Opinion
B161013.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. JUAN FRANCISCO SOTOMAYOR, Defendant and Appellant.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.
Juan Francisco Sotomayor appeals from the judgment entered after a jury convicted him of attempted murder, rape, forcible oral copulation and aggravated mayhem. Sotomayor contends (1) his sentence for attempted murder should have been stayed pursuant to Penal Code section 654 ; (2) the trial court committed prejudicial misconduct in its questioning of a witness; and (3) the exclusion of a defense expert witnesss testimony on voluntary intoxication constituted prejudicial error. We affirm.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Sotomayor was charged with four counts: (1) attempted murder (& sect;§ 187, subd. (a), 664); (2) rape (§ 261, subd. (a)(2)); (3) forcible oral copulation (§ 288a, subd. (c)(2)); and (4) aggravated mayhem (§ 205). The information also alleged, as to the rape and oral copulation counts, that Sotomayor inflicted great bodily injury on the victim in the commission of the offenses (§ 12022.8). In addition, as to the rape and oral copulation counts, the information alleged Californias "one strike" law, section 667.61, applied because: (1) Sotomayor committed the rape and oral copulation offenses during the commission of a residential burglary with the intent to commit rape and oral copulation and, in doing so, inflicted aggravated mayhem on the victim in violation of section 205 (§ 667.61, subds. (a) & (d)); and (2) Sotomayor personally inflicted great bodily injury on the victim in committing the rape and oral copulation offenses in violation of section 12022.8 and did so while committing a residential burglary (§ 667.61, subds. (a) & (e)).
Section 667.61 is referred to as Californias "one-strike" law "because it imposes life imprisonment as the punishment for certain sex offenses committed under specified conditions even if the offender has no prior convictions." (People v. Estrada (1997) 57 Cal.App.4th 1270, 1274 & fn. 3.) Subdivision (a) provides that a person convicted of rape or oral copulation shall be sentenced to a term of 25 years to life when one or more of the circumstances specified in subdivision (d) is present or two or more of the circumstances specified in subdivision (e) are present. (§ 667.61, subd. (a).) The circumstances in subdivision (d) include both commission of a rape or oral copulation during the commission of a burglary with the intent to commit rape or oral copulation and the infliction of aggravated mayhem on the victim. (§ 667.61, subd. (d)(3) & (4).) The circumstances in subdivision (e) include both the commission of a rape or oral copulation during the commission of a burglary and the infliction of great bodily injury on the victim in violation of section 12022.8 in the commission of the rape or oral copulation offenses. (§ 667.61, subd. (e)(2) & (3).)
2. Summary of the Peoples Evidence
On the night of September 16, 2000, Monique K. fell asleep about 11:00 p.m. in her bedroom at her house on Parmer Avenue in Echo Park. She was next aware that she was in her bathroom being repeatedly punched in the face by a man, whom she identified at trial as Sotomayor. Sotomayor removed Monique K.s clothing, continued to hit her in the face as she screamed and repeatedly threatened to kill her. After closing and locking the bathroom door, Sotomayor had intercourse with Monique K. while choking her or hitting the back of her head. He then threw Monique K. to her knees and forced her to orally copulate him. Next, Sotomayor pushed Monique K. against the bathroom door and had intercourse with her again. Monique K. saw blood and several of her teeth on the bathroom floor.
Noticing that Sotomayor was losing his erection, Monique K. told him she would find something to help him. When Sotomayor let go of his grasp on Monique K., she opened the bathroom door and ran out the back door of her house to the front gate and across the driveway into the street. Sotomayor chased her and tackled her in the street, where he hit her again and dragged her on the asphalt. Both Monique K. and Sotomayor were naked. At some point Sotomayor left. Seeing her body covered in blood and feeling as though she were losing consciousness, Monique K. ran to the stairs of a neighbors house and collapsed. Another neighbor who had heard a woman screaming came out of his house onto the porch and saw a stocky Latino man with short hair — a description that matched Sotomayor — running down the street. Monique K. testified at trial she was 100 percent certain Sotomayor was her assailant.
During the same night Rosa Bonilla, who also lived on Parmer Avenue, encountered a naked man, whom she recognized as her neighbor, trying to open a window at her house and screaming and cursing at her to open the door for him. Bonilla called her sister, another Parmer Avenue resident, and said one of her neighbors was trying to break into her house. The sister went down the street to Bonillas house and saw Sotomayor, whom she considered her friend, outside the house. Sotomayor walked by the sister and entered his own house, which was next door to Bonillas. Bonillas sister said she saw two other men — who were dressed in pants, jackets and baseball caps — running down the street.
During the early the morning of September 17, Los Angeles Police Department Officer Salvador Lizarraga responded to a radio call regarding the attack on Monique K. He observed a trail of blood between the neighbors house where Monique K. was found and her own home and blood splatters on cars that were parked on the street along the way. At Monique K.s home Officer Lizarraga found a pair of mens brief-style underwear on the floor of her bedroom and a pile of clothing, teeth and blood on the bathroom floor. He discovered a dark-colored pair of corduroy shorts and a black belt at the back door of Monique K.s home.
While at Monique K.s residence, Officer Lizarraga learned of another radio call regarding a burglary suspect on the same street at the home of Rosa Bonilla. That call led Officer Lizarraga and additional officers to Sotomayors residence. Sotomayor opened the door naked (or with a towel wrapped around his waist) and had blood on his hands, forearms, lower legs and feet. When the officers questioned whether Sotomayor had tried to break into his neighbors home, he said he had been sleeping all night until awakened by them. A damp towel, appearing to have blood on it, was found in Sotomayors bathroom. The officers asked Sotomayor for his identification, but he could not find it. When Sotomayor explained his wallet was in the back pocket of his shorts, Officer Lizarraga believed the description Sotomayor gave of his shorts matched that of the shorts found at Monique K.s house. Officer Lizarraga returned to Monique K.s house and found a wallet in the back pocket of the corduroy shorts containing Sotomayors photo identification, which listed Sotomayors address as the home where the officers had found him.
After he was arrested, Sotomayor was examined by a nurse practitioner, who observed cuts and swelling on his knuckles, which were consistent with wounds that would be inflicted by hitting someone who had braces — as did Monique K. He had black material on the soles of his feet, consistent with running on asphalt, and blood on his penis. One officer testified Sotomayor "smelled a little of an alcoholic beverage"; and the nurse practitioner said Sotomayor had bloodshot eyes. But all prosecution witnesses who were asked agreed Sotomayor appeared coherent and alert. Monique K. testified Sotomayor did not appear drunk during the attack.
Monique K.s treatment revealed she had a broken upper and lower jaw, loose and missing teeth, a broken nose and multiple cuts and abrasions. Monique K. underwent several surgeries and, as of the time of trial, was still under treatment for her teeth.
DNA testing revea1ed a possibility that the blood on Sotomayors penis was a mixture of his and Monique K.s blood. The blood on Sotomayors leg matched that of Monique K.s (only 1.8 trillion Caucasion persons would have the same profile). Samples taken from the underwear found by Monique K.s bed were consistent with Sotomayor. A criminalist testified the fact that Monique K.s saliva or vaginal epitheal cells could not definitively be detected from the swab of Sotomayors penis did not indicate there was no forced oral copulation or vaginal penetration because such cells could have been present in a small amount or removed by cleaning or clothing; and saliva from an oral copulation also could have been removed by a subsequent rape.
3. Summary of the Defenses Evidence
Sotomayor testified in his own defense. He said he had been an amateur boxer and tended to get into fights. He admitted entering Monique K.s home and hitting her twice. However, he denied that he sexually assaulted Monique K. in any way, or was in her bathroom. He testified he ran into her home to hide from two men who were chasing him and hit her when she began screaming because he wanted to quiet her so the men would not hear her and find him. Sotomayor said the two men heard Monique K. screaming, came into her house, chased him outside and knocked him down. When they backed off, he ran to his mothers house. He could not explain why his clothes were at Monique K.s house. He attempted to discredit Monique K.s identification of him because, although he had several tattoos, he did not have a Superman tattoo as she had described to the officers.
According to Sotomayor, he had drunk more than 10 beers and some hard liquor and had smoked marijuana laced with cocaine during the afternoon and evening of September 16. Sotomayors wife testified she had spoken by telephone to him on the night of September 16 and in the early morning of September 17 and he appeared to be drunk. A clerk at the market where Sotomayor had gone to buy liquor that night said he drove Sotomayor to an intersection near his home and he smelled of alcohol and was disoriented. A psychiatrist testified that drugs and alcohol could prevent a person from forming the requisite specific intent to commit a crime.
The defense DNA expert testified a more definitive DNA profile of Monique K. on the penile shaft swab taken of Sotomayor would be expected if she had been forced to orally copulate him and he had penetrated her vagina.
4. The Jurys Verdict and Sentencing
The jury found Sotomayor guilty of attempted murder, rape, forcible oral copulation and aggravated mayhem. As to the rape and oral copulation counts, the jury found "true" the allegation that Sotomayor inflicted great bodily injury on Monique K. It also found "true" as to the rape and oral copulation counts the allegations pursuant to section 667.61 that Sotomayor (1) personally inflicted great bodily injury on the victim in the commission of the rape and oral copulation offenses; (2) committed the rape and oral copulation offenses during the commission of a residential burglary; (3) committed the rape and oral copulation offenses during the commission of a residential burglary with the intent to commit rape and oral copulation; and (4) inflicted aggravated mayhem on the victim in the commission of the rape and oral copulation offenses.
The trial court sentenced Sotomayor to consecutive sentences of (1) the upper term of nine years on the attempted murder count; (2) 25 years to life, plus a five-year enhancement for the infliction of great bodily injury, on the rape count; (3) the upper term of eight years, plus a five-year enhancement for the infliction of great bodily injury, on the forcible oral copulation count; and (4) life on the aggravated mayhem count.
Sotomayor filed a timely notice of appeal.
CONTENTIONS
Sotomayor contends: (1) his sentence for attempted murder should have been stayed pursuant to section 654 ; (2) the trial court committed prejudicial misconduct by discrediting his primary defense in questioning a witness; and (3) the trial court committed prejudicial error by excluding expert testimony regarding voluntary intoxication.
In his opening brief Sotomayor argued his sentence for aggravated mayhem — not the attempted murder sentence — should have been stayed. The People responded that, if any sentence were stayed, it should be the one for attempted murder because, pursuant to section 654, the "longest potential term of imprisonment" is imposed and, therefore, Sotomayor should receive the life term for aggravated mayhem. (§ 654, subd. (a).) Sotomayor concedes this point in his reply brief by arguing his sentence for attempted murder should have been stayed.
DISCUSSION
1. The Trial Court Did Not Err By Punishing Sotomayor for Both Attempted Murder and Aggravated Mayhem
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the `intent and objective of the actor. [Citation.] (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) "`"`[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]" [Citation.] [Citations.] However, if the defendant harbored `multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were part of an otherwise indivisible course of conduct. [Citation.] [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "`The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. [Citation.] `A defendants criminal objective is "determined from all the circumstances . . . ."" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"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.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones, supra, 103 Cal.App.4th at p. 1143; see also People v. Cleveland, supra, 87 Cal.App.4th at p. 271 [trial courts finding of "`separate intents" reviewed for sufficient evidence in light most favorable to the judgment].)
Substantial evidence supports the trial courts determination that Sotomayor possessed separate intents in committing two separate crimes — attempted murder and aggravated mayhem of Monique K. — allowing him to be punished for both offenses. Both attempted murder and aggravated mayhem are specific intent crimes, as the jury here was instructed, attempted murder requiring the specific intent to kill the victim (§ 187, subd. (a)) and aggravated mayhem requiring the specific intent to permanently disable or disfigure the victim or deprive the victim of a limb, organ or member of his or her own body (& sect;205). The two specific intents are separate and distinct, as the specific intent for aggravated mayhem does not require an intent to kill. In convicting Sotomayor of both attempted murder and aggravated mayhem, therefore, the jury necessarily found he possessed both specific intents. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833-834 [defendant may be convicted of both aggravated mayhem and attempted murder because "defendant may intend both to kill his or her victim and to disable or disfigure that individual if the attempt to kill is unsuccessful"].)
The cases on which Sotomayor relies to argue a sentence for mayhem must be stayed when the defendant also is sentenced for attempted murder are inapposite because they involved simple mayhem, a general intent crime (People v. Sekona (1994) 27 Cal.App.4th 443, 448), not aggravated mayhem, a specific intent crime (People v. Ferrell, supra, 218 Cal.App.3d at p. 833).
In addition, the evidence showed Sotomayor, an admitted boxer, repeatedly punched Monique K. in the face causing her teeth to fall out and bones in her face to break. He then chased and tackled Monique K. once they were outside, knowing she was bleeding, and dragged her on the asphalt while continuing to beat her. These acts evidence dual objectives, even though they were part of the overall attack on Monique K. In other words, the aggravated mayhem was not merely incidental to a primary objective to kill Monique K. Based on the evidence, therefore, the trial court could properly conclude Sotomayor possessed multiple criminal objectives, both to disfigure Monique K. and to kill her, and punish him for attempted murder and aggravated mayhem. (In re Jose P., supra, 106 Cal.App.4th at p. 469 [when evidence shows defendant entertained multiple and independent criminal objectives, "trial court may impose punishments for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct"].)
Although not cited by Sotomayor, we find People v. Diaz (2002) 95 Cal.App.4th 695 distinguishable. There, the defendant was convicted of, and received concurrent sentences for, attempted murder, aggravated mayhem, assault by means likely to produce great bodily injury and assault with a semiautomatic weapon. Based on the defendants argument on appeal and the Attorney Generals concession, the Court of Appeal ordered the sentences imposed for all convictions other than attempted murder stayed pursuant to section 654 because all charges were "based on the same single act of shooting a single victim." (Id. at p. 708.) Here, in contrast, Sotomayors acts evidenced dual objectives because they were part of a prolonged attack of Monique K. that traveled from her bathroom to the street, involved both physical beating and sex offenses and extensive violent conduct after it was clear to Sotomayor that Monique K. had been injured. (People v. Cleveland, supra, 87 Cal.App.4th at p. 272 ["`[S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense"].)
2. The Trial Court Did Not Commit Prejudicial Misconduct in the Questioning of a Witness
Sotomayor contends the trial court committed prejudicial misconduct in asking four questions to Harry Klann, a criminologist who testified for the People. According to Sotomayor, the trial courts questions brought before the jury the possibility that he had cleaned himself before a penile shaft swab was taken and discredited his defense that, although he attacked Monique K., he did not sexually assault her.
At the conclusion of Klanns testimony, the trial court asked four questions:
"THE COURT: . . . Now, if someone leaves saliva behind, lets say, after a forced act of oral copulation, to the naked eye you dont really see anything, do you?
"THE WITNESS: No, you dont.
"THE COURT: If someone leaves blood behind, to the naked eye, one would examine ones penis, you would expect to find something that you could see with a naked eye?
"THE WITNESS: I would say so, yes.
"THE COURT: "So if you knew that there was something there left behind because you could see it, do you think it would be more likely that you would — the person with the penis with whatever is left behind, would do something to remove that substance knowing that it was there, or can you —
"THE WITNESS: I would say — well, I can answer that based on personal experience. If I go too far, just tell me. I have had occasions where Ive been called to a police station to look at the body of a suspect in custody, and in the course of examining them from head to toe — and I dont like, you know, like a doctor, I just sort of look them over and ask them to put their hands out and look for blood under their nails and things like that. Sometimes these people, despite what Ive been told that there was a remarkably bloody crime scene that they were taken from, are very clean, to the point where sometimes you dont see any blood at all. And then you find out that they had the opportunity to go to the bathroom at the police station or even prior to the police arriving and theyve cleaned themselves. Its possible that maybe the person who had this blood on themselves found it to be irritating or whatever, just wiped themselves off, or you know —
"THE COURT: So any variety of responses one might have in that situation I take it?
"THE WITNESS: Yes."
"`It is settled that a judges examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred. [Citation.]" (People v. Raviart (2001) 93 Cal.App.4th 258, 269 (Raviart); see also People v. Sanders (1995) 11 Cal.4th 475, 531.) Because Sotomayor did not object when the trial court questioned Klann, he has waived any claim of error. Contrary to Sotomayors contention, the alleged improper questioning does not indicate an objection would have been futile or an admonition to the jury would have failed to cure any misconduct. (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567; Sanders, at p. 531 ["`[d]efendants failure to object at trial . . . particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal. [Citation.] `The purpose of the rule requiring timely objection is to give the trial court the opportunity to cure any error, if possible, by an admonition to the jury. [Citation.]"].)
In any event, Sotomayors argument lacks merit. "`[I]t is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible. [Citation.] `"[I]t has been repeatedly held that if a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair trial is indicated both to the accused and to the People." [Citations.]" (Raviart , supra, 93 Cal.App.4th at p. 270.)
In this regard, "`[a] court may control the mode of questioning of a witness and comment on the evidence and credibility of witnesses as necessary for the proper determination of the case. [Citations.] Within reasonable limits, the court has a duty to see that justice is done and to bring out facts relevant to the jurys determination. [Citation.] A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citation.]" (Raviart , supra, 93 Cal.App.4th at p. 269.) Thus, when the defendant contends the trial courts questioning constituted misconduct, "[t]he question is whether the trial court, by involving itself in the examination of these witnesses, `took on the role of prosecutor rather than that of an impartial judge, `creat[ing] the unmistakable impression it had allied itself with the prosecution in the effort to convict defendant." (Id . at p. 270; see also People v. Sanders, supra, 11 Cal.4th at pp. 531-532 [reviewing court "`evaluate[s] the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the courts remarks deprived the accused of his right to trial by jury"].)
The trial courts questions to Klann were "seeking to clarify the testimony" and "fully develop the pertinent facts." (Raviart , supra, 93 Cal.App.4th at p. 270.) Contrary to Sotomayors contention, the trial court did not introduce to the jury the possibility that he had cleaned himself before he was examined. Indeed, the issue of cleaning was first presented by defense counsel when he questioned the Peoples DNA expert on cross-examination. Other witnesses also testified it was possible Sotomayor had cleaned himself or blood had dried and flaked or rubbed off before the penile shaft swab was taken. One officer testified Sotomayor had a towel around his waist when apprehended; and a damp towel with blood on it was found in Sotomayors bathroom. Thus, the court in its questions was merely clarifying evidence based on the extensive and sometimes confusing testimony on DNA testing. That the testimony elicited was largely favorable to the prosecution does not imply the court was aligned with the prosecution. The questions did not evidence an intent to discredit the defense or demonstrate to the jury the court had allied itself with the People.
As in Raviart, "[t]he courts questions were neither repetitious, disparaging, nor prejudicial. The court also did not belabor points of evidence that clearly were adverse to defendant." (Raviart, supra, 93 Cal.App.4th at p. 271.) This case is in no respect like People v. Perkins, supra, 109 Cal.App.4th 1562, on which Sotomayor relies, where "the trial judge was intemperate in his examination of [defendant] during the presentation of his defense and . . . in four specific instances, the judge prejudicially interfered with such defense and conducted himself as though he sided with the People." (Id. at p. 1567 [misconduct required reversal for a new trial when trial courts extensive questioning of defendant was intended to elicit an admission from the defendant and reject his alibi defense].)
Moreover, the courts questions to Klann were hypothetical; and the jurors were instructed "it is for you to decide from all the evidence whether or not the facts assumed in a hypothetical question have been proved." The court also instructed, "In permitting [a hypothetical] question, the court does not rule, and [d]oes not necessarily find the assumed facts have been proved." Finally, the court instructed, "I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witnesses. If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion." It is presumed the jurors followed these instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 919.)
3. The Trial Court Did Not Commit Prejudicial Error By Excluding Expert Testimony Regarding Voluntary Intoxication
Evidence of the defendants voluntary intoxication may not be admitted to negate the capacity to form the particular intent required for the commission of the crime charged but "is admissible solely on the issue of whether or not the defendant actually formed a required specific intent." (§ 22, subds. (a) & (b); see also §§ 21, subd. (b); 25, subd. (a); 28, subd. (a).) An expert testifying about the defendants voluntary intoxication "shall not testify as to whether the defendant had or did not have the required mental states, which include[s] . . . intent . . ., for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact." (§ 29; see People v. Nunn (1996) 50 Cal.App.4th 1365 [applying § 29 to testimony on voluntary intoxication and holding expert could not conclude defendant charged with attempted murder acted impulsively, in other words, without intent to kill]; People v. Rangel (1992) 11 Cal.App.4th 291, 302 [§ 29 includes effects of voluntary intoxication on the mental processes].)
At trial Dr. Ronald Markman, a psychiatrist, testified for the defense that intoxication by drugs and alcohol can prevent a person from having the ability to form a requisite specific intent. The trial court instructed the jury that attempted murder and aggravated mayhem were specific intent crimes and that "[i]f the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether the defendant had the required specific intent." On appeal Sotomayor argues the trial court prejudicially restricted the scope of Dr. Markmans testimony. We disagree.
To the extent Sotomayor is arguing Dr. Markman should have been permitted to testify whether, based on his alleged ingestion of drugs and alcohol before the attack on Monique K., he had the ability to form the requisite specific intents for attempted murder, aggravated mayhem and the commission of a residential burglary with the intent to commit rape or oral copulation or actually formed those specific intents, he is incorrect. Such testimony is prohibited by statute. (§§ 22, subd. (a) [testimony on defendants capacity to form requisite specific intent inadmissible]; 29 [expert witness cannot testify as to whether defendant actually formed requisite specific intent].)
Sotomayors contention that Dr. Markman should have been permitted to testify regarding his propensity to abuse drugs and alcohol also lacks merit. Dr. Markmans statement in his report about Sotomayors substance abuse problem was based solely on Sotomayors own statements. Sotomayor himself testified at trial regarding his drug and alcohol use; and both his wife and his acquaintance from the market where he routinely bought alcohol testified Sotomayor appeared drunk on the night of attack on Monique K. Thus, such testimony would have been both hearsay and duplicative.
In any event, there is no possibility the trial courts evidentiary ruling excluding Dr. Markmans testimony on Sotomayors propensity to use drugs and alcohol was prejudicial, whether harmless error is judged under the state standard for erroneous evidentiary rulings, which we believe applicable here (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Watson (1956) 46 Cal.2d 818, 836), or the elevated standard that would be required if the ruling had completely prevented Sotomayor from establishing a defense (Crane v. Kentucky (1986) 476 U.S. 683, 691; Chapman v. California (1967) 386 U.S. 18, 24). Sotomayor himself testified he had smoked marijuana laced with cocaine, had consumed multiple bottles of beer and hard liquor before the attack on Monique K. and was a regular marijuana user. Any testimony from Dr. Markman that Sotomayor had the propensity to use drugs and alcohol would not have made a difference in the jurys verdict. Given Monique K.s testimony that Sotomayor did not appear drunk during the attack and the testimony of the officers and the nurse practitioner who examined Sotomayor that he was coherent and alert, any additional testimony regarding Sotomayors propensity to use drugs and alcohol would not have led the jury to conclude the requisite specific intents were lacking. This is especially true given the brutality of the attack on Monique K., Sotomayors repeated threats to Monique K. that he was going to kill her and his ability to chase Monique K. outside into the street and continue his violent attack against her once he knew she had been injured.
4. The Abstract of Judgment Should Be Corrected to Reflect the Trial Courts Oral Pronouncement of Sotomayors Sentence
The trial court imposed a five-year enhancement on Sotomayors sentence on the rape count pursuant to section 12022.8. As the People note, the abstract of judgment does not reflect the imposition of this enhancement. Accordingly, the abstract of judgment is ordered corrected to reflect the imposition of the section 12022.8 enhancement on the rape count.
DISPOSITION
The abstract of judgment is ordered corrected to reflect the five-year enhancement imposed pursuant to section 12022.8 on the rape count, and the clerk of the superior court shall prepare and forward to the Department of Corrections a corrected abstract of judgment. The judgment is affirmed.
We concur: JOHNSON, J. and ZELON, J.