Opinion
No. B186797
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. PAUL JAMES WHITEHEAD, Defendant and Appellant.
Harold Greenberg for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo. Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Paul James Whitehead guilty of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)), kidnapping a child under age 14 for the purposes of molestation (§ 207, subd. (b)), and committing a sexual battery by means of restraint (§ 243.4, subd. (a)). The jury also found Whitehead not guilty of assault with the intent to commit rape, but guilty of the lesser included offense of simple assault (§ 240), and not guilty of false imprisonment by violence, but guilty of the lesser included offense of false imprisonment (§ 236). We affirm.
FACTS
Kristen S.
In October of 2003 Kristen S. was 16 years old. She had worked at the Do-It-Center store in Thousand Oaks, but had recently quit. Whitehead was employed there. Kristen and Whitehead did not socialize outside the store. Whitehead had asked her out, but she always told him she was busy.
Kristen returned to the store with her twin sister, Heather, to visit friends who still worked there. The store was nearly empty and about to close. Kristen went toward the back of the store. After visiting friends there, she started to walk to the front. Whitehead picked her up over his shoulder, and carried her to the back of the store. He put her down in the garden area, pushed her against some stakes, and pressed his body against hers. He tried to kiss her, but she told him no, and tried to push him away. She said she had to go to the front of the store. He said he would take her there.
Instead, Whitehead put Kristen over his shoulder and carried her to a shed in the lumber area. She tried to escape, but he put her down inside the shed and locked the door. When she threatened to scream, he covered her mouth and told her no one could hear her.
Whitehead pressed Kristen against the back wall of the shed. He unzipped her jacket and pants, and touched her breasts over her "bra." He unzipped his own pants and they fell to the floor. His erect penis was exposed. He said, "Come on, Im almost there, just let me put it in." Kristen was begging Whitehead to stop. Eventually, Kristens name was announced over the stores intercom system. She told Whitehead to let her go because they were looking for her. He let her go, and she ran to the front of the store, zipping up her jacket and pants as she went.
Kristen saw the manager at the front of the store. She hugged him. The manager asked if there was anything wrong. Kristen replied, "No." Kristens sister said Kristen looked very stressed, and told her they needed to leave. After Kristen and her sister left the store, Kristen told her sister what happened. Kristen did not report the incident to the police for about a month. She was prompted to call the police when she read an article in the newspaper about an incident involving Whitehead and another girl.
Kailynn V.
On November 11, 2003, thirteen-year-old Kailynn V. walked to her middle school to retrieve a book she needed for a report. The school was about a half mile from her home. School was not in session because it was Veterans Day. When she could not find the book, she began to walk home.
Whitehead drove along side Kailynn in a white truck. Kailynn had never seen him before. He told her that a person in a red Toyota was giving her a "really weird look." He said it was unsafe to walk, and wanted to give her a ride home. She declined. Kailynn got nervous and started to run. Whitehead drove past her and stopped. He asked her how old she is, and she replied 13. He said he had a little sister and was worried about her. He suggested she allow him to give her a ride. Kailynn started to run again.
Whitehead cut Kailynn off with his truck. He was on his cell phone. He told her he was talking to the police, and that the police wanted her to get into his truck so he could take her home. Believing she was following the instructions of the police, she got into Whiteheads truck. Whitehead offered Kailynn a candy, and said his name was Paul. Instead of taking her home, however, he drove in the other direction. She became frightened. When they passed a construction site, she unsuccessfully tried to make eye contact with the workers.
At a shady spot in the road where there are no houses, Whitehead slowed down, reached over and touched Kailynns upper thigh. She was wearing shorts. He touched her bare skin. She took his hand off her thigh and told him, "No." He said, "No, its okay, its okay." She started to cry and told him that she wanted to get out. He put his hand on her thigh again, and again she told him, "No," and removed his hand. When she opened the door to get out, he accelerated very fast. She kept the door open, and as he slowed to make a U-turn, she jumped out. Whitehead drove away in the opposite direction.
Kailynn chose a house at random and began banging on the door. The occupant of the house believed Kailynn was trying to break in, and called 911.
Interrogations
Sheriffs Detective Brian Richmond interviewed Whitehead when he was in custody. After Richmond advised Whitehead of his rights, Whitehead agreed to talk about the incident with Kailynn. Initially, Whitehead told Richmond that there was a man watching Kailynn, and he offered her a ride for her safety. Later, Whitehead admitted he knew Kailynn was in the eighth grade, and that he lied to get her into his truck. He admitted he drove her away from her home, that she was scared and crying and asked him to take her home. He admitted he continued driving and that he touched her leg to fulfill a sexual fantasy.
Sheriffs Detective Robert Fleming interviewed Whitehead when he was in custody about the incident with Kristen. He concealed his identity as a peace officer, representing himself to Whitehead as an employee of the Do-It-Center. He told Whitehead the conversation had nothing to do with the criminal case. He said he was trying to determine whether Kristen should be rehired. Whitehead told him he carried Kristen to a storage shed where they shared a passionate kiss and engaged in some light petting. He described the incident as "completely mutual." He denied they had sex or intended to have sex.
Defense
Whitehead testified on his own behalf. He admitted he lied to get Kailynn into his truck. Once she was in his truck, he realized how young she was. She looked younger than she appeared on the street. He no longer found her sexually attractive. He did not want her in his truck, but he was afraid the situation might be misinterpreted so he kept driving. He did not know what else to do. She got scared. He put his hand on her leg to calm her down. She asked him to stop the truck. He did, and she got out.
Whitehead testified Detective Richmond misunderstood him when he said he touched Kailynns leg to fulfill a sexual fantasy. Whiteheads fantasy was about the older-appearing Kailynn he saw walking down the street, not the Kailynn he saw sitting in his truck.
Whitehead testified Kristen was a willing participant in the sexual activity in the shed. He said they walked into the shed together. She never told him she did not want to participate, nor did she push him away.
DISCUSSION
I
Whitehead contends the trial court erred in consolidating both cases into one trial.
Section 954 provides in part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
Where the statutory requirements for joinder are met, the defendant has the burden of making a clear showing of prejudice to establish an abuse of discretion. (People v. Mendoza (2000) 24 Cal.4th 130, 160.) The pertinent factors in deciding whether the trial court abused its discretion are: "(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 27-28.)
Here all of the crimes charged involve sexual assaults. Thus they qualified for joinder under section 954 because they were all of the same class of crimes. (See People v. Ochoa (1998) 19 Cal.4th 353, 409 [requirement for joinder met where each individual was a victim of sexually assaultive conduct].)
The first factor in assessing the trial courts consolidation of the cases is whether the evidence would be cross-admissible in separate trials. Under Evidence Code section 1108, in a prosecution for a sex offense, evidence of other sex offenses is admissible for any relevant purpose, unless the evidence is inadmissible under Evidence Code section 352.
Here Whiteheads defense was that he touched Kailynn only to calm her, not for his sexual gratification. He also claimed that Kristen consented to sexual activity. Evidence that Whitehead sexually assaulted Kristen is relevant to show he touched Kailynn for the purposes of sexual gratification. Evidence that Whitehead assaulted Kailynn is relevant to show Kristen did not consent. Whitehead points out differences in the way the crimes were committed against each victim. But a lesser degree of similarity is necessary to admit evidence of other offenses to prove intent than to prove identity. (See People v. Kraft (2000) 23 Cal.4th 978, 1031-1032.) That not all of the charged offenses were committed in exactly the same way, does not preclude cross-admissibility. (Id. at p. 1032.) Here the issue is intent, not identity. It is true some of the details of the crimes differed. But the essential elements are the same: Whitehead isolated and sexually assaulted underage girls. That is sufficient for cross-admissibility in this case.
Whitehead argues cross-admissibility is precluded by Evidence Code section 352 because the evidence is unduly prejudicial. Evidence Code section 352 gives the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. The prejudice which Evidence Code section 352 is designed to avoid is not the prejudice to a defense that naturally flows from relevant, highly probative evidence. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Instead, it is prejudice in the sense of prejudging a case based on extraneous factors. (Ibid.)
Here the evidence is relevant and highly probative. Moreover, it is not unduly prejudicial. The low probability the jury would use the evidence to convict Whitehead based on extraneous factors does not outweigh the probative value of the evidence. Instead, it is probable the jury would use the evidence properly; that is, to determine Whiteheads intent and to assess the credibility of his defense. The evidence of the crimes against each victim is cross-admissible.
Cross-admissibility is ordinarily by itself sufficient to dispel any inference of prejudice that might result from consolidation. (See People v. Arias (1996) 13 Cal.4th 92, 126.) But even if it were not, consideration of the other relevant factors shows the trial court did not abuse its discretion.
The second factor is whether some of the charges are unusually likely to inflame the jury against the defendant. Here the crimes against both victims were of a similar type. Neither case was more inflammatory than the other.
The final factor is whether a weak case is joined with a strong one or another weak case so that the total evidence on the joined charges may alter the outcome. It may be true that Kailynns case is stronger than Kristens case. But Kristens case is not weak. Kristen did not report Whitehead to the authorities immediately. But she appeared shaken when she returned to the front of the store, and she told her sister. Moreover, Whitehead partially corroborated Kristens testimony when he admitted he took her back to the shed and engaged in sexual activity with her.
The trial court did not abuse its discretion when it consolidated the cases. Whitehead argues that even if the consolidation was proper when made, we must reverse if the joinder substantially prejudiced the defendant and denied him a fair trial. (Citing People v. Grant (2003) 113 Cal.App.4th 579, 583-584.) But even with the application of hindsight, we see no undue prejudice. Whitehead was not denied a fair trial.
II
Whitehead contends the trial court erred in admitting into evidence incriminating statements made to Detective Fleming. Whitehead claims the statements were taken in violation of Miranda v. Arizona (1966) 384 U.S. 436.
It is true Detective Fleming did not give Whitehead Miranda warnings. But at the time Fleming questioned Whitehead in custody, Fleming was posing as an "employee manager" of the Do-It-Center. Fleming told Whitehead that he was questioning him to determine Kristens suitability for reemployment.
Miranda does not apply to conversations between an inmate and an undercover agent. (Illinois v. Perkins (1990) 496 U.S. 292, 295; People v. Williams (1988) 44 Cal.3d 1127, 1141-1142.) That is because Miranda warnings serve to dispel the coercive effect of police custodial interrogations. (People v. Williams, supra, at p. 1142.) Where the suspect does not know he is speaking to a government agent, there is no reason to assume the possibility the suspect might feel coerced. (Illinois v. Perkins, supra, at p. 295.) Here Whitehead believed he was speaking to a manager from the Do-It-Center, not a government agent. Miranda does not apply.
Whitehead argues that Miranda warnings need not be given only where the defendant believes he is speaking to a confidant. No case so holds. Whether the defendant believes he is speaking to a confidant or a Do-It-Center manager, the coercive atmosphere implicit in a police interrogation is simply not present. As long as the defendant does not know he is speaking to a government agent, no Miranda warnings are necessary.
Whitehead argues a Do-It-Center manager may be viewed as an authority figure. But a Do-It-Center manager does not have the implicit power that a government agent has over a person in custody.
The trial court did not err in admitting incriminating statements made to Detective Fleming.
III
Whitehead contends the trial court erred in admitting evidence of his statements to Detective Richmond. He argues he did not knowingly waive his privilege against self-incrimination.
Detective Richmond began by engaging Whitehead in friendly conversation. They talked about such matters as Whiteheads job, his girlfriend, his parents, and swapped stories about sports injuries. During this friendly conversation, Whitehead mentioned that he was not supposed to be living with his girlfriend because she was receiving public housing assistance. Richmond replied, "I wont tell the [Housing] Department[]." Whitehead said, "Okay, I didnt know whether you would — okay." Richmond said, "What we talk about is between you and I."
After more friendly conversation, Detective Richmond said, "[U]nfortunately I got to get to this boring formality." Richmond said Whitehead was suspected of violating section 207. Richmond then read Whitehead his Miranda rights. Whitehead said he understood each of the rights, and asked if he was being arrested. Richmond told him that he had been arrested. Whitehead asked what is a "207." Richmond replied, "Well its about taking — giving a person a ride . . . ." Richmond asked if Whitehead would like to talk about it. Whitehead said, "I would love to, but I dont think theres anything there." Whereupon Whitehead made incriminating statements to Richmond.
The prosecution has the burden of proving by a preponderance of the evidence that an admission or confession was voluntary. (People v. Williams (1997) 16 Cal.4th 635, 659.) In deciding the question of voluntariness, we must consider the totality of the circumstances. (Id. at p. 660.) An express written or oral waiver of the right to remain silent or the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver. (People v. Whitson (1998) 17 Cal.4th 229, 246.) The question is whether the defendant knowingly and voluntarily waived the rights delineated in Miranda. (Ibid.)
Here Whitehead expressly stated he understood his Miranda rights, and when Richmond asked him if he wanted to talk, he said, "I would love to . . . ." That is tantamount to an express waiver of his rights.
Whitehead attempts to make much of Richmonds statement, "What we talk about is between you and I." But Richmond made that statement during friendly conversation prior to giving Whitehead his Miranda rights. Taken in context, the statement refers to Whiteheads living with his girlfriend in public assisted housing. It does not refer to incriminating statements Whitehead made after he was given Miranda warnings. Whitehead said he understood the Miranda warnings. Those warnings include the admonition that anything he says may be used against him in a court of law.
Whitehead also points to Richmonds characterization of Miranda warnings as a "boring formality." Of course, it was inappropriate for Richmond to attempt to denigrate the importance of Miranda rights. Nevertheless, Whitehead said he understood those rights. There is nothing to indicate he did not.
Finally, Whitehead points to Richmonds description of section 207 as, "giving a person a ride . . . ." But Whitehead must have known that simply giving a person a ride was not a crime. After Richmond told Whitehead what section 207 was, Whitehead appeared to know precisely to what Richmond was referring. Whitehead initially tried to explain his innocence, but later admitted he touched Kailynn for his sexual gratification.
The trial court did not err in finding Whiteheads statements voluntary. Whiteheads reliance on People v. Honeycutt (1977) 20 Cal.3d 150, is misplaced. There the defendant was subjected to what is commonly referred to as the good cop — bad cop routine. (Id. at p. 160.) The good cop engaged the defendant in ingratiating conversation, disparaged the victim, and persuaded the defendant to agree to talk about the crime before Miranda warnings were given. Under the circumstances, the court concluded the defendant did not voluntarily waive his rights. Here Detective Richmond did not use a good cop — bad cop routine, did not disparage the victim, and Whitehead did not agree to talk about the crime until after he received Miranda warnings.
IV
Whitehead contends the trial court erred by refusing his proposed jury instruction. Whiteheads proposed instruction stated: "In determining the believability of the defendants alleged oral admissions or confession, you may consider any of the evidence surrounding the defendants interrogation, together with any psychological factor in making such admissions or confession."
The trial court rejected the instruction on the ground that although Crane v. Kentucky (1986) 476 U.S. 683, 689, states such evidence is admissible, it does not require such an instruction.
Even if the trial court erred in rejecting the proposed instruction, the error was harmless. The jury was instructed with CALJIC No. 2.70, which provides in part: "You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part. [¶] Evidence of an oral confession or an oral admission of the defendant not made in court should be viewed with caution."
In addition, Whitehead cross-examined Detectives Richmond and Fleming on the circumstances surrounding the interrogation. Whitehead also argued to the jurors, without objection, that they should consider the circumstances under which he made the confession and admissions. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [refusal to give pinpoint instruction harmless where nothing in the standard instructions precluded the jury from considering defendants point, and counsels argument to the jury fully explicated the point].)
V
Finally, Whitehead contends the prosecutor committed misconduct by cross-examining Whitehead on whether Kailynn was lying. Kailynn testified she told Whitehead she was 13 years old before she got into his truck. Whitehead testified she did not tell him her age until after she got into his truck. The prosecutor asked Whitehead twice on cross-examination whether Kailynn was lying. Both times the trial court sustained Whiteheads objection to the question as argumentative.
If the questions constituted misconduct, it was harmless by any standard. The victims testimony was credible and Whitehead made a confession and admissions. There is nothing to suggest that the prosecutors "is she lying" questions had any affect on the outcome of the case.
The judgment is affirmed.
We concur:
YEGAN, J.
PERREN, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise stated.