Opinion
E050545
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. CHET RANDALL PRUITT, Defendant and Appellant.
Michael B. McPartland and Dennis L. Cava, under appointments by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF027100)
OPINION
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Michael B. McPartland and Dennis L. Cava, under appointments by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant was convicted, in 1998, of a series of crimes involving a female victim, a male victim and a number of commercial establishments. (People v. Pruitt, E023749, filed 10/7/99.) Defendant appealed, and this court affirmed his convictions, while directing the trial court to correct portions of his sentence. (People v. Pruitt, E023749, filed 10/7/99.) As a result of his petition for a writ of habeas corpus, the federal district court and Ninth Circuit subsequently reversed his convictions and he was retried for the same offenses. The jury convicted him, as to the female victim, of torture (Pen. Code, § 206), assault by force (§ 245, subd. (a)(1)) and first degree robbery (§ 211) and false imprisonment (§ 236), during all three of which he inflicted serious bodily injury (§ 12022.7, subd. (a)), first degree burglary (§ 459), unlawfully taking/driving a vehicle (Veh. Code, § 10851, subd. (a)), and vandalism (§ 594). The jury acquitted him of burglarizing the male victim's home, which was the only offense charged involving the male victim. The jury convicted him of second degree burglary of five commercial establishments, including one on two different occasions. Defendant was also convicted of vandalizing four of those establishments, including one on two different occasions. Finally, he was convicted of possessing burglary tools (§ 466) and receiving stolen property (§ 496) and he pled guilty to being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1)). He was sentenced to life plus 13 years, four months and appeals, claiming his motion to recuse the Riverside County District Attorney's Office was erroneously denied, discovery was improperly withheld from him, evidence was erroneously admitted, the torture conviction is supported by insufficient evidence and sentencing error occurred. We reject his contentions, save two concerning sentencing. Therefore, we correct these errors while affirming the judgment, and direct the trial court to correct errors in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Only the facts concerning the crimes involving the female victim are relevant to this appeal. On December 27, 1996, she was accosted inside her home by defendant and a co-perpetrator, choked twice into unconsciousness and bound and her personal property and truck were taken. Afterwards, she suffered from headaches, a sore throat, bruises on her neck and chin, and she felt as though she had been beaten up. Additionally, her voice was lowered for months. More facts will be disclosed as they are pertinent to the issues discussed.
ISSUES AND DISCUSSION
1. Denial of Defendant's Motion to Recuse the Entire Riverside County District Attorney's Office
In 1998, defendant went to trial a second time on the same charges that were filed against him in June 1997, including those involving the female victim. In 2001, years after defendant was convicted following that first trial, the female victim began employment as one of what came to be at the time of the motion to recuse (April 2009) approximately 50 victim/witness advocates, located in six different geographical offices of the Riverside County District Attorney's Office, which employed about 300 prosecutors in eight geographical offices. At the hearing on the motion to recuse, a deputy district attorney, who was not the trial deputy in this case, represented that victim/witness advocates coordinate appearances for victims and witnesses, including arranging travel for them and maintaining contact with them so that trial deputies know where they are. They also provide support for victims who are testifying in court and arrange to provide care for family members of victims while those victims are testifying. Finally, they coordinate appearances for victims at sentencing and assist if restitution is ordered by the court. The deputy district attorney represented to the trial court that in five years of being a trial deputy, he had never called on a victim/witness advocate to do any kind of investigation—that investigators at the district attorney's office handle issues related to discovery and evidence.
A note written by the female victim was found in one of the files of the trial deputy at the first trial. It was addressed to the paralegal for the first trial deputy. In the note, the female victim said that she had spoken to another person, whose job at the district attorney's office had not been identified, and that other person did not have the original victim/witness file on the defendant. The note went on to say that the female victim had called the Blythe office, presumably of the district attorney's office, and there were no longer any files from Indio there. (Defendant was tried both times in Indio.) Defendant alleged that this note was evidence that the female victim had been asked to handle files and conduct investigations in this case and had access to the files in the case. The trial court opined that the note concerned defendant's victim/witness file, which, the court believed, got lodged with the victim/witness advocate office and not with the trial deputy. The trial court theorized that the first trial deputy's paralegal was looking for defendant's victim/witness advocate file. If, in fact, it was the first trial deputy who was looking for it, the court reasoned, the female victim would have written a note to him and not to his paralegal.
This is precisely what the district attorney's investigator, who handled discovery in this case, testified to at a hearing on defendant's motion to compel discovery.
Defendant also asserted that the female victim had attended all the proceedings up to that point and had brought other victim/witness advocates with her.
Finally, defendant asserted that the first trial deputy, who had recently left the district attorney's office, had vigorously defended against a discovery request by the defense which he asserted constituted an invasion of the female victim's privacy. Defendant further accused this deputy of overbearing in opposing the substitution of counsel who subsequently brought the recusal motion and in connection with two other matters which defendant's moving papers did not adequately explain so as to make clear what had occurred. At the hearing on the motion, the attorney general's office argued that the actions of this deputy were moot in that he had left the prosecutor's office and would, therefore, have no further contact with the case. The trial court remarked only as to the deputy's conduct concerning discovery that he was "vociferous" and was "playing hardball." The court said the deputy's attitude might have been caused by his belief that the case never should have been reversed. The court did not address the remaining matters.
The trial court also concluded, in response to defendant's assertion that he was being denied a fair trial because he had been charged with torture, which he asserted was unsupported by the evidence, that defendant had been so charged long before the female victim came to work at the district attorney's office and the first jury had convicted defendant of that crime. In response to defendant's assertion that he was being denied a fair trial because the prosecutor's office would not negotiate any of the charges concerning the female victim, the trial court observed that the office did not negotiate any home invasion robbery cases after preliminary hearing.
The trial court denied the motion to recuse the district attorney's office in whole and in part. Defendant here claims that the ruling was an abuse of discretion. (Haraguchi v. Superior Court (People) (2008) 43 Cal.4th 706, 711.) It was not.
Defendant correctly notes that recusal may not be ordered unless the evidence shows a conflict of interest that would render it unlikely that the defendant would receive a fair trial (Pen. Code, § 1424, subd. (a)(1)). There must be a showing of real, not apparent, potential for unfair treatment that rises to the level of a likelihood of unfairness. (People v. Vasquez (2006) 39 Cal.4th 47, 56.) An especially persuasive showing must be made when recusal of the entire office is sought (People v. Gamache (2010) 48 Cal.4th 347, 361-362). Defendant, in his opening brief, offers nothing in the way of demonstrating what evidence presented below showed a potential for unfair treatment that made unfairness likely other than to repeat, with some unsupported editorializing, what has already been set forth. He cites no authority holding that such a conflict exists in circumstances similar to those here. We reject, as did the trial court, the assertion defendant makes in his reply brief that the female victim's note indicated that she had access to the files in this case or worked on this case in any manner. Additionally, there was no demonstration below that the first trial deputy's attitude about certain discovery matters was due to the female victim's relationship with the prosecutor's office. As the People correctly point out, there was no showing below that defendant was treated any differently after the female victim became an employee of the prosecutor's office.
2. Failed Discovery of the Female Victim's Hospital Report
As a forward, it is noteworthy that at the motion to compel discovery of the female victim's hospital report, defense counsel stated that she had read up to about page 1000 of the transcript of the prior trial. Therefore facts referenced in the transcript of the prior trial which were before page 1000 were facts within the knowledge of defense counsel at the time of the hearing on the motion. Additionally, the defendant's testimony at the first trial followed all of the below-cited facts, so it is difficult to believe that trial counsel for defendant at the second trial was not aware of all these facts before trial began, most assuredly having read her client's testimony at the first trial.
Before the first trial, the female victim's medical report from Eisenhower Medical Center, subpoenaed by the defense, was opened by the trial court and inspected by and copies made for counsel. It was noted for the record that the doctor or doctors who examined her at Eisenhower had concluded that her history was consistent with "severe trauma." Specifically, based on a history provided by the female victim, the report stated that she had "multiple contusions and abrasions, and she certainly has a history consistent with serious trauma." It was further noted for the record that the original report had been misplaced by the hospital and what was provided by the hospital, in response to a subpoena, was a "partial reconstruction" of that report. During cross-examination of the female victim by defense counsel at the first trial, she contradicted a notation in the report which stated that she had not complained of difficulty swallowing or speaking or of anything other than abrasions to her finger and knee and neck pain. She also contradicted the report's statement that she had no complaint of headaches or trauma.
Later, the following portions of the report were read into the record at the first trial, outside the presence of the jury, "'General: Alert and oriented. [¶] Head: There is no complaint of headaches or trauma. Eyes: There is no complaint of . . . diplopia or blurry vision. . . . There is dysphonia with hoarseness. Ears: There is no complaint of hearing loss or tinnitus. [¶] . . . [¶] . . . Nose: There is no complaint of difficulty breathing, history of allergy or sinus disorder. Throat: There is no complaint of difficulty swallowing or speaking. . . . [N]o odynohagia or dysphagia.'" The trial court noted that odynophagia "means pain on eating." Eventually, the following stipulation was read to the jury in the first trial, "[The female victim] reported to Eisenhower Medical Center emergency room on December 29th, 1996, that she was examined at that location, and as part of the medical reports, the following was stated. 'There is dysphonia . . . with hoarseness.' . . . 'Nose: There is no difficulty. There is no complaint of difficulty breathing. Throat: There is no complaint of difficulty swallowing or speaking.' . . . [¶] . . . [¶] . . . [D]ysphonia . . . is described as 'Any impairment of voice; a difficulty in speaking.'" Due to this stipulation, the medical report was not entered into evidence at the first trial.
In November 2008, defense counsel requested discovery of all medical records concerning the great bodily injury alleged sustained by the female victim and the record which had been discussed but not entered into evidence at the first trial. Defendant renewed this demand in his February 2009 motion to compel discovery, in which he noted that most of the items for which he was requesting discovery had been provided to him during the first trial. The People, in response to his motion, stated that it had made all its files available for inspection and copying and it had no other documents to give to the defense. At the hearing on the motion, the People reasserted that the defense had everything it had. The district attorney's investigator, who was in charge of discovery for the People, testified that the prosecutor did not have the female victim's records from Eisenhower. He added that he had inquired at the hospital and been told that due to HIPAA regulations, reports are destroyed within 5 or 10 years and there were no reports for the female victim at Eisenhower. In denying that portion of the motion, the trial court noted that the prosecution did not have the female victim's report from Eisenhower.
At the end of its case, the prosecution called the County's chief forensic pathologist. He testified that in the course of his job, he has had to ascertain the nature and extent of injuries upon a person's neck or throat due to strangulation or choke-hold and testify as an expert witness about this. He said that he had listened to the female victim's direct testimony about what had happened to her while she was being choked by defendant during the crimes and what had happened to her physically afterwards. The doctor explained what happens to someone when they are choked into unconsciousness. He also explained what would happen when someone is choked into unconsciousness a second time. He explained why someone choked in the manner the female victim described would have their voice altered, as she testified hers was, for a period after the incident.
On cross-examination, he was asked if he reviewed any medical records relating to any treatment the female victim had at the time of the crimes. He said that he had reviewed several pages of emergency room records "at some point." Defense counsel then asked him whether, based on those records, any microscopic examinations were performed on any of the female victim's organs or tissues. He said they were not and such examinations were not typically done on a live patient. Defense counsel asked if microbiological examinations of the female victim's blood were done. The doctor replied that he did not know, but did not believe so—that hematology blood tests, rather than microbiological blood tests, would have been done, but he could not recall if the former had been done. He explained that even if tests for carbon dioxide, which is produced when one is choked into unconsciousness, were performed two days after the crimes, they would not show that the victim had been choked into unconscious at the time of the crimes. He said that small hemorrhages in the eye are "consistent with the mechanism of asphyxia" and they "may occur" but are "not diagnostic of strangulation." Defense counsel asked the doctor if there was any notation in the female victim's medical records of such hemorrhages and he replied that there may have been some reference to bloodshot eyes or redness of the eyes, but he did "not remember at all if there was anything specifically mentioned." Counsel followed up with a question whether the doctor recalled that the female victim testified that she did not have any redness in her eyes. The doctor also testified that he had no recollection whether the medical records had a notation that the female victim had bleeding, bruising, contusions or swelling. This was in relation to his testimony that being choked into unconsciousness could cause the female victim's voice to be affected due to the bleeding, bruising and/or swelling resulting from an injury to the vocal chords or to the area around them. Counsel again pointed out that the female victim had testified that she had no swelling to the outside of her neck. The doctor testified he could not remember from the medical records if the female victim had reported that she had either been choked into unconsciousness or she had fainted.
After defendant had been convicted, defense counsel requested an ex parte hearing, during which the doctor testified that the prosecutor or one of his representatives gave him two, or possibly four, pages of what he thought were original emergency room records before or at the time of trial. The doctor said that he destroyed the records shortly after the verdicts were rendered in November 2009, and the prosecutor told him that he did not have a copy of them.
At the hearing on defendant's motion for a new trial, based, in part, on newly discovered evidence, i.e., the report, the prosecutor asserted that it had been turned over to the defense. He added that he found it "in the box" of materials gathered in the case and his investigator told him that it had been turned over to the defense. The trial court concluded, and we agree, "I don't know what happened to [it]." Whether defense counsel, when she went through the prosecutor's files, failed to locate it, or the prosecutor failed to place it in the files he provided to her will never be known. Thus, we cannot agree with defendant that the record supports his assertion that prosecutor intentionally suppressed material evidence (See People v. Hitch (1974) 12 Cal.3d 641, 645 overruled on other ground in People v. Johnson (1989) 47 Cal.3d 1194, 1234). More importantly, we cannot agree with him that this evidence was favorable to him, i.e., that there is a reasonable probability that had it been disclosed, he would not have been convicted of torture or the serious bodily injury allegations would not have been found (United States v. Bagley (1985) 473 U.S. 667, 682) or even that its absence prevented him from effectively cross-examining the female victim or the doctor.
We cannot agree that, even if the prosecutor deliberately withheld the report from defense counsel, which, as we said, the record does not support, then, necessarily, it contained significant exculpatory evidence.
Much of the content of the report was known to defense counsel at the time she brought her motion to compel courtesy of her reading of the transcript of the first trial. The rest was entirely knowable by her by merely reading more pages of the transcript of the first trial or performing a little investigatory work, as this court did. Counsel's reading of the transcript of the first trial preceded her cross-examination of the female victim and the doctor by several months. She could have asked the female victim about the information in the record that was disclosed during the first trial and she did ask the doctor, but he was unable to recall. We find it incredulous that if the report contained any more information helpful to the defense than was disclosed in discussions during the first trial, when both parties had the report, that that information would not have been mentioned during those discussions. It was not. Additionally, it stretches credulity to imagine that defense counsel at the first trial, who had the report, would not have significantly impeached the female victim at the first trial with its additional contents if there was something therein that was devastating to the prosecution. But he did not. Therefore, we cannot agree with defendant's implication that the missing record somehow contained the "smoking gun" that would have significantly undermined the female victim's testimony regarding her injuries or the doctor's, whose direct examination was completely unrelated to the report. Finally, it must be remembered that the report was a recreation provided by the hospital to replace the actual report which the hospital lost. The female victim's testimony at both the first and second trial contradicted portions of the report in significant ways. The persuasive impact of the report is at best less than overwhelming.
It is also noteworthy that defense counsel brought out during cross-examination of the female victim that she had testified at the preliminary hearing that she was not sure she would have gone to the emergency room two days after the incident if someone from a victim's advocacy group had not told her to do so in order to document her injuries. She further testified on cross-examination that she had no broken bones and no X-rays were taken of her, nor were stitches, medication prescriptions, ointments, salves or braces provided to her at the emergency room. She said she saw no other doctors to "follow up" after her visit. This was powerful evidence suggesting that her injuries were not significant. Thus, it was not as though, absent the report, the defense was left with no way to disprove the asserted substantiality of her injuries. Moreover, most of the post-incident discomfort/disability she suffered lasted for weeks after the offenses, including headaches, that lasted for a couple of months, the lowering of her voice, which lasted for six months, a sore throat, that lasted for two to three months, bruises on her neck and chin, which lasted for one week, and feeling like she had been beaten up, which also lasted for one week. None of this would have been able to be substantiated or not in the report which was authored two days after the crimes. As the trial court observed in denying defendant's motion for a new trial, "[The female victim] never tried to exaggerate her injuries. . . . She said the first choking rendered her unconscious. Then she is conscious for a while and then is choked again into unconsciousness. . . . She didn't go to the doctor right after the incident, even though she had the opportunity to do so. She was more concerned at the time about her animals which had been let loose.
She testified that she wanted to remain at home in the hope that they would return.
So she goes to the hospital belatedly. And she doesn't exaggerate that. She has marks on her neck; there is no question about that. She has bruising; no question about that. What could she have told them? She had a sore throat, sore neck and she was hoarse. And this continued for some time. She had pain. She had headaches. What more would there have been in the mysterious medical records? [¶] . . . [T]here was no prejudice for the lack of those records. [¶] . . . [¶] I would find, even if there w[as] prosecutorial error in not furnishing them to the defense, there was no prejudice for the lack of those records."
3. Admission of Evidence
a. The Female Victim's Identification of Defendant in Court
Pursuant to a request by the defense, this court took judicial notice of the file in defendant's appeal from the first jury's verdicts. Therefore, appellate counsel for defendant, who was appointed by this court two and a half months later, was fully aware that the file in the prior case had been made part of the record in this case. Why appellate counsel for defendant would choose to rely on trial counsel's version of that record in her motion for a new trial and would quote extensively from her argument therein, as though it were gospel, rather than relying on the record itself, is beyond us.
In her written motion and at the hearing on that motion, defense counsel referred to and quoted from the transcript of what she called "the first preliminary hearing," contrasting it to the preliminary hearing from which the People cite the female victim's testimony, which counsel referred to as the "second preliminary hearing. Defense counsel below asserted that it was during this socalled first preliminary hearing that the magistrate noted, with the prosecutor's agreement, that the female victim could not identify defendant. This socalled "first preliminary hearing" is actually the preliminary hearing in the coperpetrator's case (People v. McWhorter, INF026258), which is not currently part of the record before this court. The portion of that record defense counsel cited in her motion is the magistrate's statement that the victim "doesn't recognize these individuals here in court" which, she asserts, the prosecutor in that case did not dispute. We have no way of knowing whether defendant was among those individuals, as there was a third person charged in connection with some of the crimes not involving the female victim. Additionally, this demonstrates why the representations of trial counsel for defendant should not be accepted as gospel.
At trial, the female victim testified that defendant was the person who, a few days before the crimes involving her, had approached her at her mailbox and handed the mail to her which he said he had found in the possession of neighborhood children. She testified that defendant had pointed to what he said was his home, which was within sight. She also said that defendant identified himself as "Randy" which is defendant's middle name and the name by which he identified himself to a neighbor of the female victim's. The victim's identification of defendant as this man was corroborated by the testimony of that neighbor, and he and others who knew defendant testified that defendant also lived close to the victim's home. The victim testified that her assailant wore a baseball cap that was similar to the cap defendant was wearing during the mail incident and his build was similar to the former's. When asked to look around the courtroom and see if she saw her attacker, she testified that it was defendant because "[a]fter [defendant and the co-perpetrator] were arrested and I knew that they were going to be in court, I came to court, . . . [and] . . . [¶] . . . [¶] . . . they stood next to each other, just so happened [the] same sides, [they had been on during the crimes] and [defendant] looked at the other guy and smiled, and . . . [¶] [t]hat's what I saw when I was laying on the floor [during the crimes]. [¶] . . . [¶] I saw his face. I saw his smile. [¶] . . . [T]hey look[ed] identical . . . ."
In his motion for a new trial, defendant contended that the prosecutor had suborned perjury by allowing the victim to identify defendant in court because she had not previously identified defendant, nor had she been asked to by the previous prosecutor, the current prosecutor knew she was unable to identify defendant, therefore he knew when she identified defendant at trial that she was lying. In response, the People cited portions of the preliminary hearing in which, during cross-examination by defense counsel, the victim testified that she had previously identified defendant as her attacker. When defense counsel inquired of the victim if she had been asked if she could identify defendant, she responded, "'I said the same thing that I said here, that I saw the profile and I could . . . identify . . . and I said . . . that . . . the first time I saw . . . [defendant] and
Those portions were erroneously omitted from the Clerk's Transcript of the appeal of the first trial.
[his co-perpetrator] in court, it was like déjà vu. [¶] . . . [W]hen I saw them standing next to each other in court, the first time that I saw them, . . . they stood next to each other, and [defendant] looked at [the co-perpetrator] and he smiled, and it was exactly what I had seen [during the crimes].'" The current prosecutor explained that the prior prosecutor had not asked the victim to identify defendant during the first trial because the co-perpetrator testified during that trial and identified defendant as the person who had attacked the female victim and the former prosecutor, therefore, "didn't need" her identification of defendant in addition to this. During the hearing on the motion, defense counsel did not dispute the prosecutor's representations about the female victim's testimony during the preliminary hearing.
The trial court denied the motion for a new trial on this basis, saying, " . . . [The victim] . . . either told the investigator or [the prosecutor] that she can identify [defendant]. She did get a profile view of him. That is consistent. [S]he . . . said she could identify the profile. . . . [A] lot of [prosecutors] wouldn't be happy with that. And I can understand [why the prior prosecutor did not ask her to identify defendant during the first trial]. [¶] She saw a profile view of him in court with [the co-perpetrator] which influenced her, I'm sure. But she was crossed on this very thoroughly. And I thought she was very credible on that I.D. . . . And there is circumstantial evidence. [¶] This case could be made without any I.D. . . . [T]he I.D. is not as important as you want the Appellate Court to think it is . . . ."
Specifically, that circumstantial evidence included the fact that one of defendant's friends testified that defendant pointed out the female victim's home and told him that he wanted to go there and tie her down and get her ATM card. Defendant told the co-perpetrator's housemate, in the co-perpetrator's presence, that he intended to rob a lady who had a lot of stuff, worked for the gas company, had two dogs and whose name was the same as the female victim's. He said if he did not get her credit card code, that he would bash her head in with a flashlight. He discussed this woman for five days, always in the co-perpetrator's presence. After the crimes, he said he had been stalking her for two months. The housemate saw defendant driving a truck similar to the victim's the night of the crimes with the co-perpetrator in the passenger seat. She saw defendant give the co-perpetrator a stereo, an ATM card, a cell phone and the female victim's checkbook. She heard defendant say, after parking the truck, that he was going to make a duplicate of the key he had for it and use it later to steal the truck again. Defendant pointed out to her an article in the paper about the female victim and he smiled and laughed because he had made it into the paper due to the fact that he had been violent. He described how he and the co-perpetrator had entered the house and waited for the female victim to return home from work and he briefly described what he had done to her during the crimes, saying he did it for her PIN and her vehicle. The female victim's distinctive Chicago-area high school class ring and receipts from her place of employment were found on defendant by the police. The female victim's stereo was found where defendant had been staying.
The female victim worked for an electrical contract business, but worked Monday thru Friday, 9:00 a.m. to 5:00 p.m.
Defense counsel replied to the trial court's observation by suggesting that the former prosecutor offered the co-perpetrator a deal of 12 years, rather than the life term that defendant faced, because the former needed the co-perpetrator's identification of defendant as the female victim's assailant. (As already stated, the co-perpetrator testified at the first trial, identifying defendant as the assailant.) Following the denial of the co-perpetrator's invocation of the right not to incriminate himself at this trial, the prosecutor elected not to call him to the stand.)
We disagree with defendant's current assertion that the foregoing demonstrates that the prosecutor suborned perjury. There is no evidence that the female victim was lying about recognizing defendant as her assailant and her testimony was consistent with what she had said at the preliminary hearing. Although not specifically addressed by defendant, aside from the issue whether the female victim was lying and whether the prosecutor knew she was, we agree with the trial court that her identification of defendant in court, limited as it obviously was, was de minimis in comparison with other evidence implicating defendant as already described. Finally, as the People point out, during argument, defendant conceded that he robbed, burglarized and vandalized the female victim's home, stole her truck and assaulted her in a manner likely to cause great bodily harm. He did not contest that he was her assailant, only that what he did to her did not constitute torture.
In his reply brief, defendant tones down the rhetoric by asserting that it was misconduct for the prosecutor to present unreliable identification testimony. First, as we have already observed, the limits of the female victim's identification of defendant were apparent to the jury. Second, it was consistent with her prior identification at the preliminary hearing and, thus, not necessarily unreliable. Finally, it was for the jury to determine whether to find her identification reliable. (People v. Alexander (2010) 49 Cal.4th 846, 903.) We cannot say, as a matter of law, that it was unreliable, therefore, it was admissible and the presentation of admissible evidence does not constitute misconduct.
Defendant, in his reply brief, misses the mark in asserting that the other evidence implicating him as the female victim's assailant did not render her identification of him in court non prejudicial because "without her testimony there was no evidence that [defendant] was guilty of torture." Defendant sought a new trial, on this basis, solely due to the admission of the female victim's identification of him in court. He did not allege, nor could he, that all of her testimony should have been excluded on this or any other basis. If her identification of him as the assailant had been excluded, she would have been free to testify to what her attacker did and what injuries she suffered as a consequence. This would have been evidence to support the torture verdict.
b. Defendant's Statements About Intercourse
In her motion for a new trial, trial counsel for defendant asserted that "early in the trial, before opening statements, [she sought] an exclusion of the victim's testimony that while she was initially tied to her bed, defendant repeatedly suggested to his co-perpetrator that they have intercourse with her and the co-perpetrator consistently said no. However, the court reporter was unable to locate such a proceeding and there is no notation of it in the court's minutes from the day trial counsel began representing defendant. It is not mentioned in defendant's motions in limine and motion to exclude evidence. The prosecutor, in his opposition to defendant's motion for a new trial, asserts that an objection was made by the defense "on the basis of relevancy and materiality[,]" under Evidence Code sections 350 and 351, but not 352. During the hearing on the motion for a new trial, the prosecutor asserted that the trial court had ruled correctly in allowing those statements by defendant to be admitted. The trial court concluded, "I let that in over an objection because I believe . . . it is relevant to the torture count. That's what this case is all about. [The defendant intending to cause cruel or extreme pain and suffering for any sadistic purpose.] Sadist, that is one of the elements [of torture]. And what could be more sadistic than tying a young woman to a bed spread eagle and a comment like that being made? So, I think it was relevant." Despite the fact that our careful review of the record shows that no objection was made, we will bow to the recollections of both parties and the trial court that one was.
Both sections address the relevancy of evidence. Defense counsel had cited both in her motion for a new trial as the reason why this evidence should not have been admitted at trial.
Thus, defendant's assertion that the prosecutor did not contradict the representation of trial counsel for defendant that she objected before the prosecutor's opening statement at the hearing on the motion ignores this. Defendant's motion for a new trial and defense counsel's argument during the hearing on the motion was so extensive, covered so many topics, and contained so many factual assertions that the fact that neither the trial court nor the prosecutor responded to this particular assertion during the hearing means nothing.
Defendant here asserts that the trial court erred in admitting the statements because they did not have a tendency to prove he acted with a sadistic purpose in taking the female victim's money and they were an after-thought after defendant obtained her PIN. We disagree. Torture, as this jury was instructed, and as is relevant to this discussion is the inflicting of great bodily injury on the victim, during which defendant intends to cause cruel or extreme pain and suffering for any sadistic purpose. Some of the acts that constituted torture were tied to the theft of the female victim's property and the obtaining of her PIN. However, everything defendant did during the hour he was with the victim could have been considered by the jury in determining whether he tortured her, including choking her into unconsciousness twice, once by holding her up off the floor, and which made her believe that she had urinated and defecated on herself, sitting and lying on top of her while her face was in a pool of her own blood, tying her wrists and feet together, putting a flannel nightgown and then a pillow over her head so she could not see, carrying her over his shoulder while tied up and blinded and throwing her onto her bed face down, the co-perpetrator pressing down on her back making it difficult for her to breathe and defendant angrily accusing her of failing to give him her PIN when she actually had. She was told by the co-perpetrator that they "knew her" after defendant said he knew she had money. After she had, to defendant's satisfaction, given him her PIN, he made the statements at issue and the victim told him that she had defecated and urinated on herself, but defendant persisted with the idea of raping her. She began saying the "Hail Mary," her ties were cut off with a knife, and she was tied, once again, spread eagle and face down, to her bed, with additional ties across her face, chest and neck which restricted her breathing. Large, heavy dog beds were piled on top of her head.
The fact that defendant would try to persuade the co-perpetrator to rape the female victim and state his intentions to do the same after what he had already done to her was part of the torture he inflicted on her and demonstrated his intent and purpose. Therefore, it was relevant and if the trial court admitted it over defendant's relevancy objection, it did not abuse its discretion in doing so. (People v. Carter (2005) 36 Cal.4th 1114, 1167.) To the extent defendant also argues that this constituted other crimes evidence, under Evidence Code section 1101, his failure to object on this basis below precludes his argument (Evid. Code, § 353). The same is true of defendant's argument under Evidence Code section 352, raised for the first time in his reply brief (People v. Alexander (2010) 49 Cal.4th 846, 905).
4. Cumulative Error
Having found no error in any of the foregoing areas, we necessarily reject the defendant's contention that the cumulative impact of these asserted errors requires reversal.
5. Insufficient Evidence of Torture
By comparing the facts here to those in two published cases, People v. Burton (2006) 143 Cal.App.4th 447 and People v. Misa (2006) 140 Cal.App.4th 837, defendant argues that the evidence of torture was insufficient. However, every case must be judged on its facts.
Defendant asserts that the evidence was insufficient because his "one sole [sic] purpose when he entered [the female victim's] house . . . was to take her personal property." If that were the case, why did he invite the co-perpetrator to rape her and state his intention to do the same after he had obtained control of all the personal property he took? Moreover, defendant and the co-perpetrator entered the victim's house about mid-morning on December 27th, and stayed there for eight hours, waiting for the victim to return home from work. If defendant wanted her personal property, he could have taken it and left. Even if most of the acts he committed were aimed at obtaining her property, that did not preclude a conviction of torture which requires the defendant to "inflict . . . great bodily injury [while] . . . intend[ing] to cause cruel or extreme pain and suffering for the purpose of . . . extortion . . . [or] persuasion . . . ."
Defendant asserts there is no evidence he intended to cause cruel or extreme pain. We disagree. Choking someone into unconsciousness, twice, to the point where they believe they have defecated and urinated all over themselves, shows such intent, as does binding a blinded person and slinging that person over the shoulder, like a sack of potatoes, throwing that person face down on a bed and putting pressure on their back so it is difficult for them to breathe and tying that person to the bed in such a way that they cannot breathe and piling heavy objects on their head. In addition, defendant said he would have to kill the female victim when she would not stop screaming when he first began to choke her. She testified that while defendant was choking her both times she thought she was dying—she couldn't get any air in or out and she felt like her eyes were bulging out of her head. She said the pressure in her head and eyes hurt a lot. After the nightgown was put over her head she "was very afraid. When the co-perpetrator said they knew me, and the way they talked about my animals, I thought, well, if they know that much, then they know there's nobody else coming home tonight. . . . [T]hey could be here all weekend, and . . . they had already choked me [in]to unconsciousness twice, and I am thinking . . . they could do anything to me." When she was tied, spread eagle, to her bed, she said, "It hurt. . . . [T]he fear, the uncertainty, the expectation, . . . all of that was so enormous, I . . . didn't want to snap, . . . I was thinking . . . I could just . . . mentally snap." Two days later, the female victim went to the emergency room because she was sore all over. We have already described her other injuries. Other evidence already described further supports the finding that defendant acted for a sadistic purpose.
6. Sentencing
a. Total Subordinate Terms
The parties agree that the trial court exceeded the five limit provided by section 1170.1, subdivision (a) as it existed at the time defendant committed these crimes for consecutive non-violent crimes. In 1996 and 1997, when they were committed, the crimes in counts 6, 8, 10, 12, 14, 16, 18, 21 and 22 were non-violent offenses (§§ 1170.1, subd. (a) & 667.5, subd. (c)). The trial court imposed consecutive terms for them, totaling six years, therefore, one year must be deducted from this total.
b. Section 654
Defendant contends that the trial court erred in imposing a term for his burglary of the female victim's home and not staying the term for that offense pursuant to section 654. The trial court concluded that imposing terms for both offenses would not violate 654 because "[there were d]ifferent intents and objective. The intent to rob actually came after most of the property had been taken from the home. Robbery was a new crime with different property taken. It's not [a violation of] 654 for [a separate term to be imposed for both burglary and] the torture, because choking the victim twice to unconsciousness was necessary to complete the robbery. . . . [T]he robbery was over. [¶] The tying and untying and retrying of the victim . . . was not necessary for robbery. . . . [¶] . . . [¶] Separate intent[s] and objective[s] a[re] indicated by the [fact that the] fruits of the burglary are different from the fruits of the robbery, the credit card and PIN . . . . The defendant was at a place of temporary safety when he and [the co-perpetrator] tied the victim up at the door." "[Defendant] inflicted more force [as to torture] than was required for the robbery. She is tied up on the floor after the burg[lary]. This is at the front door before the robbery, after the burglary."
The female victim testified that after she entered her home the night of the crimes, defendant grabbed her from behind and put his hands across her face and held her with her arms pinned against her sides. She screamed and he told her to stop and he put his hand over her mouth with his fingers inside her mouth. She dropped her purse and keys at his direction. When she continued to scream, he told her to be quiet and that he'd have to kill her. Defendant choked her into unconsciousness as he held her up off the ground and she came to on the floor with her face in a puddle of blood and defendant's arm across her neck in a choke hold and his body on top of hers. Defendant angrily told her that he knew she had money and he demanded it. He moved from lying on top of her to sitting on top of her. The female victim said she had her paycheck in her purse, but defendant insisted that she had money and he called her a liar. Defendant choked her into unconsciousness a second time, during which he demanded money. Either before or after this second choking, defendant tied her wrists together behind her back and tied her ankles together. Defendant said he was going to move her truck from the driveway, where she had parked it, into the garage and he directed the co-perpetrator to watch her while he did this. While defendant was gone, the co-perpetrator told the female victim that he and defendant knew her and she should not worry about her dogs, as they were fine. After defendant returned from parking her truck in the garage, a flannel nightgown was put over the female victim's face. One of the two emerged from the guest bedroom with a sack full of the female victim's possessions and went out to the truck. This person returned and the female victim looked over the top of the night gown and saw defendant smiling at the co-perpetrator. The gown was replaced with a pillow case. Defendant picked her up and slung her over his shoulder and put her onto her bed, face down. He told the co-perpetrator to watch her and he left the room and the female victim could hear noises coming from another room. Defendant returned to her bedroom and angrily and repeatedly demanded the PIN for her bank card. With his hand on her neck, he shook her during this time. After she gave him the PIN, he invited the co-perpetrator to have intercourse with her and suggested that he would do the same. The female victim responded as already described and began saying the "Hail Mary." Her bindings were cut and she was tied to her bed with items piled on top of her head, as previously described. When she later freed herself, she noticed that her bedroom had been ransacked and items were missing from other parts of her home. Her cell phone and other items were missing from her purse. Checks were missing. Her truck was gone. Her ATM card had been used to purchase merchandise and to withdraw money from her bank account.
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] [An appellate court] review[s] the trial court's determination . . . and presume[s] the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Based on the female victim's account of the crimes, there is no evidence that when defendant and the co-perpetrator entered the female victim's home hours before she returned to it that they intended to commit any crime that was not among the crimes they actually committed while there. Indeed, the prosecutor argued to the jury that the burglary was committed when defendant and the co-perpetrator entered the female victim's home with the intent to steal or commit robbery. He expressly included the female victim's truck as one of the objects defendant intended to take when he entered the home. He did not assert that the burglary was committed when defendant entered with only the intent to steal the ATM card and the PIN. He also argued, as to the charged robbery, that the items taken during the robbery were all of the items taken that night, including the truck, and not just the ATM card and its PIN. Because, according to the female victim, force was applied from the moment she first encountered defendant, the robbery began then and not at some later point, as the trial court found. We see no basis in the facts as testified to by the female victim for concluding that the robbery ended before defendant took her into the bedroom, or for a segregation of the items taken, including the ATM card and the PIN, as the trial court did. In fact, logic dictates that defendant gained constructive possession of her ATM card when she dropped her purse and keys early on in and obtained the PIN later, after choking her twice.
However, the People point to the testimony of the co-perpetrator's housemate and his friend as a basis for imposing terms for both offenses. As already stated, defendant told the housemate before the crimes that the female victim had a lot of stuff, he intended to rob her and if she did not give him her credit card code, he would bash her head in with a flashlight. Defendant told his friend that he wanted to tie the female victim down and get her ATM card. Based on this, the People assert that defendant entered the female victim's home with the intent to take only her ATM card and the PIN and, once there, saw the other things and decided to take them. First, the housemate's testimony cannot be read as supporting the assertion that defendant entered the house with only the intent of taking the PIN (and, necessarily, the ATM card). Second, it cannot be forgotten that defendant demanded money from the female victim at the very beginning of his encounter with her. It was only much later that he demanded her ATM card. If his intent on entering was to just take her ATM, it certainly took him long enough to mention it to her. Finally, this segregation of the items taken flies in the face of the prosecutor's argument, which we had already noted. Therefore, we are not persuaded that the evidence supports the People's theory that defendant entered the house with the intent to take only her ATM card and the PIN, and taking everything else was a separate offense.
Having found no support in either the trial court's explanation for finding that section 654 did not apply, nor in the People's theory as to why it does not apply, we cannot conclude that substantial evidence supports the trial court's conclusion. Therefore, the sentence for the burglary must be stayed (see People v. Price (1991) 1 Cal.4th 324, 492; People v. Smith (1993) 18 Cal.App.4th 1192, 1197-1199).
Defendant also asserts that section 654 prohibits him from being separately punished for taking/driving the female victim's truck. The trial court concluded that the section did not apply, saying, " . . . [T]hat is [a] different . . . intent and objective. The truck was taken to transport the goods taken in the burglary and robbery. It was used for transportation by [defendant]. He was seen driving the truck after. He had the truck keys copied so he could steal it again." In argument to the jury, the prosecutor stated that this crime occurred when "[h]e took [the female victim's truck] and drove it out of the way. . . . [¶] . . . How do we know he drove away in the vehicle? [The housemate] saw him drive the truck . . . about two hours after the [crimes] . . . . [The male victim] . . . saw defendant driving the . . . truck, but only on one or two occasions." There was evidence that defendant drove the truck in addition to using it just to transport the stolen goods from the female victim's house. Therefore, section 654 did not prohibit the trial court from imposing a separate term for this offense.
c. Restitution Fine
When defendant was sentenced following the first trial, a restitution fine of $10,000 was imposed. The same fine was imposed after the second trial, but the trial court also imposed a $600 court security fee, pursuant to section 1465.8, a $600 fee, pursuant to Government Code section 70373, subdivision (a)(1), and it ordered defendant to pay the female victim restitution of $3,559.60, pursuant to section 1202.4, subdivision (f). Defendant here contends that the fees and restitution imposed for the first time following his second trial constitutes a prohibited greater punishment than that originally imposed following his successful appeal.
The minutes of the sentencing hearing, the original abstract of judgment and the amended abstract of judgment state that restitution of $3,100 was ordered at the time of sentencing. Additional restitution of $459.60 was added following a later hearing. However, the trial court's oral pronouncement at the sentencing hearing set the amount at $2,100.
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Defendant cites People v. Wardell (2008) 162 Cal.App.4th 1484, 1496, holding that upon retrial following a successful appeal, the trial court may not impose a greater restitution fine than was originally imposed. However, defendant was ordered to pay the same restitution fine that was ordered before his successful appeal.
Victim restitution is not increased punishment for a crime (People v. Millard
(2009) 175 Cal.App.4th 7, 35, 36), therefore, its imposition for the first time following the second trial did not increase his punishment. The fee imposed pursuant to Government Code section 70373 applies to all convictions entered after its enactment on January 1, 2009, which would include defendant's convictions following the second trial (People v. Davis (2010) 185 Cal.App.4th 998, 1000). It is not a penalty (People v. Fleury
(2010) 182 Cal.App.4th 1486, 1490, 1491), therefore imposition of it does not increase defendant's punishment. The fee imposed pursuant to section 1465.8 is also not punitive (People v. Alford (2007) 42 Cal.4th 749, 756, 758; People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403). Therefore, it does not increase defendant's punishment.
DISPOSITION
The sentence for count 4, first degree burglary, is stayed pursuant to section 654. The trial court is directed to amend the minutes of the sentencing hearing and the abstract of judgment to reflect this, in addition to deducting one year from defendant's determinate sentence in those documents pursuant to section 1170.1, subdivision (a). The trial court is further directed to amend the abstract of judgment to show that counts 6, 8, 10, 12, 14, 16, 18, 21 and 22 are non-violent felonies, rather than violent felonies as the abstract currently states. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
KING
J.
CODRINGTON
J.