Opinion
F073021
01-10-2018
THE PEOPLE, Plaintiff and Respondent, v. SCOTTIE DOVA CARTER, Defendant and Appellant.
Jonathan Emanuel Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160257A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Jonathan Emanuel Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Scottie Dova Carter appeals from a judgment of conviction for crimes involving the rape of a 14-year-old girl. He contends the trial court erred by failing to conduct a hearing regarding his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)—a claim we reject as meritless. Carter also challenges the trial court's ruling on a hearsay objection but fails to show he was prejudiced by the alleged error. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Carter was charged by information with forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible sexual penetration of a 14-year-old minor (id., § 289, subd. (a)(1)(C)), making criminal threats (id., § 422), committing lewd or lascivious acts against a 14-year-old minor who was at least 10 years younger than him (id., § 288, subd. (c)(1)), and felony false imprisonment (id., §§ 236, 237). The charges were tried before a Kern County jury. Viewed in the light most favorable to the judgment, the evidence established the following facts.
On June 4, 2014, Carter (then age 27) met 14-year-old A.T. at a skate park in Tehachapi. She accompanied him to a fast-food restaurant, where they met up with one of her friends, 16-year-old A.W. The girls subsequently accepted Carter's invitation to a party at his apartment and went with him to a grocery store to buy a bottle of whiskey. When they arrived at Carter's apartment, the girls discovered there was no party. Nevertheless, they decided to stay and consume the alcohol that he had purchased.
Later in the evening, Carter began to exhibit strange behavior. When the girls told him it was time for them to go, he asked them to select random passages from the Bible for guidance as to whether they should stay or leave. He also accused A.W. of stealing his wallet, even though it was located in plain sight on the couch in front of him. A.T. testified that she left the apartment at a point when Carter had A.W. pinned against a wall and was ranting about the wallet. She walked "to the end of the street" before realizing that she was drunk and disoriented. Those circumstances, combined with misgivings about having abandoned her friend, prompted her to return to Carter's apartment.
When A.T. reentered the apartment, Carter was the only person inside. She inquired of A.W.'s whereabouts, and he pointed toward a back room. It was a ruse; A.W. had actually left the building in search of A.T. Carter locked the front door, turned off the lights, and assaulted A.T. She tried to place a 911 call on her cell phone, but he seized the device and proceeded to choke and hit her. Next, Carter forcibly removed A.T.'s clothing, digitally penetrated her, and then raped her. He also threatened to kill her throughout the attack.
Meanwhile, A.W. had returned to the apartment and could hear A.T. screaming inside. One of Carter's neighbors also heard the commotion and called 911. An audio recording of the 911 call was played for the jury. The caller told the dispatcher, "It's a girl screaming - yelling for somebody to kick down the door and it sounds like she's [-] and she's saying 'help.' She's asking for help. Um [-] it sounds like somebody's killing her. ... [I]t sounds like she's getting murdered. She's asking for help and she's screaming really loud and she's banging on the walls and stuff. And, she's struggling and you guys just need to send somebody out here quick."
Shortly after 1:00 a.m., Officer Wayne Horning of the Tehachapi Police Department arrived at Carter's apartment and knocked on the door. He testified that A.T. opened the door approximately one minute later and was in the process of buckling her belt when he saw her. Officer Horning briefly spoke to Carter, who was shirtless and smelled of alcohol, and concluded that "nothing occurred." He did not ascertain the girls' ages and asked them few questions, if any, about what had transpired inside of the apartment. A.T. told the officer that she did not need help and that no arguing or fighting had taken place. Accepting those representations at face value, Officer Horning and his partner departed, leaving the girls to walk home alone.
In A.T.'s version of events, Carter instructed her to get dressed when the police began knocking and allowed her to answer the door. The policemen asked if everything was okay, and she nodded. A.T. described feeling terrified at that moment, which is why she failed to immediately report what had happened. However, once outside the presence of Carter, she said to the officers, "I really want to talk to you guys about what happened, but I am scared to walk home. Can you bring us home?" One of the officers allegedly replied, "No, I'm sorry. I can't help you."
The next day, A.T. contacted the police and reported what had actually occurred at Carter's residence. She was interviewed by Officer Zachary St. John, who testified to having observed facial bruising and marks on her neck at the time of the interview. He also obtained a screenshot from A.T.'s phone, which showed that she had attempted to call 911 at 12:50 a.m. To further corroborate her story, Officer St. John went to the grocery store where Carter had allegedly bought alcohol the previous afternoon and reviewed video footage recorded by the store's security cameras. He testified that the footage showed Carter, A.T., and A.W. entering the store together and the girls waiting near the entrance while Carter purchased a bottle of liquor. Photographs of A.T.'s injuries and the screenshot from her phone were included in the prosecution's trial exhibits.
Following her interview with Officer St. John, A.T. underwent a sexual assault examination. The nurse who conducted the exam documented external injuries that were consistent with A.T.'s story, e.g., swelling in the neck area, scratches on her neck, and facial bruising. A pelvic exam yielded findings consistent with A.T.'s allegations of forcible sexual penetration.
Carter was also medically examined in connection with A.T.'s claims of sexual assault. DNA extracted from swabs of his genitals was submitted to a crime laboratory for forensic analysis. As explained by the criminalist who did the testing, a swab sample from the shaft of Carter's penis contained "a mixed profile of at least two individuals[,] with at least one being a male." It was determined, to a significant degree of statistical probability, that the sample contained the DNA of both Carter and A.T. The criminalist testified that it was "trillions[s] [of] times more likely that [A.T's DNA was] in this mixture" as opposed to some other random individual.
The defense rested without presenting any evidence. Carter was found guilty as charged on all but one of the counts, the exception being the allegation of forcible sexual penetration (the jury convicted him of misdemeanor assault as a lesser included offense). He was sentenced to the upper term of 11 years in prison for the rape conviction. The upper terms for the remaining felony convictions were imposed and stayed pursuant to Penal Code section 654.
DISCUSSION
Marsden Claim
Additional Background
On June 4, 2015, a pre-preliminary hearing was held in the East Division (i.e., the Mojave branch) of the Kern County Superior Court. Carter was represented at that hearing by a deputy public defender named Jacob Evans. At the time, there was an outstanding offer from the district attorney's office for a nine-year plea deal. Prior to addressing the possibility of a negotiated plea, the trial court conducted a Marsden hearing.
Carter moved to have Mr. Evans replaced by different appointed counsel, citing his "belief that [Mr. Evans] no longer believes in my innocence." In discussing his desire for substitute counsel, Carter mentioned that he was previously represented by a deputy public defender named Brian Foltz. Mr. Foltz had been appointed when Carter was first charged in relation to the June 2014 incident involving A.T. For reasons not relevant to this appeal, the original charges were dismissed and refiled, which led to Mr. Evans's involvement in the case.
During the Marsden hearing, Carter stated that he had been unhappy with Mr. Foltz's representation, particularly due to his insistence that Carter accept a plea deal, and had wished to file a Marsden motion as to Mr. Foltz prior to the case being dismissed. He was displeased with the representation of his then-current counsel, Mr. Evans, for similar reasons. Mr. Evans had previously advised him to accept a six- year plea bargain and was now recommending that he take the revised nine-year offer. The trial court ultimately denied the Marsden motion.
The preliminary hearing was held on June 5, 2015, and Carter was again represented by Jacob Evans. He was bound over on felony charges and the case was transferred to the Metropolitan Division (i.e., the Bakersfield branch). Carter was arraigned in Bakersfield on June 16, 2015, at which time he was represented by a deputy public defender named Dana Kinnison. In all subsequent proceedings, his counsel of record was the aforementioned Brian Foltz. However, Carter did not make a second Marsden motion, and he apparently never complained again about Mr. Foltz's representation.
On appeal, Carter concedes that Mr. Foltz "was not the subject" of the June 4, 2015 Marsden hearing. Nevertheless, given his statements of dissatisfaction with Mr. Foltz's prior representation, he argues the trial court neglected a duty to determine the propriety of having Mr. Foltz represent him again at a later date. As Carter puts it, by complaining about Mr. Foltz during the Marsden hearing regarding Mr. Evans, he was "asking the court to find that Foltz should not represent him in the future because Foltz's performance representing him in the past was unacceptable." Respondent counters that no legal authority exists to support Carter's claim.
In his reply brief, Carter submits that even if the issue was premature at the time of the Marsden hearing concerning Mr. Evans, his remarks put the trial court on notice that he did not want to be represented by Mr. Foltz. Therefore, he argues, the judge who presided over the Marsden hearing "needed to [take] steps to notify the rest of 'the trial court' ... that [he] wished to discuss the issues that had arisen between him and Foltz ...." As best we understand the argument, Carter believes the Mojave judge had a duty to contact his colleagues in Bakersfield and advise them that, in the event Mr. Foltz was reappointed to represent him, it would be necessary to hold a second Marsden hearing before the case moved forward.
Analysis
If a defendant believes he or she is receiving ineffective assistance from appointed counsel, the defendant may move to have counsel discharged and a new attorney appointed. (Marsden, supra, 2 Cal.3d at pp. 123, 125.) "Under Marsden and its progeny, a ' "defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." ' " (People v. Maciel (2013) 57 Cal.4th 482, 513.) However, "a trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281, italics added; see People v. Burton (1989) 48 Cal.3d 843, 855 [noting that a Marsden motion raises "the question of existing counsel's competency.")
Carter concedes that he did not make a Marsden motion as to attorney Brian Foltz at a time when Mr. Foltz was actually representing him. Those circumstances are fatal to his claim. We are thoroughly unconvinced that the judge who denied the Marsden motion as to attorney Jacob Evans had a duty to advise other trial court judges that a second Marsden hearing would be necessary if Mr. Foltz were to be reappointed to represent Carter in the future. (See People v. Lara (2001) 86 Cal.App.4th 139, 150 ["The trial court is not obliged to initiate a Marsden inquiry sua sponte."].)
Admission of Hearsay
Additional Background
During the prosecution's case-in-chief, Officer St. John testified to statements made by A.T. when she reported that she had been raped. The defense objected on hearsay grounds, and the prosecutor argued the testimony was admissible under the exception for prior consistent statements. The trial court agreed, citing Evidence Code sections 791 and 1236 in support of its ruling (all further statutory references are to the Evidence Code).
The challenged evidence repeated the same version of events that A.T. had described on direct examination. These excerpts from Officer St. John's testimony are illustrative: "She stated that he grabbed her neck and started to choke her. ... She said that he started to remove her outer and undergarments forcibly. ... She told me that she had attempted to call 9-1-1 on her cell phone but was unable because she was - her cell phone was removed from her. ... At that point he had removed his undergarments and had displayed his naked penis to her and then had placed it against her vagina and forcibly entered her against her will."
Analysis
"Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." (§ 1236.) Section 791 governs the use of prior consistent statements to rehabilitate a witness's credibility. (People v. Hayes (1990) 52 Cal.3d 577, 609.) The statute provides, in pertinent part: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] ... [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Carter's claim is based on the foundational requirement of an allegation that the declarant's testimony was recently fabricated or influenced by bias or other improper motive. If "the consistent statement was made after an improper motive is alleged to have arisen, the statement is inadmissible." (People v. Gentry (1969) 270 Cal.App.2d 462, 473.) Defense counsel attacked A.T.'s credibility based on her statements to Officer Horning at Carter's apartment, which preceded those made during her interview with Officer St. John. In other words, although A.T.'s statements to Officer St. John were consistent with her trial testimony, they were not made "before the bias, motive for fabrication, or other improper motive [was] alleged to have arisen." (§ 791, subd. (b).)
The Attorney General impliedly concedes the validity of Carter's argument, but argues the prior consistent statements were admissible pursuant to the judicially created exception discussed in People v. Lopez (2013) 56 Cal.4th 1028 (Lopez). The Lopez opinion holds that when "a witness's silence is presented as inconsistent with his or her later testimony, a statement made at the earliest opportunity after the silence that is consistent with the witness's later testimony may be admissible as a prior consistent statement under section 791(b)." (56 Cal.4th at p. 1067.) The exception is typically invoked in cases where the victim's initial silence is attributable to incapacity, and Lopez recognizes that it is possible for someone to be incapacitated by "fear of repercussions from [the] defendant." (Id. at p. 1068.) Carter contends the exception is not applicable because A.T. had no reasonable basis to fear that he would harm her in the presence of two police officers. Because we conclude that Carter is unable to show prejudice, we decline to resolve the question of error.
Disapproved of on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.
The erroneous admission of hearsay is reviewed for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Seumanu (2015) 61 Cal.4th 1293, 1308; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) The Watson test asks if it is reasonably probable that the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.) "[A]n appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
Carter characterizes the alleged error as a due process violation, but "[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) The challenged evidence was duplicative of A.T.'s testimony, which was subject to cross-examination. A.T.'s version of events was also recounted by the nurse who conducted her sexual assault examination. The nurse's testimony contained essentially the same hearsay that was later repeated by Officer St. John, though in the former instance the jury was instructed to consider the hearsay for foundational purposes only and not for its truth. This case does not present "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (People v. Albarran (2007) 149 Cal.App.4th 214, 230-232.) --------
The prosecution's case was fairly strong. First, as confirmed by Officer St. John, there was video footage of Carter purchasing alcohol while A.T. and A.W. waited for him at the entrance to the grocery store. There were obvious inferences to be drawn from the fact that a 27-year-old man furnished hard alcohol to a 14-year-old girl whom he had just met and invited to his apartment, none of which were favorable to the defense. Second, based on requests made during deliberations, it appears the jury found the 911 call to be especially probative. The call was made by a disinterested third party (Carter's neighbor) who testified at trial to what had prompted her to contact the police. The neighbor's testimony and the audio recording of the call showed that A.T. was in distress while inside of Carter's apartment. The screen shot from A.T.'s phone of her failed attempt to call 911 at 12:50 a.m. bolstered that conclusion.
The defense case relied entirely on Officer Horning's investigation into the 911 call and his conclusion, at the time, that no crime had been committed. However, A.T.'s allegations were corroborated by photographs taken of her the following day and the findings of her sexual assault examination. In addition, the DNA evidence provided compelling proof that she and Carter had some type of sexual encounter.
Carter submits that the presence of A.T.'s DNA on his penis "could have easily been the result of [him] touching A.T.'s hand and then urinating." However, the uncontroverted testimony of the prosecution's expert was that such a "secondary transfer" was possible, but unlikely. Viewing the record as a whole, we conclude there is no reasonable probability that Carter would have obtained a more favorable outcome but for the admission of hearsay during Officer St. John's testimony.
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.