Opinion
A148945
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. MARTIN VAN EYCKE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 13017048)
Defendant Martin Van Eycke appeals a judgment sentencing him to prison for seven years to life plus a determinate term of eleven years eight months based on his conviction for having drugged a woman and her boyfriend and then raped the woman. On appeal, he challenges numerous evidentiary rulings, contends the court failed to conduct a sufficient hearing pursuant to his postconviction Marsden motion, and claims that the court erred in not staying the determinate terms imposed on certain counts under Penal Code section 654.
People v. Marsden (1970) 2 Cal.3d 118.
All statutory references are to the Penal Code unless otherwise noted.
We find no prejudicial error with respect to most of his contentions but agree with defendant and the People that the eight-year sentence imposed on count three must be stayed. We also conclude that the trial court's failure to create an adequate record precludes our review of its ruling that the victim's confidential medical records contained no discoverable information. Accordingly, we shall conditionally reverse the judgment and remand to the trial court so that an appropriate record can be constructed for review by this court.
Factual and Procedural Background
Defendant was charged by an amended information with rape by use of drugs (§ 261, subd. (a)(3)), rape of an unconscious person (§ 261, subd. (a)(4)(A)), rape by force or violence or threat of bodily injury (§ 261, subd. (a)(2)), burglary and assault with intent to commit rape (§ 220, subd. (b)), and two counts of administering a controlled substance to aid the commission of rape (§ 222). The information also alleged as an enhancement to the burglary count that defendant was eligible for a life sentence under section 667.61, subdivision (d)(4).
At trial, the prosecutor argued that defendant met the victim and her boyfriend Josh at a neighborhood bar, convinced Josh to invite him to their home, and after rendering both Josh and the victim unconscious by lacing their drinks with diazepam, he raped the victim. Defendant did not dispute the evidence that he met the two at the bar and eventually ended up at their home around 4:00 a.m. He argued that the prosecution could not prove beyond a reasonable doubt that he had drugged either person or that he had raped the victim. Defense counsel suggested that it was just as likely that the victim and Josh had willingly taken the diazepam and that the victim's memory of the rape was a "false memory" caused by her intoxication. The following evidence was presented at trial:
On September 20, 2012, at approximately 10:00 p.m., the victim and her boyfriend Josh went to a bar near their home. The victim met defendant when she sat next to him at the bar. Over the course of the evening they conversed and at one point went outside the bar to smoke cigarettes. The victim introduced defendant to her boyfriend because they shared a mutual interest in music.
The victim testified that she had four or five beers in pint glasses at the bar. She left her beer unattended on numerous occasions. She did not see defendant put anything in her drink or notice that her beer looked or tasted odd. Josh had three beers and a martini. He also left his drinks unattended and did not see defendant put anything in his drinks or notice that his beer looked or tasted odd. When the bar closed at 2:00 a.m., the victim wanted to go home but Josh insisted that they go to defendant's home so he and defendant could play music. By this time, the victim had begun feeling "weird," "dizzy or unusual for how much [she] had to drink." She "was feeling differently than in the past, when [she] had the same amount to drink." She also thought her boyfriend seemed "really weird and off and it was scary." Despite her reluctance, the victim and Josh went to defendant's home.
When they arrived, the lights at defendant's house were off, and defendant told them to be quiet because his roommates were asleep. According to Josh, it "quickly became apparent that [they] weren't going to play music." The victim testified that by this time, Josh was "not himself." He "wasn't really making a lot of sense" and he "seemed, like, really messed up." Defendant had many bottles of pills in his bedroom and offered some to the victim and Josh. Some of the pills were large and white, could be cut in half, and had a "5" on them. Some were green. Defendant said they would make them feel good. Both declined his offer.
After about 30 minutes at defendant's home, defendant suggested going to the home of the victim and Josh to play music and the three of them went to the other house.
Once home, the victim went to bed almost immediately. Josh and defendant played guitar and drank two beers. Again, Josh left his beer unattended and did not notice defendant put anything into it. Not long after arriving back at their house, Josh started feeling really tired and could barely speak. Josh felt "very drunk but with another element added to it" — "very peaceful but just out." The last thing Josh remembered that night was being on the couch unable to do anything.
The victim awoke to find defendant on top of her having sexual intercourse. She was a "little disoriented," but was also scared and in pain. Josh was lying next to her but he was unconscious. She screamed loudly but defendant did not stop. After "a couple minutes," she was able to push defendant off of her and pull up her pants. She forced defendant out of the house. Because her front gate required a key to open, she had to open the gate to allow defendant to leave. Then, she went back inside to check on Josh. She testified, "I was screaming at him . . . , shaking him to make him wake up; And he just . . . woke up and puked. And he, like, hit me. He was just acting crazy." Because Josh kept "puking and passing out" she called a friend for help.
The friend testified he was awoken by the victim's call. She was "freaking out" and saying "Josh won't wake up." When he arrived at their house he found the victim "curled up in a ball, leaning against [the] garage door," crying. Josh was in bed, "completely unconscious—unresponsive for the most part." He shook and yelled at Josh, who then got up slowly and walked to the bathroom, where he vomited. The victim told him she had been raped by someone they met at the bar. He called 911 to report the rape.
A recording of the 911 call was played for the jury. In it, the victim told the operator that defendant was wearing red pants, a colorful t-shirt, and vest. She said that defendant had come into her room while she was asleep, "covered [her] mouth and he did it." She explained, "I was drunk last night so I was passed out and then he did it." She "didn't really know what was going on until after it was done. He gave me drugs, I think. I think he drugged me." She thought he put something in her alcohol. Both the victim and Josh were taken to the hospital for treatment and to provide blood and urine samples.
The victim gave the police a phone number defendant had given her at the bar and told them where she thought he lived. Later that morning, she identified defendant out of a six-person photographic lineup. When defendant was arrested in his home, police recovered numerous pill bottles from a black satchel at the foot of his bed. The bottles included, among other pills, diazepam and oxycodone. The officers also found an "assortment of white, round pills with one side having a score through the middle and the other side having a 512 imprinted on it."
Dr. Nikolas Lemos, an expert in toxicology and effects of substances on the human body, explained the impact of alcohol and diazepam on an individual and discussed the results of testing done on blood and urine samples belonging to the victim and Josh. Alcohol depresses inhibitions and causes confusion and stupor. Diazepam is commonly prescribed for anxiety. It changes the ability to perceive pain or stressors and can cause confusion, severe drowsiness and dizziness or light-headedness. Combining alcohol and diazepam multiplies the effects and can cause profound intoxication noticeable beyond what each would cause individually.
The victim's blood had a blood-alcohol level of 0.04 percent and less than 0.10 milligrams per liter of diazepam. Based on the blood-alcohol level, Lemos estimated her level to be at 0.18 percent at 3:00 a.m. and at 0.11 percent when the 911 call was made at 6:48 a.m. The low concentration of diazepam was consistent with the victim ingesting a 5- to 10-milligram tablet of diazepam 10 hours before blood collection. Josh's blood test indicated a 0.13 percent blood alcohol level and a "trace amount" of diazepam. His urine test also revealed diazepam at less than 0.10 milligrams per liter. Based on the exhibits depicting the vomit in the bathtub, Lemos opined Josh's levels were consistent with a large dose of diazepam, but most ended up in the bathtub. Using hypotheticals, Dr. Lemos opined that individuals with similar weight and height to the victim and Josh with these levels of intoxication would both engage in uncharacteristic behavior that would be consistent with memory loss, light-headedness, dizziness, confusion, and eventually passing out.
A forensic examiner for the rape treatment center examined and took DNA samples from the victim's body. The prosecution's expert testified that defendant was excluded as a donor of all but one of the samples collected from the victim. The expert testified that she performed Y-STR testing on the rape kit and found a DNA profile on a swab taken from the victim's external vaginal area that was a mixture of at least two males. Defendant could not be excluded as the major contributor, and Josh could not be excluded as the minor contributor. The profile could have originated from any type of cellular material including saliva, semen, sperm, or skin. The DNA could be from touch or from transfer of saliva to fingertips to vaginal area or from close contact during intercourse, with skin cells being deposited.
Defendant's expert in DNA interpretation confirmed that the Y-STR test results on the swab showed two male donors, with profiles similar to defendant and Josh. He noted that the male DNA from that swab was consistent with a fraction of a drop of saliva and that DNA on the hand of one person could be transferred to another's through touch.
In rebuttal, the prosecution presented testimony by Karl Reich, Ph.D., an expert in forensic DNA, forensic biology, and the interpretation of DNA statistics. Reich agreed that defendant's DNA found on the swab likely came from his saliva, but disagreed that the saliva ended up on the victim's skin as a result of a secondary touch transfer. He explained that the test results were inconsistent with touch DNA because there would not have been enough material from a touch DNA to get a robust result as easily as occurred here. In Reich's opinion, the DNA found on the victim's external vaginal swab was more likely to occur from direct contact.
The jury found defendant guilty as charged. The trial court sentenced defendant to a determinate term of 11 years 8 months, and a consecutive indeterminate term of life with the possibility of parole. Defendant timely filed a notice of appeal.
Discussion
1. The trial court did not err in excluding proffered testimony by a defense expert regarding confabulation.
Defendant contends the court erred by refusing to allow Dr. Jeffrey Gould, an expert on memory formation, to testify regarding the effect of alcohol and diazepam on memory and how the consumption of these substances can lead to confabulation, a process in which a person who has a gap in memory will fill in the gap with false information, resulting in a false memory. He argues that this evidence was necessary to explain how alcohol and diazepam intoxication can cause a person to sincerely believe she had been raped when no such event had occurred.
"Confabulation is a process by which the witness fills gaps in memory with false and imaginary information . . . and comes to believe in the truth of his reconstruction." (People v. Alcala (1984) 36 Cal.3d 604, 620, fn. 6, superseded by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.)
When the admission of Gould's testimony was first raised, the court ruled the evidence inadmissible because the proffered testimony lacked a foundation. Defendant argued that Gould would testify that "where there is an absence, a blackout, a failure of memory, confabulation is often triggered by that" but the trial court responded, "that is pure speculation in this case without any foundation that there was a blackout . . . [a]nd that this is what happened." When defendant renewed his motion to admit Gould's testimony, the court denied it on the ground that it is inadmissible under Evidence Code section 801 because "it's not sufficiently beyond the common experience" and under Evidence Code section 352 because it was more prejudicial than probative and had the potential of confusing the jurors.
Under Evidence Code section 801, subdivision (a), expert testimony in form of opinion is admissible when it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." " 'Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.' [Citation.] But 'exclusion of evidence that produces only speculative inferences is not an abuse of discretion.' " (People v. Cornwell (2005) 37 Cal.4th 50, 81, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Assuming, without necessarily agreeing, that the concept of confabulation is beyond the common experience of jurors, we nonetheless conclude that the court did not abuse its discretion in excluding the proffered testimony under Evidence Code section 352. People v. Daniels (2009) 176 Cal.App.4th 304 is instructive. In that case the defendant was convicted of kidnapping for rape; the victim had been very drunk and had many gaps in her memory of the events. The defense sought to present expert testimony on alcoholic blackouts or alcohol's effects on memory. (Id. at p. 318.) The court upheld the exclusion of this evidence under Evidence Code section 352 because the proposed testimony had minimal probative value because it was speculative: there was no evidence that the victim was experiencing an alcoholic blackout. (Id. at p. 321.) To the contrary, the victim's testimony that she was drifting in and out of consciousness and unable to move or speak was inconsistent with her being in a blackout. (Ibid.)
The same can be said of the proffered evidence in this case. Defendant argues that the victim's ingestion of alcohol and diazepam resulted in memory gaps and confabulation, but there is no evidence of such. The victim testified in some detail about the evening up until the point she fell asleep. She described what happened at the bar and how she was feeling when she left: weird and hazy. She described defendant's house including the photographs hanging on his walls and the types of pills he offered her. The victim testified that defendant picked flowers as they walked and that she put the flowers in a vase at her home. Her testimony is consistent with known facts. Investigating officers found pills and photographs matching her description in defendant's house and a vase of flowers in her kitchen. Although the victim acknowledged that she was somewhat confused when she first awoke, she remained conscious and repeated consistently the critical details of the assault. Nothing in the record suggests she had a memory gap.
Defendant suggests that the victim's statement to police that he was not wearing a condom demonstrates that she was confabulating because the absence of DNA evidence establishes that if a rape occurred, the assailant was wearing a condom. Among other shortcomings in this logic, the record does not support the premise of defendant's argument. The victim testified that she "didn't notice" if he was wearing a condom. While the police report of the incident stated that the victim saw defendant's "penis and saw that he was not wearing a condom," the officer clarified at trial that the victim said she "didn't see a condom." Moreover, even if there were a discrepancy, the suggestion that she falsely remembered the whole incident based on a mistaken detail is purely speculative. In short, the court did not abuse its discretion in excluding the proffered testimony.
2. Defendant waived his argument that the trial court erred in excluding testimony by his expert regarding the physical reaction between diazepam and beer.
Prior to trial, defendant filed a motion in limine requesting to perform an experiment before the jury in which his expert, Dr. Mendelson, would drop a tablet of diazepam (Valium), identical to that found in defendant's home, into a pint of beer. The court denied the request, explaining that because it was impossible to recreate the circumstances in the bar that night, both the lighting and how long the victim was away from the beer, the experiment would turn "into a side show." The court noted, however, that the experts would be allowed to "talk about what they think the reaction would be, and whether it would be something that is observable or not observable" and Mendelson could describe the experiment he had conducted. In his opening brief, defendant contends that "[s]everal days later, the trial court abruptly reversed itself without offering any reasons, holding that both [the prosecution's and defendant's experts] 'cannot be asked about whether one could detect or not detect diazepam or any other drug in anything that they - food or beverage that they might have ingested it in that substance' " and that, therefore, any testimony about the experiment was irrelevant. Defendant contends the court erred by excluding his expert's testimony "about the experiment he conducted."
Defendant's recitation of the procedural history of the court's ruling is incomplete and misleading. The court did not, as defendant suggests, change its prior ruling without explanation. As the Attorney General explains, "During the prosecution's case-in-chief, the parties discussed the state of discovery, with the prosecutor noting that she had not been provided discovery about the experiment Mendelson had performed. Defense counsel stated she did not have any report, describing Dr. Mendelson as 'the [defense expert] in response to Dr. Lemos [the prosecution expert].' Defense counsel commented that 'Dr. Lemos also did experiments involving Valium and beer. And I don't have any reports on that either.' The court reminded the parties that they 'both have to discover anything in writing, graphs, whatever, that your expert has to the other side.' Defense counsel said she did not have a summary of Dr. Mendelson's testimony, and the court asked if she could provide it by the next day; defense counsel was uncertain. [¶] A few days later, after the court had reviewed Dr. Lemos's preliminary hearing testimony in which he explained that diazepam could be crushed or pulverized and put into a drink in a manner in which the person would not smell it or know what he or she was drinking, the trial court ruled that Dr. Lemos could not testify about whether diazepam could be detected in food or beverage. And on that basis, the court concluded Mendelson's testimony was irrelevant and would be excluded. The court invited argument from both parties. Neither party disputed or expressed an interest in discussing the ruling any further." Lemos, the prosecutor's expert, was precluded from offering an opinion on whether diazepam could be detected in food or beverage because he lacked a scientific foundation to offer the opinion. His preliminary hearing testimony on the matter was based on "just something he did with students."
The Attorney General is correct that defendant "in essence abandoned his request to present [the expert's] testimony . . . describing the experiment he had performed" and failed to preserve a final ruling for appeal. In his reply brief defendant has not challenged the Attorney General's description of events, which reflect the abandonment of the contention in the trial court. In any event, on the record before us there was no abuse of discretion in refusing to allow the "experiment" to be conducted in the courtroom or described. Defendant's description of the experiment as "exceedingly simple" and involving the "dropping of a tablet of diazepam in a glass of beer" demonstrates the court's point. There was no foundation establishing how much beer was in the glass when the diazepam was introduced or whether the diazepam was introduced in the form of a tablet or pulverized. The expert estimated the victim ingested five to ten milligrams of diazepam, but there was no proffer as to whether this quantity corresponded with the quantity used in the experiment. The court reasonably concluded that defendant's oversimplified experiment was likely to mislead the jury and had little probative value. Defendant's proposed experiment is not unlike the "experiment" conducted by the prosecution's expert that was also excluded.
3. Expert testimony regarding urine and blood test results did not violate defendant's confrontation rights.
At trial, Dr. Lemos, the chief forensic toxicologist at the San Francisco Office of the Chief Medical Examiner, testified as an expert on toxicology and the effects of substances on the human body. A forensic toxicology analysis generated by Lemos's division on both the victim's blood and Josh's blood and urine was admitted without objection. As described above, the reports showed that both the victim and Josh had diazepam in their bodies. Lemos did not testify who conducted the tests or prepared the report, but testified that he supervised the work of his deputies and signed the reports. He "examine[d] the results for compliance with the state regulations and for the professional accreditations" held by the office.
Defendant contends his Sixth Amendment confrontation rights were violated by the admission of Lemos's testimony without testimony by "the person or persons who performed the tests" on the blood and urine samples. Defendant concedes that he did not object to the admission of the reports but argues that an objection was not required due to the changing rules regarding the admission of expert testimony (see People v. Sanchez (2016) 63 Cal.4th 665) or, alternatively, if an objection was required to preserve the issue on appeal, his attorney rendered ineffective assistance by failing to object. We fail to see how the Sanchez decision excuses defendant's failure to object.
In People v. Sanchez, supra, 63 Cal.4th at page 670, our Supreme Court held that "case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law." The court explained, "When an expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.) The Sanchez court disapproved of its prior decisions holding that the matters upon which an expert relied in forming an opinion are not offered for their truth and thus are not made inadmissible by the hearsay rule. (Id. at p. 686, fn. 13.) As defendant makes clear, however, the toxicology reports in this case were admitted for the truth that there was diazepam in the blood and urine samples, not merely as the basis for another opinion of the expert. Any potential hearsay objection did not arise from the decision in Sanchez. Accordingly, the failure to object forfeited any challenge to the admissibility of this evidence.
With respect to defendant's ineffective assistance of counsel contention, the decision not to object was entirely reasonable because the evidence was admissible. Defendant does not dispute that the reports were admissible under the business record exception to the hearsay rule (Evid. Code, § 1270). And by the time of defendant's trial in 2015, the question of whether an expert's reliance on "notes, DNA profiles, tables of results, typed summary sheets, and laboratory reports prepared by others" violates a defendant's confrontation rights had been addressed multiple times by both the United States and California Supreme Courts. (See People v. Holmes (2012) 212 Cal.App.4th 431, 437-438, citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, Bullcoming v. New Mexico (2011) 564 U.S. 647; Williams v. Illinois (2012) 567 U.S 50; People v. Dungo (2012) 55 Cal.4th 608; People v. Lopez (2012) 55 Cal.4th 569.) In Holmes, supra, 212 Cal.App.4th at page 438, the court noted the "two critical components" of a testimonial statement: "(1) the statement must be 'made with some degree of formality or solemnity,' and (2) its 'primary purpose' must 'pertain[] in some fashion to a criminal prosecution.' " A statement is not testimonial unless both criteria are met. (Ibid.) Here, assuming the toxicology reports meet the second requirement, they are not testimonial because they lack the necessary formality. (Ibid. ["unsworn, uncertified" forensic reports "that 'merely record objective facts' are not sufficiently formal to be testimonial"]; People v. Lopez, supra, 55 Cal.4th 569, 583 [prosecution's use at trial of a laboratory report consisting of data generated by a machine to measure the concentration of alcohol in a blood does not violate a defendant's confrontation rights].) Two of the three toxicology reports introduced in this case were unsworn and uncertified and merely recorded the objective testing results. These exhibits established that diazepam was detected in the victim's blood and urine and in Josh's blood. The third report, which includes analysis of a second blood sample and a urine sample provided by Josh, includes a "certification" but only that the report is a full and correct copy of the original report. Accordingly, there was no violation of defendant's Sixth Amendment right, and no deficiency in counsel's failure to object.
4. The trial court did not err in allowing Reich's rebuttal testimony.
As set forth more fully above, after defendant's expert, Forensic Science Professor Keith Inman, testified that DNA on the hand of one person could be transferred to another person's body through secondary touch, the prosecution called Dr. Reich, who opined that the DNA found on the victim's external vaginal swab was more likely to have been placed on the victim's body by direct contact, not transferred by touch.
Defendant contends that the prosecution improperly withheld Reich's testimony and presented it in rebuttal to take unfair advantage of the defendant in violation of his due process rights. He argues that because the prosecutor was aware of Inman's testimony before she rested her case, Reich's testimony should have been presented in the prosecution's case-in-chief, and was therefore improper rebuttal.
As defendant notes, in the course of the prosecutor's case, the court held an Evidence Code section 402 hearing to determine whether Inman could testify as an expert and, if so, what proffered testimony would be admissible. The prosecutor advised the defense that she would be asking for leave to offer Reich as a rebuttal witness in response to Inman's proffered testimony. The prosecution rested without offering Reich as a witness and following Inman's testimony, the prosecutor requested that Reich be allowed to testify in rebuttal. Defense counsel objected on the ground that Inman's testimony did not necessarily conflict with the testimony presented in the prosecutor's case and that because the prosecutor was provided Inman's report before the start of trial, the prosecutor had an obligation to address any concerns with Inman's proffered testimony in her case-in-chief. Following a hearing on the matter, the court concluded that Reich's testimony "appears . . . to be absolutely in response to Mr. Inman's opinions that he stated here in court and are not really something that would come up in the People's case in chief." The court allowed "very limited testimony" from Reich as a rebuttal witness and allocated a maximum of 45 minutes for his examination.
In People v. Mayfield (1997) 14 Cal.4th 668, 761, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, the court explained that " '[i]f evidence is directly probative of the crimes charged and can be introduced at the time of the case in chief, it should be.' " (See also People v. Nunez and Satele (2013) 57 Cal.4th 1, 30 ["[I]t is improper for a prosecutor to withhold 'crucial evidence properly belonging in the case-in-chief' [citations], and to present it in rebuttal to take unfair advantage of a defendant."].) Rebuttal evidence is restricted to (1) "ensure the orderly presentation of evidence" to avoid jury confusion; (2) preclude the prosecution from "unduly magnifying certain evidence by dramatically introducing it late in the trial;" and (3) avoid "unfair surprise" to defendant from "sudden confrontation" with additional crucial evidence. (Mayfield, at p. 761.) " '[P]roper rebuttal evidence does not include a material part of the case in the prosecution's possession that tends to establish the defendant's commission of the crime. It is restricted to evidence made necessary by the defendant's case in that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' " (Ibid.) " 'The decision to admit rebuttal evidence over an objection of untimeliness rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion.' " (Ibid.)
The prosecution presented DNA testimony to corroborate the victim's testimony that she was raped by defendant. Reich's testimony that defendant's DNA was more likely placed on the victim's body as a result of direct contact rather than transferred by touch was not necessary to establish the connection to defendant and became relevant only after Inman testified that defendant's DNA could be transferred by touch. The prosecution had no obligation to refute defendant's defense before it was presented. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934 ["The prosecutor was not required to anticipate defendant's testimony and call [police officer] as a witness during his case-in-chief."].) The court properly limited the rebuttal testimony in scope and duration. There was no abuse of discretion in permitting the testimony to be offered in rebuttal.
5. Defense counsel's failure to object to the admission of a mugshot from a prior arrest was harmless.
A police officer testified that he presented the victim with a six-person photographic lineup and she identified defendant as her attacker. The photograph, which was admitted into evidence without objection, was described by the officer as a "mug photo." Following the officer's testimony, a juror submitted the following question for the officer: "[Y]ou showed pictures to [the victim] in the hospital and the one you showed of the defendant was a 'mugshot' although he had not been arrested in this case yet. What accusation had he been arrested for previously?" After conferring with counsel, the court informed the jury that none of its questions, including that one, "are ones that we're able to ask our witness."
At the start of the trial, the court had advised the jury, "[I]f you have a question that you want to present to us . . . regarding the trial or the evidence, or procedure, please write it down . . . . [¶] . . . [¶] . . . You may or may not get an answer to your question. [¶] We take all of your questions seriously and if we can, we will have your question answered. But sometimes we are unable to answer your question. And there's many reasons why we may not be able to answer your question. There may be no evidence that goes to what your question's answer might be. [¶] And, also, we have over 200 years of the development of law and procedure in this country and your question may go to something that's just outside the scope or purview of what we can address in this trial. [¶] So please, if we don't answer your question, it's not because we don't think it's important or we don't care about your question; it's just there's some reason that prevents us from addressing it directly." The jury was also advised, "your verdict must be based solely on the evidence presented during the trial in this court" and later, in giving its closing instructions to the jury, the court reminded the jury that if a witness was not permitted to answer a question, "do not guess what the answer might have been or why I ruled as I did."
Defendant contends his attorney rendered ineffective assistance by failing to object to admission of the photograph and to the officer's characterization of it as a mug shot. He argues that the evidence had little probative value because identity was not an issue in the case and that the implication that he had a criminal record was highly prejudicial.
To establish ineffective assistance of counsel, petitioner must demonstrate both deficient performance by counsel and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692.) On the first prong he must show that "counsel's representation fell below an objective standard of reasonableness . . . [¶] under prevailing professional norms." (Id. at p. 688.) Contrary to the Attorney General's argument, we do not believe there could be any tactical explanation for the failure to object to this evidence under Evidence Code section 352. Although, as the Attorney General asserts, a mug-shot style photo is generally admissible to establish identity (People v. Gurule (2002) 28 Cal.4th 557, 626) the evidence remains subject to exclusion under Evidence Code section 352 when the probative value of the photograph is minimal because defendant's identity was not at issue. (See People v. Vindiola (1979) 96 Cal.App.3d 370, 384, overruled on other grounds in People v. Carter (2003) 30 Cal.4th 1166, 1197; People v. Cook (1967) 252 Cal.App.2d 25, 28.) At no point did defendant dispute that he was the man the victim met in the bar and who accompanied her and Josh to her home. The Attorney General's argument that the prosecution cannot be compelled to " ' "accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness" ' " misses the point. (People v. Thornton (2000) 85 Cal.App.4th 44, 49.) The well-recognized exception to this rule "is the instance in which the probative value of the evidence is substantially outweighed by its prejudicial effect." (Ibid., citing Evid. Code, § 352.)
Unlike the photograph's minimal probative value, its potential prejudice was substantial. Booking photographs taken in prior years carry the inevitable implication that defendant suffered previous arrests and perhaps convictions. (People v. Vindiola, supra, 96 Cal.App.3d at p. 384, overruled on other grounds in People v. Carter, supra, 30 Cal.4th at p. 1197; People v. Cook, supra, 252 Cal.App.2d at pp. 28-32.) The mug shots make "the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict" [citation] and may well be equivalent to the introduction of direct evidence of prior criminal conduct. [Citation.] As such, a jury could well conclude that the appellant had a disposition to commit offenses." (People v. Vindiola, supra, at p. 384.) Here the prejudice of the photo would seem to have significantly outweighed its minimal probative value, so that counsel's failure to object, or to take other steps to mask the fact that it was a criminal mug shot, may well have constituted deficient performance.
Nonetheless, although troublesome, we conclude that any potential error was harmless. There was no indication that defendant had ever been convicted of another crime nor any information as to the nature of any other possible offense, so that the jury was not likely to be inflamed by the evidence. The prosecutor made no insinuations at any point that defendant had engaged in other misconduct or was generally disposed to antisocial behavior. The jury was instructed not to speculate about unanswered questions and to rely only on the evidence admitted at trial. We presume that the jury followed these instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121.) It is not reasonably probable that there would have been a result more favorable to defendant had counsel objected. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
6. The trial court did not err in denying defendant's posttrial Marsden motion.
Five months after defendant's jury trial concluded and two days before sentencing, defendant requested that the court appoint a new attorney to represent him. The court conducted a Marsden hearing, asking defendant to explain the basis for his request. Defendant stated that he was "seeking to have my attorney removed for ineffective assistance of counsel" and because there is an "irreconcilable conflict in the attorney-client relationship." The court responded, "[F]irst of all, your trial is already over, sir. [¶] . . . [¶] There is no more representation with respect to your trial. If you have any, if there's any issues about the representation at trial, that's something that would be addressed on an appeal." When defendant attempted to clarify that he was "referring to anything going forward," the court responded, "The only thing that's left is for you to be sentenced." The court continued, "You have to give me specifics as to what you want your attorney to be doing right now that your attorney is not doing." Defendant responded, "I'm asking for a new attorney for a motion for a retrial." The court advised defendant that after he was sentenced, he would "have an automatic right to an appeal. . . . and if you seek to appeal your judgment and sentence, the Court of Appeal will appoint an attorney to represent you, a new attorney to represent you, an appellate attorney, at no cost to you."
As the hearing continued, the court allowed defendant to explain why he felt that he needed a new attorney to represent him at sentencing. Defendant read a lengthy list of potential grounds for ineffective assistance that he had found in the prison law library, many of which were not relevant to this case. His primary concern appeared to be that he believed counsel should have permitted him to testify at trial. Defense counsel explained the reasons for her strategic decision not to have defendant testify and expressed concern that as a result of that decision, she did believe there was a conflict in her representation. Ultimately the court denied defendant's request, finding that counsel had rendered effective assistance. The court added, "Whether you should have testified or not is a strategy that is between you and your attorney, and an attorney needs to make a judgment call of that. . . . [H]aving observed you and had you in my courtroom . . . for almost two years[,] I am not entirely sure that your testifying on a witness stand would have done anything to assist you whatsoever in terms of credibility with the jury. [¶] We, in fact, had to take extraordinary measures to make sure that . . . [¶] . . . you did not prejudice yourself in front of the jury in a way that had nothing to do with the evidence, but just in the way in which you carried yourself in the courtroom." The court reiterated that all of defendant's claims could be reasserted on appeal and that the court was "not going to delay judgment and sentence any longer." The court explained, "You are going to be sentenced [in two days]. The court perceives this motion, in part, as basically a concern about your sentencing, which is completely understandable, but it has nothing to do with [counsel's] representation of you."
Defendant contends the trial court misunderstood the function of a post-trial Marsden hearing and that because the court incorrectly believed that the hearing was "meaningless" it failed to conduct the inquiry required by Marsden. We disagree. In context, the court's comments that defendant's concerns could be raised on appeal do not demonstrate a lack of understanding as to the "function and reach" of a postjudgment Marsden motion. The court conducted a full inquiry into the grounds for defendant's request and gave defendant ample opportunity to explain why he was dissatisfied with his attorney. The only specific defendant mentioned was counsel's failure to have him testify, which the court observed appeared to be a sound decision, and his appellate lawyers do not suggest otherwise.
Initially we note that while "the defendant has the right to testify over his attorney's objection, such right is subject to one significant condition: The defendant must timely and adequately assert his right to testify. [Citation.] Without such an assertion, '. . . a trial judge may safely assume that a defendant who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy.' [Citations.] When the record fails to show such a demand, a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to his counsel his desire to testify, he was deprived of that opportunity." (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231-1232.) Defendant did not clearly assert his desire to testify at trial and his belated assertion five months after judgment is not sufficient to preserve the issue.
In addition, neither defendant nor defense counsel expanded on their discussions during trial regarding whether defendant should testify. While defendant told the court that counsel "failed to allow me to testify when I was the only one who could have pointed out the inconsistencies of the untruths by the complaining witness and witnesses in the trial," it was not made clear whether defendant ultimately acquiesced in the soundness of his attorney's advice or persisted in his desire to testify. While the court might well have pursued such a line of inquiry, defendant's failure to speak up at trial suggests acquiescence and an objection only in hindsight after receiving the adverse verdict. The record provides no basis to presume otherwise.
Moreover, there is no indication that this issue impacted counsel's ability to represent defendant at trial or in the upcoming proceedings. Defense counsel indicated that she believed that defendant's contention had created a conflict with defendant, but our Supreme Court has held that "such a 'conflict' regarding tactical matters neither justifies substitution of counsel nor signals a fundamental breakdown in the attorney-client relationship." (People v. Nakahara (2003) 30 Cal.4th 705, 719.) The court was presented with no other information suggesting counsel's performance (or anticipated future performance) was inadequate. The court did not abuse its discretion in denying the Marsden motion. (People v. Jones (2003) 29 Cal.4th 1229, 1245 ["We review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard."]; People v. Hart (1999) 20 Cal.4th 546, 603 [" 'Denial of [a Marsden] motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendant's right to assistance of counsel.' "].)
7. Conditional reversal is required to ensure compliance with section 1326 .
Under the procedure set forth in section 1326, when a criminal defendant has subpoenaed confidential records of a nonparty, "the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (§ 1326, subd. (c).) At the pretrial stage of the proceedings, the trial court is not required to review or grant discovery of confidential records in a nonparty's possession. (People v. Hammon (1997) 15 Cal.4th 1117, 1127-1128 [no Sixth Amendment right to pretrial discovery of non-party's confidential records]; People v. Webb (1993) 6 Cal.4th 494, 517-518 [no due process right to pretrial discovery of confidential documents not in the government's possession.) At trial, however, the court may review the records and disclose information if necessary to preserve the defendant's Sixth Amendment rights of confrontation and cross-examination. (People v. Hammon, supra, at p. 127.) "When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve." (Ibid.)
In Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295-1296, the court reviewed the "procedure to be followed once the defendant shows good cause for discovery of a witness's mental health records. The trial court should (1) obtain the records and review them in camera; (2) weigh the constitutional right of confrontation against the witness's right to privacy; (3) determine which if any records are essential to the defendant's right of confrontation; and (4) create an adequate record for review." The court emphasized that a victim does not "lose her right to privacy in her mental health records because she charged [the defendant] with sexual battery. Rather, [the defendant's] entitlement to inspect [the victim's] records require[s] a showing of good cause for their discovery and a balancing of [defendant's] Sixth Amendment right of cross-examination against [the victim's] right of privacy in her medical records." (Id. at p. 1295.) " '[T]he good cause requirement embodies a "relatively low threshold" for discovery' [citation] under which a defendant need demonstrate only 'a logical link between the defense proposed and the pending charge' and describe with some specificity 'how the discovery being sought would support such a defense . . . .' " (People v. Gaines (2009) 46 Cal.4th 172, 182.)
Here, during the course of trial, defendant obtained a subpoena duces tecum for the victim's medical records. When the records were delivered to the court, defense counsel indicated that she had subpoenaed the files but "wasn't sure whether or not there would be anything relevant in there." The court reviewed the documents in camera and concluded that none of the records needed to be disclosed because none were "relevant."
On appeal, defendant asks this court to review the records to determine whether the court erred in declining to disclose any portion of the records. He explains that the victim was sexually assaulted on an earlier occasion and her medical records were subpoenaed to discover documents relating to that assault. He intended to attack the victim's credibility by showing that she had confabulated or confused the instant event with the prior sexual assault, and that because of her lack of sobriety she had an amnestic episode. He argues that evidence of prior statements that mimicked her testimony here would have seriously damaged her credibility.
The People do not oppose defendant's request that this court review the documents that the trial court examined and found irrelevant. However, the documents are not contained in the appellate record and this court was informed by the trial court that the documents have been "purged." In response to our request for supplemental briefing, the parties have suggested that this court conditionally reverse the judgment and remand the matter to the trial court to recreate a record susceptible to review. We agree.
On remand, the trial court should hold a hearing to augment the record with an account of the evidence it considered in chambers. (People v. Mooc (2001) 26 Cal.4th 1216, 1231; see also People v. Gaines, supra, 46 Cal.4th 172, 180.) The record prepared by the trial court itself should result in an accurate record on appeal. (People v. Mooc, supra, at p. 1231; People v. Galland (2008) 45 Cal.4th 354, 371 [trial court's "own recollection" may "constitute[] substantial evidence that the content" of a newly provided document is the same as the originally provided document].) If the court is unable to recreate the record from memory, it may re-subpoena and review the documents again to ensure an adequate record. If after reviewing the records the court again concludes they contain no relevant information, the court should ensure that an adequate record has been made for review on appeal and reinstate the judgment. (People v. Gaines, supra, 46 Cal.4th at p. 181.) If the court determines that the medical records include relevant information that should have been disclosed, the court must provide defendant an opportunity to demonstrate prejudice. (Ibid.) To prevail, a defendant must show that " ' "there is a reasonable probability that, had the evidence been disclosed to the defense, the result . . . would have been different." ' " (Id. at p. 183.) If the defendant demonstrates such a probability, the court must order a new trial; if he does not, the judgment should be reinstated. (Id. at p. 181.) Upon reinstatement of the judgment, defendant may appeal for the limited purpose of challenging the court's rulings on this issue. (Id. at p. 181, fn. 3.)
8. Defendant's conviction on count three must be stayed pursuant to section 654 .
Defendant was convicted on three counts of rape based on a single act: rape by use of drugs (§ 261, subd. (a)(3); count one), rape of an unconscious person (§ 261, subd. (a)(4); count two), and rape by force (§ 261, subd. (a)(2); count three). On count four, defendant was convicted of assault with intent to commit rape during a burglary (§ 220, subd. (b).) The trial court sentenced defendant to an indeterminate life sentence on count four and imposed a consecutive sentence of eight years on count three. The court stayed the terms imposed on counts one and two pursuant to section 654. In selecting defendant's sentence, the court explained that the assault at issue in count four occurred when the defendant drugged the victim so that "defendant had time to reflect upon his actions" before raping her. The court found that there was "a break in time" and that the assault which led to the conviction on count four occurred on a "separate occasion" from the rape that led to the convictions on counts one, two and three. The Attorney General concedes that there is no substantial evidence to support the court's finding. The only first degree burglary defendant committed that night was when he entered the victim's house. No evidence was presented that defendant drugged the victim in her home. To the contrary, the evidence showed he drugged her at the bar and that upon arriving home, she went to bed almost immediately. Thus, while defendant assaulted her during the first degree burglary, the assault and the rape are the same single act. Accordingly, defendant's sentence on count three must be stayed. Following remand, should the judgment be reinstated, the court is directed to stay the sentence imposed on count three and amend the abstract of judgment to reflect a total determinative sentence of three years eight months (imposed on counts five and six for administering a controlled substance to the victim and to Josh to facilitate the rape).
9. Defendant was properly sentenced on count five.
Defendant contends that the three year term imposed on count five for administering a controlled substance to the victim to aid in a felony should also be stayed under section 654. He acknowledges that the conviction rests on drugging the victim well before the rape occurred, so that the crimes were committed at different times and places. He argues, however, that section 654 applies because he harbored a single intent: "His act of drugging her was the means of accomplishing or facilitating one objective, rape."
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. . . ." Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) Under section 654, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn 11.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one." (People v. Gaio (2000) 81 Cal.App.4th 919, 935; see also People v. Latimer (1993) 5 Cal.4th 1203, 1212 [Under section 654, "similar but consecutive objectives" may permit "multiple punishment."].) "Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by substantial evidence. [Citation.] On review of this issue, we consider the evidence in the light most favorable to the judgment." (People v. Hicks (2017) 17 Cal.App.5th 496, 514-515.)
As set forth above, the trial court found that defendant "had time to reflect upon his actions" between drugging the victim at the bar and raping her later in the evening. Substantial evidence undoubtedly supports that finding. Accordingly, the court did not err in failing to stay the three year term imposed on count five.
10. There is no cumulative error.
Since we have concluded that the only likely error in the conduct of the trial was the admission of the mug shot photograph (to which there was no objection), and rejected defendant's other claims of trial error, there was no cumulative error.
Disposition
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to review and create a record reflecting the victim's confidential medical records that the court determined to be irrelevant in conformance with the procedures described in this opinion. If the judgment is reinstated, the court is directed to stay the sentence imposed on count three and amend the abstract of judgment to reflect a total determinative sentence of three years eight months. The judgment, if reinstated, is affirmed in all other respects, except that defendant retains the right to appeal from a re-imposed judgment based on a challenge to the court's ruling on the disclosure of the victim's confidential medical records.
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
TUCHER, J. /s/_________
BROWN, J.