Opinion
H040822
02-05-2018
THE PEOPLE, Plaintiff and Respondent, v. GEOFFREY RAYNARD CHAMBERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1228891)
Defendant Geoffrey Raynard Chambers was convicted of two counts of rape by force or fear (Pen. Code, § 261, subd. (a)(2)); four counts of oral copulation by force or fear (Pen. Code, § 288a, subd. (c)(2)(A)); and one count of sexual penetration by force or fear (Pen. Code, § 289, subd. (a)(1)(A)). All of the sexual conduct was perpetrated against defendant's half-sister. Defendant argues that the trial court erred before trial by not dismissing the case upon learning that the district attorney's office had inadvertently obtained recordings of jail telephone calls between defendant and his attorney. Defendant argues that the trial court erred during trial by admitting unduly prejudicial evidence that the victim had been offered (and declined) a bribe not to testify. Defendant challenges as unduly prejudicial admission of recorded statements he made that were derogatory toward homosexuals. And defendant argues the foregoing errors are cumulatively prejudicial. Finding no prejudicial error, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with two counts of rape by force or fear (Pen. Code, § 261, subd. (a)(2)); four counts of oral copulation by force or fear (Pen. Code, § 288a, subd. (c)(2)(A)); and one count of sexual penetration by force or fear (Pen. Code, § 289, subd. (a)(1)(A)). (Unspecified statutory references are to the Penal Code.) Defendant's half-sister, Doe, was listed as the victim for all counts.
The trial court referred to the victim by her first name and used Doe in place of her last name. To protect her anonymity, we refer to her simply as Doe.
Before trial, the district attorney's office inadvertently acquired audio recordings of communications between defendant and his attorney that were part of a collection of jail telephone call recordings provided by the county jail. Defendant moved to recuse the district attorney's office and also moved to dismiss the case. The trial court denied the motions, finding the district attorney's office had taken adequate steps to ensure that the prosecuting deputy would never hear the attorney-client communications. A different panel of this court summarily denied a petition for writ of mandate challenging the trial court's denial of the motion to dismiss. (Chambers v. Superior Court (May 24, 2013, H039672).)
A. TRIAL EVIDENCE
1. Doe's Testimony
Doe moved from Michigan in 2010 to live with her half-sister S.C. in a one-bedroom house in San Jose. Defendant initially lived with his girlfriend and their adult daughter, but moved in with Doe and S.C. at some point. S.C. slept in the bedroom, Doe slept on a couch in the living room, and defendant slept on a different couch in the living room. Defendant and S.C. were full siblings and had the same father as Doe. There was a significant age difference between defendant and Doe; defendant was born in 1960 and Doe was 19 years old at the time of the offenses in April 2011. (The jury was not informed of Doe's precise age.)
Defendant and Doe were alone one evening at the house in the living room. Defendant had consumed three double shots of tequila that night and while Doe did not think he was "fully drunk," she could "tell he had some drinks." Doe was completely sober. Around 8:00 p.m., defendant and Doe were both sitting on the couch when defendant started tapping Doe with his feet. Doe moved to a recliner when defendant refused to stop. Defendant asked Doe if she thought he was gay. She said something to the effect of: "I don't know. Sometimes I have to question that." Defendant jumped up and looked surprised.
Defendant walked over to the recliner and knelt down in front of Doe. He touched Doe's "butt and breast," and Doe told him to stop more than once. Defendant unbuttoned Doe's jeans. Doe started "worming around in the chair" and tried to push his hand away to prevent defendant from removing her jeans. Doe testified that she did not fight him more aggressively because she was scared. After unbuttoning her jeans, defendant touched her "vagina and butt" and kissed her stomach and her vagina. Defendant then removed Doe's jeans and underwear. Doe acknowledged that she had to lift her body slightly to facilitate the removal of her clothes. She testified that she cooperated because she was scared. Defendant put his tongue inside Doe's vagina "for some minutes" even though Doe told him to stop.
Defendant then took Doe's hand in a "friendly way" and led her into the bedroom. Doe did not want to go, but cooperated. Defendant instructed Doe to lie down on the bed. She complied because she was scared. Defendant orally copulated Doe's vagina, digitally penetrated her vagina with his finger, and then penetrated her vagina with his penis. Doe told defendant to stop because he was hurting her, but he refused. When defendant eventually stopped having sex with Doe, he said " 'oh, I thought you said I was gay.' "
Defendant took a shower in the bathroom connected to the bedroom. Doe took a shower after defendant left the bathroom. While Doe was in the shower, defendant joined her and orally copulated her vagina. Defendant also had Doe orally copulate his penis by grabbing her head with his hand and guiding her head down to his penis. Doe complied without saying anything because she was scared. Defendant left the shower and went to the living room. Doe stayed in the shower for "as long as [she] could" and eventually lay down on S.C.'s bed in the bedroom. Doe testified that she did not leave the house because she would have had to pass defendant in the living room to do so.
After about 30 minutes, defendant joined Doe in bed. Defendant "started cuddling" Doe and she remained still. They stayed in that position for about two hours. Defendant woke up and digitally penetrated Doe's vagina. Defendant then penetrated her vagina with his penis a final time.
Doe testified that she repeatedly exchanged text messages with a cousin about defendant's conduct on the night of the offenses whenever defendant was out of the room. According to Doe, she messaged her cousin that she had been raped by defendant. She also told her cousin not to tell anyone because she was afraid of defendant. The actual text messages were never recovered by the police.
2. Defendant's Arrest
San Jose Police officers came to the house the following morning to check on Doe in response to a report of possible sexual assault. One officer entered the house to talk to Doe. She asked the officer to come into the bathroom with her and closed the door. Doe started crying and told the officer that she had been raped. (The court admonished the jury that Doe's statement to the officer was admissible not for its truth but "to show simply that a complaint was made.")
Another officer asked defendant to come outside for an interview, an audio recording of which was admitted into evidence and played for the jury. Defendant denied that anything improper occurred the previous night between him and Doe. The officer arrested defendant after the interview.
3. Jail Calls
Defendant made approximately 58 hours of recorded telephone calls while in jail before trial. The trial court admitted audio recordings of a limited subset of those calls over defendant's Evidence Code section 352 objection. Some of those calls contained statements by defendant that were derogatory toward homosexuals. The calls were admitted to support the prosecution's theory that defendant raped Doe to prove his heterosexuality. We will summarize the calls in greater detail in Part II.C.
4. SART Exam, Rape Trauma Syndrome, and DNA Evidence
Kristine Setterlund, a registered nurse, testified about a Sexual Assault Response Team exam she performed on Doe the day after the alleged rape. She also testified as an expert in "sexual assault examination and determining whether a patient's injuries are consistent with her history of sexual assault." Setterlund testified that Doe informed her that she had suffered some vaginal tearing from a consensual sexual encounter a few months earlier. Setterlund opined that any injury Doe would have sustained during that consensual encounter would not affect what she could observe during the April examination because of the speed with which the vaginal tissue heals.
Setterlund summarized the findings of the physical exam she performed on Doe. Doe did not have any injuries on the external parts of her body. However, Setterlund noted various injuries to Doe's pelvic area. Doe had petechiae (superficial bleeding just below the skin) and erythema (a flushing or redness of the skin) "on the top by the clitoral hood and just underneath that hood." There was further erythema to the labia minora. Doe suffered a laceration (a tearing of the skin) to her posterior fourchette. That laceration had "scant bleeding," which Setterlund described as a situation where "if I was to take a tissue ... there would be blood on it, but it's not actively flowing." Setterlund opined that the injury to the posterior fourchette was significant because that is traditionally the "area in a missionary position that we would traditionally see in sexual assault complaints where there actually is a tear, there's actually injury there."
Setterlund acknowledged that injuries like those Doe sustained could potentially result from consensual sex, but she opined that a woman suffering the level of pain that would be caused by those injuries during a consensual encounter would likely make her partner stop. She characterized Doe's injuries as "a significant amount of trauma to the peritoneal area in line with what I normally see in my sexual assault cases." Setterlund testified that Doe declined to receive a speculum exam because even the external examination of her genitalia was "causing her a great deal of pain."
A different expert testified regarding Rape Trauma Syndrome and coping behaviors of rape victims.
Based on samples collected from Doe and defendant, a DNA analysis was performed. The parties stipulated that a summary of that process would be read to the jury. The stipulation stated that defendant was the source of sperm cells found on swabs of Doe's vaginal, labial, and peri-anal areas.
5. Defendant's Daughter's Testimony
Defendant's adult daughter testified for the defense that Doe consistently "wanted a lot of alone time with [defendant]." She responded "Yes" when asked whether she "believed that [Doe] would want to have sex with" defendant based on the way Doe acted around defendant. She acknowledged on cross-examination that she had previously told a defense investigator that she never noticed anything unusual about the relationship between defendant and Doe. She testified at trial that she had actually meant their relationship appeared normal only "[i]n the beginning."
6. Evidence of a Bribe Offered to Dissuade Doe from Testifying
Doe acknowledged on cross-examination that she had previously lied on an employment application by claiming to have worked at a job where she had not actually worked. The fake job was at a daycare center and she falsely stated on a resume that she taught children basic educational skills, when in reality she had never done so.
In response to that impeachment evidence, the trial court admitted (over defendant's Evidence Code section 352 objection) evidence by way of stipulation that Doe had been offered $30,000 on September 11, 2013 (the day before she testified in the trial) not to testify in the case. The jury was informed that Doe declined the offer and also that the offer was not made by defendant "or any witnesses or any attorneys in this case." The jury was admonished to use the evidence only in evaluating Doe's credibility, and that the evidence should not be considered when determining defendant's guilt.
B. VERDICT AND SENTENCING
The jury found defendant guilty on all seven charged counts. The trial court sentenced defendant to 21 years in prison, consisting of a six-year middle term for count one (§ 264, subd. (a)); a three-year fully consecutive lower term for count two (§§ 288a, subd. (c)(2)(A); 667.6, subds. (c), (e)(1), (e)(7)); a six-year fully consecutive middle term for count five (§§ 288a, subd. (c)(2)(A); 667.6, subds. (c), (e)(1), (e)(7)); and a six-year fully consecutive middle term for count seven (§§ 264, subd. (a); 667.6, subds. (c), (e)(1)). (Defendant also received six-year middle terms for each of counts three, four, and six (§§ 288a, subd. (c)(2)(A); 289, subd. (a)(1)(A)), to be served concurrently.)
II. DISCUSSION
A. RECORDED ATTORNEY-CLIENT COMMUNICATIONS
Defendant argues that the judgment must be reversed because the district attorney's inadvertent receipt of defendant's attorney-client communications, and the office's conduct in managing those communications, violated his rights under the California Constitution (specifically article I, sections 7 and 15) and the Sixth and Fourteenth Amendments to the United States Constitution.
According to defendant's declaration filed in support of his motion to recuse the district attorney's office, he was initially represented by a private attorney named Lucy McAllister. McAllister informed him that he could call her office directly from jail only once per week. McAllister told him that if he needed to call her more frequently he would have to first call a friend or family member collect from jail and then have that person add McAllister to a three-way call. The public defender's office was appointed to substitute in as counsel for defendant after his preliminary hearing.
The lead prosecutor for defendant's case, Deputy District Attorney Bryan Slater, stated in a declaration that he received "about 26 hours" of defendant's jail telephone call recordings from the jail. Slater discovered eight three-way calls involving defendant and McAllister during his review of the calls. Slater declared that he did not listen to the contents of any of the calls involving defendant and his attorney "other than a salutary greeting." Slater stated that he gave the recordings to Deputy District Attorney Kathryn Storton, the office's in-house ethics advisor. Storton declared, based on her notes in the file for defendant's case, that she listened to the calls and decided that the calls involving defendant and McAllister should be redacted. In a declaration from a district attorney's office paralegal, the paralegal stated she redacted the recordings as instructed by Storton and then returned them to Slater. The paralegal also stated that she sent defendant's public defender the unredacted audio recording of defendant's telephone calls with McAllister.
According to Storton's declaration, she was the "in-house ethics advisor and the person who listens to jail calls involving attorneys and defendants made in a phone call to a non-blocked unprivileged line pursuant to office policy." Our decision should not be read as adjudicating the merits of the district attorney's apparent practice.
According to a declaration filed by the assigned deputy public defender, Slater told her about the recorded telephone calls and told her the attorney-client conversations had been redacted. The deputy public defender stated that she informed defendant about the recordings and that defendant was now "extremely concerned" that his communications with counsel were being monitored. She contended that defendant's discovery that his communications had been obtained by the prosecution had "greatly impacted my client from having full and frank communications about his case with me, my paralegals, or investigators."
Defendant moved to recuse the district attorney's office, and separately filed a non-statutory motion to dismiss the case. Both motions were based on the district attorney's office's handling of defendant's recorded attorney-client telephone calls. The trial court denied both motions. Regarding the motion to dismiss, the court found that defendant had not been denied a substantial right because satisfactory steps were taken "to ensure that defendant's communications with his previous attorney have not been heard, and will not be used by the prosecutor on defendant's case." The court also noted that the accusation in defendant's motion to dismiss that Storton had violated section 636 (regarding eavesdropping on attorney-prisoner communications) was not warranted because "it was defendant's previous counsel that caused the calls in question to be recorded," not the district attorney's office.
1. The Telephone Calls Were Privileged; There Was No Waiver
The People argue that we need not address any of defendant's constitutional arguments because he waived the attorney-client privilege by making third-party calls that he knew would be monitored and recorded by the Santa Clara County Department of Correction.
Evidence Code section 952 codifies California's attorney-client privilege: "As used in this article, 'confidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted." The client is the holder of the privilege. (Evid. Code, § 953, subd. (a).)
The privilege "is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone." (Evid. Code, § 912, subd. (a).) In the context of inadvertent disclosures by attorneys, at least one court has held that waiver for purposes of Evidence Code section 912, subdivision (a) "does not include accidental, inadvertent disclosure of privileged information by the attorney." (State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 654; see also Newark Unified School Dist. v. Superior Court (2016) 245 Cal.App.4th 887, 898-911 [finding inadvertent release of privileged documents in response to a California Public Records Act (Gov. Code, § 6250 et seq.) request did not waive attorney-client privilege].) As the facts are undisputed, we independently review whether the statements were privileged and whether defendant waived the privilege. (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 110, citing St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)
Defendant acknowledged in writing his receipt of the Santa Clara County Department of Correction Inmate Orientation and Rulebook, which states in relevant part: "It is the policy of the Department of Correction to monitor and/or record inmate phone calls in order to assess safety and security violations. Attorney/client telephone calls shall be considered confidential communication[s] and shall not knowingly be monitored/recorded without a warrant. ... If an attorney ... believes their telephone number is being monitored/recorded, they may contact the Classification Unit and ask to have their number blocked from monitoring and recording."
Defendant also acknowledged receiving the Santa Clara County Department of Correction Notice of Telephone Monitoring Policy, which provides: "For security reasons, it is the policy of the Santa Clara County Department of Correction to monitor and/or record on a random basis all of the inmate telephone lines within the jails. Attorney/client ... telephone calls are considered confidential communications and will not be knowingly monitored or recorded without a warrant. The telephone numbers of Licensed Attorneys ... will be blocked from monitoring. ... [¶] I fully understand that if I choose to use the inmate telephones in any of the Santa Clara County Department of Correction jail facilities, I am doing so with the knowledge that the telephone call may be monitored and/or recorded."
Based on the Department of Correction policies, the People argue that defendant knew the phone calls to his family members might be monitored or recorded. The People continue that because defendant knew the calls might be monitored, he also knew that any conversation he had with his attorney during those calls might be exposed to jail authorities. And because defendant exposed his attorney conversations to monitoring by jail authorities during the three-way calls, the People contend that "the contents of those conversations were not confidential and were not privileged."
We find no waiver of the attorney-client privilege. The Department of Correction Notice of Telephone Monitoring Policy unequivocally states that attorney-client "telephone calls are considered confidential communications and will not be knowingly monitored or recorded without a warrant." The Inmate Orientation and Rulebook has a functionally identical statement regarding the confidentiality of attorney-client communications. Neither the Notice nor the Rulebook states that attorney-client telephone calls will be considered confidential only if the calls are made to the office of an attorney who has registered his or her number with the Department of Correction. By following his private attorney's direction to contact her via three-way telephone calls, defendant inadvertently opened his telephone calls to monitoring and recording. Inadvertent disclosure does not constitute a waiver of the privilege.
The People's argument that the communications are not privileged also contradicts a statement in the record attributed to the prosecutor. Defendant's deputy public defender declared that Slater advised her "that his office's Ethic's [sic] advisor informed him that we needed to obtain 'defendant's written consent to release the recordings that include his communications with [defendant's former attorney] since he is the holder of the attorney-client privilege.' " Had defendant waived the privilege, his consent would have been unnecessary.
2. California and Federal Constitutional Arguments
Defendant argues that the district attorney's conduct violated his rights to due process and the assistance of counsel under the California and federal Constitutions. He argues that his case presents facts similar to those at issue in Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), where the Supreme Court found that an undercover police officer's repeated involvement in meetings with a group of defendants and their attorneys required dismissal of all charges as a sanction for the unconstitutional conduct. (Id. at pp. 759-760.) The People argue that this case is more factually similar to People v. Alexander (2010) 49 Cal.4th 846 (Alexander), where the Supreme Court found that the unintentional police interception of one call between the defendant and a defense investigator was harmless error. (Id. at pp. 895-899.)
In Barber, two undercover peace officers participated in planning meetings with protesters and attended a sit-in protest near the Diablo Canyon nuclear facility. (Barber, supra, 24 Cal.3d 745-747.) One officer (Officer Lee) and other protesters were arrested for trespassing. Officer Lee participated in attorney-client conferences involving strategy discussions with the other defendants and the group's two attorneys. The judge who arraigned the defendants (and possibly the deputy district attorney prosecuting the case) was aware early in the case that undercover officers had been arrested, but defense counsel were not informed. Officer Lee continued attending meetings with the defendants and their attorneys, even going so far as to draw a map of the scene of the sit-in. Meanwhile, Officer Lee periodically provided oral reports to his superior officers about the case. When new counsel substituted in for the defendants, the arraigning judge informed the attorney about Officer Lee's identity, leading to a motion to dismiss that the trial court denied. In support of that motion, the new attorney argued that after learning Officer Lee was an undercover officer, the remaining defendants had become paranoid and distrustful. The attorney argued that his ability to assist the defendants had been substantially impaired. (Id. at pp. 747-750.) The defendants sought pretrial review of that decision by petition for writ of prohibition, which the Supreme Court granted. (Id. at p. 760.)
In Alexander, the prosecution obtained a warrant to monitor and record calls from the defendant's parents' home. (Alexander, supra, 49 Cal.4th at p. 884.) That wiretap operation recorded a call involving the defendant, his mother, and the defense investigator. Several subjects concerning the trial were discussed during the call. (Ibid.) The detective who supervised the wiretap operation and a district attorney's office investigator both learned the contents of the call, either by listening to it or by reading a summary prepared by the investigator. During a hearing on a motion to dismiss, the detective and the investigator each testified that neither individual communicated the call's contents to anyone on the prosecution team. (Id. at pp. 885-886.) There was no evidence presented that the defendant's relationship with his attorney suffered after they discovered the wiretap operation. (Id. at p. 890.) Reviewing the defendant's conviction and capital sentence, the Supreme Court found no federal constitutional violation and found that any error under article I, section 15 of the California Constitution was harmless. (Id. at pp. 895-899.)
We find the facts of the instant case more similar to those presented in Alexander. The prosecution here did not intentionally record attorney-client communications; the recordings were the product of the otherwise lawful recording of defendant's calls from the jail. Though Storton apparently listened to some or all of the attorney-client communications, she listened to the communications for the express purpose of identifying privileged communications and withholding them from Slater, the prosecuting deputy district attorney. Slater stated that he never learned the contents of the recordings, and there is no evidence to contradict that statement. The only material factual difference between Alexander and the instant case is that defendant here stated in his declaration that he was "reluctant to engage in a full and frank conversation" with the defense team after learning about the recordings because he feared those conversations would be monitored and released to the prosecution. We will discuss that distinction as it applies to defendant's constitutional arguments.
a. California and Federal Constitutional Rights to Due Process
Defendant argues that the district attorney's office engaged in "outrageous conduct" that violated defendant's rights to due process under the California and federal Constitutions. Article I, section 7, subdivision (a) of the California Constitution and the Fourteenth Amendment to the United States Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. Prosecutorial misconduct can violate a defendant's right to substantive due process and result in dismissal of an action when a prosecutor engages in outrageous conduct that shocks the conscience. (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259-1260 (Morrow); Alexander, supra, 49 Cal.4th at p. 892 ["Arbitrary official action can violate a defendant's substantive due process rights, but 'only the most egregious official conduct can be said to be "arbitrary in the constitutional sense." ' "].) Determining whether the government engaged in outrageous conduct is a mixed question. We review the trial court's determination of whether misconduct occurred for substantial evidence. If misconduct occurred, "whether the governmental conduct constitutes outrageous conduct in the constitutional sense of violating defendant's due process rights" is subject to independent review. (People v. Uribe (2011) 199 Cal.App.4th 836, 857-858.)
In denying defendant's motion to dismiss, the trial court concluded that defendant had not been denied a substantial right. Implied in that decision is a finding that the prosecution did not engage in outrageous misconduct. Substantial evidence supports that implied finding. The jail did not intentionally record defendant's attorney-client communications. They were recorded according to the jail's policy of recording calls not made to attorneys. As the trial court noted, "[c]ounsel should remember that it was defendant's previous counsel [who] caused the calls in question to be recorded" by requiring defendant to call her through three-way telephone calls. And Storton listened to the calls not for the improper purpose of gathering information to use in the case, but rather for the purpose of redacting communications so that the prosecuting deputy district attorney would never hear defendant's attorney-client communications. The district attorney's office was presented with a difficult situation that had no easy solution. While involving defense counsel immediately upon discovering the attorney-client communications would have been advisable, substantial evidence nonetheless supports the trial court's conclusion that no misconduct occurred.
Defendant relies on Morrow, supra, 30 Cal.App.4th 1252. In Morrow, the prosecutor instructed her investigator to sit next to the door to a holding cell where she knew the defendant was discussing his case with his attorney. A bailiff later testified that the investigator appeared to be listening to the conversation for around five minutes and then walked back to the prosecutor and whispered something to her. During later investigations, the prosecutor provided inconsistent explanations for why she sent the investigator to eavesdrop on the defendant's discussion with his attorney. After the trial court denied the defendant's motion to dismiss, the defendant petitioned for a writ of prohibition, which the reviewing court granted. (Id. at pp. 1255-1258.)
In granting the petition, the Morrow court concluded that the prosecutor had engaged in outrageous conduct that violated the defendant's rights to counsel and due process under the California and federal Constitutions. (Morrow, supra, 30 Cal.App.4th at pp. 1259-1261.) The court reasoned that when a "prosecutor orchestrates an eavesdropping upon a privileged attorney-client communication in the courtroom and acquires confidential information, the court's conscience is shocked and dismissal is the appropriate remedy." (Id. at p. 1261.) The court found the conduct particularly egregious because it "took place within the hallowed confines of the courtroom where the rule of law and fairness should be revered." (Ibid.)
Morrow is distinguishable. Here, the recordings were unintentional, the prosecuting district attorney never learned the contents of the attorney-client communications, and Storton listened to the recordings solely for the purpose of ensuring that the prosecuting district attorney would never hear the communications. Defendant has not demonstrated a violation of his constitutional right to due process.
We do not address defendant's claim that "section 636 rendered [Storton] a felon when she listened to the tapes" as the issue is not relevant to defendant's arguments on appeal.
b. California Constitutional Right to Counsel
Defendant argues that "the government's blatant interference with appellant's right to private consultation with his lawyer" violated article I, section 15 of the California Constitution and requires reversal. Article I, section 15 of the California Constitution states, among other things, that a "defendant in a criminal cause has the right to ... have the assistance of counsel for the defendant's defense." With that right comes "the right to private consultation with counsel, [which] is violated when a state agent is present at confidential attorney-client conferences." (Barber, supra, 24 Cal.3d at p. 752.)
The Supreme Court in Alexander appeared to question the applicability of the broad language used in Barber that any government interference with a defendant's attorney-client communications invariably violates the California Constitution. (See Alexander, supra, 49 Cal.4th at p. 895 ["One might question whether the circumstances in the present case warrant a conclusion that defendant's state constitutional right to counsel was violated, notwithstanding broad language used in the much more egregious circumstances of Barber that suggests it is invariably the case that '[t]he right to counsel, which embodies the right to private consultation with counsel, is violated when a state agent is present at confidential attorney-client conferences.' "].) But the Alexander court concluded that, even assuming error, reversal was not warranted. In rejecting the per se reversal standard applied in Barber, the court noted that "Barber involved an application for a pretrial writ of prohibition, while the present case is an appeal from a judgment of conviction and sentence." (Alexander, at p. 896.) When challenging government interference by direct appeal, generally "a defendant having proved error must further establish there exists a reasonable probability he or she would have obtained a more favorable outcome in the trial of guilt or innocence were it not for the error." (Ibid.; citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Cal. Const., art. VI, § 13.) The court also distinguished cases finding structural error, noting that the defendant in Alexander "had counsel, and his attorney vigorously pursued his interests throughout the trial." (Alexander, at p. 896.) The Alexander court questioned, without deciding, "whether in some other case a violation of the right to counsel resulting from government interference with the attorney-client relationship could be considered a miscarriage of justice without requiring the defendant to establish a reasonable probability of a more favorable outcome." (Id. at p. 896, fn. 28.)
Following Alexander, we will assume that defendant's right to counsel under the California Constitution was violated when his attorney-client communications were recorded and provided to the district attorney's office. As for the applicable prejudice standard, defendant argues that his case represents the " 'other case' " referred to in Alexander where the governmental misconduct was so severe that it constituted a miscarriage of justice without requiring defendant to establish prejudice. But as we already concluded, substantial evidence supports the trial court's finding that the district attorney's office did not engage in misconduct, much less outrageous or aggravated misconduct. We will therefore apply the Watson standard of prejudice.
In conducting harmless error analysis, the Alexander court looked to whether the prosecution gained anything from intercepting the communications and whether the defense was negatively affected by the interception. (Alexander, supra, 49 Cal.4th at p. 899.) There is no evidence here that the prosecution benefited in any way from the recorded communications. Slater stated in his declaration that he never listened to the substantive content in the communications, and defendant presents no evidence to dispute that statement.
As for negative effects on the defense, both defendant and his trial counsel testified in declarations that defendant was afraid to have full and frank discussions about the case because he believed his communications would be recorded and provided to the prosecution. But defendant's fear was not due to any misconduct by the prosecution. It was caused by his former counsel's failure to understand the jail's policy of recording any calls not made to an attorney. And even assuming defendant's fear was reasonable that the jail might continue to record his telephone calls, he does not explain why those attorney-client conversations could not have occurred in person at the jail instead. The deputy public defender's declaration specifically refers to defendant's fear that the district attorney's office "might listen to those calls" between trial counsel and defendant, but does not state whether any effort was made to meet with him in person.
Defendant's trial counsel advocated zealously for defendant before, during, and after trial. And the evidence presented at trial in the form of Doe's extensive testimony about the charges and Setterlund's testimony about the SART exam provided ample evidence on which to convict defendant as charged. On this record, though the recordings may have negatively affected the defense to some degree, we find any error under article I, section 15 of the California Constitution was harmless.
c. Federal Constitutional Right to Counsel
Defendant argues the district attorney's office's actions violated his Sixth Amendment right to counsel by interfering with his attorney-client relationship. A similar argument was rejected by the Supreme Court in Alexander.
Based on United States Supreme Court precedent, the Alexander court stated that "the right to the assistance of counsel is violated either by (1) the complete denial of counsel or its equivalent, or (2) the denial of the effective assistance of counsel." (Alexander, supra, 49 Cal.4th at p. 888.) The Alexander court noted that while "the high court did not establish a definitive standard for determining when surreptitious state participation in communications between a defendant and his or her attorney ... does violate the Sixth Amendment, it stated that unless the record supports 'at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation.' " (Ibid., quoting Weatherford v. Bursey (1977) 429 U.S. 545, 558.) The Alexander court concluded that there was no Sixth Amendment violation because the defendant did not identify any specific evidence offered by the prosecution that might have been taken from the confidential communication at issue, and the record supported a finding that the officer who had intercepted the communication did not convey its contents to the prosecutor. (Alexander, supra, at p. 889.)
As defendant does not argue his trial counsel was ineffective, we focus on whether the conduct of the district attorney's office caused the equivalent of a complete denial of counsel. Defendant attempts to distinguish Alexander and other cases finding no Sixth Amendment violation as all involving situations where police intercepted confidential communications, whereas here it was a prosecutor who was privy to the confidential information. But the status of the person who learns the confidential information is less important than whether that information is ever actually shared with the person prosecuting the case. Here, there is no evidence Storton shared any information from the telephone calls with the prosecuting attorney Slater. Defendant has not identified any specific evidence presented at trial that he suspects was developed from information obtained in his confidential communications. And while defendant argues he was injured because his fear of being recorded interfered with his ability to confer with counsel, that injury is not of such a magnitude as to equate to the complete denial of the assistance of counsel. (Alexander, supra, 49 Cal.4th at p. 888 [noting that reversal without showing of prejudice based on Sixth Amendment violation only possible on showing of complete denial of counsel or other " ' "circumstances of that magnitude" ' "].) As we have noted, defendant's fear that the jail would violate its own policy and record future telephone calls with his attorney did not foreclose his ability to meet in person with defense counsel.
Many of the cases defendant cites are distinguishable because they involved intentional interference with the attorney-client relationship and acquisition of confidential information by the person actually prosecuting the case. (E.g., Shillinger v. Haworth (10th Cir. 1995) 70 F.3d 1132, 1134-1135, 1141 [finding Sixth Amendment violation where prosecutor instructed deputy sheriff to listen to the defendant's private attorney-client strategy discussions and the deputy later disclosed the contents of those communications to the prosecutor]; U.S. v. Levy (3d Cir. 1978) 577 F.2d 200, 204-205, 208 [reversing judgment and directing lower court to enter order dismissing indictment where DEA informant who was represented by the same attorney as a co-defendant obtained information about defense strategy at DEA's request and shared that information with the DEA and the prosecutor"].) Neither circumstance is present here.
Because defendant has not demonstrated a realistic possibility of injury to the defense or benefit to the prosecution, he has not demonstrated a violation of his Sixth Amendment right to counsel.
B. EVIDENCE THAT DOE REFUSED A $30,000 BRIBE
Defendant argues that the trial court abused its discretion and violated his federal constitutional due process right to a fair trial by admitting unduly prejudicial evidence that Doe refused a $30,000 offer not to testify. Evidence Code section 352 compels exclusion of evidence when its probative value is substantially outweighed by the risk of, among other things, undue prejudice. (Evid. Code, § 352.) We review the trial court's resolution of an Evidence Code section 352 objection for abuse of discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) The admission of evidence "results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.)
1. Background
During cross-examination of Doe, defense counsel impeached Doe's credibility by introducing evidence that Doe had previously lied on a resume by listing a false job. Defense counsel specifically asked Doe whether "in some circumstances, you think it's okay to lie?" Doe responded: "For a job." Doe later answered, "Yes," when defense counsel asked her if "it was to your benefit when you lied" about the job.
The People filed a supplemental motion in limine seeking to introduce evidence that Doe's half-sister S.C. had offered Doe $30,000 that would be paid by an unidentified man if Doe agreed not to testify in the case. S.C. initially made the offer to Doe after jury selection had begun and repeated the offer the day before Doe was scheduled to testify during a recorded pretext call arranged by a district attorney's office investigator. The People sought admission of the offer and Doe's rejection for the limited purpose of rehabilitating Doe's credibility, specifically her character for honesty that had been impeached during cross-examination.
Defendant objected to admission of the bribe evidence, arguing that it was unduly prejudicial because the jury would speculate that defendant was the person who directed S.C. to make the bribe and that an admonition would not cure the prejudice. The court overruled defendant's objection and admitted the evidence in the form of the following stipulation which was read to the jury: "It is stipulated by the parties that on Wednesday, September 11, 2013, [Doe] was offered $30,000 not to testify in this case. Ms. Doe declined the offer. The offer was not made by Mr. Chambers or any witnesses or any attorneys in this case. And there is no evidence that Mr. Chambers or any witnesses or any attorneys in this case knew of or were involved in the offer to Ms. Doe. [¶] You may use this evidence only in evaluating the credibility of [Doe] and for no other purpose. You may not use this as evidence of Mr. Chambers' guilt."
2. No Error in Admitting the Bribe Evidence
Though Evidence Code section 787 provides that "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness," that rule is no longer applicable in criminal cases because the California Constitution provides that, subject to Evidence Code section 352 and other exceptions not relevant here, "relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f)(2); People v. Harris (1989) 47 Cal.3d 1047, 1081 [addition of truth-in-evidence language to Constitution "effected a pro tanto repeal" of Evidence Code sections 786 and 787 in criminal cases].)
Defendant first attacks the probative value of the evidence, arguing that it had little tendency in reason to establish Doe's credibility because accepting the bribe would have been a felony. (Citing § 138, subd. (b) ["Every person who is a witness ... who receives ... any bribe, upon any understanding that his or her testimony shall be influenced thereby, or that he or she will absent himself or herself from the trial or proceeding upon which his or her testimony is required, is guilty of a felony."].) But $30,000 is a substantial sum. Doe's refusal to accept the offer was relevant to her character for honesty because an honest person would likely choose to testify and forego the possibility of financial gain for not doing so.
Regarding the risk of undue prejudice, defendant argues that "a rational juror would almost certainly conclude that appellant participated in the bribe since he was the only person who had anything to gain from taking such an action." But the jurors were explicitly admonished that the offer was not made by defendant, that there was no evidence defendant knew about the offer, and that the jurors "may not use this as evidence of Mr. Chambers' guilt." We presume the jurors followed those specific instructions. (People v. Boyette (2002) 29 Cal.4th 381, 453.)
Defendant relies heavily on U.S. v. Perez (11th Cir. 1994) 30 F.3d 1407 (Perez). In Perez, defense counsel questioned a prosecution witness extensively regarding the amount of money he was receiving from the prosecution for testifying in the case. Over the defendant's objection, the trial court allowed the prosecution to elicit testimony on re-direct that the witness had refused an "offer from two Cuban individuals of $5,000 not to testify at trial." (Id. at p. 1410.) The Perez court concluded the evidence was inadmissible because under the Federal Rules of Evidence, in most situations "direct examiners cannot bolster the credibility of their own witness by eliciting evidence of specific acts." (Id. at pp. 1410-1411, citing Fed. Rules Evid., rule 608(b) ["Except for a criminal conviction ... , extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness."].) The court also found the evidence unduly prejudicial under the federal equivalent of Evidence Code section 352. The court ultimately found the error harmless because the district court gave a curative instruction and the government's case against the defendant was otherwise strong. (Perez, at p. 1411.)
Perez is distinguishable because the evidence in question was wholly inadmissible as character evidence under the Federal Rules of Evidence. As the evidence was inadmissible, it had no probative value against which the risk of prejudice could be balanced. By contrast, the evidence here that Doe refused a bribe was admissible to rehabilitate her character for truthfulness and was subject to exclusion only if its probative value as character evidence was substantially outweighed by the risk of undue prejudice. The bribe evidence was probative and the trial court properly admonished the jury of its limited purpose. We find no abuse of discretion. And because the evidence was admissible under state law and was not so prejudicial as to render defendant's trial fundamentally unfair, his federal due process argument is without merit.
C. DEFENDANT'S DEROGATORY STATEMENTS TOWARD HOMOSEXUALS
Defendant argues that the trial court erred by admitting irrelevant and unduly prejudicial derogatory statements about homosexuals that defendant made during jail telephone calls, and that admitting that evidence violated his federal constitutional due process right to a fair trial. We review the trial court's decision to admit the statements for abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523; People v. Thomas (2011) 51 Cal.4th 449, 485.)
1. Defendant's Statements and Procedural Background
Regarding statements defendant made during recorded jail telephone calls that were derogatory toward homosexuals, the prosecutor argued that they were relevant to defendant's motive for the attack, namely "he raped her to show her that he is not gay." Over defendant's relevance and prejudice objections, the trial court admitted an audio recording of the statements into evidence.
As relevant here, the jury heard the following:
Misspellings are copied verbatim from the transcript of the calls that was provided to the jury.
"I let her know, you know what I'm saying, shit, girl, somethin', some, I don't know what you think, I'm not fuckin' gay or nothin', I don't know what, what kinda, what made you think I was, whatever crossed your mind to think that I was fuckin' gay, or got any kinda tendencies—bitch, I don't have, I'm 100% straight up nigga. I'm a hardcore Zulu motherfuckin' warrior, biatch."
"I'm goin' through changes right now man, they got me up on this ward, man, these people around here ain't nothin' but gay people and fucking baby molesters. [¶] They, gay molesters. ... These people are registered sex offenders, almost every fuckin' one of 'em."
"I just don't understand that, man, just give us some break ... , I mean, I could understand the rest of these uh, perverts and baby rapers, and, and these gay people are everywhere, they are frickin', auugghh, repulsive, baby, oh, you just don't know, I put my hand over the phone so I can't touch nothin', man, I wipe it."
"[I]t's ridiculous. I mean, these so many gay people around here, it's, and they are just like no shame in their game."
"Swear I'm going to be around the mother fucker snitches and queers and shit. Hate them mother fuckers down there man. Want to crack them bitches in the head so bad I don't know what to do."
2. Defendant's Statements Were Relevant
To be relevant, statements must have "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Defendant argues that his statements were irrelevant to proving his motivation for attacking Doe because "it was undisputed that sex acts occurred" and "appellant's animosity towards gays had no tendency in reason to prove whether Ms. Doe gave her consent." But lack of consent was not the only disputed issue at trial. The prosecution also had to show that the sex acts were accomplished "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2); see also §§ 288a, subd. (c)(2)(A); 289, subd. (a)(1)(A).)
Doe testified that defendant jumped up and looked surprised when she questioned his sexual orientation. She also testified that after defendant finished having sex with her the first time he said " 'oh, I thought you said I was gay.' " Based on that testimony, the prosecution's theory regarding defendant's motive was that he became upset when Doe challenged his sexuality and engaged in various sex acts with Doe against her will by force or fear to "prove" his heterosexuality. Defendant's recorded derogatory statements about homosexuals were relevant to buttress the prosecution's theory because an individual with strong antipathy toward homosexuals might be more inclined to use force to "prove" his heterosexuality by having nonconsensual sex with a woman than an individual who had more neutral views. As the statements had some tendency in reason to prove a disputed fact, the trial court did not abuse its discretion in finding them relevant.
3. Defendant's Statements Were Not Unduly Prejudicial
Defendant argues that because "Santa Clara County is a place where there has long been substantial support for the rights of homosexuals," the evidence was unduly prejudicial because it was "virtually certain that a number of jurors would find appellant's attitude towards homosexuals to be abhorrent." We have found absolutely nothing in the record to support defendant's speculation about the purported beliefs of Santa Clara County residents.
Even assuming that jurors might view defendant less favorably after hearing the statements, Evidence Code section 352 uses the word prejudice " 'in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) Defendant's opinion of homosexuals was not an extraneous factor; it was relevant to the prosecution's theory that defendant raped Doe in order to prove his heterosexuality. The trial court could reasonably conclude that the risk of undue prejudice did not substantially outweigh the statements' probative value.
Defendant relies on Cohn v. Papke (9th Cir. 1981) 655 F.2d 191 (Cohn), a 42 U.S.C. § 1983 action alleging that police had violated Cohn's constitutional rights. Cohn had been arrested for soliciting a male police officer to engage in a sex act. Cohn testified that he had not solicited the officer and that the officer misinterpreted his actions (Cohn contended that he was gathering information for a newspaper article about police vice operations). Over Cohn's objection, the district court allowed defense counsel to impeach Cohn by asking him whether he was bisexual and also admitted portions of Cohn's previous psychiatric evaluations that included a statement by Cohn to a psychiatrist that he was bisexual. (Id. at pp. 192-193.) The appellate court found it doubtful "whether some of this evidence was even relevant in the most basic sense" as impeachment evidence because "Cohn had never claimed that he was heterosexual" and "the only references to his sexual preferences and experiences made in court were made during cross-examination." (Id. at p. 193.) The court also found the evidence inadmissible as character evidence because the defendants "were not just trying to prove that Cohn was homosexual and would have committed a homosexual act that night, but they were also trying to prove that he was homosexual and would have solicited a homosexual act." (Id. at p. 194.) Finally, the court found the evidence unduly prejudicial in light of its "very slight probative value" because there "was a clear potential that the jury may have been unfairly influenced by whatever biases and stereotypes they might hold with regard to homosexuals or bisexuals." (Ibid.)
Cohn is distinguishable. Unlike the evidence in Cohn that the court found was almost entirely irrelevant, defendant's recorded statements here were relevant to proving his motivation for the alleged attack. Because the statements had comparatively greater probative value than those in Cohn, the trial court here could reasonably find that the risk of undue prejudice did not substantially outweigh their probative value. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596 ["The appellate court may not interfere with the trial court's determination to admit the evidence, unless the trial court's determination was beyond the bounds of reason and resulted in a manifest miscarriage of justice."].)
We find no abuse of discretion in the trial court's admission of defendant's statements. Because the evidence was admissible under state law and was not so prejudicial as to render defendant's trial fundamentally unfair, his federal due process argument is without merit.
D. CUMULATIVE ERROR
Defendant argues that the various errors he identifies are cumulatively prejudicial. As the Supreme Court has noted, "[l]engthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844.) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.)
The single error we identified, a violation of defendant's right to counsel under the California Constitution, was individually harmless. As we have found no other errors, defendant's cumulative error argument must fail.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P.J. /s/_________ Mihara, J.