Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB053430, David Cohn, Judge.
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci, Raymond M. DiGuiseppe, and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant of rape of an unconscious victim (Pen. Code, § 261, subd. (a)(4)), unlawful sexual intercourse (§ 261.5, subd. (c)), forcible sexual penetration with a foreign object (§ 289, subd. (a)(1)) and sexual penetration where the victim is under 18 (§ 289, subd. (h)). He was sentenced to prison for 8 years and appeals, claiming evidence was erroneously excluded, the jury was misinstructed and sentencing error occurred. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
The victim, who was 15, fell asleep on her bed while watching television with the defendant, her cousin, on the night of April 12, 2005. She awoke sometime later with the defendant’s penis in her vagina, which he moved in and out from behind her. She unsuccessfully tried to shove him away with her elbow. He grabbed her shoulder and pulled her back towards him, his penis slipped out of her vagina, and he inserted his fingers into it. She turned herself over in bed to face him and pushed him with both hands, then got up and left the room.
Issues and Discussion
1. Exclusion of Evidence
The victim testified at trial, during cross examination, that her mother did not have a rule that she could not be in her home unsupervised with her boyfriend and, on the day of the crimes, before dark, he was in her room with her, and afterward, she saw him and defendant together in the living room. The victim’s mother testified that she cautioned the victim against being alone with any boy because she was too young to be having sex. She denied that she would have been upset if the victim had been alone with a boy, such as her boyfriend, during the day. Defendant testified that he was in the victim’s brothers’ bedroom until 9:15 p.m. on the night of the crimes when he used the restroom and, upon coming out of it, saw the victim’s boyfriend walking out of the victim’s bedroom. He and the boyfriend spoke in the living room, during which time defendant saw the victim come out of her bedroom and walk to the bathroom. Defendant then walked the boyfriend outside, and the latter left. During rebuttal, the victim testified that during the daytime on April 12, while defendant and her female friend were in the living room, she and her boyfriend were alone in her bedroom for 15 minutes, talking. She denied engaging in any sexual activity with her boyfriend during this time. She denied that defendant had threatened to get her in trouble about her boyfriend or had even discussed her boyfriend with her. She said she was allowed to have boys with her in her home alone and there was no rule about her boyfriend being at her home during the daytime.
Defendant testified that he asked the boyfriend why he was there, the latter said he had come to pick up a sweater and defendant told him it was late and he needed to leave.
In argument to the jury, defense counsel said the victim lied about being able to be alone with boys in her home and her mother said that she was not supposed to have her boyfriend there. Counsel reiterated defendant’s testimony that he saw the boyfriend leaving the victim’s bedroom at night. Therefore, he argued, the victim “made up these accusations [against defendant] to protect herself. [¶] . . . [W]hen she saw [defendant] out there talking to her boyfriend that night, she knew that she violated her mom’s rule. . . . [she] made up these lies in order to protect herself. This is [her] motive for lying. [¶] . . . [¶] . . . She got caught doing something that her mom would punish her for. She got caught doing something she wasn’t supposed to be doing, and she panicked and made these accusations up . . . .”
This was not exactly what the mother said.
Before trial had begun, defense counsel had moved in writing to “introduce[e] evidence of the sexual conduct of the [victim] in order to attack [her] credibility . . . .” Attached to the motion was a declaration by defendant that, according to the motion, purported to “describe[] the purpose of the testimony, the name of the witness(es) and the precise content of the testimony to be elicited.” Unfortunately, appellate counsel for defendant chose not to designate this document as part of the record before this court, so we are left with comments made at the hearing on the motion to surmise what it was.
At the hearing on the motion, the victim testified that during the afternoon of April 12, 2005, while defendant and her female friend were in the living room of her home, she and her boyfriend were alone in her bedroom talking. She denied having been sexually active with her boyfriend or having sex with him that day.
The trial court refused to entertain defendant’s unsworn declaration, which had not been subject to cross-examination, as evidence in conflict with the victim’s testimony, so defendant testified at the hearing. He stated that he heard the victim and one of her two friends that were present go into the victim’s bedroom and 15-20 minutes later, saw the victim’s boyfriend come out of the victim’s room, before defendant ran into him at 9:15 p.m. He said that after he was arrested and discovered that the victim’s sexual assault examination revealed that she had had intercourse around the time of the crimes, he assumed (because he had not had sex with her) that she and her boyfriend had had sex in her bedroom, although he did not witness or hear it.
During argument at the hearing, defense counsel asked the court for permission to “question . . . [the victim] in front of the jury about her relationship with [her boyfriend] and . . . be allowed to ask the question . . . whether or not she had sex with her boyfriend . . . .” He explained that since defendant saw the victim and her boyfriend in the former’s room for 15 to 20 minutes, the evidence provided a motive for the victim to fabricate. The prosecutor countered that defendant saw or heard nothing upon which to conclude that the two had sex. He asked the court to “exclude any reference or allusion to [the victim] and [her boyfriend] having sex.”
The trial court denied defendant’s motion, finding that the proof offered at the hearing did not comport with the offer of proof attached to the written motion, i.e., defendant’s declaration. The court found there was no evidence, other than the jury’s rejection of the victim’s assertion that defendant had had sex with her, that her boyfriend was the one who had had sex with her. The court pointed out that the defense also had to show that defendant knew that the victim and her boyfriend had had sex, but defendant’s own testimony was that he did not. Finally, the court noted that the defense had to show that the victim knew that defendant knew she had had sex with her boyfriend, and no such showing had been made. Therefore, the trial court denied the motion.
Although defendant here claims that the trial court erred in denying his motion, the evidence he sought to have admitted, i.e., “to ask . . . whether or not [the victim] had sex with her boyfriend” on the night of the crimes was, indeed, admitted at trial, and, as already stated, the defendant was able to argue his defense completely. We, therefore, fail to see how defendant could possibly have been prejudiced by the trial court’s ruling. Nevertheless, we will respond to each of the points defendant makes in his brief about the ruling.
Defendant completely misconstrues what occurred below by asserting that what he was seeking was to ask the victim “whether she had ever had sexual intercourse prior to the alleged offense, and whether she had ever had sexual intercourse with her boyfriend.” If, by this, defendant means intercourse other than on April 12, 2005, whether the victim had it with anyone, including her boyfriend, was completely irrelevant to the defense that was asserted below, i.e., that defendant saw the victim’s boyfriend coming out of her bedroom, therefore, he “had” something on the victim and she falsely accused him of raping her to save herself from punishment for breaking her mother’s rule.
It should be noted that defense counsel, logically, did not question the victim during the hearing about her sexual history with anyone other than her boyfriend.
Defendant also misconstrues the record by asserting that the evidence was sought for the additional purpose of “permit[ting] the jury an opportunity to determine [the victim’s] credibility.” First, there was only one theory advanced below for the defense seeking the admission of this evidence and it has already been discussed. Moreover, evidence of the victim’s sexual past would have been completely irrelevant to her credibility apart from this theory.
Finally, defendant sets up a straw argument only to tear it down. He asserts, “if [the victim] asserted that she was a virgin at trial, then [defendant] could proffer an argument to the jury that her testimony was not credible because it is extremely unlikely that a virgin would sleep through sexual penetration, as was alleged herein.” However, neither the victim nor any other witness at trial claimed that she was a virgin. Therefore, there was no need to introduce evidence of her sexual history to rebut such a claim.
Defendant, in his reply brief, asserts that the trial court also erred in refusing to allow defense counsel to ask the victim whether she was a virgin. Counsel below asserted that it was relevant “in terms of . . . whether or not any physical evidence would have been gathered if she had been a virgin. There may [have been] . . . blood, bleeding, things like that . . . . [¶] . . . [¶] [But t]here’s no blood [on the bed clothes or the victim’s clothes]. There’s nothing to indicate those signs that one would think would be there if the [victim] had never had sex before.” Later, he added, “ . . . I would argue [that it] is unreasonable to believe that the defendant . . . is able to fully insert his penis without her waking up whatsoever if she’s never had sex before.” The prosecutor correctly countered that it was speculative that there would be blood evidence if the victim had been a virgin when she had intercourse on the night of the crimes. Indeed, the defense proffered no expert evidence to this effect, nor was there any that if the victim had been a virgin, the defendant would not have been able to get as far along in the process of intercourse as he did without awakening her (which would also depend on how sound a sleeper she is). Moreover, the trial court also correctly noted that defendant had failed to comply with the procedural requirements of Evidence Code section 782 in attempting to introduce this evidence.
Finally, the trial court did not, as defendant asserts, abuse its discretion in denying the motion. Defendant’s guess that the victim and her boyfriend were having sex while in her bedroom was insufficient to permit the trial court to admit it after having weighed the competing interests of defendant and the victim, in light of the purpose behind the general rule against the admissibility of such evidence. (People v. Chandler (1997) 56 Cal.App.4th 703, 710.) The truth of the matter is that if, in fact, as defense counsel argued to the jury, the victim was not allowed to be alone with boys/her boyfriend in her home, the fact that she was alone in her room with her boyfriend, regardless of what they were doing in there, should have triggered her mother’s punishment and her consequent motive for fabricating that defendant raped her.
Defendant’s assertion that he was prevented by the trial court’s ruling from pursuing a defense that the two non-serious abrasions and the superficial tear the victim suffered to her genitalia could have been attributed to sex with her boyfriend and not an assault by defendant is belied by the record. That is precisely what defense counsel implied in his argument to the jury.
Although in the heading of this section of defendant’s opening brief, he states that he is also attacking the constitutionality of CALCRIM No. 223, he fails to mention that instruction in any of his analysis.
The jury was given Judicial Council of California Jury Instructions, CALCRIM No. 302, which provides, “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” (Italics added.)
Defendant, for the first time on appeal, claims that this instruction is unconstitutional because it dilutes the prosecution’s burden of proof. Specifically, he asserts that the above-italicized language “creates a presumption that all witnesses are deemed to be truthful, ‘unless’ a juror has a reason to conclude otherwise.” First, defendant misconstrues the instruction. It merely advises the jurors not to disregard any witness’s testimony for either no reason, i.e., irrationally, or for an improper reason, such as prejudice or a desire to favor a particular side. It does not implicitly suggest that all witnesses are truthful. Even if it did, it cannot be forgotten that defendant testified at trial, so he would have benefitted from such a skewed and unlikely interpretation of the instruction.
Defendant also asserts that the instruction tells the jurors not to favor one side over the other and thus conflicts with the presumption of innocence. Again, defendant misconstrues the instruction. It merely tells a juror not to reject the testimony of any one or multiple witnesses merely because of a desire to favor one side. In other words, a juror may not be unfair or allow bias or prejudice to affect his/her assessment of the credibility of a witness. This is a matter which is repeated in other instructions given with which defendant does not here take issue, i.e., CALCRIM No.s 101 and 200 [“Do not let bias [or] . . . prejudice . . . influence your decision.”], CALCRIM No.s 103 and 220 [“you must impartially compare and consider all the evidence”, italics added], CALCRIM No.s 105 and 226 [“The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have . . . ”] and CALCRIM No. 3550 [“Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.”]
Defendant also asserts that the instruction “focuses only on the evidence actually presented” and thus, “improperly frames the issues in terms of which side presented the most compelling evidence” whereas “[r]easonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two.” However, CALCRIM No. 302 addresses conflicts in the evidence. Therefore, naturally, it concerns only evidence and not lack of evidence. On the other hand, CALCRIM No. 220 states that the defendant is presumed innocent, the People must prove each element of each offense beyond a reasonable doubt and “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant contends that the instruction “implies that the disbelief of defense witnesses necessarily means the prosecution’s witnesses are believable” and “instructs the jury to choose between the [People’s] witnesses and the defense witnesses.” Again, defendant reads far too much into the instruction.
Defendant also takes issue with the closing sentence of the instruction, i.e., “What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” Defendant interprets this sentence to mean “the simple number of witnesses is one factor (although not necessarily the determinative factor) in deciding which of two conflicting versions of the facts to credit.” Again, defendant completely misinterprets this rather simple and straightforward sentence, which states that if there is a conflict in the evidence, a juror should focus on whether all the testimony and other evidence convinces him or her, and not just the number of witnesses who testify about a particular matter. This is the opposite of an implication that the number of witnesses is a factor jurors may consider in deciding which of two conflicting versions to believe.
We also note that several of defendant’s criticisms of CALCRIM No. 302 have been rejected in People v. Ibarra (2007) 156 Cal.App.4th 1174 and People v. Anderson (2007) 152 Cal.App.4th 919, but since defendant has asked us to ignore these decisions, we have dealt with all of his criticisms without resort to them.
3. Sentence
The trial court imposed the upper term on count 3 (forcible sexual penetration with a foreign object) citing the vulnerability of the victim and the facts that defendant took advantage of a position of trust to commit the crime, served a prior California Youth Authority (CYA) term, was on probation at the time of the offense and his prior performance on probation was unsatisfactory. Defendant contends the trial court committed Cunningham error by imposing the upper term based on factors not found true by a jury or admitted by him. However, three of the factors, i.e., the facts that defendant served a prior term in CYA, was on probation when he committed this offense and his performance on probation was unsatisfactory are factors bearing on his recidivism, for which jury findings are not necessary. (People v. Black (2007) 41 Cal.4th 799, 818-820; People v. Towne (2008) 44 Cal.4th 63, 82, 83.)
Although the trial court said “parole” as to the last two factors, it appears that it merely misspoke itself, as there is no information in the Probation Report about defendant being on parole, but there is that he was on probation, both as a juvenile and as an adult. This is certainly the interpretation the People give the trial court’s remarks.
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 858].
If his prior performance while on probation was unsatisfactory due to his conviction of a new offense, it is also within the recidivist exception to Cunningham. (People v. Towne (2008) 44 Cal.4th 63, 82, 83.) Therefore, if the trial court relied on the commission of the current offenses to conclude that defendant’s performance on probation was unsatisfactory, then that factor need not be found by a jury or admitted by him.
Defendant states, “In People v. Black . . . , this [sic] court ruled that prior convictions are an exception to the Cunningham requirement of proof to a jury or admission by a defendant of any fact relied on to impose [the] upper term. [Citation.] However, appellant contends that there is no exception for prior convictions, as use of a prior conviction violates Cunningham.” If, by this, defendant is suggesting that Black was incorrectly decided, we are bound by it. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 460.)
Defendant asserts that even if the fact of a prior conviction may be relied upon without a jury finding or an admission by him, the trial court relied on the fact that his prior convictions were numerous, which is a matter outside the recidivist exception to Cunningham. However, defendant misreads the record in this regard. After listing the aggravating factors upon which it relied (as stated above) the trial court addressed defendant’s contention that a mitigating factor was the insignificance of his criminal record. The court said, “I wouldn’t call it insignificant, especially in light of his age. I think the fact that he has a criminal record is significant here. Although there are certainly longer criminal records than this, I don’t find that to be a factor in mitigation. In any event, I think that the fact that it’s an aggravation would outweigh the factor in mitigation.”
The foregoing was not, contrary to defendant’s assertion, a finding by the trial court that defendant’s prior convictions were numerous. Defendant, himself, concedes, “it was unclear whether the court referred to that record as a factor in aggravation . . . . Thus, we cannot assume that the court relied upon [defendant’s] juvenile record as the basis for the imposition of the upper-term . . . .” It would be speculative to interpret the trial court’s remarks to be anything beyond a rejection of the argument that the insignificance of his record constituted a factor in mitigation. Certainly, the court never made reference to the number of crimes for which true findings in juvenile court had been made.
Disposition
The judgment is affirmed.
We concur: McKINSTER J., MILLER J.