidence was significant in resolving the knowledge issue, the prosecutor certainly thought that it significantly incriminated defendant since he highlighted it in his opening statement; concluded the detective’s direct testimony by having him recount it; and kept it in written form on the board. It is not impossible, and indeed it is reasonably probable, that this false evidence tipped the jury against defendant. A retrial free of this taint is necessary.
As noted above, trial counsel objected to its inclusion in the probation report because he could not find it anywhere in the transcript of the interrogation. In imposing sentence, the court noted, “And although I know that your client takes issue with what [Detective Dente], in particular, had to say, I really think that this case boiled down to how the jury viewed [the victim]’s testimony and how they viewed your client’s testimony,” concluding that a belief she was conscious was unsupportable under the circumstances.
“To prove that the Defendant is guilty of this crime, the People must prove that:
“1. The Defendant committed an act of sexual penetration with another person;
“2. The penetration was accomplished using a foreign object;
“3. The other person was unable to resist because she was unconscious of the nature of the act; AND
“4. The Defendant knew that the other person was unable to resist because she was unconscious of the nature of the act.”
(Italics added.)
CALCRIM No. 251 states: “[Every] crime charged in this case requires the proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crime of Penal Code Section 289(d), a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for every crime.”
“If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit _________________ <insert crime[s]>.
“If you find that the defendant believed that _________________ <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for _________________ <insert crime[s]>.
“If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for _________________ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”
“Q. Did you ask [defendant] then why he felt he could insert his fingers into her vagina?
“A. Yes.
“Q. What did he tell you in that regard?
“He –- he responded that he was intoxicated and wanted to see if he could.”