Filed 4/20/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B293746
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA459873)
MICHAEL ROBINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed.
Law Office of Elizabeth K. Horowitz and Elizabeth K.
Horowitz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Michael C. Keller,
Acting Supervising Deputy Attorney General, for Plaintiff and
Respondent.
____________________
Michael Robinson penetrated an unconscious woman with
his fingers. He challenges evidentiary rulings and requests
presentence conduct credit. We affirm the evidentiary rulings
but correct his presentence custody credits. All statutory
references are to the Penal Code, unless otherwise specified.
I
We recount facts in light of the verdict: Robinson used a
foreign object sexually to penetrate an unconscious person (§ 289,
subd. (d)) and used a foreign object sexually to penetrate a person
whose intoxication prevented her from resisting (§ 289, subd. (e)).
On December 16, 2014, a woman had two drinks before
going to a bar with a female friend. The woman remembered
drinking part of a third drink at the bar but had no memory from
then until the next morning, when she woke up in Robinson’s
bed. She did not recognize him or know his name. Robinson said
they had sex. The woman was confused and afraid. She had a
boyfriend and had not wanted sex with anyone else.
The woman left Robinson’s apartment and had trouble
walking, thinking, and ordering an Uber. She could not
remember meeting Robinson or leaving the bar. In the past, she
had had up to five drinks a night but had always retained her
memory. She thought she was drugged at the bar rather than
simply hungover from alcohol because the symptoms, including
memory loss, were alien to her.
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Later that day, Robinson texted her and sent a video he
took of her naked below the waist. The next day he sent her
more text messages and another video.
On December 19, 2014, the woman made a police report.
Video from outside the bar and from Robinson’s apartment
building showed him pulling and carrying the woman into an
Uber to his apartment and through his building to his door.
Robinson’s cell phone had a video of him using his finger to
penetrate her anus, as well as photographs and videos of the
woman with her eyes closed on his couch and in his bed.
Trial lasted seven days. The jury viewed video from the bar
and the apartment, as well as photos and video from Robinson’s
cell phone.
The trial court sentenced Robinson to the middle term of
six years for the offense against an unconscious person. The
court stayed the sentence on the offense against a person who
was too intoxicated to resist under section 654. The court
awarded Robinson 52 days of actual credit plus seven days of
conduct credit, for a total of 59 days.
II
The trial court properly excluded cumulative evidence
about past times the woman was intoxicated at this bar. We
review evidentiary rulings for abuses of discretion. (People v.
Rodriguez (1999) 20 Cal.4th 1, 9.)
Robinson’s argument concerns his redirect examination of
the bar’s doorman. Robinson called this witness, who also was a
manager and a bouncer at the bar. The doorman saw Robinson
and the woman leave the bar and remain outside on the
sidewalk, waiting for a car.
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The doorman testified the woman seemed drunk but “she
knew what was going on.”
On direct examination, defense counsel asked the doorman
if he thought the woman was in danger. The doorman said no:
“A) they’d been outside for 15 minutes, and B) [Robinson] was
making sure [the woman] wasn’t falling and busting her head
open and calming her, making sure she was okay and holding her
up and like it’s all right, Uber will be here in a couple minutes,
it’s okay. And like I said, I was watching them. She was
completely—I’m not going to say fine, because she was
intoxicated, but she was coherent. She knew what was going on
even though she was still impaired.”
The doorman testified he had seen the woman the “same
way” on other occasions.
On cross examination, the prosecutor asked why, of the
“150,000” people he has seen in his many years on the job, the
doorman retained a memory of this one woman. The doorman
maintained he did indeed recall this woman and this incident.
One reason was Robinson and the woman “were both there quite
often.”
On redirect, defense counsel asked three questions that are
at issue on appeal.
1) “[O]ne of the reasons you thought she was okay is that
you had seen her in that condition before; correct?”
2) “[T]his was not the first time you had seen [the woman]
at the . . . bar; is that correct?”
3) “Had you seen her in a similar state of intoxication
before?”
The People objected to all three questions on the basis of
relevance.
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The court sustained the first objection without explanation
in the moment, but later explained the question was improperly
leading.
This ruling was correct. Leading questions generally are
improper on direct or redirect examination. (Evid. Code § 767,
subd. (a)(1).) A leading question is one suggesting the answer the
examining party desires. (Evid. Code § 764.) The question “one
of the reasons you thought she was okay is that you had seen her
in that condition before; correct?” is leading. This was redirect
examination. The court thus was right to sustain the objection.
This basis, which justifies the ruling, differs from the
relevance ground specified in the prosecutor’s objection. This
difference is of no moment. The venerable rule is trial courts are
not bound in their analysis to the particular ground stated in
parties’ objections. (See Spottiswood v. Weir (1889) 80 Cal. 448,
450–451.) Trial lawyers must make their objections in an
instant. They commonly sense a bad question but must react
speedily and sometimes fail to pinpoint the flaw precisely. We
lend deference to trial court evidence rulings partly because trial
judges are entitled to render a proper ruling on an objection valid
in principle but flawed in expression. The judge need not pause
to tutor the lawyers.
The trial judge sustained the objections to the second and
third questions because the questions were cumulative. He later
explained they also were more prejudicial than probative.
The second question—“this was not the first time you had
seen [the woman] at the . . . bar; is that correct?”—indeed was
cumulative. The doorman had testified he had seen the woman
the “same way” on other occasions and Robinson and the woman
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“were both there quite often.” The second question was
redundant. The trial judge properly rejected this question.
For the same reasons, the third question also was
redundant: “Had you seen her in a similar state of intoxication
before?”
Trial judges have great discretion to curb the cumulative.
They may exclude evidence when its probative value is
substantially outweighed by the probability its admission will
necessitate undue consumption of time or create substantial
danger of undue prejudice. (Evid. Code § 352.)
The trial court was right to sustain objections to these
questions. The probative value of this inquiry was nil: the
evidence was already in the record. The repeated questions
about how often the victim had been drunk on other nights were
wasteful of time. Inculcating an image of the victim as a habitual
drunk, moreover, was an illegitimate appeal to jury emotion.
There was no error.
III
Robinson argues the trial court erred by allowing a drug
recognition expert to testify about whether the woman was
incapacitated. This error, if error it be, was harmless.
We first identify the statements Robinson challenges on
appeal. The relevant expert testimony concerned four videos the
prosecution played, one from outside the bar and three from
Robinson’s apartment building. In his briefs, Robinson does not
list specific statements he attacks but rather makes a global
challenge to the drug expert’s testimony about “whether or not
[the woman] was unconscious or able to care for herself at various
times.” The expert used the words “passed out” but did not
describe the woman as “unconscious.” Once, after the expert
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described her as “passed out,” the prosecution asked what made
the expert think she was “passed out or unconscious.” We
assume Robinson is challenging every time the expert testified he
thought the woman was “passed out.”
Regarding whether the woman could “care for herself,” it
was defense counsel, not the expert, who characterized the
expert’s testimony as being about whether the woman could “care
for herself.” The expert did testify about whether the woman
could stand and walk unassisted, so we assume Robinson’s
challenge to the expert’s statements about whether she could
“care for herself” pertains to that testimony.
Assuming for purposes of analysis the trial court erred, it
was harmless. We review errors of state evidentiary law for
prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson).
(See also People v. Jones (2013) 57 Cal.4th 899, 957.) We ask
whether it was reasonably probable the error affected the
outcome of the case. (Watson, supra, at p. 836.)
It is not reasonably probable the expert’s testimony affected
the outcome of this case. The expert’s statements were consistent
with the videos, which the jurors saw for themselves.
Furthermore, other evidence, including video Robinson took on
his cell phone closer in time to the sexual acts, overwhelmingly
supported the conviction.
We have studied the videos from outside the bar and from
Robinson’s apartment building. We describe the four videos and
recount the challenged testimony.
The video from outside the bar shows the following. The
woman lay face up with her upper body atop a newspaper stand
and her legs towards the sidewalk. Robinson pulled her up; she
was limp. Robinson pulled and carried her to an Uber. The
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woman stood outside the car for more than a minute, during
which she held onto and leaned on Robinson and the open car
door. She shook her head from side to side and started to move
away from the car while leaning on the door. Robinson pulled
her inside the car, which took them to Robinson’s apartment.
We assume Robinson challenges the following statements
by the expert about this video: it “appears that she’s asleep here
or passed out” when the woman lay on the newspaper stand; it
“appears to me that she’s passed out” when Robinson moved her
to the Uber; if Robinson were not holding her up, “she would
probably most likely fall to the ground. She wouldn’t be able to
catch herself” because “she appears to be limp as he’s carrying
her”; she did not appear to be able to stand without holding the
car door; and she “can’t stand unassisted.”
The jurors were entirely able to judge this video for
themselves. The expert’s testimony contained neither opaque
models nor esoteric theories. There was no black box scientism.
No quantification challenged the innumerate. Nothing about this
testimony tended to overwhelm jurors’ common sense and
experience. Jurors regularly interpret human behavior portrayed
on screens. We all do this from an early age. The expert’s
comments were simple and reasonable interpretations of what
the video displayed. The defense was fully able to argue to the
contrary. The expert’s testimony could not have affected the
verdict.
The three other videos were from Robinson’s apartment
building. We describe them chronologically. The first video
shows the woman leaning on Robinson, who held and pushed her
backward as he walked forward through the lobby to the elevator.
Robinson walked into the elevator holding the woman’s arm, but
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she pulled away and leaned against the wall outside the elevator.
Again, we assume (because he does not list the statements he
targets) that Robinson challenges the following testimony: “it
looks like she’s passed out and she can’t . . . walk unassisted” and
“she has to use the wall for balance.”
The second video from the apartment overlaps in part with
the first but shows a different angle. The woman leaned against
the wall outside the elevator. Robinson pulled her into the
elevator and she leaned on him for the entire elevator ride.
Robinson pulled the woman out of the elevator and her
movement was so slow the elevator door began to close on them
as they got out. The expert said “[i]t appears that she has to use
a wall for balance” and “she can’t stand by herself without being
supported by [Robinson].” The relevant part of the third video
shows the woman continuing to lean on Robinson, who pulled her
down a hallway to his apartment. The expert said “it looks like
she’s being supported and she can’t walk unassisted.”
Our earlier comments apply with equal force to these
videos.
It is not probable the jury would have interpreted the
videos any differently if they had watched the videos without the
expert’s testimony. Robinson says, because the testimony came
from a police expert, it “would absolutely be given substantial
weight by the jury.” The videos in this case do not present a close
call in which the expert testimony could have swayed the jury to
think differently.
Defense counsel agreed with the expert’s testimony about
the videos in closing argument: “And I am frank with you, yes,
[the videos] show someone who look[s] like they’ve had a lot to
drink. A lot to drink. Very unsteady. And even the drug
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recognition expert that the People called said the same thing. He
said in watching those videos it looks like she really can’t take
care of herself. Well, you don’t need to be an expert to notice that
in the videos.”
Moreover, ample evidence closer in time to the sexual acts
supported the conviction. Most importantly, the jury saw video of
Robinson putting his finger in the woman’s anus. The jury also
saw other video and photos he took of her from within his
apartment. The woman’s eyes are closed in many of the photos
and video. She had no memory of him taking them or of the
events.
Assuming it was error to admit the drug recognition
expert’s testimony about the surveillance videos, Robinson was
not prejudiced by the testimony.
IV
The trial court awarded Robinson 52 days of actual
presentence custody credit plus seven days of conduct credit for a
total of 59 days. Robinson says the trial court undercalculated
his presentence custody credit because he was not convicted of a
violent felony under section 2933.1, which would otherwise limit
those credits. The People concur. We agree with both parties
and direct the trial court to award Robinson 104 days of
presentence custody credit and to amend the abstract of
judgment accordingly.
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DISPOSITION
We direct the trial court to award Robinson 104 days of
presentence custody credit and to amend the abstract of
judgment accordingly. The trial court must forward the modified
abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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