Opinion
E069625
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVIS MOORE, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF066216) OPINION APPEAL from the Superior Court of Riverside County. Arjuna (Vic) Saraydarian, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Davis Moore, guilty as charged of committing three sex offenses against a female victim, Z., on March 6, 2009: forcible rape (count 1), forcible oral copulation (count 2), and forcible penetration with a foreign object (count 3). The jury acquitted defendant of falsely imprisoning Z. (count 4). (Pen. Code, § 261, subd. (a)(2); former § 288a, subd. (c)(2)(a); §§ 289, subd. (a)(1)(A); 236.) The court found that defendant had a 1987 conviction for forcible rape, which constituted a prior serious felony conviction and a prior strike. (§ 667, subds. (a)-(i).)
Undesignated statutory references are to the Penal Code.
Defendant was sentenced to concurrent terms of 25 years to life on counts 1, 2, and 3 (§ 667.71, subds. (a), (b), (c)(1), (c)(5) & (c)(8)), and each term was doubled to 50 years to life based on his prior strike. (§ 667, subd. (e)(1).) An additional five-year term was imposed on defendant's prior serious felony conviction (§ 667, subd. (a)), resulting in a total sentence of 55 years to life.
Defendant, who is African-American, claims the judgment must be reversed based on structural error because the prosecutor used her third peremptory challenge to excuse K.E., the only African-American juror in the entire venire, on the basis of K.E.'s race. Defendant argues that the trial court, in ruling on his Batson/Wheeler motion challenging K.E.'s excusal, failed to conduct a sincere and reasoned effort to evaluate the prosecutor's race-neutral reasons for the excusal, in part because the court deferred ruling on the motion until after the jury was fully selected and sworn. We conclude that substantial evidence supports the court's implied finding that the prosecutor's race-neutral reasons for excusing K.E. were genuine. We also conclude that any error in the court's deferred consideration of and ruling on the motion was harmless.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Defendant also claims the trial court prejudicially erred: (1) in refusing his request to give the jury a Mayberry instruction, that he was not guilty of the charged sex offenses if he actually and reasonably believed that Z. consented to the sexual acts underlying each charge; (2) in admitting Z.'s detailed hearsay statements to two witnesses as both fresh complaint evidence and for their truth as spontaneous statements; (3) in excluding the testimony of Z's roommate, Alex, who was with Z. before the alleged sexual assaults occurred and who would have disputed Z.'s testimony that Alex left Z. stranded and without a ride home; and (4) in admitting evidence that he committed two prior forcible rapes, one in 1986 and another in 2000. (Evid. Code, §§ 352, 1108.)
People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).
Defendant further claims his defense counsel rendered ineffective assistance in inadvertently eliciting cross-examination testimony from Z., which supported the forcible sexual penetration charge in count 3, and that the cumulative effect of his defense counsel's error and the trial court's several errors was prejudicial. Lastly, he claims the matter must be remanded to the sentencing court to determine whether to strike the five-year term imposed on his prior serious felony conviction. We agree that the matter must be remanded for resentencing on defendant's prior serious felony conviction. We reject defendant's other claims of error and affirm the judgment in all other respects.
II. FACTS AND PROCEDURAL BACKGROUND
A. Defendant's Two Prior Trials
Defendant was convicted of his current offenses in May 2017, following his third jury trial. The first trial ended in June 2011, during jury selection, after the court declared a doubt that defendant was mentally competent to stand trial. (§ 1368.) In July 2015, the second trial ended in a mistrial after the court declared defendant mentally incompetent to stand trial and committed him to the state mental hospital pending restoration of his competency. In November 2015, the court found that defendant's mental competency had been restored and reinstated the criminal proceedings.
In May 2017, a third jury trial commenced before the Honorable Arjura T. Saraydarian, retired, who did not preside over the two prior trials. As noted, the jury in the third trial convicted defendant of forcible rape, forcible oral copulation, and forcible sexual penetration with a foreign object, but acquitted him of false imprisonment. B. Prosecution Evidence (The Third Trial)
1. The Charged Acts Involving Z.
In March 2009, 22-year-old Z. was living in a house in Indio with three roommates, Alex, Ashley, and R. Z. was a cosmetology student. Early on the morning of March 6, Z. was raped. Around 10:00 or 11:00 p.m. on March 5, Alex drove himself, his friend Brian, and Z. to two nightclubs in Palm Springs, where they drank alcohol and danced. Alex was intoxicated, and when they were ready to leave, Alex could not remember where he had parked his car. Thinking that Alex and Brian were behind her, Z. walked up a street to look for the car, and when she turned around, Alex and Brian were getting into a taxi, and the taxi drove away.
Z. was stranded, and walked to a nearby casino to buy some food. When she finished eating, she talked to some taxi drivers outside the casino, asked them how much it would cost to take her home, and they all said it would cost around $50. Because Z. did not have that much money, she returned to the casino and fell asleep in a chair. By this time, it was "well after midnight." A security officer told Z. she could not sleep in the casino, so she went to the foyer area at the front of the casino. There, she used her cell phone to call Ashley, and told Ashley what had happened with Alex and Brian. She also tried to reach Alex, but that call went "straight" to Alex's voice mail.
While Z. was on the phone, defendant walked into the casino and sat down in the foyer area, around 15 feet from Z. When Z. finished talking to Ashley, defendant told Z. he had overheard her conversation and offered to help her look for Alex's car. Z. initially said "no," but defendant would not leave her alone and kept insisting he could help her. Z. began to trust defendant, because they were both African-American, she did not know many African-Americans in Palm Springs, and she began to view defendant as a "father figure" who might have a daughter her age and who truly wanted to help her. For those reasons, Z. agreed to let defendant help her look for Alex's car.
At some point, Z. told Ashley, over the phone, that a man was going to help her look for Alex's car. Ashley told Z. to "be careful" and it was not "a good idea" to get into a car with someone Z. did not know.
As defendant and Z. were driving in defendant's car, looking for Alex's car, defendant began asking Z. personal questions including where she was from and who she had been with that evening. Z. gave defendant some incorrect answers; for instance, she told him Alex was her boyfriend. She also did not tell defendant where she lived because he was a stranger. After they were unable to find Alex's car, defendant told Z. he could get her a hotel room. At first, Z. said "no" but defendant kept telling her he could get her a room, just as he kept insisting that he could help her when they were in the casino. Z. agreed to let defendant get her a room because she needed a place to stay.
Defendant took Z. to a motel in Palm Springs and checked in while Z. waited in his car. According to the motel clerk, defendant checked in around 4:00 a.m. on March 6, 2009, and used his own name. After he checked in, defendant returned to his car and took Z. up to the motel room. When he opened the door to the room, he walked in, removed his shoes and jacket, and sat down on the bed while Z. stood by the door.
Z. did not know what to think. Although defendant had said that the motel did not have any rooms with two beds, he had not said anything about staying in the room with Z. Still, Z. thought the bed was only for her, but she did not say anything to defendant about there being only one bed in the room. As he sat on the edge of the bed, defendant asked Z. whether she was going to lie down. Although he had said nothing about having sex with Z., defendant removed his pants and other clothing so that he was only wearing an undershirt and undershorts, and he lay down on the bed with his head "at the pillow." Because she was tired, Z. took off her shoes and lay "completely to the other side" of the bed, facing the wall and away from defendant. There was space on the bed between herself and defendant, and she was still fully clothed: she was wearing jeans, underpants, a bra, a body suit, a tank top, and a shirt over the tank top. Defendant told her he could keep her warm if she was cold, and she did not remember whether she said anything in response to that remark.
Next, defendant said he had a girlfriend in New York, put his arm around Z., rubbed his penis against her buttocks, and asked Z. whether he could pretend that she was his girlfriend. Z. said, "no." He then told Z. that he was masturbating behind her, and she could feel his penis and hand moving against her buttocks. Around this time, defendant put his finger into Z.'s anus. She told him to stop, but he put his hands under her clothing, rolled her over, and kept saying, "Make me yours." She tried to push him away but she could not do so because he was much larger than she was.
Defendant then took off Z.'s clothes, held her down, and got on top of her. He asked if he could perform oral sex on her, and she said "no." Then he tried to force her legs open, while she tried to keep her legs closed and placed her hands over her vaginal area. He moved her hands away and performed oral sex on her. Z. kept "saying stop and pushing" but was not "forcefully trying to fight" defendant, both because he was larger than she and because she did not "want him to get violent."
After he performed oral sex on Z., defendant put his hand around his penis and forced it into Z.'s vagina. Z. was a virgin and the intercourse was painful. She was still telling defendant to stop, and she tried to close her legs to keep him from getting inside of her. Eventually, he "let up a little bit to a point" where Z. was able to get up, grab her clothes, and put her clothes on. Z. then ran to the motel room door. Defendant blocked the door and asked Z. where she was going, and she told him she was leaving. He asked her whether she wanted money, then he said, "Well, you wanted this. What was I supposed to think because you got into the car." Z. believed defendant was trying "to mind manipulate" her to think that she wanted the sexual acts to happen when she did not.
Defendant then said he would call his "partner," which frightened Z. because she did not know what he meant by the statement; she thought it might mean someone would be waiting for her outside the motel room door. Defendant picked up his phone to make a call, and when he did so he moved away from the door, which allowed Z. to get out of the room. Z. ran down the stairway and away from the motel. Defendant yelled for her to come back and said, "Let me give you a shirt because you're cold." Because she wanted the shirt "for evidence," Z. returned, grabbed the shirt from defendant, and ran away again. At this point, it was still dark outside.
Z. ran to a nearby drug store, and at some point defendant followed her into the store. Z. told defendant to leave her alone. When defendant would not leave her alone, Z. walked up to a security guard, who was standing by the drug store door, to prevent defendant from bothering her, but she did not tell the security guard that defendant had done anything. After she got to the drug store, Z. called Ashley and asked Ashley to pick her up. During the call, Ashley heard Z. telling someone that Z. was not "going to say anything about what happened." Z. then told Ashley the person she was talking to was following her. Ashley became "really worried," drove to the drug store, and picked up Z.
Ashley testified she left Indio at 6:30 a.m. to pick up Z. and arrived at the drug store at "roughly" 7:00 a.m. The motel clerk testified defendant checked out of the motel around 5:00 a.m., less than one hour after he checked in. Defendant told the clerk he was leaving because he and his girlfriend had had a fight. The clerk told the police that defendant was only at the motel for approximately 20 minutes.
In Ashley's car, on their way back to Indio, Z. was "very upset" and told Ashley what defendant had done. Ashley took Z to school, but Z. left her class early because she was distraught, and she went to a hospital. At the hospital, Z. underwent a sexual assault examination, which began at 5:00 p.m. and concluded after 11:00 p.m. on March 6, 2009. After the examination had concluded, Z. telephoned her mother, R.B., who lived out of state, and told her mother she had been raped.
2. Z.'s Sexual Assault Examination
The sexual assault examination showed that Z. had redness and an abrasion (a tear of the skin) on the bottom of her posterior fourchette, near her vagina. Because the abrasion was the type that would heal within one to two days, it was consistent with the time Z. told the examining nurse that she had been sexually assaulted. Z. had no injuries on any other parts of her body. Z. also told the examining nurse that defendant penetrated her anus with his finger, but Z. had no injuries near her anus, and the interior of her anus was not examined.
3. Defendant's Prior Sex Offenses (Evid. Code, §§ 352, 1108)
(a) The 1986 Incident Involving C.
In July 1986, 17-year-old C. was living in Long Beach. One day that month, C. was walking to a friend's house when defendant, who was driving alone in a car, pulled over to the sidewalk and stopped near C. He got out of the car, grabbed C. by the arm, told her to get into the car, then pulled her into the car. C. did not know defendant and did not want to get into the car with him, but she saw a rifle in the backseat. Defendant drove C. to a residential area in Long Beach and stopped at an apartment complex.
At the apartment complex, defendant opened the car door for C., told her to get out, walked her to his apartment, and took her to his bedroom. There, he pulled down C.'s pants and underwear, forced her to lie on the bed, and raped her while ignoring her pleas for him to stop. When he was finished, he took C. back to his car, drove her around for 15 to 20 minutes, then let her out of the car. Shortly thereafter, C. told a friend what had happened, and her friend's mother called the police.
The trial court excluded evidence that defendant was convicted of the forcible rape of C. in 1987, based on the 1986 incident. The 1987 conviction is the basis of the trial court's finding, in the bifurcated trial, that defendant had a 1987 conviction for forcible rape, which constituted a prior serious felony conviction and a prior strike. (§ 667, subds. (a), (b)-(i).)
(b) The 2000 Incident Involving J.
In March 2000, 23-year-old J. was living and working in Desert Hot Springs. J. had met defendant because she and his wife were coworkers. On the afternoon of March 28, 2000, J. was at a bus stop waiting for the bus to take her to work. Defendant was near the bus stop talking to someone and offered to give J. a ride. J. accepted the offer. As they were driving in defendant's truck, defendant began to talk to J. about her boyfriend and asked J. if they had intercourse. J was uncomfortable with the question and told defendant she wanted to wait until she was married.
Defendant said he had to make a phone call, stopped at his house, and asked J. if she wanted something to drink. J. said she did, went inside the house with defendant, and sat on the couch. Defendant brought J. a glass of water and made a phone call. J. did not think anything unusual was happening until she stood up because she wanted to go to work. At that point, defendant stood in front of her and asked for a hug, so she gave him a quick hug. He then sat on the couch and asked J. for a massage. Although J. did not want to touch him, she quickly touched his shoulders, with only one finger on each shoulder.
As J. was facing defendant, he put his hands on her buttocks, and she told him to remove them. He then lifted J.'s shirt, began kissing her stomach, and asked her to sit on top of him. J. complied because she was in "shock." Next, defendant pulled down her pants and underwear, put her on the floor, and raped her. When he finished, he brought J. a washcloth because she was bleeding, then he drove her to work.
Later that day, J. told her boss what had happened, after her boss noticed she was "acting different." J. admitted she did not tell defendant that she did not want to have sex with him, but she "froze" and feared he would hurt her if she did not comply. The parties stipulated that "criminal charges" against defendant "arising from" the 2000 incident, as testified to by J., "were dismissed by the court in 2002 and 2009."
4. Expert Testimony on Rape Trauma Syndrome
Dr. Veronica Thomas, a clinical and forensic psychologist, testified generally about rape trauma syndrome (RTS). RTS is not a mental health diagnosis; it is "a constellation of symptoms" describing the emotional and behavioral changes a victim can go through after being raped. Dr. Thomas did not examine Z., C., or J., and she did not offer an opinion whether any of the them had exhibited symptoms associated with RTS.
RTS has three phases. In the acute or initial phase, the victim may be very upset, excitable, tearful, and emotional, or the victim may not be emotional at all and may "internalize" the emotional trauma of the rape. In the recovery phase, the victim is better able to articulate the experience and explain their feelings about it to others. In the reorganization phase, which may be weeks or months later, the victim may be able to return to their former level of functioning. Whether the victim is able to do that depends on whether they have a support system "that recognizes and wants to help them get back to where they were before." Many rape victims experience ongoing depression and difficulty concentrating, which may prevent them from returning to their former level of functioning "more so than actual physical injuries."
Research on RTS has revealed several myths about rape victims. One is that rape victims have suffered a violent attack and physical injuries, but most rapes do not involve violent attacks or physical injuries. Another is that rape victims immediately report the rape, but most rapes are not reported at all. Rape victims may feel complicit in or responsible for the rape, particularly when they know the perpetrator. According to Dr. Thomas, "[v]ictims overwhelmingly feel responsible for their own victimization, and that's just absolutely not the way it happens, but it has a lot to do with why it's not reported."
III. DISCUSSION
A. Defendant's Batson/Wheeler Claim Lacks Merit
Defendant, who is African-American, claims the judgment must be reversed because the court erroneously denied his Batson/Wheeler motion, challenging the prosecutor's use of her third peremptory challenge to excuse K.E., the only African-American prospective juror in the venire. In his motion, defendant claimed the prosecutor excused K.E. based on K.E.'s race. In this appeal, he claims the court failed to make a sincere and reasoned effort, or "a good faith assessment," of the credibility or genuineness of the prosecutor's race-neutral reasons for the excusal, in part because the court deferred ruling on the motion until after the jury had been fully selected and sworn. We conclude that substantial evidence supports the court's finding that the prosecutor's race-neutral reasons for the excusal were genuine, and nothing in the record shows the court failed to conduct a good faith assessment of the prosecutor's race-neutral reasons for the excusal. Thus, the motion was properly denied. Additionally, any error in the court's deferred consideration of and ruling on the motion was harmless.
1. Relevant Background
After the court individually questioned members of the jury venire in private in order to screen them for excusals for cause, 12 prospective jurors were called to sit in the jury box, and 12 more "spare jurors" were called to sit near the jury box in case any of the first 12 had to be replaced. K.E. was the only African-American prospective juror in the entire venire and was the first prospective juror to be called into the 12-person jury box. After he was seated as prospective juror No. 1, K.E. was asked to state his name, the city in which he lived, and his type of employment, both present and past. K.E. said he lived in San Jacinto; he presently worked for Riverside County as a nurse; he had been a nurse since 2001; and he had "worked all over" as a nurse, including at Hemet Hospital, which he said was "horrible." He had three children, all under age 18.
Defense counsel later asked all of the prospective jurors whether they thought that the burden of proof beyond a reasonable doubt was "the right standard" to which the prosecution should be held to prove a case, and they collectively responded, "Yes." Defense counsel then asked K.E. why he had responded "Yes," and K.E. said, "Because I believe if you're going to throw somebody in jail, you need to have credible evidence to do that because pretty much their life is over, depending on what their case is, and there's people involved, families are going to suffer if you don't have the adequate . . . ." When K.E. did not finish his sentence, defense counsel asked, "Because of the consequences?" K.E. said, "Yes, consequences. I believe you bringing a case, then it's [incumbent upon] you to prove that case." Defense counsel asked the other prospective jurors whether they agreed with K.E.'s response, and they collectively answered, "Yes."
The prosecutor later asked whether any of the prospective jurors believed that, once a person is engaged in sexual intercourse, that person can "change [their] mind" and stop the intercourse, and all of the prospective jurors answered, "Yes." The prosecutor then asked whether any of the prospective jurors subscribed to the "idea" that, "once you reach a certain point" during intercourse, there is "a point of no return where . . . you don't have the right to stop engaging in sex." She first directed the question to K.E., and he answered, "No."
A short time later, the prosecutor asked K.E. how long he had worked in the county jail, and he answered five and one-half years. She then asked K.E. whether he had a "very specific work environment," and he answered, "yes." Next, she asked K.E. whether he worked with people in custody, and he answered, "Yes, I work with the deputies." She also asked K.E, "Is there any special information that you received or that you know about through your course of work that would cause you to maybe perhaps bias yourself in listening to evidence that's being presented?" K.E. answered, "No." She then asked whether any of the other prospective jurors had received any "special information" through their employment, friends, or family that would cause them "trouble in evaluating witness testimony." One other prospective juror answered, "No."
After the prosecutor and defense counsel completed questioning the prospective jurors, defense counsel exercised his first peremptory challenge, the prosecutor exercised her first and second, and defense counsel said he would accept the jury as constituted. The prosecutor then used her third peremptory challenge to excuse K.E. Defense counsel said, "I have an objection to that challenge," and the court responded, "Okay. We'll take that up later on." Defense counsel then asked the court not to permanently excuse K.E. until defense counsel's objection had been "resolved," which defense counsel said he would "leave up to the Court." The court said, "Okay," and asked K.E. to take a seat in the audience.
Jury selection continued. After both sides used several more peremptory challenges and 12 more prospective jurors were called to the front of the courtroom to be questioned, both sides accepted the jury as constituted. Two alternate jurors were then selected, the 12 jurors and the two alternates were sworn, and the court excused the jurors, the alternates, and K.E. for the lunch recess. The court then noted that defense counsel had objected to the prosecutor's peremptory excusal of K.E. and asked defense counsel to explain his objection. Defense counsel told the court it was a Batson/Wheeler objection, that K.E. was the only African-American in the venire, and that K.E. had said nothing that would either support excusing him for cause or that indicated he would be "detrimental" to the prosecution's case.
The court asked the prosecutor to respond. The prosecutor first asked the court whether a prima facie showing had been made that she had excused K.E. on the basis of his race or ethnicity. The court told the prosecutor to assume that a prima facie showing had been made. The prosecutor then acknowledged that K.E. was the only African-American in the entire venire but pointed out that she had used her third, not her first, peremptory challenge to excuse K.E. Next, the prosecutor explained why she had excused K.E.: he worked as a nurse at the county jail; he had done so for several years; and during the course of his work he had contact with inmates. The prosecutor said she "typically" did not select as a juror anyone who was on the jail's civilian staff because such persons provided "individualized treatment" to and had "one-on-one" contact with inmates, which "can lead" to them having "a type of relationship" with the inmates. This, she explained, was "just the People's position on that point."
As a "secondary issue" or related reason for excusing K.E., the prosecutor said she believed K.E. might be too sympathetic to defendant and his family, given that this was a "serious case" and "the weight of a conviction" would have a "serious impact" on defendant and his family. The prosecutor noted that K.E. was "the only potential juror during the course of [defense counsel's] exchange with the first panel, and even in the People's inquiry, [who] suggested or made the comment about how this was a serious case and he considered that this would be a . . . serious impact on the defendant and the defendant's family, the weight of a conviction. And no other juror made a comment similar." The prosecutor said she was referring to K.E.'s response to "a question from the defense about weighing or considering penalty or the outcome of a potential conviction or a guilty verdict . . . ." She was concerned that, "this outstanding issue with regard to penalty and the . . . outcome this may have on the defendant or the defendant's family," would "altogether" be an issue with K.E. She said she excused K.E. based on this concern, "tied with his employment at the jail." When the court asked whether she was "concerned about the issue of sympathy," she responded, "Altogether."
In response, defense counsel disputed the substance of his exchange with K.E. He said, "That was not the exchange between [K.E.] and myself. I asked the simple question. . . why do you think we have that standard of proof beyond a reasonable doubt. And he says, because it's important. . . . He says, because the consequences can be severe. And then he went on to explain it can be severe for the defendant, can be severe for the family so that's why the standard of proof is high. . . . He said nothing about his sympathy . . . . And the prosecutor didn't even go into that in her questioning." Accordingly, defense counsel argued that the prosecutor's explanation for excusing K.E. was merely "an excuse to use that peremptory challenge . . . ."
The court denied the Batson/Wheeler motion. After hearing counsel's arguments, the court found that there was no prima facie showing that the prosecutor had excused "any particular juror because of race." The court further found that, even if there was such a prima facie showing, the prosecutor "ha[d] valid justification and good cause to excuse" K.E.
The People argue defendant has forfeited his claim of Batson/Wheeler error because he did not ask the court to consider and rule on his "unspecified objection" until after the jury was selected and sworn. The People point out that defense counsel had an opportunity to remind the court of his objection and to explain and renew the objection before the jury was sworn, but defense counsel did not do so and instead accepted the panel as constituted. We exercise our discretion to consider defendant's claim of Batson/Wheeler error on its merits, because it affects defendant's substantial rights. (§1259; see People v. Johnson (1989) 47 Cal.3d 1194, 1285, overruled on other grounds in People v. Gutierrez (2017) 2 Cal.5th 1150, 1174.)
2. Applicable Legal Principles
Although peremptory challenges are "designed to be used 'for any reason, or no reason at all' " (People v. Scott (2015) 61 Cal.4th 363, 387), they may not be used to exclude any prospective juror on the basis of race. The use of even one peremptory challenge to excuse a prospective juror on the basis of race violates the defendant's Fourteenth Amendment right to equal protection of the laws. (Batson, supra, 476 U.S. at p. 89.) It also violates the defendant's right to a trial by a jury drawn from a representative cross-section of the community, under article I, section 16 the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) The error is structural and requires reversal of the judgment. (People v. Gutierrez, supra, 2 Cal.5th at p. 1158 ["Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal."].)
A three-step procedure applies at trial when a defendant alleges the prosecutor has impermissibly excused a prospective juror based on race. " 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." ' [Citation.]" (People v. Williams (2013) 56 Cal.4th 630, 649.)
The opponent of the strike (defendant in this case) bears the ultimate burden of persuasion on the motion—the burden of persuading the trial court that the peremptory strike or challenge was improperly motivated. (People v. Melendez (2016) 2 Cal.5th 1, 14.) To satisfy this burden, the opponent must show it was "more likely than not that the challenge was improperly motivated." (Johnson v. California (2005) 545 U.S. 162, 170.)
On appeal, we deferentially review the court's denial of a Batson/Wheeler motion " 'examining only whether substantial evidence supports [the court's] conclusions.' " (People v. Manibusan (2013) 58 Cal.4th 40, 76.) In our review, "[w]e presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal." (People v. Burgener (2003) 29 Cal.4th 833, 864.)
3. Substantial Evidence Supports the Court's Implied Finding That the Prosecutor's Race-Neutral Reasons for Excusing K.E. Were Genuine
In his Batson/Wheeler motion, defendant claimed the prosecutor improperly used her third peremptory challenge to excuse K.E., the only African-American prospective juror in the venire, on the basis of K.E.'s race. Without initially determining whether defendant made a prima facie showing that the prosecutor excused K.E. based on his race, the trial court told the prosecutor to assume that a prima facie showing had been made and to explain why she had excused K.E.
"In this situation"—that is, when the trial court fails to initially determine that a prima facie showing of impermissible discrimination has been made and proceeds directly to the second step of the Batson/Wheeler inquiry—" 'we infer an "implied prima facie finding" of discrimination and proceed directly to review of the ultimate question of purposeful discrimination.' [Citation.] Accordingly, 'we must determine whether the trial court correctly ruled that the defense did not demonstrate discriminatory purpose at the third stage. The prosecutor's justification does not have to support a challenge for cause, and even a trivial reason, if genuine and race neutral, is sufficient. The inquiry is focused on whether the proffered reasons are subjectively genuine, not on how objectively reasonable they are. The reasons need only be sincere and nondiscriminatory.' " (People v. Hardy (2018) 5 Cal.5th 56, 76.)
The prosecutor told the court that she had excused K.E. based on his employment as a nurse for the county jail, coupled with his voir dire comments in which he indicated that he might be sympathetic to criminal defendants and their families, and as a result might consider defendant's potential punishment in determining whether defendant was guilty of a crime. The prosecutor said she "typically" did not select as jurors anyone who was a member of the "civilian staff" at the county jail, because such persons might develop "a type of relationship" with inmates based on their "individualized treatment" of and "one-on-one" contact with inmates. She noted that K.E. was the only prospective juror who had commented that criminal convictions have a "serious impact" on defendants and their families.
In finding that the prosecutor had "valid justification and good cause to excuse" K.E., the court implicitly found that the prosecutor's race-neutral reasons for excusing K.E. were genuine. Concomitantly, the court implicitly found that defense counsel did not meet his burden of persuading the court that the prosecutor's race-neutral reasons for excluding K.E. were, more likely than not, insincere and a sham for excluding K.E. on the basis of his race. Substantial evidence supports these conclusions.
Indeed, the record shows that K.E. worked at the county jail as a nurse, that he had done so for over five years, and that he indicated during voir dire that criminal convictions have "serious" consequences for defendants and their families. K.E.'s expression of concern about the consequences of criminal convictions for defendants and their families, coupled with K.E.'s "one-on-one" experiences with and "individualized treatment" of inmates through his work as a nurse at the county jail, suggested to the prosecutor that K.E. might be unduly sympathetic to defendants and their families and, as a result, might improperly consider his sympathy in determining whether defendant was guilty of a crime. The inference that K.E. might improperly consider punishment in determining defendant's guilt warranted the prosecutor's use of a peremptory challenge to excuse him.
Defendant points out that K.E. did not express concern about the consequences of criminal convictions in response to any question by defense counsel about sympathy; rather, K.E. made the remarks in response to defense counsel's question, "why do you think we have" the standard of proof beyond a reasonable doubt. The prosecutor mistakenly recalled that K.E.'s answer was given in response to a question by defense counsel about sympathy. But in answering the question about the reasonable doubt standard, K.E. said that the standard was important because convictions have serious consequences for the defendants and their families. The prosecutor's mistaken recollection about the nature of question that prompted K.E.'s response does not undermine the substantial evidence supporting the court's conclusion that the prosecutor's race-neutral reasons for excluding K.E. were genuine.
A prosecutor can have nondiscriminatory reservations about members of certain professions, insofar as these reservations stem "from a concern about the general attitudes and philosophies persons in that profession might harbor." (People v. Mai (2013) 57 Cal.4th 986, 1053.) Additionally, a prospective juror's expression of sympathy for persons like the defendant, or their experiences with persons like the defendant, generally warrants the use of a peremptory challenge to exclude the prospective juror. (See, e.g., People v. Rushing (2011) 197 Cal.App.4th 801, 811-813 [Peremptory challenge proper where prospective juror "expressed some degree of sympathy for gang members when she said she believed people joined gangs because they had nowhere else to turn."]; People v. Williams (1997) 16 Cal.4th 153, 191 [Peremptory challenge proper where prospective juror might be sympathetic to defendant, a Blood gang member, based on the prospective juror's high school familiarity with Blood gang members.].) More generally, "the law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative." (Wheeler, supra, 22 Cal.3d at p. 275.)
Defendant argues that the prosecutor's reasons for excusing K.E. warrant "close scrutiny" because the prosecutor "engaged [K.E.] in only the most desultory questioning about his employment." We disagree with defendant's characterization of the prosecutor's questioning of K.E. It was not "desultory," and it did not indicate that the prosecutor excused K.E. based on his race. (Cf. Wheeler, supra, 22 Cal.3d at pp. 280-281 [Desultory or nonexistent questioning of excused prospective jurors who are members of identified group, in comparison to other prospective jurors, is relevant to whether there is a prima facie showing that the excused prospective jurors were excused based on group bias.].)
The prosecutor asked K.E. several questions about his employment as a nurse at the county jail. For example, she asked K.E. whether he had a "very specific work environment" and whether, through his work at the jail, he had received any "special information" that would cause him to be biased in evaluating the evidence. These questions indicate that the prosecutor was concerned that defendant's employment might cause him to be sympathetic to and biased in favor of defendant. And, because it is "self- evident" that the prosecutor would harbor a concern about K.E.'s potential bias, the prosecutor's race-neutral reasons for excusing K.E. do not warrant closer scrutiny. (Cf. People v. Gutierrez, supra, 2 Cal.5th at p. 1171 ["[W]hen it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing."].)
In short, substantial evidence supports the court's conclusion that the prosecutor's race-neutral reasons for peremptorily excusing K.E. were genuine. The record supports a reasonable inference that the prosecutor was genuinely concerned and had reason to be concerned that K.E. might be unduly sympathetic to defendant and his family because defendant was facing serious criminal charges. The record thus supports a reasonable inference that K.E. might have improperly considered sympathy in determining whether defendant was guilty of a crime. For these reasons, K.E. was properly excused.
4. Defendant's Additional Arguments Lack Merit
(a) The Court's Delayed Consideration of the Motion Was Harmless
Defendant claims the court's ruling on his Batson/Wheeler motion should not be accorded the "usual deference" on appeal because the court "did not make any attempt to evaluate the prosecutor's reasons for excusing [K.E.] until after the jury was sworn" and, for that reason, the court never made a "sincere and reasoned attempt" to evaluate the credibility or genuineness of the prosecutor's race-neutral reasons for the excusal. He maintains that the court's delayed consideration of his motion, together with the "tenor" of the court's "offer" to defense counsel to state his objection "for the record" after the jury was sworn, "belie the suggestion [that] the trial court had any intention of seriously evaluating the sincerity of the prosecutor's explanation when sustaining defense counsel's objection would have required a mistrial." We disagree.
The "usual deference" to the court's findings is appropriate here, because the prosecutor's race-neutral reasons for excusing K.E. were both inherently plausible and supported by the record. (People v. Hardy, supra, 5 Cal.5th at p. 76.) Thus, the court was not required " ' "to make explicit and detailed findings for the record" ' " to support its conclusion that the prosecutor's race-neutral reasons were genuine. (Id. at pp. 76-77.) Moreover, nothing in the record indicates that the court did not make a sincere and reasoned attempt to evaluate the genuineness of the prosecutor's race-neutral reasons for excusing K.E. when the court considered defendant's motion. Defendant's claim to the contrary is based on conjecture.
More broadly, defendant argues that, because an objection or motion on Batson/Wheeler grounds is untimely unless it is made before the jury is sworn (People v. Thompson (1990) 50 Cal.3d 134, 179), "so too should a trial court be prohibited from delaying consideration of such a claim until after the jury has been sworn." He argues that a court's refusal to consider a Batson/Wheeler motion "in a timely manner," that is, before the jury is sworn, "unfairly prejudices the defense's selection of the jury by forcing defense counsel to make decisions during jury selection without knowing the outcome of the defense's Wheeler-Batson objection."
We agree that trial courts should promptly consider and rule on a Batson/Wheeler motion as soon as the motion is made, rather than defer ruling on the motion until after the jury is sworn. But as we explain, nothing in the record here indicates that the court's deferred ruling on defendant's motion affected the court's analysis of the motion, or the ultimate make up of the jury and the alternates. Thus, any error in the court's delayed consideration of and ruling on defendant's motion was harmless.
Defendant observes that, in People v. Fuentes (1991) 54 Cal.3d 707 (Fuentes), our state high court criticized the trial court for failing to ask the prosecution to justify its peremptory excusals of 14 African-Americans (10 prospective jurors and four prospective alternate jurors) until after jury voir dire had concluded. (Id. at pp. 711-712, 718-721.) But the Fuentes court reversed the judgment, not solely because of the delay in considering the defendant's "Wheeler" motion, but because the record showed that the trial court did not make a "truly 'reasoned attempt' to evaluate the prosecutor's explanations" for the 14 excusals and determine which of the explanations applied to each of the 14 individual prospective jurors. (Id. at pp. 720-721.)
To be sure, the delayed consideration of the motion in Fuentes made it virtually impossible for the trial court to properly consider and rule on the defendant's motion. Fuentes was a death penalty case in which " 'three or four weeks' " had elapsed between the time that the 14 African-American prospective jurors and alternates were examined and the time the trial court asked the prosecutor to justify his peremptory excusals of those 14 individuals. (Fuentes, supra, 54 Cal.3d at pp. 711, 718.) "[T]he end result was that the trial court did not, and perhaps could not, evaluate the prosecutor's explanations as to individual jurors." (Id. at pp. 718-719.) The Fuentes court criticized the trial court for evaluating the prosecutor's explanations "only in the abstract" and "global[ly]" rather than as those reasons may have applied to each of the 14 excused prospective jurors. (Id. at pp. 718-720.) The Fuentes court concluded: "A truly 'reasoned attempt' to evaluate the prosecutor's explanations [citation] requires the court to address the challenged jurors individually to determine whether any one of them has been improperly excluded. In that process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor's exercise of the particular peremptory challenge." (Id. at p. 720.) The trial court in Fuentes did not do this.
This case differs from Fuentes in two respects: First, this case does not involve the "problems of recall" inherent in a weeks' long delay between the time that the excused prospective jurors are questioned and the time the prosecutor is asked to explain the excusals, as occurred in Fuentes. Here, jury selection occurred over only one and one-half court days, on May 17 and 18, 2017, not over several weeks, as it did in Fuentes. (See Fuentes, supra, 54 Cal.4th at p. 718.) Further, the court spent most of May 17 screening prospective jurors in private for excusals for cause. On the morning of May 18, the court and counsel questioned the prospective jurors, including K.E, in open court, and the jury and two alternates were sworn at 11:47 a.m. on May 18. Defense counsel objected to K.E.'s excusal immediately after the prosecutor used her third peremptory challenge to excuse K.E., on May 18. The court ruled on the objection—the Batson/Wheeler motion—less than one-half of one day after K.E. was questioned in open court.
Second, the motion was directed to only one prospective juror's excusal; it was not directed to the excusals of multiple prospective jurors, as in Fuentes. Thus, unlike the trial court in Fuentes, the trial court here was not called upon to evaluate the credibility of multiple proffered reasons for excusing multiple prospective jurors, or to determine which of those reasons were genuine and actually prompted the excusal of each prospective juror. (Cf. Fuentes, supra, 53 Cal.3d at p. 720-722.) And, unlike the prosecutor in Fuentes, the prosecutor here offered specific reasons for excusing K.E that applied solely to K.E.: his over five years of employment as a nurse at the county jail; his expression of sympathy for criminal defendants and their families; and the consequent inference or possibility that he might improperly consider sympathy in determining whether defendant was guilty of a crime.
In sum, any error in the court's delayed consideration of and ruling on the motion was harmless. There is no indication that the court's ruling would have been different had the court considered and ruled on the motion immediately after it was made and before the jury was sworn. (See People v. Hardy, supra, 5 Cal.5th at pp. 75, 77 [Any Batson/Wheeler error in excusing two African-American alternate prospective jurors was harmless where the record showed that neither would have been seated "as an actual juror."].)
(b) Comparative Juror Analysis
Although defense counsel raised no argument about comparative juror analysis in the trial court, defendant now claims, for the first time in this appeal, that a comparative juror analysis with five seated jurors, namely, TJ04, TJ06, TJ07, TJ10, and TJ11, shows that the prosecutor's race-neutral reasons for excusing K.E. were implausible and therefore pretextual. We are not persuaded.
" '[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.' " (People v. Gutierrez, supra, 2 Cal.5th at p. 1174, quoting People v. Lenix (2008) 44 Cal.4th 602, 622.) "[C]omparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination" at the third stage of the Batson/Wheeler inquiry. (People v. Lenix, at p. 622; see People v. Smith (2018) 4 Cal.5th 1134, 1147-1148.) On appeal, we must be "mindful that comparative juror analysis on a cold appellate record has inherent limitations." (People v. Lenix, at p. 622.) Such comparisons "can be misleading, especially when not raised at trial." (People v. Mills (2010) 48 Cal.4th 158, 177.)
(i) TJ10
TJ10 wrote on the jury questionnaire: "I am a Riverside County caseworker (26 years) and have been employed with male juvenile probation, social services and currently family support. My education is in behavioral science. I work in Riverside and Hemet Court Family Law Division." TJ10 also checked three boxes on the questionnaire, indicating that he had been "told about a sexual molestation or misconduct"; had been "involved in a sexual molestation or misconduct case"; and had "special training or education in the subject of sexual abuse."
Before any prospective jurors were questioned in open court, the trial court and counsel questioned TJ10 privately to screen him for cause. The court began the inquiry: "The reason we called you in is because you checked a couple of these items here. And you mentioned about being a juvenile probation, social services—you've done everything." TJ10 responded, "26 years with the county." The trial court then said, "But you know what we want to ask you. Would all this background and information taint you one way or another in this case, either in favor of the alleged victims in this case or against [defendant]? Or would you be able to disassociate all that information and concentrate on the facts [on] this case and judge the case solely based on the facts and the law of this case?" TJ10 said, "Absolutely" and noted, "I have been forced to be impartial and non-judgmental in my life of work throughout the years."
Defense counsel then questioned TJ10. In response to defense counsel's questions, TJ10 said that his educational background was in psychology and sociology, and that he had worked in juvenile probation, "doing intake" at Twin Pines ranch "when it was open years ago." Then he worked with "CPS [child protective services] and APS [adult protective services]," "did home care and supervised," and he was currently working in "family support."
When he worked in juvenile probation, TJ10 worked with male juveniles who had committed sexual and violent offenses, including rape and murder. When asked whether he thought the cases were "substantiated" or "unsubstantiated," TJ10 said he was not "part of the trials" and, in his "end of things, the objective was to rehabilitate and get them back on track and back into society." When asked whether he was successful in doing that, he said, "In most cases, yes," and explained that, "in certain circumstances, particularly with juveniles, you see a lot of repeat offenses. . . . A lot of success . . . is because we . . . gave them education and training, and gave them confidence to basically change behavioral patterns." The prosecutor did not ask TJ10 any questions at this point, and the court did not excuse him for cause.
Defendant now claims it was "not completely clear whether TJ10 had [ever] worked with adults" in custody, as K.E. was doing in his work as a nurse at the jail. Defendant faults the prosecutor for not asking TJ10 whether he had ever worked with adults in custody. But the question was unnecessary because it became clear, when TJ10 was initially questioned for cause, that TJ10 had not worked with adults in custody. During the court's initial inquiry, TJ10 detailed his 26-year career with the county. He currently worked in family support and had previously worked with adults through APS. If he had ever worked with adults "in custody" or adult "inmates," he would have said so when he was initially questioned for cause.
Defendant also points out that, in open court, the prosecutor asked TJ10 only one question: "You work with probation; is that correct?" TJ10 responded that he had done so in the past. Defendant claims it is "significant that the prosecutor's professed concern about prospective jurors' sympathy deriving from one-on-one contact with offenders in custody was absent during voir dire of [TJ10]." He notes that the prosecutor did not ask TJ10 "any questions probing whether [his] one-on-one contact with clients [juveniles] in custody would lead him . . . to feel sympathy for the defense." But no such open court questions were necessary because TJ10 had already answered them when questioned in private. In response to the court's earlier questions, TJ10 said that his work in juvenile probation would "absolutely" not cause him to favor the prosecution or the defense. In sum, nothing about TJ10, the prosecutor's questioning of him, or failure to question him, indicates that the prosecutor's excusal of K.E. may have been based on invidious discrimination.
The prosecutor asked TJ10 whether he worked in probation shortly after she asked K.E. whether there was anything about his employment that would cause him to be biased "in listening to evidence," and whether there was anyone else who had received any "special information" through their employment, friends, or family members that would cause them "trouble in evaluating witness testimony.
(ii) TJ11
Defendant observes that other prospective panelists were nurses, like K.E., or otherwise worked in the medical field. He specifically points out that TJ11 said she had been a neurological nurse for 40 years, "since Florence Nightingale." He faults the prosecutor for failing to ascertain where TJ11 had worked as a nurse and whether her work had ever brought her into contact with "prisoners." But there was no reason for the prosecutor to ask TJ11 those questions. TJ11 said she had been a neurological nurse for 40 years, a specialty unlikely to have caused her to work on a day-to-day basis with "prisoners" or persons accused of crimes, including jail inmates—as K.E. had been doing for over five years. (People v. Armstrong (2019) 6 Cal.5th 735, 775 ["That other prospective jurors may have been similar in one or two regards is not decisive" in determining whether the reasons for another juror's excusal were pretextual.].)
(iii) TJ04, TJ06, and TJ07
Defendant argues, "[a]nother indication something other than the 'sympathy' factor was at play [in the prosecutor's excusal of K.E.] is the total lack of concern on the part of the prosecutor regarding panelists whose professions would seem to require a certain amount of sympathy or empathy to perform." In this regard, he notes that TJ04 had studied to be a marriage and family licensed therapist, and he faults the prosecutor for asking TJ04 no questions. But, like TJ10, TJ04 was initially screened for cause because she checked several boxes on the juror questionnaire, indicating that she had special training, education, and experience concerning sexual abuse and perpetrators of sexual abuse. Like TJ10, TJ04 assured the trial court in private that her background would not cause her to be biased, and she could be impartial. She currently worked as a teacher. Thus, there was no reason for the prosecutor to have asked TJ04 whether she had ever had one-on-one treatment experiences with persons accused of crimes.
Defendant next points out that TJ06 had previously been a pastor for 47 years and had more recently worked for 10 years raising money for a nonprofit "church funding" group. TJ07 was the finance director for the charity, United Way, and she and her husband were currently pastors of a church. Defendant faults the prosecutor for failing to ascertain whether TJ06 or TJ07 had had "any contact with prisoners in their roles as pastors," or whether sympathy for "a defendant or the defendant's family might sway their deliberations. . . ." But there was no reason to believe that either TJ06 or TJ07, either in their roles as pastors or as fundraisers for nonprofit organizations, had ever had any day-to-day, one-on-one contact with persons accused of crimes, as K.E. was currently doing and had been doing for more than five years. Thus, we are not persuaded that the prosecutor's failure to question TJ06, TJ07, or any of the other prospective jurors about whether they might be unduly sympathetic to defendants generally, and might consider sympathy in determining a defendant's guilt, lends any credence to defendant's claim that the prosecutor excused K.E. for a discriminatory purpose.
(iv) The Other Prospective Jurors' Agreement with K.E.
Lastly, defendant points out that K.E. was not the only prospective juror who "suggested or made the comment about how this was a serious case" or that a conviction would have a "serious impact" on defendant and his family. He notes that all of the other prospective jurors collectively answered "yes," after defense counsel asked whether they all agreed with K.E.'s statement that it was incumbent upon the prosecution to prove its case beyond a reasonable doubt, given that criminal convictions have serious consequences for defendants and their families. He faults the prosecutor for failing to ask the other prospective jurors "to elaborate" on their "yes" responses.
But the prosecutor had no reason to ask the other prospective jurors "to elaborate" on their "yes" responses, or to probe them for "sympathy" bias. In response to defense counsel's question about the reasonable doubt standard, K.E. explained why he agreed that the reasonable doubt standard was the "right" standard of proof. K.E. said, "I believe if you're going to throw somebody in jail, you need to have credible evidence to do that because pretty much their life is over. . . and . . . families are going to suffer if you don't have the adequate [proof of the conviction.]" After defense counsel finished K.E.'s sentence by asking, "Because of the consequences?" K.E answered, "Yes, consequences. I believe you bringing a case, then it's [incumbent] for you to prove that case." Defense counsel then asked the other prospective jurors, "Does everyone agree with that?" They collectively answered, "yes." By their collective "yes" response, the other prospective jurors were merely agreeing that it was "right" to require the prosecution to prove its case beyond a reasonable doubt. There appears to have been no reason to probe any of the other prospective jurors for sympathy bias. Indeed, and as the prosecutor explained to the court, no other prospective juror made comments similar to K.E.'s or had a background similar to K.E.'s—working as a nurse with jail inmates on a daily basis. B. The Evidence Was Insufficient to Support a Mayberry Instruction
Defendant claims the court prejudicially erred in denying his request to give the jury a "Mayberry instruction," that if the jurors found he had an actual and reasonable, if mistaken, belief that Z. consented to the charged sexual acts, then he was not guilty of the charged offenses in counts 1, 2, and 3. (See Mayberry, supra, 15 Cal.3d at p. 155.) We conclude that a Mayberry instruction was properly denied because insufficient evidence showed that defendant had both an actual and an objectively reasonable belief that Z. consented to engage in any sexual acts underlying counts 1, 2, and 3.
1. Relevant Background
Before trial, defendant requested and the prosecution opposed giving the jury a Mayberry instruction. The court deferred ruling on the request until after Z. had testified and the court could determine whether sufficient evidence supported the requested instruction. After Z testified and the People rested its case, defense counsel renewed the request. The court denied it on the ground there was insufficient evidence of "equivocal conduct" on the part of Z., indicating that she consented to any of the charged sexual acts, namely, the sexual intercourse, oral copulation, and digital penetration.
The pattern instructions on rape by force, fear, or threats (CALCRIM No. 1000), oral copulation by force, fear, or threats (CALCRIM No. 1015), and penetration with a foreign object by force, fear, or threats (CALCRIM No. 1045) include pattern Mayberry instructions. A Mayberry instruction on all three charges would have told the jury: "The defendant is not guilty of [the charged offenses in counts 1, 2, and 3] if he actually and reasonably believed that [Z.] consented to [each sexual act underlying each charged offense] and actually and reasonably believed that [Z.] consented throughout [each charged sexual act]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that [Z.] consented. If the People have not met this burden, you must find the defendant not guilty."
The alleged victim's lack of consent to rape, oral copulation, and penetration with a foreign object, by force fear, or threats, is an essential element of each offense. In this context, "consent" means "positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (§ 261.6.) CALCRIM Nos. 1000, 1015, and 1045 echo this definition by providing that, in order to consent, the alleged victim "must act freely and voluntarily and know the nature of the act."
2. Applicable Legal Principles
The Mayberry court held that a defendant's actual and reasonable, if mistaken, belief that the alleged rape victim consented to the sexual intercourse is a defense to rape. (Mayberry, supra, 15 Cal.3d at p. 155; People v. Williams (1992) 4 Cal.4th 354, 360.) The rationale for a Mayberry instruction or defense is that the defendant's reasonable mistake of fact that the alleged victim consented to the sexual intercourse "is incompatible with the existence of wrongful intent" on the part of the defendant. (People v. Williams, at p. 360; see Mayberry, at pp. 154-155.)
A Mayberry " 'mistake of fact' " defense applies, not only to rape, but to other sex offenses that have "as an essential element the absence of the victim's consent." (People v. Andrews (2015) 234 Cal.App.4th 590, 602.) Thus, when requested by the defense and when supported by substantial evidence, a Mayberry instruction must be given, as relevant here, as a defense to charges of rape, oral copulation, and penetration with a foreign object. (People v. Williams, supra, 4 Cal.4th at p. 361 [rape]; People v. May (1989) 213 Cal.App.3d 118, 124 [oral copulation]; People v. Dillon (2009) 174 Cal.App.4th 1367, 1383-1384 [penetration with a foreign object].)
"The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to [the sexual act]. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which [the defendant] erroneously [but actually] believed there was consent." (People v. Williams, supra, 4 Cal.4th at pp. 360-361.) The objective component asks whether the defendant's actual mistake regarding the alleged victim's consent was reasonable under circumstances that "society will tolerate as reasonable." (Id. at p. 361.)
When a defendant requests a Mayberry instruction, the trial court is required to give it if substantial evidence supports both the subjective and the objective components of the Mayberry defense. (People v. Williams, supra, 4 Cal.4th at p. 361.) "There must be substantial evidence of the victim's equivocal conduct that served as the basis for the defendant's good faith but mistaken belief that the victim consented. [Citation.] And the evidence must further support a conclusion that the defendant's subjective good faith belief was objectively reasonable under the circumstances. [Citation.]" (People v. Andrews, supra, 234 Cal.App.4th at p. 603.)
3. Analysis
Defendant claims there was "ample evidence of equivocal conduct" on the part of Z. to support a Mayberry instruction. More generally, he argues, "the evidence as a whole included substantial evidence from which a properly instructed jury could have concluded [that he] honestly and reasonably believed, even if mistakenly, that Z. was consenting [to the charged sexual acts]." We disagree.
Defendant correctly points out that "[a] defendant does not necessarily have to testify to be entitled to instructions on the Mayberry defense; circumstantial evidence of equivocal conduct by the victim may derive from other evidence, including the testimony of the victim or other witnesses." (See, e.g., People v. May, supra, 213 Cal.App.3d 118, 125; People v. Anderson (1983) 144 Cal.App.3d 55, 62.)
As we explain, none of the evidence shows or supports a reasonable inference that Z.'s statements or conduct, before or at the time the charged sexual acts occurred, were equivocal on the question of whether Z. was consenting to the charged sexual acts, or reasonably indicated that Z. was consenting to the charged sexual acts. Rather, all of the evidence showed that Z. unequivocally did not consent to any of the charged sexual acts.
Z. was the only witness who testified about what happened between herself and defendant, both before and when they were in the motel room together. According to Z., defendant did not say anything about engaging in any sexual acts with him until he and Z. were lying on the motel room bed together. Before that time, he tried to help Z. find Alex's car, and when that effort failed he offered to get a motel room for Z. Z. agreed to let him get her a room because she needed a place to stay for the night.
And, although Z. admitted she walked into the motel room and lay on the bed after defendant unexpectedly entered the room, removed his clothing except his undershirt and undershorts, and lay on the bed, Z. also testified that, when she lay on the bed, she had only removed her shoes and was otherwise fully clothed. She also lay on the opposite side of the bed from defendant, facing away from him, and leaving space between the two of them. She was tired and trying to sleep. Nothing up to this point reasonably indicated that Z. consented to engage in any sexual acts with defendant.
All of the other evidence also shows that Z. unequivocally did not consent to engage in any sexual acts with defendant. According to Z., defendant did not indicate to Z. that he wanted to engage in any sexual acts until he put his arm around her, told her had a girlfriend in New York, rubbed his penis against her buttocks, and asked whether he could pretend she was his girlfriend. Z. said, "no." He then told her that he was masturbating behind her; she could feel his penis and his hand moving against her buttocks; and around this time he put his finger into her anus. Z. told him to "stop."
Then, defendant rolled Z. over, took off her clothes, held her down, got on top of her, and asked if he could perform oral sex on her. Z. tried to push him away, was trying to keep her legs closed and placed her hands over her vaginal area, but he forced her legs open and moved her hands. Although Z. kept saying "stop" and kept pushing defendant, he performed oral sex on her, then forced his penis into her vagina. While the sexual acts were occurring, Z. was not "forcefully trying to fight" defendant, both because he was larger than she and because she "didn't want him to get violent." The entire record shows that defendant had no reason to believe that Z. was consenting to the sexual acts.
Defendant argues that Z.'s statements and actions were equivocal on the question of her consent because she did not "immediately" tell him to "stop" nor did she "immediately" get off the bed when she first felt him masturbating behind her. He points to Z's cross-examination testimony in which she would not admit that she did not immediately stay "stop" and did not immediately get off the bed when she realized defendant was masturbating behind her. But Z. testified that she "said stop throughout the night" and that none of the sexual acts were "consensual." Indeed, the entire record shows that Z. immediately protested when defendant first initiated sexual contact with her—when he put his arm around her and asked whether he could pretend she was his girlfriend. Thus, nothing in the record shows defendant could have harbored a reasonable belief that Z. was consenting to the sexual acts.
Defendant points out that Z. had been "drinking heavily" and willingly accepted a ride from him when he offered to help her find Alex's car. Indeed, the evidence also showed that, when Z. first tried to leave the motel room after the sexual acts occurred, defendant blocked the door, offered her money, and said, "Well, you wanted this. What was I supposed to think because you got in the car." But in light of Z's unequivocal protestations against engaging in any sexual acts with defendant at the time defendant initiated the acts and throughout the time the acts were occurring, neither Z.'s intoxication, nor her acceptance of defendant's assistance in looking for Alex's car or in procuring the motel room, allowed a reasonable person in defendant's position to believe that Z. consented to engage in sexual acts with defendant.
Defendant also points to the evidence that he registered for the motel room in his own name, offered Z. a shirt to keep herself warm after she ran from the motel room, and the fact he never threatened Z. or did anything to prevent her from immediately reporting that she had been the victim of a crime. He argues this evidence showed he had "no reason to anticipate" that Z. would accuse him of forcible sex crimes. Although defendant's actions and inactions may indicate that he actually believed that Z. would consent or had consented to engage in sexual acts with him, none of his actions or inactions show he had reason to believe that Z. consented to engage in sexual acts. Indeed, "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." (People v. Williams, supra, 4 Cal.4th at p. 361; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1301.) Z.'s unequivocal protestations about engaging in the charged sexual acts, both at the time defendant initiated them and throughout the time they were occurring, did not permit defendant to harbor a reasonable belief that Z. was consenting to engage in the sexual acts.
Defendant also points out that, when Ashley "finally picked Z. up" at the drug store, two to three hours after the motel clerk testified that defendant had checked out of the motel, Z. had Ashley take Z. to school—"instead of going straight to the hospital or to the police." In addition, Ashley later told police that Z may have been "slightly intoxicated" that morning and that Z. did not "make the best decisions" when she had been drinking. None of this evidence undermines the unequivocal nature of Z.'s protestations about engaging in the sexual acts throughout the time they were occurring.
Lastly, defendant argues that a Mayberry instruction would have assisted the jury in evaluating, as propensity evidence under Evidence Code section 1108, J.'s testimony concerning the 2000 incident in which defendant, under the guise of giving J. a ride to work, took J. to his apartment and had sexual intercourse with her. He claims that J., "also exhibited equivocal conduct which might have caused [him] to entertain an honest and reasonable belief that she was consenting to have sex," and that "a jury properly instructed on the Mayberry defense might well have given the [2000] incident less weight as propensity evidence." But J.'s testimony provided no evidentiary basis for a Mayberry instruction in counts 1, 2, or 3. As discussed, Z. exhibited no equivocal conduct that might have caused defendant to harbor an honest and reasonable belief that Z. was consenting to engage in the charged sexual acts. C. Z.'s Hearsay Statements to Ashley and to R.B. Were Erroneously Admitted as Fresh Complaint Evidence and Spontaneous Statements, But the Errors Were Harmless
Defendant claims the court prejudicially erred in admitting detailed hearsay statements that Z. made to her roommate, Ashely, and to her mother, R.B., both as fresh complaint evidence and for their truth under the spontaneous statements exception to the hearsay rule. The People argue that Z.'s statements were properly admitted for their truth as spontaneous statements. Thus, they argue, there is no need to determine whether the statements were admissible under the fresh complaint doctrine. Alternatively, they claim any error in admitting the statements was harmless.
We conclude that the details of Z.'s hearsay statements to Ashley and to R.B. were erroneously admitted under the fresh complaint doctrine—to the extent the statements were not limited to Z.'s complaint that she had been sexually assaulted and to the circumstances surrounding the making of her complaints. Z.'s hearsay statements were also erroneously admitted for their truth, under the spontaneous statements exception to the hearsay rule. But we agree with the People that these errors were harmless.
1. Relevant Background
(a) The Court's In Limine Ruling Admitting Z.'s Statements
The People moved the court in limine to admit Z.'s hearsay statements to Ashley and to R.B., both under the fresh complaint doctrine to corroborate Z.'s anticipated testimony that she had been sexually assaulted, and under the spontaneous statements exception to the hearsay rule, to prove the truth of the statements. The prosecutor argued the statements were admissible as spontaneous statements because they were made "immediately after the assault took place." She indicated the evidence would show that Ashley picked up Z. at the drug store "immediately after the assault occurred" and that Z. and Ashley discussed what had occurred "on the drive away from that location." Likewise, she claimed Z.'s statements to R.B. were admissible as spontaneous statements because the statements were made when R.B. "took a phone call from [Z.] regarding what had taken place immediately after the assault occurred."
At the hearing on the in limine motion, defense counsel objected to the admission of Z.'s statements, through the testimony of Ashley and R.B., on hearsay grounds. He pointed out that, if Z. could not recall her statements to Ashley or to R.B., but her statements were admitted through Ashley's and R.B.'s testimony, then defendant would be deprived of his right to cross-examine Z. about her hearsay statements. The court ruled that the statements would be admitted, and it indicated they were admissible under the fresh complaint doctrine, the spontaneous statements exception, and to show Z.'s state of mind, given that her lack of consent to the charged sexual acts was an issue in the case.
The court excluded Z.'s similar hearsay statements to a third witness as cumulative.
(b) Z.'s Hearsay Statements to Ashley (Italicized)
For emphasis, we italicize Z's hearsay statements while describing the context in which Ashley and R.B. testified to the statements.
Z. and Ashley both testified that, when Z. called Ashley from the drug store on the morning of March 6, 2009, Z. did not tell Ashley what had happened to her; she only told Ashley that she was "leaving a motel" and needed Ashley to pick her up. Ashley testified that, during the call, she overheard Z. telling someone "that she wasn't going to say anything about what happened." Ashley also testified that Z. told Ashley that the person Z. was speaking to was following her. Ashley picked up Z. "roughly" at 7:00 a.m.—around two to three hours after the charged sexual acts occurred in the motel room.
Ashley also testified that, in her car on the way back to Indio, Z. was "very upset" and told Ashley, "that the man had offered to get her a room because he said she looked tired." Ashley then testified that Z. told her that the man "got her a hotel room. But then she thought she was going to be alone, he followed her in. At that point, she tried to leave, but he blocked the door." When asked whether Z. described anything that happened in the room, Ashley responded, "Yeah. She told me that he had blocked the door and then forced himself on her and then started to give her oral sex, she said no, however he forced himself on her. She was pretty upset after that so we didn't get too much further in the conversation." Z. testified she told Ashley she had been raped, but she did not "go into detail." On cross-examination, Ashley testified that Z. called her earlier during the previous evening and told her that she and Alex had "got separated." Z. also told Ashley that a man at the casino was offering her a ride. Ashley told Z. to "be careful."
Defendant's hearsay objection to this statement was overruled.
2. Z.'s Hearsay Statements to R.B. (Italicized)
Z. testified that Ashley took Z. to school but that Z. left school early. The examining SART (sexual assault response team) nurse testified that Z. underwent a sexual assault examination, which began at 5:00 p.m. and ended after 11:00 p.m. R.B. testified that, after the examination concluded, Z. telephoned R.B. and told R.B. that she had been raped. Z. also told R.B. that "they were at a restaurant, or they had been out." When asked "with regard to the incident itself" whether Z. provided R.B. with "any information about" the rape, R.B. responded, "yes," and explained that Z. told her "that he had taken her to the hotel because they were looking for them, and that he had put her on the bed" had removed or "undone" her clothing, and "began to caress her." When asked whether Z. told R.B. that the activity had gone past caressing, R.B. responded, "yes it did," and explained that, according to Z., defendant had "come up under her bra and had started doing some things," then "he tried to penetrate her," and, "when he was on top of her, a warm liquid [came] out." Z. did not recall what she told R.B.
3. Analysis
(a) The Fresh Complaint Theory
"Since the 19th Century, California courts have relied upon the fresh-complaint doctrine to support the admission of a complaint made by the victim of an alleged sexual offense, but only for a nonhearsay purpose, i.e., not to prove the truth of the content of the victim's statement but, rather, simply to show that a prompt complaint was made." (People v. Brown (1994) 8 Cal.4th 746, 755.) "[O]nly the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule." (Id. at p. 760.) The trier of fact may consider fresh complaint evidence to corroborate the victim's testimony that the sexual offense occurred, but not for the truth of the complaint, that is, to prove that the sexual offense occurred. (See People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)
Z.'s statements to Ashley and to R.B. were not limited to the fact that Z. complained to Ashley and R.B. that she had been sexually assaulted and to the circumstances surrounding the making of her complaints. Rather, the statements included details of the sexual assault and other matters not admissible under the fresh complaint doctrine. But to the extent the statements showed that Z. complained to Ashley and to R.B. that she had been raped and sexually assaulted, and showed the circumstances surrounding the making of Z.'s complaints, the statements were properly admitted as fresh complaint evidence to corroborate Z.'s testimony that she had been raped and sexually assaulted.
The People do not defend the admission of Z.'s statements under the fresh complaint doctrine. Rather, they argue, "there is no need to discuss" defendant's alternative claim that the statements were inadmissible under the fresh complaint doctrine because the statements were properly admitted for their truth under the spontaneous statements exception to the hearsay rule. (Evid. Code, § 1240.) They point out that, although the prosecutor argued in limine that Z.'s statements were admissible as fresh complaints, "it does not appear" that the prosecutor ultimately relied on the fresh complaint theory to admit the statements, "since the details of the statements were introduced and there was no limiting instruction." Indeed, no limiting instruction was given, telling the jury it could consider Z.'s statements to Ashley and to R.B. solely for the purpose of showing that Z. complained to these witnesses that she had been sexually assaulted and to corroborate Z.'s testimony that the sexual assault occurred.
(b) The Spontaneous Statements Theory
Evidence of a statement that "(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception" is not made inadmissible by the hearsay rule. (Evid. Code, § 1240.) "To apply the [spontaneous statements] exception the trial court must determine that ' "(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." ' [Citations.]" (People v. Lucas (2014) 60 Cal.4th 153, 269.)
"[T]he mental state of the declarant—that is, the question of whether he or she was sufficiently under stress so as to dramatically reduce the possibility of deliberation and prevarication—is crucial to determining whether the [spontaneous statement] exception applies." (People v. Lucas, supra, 60 Cal.4th at p. 269.) " 'The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 892-893.)
On appeal, the trial court's preliminary factual determinations concerning whether a statement qualifies as a spontaneous statement will be upheld if substantial evidence supports them, but the court's ultimate decision to admit a hearsay statement as a spontaneous statement is reviewed for an abuse of discretion. (People v. Ramirez, supra, 143 Cal.App.4th at p. 1523.)
Defendant claims the record does not support a finding that Z.'s statements to Ashley or to R.B. qualified as spontaneous statements. We agree. The trial court made no express factual findings to support the admission of any of Z's statements to Ashley or to R.B. as spontaneous statements. Instead, the court appears to have admitted all of the statements as spontaneous statements based on the prosecutor's in limine representation that all of Z.'s statements were made "immediately after the assault occurred." That representation was too general. As the evidence later showed, none of Z.'s statements to Ashely or to R.B. were made "immediately after the assault occurred."
Z.'s statements to Ashley were made after 7:00 a.m., when Ashley picked up Z. at the drug store and drove herself and Z. to Indio. The sexual assault in the motel room occurred between 4:00 a.m. and 5:00 a.m., more than two hours before Ashley picked up Z. at the drug store. "The time which has elapsed between the event and the statement is an important factor because a spontaneous statement must be made under the immediate influence of the event so as to negate any probability of reflection or fabrication." (People v. Garcia (1986) 178 Cal.App.3d 814, 820.)
The two hours that Z. spent in the drug store, waiting for Ashley, indicates that Z. was not under the immediate stress of the sexual assault when, during the subsequent drive to Indio, Z. told Ashley that she had been raped and described details of the sexual assault to Ashley. To be sure, Ashley testified that Z. was "very upset" during the car ride. In addition, defendant followed Z. into the drug store, where Z. told him to leave her alone and that she was not going to report the incident. Z. approached the drug store security guard to prevent defendant from bothering her. But apart from the stress of dealing with defendant in the drug store, Z. waited in or around the drug store for approximately two hours before Ashley picked her up. During that time, Z. had ample opportunity to reflect on the sexual assault and what she later told Ashley.
Moreover, around 5:00 a.m., before she went to the drug store, Z. ran from the motel room but briefly returned to grab the shirt that defendant offered her because she wanted the shirt "for evidence." This fact alone indicates that Z.'s reflective powers were not in abeyance when, more than two hours later, after 7:00 a.m., she told Ashley that she had been raped and described details of the assault. (See People v. Ramirez, supra, 143 Cal.App.4th at pp. 1524-1526 [Victim's hearsay statements that she had been raped not spontaneous when, around the same time, the victim also said she was worried what her brother would do if he found out she had been raped; this showed that the victim "in fact engaged in a deliberative or reflective process as to the subject matter of the statements at issue, and thus establish[ed]" that her reflective powers were not " 'yet in abeyance' " when she told others she had been raped.].)
Z.'s hearsay statements to R.B. were made even later than her hearsay statements to Ashley—approximately 20 hours after the sexual acts occurred in the motel room. Z. did not tell R.B. that she had been raped, or describe details of the assault to R.B., until after 11:00 p.m. on March 6, 2009, just after Z. had undergone the sexual assault examination in the hospital, which began at 5:00 p.m. and concluded after 11:00 p.m. Z. also went to school for a period of time before she went to the hospital. By the time Z. spoke to R.B. she had all day, including the six hours she spent at the hospital, to reflect on what she told R.B.
In sum, the trial court neither expressly found nor is it "reasonable to suppose" that the excitement of the sexual assault still dominated over Z.'s reflective powers when Z. told Ashley, and later told R.B, that she had been raped and described details of the sexual assault to each of them. Given everything that occurred after 5:00 a.m., when Z. first ran from the motel room, Z.'s hearsay statements to Ashley and to R.B. were not likely to be " ' " 'the unreflecting and sincere expressions' " ' " of her " ' " 'actual impressions and beliefs' " ' " concerning what occurred between herself and defendant. (People v. Riva (2003) 112 Cal.App.4th 981, 996.) Accordingly, the court abused its discretion in admitting Z.'s hearsay statements to Ashley and to R.B. for their truth as spontaneous statements.
4. The Admission of Z.'s Hearsay Statements Was Harmless
" 'When the court abuses its discretion in admitting hearsay statements, we will affirm the judgment unless it is reasonably probable a different result would have occurred had the statements been excluded.' [Citation.]" (People v. Ramirez, supra, 143 Cal.App.4th at p. 1526; see People v. Loy (2011) 52 Cal.4th 46, 65-67 [Watson standard of reversible error applies to erroneous admission of hearsay statements under spontaneous statements exception to hearsay rule.].) We conclude there is no reasonable probability that defendant would have realized a more favorable result if none of Z.'s hearsay statements to Ashley and to R.B. had been admitted.
People v. Watson (1956) 46 Cal.2d 818.
Z. directly testified in extensive detail concerning the sexual assault and the circumstances surrounding it, including how she came to meet defendant in the casino, that he offered to help her find Alex's car, and when that effort failed he offered to get a motel room only for her. Z. also testified in detail about what she did immediately after and in the hours following the assault. Z.'s hearsay statements to Ashley and to R.B. were largely cumulative of Z.'s trial testimony, such that the jury did not have to rely on Z.'s hearsay statements, either for the fact the assault occurred, for any of the key details of the assault, or for the circumstances surrounding the assault. Rather, the jury heard about all of those events directly from Z. and had the opportunity to judge Z.'s credibility.
Additionally, and as we have explained, Z.'s hearsay statements were admissible as fresh complaint evidence to corroborate Z.'s testimony that she had been sexually assaulted, to the extent that the statements showed that Z. complained of being sexually assaulted and showed the circumstances surrounding the making of her complaints. (See People v. Brown, supra, 8 Cal.4th at pp. 755, 760.) The inadmissible details of Z.'s hearsay statements to Ashley and to R.B. were few, and although those details bolstered Z.'s credibility in claiming she had been sexually assaulted, there is no reasonable probability that those details affected the outcome in light of Z.'s extensive testimony. D. The Trial Court Did Not Err in Excluding Alex's Proffered Defense Testimony
Defendant next claims the trial court both abused its discretion and violated his constitutional right to present a defense in refusing to allow the defense to call Z.'s other roommate, Alex, to testify for the defense. We find no state law or federal constitutional error in the exclusion of Alex's proffered defense testimony.
Defendant also claims the trial court violated his constitutional right to compulsory process in excluding Alex's testimony. But the court did not refuse to allow defendant to subpoena Alex or to compel Alex's testimony. Rather, it excluded Alex's testimony solely on relevancy and Evidence Code section 352 grounds.
1. Relevant Background
Alex (Z.'s roommate), Brian (Alex's friend), and Z. went out drinking together in Palm Springs on the evening of March 5, 2009, before Z. went to the casino, met defendant, and the alleged sexual assault occurred in the motel room. Alex testified for the prosecution at defendant's second trial. After the prosecution in defendant's current trial rested without calling Alex to testify, defense counsel requested to call Alex to testify for the defense.
When asked for an offer of proof, defense counsel told the court that, in the second trial, Alex testified that when he, Brian, and Z. went out together on the evening of March 5, 2009, "the plan" was that Alex and Brian would stay in Palm Springs while Z. would be "on her own" and either stay in Palm Springs alone that night or make her own arrangements to return to Indio without them. Thus, defense counsel expected Alex to "discredit" Z.'s testimony that she was planning to go home with Alex and Brian but was left "stranded" in Palm Springs, "waiting for someone to take her home."
The prosecutor objected to Alex's proposed testimony on the ground it was irrelevant and would unduly consume court time. (Evid. Code, § 352.) She argued that whether Z. was supposed to get a ride home from Alex and Brian, stay in Palm Springs alone, or make her own arrangements for getting home, was irrelevant to what later happened between Z. and defendant. She also argued that Alex's testimony would not "make any sense" because Z. could have gotten a room at the casino if the plan was for her to stay in Palm Springs.
Defense counsel countered: "The problem is [Z.] denied she knew she had to find her way home by herself or find accommodations. She did not. She said she had to go back to her friends[,] [and] [e]ven though she was looking for [Alex's] car, she knew it wasn't her car and couldn't drive it." Defense counsel also pointed out that no witness had disputed Z.'s testimony that her friends had left her stranded that night, without a ride home. The court agreed with the prosecutor and ruled that Alex's testimony was irrelevant, would be unduly time-consuming, and would also confuse and distract the jury from the issues in the case.
2. Applicable Law and Analysis
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "A trial court has broad discretion to exclude relevant evidence under Evidence Code section 352 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citations.]" (People v. Linton (2013) 56 Cal.4th 1146, 1181.)
"Although a defendant has the general right to offer a defense through the testimony of his or her witnesses, 'a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right.' " (People v. Linton, supra, 56 Cal.4th at p. 1183.) "[T]here are instances where due process, the right to a fair trial, and other constitutional guarantees trump the rules of evidence." (People v. Guillen (2014) 227 Cal.App.4th 934, 1019.) But, "[a]s a general matter, a defendant has no constitutional right to present all relevant evidence in his favor. [Citation.]" (Ibid.)
" 'For a defendant's constitutional rights to override the application of ordinary rules of evidence, " 'the proffered evidence must have more than "slight-relevancy" to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value.' " ' " (People v. Guillen, supra, 227 Cal.App.4th at p. 1019.) "[E]xcluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) If a trial court abuses its discretion in excluding defense evidence on a minor or subsidiary point, the error is of state law only; " 'there [is] no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson . . . and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension. [Citations.]" (Ibid.) We review a trial court's rulings under Evidence Code section 352 for an abuse of discretion, meaning we uphold them unless they exceed the bounds of reason. (People v. Brooks (2017) 3 Cal.5th 1, 40-41.)
Defendant claims Alex's testimony "would have been highly probative on the issue of Z.'s credibility." He argues that, by excluding Alex's testimony, the court "deprived the jury of what might have been convincing evidence" that Z. lied on the stand, not only about the way she originally intended to get home, but also about her not consenting to engage in the charged sexual acts with defendant.
As defendant points out, the jury was instructed pursuant to CALCRIM No. 226 that, in evaluating a witness's testimony, it could consider "anything that reasonably tends to prove or disprove the truth" of the witness's testimony, including whether other evidence proved or disproved a fact about which the witness testified, and that if the jury decided that a witness deliberately lied about something significant in the case, the jury "should consider not believing anything" the witness testified to.
More specifically, he argues that Alex's testimony "would have painted a very different, less vulnerable, picture of Z. More importantly, from [Alex's] testimony, the jury may have concluded that Z. was not a truthful person and was lying about the reasons she was alone at a casino in Palm Springs in the middle of the night, perhaps because she wanted to portray herself in a more respectable light. The jury might well have inferred that Z. had other reasons for going to the casino, getting in [defendant's] car[,] and checking into a motel. Therefore, the exclusion of [Alex's] testimony, which would have substantially impeached Z.'s credibility, cannot be deemed harmless beyond a reasonable doubt." We conclude that Alex's proffered testimony, though generally relevant to Z's credibility, was properly excluded.
The question of whether Z. was stranded in Palm Springs, as she claimed, or was supposed to stay in Palm Springs alone or take a cab ride home alone, as Alex would have testified, was a minor and subsidiary point in the case, with no significant value to the defense. Thus, Alex's proffered testimony was not of "significant" or "substantial" "value" to the defense. (People v. Guillen, supra, 227 Cal.App.4th at p. 1019.)
The court recognized this and reasonably found there was a substantial probability that Alex's testimony would have consumed undue court time on a "collateral" issue and would have confused and distracted the jury from determining the key issue in the case—whether Z. consented to engage in charged sexual acts with defendant. Thus, the exclusion of Alex's proffered testimony was neither an abuse of the court's discretion under Evidence Code section 352 nor a violation of defendant's constitutional right to present evidence in his defense.
The key issue in the case was whether Z. consented to the charged sexual acts that occurred between herself and defendant. Z. testified at length about what happened between herself and defendant, both before and while the two of them were in the motel room. Viewed in the light most favorable to the defense, Alex's proffered testimony would have indicated to the jury that Z. lied when she claimed Alex left her stranded in Palm Springs, without a ride home. Alex's testimony was therefore relevant to Z's general credibility. But, in our view, Alex's testimony would not have undermined Z.'s credibility on the key question of whether Z. consented to engage in the charged sexual acts, particularly in light of Z.'s very detailed testimony about what happened between herself and defendant, under both direct and cross-examination.
Had the jury heard Alex's testimony, it would not have necessarily inferred that Z. lied about being stranded in Palm Springs. Rather, it might have inferred that Z. forgot about having to either stay in Palm Springs alone or find her way home alone, perhaps because she had been drinking and was tired.
In sum, because Alex's proffered testimony concerned a collateral issue—whether Z. lied when she claimed Alex left her stranded in Palm Springs—the court reasonably found that the probative value of Alex's testimony, if any, was substantially outweighed by the probability that its admission would consume undue court time and unduly distract the jury from determining whether Z. consented to engage in the charged sexual acts. E. The Prior Crimes Evidence of the 1986 and 2000 Incidents Was Properly Admitted
Ostensibly to preserve the claim for federal review, defendant claims the court violated his Fifth and Fourteenth Amendment due process rights in admitting the evidence of his prior sexual assaults against C. in 1986 and against J. in 2000, pursuant to Evidence Code sections 1108 and 352. He acknowledges that "using prior sex offenses as criminal predisposition evidence pursuant to Evidence Code section[s] 1108 [and 352] has been upheld by the California Supreme Court against a constitutional due process challenge" (People v. Falsetta (1999) 21 Cal.4th 903, 916-918 (Falsetta)), and he further acknowledges that this court is bound to follow Falsetta. (People v. Robertson (2012) 208 Cal.App.4th 965, 994-995; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He submits, however, that the "holding in Falsetta is wrong and may eventually be revisited."
We decline to revisit Falsetta's holding that Evidence Code section 1108 does not violate a defendant's due process rights, because it allows prior sexual offense evidence to be admitted only if the evidence is not inadmissible under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at pp. 916-918.) We also reject defendant's further claim that the trial court abused its discretion in admitting the prior sexual offense evidence after determining that it was not inadmissible under Evidence Code section 352.
1. Applicable Legal Principles
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1108 thus preserves the trial court's discretion to exclude evidence under Evidence Code section 352 if its prejudicial effect substantially outweighs its probative value. (Falsetta, supra, 21 Cal.4th at p. 917.)
"[T]he Legislature's principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes. [Citation.]" (Falsetta, supra, 21 Cal.4th at p. 915.)
In deciding whether to exclude evidence of another sexual offense under Evidence Code sections 1108 and 352, the trial court is required to "consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.) Like any rulings under Evidence Code section 352, the trial court's ruling admitting evidence under Evidence Code section 1108 is reviewed for an abuse of discretion. (People v. Avila (2014) 59 Cal.4th 496, 515.) A trial court abuses its discretion when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
2. Analysis
Defendant argues that the 1986 incident involving C. was too remote in time to the charged offenses involving Z., which occurred in 2009, and that the 1986 incident was "significantly more violent" and too factually dissimilar to the charged offenses to be of substantial probative value on the question of whether he had a predisposition to commit sex offenses. He argues, "moreover," that the 1986 incident was "clearly forcible. [He] pulled a teenage victim [C.] into his vehicle that had a gun visible in the back seat, drove her to his apartment and raped her. In the current case, the adult victim [Z.] had been drinking fairly heavily, and voluntarily accompanied [him] to a [motel] in the middle of the night. No weapon was involved."
Defendant argues that the admission of evidence of the 2000 incident involving J. "stands on an even weaker footing." He claims that, although the 2000 incident occurred only nine years before the charged offenses, it was factually "quite dissimilar" to the charged offenses in that he and J. were acquainted and had "prior social interactions," and because J. "chose to enter" his residence and did not "physically resist" him or "push him away" when he asked for a hug and a message. "Not surprisingly," he argues, one court dismissed a forcible rape charge based on the 2000 incident, and "on refiling," a second court did not hold him to answer the forcible rape charge.
As noted, the jury was told that the parties had stipulated that "criminal charges" against defendant "arising from" the 2000 incident, as testified to by J., "were dismissed by the court in 2002 and 2009."
We conclude that the trial court did not abuse its discretion in admitting the evidence of the 1986 and 2000 incidents. "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) The two prior incidents and the charged offenses were factually very similar. Each incident involved women in their teens or early 20's, namely, 17-year-old C., 23-year-old J., and 22-year-old Z. In each incident defendant used his vehicle to transport the women to private locations. In the 2000 incident and in the current offenses, he convinced the women to get into his vehicle under the guise of assisting them, specifically, giving J. a ride to work and helping Z. find her friend Alex's car. Taken together, the evidence of the two prior incidents, together with the evidence of the charged offenses involving Z., strongly indicated that defendant had a propensity to commit sex offenses against young women.
Contrary to defendant's arguments, the prior incidents were neither too remote nor too dissimilar to the charged offenses to render their probative value " ' "largely outweighed by the probability that [their] admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.) Although, as defendant argues, the evidence that the 1986 incident was "clearly forcible" in that C. testified defendant grabbed her arm and pulled her into his car while he had a rifle in the backseat of his car, defendant did not expressly threaten to use the rifle against C. nor did he expressly threaten to harm C.
The other dissimilarities between the prior incidents and the charged offenses are similarly minor. Although, as defendant points out, he forced C. to get into his car, while Z. willingly accompanied him into the motel room, and he and J. were acquaintances, while he and Z. were strangers, the evidence also showed that he and C. were strangers and that J. willingly got into his truck. Moreover, and as indicated, all of the evidence showed that defendant used a similar modus operandi in each case—he targeted young women in their later teens or early twenties, and he used his vehicles to transport the women to private locations where the sexual acts occurred. The similarities between the prior incidents and the charged offenses exceeded the dissimilarities, and none of the prior crimes evidence was unduly prejudicial.
3. Defendant's Collateral Estoppel Argument Lacks Merit
Defendant further argues that the trial court abused its discretion in admitting the evidence of the 2000 incident involving J., because the forcible rape charge based on that incident was dismissed following a preliminary hearing in which he was not held to answer the charge. Thus, he argues, because a court previously found insufficient evidence to prosecute him for the rape of J., "collateral estoppel principles" should prevent the People from using the 2000 incident as propensity evidence under Evidence Code section 1108. We disagree.
As noted, the jury was told that "any criminal charges" arising from the 2000 incident "were dismissed by the Court in 2002 and 2009."
As defendant acknowledges, our state Supreme Court has held that prior sex offense evidence is not inadmissible under Evidence Code section 1108 if the defendant has been acquitted of sex offense charges in connection with the prior incident, because, in the current case, the jury is only required to find by a preponderance of the evidence, rather than beyond a reasonable doubt, that the defendant committed the prior offense in order to consider it as propensity evidence. (People v. Avila (2014) 59 Cal.4th 496, 515-516; CALCRIM No. 1191A.)
The purpose of a preliminary hearing is to determine whether there is probable cause to believe the defendant has committed a felony. (Pen. Code, § 866, subd. (b).) " ' " 'Probable cause is shown if a [person] of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' " ' " (Curry v. Superior Court (2013) 217 Cal.App.4th 580, 588.) The purpose of Evidence Code section 1108 is "to expand the admissibility of disposition or propensity evidence in sex offense cases." (Falsetta, supra, 21 Cal.4th at p. 911.) And prior sex offense evidence is admissible under Evidence Code section 1108 if it is not inadmissible under Section 352. (Evid. Code, § 1108, subd. (a).)
The doctrine of "[c]ollateral estoppel precludes relitigation of issues argued and decided in prior proceedings." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Courts have traditionally applied the collateral estoppel doctrine only if several threshold requirements have been met, but courts have also "repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting." (Lucido, at pp. 342-343.) These policies include preserving the integrity of the judicial system, promoting judicial economy, and protecting litigants from harassment by vexatious litigation. (Id. at p 343.) None of these policies would be served by requiring courts to exclude evidence of a prior sex offense in a current prosecution for another sex offense, when, as here, the defendant was not held to answer on the prior sex offense charge. Therefore, we decline to apply the doctrine of collateral estoppel to preclude the admission of the 2000 incident as propensity evidence.
The threshold requirements for applying the doctrine of collateral estoppel are: the issue to be precluded is identical to the issue decided in a former proceeding; the issue was actually litigated and necessarily decided in the former proceeding; the decision in the former proceeding was final and on the merits; and the party against whom collateral estoppel (issue preclusion) is sought is the same as, or in privity with, the party to the former proceeding. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) --------
As the Falsetta court explained, Evidence Code section 1108 safeguards the defendant's due process rights by requiring the court in the current sex offense prosecution to carefully weigh the probative value of the prior sex offense evidence for admissibility under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at pp. 915-917.) The proper application of Evidence Code section 352 will sufficiently protect the defendant from harassment by vexatious litigation regarding the prior sex offense for which the defendant was not held to answer following a preliminary hearing, and will at the same time serve the distinct purpose of Evidence Code section 1108—to expand the admissibility of prior crimes evidence in sex offense prosecutions. (See Falsetta, at p. 911.) F. Defendant's Ineffective Assistance Claim Lacks Merit
Defendant claims his defense counsel rendered ineffective assistance of counsel by "inadvertently" eliciting cross-examination testimony from Z. to support the unlawful sexual penetration charge in count 3. We reject this claim.
Z. did not testify on direct examination that defendant inserted his finger into her anus. But on cross-examination, Z. recalled that defendant inserted his finger into her anus after she reviewed the transcript of her preliminary hearing testimony at defense counsel's request. After she reviewed the transcript, defense counsel asked, "So you were asked if you felt something was being attempted to get into your vagina, right?" Z. responded, "Yes, after he put his finger in my anus. Yes, I remember that. That wasn't stated previously." (Italics added.)
In order to establish a violation of his or her constitutional right to ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness, under prevailing professional norms, and but for counsel's act or omission, there is a reasonable probability that the defendant would have realized a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 686; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Defendant claims the court would have dismissed count 3 based on insufficient evidence (Pen. Code, § 1118.1), had defense counsel not inadvertently elicited Z.'s cross- examination testimony that defendant had inserted his finger into her anus. That is not the case. Before Z. testified, the SART nurse who performed Z.'s sexual assault examination testified, under cross-examination by defense counsel, that Z. told her that defendant had "penetrated" her anus with his finger. Accordingly, if Z. had not testified on cross-examination about the anal penetration, the court should have denied a motion to dismiss count 3 for insufficient evidence based solely on the SART nurse's testimony.
Alternatively, we believe it is virtually certain that the court would have allowed the prosecutor to reopen her case to recall Z. to testify to the anal penetration. (People v. Riley (2010) 185 Cal.App.4th 754, 763-767.) Penal Code sections 1093 and 1094 give trial courts " 'broad discretion to order a case reopened and allow the introduction of additional evidence.' " (Riley, at p. 764.) Thus, defendant's ineffective assistance claim fails because the record shows defendant was not prejudiced by his defense counsel's alleged error. G. There Was No Cumulative Error
Defendant claims the trial court's several errors and his defense counsel's singular error are cumulatively prejudicial and rendered his trial fundamentally unfair. We have concluded there was only one error: the admission of Z.'s detailed hearsay statements to Ashley and to R.B. as fresh complaint evidence and for their truth as spontaneous statements. For the reasons we have explained, however, there is no reasonable probability that this trial error affected the outcome. Thus, there was no cumulative prejudicial error. (People v Whalen (2013) 56 Cal.4th 1, 92.) Nor was defendant deprived of his right to a fair trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) H. Remand for Resentencing on the Prior Serious Felony Conviction
The parties agree that the matter must be remanded so the trial court may exercise its new discretion to strike the five-year term it originally imposed on defendant's prior serious felony conviction. We agree.
Penal Code sections 667 and 1385 were amended, effective January 1, 2019, to "delete language prohibiting a judge from striking a prior serious felony conviction for purposes of eliminating a five-year sentence enhancement. Instead, the court now may exercise discretion to strike a prior serious felony in the interest of justice." (People v. Pride (2019) 31 Cal.App.5th 133, 142.) The amendments to sections 667 and 1385 are retroactive; they apply to all judgments not final on appeal when they became effective on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.) This includes defendant's judgment.
When defendant was sentenced on November 30, 2017, the sentencing court had no discretion not to impose the five-year term on defendant's prior serious felony conviction. (Former §§ 667, subd. (a), 1385, subd. (b).) On remand, the court must exercise its new discretion and determine whether that five-year term, and the underlying true finding on the prior serious felony conviction allegation, should be stricken in the interests of justice. (§§ 667, subd. (a), 1385, subd. (b).)
IV. DISPOSITION
The matter is remanded to the sentencing court with directions to determine whether, in the court's discretion, the five-year term the court originally imposed on defendant's prior serious felony conviction should be stricken in the interests of justice, along with the true finding on the prior serious felony conviction allegation. In all other respects, the judgement is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.