Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge, No. CRF27061
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
CORNELL, Acting P.J.
A jury convicted appellant Kenneth Howard Casner of burglary, kidnapping, spousal rape, grand theft, criminal threats, and unlawful possession of a firearm in connection with offenses committed against his estranged wife, S.C. He challenges his convictions on the basis defense counsel was ineffective in failing to move to strike a comment from one witness, and the trial court erred prejudicially in instructing the jury. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Casner was six feet six inches tall and weighed 280 pounds in November 2007. On November 26, 2007, Casner began hitting his and S.C.’s 22-year-old son, C.C. When S.C. attempted to intervene, Casner said, “You want some?” and proceeded to hit S.C. As a result of this incident, criminal charges were filed against Casner and a criminal protective order issued.
In December 2007, S.C. obtained a civil restraining order against Casner. Shortly thereafter, in January 2008, S.C. filed for dissolution of the marriage. Also in January 2008, the criminal protective order was extended for three years.
Casner repeatedly called S.C. at home, at work, and on her cell phone. In February 2008, she contacted the sheriff’s department to report Casner’s violations of the protective and restraining orders. While a deputy was interviewing S.C. at her home, Casner again called the house, a violation of the orders. A criminal case for violation of the protective and restraining orders was initiated and still pending as of May 2008.
C.C. and his 20-year-old sister, B.C., lived with S.C. C.C. had a full-time job and B.C. was attending classes at a school that taught independent living skills to the developmentally delayed. The usual routine was that C.C. would leave for work around 6:30 a.m. and drop off B.C. at the bus stop to catch the school bus. S.C., a registered nurse, worked a night shift from 6:30 p.m. to 7:30 a.m. and usually arrived home about an hour or so after her shift ended.
On April 23, 2008, Casner purchased a Subaru wagon, paying cash and registering the car in B.C.’s name, although B.C. did not have a license and did not drive. He left the car at the dealership to have the windows tinted, but did not pick up the car when this work was completed.
On May 6, 2008, Casner parked his truck at the dealership, put a duffle bag in the Subaru, and drove the Subaru to a remote wooded area about 16 miles from S.C.’s house. Casner took a cab back to town, telling the cabbie his car had broken down and was being towed. The cabbie dropped him off at the dealership and Casner drove away in his truck.
On the morning of May 7, after C.C. and B.C. had left and before S.C. arrived home, Casner entered S.C.’s home through a window and hid in C.C.’s bedroom. S.C. arrived home around 9:00 a.m., did a few small chores around the house, and climbed into bed to go to sleep. After falling asleep, the next thing S.C. remembered was seeing a “shadow coming through the bedroom door of a man.” Next, “[Casner] rushed up to the bed and put his hand over my mouth and put a gun to my head and told me if I made any noise, he would blow my head off with a 357.”
S.C. was scared. She lay there with the gun held to her head, while Casner flipped her over onto her stomach on the bed and handcuffed her hands behind her back. Casner ordered her to turn over and when she could not, he flipped her over onto her back. Casner held up some zip ties and told her if she “put up a struggle,” he would bind her feet. Casner told S.C. he wanted to spend time with her and then he “planned to kill [S.C.] and kill himself.”
Casner told S.C. he wanted her to go away with him. When she refused, Casner pulled out a plastic baggie with pills in it and said, “They’re pills to drug you if you won’t come.” Casner said he had Seroquel and OxyContin in the baggie. Casner told S.C. how upset he was because she had turned him in for making phone calls and how he would have to “serve time” as a result.
Casner began asking S.C. to kiss him. When she repeatedly said “no,” he climbed on top of her and tried to kiss her, but she kept turning her head. Casner then released one of S.C.’s hands from the handcuffs and pulled her nightgown off. Casner forced her legs apart and forced her to submit to oral copulation and then raped her. S.C. was crying and asked Casner, “You know what this is, right?” Casner responded, “Yeah, rape.”
After he finished raping S.C., Casner told her to swallow one of the pills he had brought. She responded, “No,” and clenched her mouth closed. Casner grabbed her face, squeezed hard until her mouth opened, and then shoved a pill into S.C.’s mouth. Casner held her mouth closed and told her to swallow, continuing to hold her mouth closed until she swallowed.
After the rape, Casner told her he needed to get his bag, so Casner took her down the hall to their son’s room. In their son’s room is a trap door in the floor of the closet that leads to an area under the house. Casner opened up the trap door, reached down, and pulled out a duffle bag. Casner took a douche kit from the bag and instructed S.C. to use it.
By this time, S.C. was very sleepy from the effects of the pill Casner forced on her and she was wobbling when she walked. Casner took her through the house and out to her car, where he placed her in the passenger seat. S.C. did not remember anything after that until about 2:00 o’clock in the afternoon, when Casner shook her awake and told her to call in sick to work and to call their children.
When S.C. awoke, she and Casner were in her car in a forested area. There was a Subaru parked nearby, which Casner said was his. Casner moved her from her car to the Subaru and had her call in sick to work. Casner then instructed her to call home and leave a message on her answering machine for their children, telling them that she was going out with friends and would be back later.
After making the calls, S.C. nodded off again. When she awoke, she pleaded with Casner to take her home; he refused. Casner had S.C. climb into the back of the Subaru, where she was hidden by a cover, while he drove. At some point, Casner indicated they were near Bakersfield. When Casner needed to pull into a gas station, he told S.C. if she tried anything he would kill her.
Casner had S.C. get into the front seat when they left the gas station. While he was driving, he put his hands inside her pants and began rubbing her vaginal area. S.C. told him he was “rubbing [her] raw” and she asked him to stop; he “didn’t care.” Casner pulled into a motel parking lot, opened up the back of the Subaru, and pulled out an envelope “an inch thick” containing money. Casner paid for a room.
Inside the motel room, S.C.’s cell phone reflected that her children had called numerous times trying to locate her. Casner had S.C. call them, and she managed to reach her son and daughter. Casner was listening to her conversation while she told them she was staying with friends and would be home tomorrow. Her son, C.C., asked “Are you okay? Does dad have you?”
Shortly after concluding her conversation with her children, a deputy sheriff called. The deputy indicated that S.C.’s children were worried and asked exactly where she was. Casner told her to say she was with a guy named Mike and that she would be home in the morning. The deputy asked where she was, the location of the house where she was, and if she could see out the window. S.C. responded that she did not know where the house was at and that she could not see out the window. After the deputy concluded his call, C.C. called to tell S.C. they were trying to find her.
Casner had S.C. take off most of her clothes and climb into bed. Casner got into bed with her and S.C. asked him to leave her alone. Casner again forced her to submit to oral sex and then raped her. Afterwards, Casner decided they needed to get going “before they get organized” and S.C. was found.
Casner told S.C. that if she promised not to say anything about what had happened, he would take her back home and let her go. Casner told her if she could not “stick with this plan” he would have to go back to his “original plan, which was to kill us both.” S.C. promised not to tell.
Casner was driving while they headed back to S.C.’s house. At one point, Casner pulled another douche kit from his duffle bag and said he wanted her to use it. Casner stopped at a fast food location and told S.C. to use the douche kit in the bathroom while he ordered food. Casner was waiting when she came out of the bathroom and he took her to the car.
At one point on the drive back, they crossed a bridge spanning a river. Casner stopped on the bridge and pulled out the gun, which Casner told her was a “Taurus.” Casner dropped the gun over the side of the bridge.
After Casner dropped her where they had left her car, he continued to follow her and stop her on the road. S.C. was afraid she would not get out of her situation alive after all.
When she returned home, her son drove her to the sheriff’s department to make a report. S.C. was then taken to the hospital for a forensic sexual assault examination. S.C.’s pubic hair was positive for bodily secretions in a Woods lamp test. Her vaginal area was red and swollen and there were two lacerations. The results of the examination were consistent with S.C.’s description of the sexual assaults.
The sheriff’s department had S.C. make a pretextual phone call to Casner. In the call, S.C. indicated the sheriff’s department wanted her to come down and make a statement because she had been reported missing. S.C. said she did not know what to say, and Casner told her she did not have to give a statement.
The sheriff’s department found the gun in the river below the bridge, where S.C. indicated Casner had dropped it. The gun was fully loaded with seven bullets. The gun was identified as belonging to Michelle Vinci.
Vinci had dated Casner briefly. She kept a Taurus.357 handgun in a case in her bedroom. Casner had been in her bedroom when they were dating, but she did not give him or anyone else permission to take the gun. On April 30, 2008, Vinci discovered the gun was missing and she reported the theft.
Casner was charged with spousal rape, kidnapping to commit spousal rape, two counts of first degree burglary (one each for S.C.’s home and Vinci’s home), criminal threats, unlawful possession of a firearm after conviction for spousal battery, and grand theft of a firearm. Various special allegations and enhancements also were alleged.
Casner was incarcerated in the jail pending trial. While awaiting trial, he asked his cell mate, Frankie Henley, if fingerprints could be recovered from stainless steel after it had been in water. Henley said Casner admitted entering his wife’s home with a gun, waiting for her to come home, drugging her, driving away with her, and later dropping the gun in the river. Casner said he was sorry he had not killed S.C. and offered to pay Henley to do it when Henley was released.
At trial, Casner denied stealing Vinci’s gun or even knowing that she had a gun. Casner admitted violating the restraining orders and going to S.C.’s house on May 7, 2008, but denied he had a gun. He testified S.C. voluntarily invited him into her home and her bedroom and that they had consensual sex. He denied handcuffing her, bringing zip ties or douche kits with him, and denied drugging her. Casner also denied forcing S.C. to accompany him out of town against her will and claimed that the sexual encounter in the motel room was consensual.
The jury returned verdicts of guilty as to all charged offenses except the kidnapping for the purpose of spousal rape. As to that charge, the jury returned a verdict of guilty of the lesser included offense of kidnapping. The jury also found the special allegations and enhancements to be true.
The trial court sentenced Casner to a term of 25 years to life for the spousal rape conviction. He received determinate consecutive terms for the kidnapping and one burglary conviction, and personal use of a firearm enhancement. The terms imposed for the criminal threats, the other burglary, and grand theft of a firearm convictions were stayed. A concurrent term was imposed for the firearm possession conviction. The total term imposed was 25 years to life, plus a determinate term of 19 years four months.
DISCUSSION
Casner raises two primary contentions on appeal: ineffective assistance of counsel and instructional error. We are not persuaded by either argument. He also claims he is entitled to one more day of presentence credit, which the People concede.
I. Ineffective Assistance of Counsel
Casner contends his trial counsel was ineffective because counsel failed to move to strike the car salesman’s comment that she was “scared” of defendant. He claims this failure was prejudicial because this was a “reasonably close case” as to whether he harbored the intent to commit a felony at the time he entered S.C.’s home or whether he merely was attempting to effect a “peaceful reconciliation.”
Casner has the burden of proving defense counsel rendered ineffective assistance. (People v. Cox (1991) 53 Cal.3d 618, 655.) In order to prove ineffective assistance, Casner must demonstrate that counsel’s performance was deficient and that counsel’s action or failure to act was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) When a claim of ineffective assistance is based upon defense counsel’s failure to make a motion, as here, the defendant must prove “not only the absence of a reasonable tactical explanation for the omission but also that the motion or objection would have been meritorious.” (People v. Mackenzie (1995) 34 Cal.App.4th 1256, 1272.)
We disagree with Casner’s fundamental assessment of the case as “reasonably close.” There was virtually no evidence that Casner intended anything other than rape and murder when he entered S.C.’s home, except for his self-serving statements.
Casner spent considerable time, effort, and funds in planning these crimes. He purchased a car in his daughter’s name and paid cash; hence, the car would not be traceable to him. He had the windows tinted so people and items in the car could not be seen. Casner obtained potent prescription drugs with which to sedate his estranged wife and purchased douche kits in an attempt to erase any trace of sexual intercourse. Casner stole a gun and brought that loaded gun with him to S.C.’s house. Immediately upon entering S.C.’s bedroom, Casner rushed to the bed, placed the weapon against S.C.’s head, and told her he would shoot her if she made any noise. Casner then proceeded to tell S.C. that he wanted to spend time with her -- apparently his euphemism for forced sex -- before killing her. Casner’s very entry into the home violated criminal and civil restraining orders.
Casner’s actions and words provide overwhelming evidence of felonious intent at the time he entered S.C.’s house. Even if we were to credit Casner’s argument that he harbored an intent of effecting a peaceful reconciliation when he initially entered S.C.’s home, that intent clearly was combined with the intent to rape and murder her if his attempts at reconciliation did not work. The evidence is clear that he was prepared to overcome resistance and act forcibly if necessary—he brought with him a loaded gun and medication with which to sedate S.C. in order to prevent any resistance by her. Even if the use of force was a secondary, or contingent, plan on Casner’s part, he still harbored the requisite intent upon entry, although that intent may have been “contingent” in his mind. (People v. Fond (1999) 71 Cal.App.4th 127, 132.)
Furthermore, even if we assume Casner did not harbor any intent to commit a felony at the moment he illegally entered S.C.’s house, the evidence is abundantly clear he harbored a felonious intent at the time he entered S.C.’s bedroom. His first actions upon entering the bedroom were to hold a loaded gun to S.C.’s head and tell her he would kill her if she made noise. He then proceeded to handcuff and rape her. If Casner did not harbor a felonious intent at the time he entered S.C.’s house, but did harbor a felonious intent at the time he entered her bedroom, burglary still lies. (People v. Abilez (2007) 41 Cal.4th 472, 509; People v. Sparks (2002) 28 Cal.4th 71, 87.) As the California Supreme Court held in Sparks, the word “‘room’” in section 459 “must be given its ordinary meaning,” and the entry with the requisite intent while within a home into another room of the house, particularly a bedroom, is burglary. (Sparks, at pp. 86-87.)
Although Casner claims his failure to overpower S.C. immediately after she entered the home is evidence that he had a desire for a peaceful reconciliation, we disagree. In all likelihood, Casner waited to overpower S.C. to lessen the possibility that she would cry out and be heard by a neighbor or passerby. Further, waiting until S.C. was in the bedroom facilitated the rape.
This is not a close case. Casner’s attempt to characterize his actions as “clumsy attempts at seduction” and an attempt to reconcile with his estranged wife is ludicrous and not supported by the facts. Under the facts of this case, there is no possibility the jury would have disbelieved S.C.’s testimony and credited Casner’s version of events. Therefore, even if we assume arguendo defense counsel should have moved to strike the comment about the car salesperson being “scared” of Casner, the failure to move to strike was not prejudicial because it is not reasonably probable the outcome would have been more favorable to Casner absent any error. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216-218.)
II. Instructional Error
Casner next contends that the trial court’s use of Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 318 (prior statements as evidence) was prejudicial error because it applied to the testimony of the forensic examining nurse. Casner argues that S.C.’s statement to the forensic nurse essentially was identical to her trial testimony and, as such, CALCRIM No. 318’s instruction that the earlier statement could be considered true was prejudicial error because a victim’s statement to a forensic nurse is inadmissible for its truth.
Prior to instructing the jury, the trial court went through each instruction with counsel and Casner present. The trial court told counsel and Casner that it would “just go through the instructions by number one more time. If there is any objection, shout out. If there aren’t, it will be deemed as all parties are agreeing it should be given.” After going through all of the instructions, including CALCRIM No. 318, the trial court asked if anyone disagreed with any of the proposed instructions. Casner’s counsel responded, “No.”
Casner’s claim of instructional error has been forfeited. To the extent Casner contends there should have been a clarification of CALCRIM No. 318, or a limiting instruction given, he was obligated to make such a request to the trial court in order to preserve the issue for appeal. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1134.)
Furthermore, to the extent Casner contends the issue is preserved, despite the failure to object or request clarification in the trial court, he is mistaken. Casner maintains that People v. Key (1984) 153 Cal.App.3d 888 supports his position and stands for the proposition that the trial court had a sua sponte duty to clarify or modify the pattern CALCRIM No. 318 instruction. In Key, the trial court gave an instruction on the use of prior crimes evidence, but failed to limit it to those crimes where prior crimes evidence properly is admissible. (Key, at p. 898.) The California Supreme Court has stated that the holding of Key is limited and is based on the principal that other crimes evidence cannot be used to prove that defendant engaged in wrongful conduct in the charged offense. (People v. Heishman (1988) 45 Cal.3d 147, 168.) CALCRIM No. 318 does not address prior crimes evidence and thus the holding of Key is inapplicable.
Additionally, CALCRIM No. 318 is not an instruction on the elements of an offense, thus an objection or request for clarification was required to be made in the trial court in order to preserve the issue for appellate review. It is only “[i]nstructions regarding the elements of the crime [that] affect the substantial rights of the defendant, [that require] no objection for appellate review. [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Alternatively, Casner contends counsel was ineffective for failing to request a limiting instruction. As set forth in part I, ante, in order to demonstrate ineffective assistance of counsel, Casner must demonstrate prejudice. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216-218.) This he has failed to do.
First, Casner concedes that S.C.’s statement to the forensic nurse was admissible for the purpose of explaining the nurse’s opinion that the physical injuries were consistent with the history taken from S.C. at the start of the exam. CALCRIM No. 318 does not instruct the jurors they must accept or presume a prior statement to be true; it merely states that the jury may use the prior statement to evaluate whether the witness’s in-court testimony is believable.
Furthermore, CALCRIM No. 226 (witnesses), with which the jury was instructed, permits the jury to consider a prior statement made by any witness and evaluate whether it is consistent or inconsistent with trial testimony, as a factor in evaluating the credibility of a witness. Thus, any clarifying instruction directed at CALCRIM No. 318 would not have precluded the jury from considering S.C.’s statement to the nurse and its consistency with her trial testimony.
Second, there was a plethora of physical evidence corroborating S.C.’s trial testimony. The physical evidence included the douche kits and zip ties found in S.C.’s home; the loaded gun found where S.C. said Casner dropped it; the footprint matching Casner’s in the crawl space where the duffle bag was hidden; the subterfuge of buying a car for cash and placing it in B.C.’s name; and S.C.’s own physical injuries as documented in the forensic exam. It is not reasonably probable that the outcome of the trial would have been more favorable to Casner if a limiting instruction had been given. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216-218.)
III. No Cumulative Prejudice
Because we have concluded that Casner was not prejudiced by any failure to request a motion to strike or to request a limiting instruction, it follows that there cannot be any cumulative prejudice. We therefore reject Casner’s claim of cumulative prejudice. (People v. Jenkins (2000) 22 Cal.4th 900, 1056.)
IV. Sentencing Issue
Casner contends the trial court erred at sentencing and he is entitled to 184 days of presentence custody credit. The People agree.
The trial court awarded 183 days of presentence custody credit. Casner was arrested on May 11, 2008, and sentenced on November 10, 2008. He was, therefore, entitled to a presentence custody credit of 184 days. (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
Because “[a] sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered,” we will direct the trial court to prepare an amended abstract of judgment. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
DISPOSITION
The judgment is modified to reflect an award of 184 days of presentence custody credit and in all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward copies to all appropriate agencies.
WE CONCUR: DAWSON, J., HILL, J.