Opinion
B300662
05-26-2021
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BEESON, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA103180 APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
An amended information charged defendant and appellant Anthony Beeson (defendant) with one count of forcible rape of a child victim over 14 years of age (Pen. Code, § 261, subd. (a)(2)) (count 1), three counts of forcible oral copulation on a minor victim over 14 years of age (former § 288a, subd. (c)(2)(C)) (counts 2-4), and one count of sexual penetration by foreign object of a child victim over 14 (§ 289, subd. (a)(1)(C)) (count 5). As to all counts, the information alleged that defendant had used a knife during the commission of the offense, that defendant kidnapped the victim, that movement of the victim substantially increased her risk of harm, and that defendant had previously been convicted of forcible oral copulation within the meaning of section 667.61, subdivisions (d) and (l). The information further alleged that defendant had one prior serious and violent felony conviction (§§ 667, subd. (d), 1170.12, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)), two prior felony convictions (§ 1203, subd. (e)(4)), and one prior felony conviction for which he had served a prison term and failed to remain free of custody for a period of five years (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless stated otherwise.
The jury found defendant guilty of the lesser included offenses of assault with intent to commit forcible rape, battery, and assault as to count 1; the lesser offenses of assault with intent to commit forcible oral copulation, assault, and battery as to count 2; and guilty as charged on counts 3 through 5. The jury found the use of a knife allegation not to be true but found the other special allegations to be true.
In a bifurcated proceeding, the trial court found the prior conviction allegations to be true. Defendant was sentenced to life without the possibility of parole plus 12 years.
We affirm the judgment.
FACTUAL BACKGROUND
September 7, 2013 sexual assault
On September 7, 2013, 14-year-old Jane Doe went to a birthday party at a house in Covina with her younger brother Vincent, her father Michael, stepmother Anna, and Anna's granddaughter. A family friend, Robert Camposano, Sr. (Robert Sr.), his son Robert Camposano, Jr. (Robert Jr.), and Robert Sr.'s nephew, defendant, were also at the party. Defendant was 27 years old at the time.
We refer to the victim's family members by their first names to protect the minor victim's privacy.
Several children at the party, including Jane, went swimming in the pool. After swimming, Jane changed her clothes in a bathroom inside the house. She then watched television in the living room with her brother and another child. Jane's father and stepmother were in the backyard with other partygoers.
Defendant entered the living room and asked Jane where the bathroom was located. Jane initially ignored defendant, but when he asked a second time, she got up and showed him the door to the bathroom. When Jane turned and tried to walk away, defendant grabbed her by the arm and pushed her forcefully into the bathroom. Jane told defendant, "Please let me go," and began to cry.
Defendant pushed Jane against the bathroom wall and forced her to sit down. He then closed and locked the bathroom door. Jane testified that defendant held a knife in his hand and pointed it at her eye. He said he would kill her if she ran or screamed.
Defendant demanded that Jane orally copulate him. He grabbed Jane by the head and forced her to do so by moving her head back and forth.
Defendant then made Jane lie down on the floor and removed her shorts and underwear. He got on top Jane, placed his hands around her neck, and choked her, making it difficult for her to breathe. Defendant began to have sexual intercourse with Jane but stopped when someone knocked on the bathroom door. Defendant shouted out that he was using the bathroom, and the person knocking eventually left.
Defendant then stood Jane up and told her to bend over. When Jane did so, defendant digitally penetrated her vagina with his fingers. Defendant forced Jane to orally copulate him once more. He also orally copulated Jane's genital area. Before exiting the bathroom, defendant again threatened to kill Jane if she looked at him "with a scared face."
After defendant exited the bathroom, Jane got dressed and left the bathroom. As she walked through the house she saw defendant leaving through the front door. Jane went to the backyard and told her stepmother and father had happened. When Jane's father yelled at her, "Why didn't you do anything," Jane responded that defendant had a knife.
Robert Sr. and Robert Jr. were both present when Jane disclosed the assault to her father. Robert Sr. and Robert Jr. accompanied Jane and her family to the front yard, where Jane pointed out defendant sitting in a car.
Jane's father pulled defendant out of the car and a physical altercation ensued between them. Defendant claimed that Jane "wanted me" and "she was all over me." Robert Sr. separated the two men and then slapped defendant. When he did so, Robert Sr. noticed what appeared to be three hickeys on defendant's neck. He was sure that defendant did not have the hickeys before the party.
Robert Jr. testified that he heard Robert Sr. tell Jane's father, "Hey dude, he has hickeys on his neck." Robert Jr. then looked at defendant's neck and observed marks that had not been there earlier in the day. Robert Jr. could not recall whether he mentioned the hickeys to the investigating police officer who later interviewed him about the incident.
Robert Sr. testified that he heard Jane's father ask her, "Why did you give him hickeys?" Robert Sr. heard Jane respond, "He put a knife like that to me and made me do it." Robert Sr. admitted that he never told the investigating officer about the hickeys, even though he believed that information would be important.
Detective Vega, the investigating officer in the case, testified that neither Robert Jr. nor Robert Sr. told her they had seen hickeys on defendant's neck on the night of the crime. The first time Vega heard about hickeys on defendant's neck was during the course of defendant's trial.
September 8, 2013 witness testimony
After the assault, Jane's parents took her to the police station and then to the hospital. Toyetta Beukes, director of the sexual assault response team at the San Gabriel Medical Center, examined Jane at approximately 2:00 a.m. on September 8, 2013. Beukes observed bruising under Jane's right eye, consistent with being choked, as well as bruises on Jane's right ear, neck, and knee. Burkes also observed a puncture wound on Jane's right leg and an incised shaped wound on the back of her neck. Both wounds were consistent with knife injuries. Jane's genital area had bruising and laceration consistent with blunt force trauma.
Defendant was on parole and wore an ankle monitor at the time of his September 7, 2013 assault on Jane. Defendant's parole agent, Esmeralda Zamora, received a notification about defendant's ankle monitor at approximately 10:25 p.m. on September 7, 2013. Zamora contacted defendant and instructed him to come to the parole office the following day.
Zamora met with defendant at 1:00 p.m. on September 8, 2013. She noticed injuries on defendant's face, as well as scratches on his cheek and neck. Defendant told Zamora he was physically attacked at a party by several men who noticed his ankle monitor. Defendant said the marks on his neck were hickeys from his girlfriend. Zamora testified, however, that the marks on defendant's neck were long, thin, straight scratches that did not resemble hickeys.
Defendant initially told Zamora that his ankle monitor had broken when he stepped hard on his vehicle's brake pedal during a tire blowout. When Zamora rejected defendant's explanation as implausible, defendant admitted to cutting off the ankle monitor and discarding it near the freeway. The ankle monitor was subsequently recovered approximately one mile from the parole office.
Defendant's then girlfriend, Virginia Lopez, saw defendant between 9:00 and 10:00 a.m. on September 8, 2013. She noticed bruising on defendant's face and purple marks on his neck and jaw. Defendant told her he had kissed a girl at a party and someone had hit him. Virginia believed the bruises and marks she observed on defendant's face and neck were injuries sustained when he was beaten.
Uncharged prior acts
2007 attempted assault of Elisa Doe
Elisa Doe testified that on November 29, 2007, at approximately 11:15 p.m., she received a call from her friend Frank. Frank said that he had been drinking and had vomited in his truck. He asked Elisa if he could stop by for some water and to borrow a towel. Frank parked across the street from Elisa's home and walked to her door. He told Elisa that defendant was in the truck. Elisa knew defendant, with whom she had been physically intimate in the past, but she had not seen him for several months.
Approximately 30 minutes after Frank left, defendant entered uninvited into Elisa's home through the back door and sat down on a couch in the living room. Elisa asked defendant to leave. When defendant did not do so, Elisa yelled at him to "get out" and attempted to push him toward the back door. A struggle ensued. Defendant grabbed Elisa's arms and moved behind her. He then placed his right forearm against her neck and his left hand over her mouth and said, "I'm just going to kiss you." Defendant pushed Elisa into her bedroom, where she fell against her bed and then onto the floor. Elisa tried to scream but could not breathe. She kicked the bedroom wall to alert her aunt, who was in the next room. Elisa's mother and her mother's boyfriend were also in the house at the time. Elisa's aunt entered the bedroom while Elisa was on the floor and defendant was choking her. Elisa's aunt screamed for help and then ran to telephone the police. Elisa's mother's boyfriend detained defendant until the police arrived.
Alfred Jaime, a detective with the Special Victim's Bureau Division of the Los Angeles County Sheriff's Department, testified that he responded to Elisa's home on November 29, 2007. He saw Elisa was crying and observed redness and scratch marks on her neck. Jaime detained defendant and then transported him to the Pico Rivera station. While in the car, Jaime advised defendant of his Miranda rights. When they arrived at the station, Jaime gave defendant a second Miranda advisement. Jaime stated that he and defendant discussed defendant's knowledge of chokeholds. Jaime testified that defendant told him "that he [(defendant)] was a high school wrestler and he knew what a chokehold could do."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Elisa suffered bruises on her neck and enlarged blood vessels on her face as a result of defendant's assault. She also experienced neck pain for several days.
2005 sexual assault of Klariza Doe
Klariza Doe testified that she and defendant were close friends for two to three years and had been sexually intimate in the past. On May 21, 2005, between 2:00 and 3:00 a.m., defendant called Klariza and said he wanted to hang out with her. Klariza, who was on her way home, told defendant it was too late and hung up. Defendant continued to call Klariza and she continued to tell him no. When Klariza arrived at her home, defendant called her again and said he was outside. Klariza opened the front door and saw defendant standing there. Defendant told Klariza that he really wanted to hang out with her, so Klariza finally agreed. Klariza understood "hanging out" with defendant to mean talking and watching television. She told her grandmother she was going out with defendant and walked outside with him.
Klariza thought they were going to defendant's uncle's home nearby, but they went to an adjacent motel instead. Defendant told Klariza he had been kicked out of the home and was renting a room in the motel. When they arrived at the motel room, defendant turned on the television. Klariza went to the bathroom to splash water on her face. When she walked out of the bathroom, defendant said, "You know why you are here. You know exactly why I called you." Klariza told defendant she did not know what he was talking about, but he grabbed her and began choking her on the bed. Klariza could not breathe and blacked out. When she regained consciousness, defendant told Klariza to undress. She obeyed. Defendant then undressed and sexually assaulted her, engaging in forceful intercourse while Klariza cried and asked him to stop. Defendant then grabbed Klariza's head and forced her to orally copulate him. Defendant also put his mouth and fingers on Klariza's anus.
When defendant allowed Klariza to leave, he offered her money and told her not to call the police. Klariza dressed, walked home, and told her grandmother what had happened. She also called her boyfriend, who urged her to go to the hospital. Klariza did so and underwent a sexual assault examination. The nurse practitioner who examined Klariza observed injuries on Klariza's neck, shoulder, and vagina. Klariza also sustained injuries inside the top her mouth and in the back of her throat caused by blunt force trauma.
CONTENTIONS ON APPEAL
Defendant raises the following contentions on appeal:
I. The trial court erred by failing to instruct the jury, sua sponte, on unlawful intercourse with a minor, unlawful oral copulation with a minor, and unlawful sexual penetration with a minor as lesser included offenses of forcible rape, forcible oral copulation, and forcible sexual penetration.
II. There was insufficient evidence to support the jury's finding of aggravated kidnapping.
III. The trial court committed the following prejudicial evidentiary errors:
A. Admitting into evidence defendant's admission during a custodial interview that he had been a high school wrestler and knew about chokeholds, because the prosecution failed to establish that defendant had been advised of his rights under Miranda, supra, 384 U.S. 436.
B. Admitting into evidence defendant's prior uncharged sexual offenses as it was unduly prejudicial and deprived defendant of due process and a fair trial.
C. Excluding evidence of Klariza's sexual history as it was prejudicial to the defense.
IV. The trial court erred by denying defendant's motion for a new trial based on alleged error under Brady v. Maryland (1963) 373 U.S. 83 (Brady).
V. Defendant was denied effective assistance of counsel at trial.
DISCUSSION
I. Alleged instructional error
The trial court instructed the jury on assault with intent to commit a felony, simple assault, and simple battery as lesser included offenses on counts 1 through 5. No other lesser included offense instructions were given.
A. Applicable law and standard of review
A trial court has a sua sponte duty to instruct the jury on a lesser included offense when there is substantial evidence that the lesser offense, but not the greater, was committed. (People v. Bell (2019) 7 Cal.5th 70, 108.) There are two tests for determining whether a lesser offense is necessarily included in another offense—the elements test and the accusatory pleading test. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Ibid.) Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the charging allegations of the accusatory pleading describe the offense in such a way that if committed as described, the lesser offense is necessarily committed. (People v. Lopez (1998) 19 Cal.4th 282, 288.) We review de novo whether the trial court failed to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
B. Unlawful sexual intercourse with a minor
We reject defendant's contention that unlawful intercourse with a minor is a lesser included offense of forcible rape under the accusatory pleading test in this case.
Unlawful sexual intercourse with a minor (§ 261.5) is not a lesser included offense of forcible rape (§ 261) under the elements test. (People v. Woods (2015) 241 Cal.App.4th 461, 479.)
The elements of unlawful intercourse with a minor are (1) the defendant had sexual intercourse with another person, (2) the defendant and the other person were not married to each other at the time, and (3) at the time of intercourse, one of the following factual scenarios existed: (a) the defendant was 21 years of age or older and the victim was under the age of 16, (b) the defendant was more than three years older than the victim and the victim was under the age of 18, or (c) the defendant was not more than three years older or younger than the victim and the victim was under the age of 18. (§ 261.5; People v. Woods, supra, 241 Cal.App.4th at p. 478.)
The charging allegations of the amended complaint in this case do not include all of the elements of unlawful intercourse with a minor under section 261.5. Count 1 of the amended information states in relevant part:
"On or about September 7, 2013, in the County of Los Angeles, the crime of FORCIBLE RAPE-CHILD VICTIM OVER 14 YEARS, in violation of PENAL CODE SECTION 261(a)(2), a Felony, was committed by ANTHONY BEESON, who did unlawfully have and accomplish an act of sexual intercourse with a person, to wit, JANE DOE, not his/her spouse, against said person's will, by means of force, violence, duress, menace and fear of immediate
and unlawful bodily injury on said person and another.
"It is further alleged that the victim was a child, 14 years of age and older."
Defendant's age is not set forth in the charging allegations for count 1, or in the charging allegations for any other count. The specific age of the victim, Jane Doe, is also absent, as is the age difference between defendant and the victim. Unlawful intercourse with a minor accordingly is not a lesser included offense of forcible rape under the accusatory pleading test in this case. (See People v. Scott (2000) 83 Cal.App.4th 784, 794 ["nonforcible sex crimes require the perpetrator and victim to be within certain age limits while the forcible sex crimes do not . . . ; thus, the nonforcible crimes are not lesser included offenses of the forcible sex crimes"].)
We are unpersuaded by defendant's argument that his date of birth, which appears in the caption of the amended information, and the general description of the victim's age ("a child, 14 years of age or older"), are sufficient to establish that defendant was 27 years old at the time of the offense and more than three years older than the victim. Defendant cites no authority, and we are aware of none, authorizing use of caption information in a charging document when applying the accusatory pleading test. People v. Biane (2013) 58 Cal.4th 381 and People v. Ortega (2015) 240 Cal.App.4th 956, on which defendant relies, are inapposite. In Biane, our Supreme Court held that an accusatory pleading should be read liberally and in context when considering an appeal from a judgment granting the defendant's demurrer challenging the sufficiency of a criminal indictment. (Biane, at pp. 386-389.) Biane did not authorize the use of information in the caption of the accusatory pleading to establish the elements of a charged offense. The court in Ortega applied an "expanded accusatory pleading test" to include evidence adduced at the preliminary hearing. (Ortega, at p. 967.) Defendant does not rely on such evidence in this case.
Established case authority is contrary to defendant's position. Courts have held, for example, that enhancement allegations on a charged offense should not be considered part of the accusatory pleading for purposes of defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 96; People v. Woods, supra, 241 Cal.App.4th at p. 480; People v. Bragg (2008) 161 Cal.App.4th 1385, 1398.) In light of this authority, we decline to consider information in the caption of the amended information as part of the charging allegations for purposes of defining lesser included offenses.
C. Unlawful oral copulation with a minor and unlawful sexual penetration of a minor
The Attorney General concedes that nonforcible oral copulation with a minor (former § 288a, subd. (b)(1)) was a lesser included offense of forcible oral copulation of a minor over the age of 14, and that nonforcible sexual penetration of a minor (§ 289, subd. (h)) was a lesser included offense of forcible sexual penetration of a minor over 14 years old in this case. As we discuss below, failure to instruct on these lesser offenses was harmless.
The trial court's failure to instruct on any lesser offenses, even if erroneous, was harmless given the substantial evidence that defendant used force and duress to sexually assault the victim in this case. (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)
Jane testified that defendant grabbed her by the arm, forcefully pushed her into the bathroom, and threatened to kill her if she resisted. Jane said that defendant shoved her against the wall and then to the floor and forced her to orally copulate him by moving her head back and forth with his hand. Jane further testified that defendant choked her, making it difficult for her to breathe, while sexually penetrating her. Jane's testimony was corroborated by a sexual assault examination, which revealed bruising and scratches on her arms, legs, neck, chin, and genital area, injuries consistent with forcible sexual assault. Jane's account of the assault was further corroborated by testimony from victims of defendant's previous sexual assaults. Klariza and Elisa both testified that defendant choked them while sexually assaulting them.
The evidence of nonforcible, consensual sexual contact, in contrast, was comparatively weak. Although defendant's relatives, Robert Sr. and Robert Jr., testified that they observed what appeared to be hickeys on defendant's neck on the night of the crime, neither disclosed their observations when interviewed by law enforcement soon after the crime. Jane's father, who accosted defendant immediately after Jane's assault, did not observe any hickeys on defendant. Defendant's parole officer, who met with defendant the day after the crime, saw long, thin scratches on defendant's neck that did not resemble hickeys.
Moreover, the jury's verdict on all five counts against defendant reflects a consensus that defendant acted forcibly in sexually assaulting Jane. By finding defendant guilty of the lesser included offenses of assault with intent to commit forcible rape and assault with intent to commit forcible oral copulation on counts 1 and 2, the jury necessarily found that when defendant acted, "he intended to commit forcible rape, forcible oral copulation and forcible sexual penetration." (CALCRIM No. 890.) The jury's true finding on the aggravated kidnapping allegation as to counts 3 through 5 (forcible oral copulation on a minor victim and sexual penetration by foreign object of a minor victim) similarly resolved the issue of force as to those counts.
Examination of the record as a whole supports the conclusion that defendant would not have obtained a more favorable outcome had the jury been instructed on the lesser offenses. (People v. Watson (1956) 46 Cal.2d 818, 836; see Breverman, supra, 19 Cal.4th at p. 177.)
II. Substantial evidence supports the aggravated kidnapping finding
To prove the aggravated kidnapping enhancement under section 667.61, the prosecution must establish two elements: (1) a simple kidnapping (§ 207, subd. (a)), and (2) a substantial increase in the risk of harm to the victim. (People v. Diaz (2000) 78 Cal.App.4th 243, 246.) "To establish the asportation element for the aggravated kidnapping enhancement, the prosecution must show (1) the movement was substantial in character, and not merely incidental to the commission of the sex crime [citation], and (2) 'the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying' sex offense." (People v. Perkins (2016) 5 Cal.App.5th 454, 466.) "The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Our Supreme Court has "articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes. . . . [N]o minimum distance is required to satisfy the asportation requirement . . . , so long as the movement is substantial . . . ." (Ibid., citations omitted.)
To prove simple kidnapping under section 207, subdivision (a), the prosecution must establish three elements: (1) a person was unlawfully moved by use of physical force or fear, (2) the movement was nonconsensual, and (3) the movement of the person was for a substantial distance. (People v. Bell (2009) 179 Cal.App.4th 428, 435.)
There is ample evidence that defendant's movement of Jane was substantial in character and substantially increased her risk of harm. Jane testified that when defendant persisted in asking her the location of the bathroom, she got up from the couch in the living room, entered an adjacent hallway, and pointed to the bathroom. She estimated the distance from her location in the hallway to the bathroom to be approximately five feet. When Jane turned to leave, defendant grabbed her by the arm and pushed her forcefully into the bathroom. Defendant then closed and locked the door and committed multiple forcible sex crimes against Jane. Defendant paused when someone knocked on the bathroom door, but when that person left, defendant resumed sexually assaulting Jane. The record shows that defendant's movement of Jane into a locked bathroom decreased the likelihood of detection, enhanced his opportunity to commit multiple crimes, and substantially increased Jane's risk of harm.
People v. Perkins, supra, 5 Cal.App.5th 454, on which defendant relies, is distinguishable. The defendant in that case sexually assaulted the minor victim in a one-bedroom apartment while the victim's mother was away. The victim was asleep in the living room with her sister when the defendant told the victim to go into the bathroom, where he sodomized her. He then told the victim to enter the bedroom, where he sodomized and raped her. (Id. at pp. 459-460.) The court in Perkins reversed the aggravated kidnapping enhancement, concluding there was no evidence the movement increased the danger to the victim's foreseeable attempts to escape, or enhanced the defendant's opportunity to commit more crimes. (Id. at p. 470.) Here, in contrast, defendant sexually assaulted Jane in a locked bathroom a few feet away from where her brother and another child were watching television. Jane's parents and other adults were in the backyard, and other adults were entering and exiting the house. One person attempted to enter the bathroom while defendant was sexually assaulting Jane. Defendant's movement of Jane into a locked bathroom gave him both privacy and the opportunity to commit multiple sexual assaults, substantially increasing the danger to Jane. Substantial evidence supports the jury's finding on the aggravated kidnapping enhancement.
III. Alleged evidentiary errors
We review a trial court's ruling on the admissibility of evidence under the abuse of discretion standard. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Abuse of discretion means the court "'"exercised its discretion in an arbitrary, capricious, or patently absurd manner,"'" resulting "'"in a manifest miscarriage of justice."'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) Discretion is abused only if "the trial court's decision was so erroneous that it 'falls outside the bounds of reason.'" (Ibid.)
A. Chokehold admission
Defendant contends the trial court erred in admitting his statements to Deputy Jaime that he was a high school wrestler and that he knew the effects of a chokehold. Defendant maintains that evidence was improperly admitted because the prosecutor failed to establish that the statements were obtained after defendant was advised of his Miranda rights.
1. Applicable law and standard of review
Pursuant to Miranda, a suspect taken into custody "'must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' (Miranda, supra, 384 U.S. at p. 479.) [¶] It is well settled, however, that after the familiar Miranda advisements are given, a suspect can waive his or her constitutional rights. [Citation.] To establish a valid Miranda waiver, the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation." (People v. Linton (2013) 56 Cal.4th 1146, 1171.)
"'On appeal, we review independently the trial court's legal determinations of whether a defendant's . . . Miranda waivers were knowingly, intelligently, and voluntarily made [citation], and whether his later actions constituted an invocation of his right to silence [citation]. We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers, and "'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.'"'" (People v. Krebs (2019) 8 Cal.5th 265, 299.)
2. Proceedings below
Before Detective Jaime testified, defense counsel objected to the detective's anticipated testimony that defendant was familiar with chokeholds because he had been a wrestler in high school. Defense counsel explained that it was unclear whether defendant had made that statement before being given a Miranda advisement.
Detective Jaime initially could not recall, when questioned by the trial court, whether defendant's statement was made before or after a Miranda advisement. The trial court then held an Evidence Code section 402 hearing. Jaime reviewed his contemporaneously written report of defendant's custodial interview, in which Jaime had written, "without any questioning from me, he volunteered a statement." Jaime then testified that he gave defendant a Miranda advisement while transporting him to the police station, that defendant waived his rights and agreed to speak to Jaime, but that Jaime did not question defendant while they were in the car. Jaime further testified that defendant volunteered the information about his wrestling experience.
After hearing argument from counsel, the trial court found that defendant's statement was made after a Miranda advisement and was admissible.
3. Substantial evidence supports the trial court's finding
Substantial evidence supports the trial court's finding that defendant's statement about his wrestling experience was made after a Miranda advisement. Although Detective Jaime could not initially recall whether defendant had made the statement before or after the advisement, his memory was refreshed after reviewing his contemporaneous report of the custodial interview. He recalled giving defendant a Miranda advisement in the car while en route to the police station. Defendant waived his rights and agreed to talk. Jaime specifically recalled that he did not question defendant in the car because he had written in his report that defendant volunteered a statement without any questioning.
The trial court did not err by admitting defendant's statement.
B. Prior uncharged sexual offenses
1. Applicable law and standard of review
Evidence of an uncharged sexual offense is admissible under Evidence Code section 1108. Subdivision (a) of Evidence Code section 1108 provides that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Evidence Code section 352 gives a court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Evidence Code section 1101 makes inadmissible character evidence offered to prove a defendant's "conduct on a specified occasion," with the exception of "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act" or to "support or attack the credibility of a witness."
Factors to be considered by a trial court when considering admissibility of the evidence in an Evidence Code section 1108 case are "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) A trial court balances the first factor—the propensity evidence's probative value—against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors. (Ibid.)
We review defendant's challenge to the admission of his prior sexual offenses under the abuse of discretion standard. (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
2. Proceedings below
At a pretrial hearing, defense counsel argued the prosecution's proffered evidence of defendant's prior sexual offenses against Klariza in 2005 and Elisa in 2007 should be excluded as impermissible character evidence and for its prejudicial effect and potential for jury confusion. The trial court ruled that the 2005 incident, which included a conviction for forcible oral copulation, was admissible under Evidence Code section 1108. The court tentatively ruled to exclude evidence of the 2007 incident against Elisa but agreed to revisit the issue.
At a subsequent hearing, the prosecutor presented additional facts concerning the 2007 incident, including information from the police report that defendant had placed one hand on Elisa's mouth and another hand on her throat, forcing her onto the bed and saying he wanted to kiss her. After hearing argument from both sides, the trial court ruled the evidence of defendant's assault against Elisa admissible.
3. Constitutionality of Evidence Code section 1108
The California Supreme Court has previously rejected the argument defendant raises in this appeal—that admitting his prior uncharged offenses into evidence deprived him of due process and a fair trial. In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court ruled that Evidence Code "section 1108 is constitutionally valid." (Falsetta, at p. 907.) We are bound by that ruling and decline defendant's request that we reexamine the issue.
4. No abuse of discretion
The record discloses no abuse of discretion by the trial court. The evidence of defendant's prior uncharged sexual offenses was highly probative. The offenses against Elisa and Klariza shared significant similarities with his assault against Jane. Elisa testified that defendant entered her home, grabbed her arm, placed her in a chokehold, covered her mouth, and attempted to push her onto her bed while repeatedly stating he wanted to kiss her. Klariza testified that defendant lured her to a motel room, choked her until she lost consciousness, and then sexually assaulted her. Jane similarly testified that defendant grabbed her by the arm, forced her into the bathroom, and choked her while sexually assaulting her. In all three cases, defendant forced the victims into an isolated location and choked them while sexually assaulting them. Given the similarities between the offenses, evidence of defendant's assaults of Elisa and Klariza was highly probative of his sexual assault of Jane. (See People v. Soto (1998) 64 Cal.App.4th 966, 989 ["'A defendant with a propensity to commit acts similar to the charged crime is more likely to have committed the charged crime than another.'"].)
We disagree with defendant's assertion that "significant differences" between the prior offenses and his sexual assaults against Jane weighed in favor of excluding the prior offense evidence. Defendant's prior sexual relationships with Elisa and Klariza, and the narrower age differential between him and the prior victims, are not sufficient grounds for excluding evidence of the prior offenses. Any dissimilarities between the prior offenses and defendant's sexual assaults against Jane go to the weight of the evidence, not its admissibility. (People v. Hernandez (2011) 200 Cal.App.4th 953, 967.)
The propensity evidence involving Elisa and Klariza was not stronger or more inflammatory than the evidence of the charged allegations against defendant concerning Jane. Klariza and Elisa were both adults when they were attacked by defendant, whereas Jane was a 14-year-old child when she was sexually assaulted. Defendant was unarmed during his attacks against Klariza and Elisa. Jane, on the other hand, testified that defendant held a knife and threatened to kill her during the assault. Jane also testified in detail about the specific sexual offenses defendant committed against her. Given these differences, the trial court's admission of the prior offense evidence presented minimal, if any, probability of prejudice. (See People v. Tran (2011) 51 Cal.4th 1040, 1047 [potential for prejudice diminished when evidence of the defendant's uncharged acts is no stronger or more inflammatory than evidence of the charged offense].)
Defendant concedes that prior uncharged conduct involving Klariza and Elisa was not remote or stale. Although the prior offenses occurred in 2005 and 2007, and the charged offenses in September 2013, defendant was incarcerated during most of the intervening time between 2008 and 2013.
C. Klariza's sexual history
Defendant contends the trial court erred by excluding evidence of Klariza's sexual history to impeach her credibility under Evidence Code section 782. He further contends the alleged evidentiary error violated his constitutional rights to due process, confrontation of witnesses, and ability to present a defense.
1. Applicable law and standard of review
A defendant generally cannot question the victim of an alleged sex crime about the victim's prior sexual activity. (Evid. Code, § 1103, subd. (c)(1); People v. Bautista (2008) 163 Cal.App.4th 762, 781.) Evidence Code section 782 provides a limited exception to this rule when a victim's prior sexual activity is relevant to the victim's credibility. (§§ 782, 1103, subd. (c)(4); People v. Chandler (1997) 56 Cal.App.4th 703, 707 (Chandler).)
Evidence Code section 782 sets forth a procedure that includes a hearing outside the jury's presence to determine the admissibility of the complaining witness's sexual conduct. (Chandler, supra, 56 Cal.App.4th at p. 708.) If the trial court finds the evidence relevant to the complaining witness's credibility and not inadmissible under Evidence Code section 352, the court may issue an order stating what evidence may be introduced and the nature of the questions permitted. (Evid. Code, § 782; People v. Daggett (1990) 225 Cal.App.3d 751, 757.) Under Evidence Code section 352, the trial court must evaluate the probative value of the proffered evidence against its prejudicial effect. (Chandler, supra, at p. 711.) A trial court's ruling on the admissibility of a victim's prior sexual conduct is reviewed for abuse of discretion (ibid.), as is its ruling on the inadmissibility of evidence under Evidence Code section 352. (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
2. Proceedings below
In a pretrial motion filed pursuant to Evidence Code section 782, defendant sought to introduce three witnesses who would testify that Klariza was promiscuous, sexually aggressive, and enjoyed engaging in "rough sex." At the hearing on the motion, the trial court noted that Klariza's credibility was not at issue because defendant had pled guilty to forcible oral copulation against her. Defense counsel argued that Klariza's credibility was an issue because defendant pled guilty to only one of several counts, and there were many reasons why he could have done so. The trial court ruled the evidence inadmissible under Evidence Code section 352, reasoning that Klariza's sexual conduct did not preclude the possibility that she was sexually attacked, that defendant had admitted to at least one incident of forcible conduct during the incident with Klariza, and that asking the jury to find that all of the acts against her were consensual with the exception of a single forcible act would be "an unreasonable way to look at that evidence."
During the trial, the sexual assault nurse who examined Klariza after defendant's assault testified that she observed injuries to Klariza's neck, shoulder, and vagina, consistent with Klariza's account that defendant had attacked her. After that testimony, the trial court revisited the admissibility of the proposed Evidence Code section 782 evidence. The court stated that its only concern was whether the proposed witnesses had engaged in aggressive sexual activity with Klariza near the time of her assault by defendant to counter the sexual assault nurse's opinion that the trauma she observed was consistent with Klariza's claim that defendant had sexually assaulted her. Defense counsel stated that the incidents involving the Evidence Code section 782 witnesses had occurred several years before defendant's 2005 assault of Klariza. Based on the remoteness in time between the Evidence Code section 782 incidents and defendant's assault of Klariza, the trial court ruled to exclude the proposed evidence.
3. No abuse of discretion
Klariza's sexual history, including her purported preference for "rough sex," had limited relevance, if any, to her credibility as to whether she engaged in nonconsensual sex with defendant. (People v. Blackburn (1976) 56 Cal.App.3d 685, 690 [relevance of rape victim's past sexual conduct with persons other than the defendant to the issue of her consent to a particular sex act with the defendant "is slight at best"].) As the trial court noted, consent was not a relevant issue given defendant's guilty plea to forcible oral copulation against Klariza, thereby admitting the nonconsensual nature of his sexual contact with her. Defendant fails to establish any abuse of discretion by the trial court.
Defendant also fails to establish any constitutional error. As our Supreme Court has explained, "the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "[T]he exclusion of impeachment evidence on collateral matters, which have only a slight probative value on a witness's veracity, does not infringe on the right to confrontation." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 751.) IV. Alleged Brady error
For reasons discussed below, we reject defendant's claim that the trial court erred by denying his motion for a new trial based on the prosecutor's failure to disclose allegedly exculpatory photographic evidence from defendant's cell phone, in violation of Brady, supra, 373 U.S. 83.
A. Applicable law and standard of review
The prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeachment evidence. (Brady, supra, 373 U.S. at p. 87; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.)
"'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" (People v. Salazar (2005) 35 Cal.4th 1031, 1043, quoting Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
Prejudice "focuses on 'the materiality of the evidence to the issue of guilt or innocence.'" (People v. Salazar, supra, 35 Cal.4th at p. 1043.) Evidence is material when there is a reasonable probability that had it been disclosed, the result of the trial could have been different. (People v. Jenkins (2000) 22 Cal.4th 900 954.) "A 'reasonable probability' of a different result" is one in which the suppressed evidence "'undermines confidence in the outcome of the trial.'" (Kyles v. Whitley (1995) 514 U.S. 419, 434.) "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (United States v. Agurs (1976) 427 U.S. 97, 109-110.)
Defendant has the burden of establishing the elements of a Brady violation. (People v. Jimenez (2019) 32 Cal.App.5th 409, 418.) We independently determine whether a Brady violation occurred but accord great weight to the trial court's factual findings that are supported by substantial evidence. (Ibid.)
B. Proceedings below
Defendant filed a new trial motion on the ground that the prosecution failed to provide exculpatory evidence during discovery. He argued that Detective Vega had possession of defendant's cell phone from September 16, 2013 to October 29, 2015, and the phone contained digital photographs taken the day after Jane's assault showing marks on defendant's neck that were consistent with hickeys, evidence of consensual sex. Defendant's motion was supported by defense counsel's declaration, in which she attested to making several discovery requests, including specific requests for defendant's cell phone because she wanted to examine the phone for photographs. Defendant's motion was also supported by a declaration from Dr. Ryan O'Conner, who opined that the marks on defendant's neck shown in the photographs were consistent with bruising from a "hickey." Dr. O'Conner's declaration further stated, however, that the marks on defendant's neck "could also represent abrasions, possibly fingernail scratches." The motion was also supported by a declaration from Lopez, defendant's then girlfriend, who stated that she used defendant's cell phone to take photographs of defendant's neck on September 8, 2013. Lopez further stated in her declaration that had she been shown the photographs at trial, "they would have refreshed my memory as to [defendant's] appearance, specifically the marks on his neck."
The prosecutor opposed defendant's motion, arguing that the photographic evidence was not exculpatory but was consistent with testimony by Jane's father that he had physically attacked defendant after Jane disclosed the sexual assault, and with testimony by defendant's parole officer that she saw scratches on defendant's neck that did not resemble hickeys. The prosecutor further argued the evidence was never suppressed because defendant knew the phone was in Detective Vega's possession but never disclosed the existence of any exculpatory photographs or requested that the photographs be retrieved. The prosecutor also submitted a declaration disputing defense counsel's claim that she had made a specific pretrial request for defendant's cell phone. In her declaration, the prosecutor stated that the first discussion she had with defense counsel concerning defendant's cell phone occurred on the date of defendant's sentencing hearing.
At the hearing on defendant's motion, the trial court noted that even assuming the marks on defendant's neck were hickeys, "that doesn't necessarily equate to consent for a forcible sexual act." The court found the evidence was exculpatory but ruled that no Brady violation occurred because both sides were aware of its existence, including defendant.
C. No Brady error
Defendant fails to establish that the prosecution committed a Brady error by failing to disclose allegedly exculpatory photographs on defendant's own cell phone. "'[W]here the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense.'" (Raley v. Ylst (9th Cir. 2006) 470 F.3d 792, 804 (Raley).) "Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it '"by the exercise of reasonable diligence."'" (People v. Salazar, supra, 35 Cal.4th at pp. 1048-1049.)
"Consequently, 'when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.'" (People v. Morrison (2004) 34 Cal.4th 698, 715.) Evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it by the existence of reasonable diligence. (Ibid.)
No Brady violation occurred. Defendant was aware of the allegedly exculpatory evidence, as he posed for the photographs taken with his cell phone the day after he sexually assaulted Jane. (People v. Morrison, supra, 34 Cal.4th at p. 715; see Raley, supra, 470 F.3d at p. 804 [prosecution's failure to disclose allegedly exculpatory evidence in defendant's medical records from his pretrial confinement was not a Brady violation because defendant knew of his medical visits and knew he was taking prescribed medication].)
U.S. v. Howell (9th Cir. 2000) 231 F.3d 615 and Tennison v. City and County of San Francisco (9th Cir. 2009) 570 F.3d 1078 (Tennison), Ninth Circuit cases on which defendant relies, are both distinguishable. Prosecutors in Howell failed to disclose material mistakes in police reports erroneously stating that physical evidence was recovered from a codefendant rather than from the defendant's person, and the defendant's counsel relied on the erroneous information when preparing the case for trial. (Howell, supra, at p. 623.) The court in Howell concluded the nondisclosure was a Brady violation, even though the defendant knew the evidence actually had been recovered from him. (Id. at p. 624.) No such undisclosed error occurred here, and defendant's trial counsel did not rely on any erroneous information when preparing the case for trial.
In Tennison, police reports failed to include a witness's statement that the defendant was not present at the murder scene and that another person was the actual killer. (Tennison, supra, 570 F.3d at p. 1083.) The Ninth Circuit concluded a Brady violation had occurred because even if the defendant had information about the murder, that knowledge was not the same as the witness's extensive statements to the police. (Id. at p. 1091.) Here, in contrast, defendant not only knew of the existence of the photographs taken with his own cell phone, but could also have obtained them with the exercise of reasonable diligence.
Defendant fails to establish the elements of a Brady violation.
V. Ineffective assistance of counsel
A. Applicable law and standard of review
The Sixth Amendment right to assistance of counsel includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-696; see Cal. Const., art. I, § 15.) It is the defendant's burden to demonstrate that trial counsel was inadequate and that prejudice resulted. (Strickland, at pp. 687, 696.) Prejudice is shown by "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
Defendant contends his counsel rendered ineffective assistance by failing to obtain the cell phone evidence in a timely manner. To show ineffective assistance based on an alleged failure to investigate, defendant "must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) We review defendant's ineffective assistance of counsel claim de novo. (People v. Taylor (1984) 162 Cal.App.3d 720, 725.)
B. Proceedings below
After the denial of defendant's new trial motion based on alleged Brady error, the trial court appointed new counsel for defendant to prepare a second new trial motion based on ineffective assistance of counsel. Defendant's new counsel filed a motion for a new trial on June 18, 2019, alleging that previous counsel was ineffective for failing to file a timely discovery motion to compel production of defendant's cell phone.
After hearing argument by counsel, the trial court denied the motion, finding that defendant suffered no prejudice because the jury was able to consider the evidence of hickeys on defendant's neck through witness testimony and other photographic evidence.
C. No reversible error
Defendant fails to establish either ineffective assistance of counsel or resulting prejudice. The record shows that defendant's trial counsel knew that law enforcement had seized defendant's cell phone and that the phone may have contained relevant photographs. Defendant's trial counsel submitted a declaration stating she had made multiple inquiries about the location of the phone. Counsel made a tactical decision to proceed to trial without the cell phone evidence. Counsel's tactical decision was a reasonable one, given the availability of direct witness testimony from Robert Sr. and Robert Jr. (People v. Lucas (1995) 12 Cal.4th 415, 436-437 [courts defer to counsel's reasonable tactical decisions when reviewing ineffective assistance of counsel claims].) Both Robert Sr. and Robert Jr. testified that they observed defendant's neck before and after the crime, and that after Jane disclosed the assault and her father accosted defendant, they saw discolored marks on defendant's neck that appeared to be hickeys. Robert Sr. and Robert Jr. were shown both a photograph and a diagram of defendant's neck. They indicated areas where they observed hickeys on defendant's neck. The photograph and diagram were admitted into evidence and available to the jury. Defendant was not precluded from presenting evidence of hickeys on his neck or that the sexual encounter with Jane was consensual. He fails to establish that trial counsel's failure to obtain the cell phone evidence denied him effective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT