Opinion
H042804
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ELIZIEL JACOBO FELIX, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1352611)
Following a jury trial, Eliziel Jacobo Felix was found guilty of rape by force, violence, or fear (Pen. Code, § 261, subd. (a)(2)). The jury also found true the special kidnapping allegation (§ 667.61, subds. (a), (d)(2)). The victim was his stepdaughter, T. Doe. The trial court sentenced defendant to an indeterminate prison term of 25 years to life. Defendant appeals from the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court abused its discretion or prejudicially erred by (1) denying his Marsden motion (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), (2) denying a requested instruction regarding defendant's belief that the alleged victim consented to sexual intercourse, (3) failing to instruct on several offenses characterized as lesser-included offenses of rape, (4) denying a defense request to instruct the jury on section 667.61, subdivision (e)(1) as a "lesser included enhancement," and (5) denying his motion for a new trial. He also raises a cumulative prejudice argument. We find all these contentions meritless and affirm the judgment.
I
Evidence
Defendant married T.'s mother when T. was about eight years old. In March 2013, T. was 17 years old and living with her mother, defendant, and her three younger brothers (half-brothers) in a San Jose apartment.
Defendant sometimes acted jealous of T.'s relationships with boys. When T. was a teenager, T. found a letter, handwritten in Spanish by defendant, in a notebook in defendant's black Expedition. The letter said that defendant liked T. and that he became jealous when he saw her "talking with other guys." T. had no romantic interest in her stepfather. T. told her mother about the letter.
It was T.'s recollection that after she disclosed the letter to her mother, her mother and defendant argued, and they temporarily separated for about two months. T.'s mother, brothers, and T. went to live with her mother's sister in Fremont. After they moved back in with defendant, defendant apologized for the letter. T. still felt uncomfortable with defendant because of the letter and worried about living in the same apartment as him.
T. further testified at trial that she had a cell phone growing up. In March 2013, she had a cell phone, and she paid for it. She sometimes took photos of herself, which were stored on her phone, and sent them to friends. She denied sending photos of herself to defendant. Defendant occasionally borrowed her cell phone to make calls to Mexico.
In 2010, T.'s 21-year-old male friend activated a cell phone for her without her parents' permission. When defendant found out, defendant and her friend got into an argument, and defendant took T.'s phone away. Because of that cell phone incident, T. left home for a night without telling her parents.
The police were called the following morning, and on February 10, 2010, an officer was dispatched to respond to a missing person report. The officer did not find T. at the home of her adult male friend. The officer eventually found T. at her middle school. T. told the officer that her parents were too controlling and they would not allow her to dress how she wanted to dress. T. claimed to have spent the night with a girlfriend. She also mentioned to the officer that defendant had tried to kiss her about "a year before."
On February 26, 2010, Beatrice Ballesteros-Kogan, a social worker employed by Santa Clara County Department of Family and Children Services, responded to an incident involving an allegation by T. that defendant had attempted to kiss her on the mouth. T.'s mother indicated that she had separated from defendant for about one month as the result of the incident. At trial, T. recalled telling social workers that defendant became jealous when she talked "to other guys."
On Friday March 15, 2013, T. was working at McDonald's. After she finished her shift at McDonald's, T. went to a party with friends. T. did not ask for her mother's or defendant's permission to go out or tell them that she was going to go out with friends because she knew they would not allow her to go. That evening, T. spoke with her mother on the phone, she let her mother know where she was. T.'s mother was upset with T.
At approximately 2:00 a.m. on Saturday March 16, 2013, T.'s friends dropped her off in front of the apartment complex where she lived and drove off. She had been drinking that night, and she felt a little "buzzed." On a scale of one to 10, with one being sober and 10 being drunk, T. estimated that she had been about "a six."
T. testified that as she was walking toward her apartment but still outside the fence separating the apartment complex from the street, she saw defendant running toward her. Defendant grabbed her by the hair and pulled her to his black Expedition. He was slapping and punching her in the face. He struck her eye with a closed fist. He was calling her "stupid" and "bitch." T. screamed for help, but no one responded. Defendant put her in the back seat of the Expedition and closed the door. She was unable to open the back door because of child locks.
T. testified that defendant began driving, and he pulled over at a liquor store, which was closed. When T. tried to jump to the front seat to get out of the vehicle, defendant hit her. At trial, T. described defendant as being "really drunk" that night.
At trial, T. believed that she had fainted and lost consciousness. When she regained consciousness, T. did not know where she was at first. She then realized she was in the parking lot of a VTA light rail station. She told defendant to take her to the hospital because she "wasn't feeling good." She was crying. Defendant continued calling her "bad words," he moved into the back seat, and he began hitting her. Defendant began to "touch [her] boobs" and other places, and he continued to hit her. At trial, T. claimed that defendant had never gone underneath her clothing, but she also testified that he had pulled down her pants.
At trial, T. denied that defendant had tried to have sex with her or had raped her. She also denied having consensual sex with defendant. T. acknowledged, however, that she had spoken with police on the day of the attack, had told the police what had happened, and she had said that defendant had raped her.
Defendant had driven from the VTA parking lot to a motel, parked next to the lobby entrance, and exited the vehicle. After defendant had gone into the motel, T. reached into the front passenger seat from the back seat and retrieved clothing. She climbed into the front seat dressed, pulled on footwear, exited the vehicle through the front passenger-side door, and walked to the rear of the vehicle. She did not run because she was not "feeling good" and felt "lost and didn't know what to do." Defendant came back to the vehicle, opened the driver's side door, climbed part way in and looked into the backseat, got out and looked toward the rear of the vehicle, walked to the rear of the vehicle where he found T., and forcibly returned her to the backseat of the Expedition.
As soon as defendant went into the motel again, T. climbed into the front seat of the Expedition, opened the front passenger door and got out of the vehicle, ran into the parking lot behind the vehicle, and hid in the dark not far from the motel. Defendant came out and looked and took several steps toward the parking lot in the direction in which T. had run. He got into the driver's seat, and drove the vehicle, with its lights on, through the porte cochere adjacent to the motel's lobby and back into the parking lot in the direction in which T. had run. From her vantage point, T. could see the vehicle and then saw it leave the area.
After defendant's Expedition was gone, T. went into the motel and asked for help. The wife of the manager of the motel, located on Monterey Road in San Jose, testified that she was working at the motel on March 16, 2013 when a girl had come into the motel's lobby and asked to call 911. A 911 call was made.
The 911 call made from the motel was played for the jury. In that call, the female speaker tells the dispatcher that a Spanish girl, approximately 17 years old, had come in and asked for help and that she was bleeding from the face and crying. The caller told the dispatcher that the girl had said that her stepdad had been hurting her.
T. got on the phone and spoke with the 911 dispatcher. She reported that her stepfather, whom she identified by full name and birthdate, had grabbed her outside her apartment, had thrown her into his vehicle, had been hitting her, and had raped her. T. told the dispatcher that her stepfather had been drunk, he had forced her to come to the motel, she had gotten away by running, and he was driving a black Expedition.
At approximately 5:45 a.m., Jonathan Valverde, a San Jose police officer, responded to the motel. A VTA parking lot was located approximately a mile away from the motel. When Officer Valverde arrived on the scene, he met with a young, Hispanic female. She was crying and "really hysterical." She was bleeding, and she had abrasions and swelling. Officer Valverde observed blood on her clothing. T. reported that her stepfather had taken her from home, beaten her up, and raped her in a VTA lot. At trial, T. acknowledged that the police responded to the motel and asked her what had happened.
At approximately 5:49 a.m. on March 16, 2013, Wei Sun, a San Jose police officer, responded to the motel. Other officers were already there when he arrived. Officer Sun took some photographs of T., which were admitted into evidence.
Michael Marchan, a San Jose police officer, arrived at the motel at approximately 5:50 a.m. on March 16, 2013. When he pulled up, he saw T. was crying. She had blood on her clothes and face, and her face appeared swollen, as if she had been in an altercation. Officer Marchan contacted the "front lobby manager," who explained the situation. At some point, the officer reviewed surveillance video. A video of the outside area adjacent to the motel's lobby was played for the jury.
T. was transported to the hospital. At the hospital, Officer Valverde obtained a more detailed statement of what had happened. T. said that she had gotten home late and that defendant had attacked her outside their apartment, hit her, thrown her into the backseat of his vehicle against her will, and continued to hit her. She said that she was unable to open the back door because of the child safety locks. T. said that defendant had driven into a dark area of a VTA lot. T. reported that defendant had jumped over the front seats to the back seat where she was, forcibly pulled down her pants and panties, penetrated her vagina with his penis several times, and ejaculated over her vaginal and thigh areas. Defendant had then driven her to the motel, where she had tried to escape. Defendant had come after her and put her back into the vehicle.
Kristine Setterlund, a registered nurse and a member of a SART (Sexual Assault Response Team), testified as an expert on SART examinations. She conducted a SART examination of T. at Valley Medical on March 16, 2013. T. arrived at the emergency room at 7:00 a.m.
As part of the examination, Setterlund collected all of T.'s clothing except her underwear, which was missing. T. disclosed to Setterlund that defendant, her stepfather, had penetrated her vagina with his penis. She indicated that defendant had covered her mouth and had his hands on her throat. At trial, T. testified that she had been taken to a hospital, had been examined by a nurse, and had told the nurse what had happened.
Setterlund found multiple injuries on T.'s body, including ecchymosis or bruising, abrasions, swelling, and tender areas, and she saw dried blood. More specifically, T. had facial trauma with "significant bruising over her left eye and across the bridge of her nose to her right eye." T. had ecchymosis or bruising on her left and right shoulder areas and across her chest and breasts. She had a linear abrasion just below her right buttocks cheek. She had scratches and bruising on her neck.
Setterlund conducted a pelvic examination of T. and took photographs. T. had "a significant laceration to her labia minora at approximately 1:00 to 2:00 o'clock." When Setterlund examined T., the laceration or tear was still actively bleeding which was unusual. Setterlund characterized the injury as "pretty significant." T. also had erythema or redness "from 2:00 o'clock all the way to 10:00 o'clock," and the area was swollen. T. complained of tenderness. Blue-dye adhered to the traumatized tissue. Setterlund found the erythema significant because it was "still present hours after the alleged assault" on the "vaginal mucosa." During the pelvic examination, Setterlund collected vaginal swabs. T. was menstruating at the time of the examination. It was Setterlund's opinion that T.'s injuries, which she had observed during the examination, were consistent with a sexual assault and inconsistent with consensual sexual activity.
Rafael Varele, a San Jose police officer, was on patrol at approximately 8:44 a.m. when he located a black Expedition parked on the shoulder of northbound 101, just north of Tully Road. It matched the description of a vehicle possibly being driven by a sexual assault suspect. The vehicle was impounded for evidentiary purposes.
Raul Martinez, a San Jose police officer and sergeant, was a district supervisor on March 16, 2013. When he had come on duty at 6:30 a.m. that day, Sergeant Martinez had been given a photograph of the individual being sought in connection with a sexual assault. While Sergeant Martinez was stopped at a red light in a marked patrol vehicle traveling westbound on Tully Road, the sergeant spotted a man with a gas can at a Valero gas station on the southeast corner of Tully Road and Alvin. The man appeared to match the photograph of the suspect, and the sergeant took the man, identified as defendant in court, into custody.
Also on March 16, 2013, Setterlund performed a physical examination of defendant. She observed some red stains on the bottom, front of his shirt that appeared consistent with blood and some lesions on his thumb and finger of his right hand. She collected various penile swabs and samples of "[s]uspected blood, dried secretions, some soil debris, . . . fingernail scrapings, [and] pubic hair." She also collected his clothing.
At approximately 1:30 p.m. on March 16, 2013, following the SART examination of T., Margaret Sandez, a San Jose police officer and a detective on the sexual assault unit, conducted a formal interview of T. in an interview room at the San Jose Police Department. At that point, defendant had been arrested. Detective Miramontes, another sexual assault investigator, was also present during the interview. T. was initially crying, and it was difficult for her to talk about the sexual assault.
During the interview with Detective Sandez, T. said that she had arrived home late, at approximately 2:30 a.m. Her stepfather had attacked her outside their apartment and taken her into his vehicle. T. said that inside the vehicle, defendant had been hitting her and punching her in the head and that he had been calling her bad words and insulting her. T. had been kicking and pushing him and trying to get out of the vehicle, but the vehicle's child locks had been on. Defendant had taken off her pants and ripped her underwear off, hurting her. Defendant had forced her to have sex with him, and he had put his penis in her vagina about four times. T. said that she had been yelling for help while defendant had been raping her, but he had put his hands over her mouth. At some point, defendant had been choking her and making it hard to breath. Detective Sandez observed bruises and scratches on T.'s neck during the interview. A clip of T.'s interview with Detective Sandez was played for the jury.
At trial, T. confirmed that she had met with Detective Sandez at the police station. When asked whether she remembered telling police that she had been wearing red butterfly underwear, T. responded, "Maybe I did." When shown a photograph of torn, butterfly-style, red underwear, T. testified that it was the underwear she had been wearing at the time of the incident, that the underwear had not been ripped when she had put them on, and that the underwear had been ripped off her. But T. denied that defendant had been the one who ripped it.
Detective Sandez also heard from T. that defendant had forced her to go to the motel with him and that while he had been renting a room, she had gotten out of the vehicle. When defendant had returned to the vehicle, he had grabbed her and put her back in the vehicle. But when defendant had gone back inside the motel, T. had gotten out again, run, and hidden.
T. told Detective Sandez that she had previously found a letter. T. indicated that defendant was jealous and that he had broken her phones when she talked to males on them. At trial, the detective testified that she had found nothing in her investigation to suggest that T. had had an affair with defendant in the past.
Detective Sandez subsequently obtained a DNA sample by swabbing the inside of defendant's cheek. She had also driven from defendant's apartment to the VTA parking lot on Monterey Road and determined it was approximately six miles away. The detective took photographs at the location.
Kevin Kellogg, a criminalist with the Santa Clara County Crime Lab, testified as an expert in forensic DNA analysis. He assisted another criminalist with processing a black Ford Expedition. When stains were found, he performed presumptive tests for semen or blood. Eleven different red-brown stains, including a stain on the middle of the second-row bench seat, tested presumptively positive for blood. A broken necklace and a tan rag found near the third-row bench seat "and floor area" both tested presumptively positive for blood. The driver's door, the driver's seat, and the center front edge of the third-row bench seat tested presumptively positive for semen. A pair of red underwear was found in the front, right passenger area. Evidence from the Expedition was collected.
Kellogg also received T.'s SART kit and swabs and samples taken from defendant. Using reference samples from T. and defendant, Kellogg developed DNA profiles for them.
Kellogg found spermatozoa on two of the vaginal swabs and T.'s feminine hygiene pad, which had been collected in T.'s SART kit. Defendant was determined to be the source of the "sperm cell fraction DNA" on the feminine hygiene pad. The non-sperm cell fraction was a mixture of DNA from at least two people, and the major profile was from T. A DNA analysis indicated that defendant was a possible contributor to the major component of the DNA mixture collected by vaginal swab.
It was determined from the testing of stained fabric cut from the front edge of the vehicle's rear seat that defendant was the source of the DNA in the sperm cell fraction obtained. In the non-sperm cell fraction, there was a mixture of DNA from at least two people. Defendant was the source of the sperm present on the swab of his penile gland. T.'s was a source of the female DNA profile found on the swab.
At trial, Kellogg agreed that it was very possible that "[i]f someone had committed a rape in the backseat of a vehicle and got[ten] sperm on their [sic] hands and then [had] touched a door or a seat," sperm would have been transferred to those locations.
Sophia Harper, an emergency response social worker for Santa Clara County Children's Protective Services, went to the police station on March 16, 2013. When Harper contacted T., T. "had a lot of bruises and marks on her body, face, [and] arms" and she had a black eye. T. told Harper that defendant had broken three of her phones in the past. T. seemed more concerned about her mother and her brothers than herself. T.'s mother, who was also at the station, asked how she was going to pay the bills.
At trial, T. testified that she was sent to a group home after the incident, and social workers explained to her that she had been placed in the group home because her mother had failed to protect her. Because of the incident and her separation from her mother and younger brothers, T. became depressed. At trial T. acknowledged that she had told the social workers that she felt bad that her younger brothers were going to grow up without their father because of what had happened to her.
When asked at trial whether she wanted defendant to be punished for what he did to her, T. said no. T. agreed that, if it were up to her, defendant would go home to her younger brothers and have a relationship with them. She indicated that she loved her brothers and her mother. At the time of trial, T.'s mother was still married to defendant.
Sylvia Roque, a social worker supervisor with Santa Clara County Department of Family and Children Services at the time of trial, was a dependency investigator for the department in March 2013. Roque had investigated T.'s dependency case that had arisen from the incident. T. had told Roque that when she was 13 or 14 years old defendant had written a letter to her in which he said that "he liked her" and he was jealous when she talked to other males. At the time of the dependency investigation, T.'s mother had expressed her belief that defendant had raped and beaten T. and T.'s mother indicated that she would support T. and keep her safe if T. were returned to her custody. T. had been allowed to return home.
II
Discussion
A. Marsden Motion
On appeal, defendant asserts that the trial court abused its discretion by denying his Marsden motion against his attorney, deputy public defender Lara Wallman.
1. Governing Law
A criminal defendant has the right to the assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. When a defendant brings a Marsden motion "to obtain a new court-appointed counsel on the basis of inadequate representation, the court must permit [him or her] to explain the basis of [his or her] contention and to relate specific instances of inadequate performance." (People v. Rodriguez (2014) 58 Cal.4th 587, 623 (Rodriguez).) "The court must appoint a new attorney if the record clearly shows the current attorney is not providing adequate representation or that the defendant and counsel have such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (Ibid.)
"Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge." (People v. Clark (2011) 52 Cal.4th 856, 912 (Clark).) "If the court holds an adequate [Marsden] hearing, its ruling is reviewed for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 431.)" (Rodriguez, supra, 58 Cal.4th at p. 623; see People v. Jones (2003) 29 Cal.4th 1229, 1245 (Jones).)
2. Procedural History
On April 9, 2015, prior to the filing of the parties' motions in limine and prior to trial, defendant told the court that he did not want Wallman to continue representing him. Wallman had already successfully obtained a discovery order against Metro PCS and AT&T.
Defendant told the trial court that Wallman was not "qualified for this type of case," but he offered no reasons to support a belief that she was not qualified to act as a criminal defense attorney in a rape prosecution. He indicated that Wallman had made statements about his case and then later denied making them. Defendant gave the example that Wallman had told him that she was going to try to have a charge dismissed so that he could "go to trial on just the one issue" but that she had subsequently denied saying that. Defendant also complained that Wallman was "asking [him] to ask for a deal" but he did "not want to ask for a deal."
The court explained to defendant that defense lawyers often attempt to find out whether the prosecutor is willing to resolve a case without going to trial. The court made clear that defendant did not have to accept the prosecutor's offer and that he had a constitutional right to a jury trial.
Wallman indicated that she was prepared to respond to any questions. In the absence of questions, she submitted the matter. Based on what defendant had said, the trial court denied defendant's request for new counsel.
3. Analysis
Defendant complains that the trial court gave no reasons for its Marsden ruling and that the denial of the motion constituted an abuse of discretion. Without any supporting citation to the record, defendant maintains that "his right to counsel was substantially impaired by Wallman's continued representation." Defendant argues that his "distrust of and alienation from Wallman was neither [a] formulaic recitation nor manufactured discontent." Defendant asserts that the record showed that Wallman and he were embroiled in an irreconcilable conflict likely to result in ineffective assistance of counsel. Defendant suggests three reasons for his mistrust of Wallman: (1) her inconsistent and contradictory statements, (2) her supposed lack of qualifications, and (3) her pressuring of him to take a plea deal that he did not want.
"The mere ' "lack of trust in, or inability to get along with," ' counsel is not sufficient grounds for substitution. [Citation.]" (People v. Taylor (2010) 48 Cal.4th 574, 600; see Clark, supra, 52 Cal.4th at p. 918.) The mere fact that a defendant received unwelcome legal advice from his counsel, such as strong encouragement to enter a plea bargain, is not an adequate basis for substitution of counsel. (See Clark, supra, at p. 914.)
Likewise, a defendant's unsubstantiated belief that defense counsel is not qualified to represent him is not enough to warrant substitution of counsel. "[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (People v. Crandell (1988) 46 Cal.3d 833, 860 (Crandell), abrogated on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
A defendant "cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney." (People v. Michaels (2002) 28 Cal.4th 486, 523.) In other words, "a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Hardy (1992) 2 Cal.4th 86, 138.)" (People v. Smith (1993) 6 Cal.4th 684, 696-697.) "A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (Crandell, supra, 46 Cal.3d at p. 860.)
Further, the Sixth Amendment right to assistance of counsel does not guarantee a "meaningful relationship" between a defendant and appointed counsel. (Morris v. Slappy (1983) 461 U.S. 1, 14.) Rapport between attorney and client is not a Sixth Amendment right. (Ibid.)
"We review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard. [Citations.]" (Jones, supra, 29 Cal.4th at p. 1245.) Defendant failed to demonstrate either that counsel had provided inadequate representation or that there was an irreconcilable conflict likely to result in ineffective assistance. No abuse of discretion has been shown. B. Refusal to Instruct on Mistaken Belief that Alleged Victim Consented to Intercourse
Defendant asserts that the trial court erred by denying the defense request for an instruction on defendant's mistaken belief that the alleged victim consented to sexual intercourse and that the error violated his rights to due process and a fair trial and his right to present a defense.
1. Background
The defense expert on cell phone forensics examined defendant's cell phone and related phone records. Evidence established that numerous text messages had been sent from defendant's cell phone number to T.'s cell phone number and vice versa during the period of August 28, 2012 to September 4, 2012. AT&T's records showed that defendant was the subscriber and user of a particular cell phone number and that messages had been sent to and from his phone number, but AT&T had not retained the text content of the messages. MetroPCS's records of subscriber information showed that a specific cell phone number was registered to T., but any text content was available from MetroPCS for only approximately 60 days after a message was sent.
On August 28, 2012, there were 20 outgoing text messages from defendant's cell phone to T.'s cell phone and 11 outgoing text messages from T.'s cell phone to defendant's cell phone. On August 29, 2012, 22 text messages were sent from defendant's cell phone to T.'s cell phone, and 11 text messages were sent from T.'s cell phone to defendant's cell phone. On August 30, 2012, 20 text messages were sent from defendant's cell phone to T.'s cell phone, and 21 text messages were sent from T.'s cell phone to defendant's cell phone. On August 31, 2012, 15 text messages were sent from defendant's cell phone to T.'s cell phone, and 25 text messages were sent from T.'s cell phone to defendant's cell phone. On September 1, 2012, one text message was sent from T.'s cell phone to defendant's cell phone. No text messages were sent on September 2, 2012. On September 3, 2012, two text messages were sent from defendant's cell phone to T.'s cell phone, and two text messages were sent from T.'s cell phone to defendant's cell phone. On September 4, 2012, 11 text messages were sent from defendant's cell phone to T.'s cell phone, and 12 text messages were sent from T.'s cell phone to defendant's cell phone.
The defense expert testified that he could see photographs of a girl had been sent from T.'s cell phone number, but he did not know whether T. had personally texted them to defendant's cell phone. He knew only that the photographs came from a cell phone registered to T. He testified that it was physically possible for someone, using another person's cell phone, to send photographs from the other person's cell phone to his own cell phone.
Defendant's sister had found defendant's cell phone in the Expedition's center console area after the police returned the vehicle to the family. After she had recharged defendant's cell phone, his sister found that photographs of T. had been sent to defendant's cell phone from T.'s cell phone. Some of the photographs had been sent on defendant's birthday, August 29.
During a discussion regarding jury instructions out of the jury's presence, defense counsel argued that "the content of the text messages [was] circumstantial evidence of a dating relationship" and warranted the giving of bracketed language in CALCRIM No. 1000, impliedly concerning the effect of evidence that defendant and the alleged victim had dated. The prosecutor disagreed because there was no evidence of any "verbal communications" by text and argued that, although there was evidence that photographs had been sent, there was also evidence that defendant had access to T.'s cell phone and had used it on occasion. The trial court questioned how a dating relationship could be inferred from the photographs and denied the request.
Defense counsel then asked the trial court to include the language concerning "reasonable belief and consent" in its rape instruction. The trial court denied the request, stating that it did not see any evidence to support such instruction.
CALCRIM No. 1000 contains the following optional, bracketed language regarding a defendant's belief that an alleged victim had consented to sexual intercourse: "The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty."
In closing argument, defense counsel conceded that defendant had beaten his stepdaughter "black and blue." But she argued that T. had texted "many, many provocative photographs" of herself to defendant's cell phone about six months prior to the incident. Based on the photographs and the number of texts, she suggested that defendant and T. were having an affair and were in a relationship. At another point, defense counsel suggested defendant and T. had had a "lover's quarrel."
Defense counsel also argued that it could be inferred that T. willingly got into the front passenger seat of the Expedition and was not abducted or kidnapped from the evidence that T.'s belongings, including clothes, were found there. Defense counsel suggested that such an inference was a reasonable conclusion that pointed to innocence, which the jury was required to accept. She contended that it did not "make sense" that nobody heard T. scream outside her apartment because there were hundreds of apartments, and she submitted that it could be inferred that T. was not screaming or yelling at that point. She asserted that the circumstantial evidence provided a basis for reasonable doubt as to T.'s consent to movement. Defense counsel maintained that the prosecution had not proven defendant's guilt or the alleged kidnapping allegation beyond a reasonable doubt. She suggested that the beating happened for a reason, defendant and T. were in a relationship and had a "lover's quarrel," and T. was not honest about it.
2. Governing Law and Analysis
In People v. Mayberry (1975) 15 Cal.3d 143, the Supreme Court "held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape because it negates the wrongful intent required for the crime. (Id. at p. 155.)" (People v. Martinez (2010) 47 Cal.4th 911, 954.) "In People v. Williams (1992) 4 Cal.4th 354, [the Supreme Court] clarified when the instruction is required. [The court] explained that, in order for the Mayberry defense to apply, the defendant must have 'honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse' based upon 'evidence of the victim's equivocal conduct,' and 'the defendant's mistake regarding consent [must have been] reasonable under the circumstances.' (People v. Williams, supra, 4 Cal.4th at pp. 360-361.) 'Thus, because the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.' (Id. at p. 362.)" (Ibid., italics added.) Moreover, "regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.]" (People v. Williams, supra, 4 Cal.4th at p. 361.)
Defendant does not cite to specific evidence of T.'s equivocal conduct that could reasonably have been misunderstood as consent to sexual intercourse with defendant on March 16, 2013. Merely getting into her stepfather's vehicle could not be considered such equivocal conduct. T.'s statements to law enforcement shortly after the incident indicated defendant had been hitting her and she had been trying to fight defendant off before he forcibly engaged in sexual intercourse with her. Even at trial, T. described defendant attacking her outside the apartment complex where they lived, forcing her into his vehicle, and hitting her and touching her inside the back seat of the vehicle after defendant had driven to the VTA parking lot. Defendant did not testify at trial. Contrary to defendant's assertion, there was no evidence that T. "acted equivocally toward [defendant's] sexual advances" on March 16, 2013. The evidence suggesting that T. had sent photos of herself to defendant and exchanged text messages (whose written content was not established) with defendant during late August and early September of 2012, more than six months before March 16, 2013, was not substantial evidence of equivocal conduct that could be reasonably misinterpreted as consenting to have sexual intercourse with defendant on March 16, 2013. The trial court properly determined that there was insufficient evidence to support the requested instruction, and the court's refusal to give the requested instruction did not violate defendant's right to present a defense, his right to due process, or his right to a fair trial. C. Failure to Instruct on Offenses Characterized as Lesser-Included
We note that in closing argument, defense counsel asserted that prosecution had failed to prove beyond a reasonable doubt that T. did not consent to sexual intercourse. She did not suggest that defendant actually and reasonably believed that T. had consented. As part of its instruction on rape, the trial court told the jury, among other things, that the People must prove that the "the woman did not consent to the intercourse" and that "[t]o consent, a woman must act freely and voluntarily and know the nature of the act."
1. Governing Law
"Whether a trial court commits error by omitting an instruction on a lesser included offense depends not only on whether the evidence supports the possible commission of an alternative crime, but whether that alternative crime constitutes a 'lesser included offense' as [the Supreme Court has] defined it." (People v. Gonzalez (2018) 5 Cal.5th 186, 197 (Gonzalez).) "A criminal defendant has a constitutional right to have his or her jury determine 'every material issue presented by the evidence' and this includes the right, where appropriate, to have the jury instructed on lesser included offenses. [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 513.) "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112, italics added.)
"Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. [Citation.] 'The rule's purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.' [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense. [Citation.]" (People v. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley), italics added.)
"To determine if an offense is lesser and necessarily included in another offense for [the purpose of jury instruction], [courts] apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. . . .' [Citation.]" (Shockley, supra, 58 Cal.4th at p. 404.) "It is a commonly stated rule that if the statutory elements of a crime include the elements of another offense, so that the first offense cannot be committed without also committing the second, the second is a 'lesser offense' that is 'necessarily included' in the first. (E.g., People v. Bailey (2012) 54 Cal.4th 740, 748 (Bailey).)" (People v. Robinson (2016) 63 Cal.4th 200, 204 (Robinson).) "If a lesser offense shares some common elements with the greater offense, or if it arises out of the same criminal course of conduct as the greater offense, but it has one or more elements that are not elements of the greater offense as alleged, then it is a lesser related offense, not a necessarily included offense. [Citation.]" (People v. Hicks (2017) 4 Cal.5th 203, 209.)
" 'Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)" (Shockley, supra, 58 Cal.4th at p. 404.) In other words, if "the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and . . . there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense." (People v. Smith (2013) 57 Cal.4th 232, 244.) But "[w]hen . . . the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense. [Citations.]" (Robinson, supra, 63 Cal.4th at p. 207.) In this case, count 1's language tracked the statutory definition of forcible rape (§ 261, subd. (a)(2)) so we will focus on the statutory elements test.
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
2. Analysis
Defendant contends that his federal and state rights to due process were violated by the trial court's failure to instruct the jury on assault with intent to commit rape, assault, and battery, each of which he characterizes as a lesser included offense of the charged rape. a. Assault with the Intent to Commit Rape
"[C]ertain sexually based offenses require a showing of only general intent, that is, the intent to commit an act 'without reference to intent to do a further act or achieve a future consequence.' (People v. Atkins (2001) 25 Cal.4th 76, 82.)" (People v. Warner (2006) 39 Cal.4th 548, 557.) Forcible rape as defined by section 261 is a general intent crime involving an act of sexual intercourse accomplished against the will of a nonspousal victim by any of the statutorily specified means. (See § 261, subd. (a)(2); People v. DePriest (2007) 42 Cal.4th 1, 48; People v. Griffin (2004) 33 Cal.4th 1015, 1022.) In contrast, assault with intent to commit rape (§ 220, subd. (a)) is a specific intent crime and there must be proof of the specific intent to commit rape. (See People v. May (1989) 213 Cal.App.3d 118, 128; People v. Rivera (1984) 157 Cal.App.3d 736, 741.) Consequently, under the statutory elements test, assault with intent to commit rape, which requires proof of specific intent to commit rape, is not necessarily included in the crime of rape, which is merely a general intent crime, despite some appellate opinions suggesting otherwise. (Cf. Bailey, supra, 54 Cal.4th at p. 749 [Escape requires only general criminal intent and, consequently, "[u]nder the elements test, attempt to escape is not a lesser included offense of escape since it requires additional proof that the prisoner actually intended to escape"]; People v. Griffin (1988) 46 Cal.3d 1011, 1030 [Since "sodomy is a general intent crime, while a lewd act on a child requires proof of the specific intent of 'arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child . . .' (Pen. Code, § 288 subd. (a)), the latter is not necessarily included in the former"]; but see e.g., In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 ["Every act of rape, of course, necessarily includes an assault"]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [assault with the intent to commit rape is a lesser included offense of rape]; People v. Ramirez (1969) 2 Cal.App.3d 345, 353 ["any rape committed by force and violence necessarily includes the crime of assault with intent to commit rape"].)
Moreover, as defendant acknowledges, "the physical evidence showed that intercourse occurred." An instruction on a lesser included offense of the charged offense is "required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. (People v. Breverman (1998) 19 Cal.4th 142, 161-162.)" (People v. Hardy (2018) 5 Cal.5th 56, 98 (Hardy), italics added.) There was no evidence from which the jury could have reasonably concluded that defendant committed an assault with the intent to commit rape but did not rape T. b. Assault and Battery
"Assault" is statutorily defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The phrase "violent injury" is " 'not synonymous with "bodily harm," but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.' " (People v. Bradbury (1907) 151 Cal. 675, 676; see People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. 2.) "An assault is an incipient or inchoate battery; a battery is a consummated assault." (People v. Colantuono (1994) 7 Cal.4th 206, 216, superseded by statute as indicated in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4.) "No actual touching is necessary [for simple assault], but the defendant must do an act likely to result in a touching, however slight, of another in a harmful or offensive manner. (See People v. Cox (2000) 23 Cal.4th 665, 674.)" (People v. Wyatt (2012) 55 Cal.4th 694, 702 (Wyatt).)
"A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) " 'Any harmful or offensive touching constitutes an unlawful use of force violence' under this statute. [Citation.] 'It has long been established that "the least touching" may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.' [Citations.]" (Shockley, supra, 58 Cal.4th at pp. 404-405.) "[A] battery cannot be accomplished without a touching of the victim. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 38-39.) Simple assault (§ 240) is an offense necessarily included within the crime of battery (§ 242). (See In re Ronnie N. (1985) 174 Cal.App.3d 731, 734; People v. Yeats (1977) 66 Cal.App.3d 874, 878.)
Even if rape within the meaning of section 261 necessarily involves willful offensive touching (see People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636 & fn. 2, disapproved on another ground People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; cf. People v. Hughes (2002) 27 Cal.4th 287, 366), an instruction on a lesser included offense of the charged offense is not required unless the "jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. (People v. Breverman (1998) 19 Cal.4th 142, 161-162.)" (Hardy, supra, 5 Cal.5th at p. 98, italics added.) Under that standard and the particular circumstances of this case, the court properly determined instructions on assault and battery were not warranted. There was strong evidence of intercourse and no evidence of consensual intercourse.
Moreover, even assuming arguendo the court's failure to instruct on simple assault and battery as lesser included offenses of forcible rape was error, it was harmless. Defendant claims the Chapman standard of review applies to such error (see Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"]), but he recognizes that the California Supreme Court has held to the contrary. He maintains that the asserted error requires reversal under both Chapman and Watson standards.
In People v. Breverman, supra, 19 Cal.4th 142 (Breverman), the Supreme Court held that "the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility" (id. at p. 165) and that "such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; [People v.] Watson [(1956)] 46 Cal.2d 818, 836.)" (Ibid.) "Although [the California Supreme Court has] long recognized the duty to instruct on lesser included offenses under California law, neither [the California Supreme Court] nor the United States Supreme Court recognizes a similar duty to instruct on lesser included offenses under federal constitutional law—at least in noncapital cases. (Breverman, supra, 19 Cal.4th at pp. 168-169; see Schad v. Arizona (1991) 501 U.S. 624, 645-647 [in capital cases, requiring at least a single noncapital third option between the capital charge and acquittal].)" (Gonzalez, supra, 5 Cal.5th at p. 198.)
Thus, even if there were instructional error, reversal would not be required under Watson. In light of T.'s physical injuries, the physical evidence that defendant engaged in sexual intercourse with her, the evidence that she ran away from defendant's vehicle and hid from defendant when he was trying to take her to a motel, her initial statements (to the motel clerk, the 911 operator, law enforcement, and the SART nurse), and the testimony of the SART nurse that T.'s injuries were inconsistent with consensual sexual activity, there is not a reasonable probability that a result more favorable to defendant would have been reached had the trial court instructed on the crimes of simple assault and battery. (See People v. Watson, supra, 46 Cal.2d at p. 836 (Watson).) D. Penalty under Section 667 .61 for Kidnapping
Defendant maintains that the trial court erred by denying his request for an instruction pursuant to section 667.61, subdivision (e)(1), based on simple kidnapping. He asserts that this penalty provision is a "lesser included enhancement" of section 667.61, subdivision (d)(2).
The information alleged that within the meaning of section 667.61, subdivisions (a) and (d), defendant kidnapped the victim and his movement of her substantially increased the risk of harm to her over and above the level of risk inherent in the underlying offense. Section 667.61, subdivision (a), mandates that, with exceptions not here applicable, "any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for 25 years to life." Section 667.61, subdivision (d)(2), specifies the following circumstance: "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." Rape in violation of section 261, subdivision (a)(2), is an offense specified in section 667.61, subdivision (c). (§ 667.61, subd. (c)(1).)
Section 667.61, subdivision (b), generally mandates that "any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." The circumstances specified in subdivision (e) include the following: "Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." (§ 667.61, subd. (e)(1).)
"[S]ection 207, subdivision (a), defines the crime of simple kidnapping . . . ." (People v. Brooks (2017) 3 Cal.5th 1, 68 (Brooks).) It provides in pertinent part: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person . . . into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a).) "[The California Supreme Court] has long recognized, however, that the movement, or asportation, of the victim must be 'substantial in character,' not slight or trivial (People v. Stanworth (1974) 11 Cal.3d 588, 601) . . . ." (Brooks, supra, 3 Cal.5th at p. 68.) "[I]n determining whether the movement is ' "substantial in character" ' [citation], the jury should consider the totality of the circumstances." (People v. Martinez (1999) 20 Cal.4th 225, 237.)
The California Supreme Court has held that a trial court's obligation to instruct sua sponte on lesser included offenses "does not encompass an obligation to instruct on 'lesser included enhancements.' " (People v. Majors (1998) 18 Cal.4th 385, 411 (Majors).) The California Supreme Court explained that "[o]ne of the primary reasons for requiring instructions on lesser included offenses is ' "to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence" '—that is, to eliminate ' "the risk that the jury will convict . . . simply to avoid setting the defendant free." ' (Schad v. Arizona (1991) 501 U.S. 624, 646-647.)" (Id. at p. 410.) It found that such "risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses. [Citation.]" (Id. at p. 410.)
Defendant suggests that the holding of Majors no longer controls because subsequent decisions "have changed the due process consideration of transactionally related enhancements." He asserts that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, including Alleyne v. United States (2013) 570 U.S. 99 (Alleyne), and the California case of People v. Seel (2004) 34 Cal.4th 535 (Seel) have "established that a transactionally related enhancement must be considered as an element of a greater offense."
In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490; see id. at p. 483, fn. 10 ["The judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense"].) Alleyne held that "any fact that increases the mandatory minimum is an 'element' [of the offense] that must be submitted to the jury." (Alleyne, supra, 570 U.S. at p. 103.) In Seel, the California Supreme Court held that, since federal constitutional law may require a sentence enhancement to be treated as an element of an offense, an appellate court's determination that the evidence was insufficient to support an allegation of deliberate or premeditated attempted murder under section 664, subdivision (a), barred retrial of the allegation under the federal double jeopardy clause. (Seel, supra, 34 Cal.4th at p. 550.)
None of the cases cited by defendant addressed whether there is a constitutional due process right to instruction on "a lesser included enhancement," either sua sponte or upon request. To date, the United States Supreme Court has not held that due process requires a trial court to instruct sua sponte on lesser included offenses, much less lesser included enhancements, in a noncapital case.
In Beck v. Alabama (1980) 447 U.S. 625 (Beck), the United States Supreme Court held that "if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case." (Id. at p. 638, fn. omitted, italics added.) In Beck, the Supreme Court declined to "decide whether the Due Process Clause would require the giving of such instructions in a noncapital case." (Id. at p. 638, fn. 14.) The Supreme Court's "fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all." (Schad v. Arizona, supra, 501 U.S. at p. 646 (Schad).)
In Schad, a capital case, the petitioner contended that under Beck, "he was entitled to a jury instruction on the offense of robbery, which he characterize[d] as a lesser included offense of robbery murder." (Schad, supra, 501 U.S. at p. 645, fn. omitted.) Since the jury had "the option of finding [the] petitioner guilty of a lesser included noncapital offense, second-degree murder" (id. at p. 646), the Supreme Court concluded that the "central concern of Beck simply [was] not implicated [because the] . . . petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence." (Id. at p. 647.) The court was "satisfied that the second-degree murder instruction in [that] case sufficed to ensure the verdict's reliability." (Id. at pp. 647-648.)
Defendant has failed to establish that either the United States Supreme Court or any California court has recognized a federal constitutional right to instructions on lesser included offenses in noncapital cases. As indicated, the California Supreme Court has expressly determined that a failure to instruct on a lesser included offense where warranted in a noncapital case is merely a state law error subject to the Watson standard of review. (See Wyatt, supra, 55 Cal.4th at p. 698 ["The failure to instruct on a lesser included offense in a noncapital case does not require reversal 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citations.]"]; Breverman, supra, 19 Cal.4th at p. 165.)
Defendant has not provided any authority requiring instruction on "lesser included enhancements" as a matter of constitutional right. We have no basis to conclude that the court's failure to instruct pursuant to section 667.61, subdivision (e)(1) based on simple kidnapping violated defendant's rights to a jury trial or due process.
Further, even if we assume arguendo that a defendant charged with forcible rape is entitled to instruction on section 667.61, subdivision (e)(1) as a "lesser included enhancement" of an allegation pursuant to section 667.61, subdivision (d)(2) where a reasonable jury could conclude that the defendant had kidnapped the alleged rape victim but that the movement of her had not substantially increased the risk of harm to her over and above that level of risk necessarily inherent in the underlying rape (see Shockley, supra, 58 Cal.4th at p. 403; Breverman, supra, 19 Cal.4th at p. 162), that was not the situation in this case. In the wee hours of the morning, defendant took T. from outside their apartment complex to a dark and empty VTA parking lot some distance away.
We note that section 667.61 states that "[t]he penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (o).)
Moreover, even if it were error to not instruct on section 667.61, subdivision (e)(1) based on simple kidnapping as a "lesser included enhancement," such error would be reviewable under the Watson standard (see Wyatt, supra, 55 Cal.4th at p. 698; Breverman, supra, 19 Cal.4th at p. 165) and reversal would not be required under that standard. Defendant's theory in closing argument was that T. consented to go with defendant, which the jury implicitly rejected. Given the evidence, it is not reasonably probable that a result more favorable to defendant would have been reached if the court had instructed in accordance with section 667.61, subdivision (e)(1), based on simple kidnapping. (See Watson, supra, 46 Cal.2d at p. 836.) E. New Trial Motion
Defendant argues that the trial court abused its discretion by denying his motion for a new trial based on newly discovered evidence (§ 1181, subd. (8)) and thereby violated his due process rights to present a defense and a fair trial.
Section 1181 states in pertinent part: "When a verdict has been rendered . . . against the defendant, the court may, upon his application, grant a new trial, . . . [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." --------
On June 30, 2015, before sentencing, defendant filed a new trial motion. In a declaration in support of the motion, prepared after the jury's verdict and the probation report's recommendation that defendant receive an indeterminate term of 25 years to life, T. asserted that she voluntarily entered defendant's car, willingly drove around with him, and had consensual intercourse with him. T. stated that she "told the police and the 911 dispatcher that [defendant] raped [her] because [she] was mad at him" and that her testimony at the preliminary hearing and at trial claiming that she did not have sex with defendant was "inaccurate." She explained that she gave that testimony because she "did not want [her] mother to find out" that she had consensual sex with defendant.
The trial court found the victim's post-verdict statements unworthy of belief. The court observed that "[o]n the night of the incident, [the victim] indicated that the defendant hit her and punched her repeatedly in the face, overpowered her and dragged her into his vehicle" and that "[d]efendant then drove to an isolated parking lot, where he ripped her clothes off, choked her, and raped her." The court found it significant that her "first account of the incident was consistent with the 9-1-1 call, her injuries, the sexual assault exam, DNA testing, and her statements to law enforcement." The court believed that the victim, who had testified at trial that she did not have sex with defendant, had "changed her story a number of times since the incident in the apparent hope of helping the defendant, who is also [her] stepfather and [her] mother's husband." The court denied the motion for a new trial, finding that a different result was not reasonably probable.
" ' " 'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.] ' "A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." ' " [Citation.]' [Citation.]" (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) " ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." ' [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
" 'In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: " '1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.' " [Citations.]' [Citation.] 'In addition, "the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable." [Citation.]' [Citation.]" (People v. Howard (2010) 51 Cal.4th 15, 43.)
Citing People v. Minnick (1989) 214 Cal.App.3d 1478 (Minnick), defendant maintains that "[i]t was reasonably probable that there would be a different verdict on retrial given the defense theory and evidence." In Minnick, "[t]he sole evidence against [the defendant] was the testimony of the victim, [his] 10-year-old daughter." (Id. at p. 1480.) The defense's motion for a new trial, which the trial court granted (id. at p. 1483), was based on the daughter's recantation and her explanation that "she had lied at trial because she was angry with her father and 'wanted to get even.' " (Id. at p. 1480.) The appellate court, viewing the record in favor of the order granting retrial, concluded that the trial court had "independently weighed the [daughter's] recantation and the factors relevant to the issue" (Id. at p. 1483), found the recantation was "worthy of belief" (ibid.), and determined "a different result on retrial [was] reasonably probable" based on the victim's recantation and the evidence that she "had changed her story several times" (ibid.).
Minnick is readily distinguishable from this case. First, Minnick was a People's appeal from an order granting a new trial (Minnick, supra, 214 Cal.App.3d at p. 1480) and the issue on appeal was whether the trial court had abused its discretion in granting the motion. (Id. at p. 1483.) Thus, in Minnick, the deferential abuse-of-discretion standard of review applied in favor of the order granting the new trial motion, whereas in this case the standard applies in favor of the denial of defendant's motion. Second, in Minnick, the "sole evidence" against defendant was the daughter's testimony (id. at p. 1480), and she had "changed her story approximately four times following the verdict." (Ibid.) In contrast, in this case, the victim made many statements in the immediate aftermath of the incident asserting that defendant had raped her, she was promptly examined by a SART nurse who concluded T.'s injuries were consistent with sexual assault and inconsistent with consensual sexual activity, and there was ample physical and DNA evidence corroborating the charge of rape. The jury found defendant guilty of forcible rape even though at trial more than two years after the incident, T. denied that defendant had sexual intercourse with her or raped her.
The trial court could reasonably conclude that the new evidence was not credible and did not render a different result probable on a retrial. Defendant has not shown that the trial court abused its discretion in applying the relevant factors or that its denial of the new trial motion was a manifest and unmistakable abuse of discretion. F. Cumulative Prejudice
Defendant further argues that reversal is required due to the cumulative prejudice of the asserted errors, which he insists rendered his trial fundamentally unfair in violation of due process. We have found no error and no cumulative prejudice warranting reversal. Defendant was entitled to and received a fair trial. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.