Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA267040 Michael Johnson, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
David Murray appeals from the judgment entered after he was convicted of multiple counts of robbery, as well as rape and other forcible sex crimes involving four victims over a period of several months. He contends the trial court erred by not granting a new trial for jury misconduct, and that the court made several evidentiary errors, including the exclusion of certain impeachment evidence against his victims. We reject these contentions and affirm the judgment as to those issues. Murray also contends that the trial court erred by setting the amount of a sex offender fine under Penal Code section 290.3. We agree, but because we are able to determine the correct amount of that fine, we modify the judgment to reflect that amount.
FACTS AND PROCEDURAL HISTORY
Four women accused David Murray of kidnap, robbery, rape, and other forcible sex crimes:
J.R.
On November 15, 2003, 16-year-old J.R. was waiting for a bus at the intersection of Fountain and Western Avenues in Los Angeles when David Murray drove up in a black, four-door car that she believed was a BMW, made it appear that he had a gun beneath his shirt, and ordered her inside the car. Murray drove off, then parked near a middle school. He pulled out a large knife and threatened J. with it. They struggled, and he choked her until she nearly passed out. Murray poked J. with the knife, forced her into the backseat, then drove away. He stopped in an alley and began to perform various sex acts. He put his fingers in her vagina and anus, and then tried vaginal intercourse. When he failed to maintain an erection, he ordered J. to perform oral sex. He ejaculated inside her mouth and ordered her to swallow the semen. Murray then performed oral sex on J. Murray ordered J. out of the car, told her to face a near-by wall, and threatened to kill her if she looked at his car.
J. hailed a cab and went home. She called a friend and then took some crystal methamphetamine to help her forget what had just happened. At the time, J. was a regular user of that drug. J. later called her mother at work and asked her mother to come home because something had happened to her. The mother came home and took J. to a police station. The police interviewed J. and took her to a hospital, where a sexual assault examination was performed by a nurse. The nurse saw fresh knife wounds on J.’s hands, which were consistent with the girl’s statement that she and Murray struggled over the knife. She also had fresh knife wounds on her back and side. The nurse saw broken blood vessels (petechial hemorrhages) around J.’s eyes, which were signs that she had been strangled. Her vaginal area was bruised and scratched, which was consistent with having fingers inserted there. A swab taken from J.’s mouth contained sperm, which DNA testing confirmed belonged to Murray.
J. identified Murray from a June 2004 photo lineup and a January 2005 live lineup.
D.G.
Shortly after midnight on May 9, 2004, D.G. was walking to a gas station mini-mart near Western Avenue and Third Street in Los Angeles when she was approached by Murray, who drove up in a black, four-door Volkswagen Jetta. Murray asked for her phone number, but she said she had a boyfriend and kept walking. Soon after, Murray walked up to her from behind, put a knife to her back and forced her into the Jetta. Murray had her lie face down in the back seat and tied her hands behind her back with a piece of cloth. Murray drove off and poked D. in her back with the knife. Murray eventually drove to a parking garage beneath an apartment building and parked his car there. He cut the cloth around D.’s wrists, but nicked her hand as he did so.
Still holding the knife, Murray forced D. up some stairs and inside an apartment. She screamed, and Murray hit her, causing her to fall and strike her head on the floor. Murray told D. to remove her clothes. She pleaded for her life, and Murray said he would let her live if she did what he asked. D. undressed, lay on a bed, and Murray inserted his penis into her vagina. When Murray lost his erection, he forced her to perform oral sex. When Murray’s erection returned, he resumed vaginal intercourse. Murray then began anal intercourse and continued despite D.’s pleas that he stop because it was so painful. Murray ejaculated inside D.’s anus. After a brief respite, Murray began another round of vaginal intercourse. Murray forced D. to shower. She was bleeding from her rectum and wiped the blood away with some toilet paper.
Murray let D. get dressed. He then took the money from her purse, drove D. some distance away, and let her go. D. called a friend, was driven home, and fell asleep. When she awoke, she told her friend what had happened. D. refused her friend’s plea to go to the hospital because D. was afraid her mother might learn about the incident. The next day, when the pain and bleeding from her anus persisted, D. went to a hospital. The police were called and a sexual assault examination was performed. The nurse who examined D. saw a minor cut on her hand, and a fresh, open red sore on her anus that was consistent with forcible penetration. The area near the base of D.’s vagina was tender. A swab from D.’s anus gathered sperm cells that DNA testing show belonged to Murray. DNA testing of a swab of cellular material from her neck showed that those cells also came from Murray. D. later identified Murray from both photographic and live lineups.
Candace D.
Around 1:20 a.m. on June 3, 2004, Murray drove his black Jetta up to Candace D., a prostitute working near Sunset Boulevard and Kingsley Drive in Los Angeles. When Murray stopped, Candace asked if she could get into his car and if he wanted a “date.” Murray asked how much and agreed to the $100 price. Candace got into the car. Murray drove off and eventually parked in a residential neighborhood. Murray handed Candace $100, and she closed her eyes, thinking they were about to “do the date.” Instead, Murray began choking Candace. She opened her eyes and saw that Murray had a knife near her face. He bound her hands behind her back with a piece of cloth and forced her to perform oral sex. Murray then began vaginal intercourse but lost his erection. He forced Candace to resume oral sex on him until his erection returned. Candace began crying. Murray asked why, and she answered that it was because he was raping her. Murray choked Candace again, this time so hard that she almost passed out, and then vomited. Murray forced Candace to switch back and forth between oral sex and vaginal intercourse, and eventually ejaculated on her thighs.
Murray went through Candace’s purse and took back the $100 he gave her, along with about $30 that had already been in the purse. He cut her hands free and told her to get out of the car and walk away without looking back. Candace did so, then phoned her pimp, who retrieved her and took her to a hospital. The police were called, and a sexual assault examination was performed. The nurse saw broken blood vessels on Candace’s neck that were consistent with having been choked. The nurse also saw bruises on the breasts and thighs, and linear marks on the wrists that were consistent with having had her wrists bound. Swabs from Candace’s thighs retrieved sperm cells that DNA testing showed belonged to Murray. Candace later identified Murray from both photographic and live lineups.
Kelly G.
Kelly G. was an “escort” who agreed to a date with Murray at his apartment on the night of June 5, 2004. Murray agreed to pay $500 for their date, but when Kelly arrived at Murray’s apartment, he told her he did not have the money. Kelly insisted on at least half for her trouble, and Murray drove her to a bank ATM, where he withdrew some cash. Murray drove off, then parked the car a few blocks away. He gave Kelly $100 to $200 dollars and got in the backseat of the car with her in order to talk. Once there, he began choking Kelly. She scratched Murray’s face so forcefully that two of her fingernails tore loose. Murray choked Kelly so hard that she urinated on herself. Murray tied Kelly’s hands behind her back with a piece of cloth and held a knife to her throat, threatening to kill her if she moved or screamed. Kelly described the cloth as being “like scrubs.” Murray took her back to his apartment building, cut the cloth binding her wrists, and led her up to his apartment.
As mentioned below, when the police finally detained Murray and searched his car, they found pieces of fabric that appeared to have come from hospital scrubs.
Once there, Murray had Kelly shower to wash off her urine. He got in the shower with her, and then forced her to kneel and perform oral sex on him. When she momentarily gagged, he slammed her head against the shower’s soap dish. Murray then took Kelly to a bed and began vaginal intercourse with her. He turned her over and tried to shove his penis into her anus. When Kelly screamed in pain, Murray applied lubricant in order to complete the anal intercourse. Although it was rough and painful, causing Kelly to beg Murray to stop, he continued until he ejaculated. When Murray was done, he emptied Kelly’s purse, examined her cell phone and driver’s license, and took all her money.
The nurse who examined Kelly saw bruises on her neck that signaled strangulation. There were also fingernail scratch marks on Kelly’s neck. Tenderness that indicated trauma was found in the vaginal areas. Lacerations and blood consistent with anal sex were found around her rectum. DNA belonging to Murray was found from swabs taken from Kelly’s anus and external genitalia. She identified Murray from a photograph and wrote on it that “[t]his man raped, strangled, and kidnapped me and robbed me.”
In response to these rape reports, Los Angeles police officers set up a surveillance team in the area around Western Avenue and Sunset Boulevard, looking for the man in the black Jetta described by the victims. In the early morning hours of June 19, 2004, undercover officers spotted Murray cruising the area in a black Jetta. When an officer saw that the driver matched the description, that officer and others began following Murray and caught up with him in an alley, where Murray had parked his car. Murray gave permission to search the car. The officers found pieces of blue cloth that appeared to be made of the fabric used in hospital scrubs. A knife was found in a storage pocket behind the front passenger seat, and another knife was found in the trunk.
Murray testified that all four victims were prostitutes with whom he had consensual sex for hire. He claimed that J. agreed to perform oral sex only. Although he promised not to ejaculate in her mouth, he did so anyway. This angered J., who began hitting Murray. He used some force to restrain her, but did not choke her. She threatened Murray, yelling as she left, “Motherfucker. You’re going to pay, and I’m only 16. I’m going to get you in trouble.”
He took D. back to his apartment after she agreed to have sex with him for $100. He withdrew the money from an ATM, then took her to his apartment, where they had vaginal intercourse. D. also performed oral sex on Murray. She agreed to engage in anal sex for an extra $60 to $75 more and used some lubricating jelly she had with her in order to do so. When they were done, Murray said he had only $10 left for the anal sex. D. took the money, and Murray drove her to a drop-off point. He never used any force or violence on her.
Candace admitted she was a prostitute. While they were having consensual sex, Murray slipped off his condom and ejaculated in her vagina. Candace became angry, threatened that her pimp would deal with Murray, and got out of the car. Murray claimed he drove off and never used force or took her money.
Murray met Kelly through the internet and arranged for a meeting. After some miscommunications about their meeting place, and misgivings by Murray about going through with it, were resolved, they agreed to have sex at Murray’s apartment for $300 or $400. Kelly seemed spacey and asked Murray if he had any drugs. Murray said he did not take drugs. Kelly then showered in order to wake herself up. Afterward, they had mutual oral sex, vaginal sex, and, with the aid of some lubricant, anal sex. When Kelly saw that Murray had not used a condom, she became angry. However, she soon fell asleep. When she awoke, they had vaginal intercourse again. When Kelly demanded more money, Murray refused. She threatened to have some male friends help her get more money from him. Murray told her he would drive her to an ATM to get more money. Instead, he drove her back to her car and told her to get out. She cursed at Murray and slapped him, and Murray drove away.
Murray admitted to the frequent use of prostitutes. Although Murray denied ever hitting any of the four victims, he believed his sex with prostitutes would sometimes get a little rough. While he never tried to choke a prostitute, he would sometimes “slip or something” during intercourse and accidentally hit her throat “or something like that, ... like to catch [himself].” He admitted to keeping knives in his car, and admitted that once in 2004 he pulled a knife on a prostitute when he called off their tryst but she refused to leave his car. The cloths found in his car were used as wash rags. One was knotted because he had used it to tie back some rose bushes at his parents’ house.
A jury found Murray guilty of robbery, rape, and other forcible sex crimes, but deadlocked on other counts, which were dismissed. Murray moved for a new trial, contending there was jury misconduct by three jurors who failed to disclose in response to voir dire questioning that one was a drug user and that the other two had been the victims of a childhood sex assault, and by the jury foreman, who told the other jurors that only a guilty person insisted on a jury trial, and who prevented other jurors from having testimony readbacks. His new trial motion was also based on an evidentiary ruling that barred him from questioning D.G. about a recent arrest for prostitution. The new trial motion was denied.
The jury convicted Murray of the following crimes against J.R.: two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), along with findings that he personally used a deadly weapon (Pen. Code, § 12022.3, subd. (a)), and engaged in both simple and aggravated kidnapping, and committed sex offenses against multiple victims (Pen. Code, § 667.61, subds. (d)(2), (e)(1), (4) & (5) [sentence enhancement of either 15 years or 25 years to life if allegations are found true]).
On appeal, Murray contends the trial court erred by denying his new trial motion on each ground raised. He also contends the trial court committed several evidentiary errors: By excluding impeachment evidence that J.R. had been arrested in 2001 for misdemeanor petty theft, and that Kelly G. had been arrested in 2004 for misdemeanor identity theft; by admitting impeachment evidence against him that he had a 1994 misdemeanor conviction for evading the police; by excluding evidence that someone else had been under suspicion of assaulting J.R.; and by allowing the sexual assault nurse who examined J.R. to testify about the petechial hemorrhages around J.’s eyes. His final contention is that the trial court imposed an unauthorized sex-offender fine.
DISCUSSION
1.No Error In Denying New Trial Motion For Juror Misconduct
A. Facts Relevant to the Motion
Murray moved for a new trial because he believed three jurors had concealed material information during voir dire. He correctly argues that such concealment may constitute misconduct that warrants a new trial. (Pen. Code, § 1181, subd. 3; People v. San Nicolas (2004) 34 Cal.4th 614, 644 (San Nicolas).) The motion was also based on claims that one of those three jurors also introduced her own drug-use experience in order to evaluate J.’s testimony, and that a fourth juror – the foreperson – influenced the presumption of guilt by stating that only guilty persons asked for a jury trial. Such misconduct, if it occurred, would also be grounds for a new trial. (People v. Nesler (1997) 16 Cal.4th 561, 578.)
During voir dire, the court asked the prospective jurors whether they, or anyone close to them, had “ever been convicted of a crime or... been arrested or charged with a crime. In terms of arrests, I’m not talking about traffic stops, but actually taken into custody by the police or had criminal charges filed in court. If you or someone close to you has been arrested, charged or convicted of a crime, please raise your hand.” Juror No. 7 said her son’s father had been arrested for drug dealing. Defense counsel asked if any of the prospective jurors “had a relative gone through a bad drug addiction? It leaves a lot of scars on people. [¶] Is there anybody on this current panel... who’s had a drug problem enough that it’s impacted them enough if they hear anything about drugs, they don’t think that they could be fair? I’m not suggesting what the evidence will be, but there may be evidence of the usage..., and I want to make sure, because so many families go through some bad drug problems. [¶] Is there anybody on this panel that has had a connection with the subject matter enough that it would affect their ability to be fair?” Juror No. 7 did not raise her hand. The court also asked the prospective jurors whether “you or anybody close to you has ever been the victim of a crime.” Juror No. 1 said she had been burglarized. Juror No. 4 said she had not been a crime victim, but her mother had been assaulted four years earlier.
Murray’s motion was based on the declaration of Juror No. 12. According to Juror No. 12, the following acts of misconduct occurred:
Juror No. 7
Juror No. 7 said during deliberations that she had used methamphetamine, and it merely kept her awake and had no effect on her memory. The statement was made while discussing the credibility of J.R. and her ability to remember and perceive her encounter with Murray.
Juror No. 1
Juror No. 12 said that Juror No. 1 discussed during deliberations how she had been the victim of a sexual assault. According to Juror No. 12, Juror No. 1 said that when she was 13, a man grabbed her and her cousin, and that this helped her (Juror No. 1) form her opinions about how the victims in this case reacted.
Juror No. 4
Juror No. 12 said that Juror No. 4 also described an incident of sexual assault when she was a teenager, where a man in a car asked her for directions, then grabbed her arm and tried to pull her into the car. Juror No. 4 said she hit the man’s arm with a baton she was carrying, and was able to get away. Juror No. 4 supposedly told the other jurors that this helped her to understand the fear that Murray’s victims experienced.
Juror No. 5
Juror No. 12 also claimed that the foreperson, Juror No. 5, bullied other jurors into not requesting transcript readbacks, and said that an innocent person “asks for a judge alone to decide the case, but only a person who is guilty would want a jury trial, because it is their last resort.” Juror No. 12 also claimed that Juror No. 5 pressured her into a guilty vote.
Murray’s new trial motion also included declarations from Juror Nos. 1, 4, 5, and 7. Juror No. 7 said she did not disclose that she had once been addicted to methamphetamine because she “was never asked specifically as to whether anyone had ever used drugs. If I had been asked that question, I would have disclosed my prior drug use.” She did not disclose her arrest for selling drugs because there was a plea bargain and the case was “eventually dismissed and my attorney told me I had not been convicted of a crime.” When she went to work for the county, she disclosed this information and obtained the paperwork about her arrest. When she reviewed the paperwork, it showed she had not been convicted. “Based on the paper work and what my attorney told me, I did not believe I needed to disclose this part of my past history to the court.” She told the other jurors that methamphetamine kept her awake but did not affect her memory. Nothing about her past drug use affected her ability to be a fair juror. The court also saw a copy of the docket from Juror No. 7’s drug case, showing that a simple possession charge was added along with the drug sales charge, and that she pleaded to the possession charge, was diverted to drug treatment, and had the charge dismissed.
Juror No. 1 said in her declaration that when she was 11, she and a friend were walking to school when a man approached and asked if they wanted to see his three-legged cat. The friend was willing, but Juror No. 1 said no, yanked her friend away, and began to run. The man ran after them, but they escaped. They reported the incident to the school, but the man could not be found. When asked on voir dire whether she had been a crime victim, she did not disclose the incident “because as far as I was concerned that was not a crime. Nothing actually happened to me, so I did not feel it made me a victim.” According to Juror No. 1, Juror No. 5 made a comment to the effect that a person who thinks he will be found guilty is more likely to ask for a jury trial. The comment was made in passing in response to another juror’s comment. Juror No. 1 said the jury had almost five hours of testimony readback, that when someone asked for more, Juror No. 5 suggested they not do so right then, but it “was very clear that if we really needed more readback we could have it whenever we wanted it.”
Juror No. 4 described the incident where a man tried to grab her, but she hit him and ran off. She said she never reported the incident to anyone. “When I was asked in jury selection about whether I was the victim of a crime I said no, because it did not feel that the incident... made me a victim. Nothing actually happened to me and I did not consider myself a victim.” Juror No. 4 said she brought up the incident in response to a statement by another juror that if it had been him, he would have run away from Murray. Juror No. 4 “merely meant to explain that everyone reacts differently. The incident from my past did not make me bias[ed] in anyway against the defendant. My verdicts were based on the evidence presented and not based on the incident from my past.” According to Juror No. 4, Juror No. 7 disclosed her methamphetamine use, but said nothing more than that it kept her awake and did not cause hallucinations. As for the testimony readback issue, Juror No. 4 said Juror No. 12 requested, and got, the readback. When someone suggested getting more, Juror No. 5 said it might not be necessary, but it would be requested if anybody really wanted it. Juror No. 5 said several times that the jury could have testimony readbacks and never stopped anyone from asking for it.
Juror No. 5 said that after five hours of testimony readback, someone asked for more. She replied “[n]ot at this time because I felt we needed to discuss what we had just heard before we went to further readback. However, I advised the jury that if anyone really wanted further read back we would do it.” She never refused to let anyone have testimony readback if they wanted it. As for her statement about guilty persons seeking jury trials, she “probably made a statement to that effect towards the end of deliberations. The statement was made in response to something someone else said. It was just a statement made in passing, one I have heard on other juries in the past, and was not used as a means of influencing anyone’s vote. It was made more like a joke. No one changed their vote after the comment was made.”
Based on the juror declarations, the trial court denied the new trial motion. The court found that Juror Nos. 1, 4, and 7 had not intentionally concealed the disputed incidents. The court found Juror No. 4’s explanation that she did not consider herself to have been a crime victim made sense and was in good faith because “[w]hile jurors were asked probing questions in other areas, they were not asked about attempted abductions or unpleasant encounters with strangers on the street.” The court also found that Juror No. 4 was not biased and was able to perform her duties as a juror. Juror No. 4’s comments about different people reacting differently to a criminal assault was simply part of her ordinary life experiences, and what happened to her in fact bolstered the defense theory that an unwilling victim would have run away from Murray. The court applied the same reasoning to Juror No. 1’s declaration.
The trial court also found that Juror No. 7 had not intentionally concealed her arrest for drug sales and her past drug use. The questions about drug use were unclear and did not simply ask whether any jurors had ever used drugs or had a drug problem. Instead, they were asked if they ever had a drug problem that would affect their ability to be fair. As for her arrest, the trial court found that her explanation of why she did not disclose it was reasonable, given that the charge was dismissed and she was therefore not convicted. She did disclose her partner’s arrest, which showed she was not deliberately trying to make it appear she was “pure and trouble-free.” The court found she “made an error in judgment” but still provided relevant information concerning her exposure to drugs and drug sales. She was therefore able to perform her duties in an unbiased manner, the trial court found.
As for Juror No. 7’s statement concerning the effects methamphetamine had on her, it too fell within the realm of permissible personal experiences and was also consistent with some of the trial testimony.
As for Juror No. 5’s comment about the decision to choose a jury trial reflecting on guilt, it was merely an isolated, ill-advised comment made in passing that caused no prejudice. The court also found that: Juror No. 5 did not prevent any of the jurors from getting a testimony readback if desired and was merely doing her job by helping to structure the deliberations; and she did not pressure Juror No. 12 or any other jurors into voting guilty.
B. The Trial Court’s Findings Were Not an Abuse of Discretion
While a prospective juror’s intentional concealment of material information may amount to implied bias, inadvertent or unintentional failures to disclose call for a different analysis. The proper test for unintentional concealment is whether the juror is so biased that he is unable to perform his duties. (San Nicolas, supra, 34 Cal.4th at p. 644.) Determining whether a juror’s failure to disclose was intentional or inadvertent and whether the juror is biased are matters within the trial court’s discretion. Unless bias is clearly apparent from the record, we defer to the trial court, which is in the best position to assess a juror’s state of mind while on voir dire. (Ibid.) Although prejudice is presumed once misconduct has been shown, the defendant bears the initial burden of proving the misconduct. (In re Carpenter (1995) 9 Cal.4th 634, 657.)
In San Nicolas, supra, 34 Cal.4th 614, the defendant was convicted of murdering his wife, and of forcible sex crimes and murder of his wife’s young niece. After being convicted, the defendant moved for a new trial on the ground that a juror failed to disclose that: he had been arrested 10 years earlier when the police confused him with someone else of the same name and was eventually released when the mix-up was determined; while voir dire was taking place, he had a felony drug possession charge pending; and he had been the victim of a brutal assault 22 years earlier. As part of voir dire, the juror filled out a questionnaire that asked if he had ever been involved in a criminal case as a victim, defendant, or witness. During voir dire, the court asked whether the juror had been the victim of a crime, including an assault of any kind on his person. The juror explained that he did not disclose the mistaken identity arrest because the charges were dropped and the “police ‘made a mistake and that was it.’ ” (Id. at p. 645.) He did not disclose the pending drug charge because the district attorney had told him several times the charge had been dropped, he did not learn that charges had been filed until after the jury he served on had been dismissed, and he never gave the matter any thought. He did not disclose the assault incident because he “never thought about it, ” and was focused on listening to the testimony and doing his job as a juror. The Supreme Court affirmed the trial court’s order denying his new trial motion. (Id. at pp. 644-646.)
Respondent contends that under San Nicolas, we should affirm. Murray contends San Nicolas is inapplicable because: (1) Juror No. 7 was asked about any arrests, and must have known what that meant because she disclosed the arrest of her son’s father; and (2) Juror Nos. 4 and 7 were asked whether they had been the victim of any crime, and must have been aware of the significance of the attempted assaults because they raised them during jury deliberations. Murray contends Juror No. 7’s methamphetamine use made her biased in favor of J.R., who once used that drug, and that her reference to the effects of methamphetamine use also showed bias. He contends that Juror Nos. 1 and 4 were biased because they discussed the attempted assault incidents during deliberations as well.
We understand Murray’s concerns about these three jurors and do not trivialize them. Even so, we see no basis for disregarding the trial court’s credibility calls concerning the inadvertence of the nondisclosures. As the trial court observed, Juror Nos. 1 and 4 were not specifically asked about assaults or attempted sex crimes. They were asked a general question concerning whether they had ever been a crime victim. Each had been able to avoid an attempted attack before any real harm was done, the incidents occurred years before, during childhood, and each believed, correctly or not, that no crime occurred. Juror No. 7 was asked whether she had a drug use issue that would affect her ability to be fair, not whether she had ever used drugs. Although she said her son’s father had been arrested for drugs, there is no indication he was not convicted in that case, while Juror No. 7 had her case dismissed and was told she had therefore not been convicted of a crime. It was for the trial court to say whether the juror was sufficiently confused by the voir dire questions and the significance of the underlying events that her failure to disclose her own arrest was inadvertent or not.
Neither does the record show that these jurors were biased, nor that their comments prejudiced Murray. According to Juror No. 12, all that Juror No. 1 said is that her incident affected the manner in which she formed her opinions. To the extent the statement relates to Juror No. 1’s mental processes, it was inadmissible. (Evid. Code, § 1150, subd. (a).) Setting that aside for the moment, there is no indication that Juror No. 1 said anything about the experience that could have affected the jury, because she apparently kept her thought processes to herself. Juror No. 4 said she only discussed her incident in response to another juror, who said he would have run away from Murray. All Juror No. 4 said was that everyone reacts differently. Furthermore, both jurors’ statements may have aided Murray’s case, because in each, the would-be victim ran away instead of remaining with their assailants. These remarks do not show bias or prejudice against Murray. (See People v. Kelly (1986) 185 Cal.App.3d 118, 122, 128-129 [in case of sex crimes against young boys, a juror - who did not reveal on voir dire that a stepuncle’s attempt to molest her when she was a child was interrupted before it really began - was not biased against defendant because: the attempted crime against her was dissimilar from the defendant’s case; her failure to disclose was inadvertent; she came forward with the information after the trial; did not discuss it with the jurors; and the trial court conducted an adequate inquiry and determined she was not biased]; People v. Resendez (1968) 260 Cal.App.2d 1, 10-11 [juror in child molestation case answered no when asked if she had been victim of similar incident, but had been groped by her stepfather, and told jury during deliberations this led her to believe defendant was guilty].)
The same is true for Juror No. 7. Her statement about the effects of methamphetamine use are not misconduct because the effect of drug use is common knowledge among laypersons, and jurors cannot be expected to leave their backgrounds and experiences outside the jury room. (People v. Yeoman (2003) 31 Cal.4th 93, 162 [three jurors discussed personal drug use experiences during deliberations, including one who described his own reactions to certain drugs; denial of new trial motion for juror misconduct affirmed].) Second, Murray’s contention that the juror was biased in favor of the two victims who were methamphetamine users because she had once used the drug is speculative. It is just as likely that Juror No. 7, who had apparently given up her habit, had disdain for and distrust of methamphetamine users.
Finally, when the evidence of guilt is overwhelming, the risk that exposure to outside information will prejudicially influence a juror is minimized. (People v. Tafoya (2007) 42 Cal.4th 147, 192.) We believe the evidence of this case was overwhelming. Four women with no connection to each other came forward at different times over a several-months time span and identified Murray as the man who attacked them and otherwise behaved in remarkably similar ways. Each was examined soon after the incidents, and each bore signs of forcible sex. There was no dispute that Murray had sex with these women. The only issue was whether all four were lying. Although the jury was unable to reach a verdict on a handful of the charges, under these circumstances, we conclude no reasonable jury would have either failed to reach a verdict, or acquitted Murray of more. That Murray was not convicted of all the charges suggests the jurors harbored no prejudice against him. Accordingly, we hold that as to Juror Nos. 1, 4, and 7, no jury misconduct occurred.
The same is true as to Juror No. 5. The court found as a factual matter that the foreperson did not prevent other jurors from obtaining testimony readbacks, and that finding is supported by substantial evidence. As for Juror No. 5’s remark about guilty people choosing jury trials, it was made in passing. (See People v. Hord (1993) 15 Cal.App.4th 711, 727 [passing reference to inappropriate matter – defendant’s failure to testify – was not prejudicial]; cf. People v. Cissna (2010) 182 Cal.App.4th 1105, 1118-1119 [juror repeatedly disregarded oath not to discuss case by talking about the case every day with a friend, who helped the juror analyze the evidence; misconduct was substantial and pervasive, and trial court erred by not ordering new trial].) Further, as evidenced by the jury’s inability to reach a verdict on six counts, the remark did not convince the jury to convict automatically.
2. Evidentiary Rulings on Impeachment Evidence
A. Victim Impeachment Evidence
The trial court denied Murray’s requests to impeach three of his victims with the following evidence: (1) D.’s 2008 misdemeanor arrest for prostitution; (2) J.’s 2001 misdemeanor arrest for petty theft; and (3) Kelly’s 2004 arrest for misdemeanor identity theft. Murray contends the court erred. We disagree.
1. D.G.
The parties agree that evidence of D.’s 2008 arrest for prostitution was not admissible to show she consented to having sex with Murray in 2004, but might have been admissible as evidence of a crime of moral turpitude in order to impeach her credibility in general. Whether or not to allow the evidence for that purpose is subject to whether its probative value outweighs its prejudicial effect under Evidence Code section 352. (Evid. Code, §§ 782, subd. (a), 1103, subd. (c); People v. Chandler (1997) 56 Cal.App.4th 703, 707-709.) We review the trial court’s ruling under the abuse of discretion standard. (Chandler, at p. 711.)
Murray’s offer of proof came from an arrest report from undercover police officers who said D. offered them sex for money while she was working at a strip club. The trial court denied the motion because: (1) it occurred more than three years after her encounter with Murray; (2) the two incidents were factually dissimilar, with the first occurring when Murray approached her as she walked down the street, while the second took place at a strip club; and (3) there would be an undue consumption of time because D. was contesting the charges and the police report showed it would require the testimony of both arresting officers, thus requiring a trial within a trial.
We conclude the trial court did not abuse its discretion. Impeachment evidence based on anything less than a felony conviction usually requires direct evidence of the acts committed. (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 (Wheeler).) Thus, the trial court must weigh several factors under Evidence Code section 352 when considering such evidence, including whether admitting the evidence might involve undue time, confusion, or prejudice. (Wheeler, at p. 297.) Proof of D.’s alleged sexual solicitation would have required the testimony of at least the two arresting officers, along with any opposition witnesses the prosecution wished to call. Because the charges were pending, it also seems likely D. would have exercised her constitutional right not to testify. Therefore, we hold the trial court did not abuse its discretion by finding that allowing the evidence would involve undue time.
We alternatively hold that any error was harmless. D. showed several physical manifestations of forcible sex, including a fresh lesion in her anus. As previously discussed, she was one of four victims who came forward separately with strikingly similar stories of forcible sex by Murray. Therefore, it is not reasonably probable any such error affected the verdict. (People v. Chandler, supra, 56 Cal.App.4th at p. 711.)
2. J.R.
Murray asked the court to allow for impeachment purposes evidence that J.R. was arrested for misdemeanor petty theft in 2001. His offer of proof was a rap sheet which showed an arrest, but, according to the trial court, no mention of a conviction. The trial court asked Murray’s defense counsel how he would prove the incident occurred. The lawyer said that if J. denied the charge, he would have to bring in a witness. When the court asked if the witness was available or had been subpoenaed, defense counsel said, “Not yet, no.” Based on that, the trial court excluded the evidence.
Murray contends this was error because his lawyer could have proven the incident by asking J. about it. Had she admitted the incident, it would have been proven. He also says there was sufficient time to secure the witness because the trial lasted two more weeks. We disagree.
Although evidence that J. committed a petty theft was arguably relevant to her credibility, it was still subject to analysis under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at pp. 290-296.) The trial court has broad discretion to determine this issue, which allows the court to “prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Id. at p. 296.) The courts should carefully consider whether admitting the evidence would involve undue time, or prejudice that outweighs its probative value. (Id. at pp. 296-297.) Whether J. might confess to the incident requires more guesswork than a trial court should have to engage in when deciding whether to introduce such evidence. A denial seems far more likely and would have therefore required that contradictory witnesses be called. Murray’s defense counsel did not identify any such witnesses, state where they could be found, how soon their presence could be secured, and how much time it would take to examine them. Without having a witness to testify to the alleged theft, the jury might have been tempted inappropriately to infer her guilt from the questions asked about the alleged incident. On this record, we hold the trial court did not abuse its discretion by excluding the evidence because of witness unavailability.
3. Kelly G.
Murray also tried to introduce impeachment evidence that Kelly G. had been arrested in August 2004 for misdemeanor identity theft, a crime of moral turpitude. He contends the court excluded the evidence because it was remote, and because the rap sheet the trial court was looking at did not show such an arrest. According to Murray, the trial court erred because: (1) the incident took place just two months after the alleged rape, and was therefore not remote; and (2) the prosecutor told the court it had a report that referred to the arrest, showing it had in fact occurred.
We conclude the trial court did not err in regard to the lack of proof that an arrest took place. The court said its copy of the rap sheet showed nothing more than an arrest for simple drug possession. The prosecutor said that a police witness’s copy of the rap sheet referred to such an arrest as a companion to the drug possession arrest. The court repeated that the only item mentioned in its copy was the drug possession arrest. Defense counsel asked whether there was a “case finding” that might show the other arrest. The court replied, “We looked it up. The case is YA059392, it was a simple possession offense for which the subject entered Prop. 36, and the matter was successfully completed and dismissed. There is no record of any kind of identity theft.” The prosecutor said she had a document showing a warrant number that might be run for more information. The court clerk said she did not have the ability to run warrants. Defense counsel then proposed contacting the sheriff’s department to have it do so. The court replied, “We ran the case number, and there is no evidence of any charge or conviction or anything other than a drug offense.” Defense counsel said he agreed. The court then said that although the reference to a possible warrant was unresolved, the evidence of any arrest for identity theft was so uncertain and remote that it would exclude it.
Given the results of the trial court’s search of the records, combined with the uncertain state of the evidence concerning whether any arrest for identity theft in fact ever occurred, we hold the court did not abuse its discretion by excluding the evidence.
B. Evidence Impeaching Murray
The trial court allowed the prosecution to impeach Murray’s credibility with a 1994 misdemeanor conviction for evading pursuing police officers. Murray contends this was error because the conviction occurred about 10 years before any of the alleged rape incidents, and because it was minimally probative of his truthfulness. Assuming for the sake of argument only that this is so, we hold the error is harmless even under the higher constitutional violation standard of beyond a reasonable doubt. The crime was so dissimilar to the crimes charged, and, as discussed before, the evidence of Murray’s guilt was so strong, that evidence of the conviction could not have had an effect on the jury.
C. Constitutional Violations
Murray contends the court was not even-handed, and was so unfair, in its treatment of impeachment evidence against him as compared to impeachment evidence against his victims, that his constitutional rights to a fair trial and due process were violated. There was one critical distinction between the two groups of evidence however: as to the victims, arrests and not convictions were involved, raising the specter of undue time consumption to prove the underlying incidents, while Murray had been convicted of his offense, which was therefore easily provable. Accordingly, there was no such constitutional violation.
Having said that, we acknowledge the seeming disparity of treatment and note that when making such competing rulings, the trial court should consider each in context of the others, with an eye toward promoting a fair trial. However, we conclude that on balance the rulings here were correct as to the victims and overwhelmingly harmless as to Murray.
Murray also contends that the trial court violated his constitutional due process and fair trial rights by excluding the impeachment evidence against three of his victims. For the same reasons earlier discussed, and because we found no error under Evidence Code section 352, we reject this claim. (People v. Mills (2010) 48 Cal.4th 158, 196.)
3. Exclusion of Evidence Someone Else Raped J.R.
Murray wanted to introduce evidence that someone else assaulted J.R., but the trial court rejected the evidence because it was not relevant. According to a police report, the police detective investigating J.R.’s assault was told a few weeks after J.R. was attacked that the police were investigating whether someone had been assaulting prostitutes in the Hollywood area. The other person, who was known to the police, was a large Hispanic man who drove a black BMW. This evidence should have been admitted, Murray contends, because: (1) J.R. told the police her assailant had been Hispanic, and was sure the man’s car had been a black BMW; (2) police sketches based on her description did not look like Murray; and (3) there were other discrepancies between her description and Murray’s actual appearance.
However, even Murray, who is African-American, admitted that he has sometimes been mistaken for being Hispanic.
A criminal defendant has the right to show that someone else committed the crime with which he has been charged, so long as the evidence raises a reasonable doubt as to his guilt. However, evidence that is remote does not qualify. Evidence of mere motive or opportunity to commit the crime, without more, is insufficient. There must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (People v. Jackson (2003) 110 Cal.App.4th 280, 286.) There is no such evidence here. J.R. was shown a photo of the other man and did not identify him. Instead, she identified Murray as her attacker. In short, J.R. excluded the other suspect, and included only Murray as her attacker, meaning there was no direct or circumstantial evidence that the other man committed the crimes against her. (Ibid. [evidence that someone else broke into the victims’ homes properly barred where the victims could not identify the attacker at all, meaning the defendant could not be excluded as the perpetrator].)
Further, we doubt the relevancy of this evidence because it applied to only J., yet she was one of four victims who independently identified Murray as their attacker under remarkably similar circumstances. It seems doubtful to us that third party culpability evidence would have much, if any, relevance, when it did not apply to the other three victims.
Murray also contends that exclusion of the evidence violated his constitutional right to present a defense. He is wrong. (Holmes v. South Carolina (2006) 547 U.S. 319, 327 [third party culpability evidence may be excluded when it is speculative or remote]; People v. Prince (2007) 40 Cal.4th 1179, 1243 [proper application of ordinary rules of evidence does not violate right to present a defense].)
4. Expert Testimony of Sexual Assault Nurse
Marilyn Stotts, the sexual assault nurse who examined J.R., testified that J. had petechial hemorrhages around her neck that were consistent with having been choked. When asked by the prosecutor to point those out in photos taken of J., defense counsel objected that there was no foundation for Stotts’s supposed expertise in that area. The trial court overruled the objection, and Stotts went on to testify that there were also petechial hemorrhages around J.’s eyes that were consistent with having been choked. She also testified to the process by which pettechiae occur. Later on direct examination, and also on cross-examination, Stotts said she could not recall having taken any specific courses on evaluating strangulation-type injuries, but was sure she had received instruction on it. She could not recall reading articles on the topic, had never qualified as an expert on the topic, and had written no papers or articles about it. On cross-examination, she testified that it was possible to have petechial hemorrhages outside, but not inside, the eye. Defense counsel again objected that Stotts was not qualified to give such an expert opinion.
Respondent contends Murray waived any objection by waiting until that point to object. We assume for the sake of argument only that no waiver occurred and will address the issue on the merits.
Murray contends the trial court erred by overruling his objections. A person qualifies as an expert witness if he has sufficient knowledge, skill, experience, training, or education on the subject of his testimony. (Evid. Code, § 720, subd. (a).) We review the trial court’s ruling on this issue under the abuse of discretion standard, and error occurs only when the evidence shows the witness was clearly unqualified. (People v. Panah (2005) 35 Cal.4th 395, 478.)
Murray contends Stotts was unqualified on the topic of petechial hemorrhages because she lacked specific training, education, and experience in that area. He points to several sister-state decisions that he contends support his claim. None is applicable. Stotts testified she had been a registered nurse since 1994, and in 2001 became a nurse practitioner specializing in women’s health issues. She had taken coursework in physiology and anatomy. In 1996, she became a board certified sexual assault examiner after going through a specialized program that included interviewing, evidence collection, and the “whole process necessary to do a sexual assault exam.” Beginning in 1998, she received additional training and education working under the guidance of a “preceptor.” She has attended training on a regular basis for “sexual assault, for physical examination, for interviewing techniques, injury assessment, [and] evidence collection....” Included was special training on asphyxiation and choking-type injuries. Since 1998, she had performed 1, 562 forensic sexual assault examinations.
People v. Clay (Ill.App. 1 Dist. 2006) 843 N.E.2d 885, 889-890, 896 did not address whether the autopsy physician had been qualified to testify about petechial hemorrhages, but instead concerned defense counsel’s failure to properly impeach the doctor. Smith v. State (Ind.App. 2008) 891 N.E.2d 163, 165 merely mentions an autopsy physician’s testimony about the existence of petechial hemorrhages, and although it notes he was an “expert on strangulation, ” in no way concerns his qualifications to give such testimony. State v. Durand (La.App. 5 Cir. 2007) 963 So.2d 1028, again merely mentions that a medical witness was an expert in forensic pathology, but his expertise was not an issue on appeal. State v. Saulter (N.D. 2009) 764 N.W.2d 430, 434-436 concerned a police detective who testified as a lay opinion witness in a case where the defendant was on trial for a domestic violence assault, including the strangulation of his victim. Because the detective had an expertise in domestic violence and strangulation, and testified about those topics generally, and not about the facts of defendant’s case, he gave expert witness testimony and was improperly qualified as a lay opinion witness; the court declined to address whether he would have qualified as an expert witness.
We hold that this was sufficient proof of Stott’s qualifications, and that the trial court did not abuse its discretion by allowing her to testify about petechial hemorrhages, which are a form of injury. Any gaps in her knowledge or defects in her testimony were matters of the weight the jury might give to her testimony, not her expert qualifications. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
5. Sex Offender Fine
Under Penal Code section 290.3, subdivision (a), the trial court must impose a restitution fine on persons convicted of the sex crimes listed in Penal Code section 290, subdivision (c), which provides the registration requirement for sex offenders. At the time of Murray’s crimes, the fine was $200 for a single conviction, and $300 upon the second and each subsequent conviction, subject to a finding concerning the defendant’s ability to pay. Effective September 2006, the Legislature increased the fine to $300 for a first conviction, and $500 for subsequent convictions. (Stats. 2006, ch. 337, § 18; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) The trial court here imposed a $300 fine under Penal Code section 290.3. Murray contends this must have been a fine for a first conviction under the new, higher, rate, thereby violating his constitutional right against ex post facto punishment. (Valenzuela, supra, at p. 1249.) He bases this contention on the court’s “fail[ure] to impose more than one sex offender fine, [meaning that] the trial court impliedly made a finding that Murray did not have the ability to pay more than one fine.”
Murray’s offenses qualified under this provision.
Respondent contends the trial court could impose multiple conviction fines totaling $300 because, even under the law at the time of the offenses, the multiple conviction provision applied when a defendant was convicted of more than one qualifying sex offense in the same case. (People v. O’Neal (2004) 122 Cal.App.4th 817, 822.) Respondent is legally correct in the abstract, but mathematically in error. The trial court had to impose the full $200 amount for the first conviction, and the full $300 amount for any subsequent convictions as to which it concluded Murray had the ability to pay. In other words, if the trial court wanted to impose a fine for the first conviction because it found Murray had the ability to pay, a $200 fine should have been imposed. If it then wanted to impose additional fines for the subsequent convictions, assuming a finding of Murray’s ability to pay, then each such subsequent fine would have to be in the full $300 amount, because the trial court does not have discretion to award partial fines. (People v. Walz (2008) 160 Cal.App.4th 1364, 1370-1371.) Therefore, a $300 fine does not add up under the law in effect at the time of Murray’s crimes.
Based on this, we conclude the trial court intended to impose a single, first conviction fine, but mistakenly did so in the new, higher amount of $300. Accordingly, we agree with Murray that the sex offender fine should be reduced to $200, the amount applicable to a first conviction fine under the version of Penal Code section 290.3 in effect at the time of Murray’s crimes. The effect of this, as Murray points out, is to lower certain other adjunct penalty assessments totaling $840 that were imposed based on the erroneous amount of $300. (Pen. Code, §§ 1464, subd. (a), 1465.7; Gov. Code, §§ 70372, 76000, subd. (a), 76000.5, 76104.6, 76104.7.) According to Murray, those should be collectively reduced to $640, a figure the respondent does not contest. We will order the abstract of judgment modified accordingly.
DISPOSITION
The judgment is modified to reflect a Penal Code section 290.3 sex offender fine of $200, along with the penalty assessments of $640. The matter is remanded to the superior court with directions to modify the abstract of judgment accordingly, and then forward a corrected copy of the abstract to the Department of Corrections. The judgment as modified is affirmed.
WE CONCUR: FLIER, J. GRIMES, J.
The jury convicted Murray of the following crimes against Candace D.: robbery and two counts of rape and of forcible oral copulation, along with enhancements for weapons use and for binding his victim and committing sex offenses against multiple victims.
Murray was convicted of the following crimes against Dauminique G.: robbery, two counts each of rape, forcible oral copulation, and forcible sodomy, along with findings that he used a deadly weapon, bound his victim, engaged in both simple and aggravated kidnapping, and committed sex offenses against multiple victims.
Murray was convicted of the following crimes against Kelly G.: robbery, rape, oral copulation by force, and two counts of sodomy by force, along with findings that he used a deadly weapon, bound his victim, engaged in both simple and aggravated kidnapping, and committed sex offenses against multiple victims.
The jury was unable to reach verdicts on the following counts as to J.R.: kidnapping to commit a sexual offense, two counts of sexual penetration by a foreign object and attempted forcible rape. The jury was unable to reach verdicts on a forcible oral copulation charge as to Candace D. and on a kidnapping to commit a sexual offense charge involving Dauminique G. A mistrial was declared as to those counts, and they were dismissed.