Opinion
A139061
04-03-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID DEMARCUS HAQQ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 167541)
On November 3, 2011, the Alameda County District Attorney filed an indictment charging David Demarcus Haqq (Haqq or appellant) with three counts of forcible rape while acting in concert (Pen. Code, §§ 261, subd. (a)(2), 264.1), and one count of kidnapping to commit rape (Pen. Code, § 209, subd. (b)). In connection with the forcible rape counts, it was further alleged that Haqq kidnapped the victim, that the movement substantially increased her risk of harm, and that the victim was 14 years of age or older. (§§ 667.61, subd. (d)(2), 667.8) On April 11, 2013, Haqq filed a motion to dismiss, arguing that the lengthy precharging delay in the case resulted in a denial of his federal and state constitutional rights to due process. Haqq's jury trial began on April 15, 2013. On April 18, 2013, the trial court denied Haqq's motion to dismiss. Subsequently, on May 23, 2013, the jury found Haqq guilty as charged and found true the charged allegations. As a result, on June 21, 2013, the trial court sentenced Haqq to state prison for a total term of 41 years to life. Haqq filed a timely notice of appeal that same day.
All statutory references are to the Penal Code unless otherwise indicated. In May 2013, prior to the jury verdict in this matter, one of the forcible rape counts was dismissed.
On appeal, Haqq renews his contention that the precharging delay in this matter resulted in a denial of his federal and state constitutional rights to due process. In addition, he raises a number of fair trial issues based on the emotional testimony of the victim, S. Doe, including prosecutorial misconduct, ineffective assistance of counsel, and failure of the trial court to reasonably control the proceedings. Haqq also challenges the trial court's refusal to allow him to recall S. Doe to the stand as part of the defense case, asserting violation of his federal constitutional rights to confront his accuser and present a complete defense. Finally, Haqq argues that his sentence of 41 years to life constitutes cruel and unusual punishment under both state and federal constitutional law. Having reviewed this matter in some detail, however, we find no reversible error in any of the many claims raised by Haqq. We therefore affirm.
I. EVIDENCE AT TRIAL
On September 22, 1998, 15-year-old best friends S. Doe and T. Doe decided to leave their high school and take a bus to a McDonald's in Berkeley for lunch. S. Doe's older sister accompanied them. After eating, the three took the bus back to the AM/PM Market near their school. S. Doe's sister returned to school immediately, but S. Doe and T. Doe decided to go into the store first to buy gum. When the two girls left the store, S. Doe noticed a black van nearby with several people inside and one person outside pumping gas. According to S. Doe, someone inside the van flirted with T. Doe. Thereafter, the van began following the girls as they walked back to school. Suddenly, S. Doe saw someone grab T. Doe from behind and pull her into the van. Quickly thereafter, S. Doe was also grabbed and pulled into the van.
Once the girls were inside, the van began to move and S. Doe heard the men telling T. Doe that they "wanted to have some fun." S. Doe, a virgin at the time, testified that she did not know what they meant. After that was "when it . . . started." First, someone named "Twin" instructed S. Doe to take off her shoes and then removed her pants and underwear. Then, he got on top of her and penetrated her vagina with his penis. When Twin was finished, a second man did the same thing. S. Doe could not identify the second man who raped her because she had her eyes "closed through most of it." According to S. Doe, she had never before seen Haqq. She did testify, however, as to how she was feeling at the time, stating that her lower body was in "extreme pain. I couldn't—it was an indescribable feeling. You can't even tell after the first pain was so horrible, you don't even know if the second one was pain. You just can't feel it. You just feel numb after the first one." After the second man raped her, "Twin came back 'cause the other guy was finished already." Twin then raped her a second time, telling her: " 'You not going nowhere. We gonna keep you.' "
S. Doe testified that this first man was nicknamed "Twin" and that he and his twin brother lived in her neighborhood.
During the rapes, S. Doe saw T. Doe only periodically, because when T. Doe tried to move closer to her so that the two could be together, the men told T. Doe to move away. Before being raped by Twin for the first time, however, S. Doe did see someone on top of T. Doe. And, after the rapes, S. Doe could see T. Doe looking "[h]urt and lost."
The van eventually stopped and some men got out. S. Doe told one of the men she needed to use the restroom. He told her to "hold it," but when he turned his back she "jumped out and ran and looked for my best friend and didn't know if she got out of the van. I just cut." T. Doe had also run from the van, however, and the two girls soon reunited. When they saw the van following them again, they walked into a store where they observed the van circling. T. Doe went outside and one of the men spotted her. He then began to call S. Doe names. When a neighbor came outside to see if the girls were alright, the van finally drove away. The neighbor contacted S. Doe's mother, who took the girls to Highland Hospital.
At the hospital, both girls underwent an examination by the Sexual Assault Response Team (SART). S. Doe's SART exam revealed that she had sustained "multiple obvious external genitalia injuries that are both gross, meaning you can see them with the naked eye, and see them with the colposcope." During the examination, S. Doe cried, complained of vaginal pain, and reported threats made to her during the attack, including " '[w]e should hit you in the head with a beer bottle,' " and " '[y]ou better be ready tomorrow.' " Hillary Larkin, the Director of the SART team at Highland Hospital (Larkin), testified that one of the seven injuries sustained by S. Doe—a deep laceration—was "pretty impressive . . . in terms of a cut or a tear." She further opined with respect to the number of S. Doe's injuries that there was "a much higher number of individual injuries in this patient. I would say statistically, probably, maybe 20 percent of sexual assault victims have this much obvious signings, and this much naked—see with the naked eye injuries, so this is an impressive exam" which revealed "significant injuries." Further, according to Larkin, the sexual assault literature indicates that the more individual injuries a victim sustains, the more likely that the intercourse was nonconsensual. And, indeed, S. Doe's injuries suggested nonconsensual sex to Larkin.
With respect to T. Doe's SART exam, Larkin testified that T. Doe indicated that she had been penetrated by three men. Further, the injuries sustained by T. Doe included a hymeneal tear on her cervix—an injury which, according to Larkin, is consistent with someone who has not previously engaged in sexual intercourse. Moreover, Larkin also testified that the injuries sustained by T. Doe were "[d]efinitely" consistent with nonconsensual intercourse. However, in her opinion, S. Doe's injuries were more significant than T. Doe's.
Shannon Cavness, a criminalist in the Oakland Police Department crime laboratory (Cavness), testified regarding the DNA evidence in the case. According to Cavness, on May 3, 2005, she received a hit matching the DNA from the sperm found in S. Doe's vagina to Haqq. Subsequent testing of a reference sample obtained from Haqq in April 2011 confirmed that Haqq was the sperm donor for the vaginal swab. Indeed, the statistical frequency of the match was approximately one in one quintillion members of the population, a very rare profile. On August 9, 2011, Cavness learned that the DNA from S. Doe's underwear matched Gerald Anthony Demins. At that time, a DNA profile for Gerald Demins' twin brother Jerome Demins was not in the system. Reference samples were subsequently collected and tested for both Gerald and Jerome Demins, leading Cavness to the conclusion that the brothers were identical twins. Since the DNA found in S. Doe's underwear was an exact match to both brothers' DNA, it could not be used to identify which brother was involved in the incident. Finally, a hit also came back with respect to the DNA collected from T. Doe during her SART exam, matching an individual named Jackie Hubbard (Hubbard).
Joseph Billingsley, an employee of Civicorps School (Billingsley), testified at trial regarding a possible connection between Haqq, Hubbard, and Jerome Demins. Civicorps is a nonprofit organization, formerly known as the East Bay Conservation Corps, which provides employment and training for 18 to 21 year olds. According to Billingsley, company records indicate that Haqq, Hubbard, and Jerome Demins all worked at the East Bay Conservation Corps in 1998 and/or 1999, when they were all approximately 18 years old. The records were insufficient, however, to determine whether the three men ever worked together during a timeframe prior to the September 1998 incident.
II. DISCUSSION
A. Pre-Indictment Delay
1. Background Information
As mentioned above, on April 11, 2013, Haqq filed a motion to dismiss, arguing that the lengthy precharging delay in this case resulted in a denial of his federal and state constitutional rights to due process. Specifically, Haqq claimed that the approximately six years between the May 2005 cold hit which identified him as a possible suspect in this matter and the July 2011 filing of the complaint prejudiced his ability to defend himself. In particular, Haqq asserted that he was prejudiced by the delay because his memory of the events of September 1998 had faded; the whereabouts of Hubbard, a potential defense witness, were unknown; and he was unable to take advantage of possible concurrent sentencing during the period of the delay.
During this timeframe, Haqq was serving an aggregate term of 18 years after convictions in 2010 for two unrelated matters.
At the hearing on Haqq's motion to dismiss on April 18, 2013, Oakland Police Department Lieutenant Kevin Wiley (Wiley) testified that in 2005 and 2006 the Special Victims Unit had a backlog of about 2000 open and active cases, with only six to eight investigating officers to handle them. Moreover, only two officers handled cold hit sexual assault cases. At that time, there was a backlog of about 150 such cases. And, the two investigators who handled the cold hit DNA cases also had other duties. This lack of resources continued through 2011.
In May 2005, the department was notified of a possible DNA hit matching Haqq to the instant case. At that time, there was no tracking system in place for these notifications. In 2006/2007, however, a new protocol was adopted to ensure that any match would result in an investigator being assigned to the case. That investigator would then conduct further investigation, including contacting the victim. As a consequence, Officer Herb Webber was assigned to investigate the Haqq DNA match in November 2007. However, by April 2008, after making attempts to contact S. Doe, he determined that she did not wish to pursue the matter. He also spoke with T. Doe in this timeframe, who stated that she wanted to "think about it," but never contacted him.
Wiley testified that—due to the volume of cases the department was handling at that time—if a victim was uncooperative when contacted, the department was "forced to triage cases." Thus, if a victim was not willing to prosecute, the case would be set aside so that the investigators could focus their resources on cases with cooperative victims. This might change if other evidence or witnesses were available to assist in a prosecution. Additionally, the department had a general policy not to collect a reference sample from a suspect until a victim indicated she would cooperate with a prosecution. According to Wiley, this policy was in place because there were cases in which a DNA hit "led the victim to change their story from it being a violent act to it being consensual, and it would make no difference to get the reference sample."
The papers filed by the District Attorney in opposition to Haqq's motion to dismiss supplied additional details regarding the investigation, gleaned from the testimony given before the grand jury. As discussed above, in October 2007, the department received another cold hit indicating that DNA taken from T. Doe matched Hubbard. In December 2010, a third cold hit was obtained, matching DNA from S. Doe's underwear to Gerald Demins. Upon learning that Gerald Demins had a twin brother, reference samples were taken from both twins and found to be identical. Thus, neither twin could be implicated in the incident based on their DNA profiles.
In addition, according to the record, the trial court read the entire grand jury transcript prior to ruling on the motion to dismiss.
Oakland Police Sergeant Ross Tisdell (Tisdell) was assigned to the case in February 2011. Tisdell, who also testified at the hearing, indicated that he began his investigation by attempting to find T. Doe. Then, on March 15, 2011, Tisdell interviewed S. Doe, who was now agreeing to cooperate. That same day, Tisdell created photo six packs of the three possible suspects and showed them to S. Doe. The first photo array six pack included Gerald Demins, who S. Doe positively identified as one of her assailants. The second photo array included Haqq, and the third photo array included Hubbard. S. Doe was unable to identify either Haqq or Hubbard. On April 21, 2011, Tisdell obtained a DNA reference sample from Haqq. As stated above, analysis of this sample in June 2011 indicated a match to the DNA profile from S. Doe's vaginal swab. A felony complaint was then filed on July 15, 2011, and on November 3, 2011, the grand jury indicted Haqq on the instant charges. Tisdell testified that, thereafter, in the summer of 2012, he located Hubbard in custody and attempted to speak to him regarding this case. Hubbard, however, asked for an attorney and refused to discuss the matter.
Haqq's attorney conceded that he was making no argument that charging in this case was delayed in order to put Haqq at a tactical disadvantage. Rather, he argued that the Oakland Police Department's inability to handle the investigation in a timely manner due to staffing shortages was negligent and amounted to "administrative malfeasance" which violated Haqq's due process rights. He additionally asserted that Haqq was prejudiced by the delay as described above.
The trial court disagreed and denied Haqq's motion. With respect to prejudice, the court rejected the argument that the loss of Hubbard's testimony was prejudicial, stating that it was unlikely that Hubbard would be willing to provide a statement in the matter given that he was "in jeopardy of being charged as an aider and abettor to all of these charges." Indeed, the trial court stated that it could "almost find beyond a reasonable doubt that [Hubbard] would not testify as to the events involved in this case." The court also rejected the notion that Haqq was prejudiced by losing the opportunity for concurrent sentencing based on the existence of section 669: "In other words, if [Haqq] is convicted of this offense, then it's incumbent upon me under that section to determine whether his present existing sentence for which he has not, as I understand it, he has not completed his term, shall be concurrent or consecutive. . . . [¶] . . . It's something that I'm required to do in case [Haqq] is convicted. So he's not losing any chances at all."
The trial court did acknowledge that fading memories could be a problem, but also queried: "[I]s there any more faded memory that accrues after 2005 than the faded memory that would already have accrued between 1998 and 2005?" In addition, the court emphasized that the memory issue cut both ways, noting that S. Doe had recently been unable to pick Haqq out of the photo array, a circumstance which benefitted him. Moreover, the court reasoned that, unless Haqq could discredit the DNA evidence, the only question at trial would be consent. With respect to that issue, the court opined: "[I]t's a little bit hard for me to accept that, you know, if this did happen under the circumstances that we know that it did happen, that the victim would have forgotten whether she consented or not. And certainly she has recently testified before the grand jury that she did not." Indeed, as to faded memories in general, the court found any prejudice "very speculative," stating "you have to take into consideration, well, is this an event that would be likely to be forgotten by anybody? And certainly a question of having sex with two girls in a van with a number of other individuals engaging in the same activity, whether consensual or non-consensual, is not something that would be forgotten."
In the end, the only possible prejudice that the court could identify was the loss of potentially exculpatory testimony from T. Doe: "[T]o be fair, there is [T. Doe], who I suppose might have been located had the case been brought more timely and she might be able to offer some evidence as to whether—on the issue of consent. And certainly there are indications that she does not want to prosecute from which you could infer that, well, that might be one of the reasons. Of course, there's a whole panoply of other reasons. So admittedly, evidently she was available within this time period between 2005 and 2011. So to that extent, I think there's some prejudice."
On the issue of justification for the delay, the trial court pointed out that "the mere fact that the evidence comes back in 2005, as [Wiley] testified, doesn't mean that before they take some action against [Haqq], such as arrest in order to get a DNA swab, that you [don't have] to find out whether you got a prosecutable case, which means speaking to the victims all over again and so on." Further, the trial court specifically credited Wiley's testimony regarding the department's investigative practices, stating: "I think what most impressed me . . . is that there is a reason for a delay until there is an interview with the particular complaining witness because complaining witnesses also often when informed that there is DNA evidence change their stories as to whether or not it was violent, as to it being consensual. So the police cannot be faulted for wanting to interview the witness before arresting or otherwise getting samples from the defendant." Concluding that this investigative justification outweighed any possible loss of T. Doe's testimony, the trial court denied the motion to dismiss.
2. Analytical Framework and Analysis
On appeal, Haqq renews his claim that the precharging delay of approximately six years in this case violated his federal and state constitutional rights to due process. A precharging delay does not implicate speedy trial rights. However, Haqq is correct in asserting that such a delay may violate due process if it is "unjustified and prejudicial." (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson); see also Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) Specifically, " '[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.' [Citation.] Accordingly, '[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions.' " (Nelson, supra, 43 Cal.4th at p. 1250.)
A defendant seeking to dismiss a case on grounds of precharging delay must demonstrate prejudice arising from that delay. (Nelson, supra, 43 Cal.4th at p. 1250.) Such prejudice is not presumed, but must be affirmatively demonstrated. (People v. Martinez (2000) 22 Cal.4th 750, 767.) " 'The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.' " (Nelson, supra, 43 Cal.4th at p. 1250.) If a defendant fails to show prejudice, however, the court need not inquire into the justification for the delay as, under such circumstances, there is nothing to " 'weigh.' " (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541.)
State and federal constitutional standards regarding what justifies delay in this context differ. (Nelson, supra, 43 Cal.4th at p. 1251.) In Nelson, our Supreme Court indicated that the exact standard under the federal Constitution is "not entirely settled" but appears to require " 'a showing that the delay was undertaken to gain a tactical advantage over the defendant.' " (Ibid.) However, since "the law under the California Constitution is at least as favorable for [the] defendant in this regard as the law under the United States Constitution," the Nelson Court chose to analyze the issue under California law. (Ibid.) We will do the same here.
"[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Nelson, supra, 43 Cal.4th at p. 1255.) Thus, "whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.)
Moreover, when analyzing a claim of precharging delay, we note that "[t]he due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Rather, the task of the reviewing court is to determine whether [such] delay violates the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency. Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914.) In addition, as the Nelson court opined: "A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. . . . 'Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay . . . .' [Citation.] It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
We review a trial court's ruling on a motion to dismiss based on prejudicial precharging delay for abuse of discretion, deferring to any underlying factual findings supported by substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.) Thus, for instance, whether a defendant met the initial burden of showing prejudice is a factual question for the trial court. (People v. Hill (1984) 37 Cal.3d 491, 499.) Further, whether the precharging delay was unreasonable is also a question of fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.)
In the present case, the trial court concluded that the only possible prejudice from the precharging delay was the loss of T. Doe as a potentially exculpatory witness on the issue of consent. On appeal, Haqq argues that the prejudice arising from the delay was more extensive than that recognized by the trial court, again asserting that he was prejudiced by his fading memory, inability to locate Hubbard, and loss of the opportunity for concurrent sentencing. We agree with the District Attorney, however, that the trial court's prejudice finding in this case was amply supported by the record.
Preliminarily, we note that loss of possible concurrent sentencing is not a factor to be considered as part of a trial court's initial prejudice analysis. Rather, our high court has held "that a defendant claiming a speedy trial violation under the California Constitution must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded. If the defense makes that initial showing, the trial court may then . . . consider the defendant's loss of an opportunity to serve a concurrent sentence in weighing all of the prejudice to the defendant against the prosecution's justification for the delay." (People v. Lowe (2007) 40 Cal.4th 937, 946, fn. omitted.) Further, in the present case, since Haqq's existing 18-year sentence resulted from two convictions in 2010, we agree with the trial court that section 669—which requires a trial court to consider whether any subsequent sentence should run concurrently or consecutively—minimized the potential for any prejudice in this case based on sentencing. At most, Haqq lost the possibility of serving a small percentage of his total sentence concurrently. Moreover, that possibility was a slight one, given that his three convictions involved separate acts of violence which occurred at different times and in different places. (See Cal. Rules of Court, rule 4.425(a) [listing criteria affecting concurrent vs. consecutive sentencing].) And, indeed, when the trial court imposed sentence in this case in June 2013, it determined that these subsequent three counts should run consecutively to Haqq's existing sentence.
As for Haqq's other two asserted grounds for prejudice—fading memory and the loss of Hubbard as a potential defense witness—substantial evidence supports the trial court's conclusion that neither of these two factors was likely to cause any appreciable prejudice to Haqq. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 250 [conclusory statements asserting faded memory of the events in question insufficient to support a finding of prejudice]; Blake v. Superior Court (1980) 108 Cal.App.3d 244, 250-251 [vague offer of proof that various potential alibi witnesses were unavailable insufficient to demonstrate cognizable prejudice].) With respect to Hubbard, in particular, we agree with the trial court that he would be extremely unlikely to provide a statement in the case. Indeed, he refused to speak to Tisdell in 2012. And, even if he did agree to testify, at most, he could only potentially offer the obviously self-serving statement that any sex during the September 1998 incident was consensual.
Moreover, although we accept, as supported by substantial evidence, the trial court's reasoning that Haqq might possibly have been prejudiced by the unavailability of T. Doe, we agree with the District Attorney that, on this record, any such potential for prejudice was slight. According to T. Doe's SART exam, conducted almost immediately after the incident, T. Doe reported being raped by three men and her injuries were consistent with nonconsensual sex. Given these circumstances, the more likely conclusion by far is that T. Doe's testimony, if obtained, would have undermined any defense claim of consent.
With respect to justification for the delay, Haqq argues at length on appeal that the Oakland Police Department was "so decimated by budget and staffing cuts" that the precharging delay in this case must be "recognized as a product of negligence" which violated his due process rights. However, we again find ample support in the record for the trial court's contrary conclusion—that the delay was an "investigative delay, nothing else." (See Nelson, supra, 43 Cal.4th at p. 1256.) The May 2005 cold hit matching Haqq to DNA found in S. Doe was simply an investigative lead. A reference sample was needed from Haqq to confirm the match. However, as of March 2008, the department was unable to obtain S. Doe's cooperation in any prosecution with respect to the events of September 1998. Given this circumstance as well as the admittedly significant understaffing of the Oakland Special Victims Unit, it was entirely reasonable to triage cases by prioritizing those with a cooperating witness. (Id. at pp. 1256-1257 ["[i]t is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner"].) This was especially true given Wiley's testimony that it was Department policy not to obtain a reference sample from a potential defendant without a cooperating witness as a DNA hit at times "led the victim to change their story from it being a violent act to it being consensual, and it would make no difference to get the reference sample." Once additional cold hits were received and S. Doe agreed to cooperate, the matter proceeded apace. We thus decline Haqq's invitation to distinguish Nelson and attribute the delay to a " 'broken' " police department. Rather, under the circumstances, we see no need to second-guess "how the state allocates its resources or how law enforcement agencies could have investigated" this matter. (See Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
In sum, the trial court here was required to weigh the slight and highly speculative prejudice identified by Haqq (the unavailability of T. Doe and the potential loss of some concurrent sentencing) against the prosecution's strong justification for the delay. Unremarkably, it concluded that the justification for the delay outweighed any potential prejudice. We see no error, and certainly no abuse of discretion. B. Testimony of S. Doe
During S. Doe's testimony recounting her September 1998 kidnapping and multiple rape, S. Doe stated repeatedly that she did not want to testify, that she blamed herself for the attack since it had been her idea to get gum before returning to school, and that recalling the incident was extremely painful for her. Apparently, S. Doe also impulsively left the stand on several occasions when she became emotionally overwhelmed. Haqq now contends on appeal that his federal and state constitutional rights to a fair trial were violated in connection with S. Doe's trial testimony because: (1) the prosecution's repeated questioning of S. Doe regarding the psychological pain caused by the attack amounted to prosecutorial misconduct, calculated to inflame the passions of the jury; (2) the trial court failed to curtail S. Doe's many emotional reactions or otherwise mitigate their prejudicial impact on the jury; and (3) his trial attorney's failure to object and/or request appropriate admonitions with respect to S. Doe's conduct and the prosecutor's questioning constituted ineffective assistance of counsel. We address each contention in turn.
With respect to the prosecutor's questioning of S. Doe, "[a] prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) Thus, a prosecutor may not make comments which are calculated to arouse a jury's passions or prejudices. (People v. Bradford (1997) 15 Cal.4th 1229, 1379; People v. Mayfield (1997) 14 Cal.4th 668, 803, overruled on other grounds as stated in People v. Scott (2015) 61 Cal.4th 363, 390 & fn. 2.) However, a prosecutor may question a witness as to any relevant matters (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1210, overruled on other grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216) and may ask leading questions "when they are designed to lead the witness more quickly to matters which are material to the issues." (People v. Orona (1947) 79 Cal.App.2d 820, 827; see also People v. Jackson (1954) 124 Cal.App.2d 787, 789.)
Our review of the record in this case makes evident that S. Doe was clearly a reluctant and highly emotional witness. As S. Doe recounted the events of September 22, 1998, she repeatedly indicated that she did not want to testify. A typical example of the interplay between S. Doe and the prosecutor is set forth below:
"Q. [Did] [y]ou notice a van when you got out of A.M.-P.M.?
"A. I don't want to go back to that place.
"Q. Now you just said that you don't want to go back to that place.
"A. I don't want to go.
"Q. Does it hurt when you try to think about going back to that place?
"A. It always hurts.
"Q. It always hurts. And you've had people making you go back to that place?
"A. Several times, over and over again. I don't want to go back to that place. I don't want to go back. I just—I just want to be home and I don't want to do this.
"Q. I know it's hard and it's hard for me to ask you to go back to that place one last time, but I've got to ask you to now. I just need you to tell the truth and it will go by quickly, okay? [¶] Do you need some water?
"A. (Shakes head negatively.) I don't want to be here it's not a good place. [ ]
"Q. It's one last time. I'm just asking you to share your story with the jury. Okay.
"A. I don't want to share my story. I'm tired of sharing my story. It's not a good story. It never was a good story.
"Q. It was not a good story? I know this is hard, but I'm going to ask you when you got out of that A.M.-P.M., did you notice a van?
"A. Yes." What this questioning shows—especially when viewed in the context of S. Doe's testimony as a whole—is that the prosecutor was acknowledging S. Doe's feelings about the case, not to enflame the jury, but to help S. Doe overcome those feelings one last time so that she could bring herself to testify. And, in fact, the prosecutor's approach was successful, as S. Doe was ultimately able to testify at length regarding the September 1998 incident. Under these circumstances, it is not reasonably likely that the jury construed the prosecutor's questions as anything other than a necessary tactic designed to elicit crucial testimony from an extremely reluctant witness. (See Morales, supra, 25 Cal.4th at p. 44.)
Additionally, as the District Attorney points out, the issues explored by the prosecutor's questioning—to the extent they revealed the significant emotional impact of the attack on both S. Doe and her family—were relevant to S. Doe's credibility as a witness. The prosecutor was obviously aware that S. Doe had previously made a number of inconsistent statements, in particular those in an affidavit that she executed in October 2012 indicating that the whole incident had never happened and that she and T. Doe were not raped. At trial, S. Doe testified that she signed the affidavit because she did not want to fight any more and wanted to protect her family. Her testimony describing how she and her family were negatively impacted by the rape bolstered her credibility with respect to this explanation and thus was highly relevant to a fundamental issue in the case—whether she was, in fact, raped. (See People v. Whalen (2013) 56 Cal.4th 1, 62 [direct examination proper where relevant to the credibility of the witness].) In sum, since the prosecutor's examination was necessary to elicit testimony regarding the incident in question and also touched on matters relevant to S. Doe's credibility, we see no prosecutorial misconduct in this case.
We acknowledge that Haqq failed to object at trial to the prosecutor's examination of S. Doe or request a curative admonition. As a general matter, "[t]o be cognizable on appeal, a defendant ' "must make a timely objection at trial and request an admonition; otherwise, the [claim of prosecutorial misconduct] is reviewable only if an admonition would not have cured the harm caused by the misconduct." ' " (People v. Valdez (2004) 32 Cal.4th 73, 122.) We reach the merits of the claim in this case, however, due to Haqq's related assertion—discussed further below—that his counsel was ineffective for failing to object.
As for Haqq's argument that the trial court had a duty to curb the prosecutor's questioning of S. Doe, we again find no error. (See Cooper v. Superior Court (1961) 55 Cal.2d 291, 301 [court has inherent power to exercise reasonable control over all proceedings in order to insure the orderly administration of justice]; see also Code Civ. Proc., § 128.) Whether and how leading questions are used on direct examination is committed to the sound discretion of the trial court. (See Evid. Code, § 767; People v. Spain (1984) 154 Cal.App.3d 845, 853; People v. Wilson (1941) 46 Cal.App.2d 218, 224 [leading questions may be asked on direct examination "when it appears that the interests of justice so require"].) And, as discussed above, we do not view the prosecutor's questioning of S. Doe as improper under the circumstances.
With respect to Haqq's claim that the court should have better controlled S. Doe's "unauthorized flights from the witness stand" and other inappropriate behaviors, we likewise see no indication that the trial court handled the issue improperly. Haqq suggests that the court should have spoken to S. Doe out of the presence of the jury about her conduct, periodically taken brief recesses to help her, and admonished the jury not to be swayed by the emotions generated by S. Doe's behaviors. However, confronting the fragile witness regarding her conduct might well have led to the complete loss of her testimony. And admonishing the jury could actually have had the reverse effect, highlighting the behaviors Haqq wanted the jury to disregard. Instead, when S. Doe needed a break, the trial court variously called recesses, allowed a witness to be called out of order, or ended testimony for the day, thereby minimizing any disruption without unduly emphasizing S. Doe's conduct. We see nothing improper in the trial court's actions, and certainly nothing that rendered Haqq's trial fundamentally unfair.
Finally, Haqq contends that his trial attorney's failure to object and/or request appropriate admonitions with respect to S. Doe's conduct and the prosecutor's questioning constituted ineffective assistance of counsel. In order to prevail on such a claim, Haqq must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. (People v. Orloff (2016) 2 Cal.App.5th 947, 955.) Further, on direct appeal—where counsel's strategic reasons for the challenged decision do not appear on the record—we will not find ineffective assistance of counsel unless " 'there could be no conceivable reason for counsel's acts or omissions.' " (Ibid.; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here, we have found no error in the conduct of either the prosecutor or the court in the questioning of S. Doe. Thus, defense counsel's failure to object and/or seek appropriate admonitions was hardly unreasonable. Moreover, we can conceive of any number of tactical reasons why counsel chose not to object—including not wanting to call further attention to the underlying reasons for S. Doe's behaviors and the hope that, if the questioning continued, at some point S. Doe might simply be unable to continue. In addition, it is difficult to identify any possible prejudice to Haqq, since the DNA evidence in this case showed that he and S. Doe engaged in sexual intercourse and the testimony of both S. Doe and Larkin overwhelmingly supported the conclusion that the intercourse was nonconsensual. Under these circumstances, Haqq's claim of ineffective assistance is meritless. C. Refusal to Recall S. Doe to the Stand
At the close of the prosecution's case-in-chief, Haqq's attorney made a motion to recall S. Doe to testify for the defense. As justification for his request, he stated: "It's as much as a strategical or tactical maneuver, if any, from my standpoint. We would like to think that when she came back she'd tell the truth to the jury, and always have that undying hope that would happen, and it would clearly give the jury another opportunity to see her. And perhaps they too, may have additional questions for her prompted by the passage of time and perhaps any questions that I would pose to her." Defense counsel also suggested that S. Doe might be able to provide "helpful information" with respect to the charge that Haqq kidnapped T. Doe for the purpose of rape, given the intervening testimony by Larkin that the SART examination conducted on T. Doe revealed less extensive injuries than those suffered by S.
The trial court denied defense counsel's request under Evidence Code, section 352 (section 352). Specifically, the court opined: "Well, again, [T. Doe] presented herself with [S. Doe] to the rape trauma room and underwent a SART examination, which is consistent with her account that she had been raped. She reported having been raped three times. I believe also there was a tear to her hymen, indicating that she was a virgin at the time according to the testimony of Ms. Larkin. I will note that—well, although I did not excuse [S. Doe] from giving further testimony under 770 of the Evidence Code, that extrinsic evidence of her statements including the evidence of her statements in the SART examination has been received, including extrinsic evidence of all of her prior statements, and she was examined exhaustively with regard to her prior statements such that she was given an opportunity to explain or deny those statements, and in most instances, she did. Therefore, within the provisions of 352 of the Evidence Code, I do not see that there is a sufficient showing as to any relevance to further testimony which is not outweighed substantially by the undue consumption of time. So the motion to recall [S. Doe] as a witness is denied." Haqq now argues on appeal that the trial court's refusal to allow him to recall S. Doe as part of his defense case was federal constitutional error, infringing both on his right to confront his accuser and his right to present a complete defense. We disagree.
Although the Sixth Amendment right of confrontation "includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' " (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain); see also People v. Paniagua (2012) 209 Cal.App.4th 499, 525 (Paniagua) ["reasonable restriction of the right to cross-examine is consistent with the Sixth Amendment"].) "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]" (Quartermain, supra, 16 Cal.4th at pp. 623-624.) Thus, " '[t]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (People v. King (2010) 183 Cal.App.4th 1281, 1314.)
Similarly, while a criminal defendant has a federal constitutional right to present a defense, barring rare circumstances, " 'application of the ordinary rules of evidence under state law does not violate [that right], because trial courts retain the intrinsic power under state law to exercise discretion to control the admission of evidence at trial.' " (People v. Andrade (2015) 238 Cal.App.4th 1274, 1290; see also People v. Abilez (2007) 41 Cal.4th 472, 503 (Abilez) [general rule gives way only in "extraordinary and unusual circumstances" where the exclusion of "crucial defense evidence" amounted to a denial of due process]; People v. Snow (2003) 30 Cal.4th 43, 90 (Snow) ["[a]pplication of the ordinary rules of evidence, such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense" unless evidence is of "such probative strength" that its exclusion violated the defendant's constitutional right].) Moreover, as a general matter, a trial court's exercise of discretion in excluding such evidence will not be overturned on appeal absent the showing of an abuse of discretion resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Raley (1992) 2 Cal.4th 870, 895.)
Here, as discussed above, S. Doe provided lengthy testimony for the prosecution at trial, relating her recollection of the events of September 1998, explaining her reticence to further discuss the matter, and detailing the emotional rollercoaster that the incident created for both herself and her family. She was also subjected to extensive cross-examination by Haqq's trial counsel, highlighting the many inconsistencies in the various iterations of her story she gave over the years and stressing the fact that she was unable to identify Haqq as even being in the van on the day of the attack. Given these facts, defense counsel's "undying hope" that S. Doe might miraculously recant—finally telling "the truth"—if recalled to the stand was patently insufficient to justify bringing her back before the jury. Further, with respect to the intervening testimony from Larkin noting that T. Doe's injuries were less extensive than S. Doe's (presumably bolstering the argument that T. Doe was not kidnapped for the purposes of rape), this is information that, as the District Attorney properly points out, was available to the defense prior to trial in the two girls' SART examination reports. Under these circumstances, the trial court's decision refusing to recall S. Doe on grounds of relevance under section 352 was certainly not an abuse of discretion.
It follows that, because the additional cross-examination requested by Haqq was of marginal, if any, probative value, its exclusion did not take it outside of the general rule and implicate Haqq's constitutional right to present a defense. (Snow, supra, 30 Cal.4th at p. 90; see also Abilez, supra, 41 Cal.4th at p. 503 [trial court's exclusion of evidence was "a garden-variety evidentiary issue under state law and did not implicate defendant's federal constitutional right to present a defense"].) Further, since, as the trial court put it, S. Doe had already been "exhaustively" cross-examined by Haqq—in particular with respect to her many prior inconsistent statements—we see no basis for concluding that a reasonable jury might have received a significantly different impression of her credibility had the excluded cross-examination been permitted. (See Quartermain, supra, 16 Cal.4th at pp. 623-624; see also Paniagua, supra, 209 Cal.App.4th at p. 525 [no Sixth Amendment violation where the defendant was afforded "abundant opportunity" for cross-examination].) In sum, there was no constitutional error, let alone prejudicial constitutional error. D. Cruel and Unusual Punishment in Sentencing
Haqq also argues that the cumulative impact of the trial errors he raises deprived him of his constitutional right to a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) However, as we have found no error, we additionally conclude that there was no cumulative prejudice to Haqq. (See People v. Riel (2000) 22 Cal.4th 1153, 1215 [rejecting argument that court committed cumulative error where there was "no error that, even in cumulation, was prejudicial"].)
As a final matter, Haqq asserts that his sentence of 41 years to life constitutes cruel and unusual punishment under both the state and federal Constitutions. The Attorney General urges us not to reach this contention, arguing that Haqq has forfeited it by failing to challenge his sentence on this basis in the trial court. It is true that "[a] defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) However, we will nevertheless address the merits of Haqq's argument " 'in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.' " (People v. Russell (2010) 187 Cal.App.4th 981, 993 (Russell); see also People v. Reyes (2016) 246 Cal.App.4th 62, 86.)
Indeed, Haqq makes just such a claim in his reply briefing. --------
"A sentence violates the federal Constitution if it is 'grossly disproportionate' to the severity of the crime." (Russell, supra, 187 Cal.App.4th at p. 993.) Section 17 of article I of the California Constitution similarly provides that a sentence may be considered cruel and unusual if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch), superseded on other grounds as stated in People v. Caddick (1984) 160 Cal.App.3d 46, 51.) Since the "federal Constitution affords no greater protection than the state Constitution" in this area, we will analyze Haqq's claim under California law. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
In particular, we consider three criteria to determine whether a sentence is "cruel or unusual" under section 17 of article I of the California Constitution: the nature of the offense and the offender (with particular attention to the degree of danger both present to society); a comparison of the sentence with those for other more serious offenses under California law; and a comparison of the sentence with those in other states for the same offense. (Lynch, supra, 8 Cal.3d at pp. 425-427.) We note that, in this case, Haqq makes no effort to compare his sentence with more serious offenses in California or with punishments in other states for the same offense. We take this as a concession that his sentence withstands constitutional challenge under both the second and third prongs of the Lynch test. (See People v. Crooks (1997) 55 Cal.App.4th 797, 808 (Crooks) [defendant bears burden of establishing disproportionality]; People v. King (1993) 16 Cal.App.4th 567, 572 [same].)
With respect to the first prong of the Lynch analysis, Haqq's sole argument is that his sentence constitutes cruel and unusual punishment because it exceeds his life expectancy. Specifically, quoting Justice Mosk's assertion that "[a] sentence . . . that cannot possibly be completed in the defendant's lifetime, makes a mockery of the law and amounts to cruel or unusual punishment" (People v. Hicks (1993) 6 Cal.4th 784, 797 (Mosk, J., dissenting); see also People v. Deloza (1998) 18 Cal.4th 585, 600-601 (Mosk, J., concurring)), Haqq contends that—given his age (33 years old) and the "rigors of prison life"—he is unlikely to complete his sentence. However, Justice Mosk's comments have no precedential value. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 (Byrd).) And, in fact, a number of published decisions have rejected his approach. (See People v. Haller (2009) 174 Cal.App.4th 1080, 1089-1090; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan); Byrd, supra, 89 Cal.App.4th at pp. 1382-1383.) Indeed, "California courts repeatedly have upheld such lengthy prison sentences." (Retanan, supra, 154 Cal.App.4th at p. 1231 [citing cases].)
In the present case, Haqq and his accomplices kidnapped two young girls and brutally raped them. While committing these reprehensible crimes, the men threatened and degraded the girls. Clearly, based on S. Doe's testimony, the incident remained extremely traumatizing many years later. Moreover, despite the evidence offered at trial that S. Doe suffered extensive injuries related to the attack, Haqq continued to maintain at sentencing that his intercourse with S. Doe was consensual. Under the circumstances, Haqq's sentence is not disproportionate to the offender or the offenses. (See Crooks, supra, 55 Cal.App.4th at p. 807 [multiple offenses more serious, especially where one committed to effectuate commission of the other, and therefore greater penalty is warranted]; People v. Jones (1989) 212 Cal.App.3d 966, 969 ["rape is even more reprehensible when committed by two or more persons"].) Thus, his claim of cruel and unusual punishment in sentencing has no merit.
III. DISPOSITION
The judgment is affirmed.
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.