Opinion
H041958
09-11-2017
THE PEOPLE, Plaintiff and Respondent, v. COREY NEVIN MARSHALL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. No. F23903)
Defendant Corey Nevin Marshall was convicted by jury trial of five counts of oral copulation of a person under the age of 14 (Pen. Code, § 288a, subd. (c)(1)), five counts of lewd conduct on a child under the age of 14 (§ 288, subd. (a)), five counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d)), one count of sodomy on a person under the age of 14 (§ 286, subd. (c)(1)), two counts of sexual penetration of a person under the age of 14 (§ 289, subd. (j)), and one count of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). The jury also found true strike allegations (§§ 667, subds. (b)-(i), 1170.12), one-strike allegations (§ 667.61, subds. (a), (c), (d), (j)(1)), and prior sex offense conviction allegations (§§ 667.51, subd. (a), 667.6, subd. (a)). Defendant was sentenced to 132 years to life.
Subsequent statutory references are to the Penal Code. --------
On appeal, he claims that the trial court prejudicially erred in giving CALCRIM No. 1190 immediately after CALCRIM No. 301, which in his view improperly suggested to the jury that CALCRIM No. 1190 was a credibility instruction. Defendant also argues that the trial court prejudicially erred in giving consciousness of guilt instructions, which he claims were superfluous. We reject his contentions and affirm the judgment.
I. Facts
In 1986, defendant was convicted of forcible rape, forcible oral copulation, and kidnapping. Jane Doe's mother befriended defendant around 2010, and the two of them often smoked marijuana and methamphetamine together. Doe's mother lived in an apartment in Scotts Valley. Doe did not live with her mother; she lived nearby with her grandfather. However, Doe often spent the night at her mother's apartment and frequently came over to the apartment after school.
In the summer of 2012, when Doe was 13 years old, she met defendant at the apartment. She began talking to defendant "a lot." Defendant helped Doe with her school work. He also frequently drove Doe back to her grandfather's house and drove her to and from school. Defendant was homeless, so he sometimes slept in his truck in the driveway next to the apartment and other times slept inside the apartment. Defendant let Doe's mother use his truck to run errands while he remained at her apartment. Doe's mother was often out all night even when Doe was visiting.
One night near the end of August 2012, Doe rubbed defendant's shoulders, and he reached around and grabbed her breast. They proceeded to kiss. They agreed to have a relationship, but defendant told her she would have to lie about their relationship because "he would go to jail for what he was doing." He told her "that he would stay with me forever and that when I was 18 that we could get married." Defendant gave Doe love letters that he had written to her in which he called her his "lover" and proclaimed that she was "unbelievably sexy." However, he frequently accused her of cheating on him and called her "a slut and a whore." He also threatened to "pimp [her] out." This threat scared her, and she tried "to do whatever I could to not make him upset."
Between late August 2012 and early December 2012, Doe orally copulated defendant more than 20 times, and he orally copulated her about the same number of times. They engaged in sexual acts "probably every other night about." Most of these acts occurred at the apartment, and others occurred in defendant's truck. They smoked marijuana and drank whiskey before they engaged in these sex acts. Defendant smoked methamphetamine a couple of times in Doe's presence and offered her some, but she declined.
Although they began by engaging in only digital penetration and oral copulation, by November 2012 they had proceeded to vaginal and anal intercourse. The first time they had vaginal intercourse was in defendant's truck. Defendant had accused her of "cheating on him," and he told her he wanted her to have sex with him. Although she was reluctant, she had sex with him to prove that she was "loyal to him." Defendant always used a sexual lubricant when they had sex. They had vaginal intercourse "around six" times. Defendant also wanted to have anal intercourse. First, he put his finger in her anus, and then he put his penis in her anus. Doe again was reluctant, but she had "given up on saying no to things so I just kind of let it happen." They had anal intercourse twice.
Defendant never used a condom when he had sex with Doe. At the beginning of December 2012, defendant told her to get birth control. He took her to Planned Parenthood and waited in the waiting room for her. Doe "made up a story" and told the medical professional at Planned Parenthood that she was having sex with a 16-year-old boy. After Doe got birth control, she and defendant had sex at least two more times. The last time they had vaginal intercourse was on December 12, 2012. Not long after she went to Planned Parenthood, the police contacted her grandfather and asked to speak with Doe. Doe told defendant that she needed to talk to the police, and he told her "not to tell them."
Doe spoke to the police on December 13, 2012. The police officer asked Doe why she had gotten birth control. At first, she lied and told the same story she had told Planned Parenthood. When the police officer did not believe her, she told a different lie. The police officer told her that he "could subpoena my phone and look though all my text messages," and Doe then told him "as little information as possible" about her relationship with defendant. She was trying to protect defendant. Although she had had sex with defendant the previous night, she told the police that it had been a week. She was concerned that there were still "sexual fluids in me because I hadn't been able to shower yet." The officer told her that she would still need to have a sexual assault examination.
A sexual assault examination took place on December 13, 2012. Doe told the sexual assault examiner that she had had consensual sex with defendant the previous day. Vaginal swabs were collected from "the very end of the vagina," deep inside the vaginal canal. Other swabs were collected from Doe's vulva, anus, breast, and mouth. Defendant's DNA was found on the swabs from Doe's vagina, vulva, and right breast.
Defendant was immediately arrested. He was carrying a bottle of "Astroglide" sexual lubricant and a photograph of Doe. Defendant's pickup truck's glove box contained letters and poems to and from Doe and defendant, and seven containers of "sexual lubricant." Defendant, who was 48 years old at the time, told the police that he loved Doe "but not in a frickin weird way." He said he did not love her as a girlfriend, but he admitted "I may have a bit of a crush on her." Defendant denied that he had ever had sex with Doe. In January 2013, defendant contacted Doe by email. When Doe wrote back "that what had happened was wrong and I was a victim," he responded "what do you mean, we never had sex."
II. Procedural Background
Defendant was charged by amended information with five counts of oral copulation of a person under the age of 14, five counts of lewd conduct on a child under the age of 14, five counts of unlawful sexual intercourse with a minor, one count of sodomy on a person under the age of 14, two counts of sexual penetration of a person under the age of 14, one count of forcible oral copulation (§ 288a, subd. (c)(2)), one count of attempting to dissuade a witness, one count of violating sex offender registration requirements (§ 290.011, subd. (a)), and one count of aggravated sexual assault on a child (§ 269, subd. (a)(4)). The information also included strike allegations, one-strike allegations, and prior sex offense conviction enhancement allegations. The sex offender registration violation count was severed.
Defendant's defense at trial was that the jury should not believe Doe's testimony because she was "a skilled liar." The jury could not reach a verdict on the forcible oral copulation count, but it returned guilty verdicts on all of the other counts. It also found true all of the special allegations associated with the counts on which it returned guilty verdicts and found true the strike allegations.
The court granted defendant's motion for a new trial on the aggravated sexual assault on a child count due to the inconsistency between the jury's verdict on that count and its failure to reach a verdict on the forcible oral copulation count, which was the underlying basis for the aggravated sexual assault count. The court then dismissed that count under section 1385. The court also struck the strikes.
Defendant was committed to state prison for a term of 132 years to life. The prosecutor dismissed the remaining counts. Defendant timely filed a notice of appeal from the judgment.
III. Discussion
A. CALCRIM No. 1190 and CALCRIM No. 301
Defendant claims that the trial court prejudicially erred in giving CALCRIM No. 1190 immediately after CALCRIM No. 301.
1. Background
Early on in the prosecution's case-in-chief, the trial court told the prosecutor and defendant's trial counsel, outside the presence of the jury, how it planned to instruct the jury. "The 300 series. I plan on inserting 1190 right after 301 since that's how they were read to the jury during voir dire." Neither attorney raised any objection to the court's plan. At the instruction conference after the close of evidence, the court reiterated this plan: "And then we'll move to the 300 series: 300, 301, at this point I'll give 1190 since it's a legitimate follow-up to 301 regarding the issue of witness testimony. I'll then give 302, 303 . . . ." Defendant's trial counsel raised no objection to that plan.
The court told the jury: "Pay careful attention to all of these instructions and consider them together." "Do not assume just because I gave a particular instruction that I am suggesting anything about the fact[s]. [¶] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." After instructing the jury on how to evaluate witnesses (CALCRIM No. 226), the court gave the jury an instruction on general and specific intent (CALCRIM No. 252). Then it instructed the jury that neither side was required to call all witnesses or produce all physical evidence (CALCRIM No. 300). This instruction was followed by CALCRIM No. 301, which told the jury: "The testimony of only one witness can prove any fact. [¶] Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence." Following this instruction, the court gave CALCRIM No. 1190: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." The next instruction concerned the evaluation of "a conflict in the evidence" (CALCRIM No. 302). The court also told the jury: "You'll notice that as these instructions are provided, the 100 series are the initial instructions on how a trial happens, the 200 series talks more about the trial itself and also discusses evidence, the 300 series becomes more specific regarding the issue of evidence. And then we proceed with the definition for each of the counts."
2. Analysis
Defendant claims that the order in which the trial court gave the instructions misleadingly led the jury to believe that CALCRIM No. 1190 was a credibility instruction, which erroneously suggested that the complaining witness was entitled to "some level of deference . . . in contrast to any other single witness, whose testimony may require a stricter scrutiny."
In People v. Gammage (1992) 2 Cal.4th 693 (Gammage), the defendant contended that the predecessors of CALCRIM Nos. 301 and 1190 "in combination . . . unconstitutionally 'create[] a preferential credibility standard for the complaining witness.' " (Gammage, at p. 700.) The California Supreme Court rejected this contention. "Although the two instructions overlap to some extent, each has a different focus. [CALCRIM No. 301's predecessor] CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. [CALCRIM No. 1190's predecessor] CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes. [¶] Because of this difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. . . . The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, at pp. 700-701.)
Defendant concedes that Gammage precludes him from arguing that the trial court prejudicially erred in giving both CALCRIM No. 301 and CALCRIM No. 1190, but he claims that it does not preclude him from contending that the trial court prejudicially erred in giving CALCRIM No. 1190 immediately after CALCRIM No. 301. He premises this argument on the language in Gammage noting that CALCRIM No. 301 "is given with other instructions" on the fact-finding process, while CALCRIM No. 1190 "is given with other instructions on the legal elements" of the offenses. Defendant asserts that the ordering of the instructions "created the incorrect impression that 1190 expressed a rule for the evaluation and assessment of the complaining witness's credibility."
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on a different point in People v. Reyes (1998) 19 Cal.4th 743, 756.) We evaluate the challenged instruction in the context of all the instructions given by the trial court. (Boyde v. California (1990) 494 U.S. 370, 378.) "[An] instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record. [Citation.] In addition, in reviewing [a potentially] ambiguous instruction such as the one at issue here, we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
" '[T]he general rule is that the order in which instructions are given is immaterial.' " (People v. Sanders (1990) 51 Cal.3d 471, 519.) This is particularly true where, as here, the jury is instructed to consider all of the instructions together. (Ibid.) Moreover, we can see no reasonable likelihood that the jury was misled by the court's ordering of the instructions. Defendant's claim that the court gave CALCRIM No. 1190 as part of a group of credibility instructions is simply not true. The court's main instruction on witness credibility was separated from CALCRIM No. 1190 by two instructions that did not concern credibility (one on general and specific intent and another on the fact that neither side was required to call all witnesses or produce all physical evidence). It was only after those two instructions that the court gave CALCRIM No. 301 and then CALCRIM No. 1190. While CALCRIM No. 301 and CALCRIM No. 1190 were given sequentially, their proximity alone did not suggest that a "complaining witness" was to be given more deferential treatment than any other witness. Instead, a reasonable jury would have understood the two instructions as being completely consistent: the complaining witness, like any other single witness, may provide the sole testimony supporting a fact. We can see no basis for concluding that the jury would have believed that the cautionary sentence in CALCRIM No. 301 did not apply to a complaining witness. Thus, there is no reasonable likelihood that reasonable jurors would have understood the proximity of the instructions to suggest that the complaining witness was entitled to special deference. We reject defendant's contention.
B. Consciousness of Guilt Instructions
Defendant contends that the trial court prejudicially erred in giving consciousness of guilt instructions because these instructions were "unnecessary," "circular and confusing," and prejudicial.
Defendant's trial counsel objected at the instruction conference to consciousness of guilt instructions on the ground that "there's no evidence that Mr. Marshall made a false or misleading statement," and "[t]here was no evidence that Mr. Marshall tried to hide evidence or discourage someone from testifying at a trial . . . ." The court overruled her objections.
The court instructed the jury with CALCRIM Nos. 362 and 371 on consciousness of guilt: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Defendant acknowledges that the California Supreme Court has repeatedly rejected the contention that he makes and that we are therefore bound to reject it, but he raises it so that it may "be preserved for review in the California Supreme Court and, if necessary, later for federal court." The California Supreme Court rejected defendant's contention in People v. Bacon (2010) 50 Cal.4th 1082 (Bacon). (Bacon, at p. 1108.) We are bound by Bacon (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we therefore reject defendant's contention.
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.