Filed 12/29/20 P. v. Johnson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C086549
Plaintiff and Respondent, (Super. Ct. No. CM044296)
v.
THOMAS MAURICE JOHNSON,
Defendant and Appellant.
In the predawn hours of February 17, 2016, a resident of a home that backed up to
a bike trail in Chico heard a woman yelling “rape” and “fire,” and called 911. When a
police officer arrived at the bike trail, he saw defendant Thomas Maurice Johnson
approximately 50 to 75 feet away, pants around his knees, emerge from shrubs beside the
bike trail and flee. The officer then saw Jane Doe, whose pants were down below her
1
buttocks emerge from the same area.1 Defendant was ultimately apprehended with the
help of a canine officer and arrested after a struggle.
Jane Doe testified that defendant had grabbed her, pulled her off of the bike trail,
and told her to drop her pants. She testified that defendant “put his hand down [her]
throat and pulled out scar tissue” several times during the attack, leading to injuries to her
throat.
Defendant, who testified at trial, offered a very different account. He described a
drug deal gone bad. He testified that he agreed to sell Jane Doe crystal
methamphetamine. He gave her a plastic bag containing methamphetamine, and, in
return, she gave him only $5, significantly less than it was worth. When he attempted to
get the methamphetamine back from Jane Doe, she swallowed it. He put his fingers
down Jane Doe’s throat, trying to force her to spit up the swallowed drugs. He fled when
police arrived because he had drugs on him. His pants, defendant told the jury, sagged a
little below his waist, but not below his knees.
Defendant was charged with kidnapping to commit rape, assault with intent to
commit rape and/or other sex offenses, and resisting an executive officer. Great bodily
injury enhancements were also alleged. A jury found defendant not guilty of kidnapping
to commit rape, but guilty of the lesser included offenses of simple kidnapping and
felony false imprisonment. The jury also found defendant not guilty of assault with
intent to commit rape, but found him guilty of the lesser included offense of simple
assault. Additionally, he was found guilty of resisting an executive officer. The jury
further found true the great bodily injury enhancement allegations regarding Jane Doe in
connection with the simple kidnapping and felony false imprisonment convictions. The
trial court sentenced defendant to an aggregate term of 11 years eight months.
1 The victim was referred to in the trial court as Jane Doe.
2
On appeal, defendant asserts: (1) his conviction of false imprisonment must be
reversed because it is a necessarily lesser included offense of kidnapping, both of which
were lesser included offenses under count 1, kidnapping to commit rape; (2) the trial
court erred in prohibiting trial counsel from cross-examining Jane Doe concerning prior
inconsistent statements and her mental and emotional instability 14 months after the
incident; (3) the trial court erred in excluding the testimony of a defense expert who
would have testified about police investigations, procedures, and crime scene
investigations, and the crime scene processing that occurred in this case; (4) the trial
court erred in excluding a defense expert offered to testify as to the physical
characteristics of crystal methamphetamine; (5) the prosecutor committed prosecutorial
misconduct in his rebuttal closing argument (a) by discussing matters not in evidence,
specifically the legal ramifications for false statements in a search warrant affidavit,
misstating the law, and improperly vouching for the prosecution’s witness, (b) in arguing
matters not in evidence to improperly vouch for Jane Doe’s credibility and by misstating
the law when discussing her testimony, and (c) by suggesting that defendant had other
unknown victims, thus arguing facts not in evidence, inviting the jurors to speculate
defendant had committed similar crimes, and appealing to the passions and prejudices of
the jurors;2 (6) the cumulative effect of the errors deprived him of a fair trial; (7) the trial
court erred in failing to stay punishment for assault pursuant to Penal Code section 654;3
and (8) we must remand the matter to the trial court for a hearing on defendant’s ability
to pay fines, fees, and penalty assessments pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas).
2 Defendant separately asserts that his trial counsel were constitutionally ineffective for
failing to object to several instances of the alleged prosecutorial misconduct.
3 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
3
Because false imprisonment is a lesser included offense to kidnapping, we reverse
the conviction of felony false imprisonment and the true finding on the great bodily
injury enhancement allegation attached to that conviction and vacate the sentences
imposed thereon. We also order execution of the sentence imposed on the assault
conviction stayed pursuant to section 654.
Otherwise, we shall affirm, concluding that, although there were several errors,
defendant was not prejudiced, individually or cumulatively. We also conclude that he is
not entitled to an ability to pay hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged by criminal information with kidnapping to commit rape
(§ 209, subd. (b)(1); count 1), assault with intent to commit rape and/or other sex offenses
(§ 220, subd. (a)(1); count 2), and resisting an executive officer (§ 69; count 3). In
connection with count 1, the information alleged that defendant personally inflicted great
bodily injury on the victim within the meaning of section 12022.7, subdivision (a). In
connection with count 2, the information alleged that defendant inflicted great bodily
injury on the victim during the commission of an assault with the intent to commit rape
within the meaning of section 12022.8.
The Prosecution’s Evidence
Jane Doe’s Testimony
In 2016, Jane Doe was using pain medication, marijuana, and methamphetamine.
She had been living that lifestyle for “about eight or nine years, on and off.” She
acknowledged she had been convicted of welfare fraud and was still on probation. And
she acknowledged that use of methamphetamine was a violation of probation. On cross-
examination, she acknowledged that she had also been arrested in Texas.
On February 17, 2016, Jane Doe went for a walk. She had consumed
methamphetamine. She went to Walgreens and to 7-Eleven on East Avenue to buy
4
cigarettes and candy. After she exited 7-Eleven, she encountered defendant. Defendant
walked with Jane Doe briefly. After three to five minutes, the two parted ways.
Jane Doe later came to a bike path. She testified that, as she was starting to cross
the bike path, defendant suddenly grabbed her from behind “kind of in a neck hold” and
pulled her onto the bike path. Jane Doe begged defendant not to hurt her. Defendant told
her to be quiet, and he pulled her off onto the dirt to the side of the bike path.
Jane Doe testified that she tried to scream, but that defendant “was just too strong
for” her. She testified that defendant “kept [her] from screaming by pulling the scar
tissue out of [her] neck and . . . making it unable for [her] to talk.” According to Jane
Doe, defendant did that three or four times. She testified she “saw bits and pieces of . . .
[her] neck thrown onto the pavement.”
Jane Doe testified: “I was put to the pavement a couple of times. We were kind
of in the dirt and on the bike path at the same time for maybe, I’m not sure how long, but
just for a short bit. I lost consciousness many times, two or three times . . . .” Jane Doe
testified that, at the time she lost consciousness, she was about six feet onto the bike path.
At some point, defendant told Jane Doe to drop her pants. She tried to resist, but
eventually she did what defendant said because she was afraid he was going to kill her.
She testified she dropped her pants and then her head hit the pavement. She could not
recall what happened after that.
The 911 Caller’s Testimony
Stacy Morgan lived in a house that backed up to the bike path. Morgan heard a
woman screaming, “He’s going to rape me. Help. Help.” After speaking to a 911
operator, Morgan looked outside and saw defendant run towards her neighbor’s yard,
pulling his pants up. Defendant jumped into Morgan’s neighbor’s yard. Morgan
remembered talking to detectives later in the morning. She told them that she heard a
female yell, “ ‘Rape, fire,’ ” twice.
5
Police Response to the Scene and Investigation
At approximately 5:15 a.m., Sergeant Todd Lefkowitz of the Chico Police
Department responded to the bike path. Lefkowitz described the location of the bike path
where he responded as just north of East Avenue. People’s exhibit 8, an aerial view,
shows the bike path, in the middle of the block running north and south between and
parallel with White Avenue and Pillsbury Road, and running perpendicular to East
Avenue, across the sidewalk and into a crosswalk across East Avenue. From East
Avenue, Lefkowitz drove his vehicle onto the bike path at a 45-degree angle, facing
northwest, unable to turn fully onto the bike path. He directed his spotlight down the
bike path. Lefkowitz saw a bicycle on the bike path. After a few seconds, he saw
defendant, pants down around his knees, jump out from the shrubs east of the bike path
onto the bike path approximately 50 to 75 feet from where Lefkowitz stopped his vehicle.
Lefkowitz testified that only defendant’s pants were down, not his underwear. Defendant
looked in Lefkowitz’s direction and then turned and ran. Defendant had difficulty
running because his pants were around his knees. Defendant attempted to mount the
bike, but fell. He tried to pull his pants up and get on the bike again, and, when that
failed, he ran and jumped over a backyard fence.
Lefkowitz backed his vehicle up, and then successfully turned completely onto the
bike path. As he did so, he saw Jane Doe come out onto the bike path from the shrubs to
the east of the bike path. Lefkowitz testified that Jane Doe “presented herself very
similar to how [defendant] presented himself, from my right, which is the east side of the
bike path, from the shrubs, and stepped out onto the asphalt-paved bike path.” She
emerged from the shrubs at the same distance as defendant. Both defendant and the
6
victim “presented themselves” at a distance of 50 to 75 feet from Lefkowitz’s vehicle.4
The victim was very disheveled, covered in dirt and leaves, her face was bloody, and her
pants were down below her buttocks.
Meanwhile, officer Richard Hartman, who was nearby in the area, saw defendant.
Hartman warned defendant that, if he did not stop, Hartman would release his canine
partner, Luna. Defendant ran and Hartman released Luna. Luna apprehended defendant,
and he went to the ground. Hartman jumped on top of defendant while another officer
handcuffed him. Defendant continued to struggle and he bit Hartman’s wrist. After
defendant was detained, an officer searched him and found in his front pockets an empty
condom wrapper. An officer who subsequently collected swab samples from defendant
testified that defendant’s fingernails were “pretty long.”
Jane Doe was sent to the hospital in an ambulance. She was in pain, she was
frightened, and she was having difficulty breathing because of her throat. She was
bleeding on the inside of her neck and from where her head hit the pavement.
Officer Hartman spoke with Jane Doe at the hospital. She told Hartman that prior
to the incident, she had gone to the Donut Nook, bought coffee and a donut, and left. She
did not tell Hartman that she went to 7-Eleven or Walgreens. Jane Doe told Hartman
that, during the first time she was with defendant, at some point, defendant reached his
hand towards her groin. Jane Doe stopped defendant’s hand before he could touch her
and told him that was “no way to treat a woman.” However, in her direct examination,
Jane Doe testified that there was no point before the incident on the bike path when
defendant tried to touch any part of her body.
4 In their briefing both parties indicate they understand Lefkowitz’s testimony to mean
Jane Doe emerged from the shrubs in the same area where he had first seen defendant.
We agree with this interpretation.
7
Officer Jamie McElhinney and her field training officer, Officer Travis Johnson,
arrived at the bike path. McElhinney’s role that morning was to survey and collect
evidence. On cross-examination, McElhinney acknowledged that, as of the date of the
incident, she had been on the police force for approximately three weeks and this incident
was the first time that she placed evidence placards. Officer Johnson supervised her
while she was doing so.
On the sidewalk 10 to 15 feet to the west of the entrance to the bike path,
McElhinney located a bag containing a wallet and cigarettes.5 People’s exhibit 29
depicts the bike path as photographed from the sidewalk. Six evidence placards can be
seen in the near foreground on and to the immediate east of the bike path. A shoe was
located approximately 20 feet from the start of the bike path. A second shoe was also
located.6 The distance from the wallet, located on the sidewalk near the entrance to the
bike path, to the shoe located in foliage farther north along the bike path, was
approximately 47 feet. McElhinney also measured drag marks “starting from around the
same area that the first items were located in the foliage to further down to where that last
placard was where [a] cable lock was located.” That distance was approximately 50 feet.
The total distance “from the drag marks to the wallet and cigarettes” on the sidewalk was
approximately 97 feet. The drag marks themselves were approximately 50 feet. The
drag marks appeared in “the foliage and the dirt area on the right-hand side of the bike
path . . . .” There were several drag marks, and it “appeared that a scuffle had occurred.
The foliage, dirt, rocks were disturbed in that area and not any other areas that were
noticeable. Also, it was right in the area where the evidence items were collected, such
as the shoe.” McElhinney also located a belt in a backyard in the area where defendant
5 As defendant latter established in his case-in-chief, the wallet and cigarettes apparently
belonged to Jane Doe.
6 The evidence does not clearly establish whether these were Jane Doe’s shoes.
8
was first contacted by law enforcement. McElhinney testified that it “sound[ed] right”
that she told Detective Dane Gregory that Jane Doe was dragged approximately 150 feet
based on Jane Doe’s statement and evidence observed at the scene. However,
McElhinney further testified that that distance may have been an estimate, and that the
actual measurements may have been taken after Gregory left the scene. Gregory testified
that he agreed with the opinion of other officers that Jane Doe was dragged 97 feet.
McElhinney acknowledged that none of the photographs she had been shown
during her testimony showed drag marks.
Medical and DNA Evidence
A nurse who performed a forensic medical examination of Jane Doe observed an
abrasion to Jane Doe’s soft pallet towards the back of her mouth. The injury was
consistent with having been inflicted by a fingernail. Jane Doe also had abrasions to her
tongue, and abrasions and swelling to the back of her throat.
On cross-examination, defendant’s trial counsel elicited from Jane Doe that she
suffered from a condition known as Barrett’s esophagus. Barrett’s esophagus is a change
to the lining of the esophagus caused by significant reflux. Jane Doe acknowledged that
she had problems with her esophagus prior to this incident, but further testified that the
issue did not result in problems in her throat.
A senior criminalist from the California Department of Justice testified that a
DNA sample found underneath defendant’s left fingernails was from a female, and the
profile matched the reference profile for Jane Doe.
9
The Defense Evidence
Defendant’s Testimony
Defendant testified that at approximately 3:00 a.m. the morning of the incident, he
received a call from someone who wanted to purchase crystal methamphetamine and
cocaine from him. Defendant left his apartment at 3:00 or 3:15 a.m. on his bike.7
Defendant rode his bike to the apartment of a friend, C.J., who lived across the
street from the location where he was going to meet his buyer.8 He looked through her
window, but the window was blocked by a mattress. Defendant opened the window, but
he did not see anyone in the house, so he left.
Jane Doe approached defendant on the street. Defendant and Jane Doe began to
walk together, talking. They also smoked marijuana together.
At some point, defendant went across the street to make a call. He then retrieved
his bike, and he and Jane Doe parted ways. At that time, according to defendant, Jane
Doe appeared to be under the influence of methamphetamine.
Defendant’s buyer did not show up. Defendant headed towards the bike trail,
intending to go home. He was on the sidewalk next to the bike trail when Jane Doe
walked up to him. She asked defendant if he had any more crystal methamphetamine.
She had seen that defendant had methamphetamine when he took out the marijuana
earlier. Defendant responded that he did, and Jane Doe asked to buy some.
Defendant testified that, because it was close to 5:00 a.m. and there were people
out going to work, he wanted to move away from the sidewalk to give Jane Doe the
7 The bicycle on the bike trail in a crime scene photograph was defendant’s bicycle.
8 On cross-examination, defendant acknowledged that he previously had a sexual
relationship with C.J. However, he testified that the last time he had sex with her was “a
long time ago.” The prosecutor repeatedly implied, through cross-examination, that
defendant went to C.J.’s house for sex, and, frustrated, he turned his attention to the
victim. Defendant denied all of this.
10
methamphetamine. According to defendant, they walked about five or six feet from the
sidewalk onto the dirt area adjacent to the bike trail.
The methamphetamine defendant had was packaged in a plastic sandwich bag, the
end of which he had burned so as to harden and seal it. According to defendant, the
methamphetamine itself was “like shards, like glass, like crystal shards . . . .” Defendant
testified that “if you . . . would have squeezed it, the bag, it would poke through the bag
or you probably get a puncture wound because it’s hard, it’s like . . . sharp pieces of
glass.”
Defendant handed Jane Doe the baggie, containing approximately a gram and a
half of methamphetamine. She gave him $5. Defendant testified that the
methamphetamine he gave her was “way too much for $5.” It was worth $30 to $40. As
defendant tried to get the methamphetamine back from Jane Doe, she “threw it in her
mouth” and swallowed it. Defendant put his fingers in Jane Doe’s mouth, trying to force
her to gag so that she would “spit it back up,” which she did. She then jumped on top of
it on the ground and curled up in a fetal position. Defendant tried to move Jane Doe
while the two of them were on the ground in an attempt to get his methamphetamine, and
the two tussled. Jane Doe started screaming and hollering, and defendant heard her yell
“rape” and “fire.” Defendant saw the methamphetamine and grabbed it.
Defendant testified he heard sirens approaching and saw a police officer in a
vehicle coming towards him. He grabbed his bike and started trying to ride away. The
police officer stopped his vehicle, jumped out, and yelled something. Defendant dropped
his bike and jumped over a fence. Defendant did not stop when ordered to do so by the
officer because he had methamphetamine and cocaine on him and he “didn’t want to get
arrested for them at the moment.” Defendant testified, “I had real baggie pants on,” and
explained “they wouldn't have been down to my knees or nothing like that, but they were
probably down a little bit past my waist.”
11
When he dove over the fence, defendant’s belt got caught on the fence, and he
“was hanging there for a minute . . . .” Eventually, he unfastened his belt, took it off, and
got down from the fence.
Defendant testified that, at the time, he had the methamphetamine in his hand and
cocaine in his pocket. He also had a bottle of alcohol, a cigarette pack, and a condom in
his pocket. He testified that, usually, when he carried drugs, he also carried a condom so
that, if “police get on” him, he can “throw [the drugs] up in the condom and just swallow
it.” After he got off of the fence, defendant put the methamphetamine and cocaine in the
condom, tied it off, and swallowed it.
Defendant saw police officers looking for him. He stayed where he was for a long
time, until many of the officers left the area. When he thought it was clear, he jumped
over a fence into a front yard. Defendant saw two officers and, when they were
approximately 10 or 15 feet away from him, he ran again, but ran into a trash can and fell
down. One police officer pointed a gun at defendant, and the other officer released his
dog, which attacked defendant. The dog bit both of defendant’s legs. Defendant was
then handcuffed by officers. Defendant testified that he did not intentionally bite an
officer, but that the officer may have been bit when he put his arm over defendant’s face
to try to make him stop yelling.
Defendant testified that Jane Doe’s account of what happened was not true.
Evidence from the Crime Scene
The defense called Detective Gregory, the lead detective on this case. Gregory
acknowledged that he collected cigarettes and a wallet from evidence and gave them back
to Jane Doe “the next day.” Gregory also acknowledged that an item of evidence from
the crime scene, a woman’s shoe, appeared in two different photographs accompanied by
two different evidence placards. Gregory identified in photographs additional instances
of the same item of evidence photographed with two different evidence placards and
numbers.
12
Medical and Toxicological Evidence
Dr. Jennifer Ward treated Jane Doe at the hospital. Dr. Ward testified that Jane
Doe reported to her that “ ‘a man put his hand in [her] throat and tried to rip [her] guts
out.’ ” She also claimed that the man tried to kill her. Dr. Ward noted in her report that
Jane Doe was “groggy appearing initially,” and that she was “somewhat intoxicated.”
The toxicology screen of Jane Doe’s urine yielded positive results for “opiates . . .
amphetamines, methamphetamine, benzodiazepine, and cannabinoids.”
Dishonesty Character Evidence Regarding Jane Doe
Imogean Dodson (Imogean) met Jane Doe in 2001 at a “clean and sober living
environment” and they were good friends. Imogean was married to Jane Doe’s former
husband, Gerald Dodson (Gerald). Imogean testified that, in 2016, Jane Doe came into
their living room, without permission, when they were asleep and stole credit cards and
an ATM card from Imogean’s purse, as well as other items. Imogean woke up to find
Jane Doe “hovering over our bed.” Jane Doe asked Gerald for the keys to the Dodson’s
Escalade. According to Imogean, Jane Doe “believed that she was living there.” Gerald
took Jane Doe to “the Jesus Center,” but Jane Doe returned to the Dodson’s house shortly
thereafter. The Dodsons had to call the police to have Jane Doe removed from their
house. Imogean opined that Jane Doe was not an honest and truthful person.
Officer Dan Wilson testified that in 2015, he arrested Jane Doe for shoplifting.
Character Evidence Regarding Defendant Indicating No Sexual Deviance
Baljit Atwal, Ph.D., a clinical psychologist with a specialty in forensics, testified
that she was retained by the defense to evaluate defendant’s general psychological
functioning, his mental status, and his risk of sexual offending behavior. Dr. Atwal
testified that on a sexual offending risk assessment test, defendant “scored very low in
being at risk to commit a sex offense, to commit either rape or child molestation or
exhibitionism.” She further testified that defendant scored as a very low risk for
“deviancy or characteristics of someone who would commit rape, violent sexual acts” on
13
that test. Defendant also scored in the low-risk range for violence and antisocial
behavior. Dr. Atwal opined that defendant did not have the characteristics of someone
who would commit a violent sexual offense. She testified that there was nothing in his
personal history or his test results to indicate sexual deviance. Dr. Atwal testified that
defendant was not a sexual predator.
Chassidy Walker, Cedar Hernandez, and Durell Siplin testified as character
witnesses for defendant. Walker had known defendant for approximately 15 years.
Hernandez thought of defendant as a brother. Siplin testified that defendant was “a best
friend of mine,” “more like a brother,” whom Siplin had known for approximately 20
years. Walker, Hernandez, and Siplin all testified that defendant did not have a
reputation in the community as someone who would kidnap a woman for the purpose of
committing rape or assault a woman for the purpose of committing rape. Walker testified
that defendant’s “character in the community is someone who is consistent and loving
and caring, not a man that has been accused of these charges.” Hernandez testified
defendant was a family man who worked mornings and stayed home the rest of the day to
care for his family. Siplin testified that defendant was “a dedicated father, . . . he’s very
committed to his family, and . . . he’s very committed to his friends as well.”
The Prosecution Rebuttal Evidence
Detective Kevin Hass testified that, in his experience as a narcotics officer, he
never heard of anyone getting a cut by touching a methamphetamine shard. Hass
acknowledged that crystal methamphetamine looks like shards of glass. He testified that
it “appears like it’s hard, but yet you can break it.” Hass never heard of anyone getting
any kind of injury from hiding methamphetamine inside the mouth or in a body cavity.
And he had never seen a crystal methamphetamine shard hard enough to puncture a
plastic baggie.
Detective Gregory testified that he prepared a search warrant for defendant’s
Facebook account. He acknowledged stating in his affidavit to secure the warrant that
14
Lefkowitz told him that “as he drove his patrol vehicle north onto the bicycle path, he
observed a black adult male suspect with his pants and underwear pulled down to his
knees on the ground.” (Italics added.) With regard to Jane Doe, Gregory stated in the
affidavit that she told him she had left the Donut Nook and thereafter ran into defendant.
Gregory did not recall Jane Doe saying anything about 7-Eleven or Walgreens. Gregory
acknowledged that nowhere in the affidavit did he indicate that Jane Doe was dragged
during the encounter at the bike trail. The affidavit also indicated that, according to Jane
Doe, defendant pulled her pants down rather than that she pulled her pants down as
ordered by defendant. Gregory acknowledged that, in his affidavit, he stated that there
were six different Facebook messages exchanged between defendant and C.J. over a span
of time leading up to the alleged incident. However, he further acknowledged that there
were actually only two messages exchanged between them over that time.
Stipulation - Doe’s Preliminary Hearing Testimony
The parties stipulated to the following: “At the defendant’s preliminary hearing
. . . Jane Doe testified under oath that on February 17th, 2016, she stopped at a donut
store. [¶] At the defendant’s preliminary hearing . . . Jane Doe testified under oath that
on February 17th, 2016, the defendant . . . tried to remove her pants. [¶] Three, at the
defendant’s preliminary hearing . . . Jane Doe testified under oath that other than her
conviction for welfare fraud, she had no other convictions. [¶] Four, at the defendant’s
preliminary hearing . . . Jane Doe testified under oath that other than her arrest for
welfare fraud, she had never been arrested. [¶] Five, at the defendant’s preliminary
hearing . . . Jane Doe testified under oath that she did not go into 7-Eleven on February
17th, 2016.”
Verdicts and Sentencing
On count 1, the jury found defendant not guilty of kidnapping to commit rape
(§ 209, subd. (b)(1)), but found him guilty of the lesser included offenses of kidnapping
(§ 207, subd. (a)) and felony false imprisonment (§ 236, subd. (a)). The jury found true
15
the special allegation that, in the commission of kidnapping and felony false
imprisonment, defendant personally inflicted great bodily injury on Jane Doe within the
meaning of section 12022.7, subdivision (a). On count 2, the jury found defendant not
guilty of assault with intent to commit rape (§ 220, subd. (a)), but found him guilty of the
lesser included offense of assault (§ 240). On count 3, the jury found defendant guilty of
resisting an executive officer. (§ 69.)
The court denied probation and sentenced defendant to an aggregate term of 11
years eight months, calculated as follows: the upper term of eight years on count 1,
kidnapping (§ 207, subd. (a)), a concurrent term of six months on count 2, assault
(§ 240), eight months, one-third the midterm, on count 3, resisting an executive officer
(§ 69), and three years on the section 12022.7, subdivision (a), great bodily injury
enhancement in connection with count 1.9
DISCUSSION
I. Felony False Imprisonment as a Lesser Included Offense of Kidnapping
Defendant asserts that his conviction of felony false imprisonment must be
reversed because it is a necessarily lesser included offense of kidnapping. The Attorney
General concedes the point, and we agree.
“[I]t is generally permissible to convict a defendant of multiple charges arising
from a single act or course of conduct. [Citations.] However, a ‘judicially created
9 The court also imposed the upper term of three years on count 1, felony false
imprisonment, and stayed execution of that sentence pursuant to section 654, and
imposed but stayed sentence on the section 12022.7, subdivision (a), personal infliction
of great bodily injury enhancement specifically attached to the felony false imprisonment
conviction. As we shall discuss in part I. of the Discussion, post, we reverse the felony
false imprisonment conviction because it is a lesser included offense of kidnapping and
vacate the sentenced imposed thereon. We will therefore also reverse the true finding on
the section 12022.7, subdivision (a), enhancement attached to the false imprisonment
conviction and vacate the sentence imposed on that enhancement.
16
exception to this rule prohibits multiple convictions based on necessarily included
offenses. [Citations.]’ [Citation.] [¶] When a defendant is found guilty of both a greater
and a necessarily lesser included offense arising out of the same act or course of conduct,
and the evidence supports the verdict on the greater offense, that conviction is
controlling, and the conviction of the lesser offense must be reversed.” (People v.
Sanders (2012) 55 Cal.4th 731, 736 (Sanders), italics omitted.)
“A defendant guilty of kidnaping, as defined by either section 207 or 209 of the
Penal Code, must necessarily be guilty of the ‘unlawful violation of the personal liberty
of’ his victim and therefore be guilty of false imprisonment as defined by section 236.”
(People v. Morrison (1964) 228 Cal.App.2d 707, 713.) It is well-settled that false
imprisonment is indeed a lesser included offense of kidnapping. (See, e.g., People v.
Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Patrick (1981) 126
Cal.App.3d 952, 965; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819-820.)
Here, defendant was convicted of both simple kidnapping and felony false
imprisonment as lesser offenses to the original charge on count 1, kidnapping to commit
rape. Because felony false imprisonment is a lesser offense to kidnapping and defendant
was convicted of both offenses for the same act or course of conduct, the necessarily
lesser included offense of false imprisonment must be reversed. (Sanders, supra, 55
Cal.4th at p. 736.)
II. Limitation of Cross-examination of Jane Doe
A. Additional Background
In anticipation of Jane Doe’s testimony, the prosecutor moved in limine to
establish the extent the defense would be permitted to cross-examine her about her
criminal and mental health history. The prosecutor noted that there was a report
documenting a call on April 27, 2017, more than 14 months after the charged incident, in
which Detective Gregory informed dispatch that he would be taking Jane Doe to a mental
17
health facility. The prosecutor objected to any questioning about that incident and any
reference to mental or behavioral health treatment.
Defendant’s trial counsel asserted that “we have that interview . . . wherein she
was [Welfare and Institutions Code section] 5150.[10] That is highly relevant to the
defense’s case to her credibility insofar as it describes her mental health state during that
period . . . .” Trial counsel asserted that Jane Doe made statements during that interview
“about this particular incident that are very inconsistent with her other statements. So it
goes toward her credibility and to impeachment. And it definitely goes toward, in
addition, her mental health issues.”
Subsequently, the prosecutor reiterated his request to have any evidence
concerning Jane Doe’s psychological history excluded. The prosecutor stated that he was
moving to exclude evidence “of any kind of behavior other than the felony conviction”
pursuant to Evidence Code sections 352, 786, and 788. The prosecutor further stated that
Jane Doe was invoking the psychotherapist-patient privilege.
Trial counsel disputed whether the privilege applied, asserting that at issue were
not matters derived from Jane Doe’s relationship with any mental health professional.
Counsel noted that Jane Doe had been diagnosed with and treated for serious mental
illness. And counsel emphasized the occasion when Jane Doe “was 5150,” she talked
about the charges, and she “specifically says . . . there was one more there . . . than one
dude when I was on the path that night, . . . and I know that they raped me really bad, and
that they choked me until I was dead and for a short time but I know that it was a lot
10 Welfare and Institutions Code section 5150 provides, in relevant part: “When a
person, as a result of a mental health disorder, is a danger to others, or to himself or
herself, or gravely disabled, a peace officer . . . may, upon probable cause, take . . . the
person into custody for a period of up to 72 hours for assessment, evaluation, and crisis
intervention, or placement for evaluation and treatment . . . .” (Welf. & Inst. Code,
§ 5150, subd. (a).)
18
worse than I thought.” Counsel asserted that these matters went directly to Jane Doe’s
credibility, the most crucial issue in the case. Further, counsel emphasized that the jury
remained unaware of Jane Doe’s mental health issues and that those issues affected her
ability to perceive reality and to recall events accurately. Counsel asserted that
prohibiting the defense from cross-examining Jane Doe on these matters violated due
process and defendant’s Sixth Amendment rights to confront and cross-examine
witnesses against him. Counsel further asserted that the prosecution’s contention that the
evidence should be excluded pursuant to Evidence Code section 352 was “silly” given
the importance of the evidence and defendant’s potential exposure. Additionally, counsel
noted that, among the considerations relevant to witness credibility set forth in Evidence
Code section 780 is the “extent of [the witness’s] capacity to perceive, to recollect, or to
communicate any matter about which” the witness testifies. (Evid. Code, § 780, subd.
(c).)
The trial court ruled that it would “deny the use of any mental health or behavioral
health information or incident effectively sustaining the objection on the claim of the
psychotherapist-patient privilege.” The court stated that “statements attributed to Jane
Doe are said to be in the context of emotional distress . . . to the degree of that distress
that Jane Doe sought treatment through behavioral health. The statements made in that
context, in the Court’s mind, are unreliable.” The court further stated that no evidence
suggested that Jane Doe was “in any similar state during the time that this crime
occurred. There’s been no evidence that the Court has heard yet that Jane Doe was in a
persistent delusional state or detached from reality at the time of the crime.”
Additionally, the court stated that nothing it had heard suggested that Jane Doe was
unable to perceive or recall events due to her mental condition. The court did not see any
correlation between Jane Doe’s mental health history and statements she made at the time
of treatment and her credibility.
19
Trial counsel asserted that Jane Doe’s statement to Gregory, that she was raped by
multiple people was (1) not made to a mental health professional but to a law
enforcement officer, and (2) directly in conflict with her trial testimony. Counsel argued,
“if nothing else, we should be able to just state, you were interviewed on that date, and on
that date she said that there was more than one dude who was on the path that night, and
that they raped me.” The trial court stated: “[t]hat was on the heels of seeking treatment.
The Court’s finding that statements made in that context are unreliable, so the Court is
not going to allow questioning in that area.”
B. The Parties’ Contentions
Defendant asserts that the trial court erred in prohibiting the defense from cross-
examining Jane Doe concerning these prior statements and her mental and emotional
state. Specifically, defendant sought to cross-examine her concerning (1) statements she
made to Detective Gregory on April 27, 2017, and (2) her mental and emotional status on
that date. According to defendant, the trial court’s refusal to allow cross-examination on
these matters was erroneous because Jane Doe’s statements on that date were
“unreliable” and the defense’s theory was that Jane Doe was unreliable and not credible.
Her credibility, according to defendant, was the most crucial issue in the case. Defendant
also emphasizes the differences between Jane Doe’s trial testimony and her account of
the incident given to Gregory on April 27, 2017, and specifically that it involved multiple
assailants and that she died briefly. Defendant further emphasizes the fact that Jane Doe
continued to insist that defendant ripped tissue out of her throat and threw it on the
ground, claims that were not grounded in reality. Defendant asserts that the trial court’s
error in refusing to allow the defense to cross-examine Jane Doe concerning her prior
statements and her mental and emotional instability deprived him of his rights of
confrontation, to present a defense, to a fair trial, and to due process.
20
The Attorney General responds that Jane Doe’s mental health and her statements
in April 2017 were not relevant to defendant’s attack on Jane Doe 15 months earlier,11
that her statements were potentially privileged to the extent they were made to a
psychotherapist, and that the evidence would have been unduly prejudicial. The Attorney
General emphasizes here, as in the trial court, that there was no evidence Jane Doe
suffered symptoms at the time of the attack similar to those she suffered when she was
apparently committed under Welfare and Institutions Code section 5150 in April 2017.
The Attorney General further maintains that, even if the precluded evidence was relevant,
the trial court properly precluded it under Evidence Code section 352 because the
evidence would have been unduly prejudicial.
As we shall explain, while we agree with the People that Jane Doe’s mental health
status was not admissible, we agree with defendant that Jane Doe’s statements to Gregory
were admissible as prior inconsistent statements. However, we conclude the error in
precluding the statements was harmless.
C. The Admissibility of Evidence and the Right to Cross-examination
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“ ‘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.)
“Broadly speaking, an appellate court applies the abuse of discretion standard of
review to any ruling by a trial court on the admissibility of evidence.” (People v. Waidla
(2000) 22 Cal.4th 690, 717.) “Speaking more particularly, it examines for abuse of
discretion a decision on admissibility that turns on the relevance of the evidence in
11 We calculate the time span to be a little more than 14 months.
21
question. [Citations.] That is because it so examines the underlying determination as to
relevance itself.” (Id. at pp. 717-718.) A trial court abuses its discretion when its ruling
“ ‘ “falls outside the bounds of reason,” ’ ” or where the trial court “ ‘ “exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 663
(Fuiava), quoting, parenthetically, People v. Osband (1996) 13 Cal.4th 622, 666 &
People v. Carrington (2009) 47 Cal.4th 145, 195.)
“The court in its discretion may exclude evidence 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.” (Evid. Code, § 352.) “Evidence is not inadmissible
under [Evidence Code] section 352 unless the probative value is ‘substantially’
outweighed by the probability of a ‘substantial danger’ of undue prejudice or other
statutory counterweights. Our high court has emphasized the word ‘substantial’ in
[Evidence Code] section 352. [Citations.] [¶] Trial courts enjoy ‘ “broad discretion” ’ in
deciding whether the probability of a substantial danger of prejudice substantially
outweighs probative value. [Citations.] A trial court’s exercise of discretion [under
Evidence Code section 352] ‘will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155,
167-168.)
“A criminal defendant has a constitutionally guaranteed right to confront and
cross-examine the witnesses against him or her.” (People v. Carter (2005) 36 Cal.4th
1114, 1172, citing U.S. Const., 6th & 14th Amends. & Pointer v. Texas (1965) 380 U.S.
400, 403-405 [13 L.Ed.2d 923].) The “Sixth Amendment right to confront witnesses
includes a right to meaningful cross-examination.” (People v. Patino (1994) 26
Cal.App.4th 1737, 1746.) The “right of confrontation includes the right to cross-examine
22
adverse witnesses on matters reflecting on their credibility,” but “ ‘trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination.’ ” (People v. Quartermain (1997) 16 Cal.4th 600, 623,
quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674].) “Subject
always to the broad discretion of a trial judge to preclude repetitive and unduly harassing
interrogation, the cross-examiner is not only permitted to delve into the witness’ story to
test the witness’ perceptions and memory, but the cross-examiner has traditionally been
allowed to impeach, i. e., discredit, the witness.” (Davis v. Alaska (1974) 415 U.S. 308,
316 [39 L.Ed.2d 347, 353].) As defendant asserts, “the mental illness or emotional
instability of a witness can be relevant on the issue of credibility, and a witness may be
cross-examined on that subject, if such illness affects the witness’s ability to perceive,
recall or describe the events in question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-
592 (Gurule).) We review a contention that the trial court improperly limited cross-
examination in violation of the defendant’s right to confrontation for an abuse of
discretion. (People v. Peoples (2016) 62 Cal.4th 718, 765, citing People v. Linton (2013)
56 Cal.4th 1146, 1188.)
D. Analysis
1. Statements Jane Doe Made to Gregory on April 27, 2017
Defendant’s trial counsel argued that, on April 27, 2017, when Jane Doe “was
5150,” she talked about the charged events with Gregory and she “specifically says . . .
there was one more . . . dude when I was on the path that night, . . . and I know that they
raped me really bad, and that they choked me until I was dead and for a short time but I
know that it was a lot worse than I thought.” Separate from evidence of the Welfare and
Institutions Code section 5150 commitment, Jane Doe’s statement to Gregory was
relevant, as it directly addressed the circumstances surrounding the charged offenses and
was inconsistent with other statements she made and her trial testimony. Thus, it was
“evidence that was relevant to the credibility of a witness” and had a tendency in reason
23
to prove or disprove a “disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) Thus, contrary to the Attorney General’s contention, these
statements were relevant.
Further, to the extent that the prosecutor objected to the admission of the
statements on Evidence Code section 352 grounds, and to the extent the trial court
considered such grounds in precluding the evidence, we conclude that this was an abuse
of discretion. The probative value of the statements was high. They were statements
Jane Doe made concerning the occurrence of the charged offenses that were inconsistent
with her trial testimony and earlier statements she made to the police. And the probative
value of these statements relative to Jane Doe’s credibility was enhanced by their
contents: her assertion that she was attacked by multiple people, choked, raped “really
bad,” and almost killed. We conclude that this probative value was not substantially
outweighed by the risk that admission of the statements, or cross-examination of Jane
Doe about them, would necessitate undue consumption of time. (Evid. Code, § 352.)
The evidence would have been admitted through Gregory, and it would take him very
little time to relay the brief statements summarized ante. Moreover, the significant
probative value of this evidence would not have been substantially outweighed by the
probability that its admission would “create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Ibid.) The evidence of these statements
would neither confuse the issues nor mislead the jury; on the contrary, it would give the
jury more information about defendant’s accuser, her credibility, and her account of the
charged offenses. Further, we cannot conclude that the probative value of this evidence
to defendant’s case would have been substantially outweighed by the probability that its
admission would create a substantial danger of undue prejudice to Jane Doe. Indeed, the
People have not cited any authority to support a contention that the prejudice concern in
Evidence Code section 352 extends to a prosecution witness. Additionally, we note that
the trial court’s determination that these statements should not be admitted based on its
24
determination that they were unreliable is not supported in the law. Reliability is not an
Evidence Code section 352 counterweight. Nor is reliability required before prior
inconsistent statements can be admitted for purposes of credibility.12
Indeed, the People have not cited any statute or case that supports the exclusion of
this evidence on the basis relied upon by the trial court. Instead, on appeal, the People
rebrand the rationale of the trial court’s ruling, contending that “even if statements Doe
made during the mental health crisis could be deemed relevant, the trial court reasonably
excluded the evidence under Evidence Code section 352. Any statements Doe made in
the midst of a mental-health crisis more than a year after the events in question lacked
credibility and provided minimal probative value of what had actually occurred in 2016.”
But the defense never offered these statements for the truth of the matter. Instead, they
offered them precisely because they lacked credibility and because they were inconsistent
with other statements Jane Doe had made. If the prosecution desired to introduce the
circumstances under which the statements were made, it would have been up to them to
do so. Neither the statements, nor the circumstances under which they were made
implicated the psychotherapist-patient privilege.13
12 Before Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], confrontation
clause analysis required a showing of indicia of reliability as a predicate to the admission
of statements of a hearsay declarant offered by the prosecution, but even then that
requirement applied only if the prosecution was unable to produce the declarant and the
declarant was shown to be unavailable. (People v. Zapien (1993) 4 Cal.4th 929, 957.)
The requirement to show indicia of reliability did not apply when the declarant testified
and was subject to cross-examination by the defense. (Ibid.)
13 The prosecution in the trial court and the Attorney General on appeal assert that this
evidence was properly precluded under the patient-psychotherapist privilege. (See Evid.
Code, § 1014.) However, there is no indication that any statements made by Jane Doe
that defendant sought to introduce were made to a psychotherapist and thus subject to the
patient-psychotherapist privilege. They were made to Gregory, a law enforcement
officer. To the extent defendant sought to introduce records or other material that could
be covered by the patient-psychotherapist privilege, we need not discuss the matter
25
Thus, we conclude the trial court abused its discretion in precluding Jane Doe’s
April 27, 2017, statements to Gregory or cross-examination of Jane Doe about them. We
address prejudice post.
2. Jane Doe’s Mental and Emotional State on April 27, 2017
Conversely, we conclude that the trial court did not abuse its discretion in
precluding the defense from establishing Jane Doe’s mental and emotional state as of
April 27, 2017. Jane Doe’s mental and emotional state more than 14 months after her
encounter with defendant were not relevant to the defendant’s defense. (Evid. Code,
§ 210.) Defendant did not establish any connection between Jane Doe’s mental and
emotional state on February 17, 2016, the day of the incident, and her mental and
emotional state on April 27, 2017, the day she was apparently committed under Welfare
and Institutions Code section 5150. Thus, the evidence was not relevant to Jane Doe’s
mental and emotional state at the time of the charged offenses. Additionally, defendant
established no connection to Jane Doe’s testimony, more than five months later.
Consequently, the evidence was not relevant to the credibility of her trial testimony.
Accordingly, we conclude that the trial court did not abuse its discretion in precluding
this evidence.
Defendant relies on Gurule, supra, 28 Cal.4th 557, asserting that it is similar to the
circumstances of this case and is controlling. However, the issue decided in Gurule is not
the same as here. In Gurule, our high court considered the pretrial discovery of the
psychiatric records of a codefendant turned prosecution witness. (Id. at pp. 587-595.)
Here, we address the preclusion at trial of evidence concerning a victim’s mental and
emotional state more than 14 months after the charged offenses and more than five
months before trial. Gurule is authority for the proposition that “the mental illness or
further, as we next conclude it was not an abuse of discretion to preclude evidence of her
mental and emotional state in April 2017.
26
emotional instability of a witness can be relevant on the issue of credibility, and a witness
may be cross-examined on that subject, if such illness affects the witness’s ability to
perceive, recall or describe the events in question.” (Gurule, at pp. 591-592, italics
added.) However, defendant has not established that the mental or emotional instability
of Jane Doe on April 27, 2017, was potentially relevant to her credibility at trial. Nor has
he established any relevance of her mental state on that date to her ability to perceive,
recall or describe the events in question, either on February 17, 2016, when the charged
offenses occurred, or when she testified at trial in October 2017.14
We conclude that the trial court did not abuse its discretion in precluding the
cross-examination of Jane Doe on matters related to her mental and emotional state on
April 27, 2017.
E. Prejudice Regarding Exclusion of the April 27, 2017 Statements
Defendant asserts that an analysis of whether he was prejudiced by the trial court’s
error in precluding the subject evidence must be considered under the harmless-beyond-
a-reasonable-doubt standard in Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705] (Chapman), because the error infringed on his constitutional rights under
the Fifth, Sixth, and Fourteenth Amendments. Since Chapman, our high court has
“ ‘repeatedly reaffirmed the principle that an otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.’ ” (People v. Geier (2007)
41 Cal.4th 555, 608; accord, People v. Aledamat (2019) 8 Cal.5th 1, 3 (Aledamat).) “The
harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error?’ ” (Geier, at p. 608; People v.
14 For this same reason, we further conclude that, even if the trial court erred in
precluding evidence of Jane Doe’s mental and emotional stability on April 27, 2017, any
such error was harmless under any standard.
27
Livingston (2012) 53 Cal.4th 1145, 1159.) To determine whether the People have
satisfied their burden of proving the error was harmless beyond a reasonable doubt, “we
examine the entire record and must reverse if there is a ‘ “ ‘reasonable possibility’ ” ’ that
the error contributed to the verdict.” (People v. Reese (2017) 2 Cal.5th 660, 671 (Reese),
citing People v. Aranda (2012) 55 Cal.4th 342, 367 (Aranda).) The Attorney General
counters that the error was harmless under any standard.
We conclude that the error in precluding Jane Doe’s statements to Gregory on
April 27, 2017, was, indeed, harmless even under Chapman. Notwithstanding the
preclusion of the prior inconsistent statements to Gregory on April 27, 2017, the defense
was permitted to cross-examine Jane Doe thoroughly. Through its cross-examination, the
defense explored inconsistencies in her account of the incident. The parties also entered
into the stipulation which contained matters inconsistent with Jane Doe’s trial account.
The defense also cross-examined Jane Doe about her criminal history and her drug use.
The jury had the opportunity to watch Jane Doe’s testimony, observe her demeanor, and
assess her credibility. The defense presented the testimony of Imogean Dodson, who
testified about Jane Doe breaking into her house, stealing from her, and expressing the
obviously mistaken belief she lived in the Dodson house. Imogean also testified that she
did not believe Jane Doe was truthful. Introduction of evidence concerning Jane Doe’s
mental state when she made the inconsistent statements to Gregory on April 17, 2017,
ultimately may have harmed defendant’s defense because a jury could have inferred her
mental state on that day resulted from the trauma of what happened on the night of the
charged offenses.
In any event, the jury found defendant not guilty of both kidnapping to commit
rape and assault to commit rape. Thus, the jury rejected Jane Doe’s testimony that she
had been the victim of sexual assault. Instead, the jury found defendant guilty of simple
assault and that finding was consistent with defendant’s own version of the incident
indicating that he reached down Jane Doe’s throat to make her gag his methamphetamine
28
back up. As for the kidnapping and false imprisonment, those lesser offenses were
supported by Lefkowitz’s testimony. Lefkowitz testified that he saw defendant emerge
from the bushes 50 to 75 feet up the bike path from where Lefkowitz initially parked
upon driving onto the entrance of the bike path. Shortly thereafter, he saw Jane Doe
emerge from the shrubs in the same area where he had seen defendant. Therefore, the
preclusion of Jane Doe’s inconsistent account to Gregory on April 27, 2017, as to how
the sexual assault occurred was without consequence.
Based on the foregoing, we conclude that the error in precluding Jane Doe’s
statements to Gregory on April 27, 2017, was harmless beyond a reasonable doubt.
There is no “ ‘ “ ‘reasonable possibility’ ” ’ that the error contributed to the verdict.”
(Reese, supra, 2 Cal.5th at p. 671; Aranda, supra, 55 Cal.4th at p. 367; see Chapman,
supra, 386 U.S. at p. 24; Aledamat, supra, 8 Cal.5th at p. 3.)
III. Refusal to Allow Defense Expert Williams to Testify
A. Additional Background
Defendant’s trial counsel indicated his intent to call Tim Williams, a former Los
Angeles Police Department detective and “police procedure expert,” to offer his opinion
on “the investigation, the crime scene, the manner in which evidence was collected and
preserved.” He would also “testify about proper investigation and crime scene
techniques, analysis of the evidence as how this investigation was conducted.”
According to counsel, Williams had testified “at least a hundred times” concerning,
among other things, police procedure.
The prosecutor opposed Williams’s proposed testimony, asserting that there had
“been no allegations . . . that there’s been any kind of issues with evidence tampering or
contamination. There’s no evidence that any particular items of evidence weren’t
collected.”
The court noted that defendant, who had testified, “put himself at the crime
scene.” The court continued: “There’s been very little evidence collected. He’s
29
admitted to putting his hand in the alleged victim’s mouth. One of the pieces of evidence
is the DNA under the fingernail. And these are areas . . . that are not . . . outside the
province of the jury to determine such that expert testimony is needed to assist them in
their deliberations. [¶] And so that will be the Court’s ruling.”
When it became clear to defendant’s trial counsel that the trial court had precluded
Williams’s testimony in all areas, he requested an Evidence Code section 402 hearing.
The trial court responded that it “ha[d] ruled.” Counsel replied: “Mr. Williams and I
have marked more than 20 photos. These were photos taken . . . during their
investigation. These are photographs, and he is an expert in evidence collection, he is an
expert and testified multiple times in evidence collection preservation, whether or not it is
preserved properly, how it is collected. [¶] We have photos of people that we intend to
use with him where they are using with their hand, touching pieces of evidence, which is
directly in conflict with Officer McElhinney’s testimony. There are different photos of
same pieces of evidence with different photo markers. Multiple, multiple problems with
this crime scene. They have not been presented to this jury. But the two photographs
that have been presented to the jury by the district attorney, . . . one of them has a photo
marker 40, one of them has a photo marker 3. They are the exact same piece of evidence
and they have not been presented as such to the jury. Mr. Williams has analyzed and
looked over every picture that was taken in this case, every procedure, every report,
everything with regard to how the evidence was collected, preserved, maintained, tested,
what wasn’t collected, how it wasn’t collected, and proper police procedure in this type
of a rape case. He is an expert witness in criminal procedure, crime scene investigation,
and he has done this and testified not only for the defense, mostly for the prosecution in
this regard.” Additionally, counsel argued that McElhinney testified there were drag
marks at the crime scene, but drag marks did not appear in the photographs introduced at
trial. McElhinney’s testimony was that the drag marks appeared in other photographs,
but those photographs were not shown at trial. According to counsel, Williams looked at
30
“every photograph” and he would opine that there was “no evidence from any of the
photographs of the crime scene or the evidence collected from [Jane Doe] that would
indicate that she was dragged at all.” Trial counsel suggested that the court conduct a
hearing to consider Williams’s experience, and continued: “this is an evidence scene that
is contaminated, it is untrustworthy, and the jury should be able to not only see the entire
crime scene as it was actually that evening, but how the photo marker -- or the evidence
markers were moved, removed, and changed. And that it is improper police procedure
and it is absolutely proper for us to put up an expert to testify in that regard.” Counsel
stated that presenting expert opinion evidence concerning “shoddy police investigations,”
improper evidence collection, and crime scene errors is something that is neither novel
nor uncommon.
The court was not persuaded by counsel’s arguments and ruled: “given the
evidence that we have, the Court does not see that there’s relevance to the line of
inquiry.” The court returned to the fact that defendant “admitted to being there and
putting his hand inside of the victim’s mouth,” and noted that the photographs and
evidence placards were not shown to the jury.
B. Defendant’s Contentions
Defendant asserts that the trial court erroneously excluded Williams’s testimony,
denying him his rights to a fair trial and to present a defense. According to defendant,
Williams’s proposed testimony was highly relevant to rebut the testimony of law
enforcement officers and to impeach their credibility. In contrast to the limited scope of
relevance the court assigned to the proffered evidence, defendant asserts that Williams’s
testimony was relevant to rebut the allegations that Jane Doe was dragged, to impeach the
credibility of Gregory and McElhinney, and to interpret the photographic and physical
evidence in connection with the alleged dragging. Williams’s testimony was also
relevant because, as defendant emphasizes, McElhinney lacked any technical training,
and yet she “was placed in charge of identifying, marking, and collecting evidence at the
31
scene, despite the fact that she had been a sworn officer for only two months and she had
never processed any crime scene before.” The proffered evidence also would have been
relevant to the practice of using different evidence placards to mark the same items of
evidence, and to rebut Gregory’s testimony that there were not common standards for
crime scene processing and evidence collection. Even if some aspects of Williams’s
proposed testimony was within the common knowledge of jurors, other aspects were not;
his expert testimony thus would have aided the jury, and the trial court abused its
discretion in ruling otherwise. In the absence of Williams’s testimony, there was no
evidence to rebut the testimony of McElhinney and Gregory relevant to the crime scene
and the purported drag marks.
We agree with defendant to the extent that Williams was prepared to testify about
the absence of drag marks.15
C. The Admission of Expert Testimony
“ ‘California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness [citation] and to
give testimony in the form of an opinion.’ ” (People v. Vang (2011) 52 Cal.4th 1038,
1044 (Vang), citing Evid. Code, §§ 720, 801.) “If a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact; and [¶] (b) Based on matter (including his special
knowledge, skill, experience, training, and education) perceived by or personally known
15 As for other aspects of proposed testimony critiquing the crime scene investigation,
we conclude defendant has failed to establish the trial court abused its discretion in
precluding testimony on what amounted to collateral matters not directed specifically to
material evidence in the case. For example, the discrepancy related to the evidence
placards marking the location where the shoes were found was inconsequential since
those shoes were not tied to Jane Doe or the events underlying the charges.
32
to the witness or made known to him at or before the hearing, whether or not admissible,
that is of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.” (Evid. Code, § 801.) Our high court has
stated that “ ‘expert opinion testimony “ ‘will be excluded [on Evidence Code section 801
grounds] only when it would add nothing at all to the jury’s common fund of
information, i.e., when “the subject of inquiry is one of such common knowledge that
[those with] ordinary education could reach a conclusion as intelligently as the
witness.” ’ ” ’ ” (People v. Brown (2014) 59 Cal.4th 86, 101 (Brown).) “ ‘The trial court
has broad discretion in deciding whether to admit or exclude expert testimony [citation],
and its decision as to whether expert testimony meets the standard for admissibility is
subject to review for abuse of discretion.’ ” (Ibid.)
D. Analysis
We conclude that the trial court abused its discretion in precluding Williams’s
testimony relative to the drag marks.
There was no assertion or determination that Williams lacked “ ‘ “special
knowledge, skill, experience, training, or education” in a particular field to qualify as an
expert witness [citation] and to give testimony in the form of an opinion.’ ” (Vang,
supra, 52 Cal.4th at p. 1044, citing Evid. Code, §§ 720, 801.)
In its offer of proof, the defense stated that Williams would have testified about
the absence of photographic or other crime scene evidence, other than McElhinney’s
testimony, to prove the existence of the drag marks. This was relevant to the kidnapping
and false imprisonment charges. It would have had some “tendency in reason to …
disprove a[] disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
It cannot be said that Williams’s proffered testimony “ ‘ “ ‘would add nothing at
all to the jury’s common fund of information,’ ” ’ ” or that “ ‘ “ ‘ “the subject of inquiry
33
is one of such common knowledge that [those with] ordinary education could reach a
conclusion as intelligently as the witness.” ’ ” ’ ” (Brown, supra, 59 Cal.4th at p. 101.)
Williams’s testimony would have been relevant to impeach the testimony of law
enforcement about the drag marks and would have been relevant to assessing the
credibility of McElhinney and Gregory on this point.
In arguing that there was no abuse of discretion here, the Attorney General relies
on the fact that defendant thoroughly cross-examined McElhinney and Gregory. The
Attorney General further emphasizes that the defense made use of the testimony revealed
on cross-examination in closing arguments. However, these are matters more aptly
addressed to prejudice than to whether the trial court abused its discretion in precluding
the defense’s expert witness. Cross-examination of prosecution witnesses is not a
substitute for the presentation of relevant, qualified, and probative evidence from a
defense expert.
Thus, the trial court abused its discretion in preventing the defense from
presenting Williams’s relevant testimony concerning the lack of drag marks.
E. Prejudice
Errors in excluding expert testimony are analyzed under the state law standard for
prejudice in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Stoll
(1989) 49 Cal.3d 1136, 1163; accord People v. Sotelo-Urena (2016) 4 Cal.App.5th 732,
756.) “ ‘[U]nder Watson, a defendant must show it is reasonably probable a more
favorable result would have been obtained absent the error.’ ” (People v. Beltran (2013)
56 Cal.4th 935, 955.) “[T]he Watson test for harmless error ‘focuses not on what a
reasonable jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
34
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ ” (Beltran, at p. 956.)
As emphasized by the Attorney General, the defense thoroughly cross-examined
McElhinney about her lack of experience and training and her actions at the crime scene.
Through its cross-examination of McElhinney and Gregory, the defense laid bare the
shortcomings in the processing and preservation of the crime scene. Through this cross-
examination, the defense made clear to the jury that there was no photographic evidence
showing drag marks, despite the fact that McElhinney insisted they were present at the
crime scene and that the drag marks were depicted in photographs. It emphasized the
absence of any evidence of drag marks other than law enforcement testimony.
As we have noted, Lefkowitz testified he saw defendant emerge from the bushes
some 50 to 75 feet up the bike path from where he stopped his vehicle at the beginning of
the bike path, and thereafter, saw Jane Doe emerge from the same bushes. Jane Doe was
very disheveled, covered in dirt and leaves, her face was bloody, and her pants were
down below her buttocks. Thus, it can be inferred from this evidence without Jane Doe’s
testimony that defendant forcibly moved Jane Doe into the bushes. Moving her even this
short distance under the circumstances of this case, was sufficient to satisfy the
asportation element of kidnapping. (See § 207; People v. Gomez (2018) 6 Cal.5th 243,
303-304 [discussing asportation element].) The movement increased the risk of harm to
Jane Doe, as defendant moved her to a more secluded area, decreased the likelihood of
detection for the same reason, “ ‘and increased both the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced opportunity to commit
additional crimes.’ ” (Gomez, at p. 304, quoting People v. Martinez (1999) 20 Cal.4th
225, 237, overruled on another ground in People v. Fontenot (2019) 8 Cal.5th 57, 70.)
As for defendant’s testimony, he never explained why Lefkowitz witnessed him
emerging from the bushes so far up the bike path. Defendant did acknowledge he and
Jane Doe walked from the sidewalk five to six feet up the bike path where they would be
35
less readily observed by commuters going to work. He said he told Jane Doe to step over
to a dirt area off of the bike path. Defendant insisted that, when he got the
methamphetamine back from Jane Doe, they were still five or six feet from the East
Avenue entrance to the bike trail. He testified that he took a couple of steps towards East
Avenue, saw the police coming, turned around, and went north. That is when he tried
unsuccessfully to ride away on his bike, which explained why the bike was farther north
on the bike path from where he interacted with Jane Doe. However, given the actual
distance up the bike path where Lefkowitz saw defendant and Jane Doe emerge from the
bushes, the short distance defendant claimed they moved from the sidewalk, and Jane
Doe’s physical condition, the jury could have reasonably inferred defendant was not
truthful about their movements and that defendant actually physically moved Jane Doe to
the location where he was later seen emerging from the bushes by Lefkowitz.
Other than the alleged drag marks, this was not a case which depended heavily
upon evidence recovered from the crime scene. Rather, the location where defendant and
Jane Doe were discovered, defendant’s flight from the crime scene and then resisting
arrest, and the DNA evidence were among the most significant components of the
prosecution’s case. We conclude that it is not reasonably probable that defendant would
have obtained a more favorable result had Williams been permitted to testify about the
lack of drag marks. (Watson, supra, 46 Cal.2d at p. 836.)
F. Constitutional Claims and the Ineffective Assistance of Counsel
The Attorney General asserts that defendant’s constitutional claims are forfeited
because he failed to raise them in the trial court.
In connection with Williams’s proposed testimony, trial counsel did not make
specific reference to the right to present a defense, the right to a fair trial, and the
deprivation of due process. “An appellate contention that the erroneous admission or
exclusion of evidence violated a constitutional right is not preserved in the absence of an
objection on that ground below.” (People v. Daniels (2009) 176 Cal.App.4th 304, 320,
36
fn. 10 (Daniels), citing Evid. Code, §§ 353, 354.) “By failing to object below, defendant
forfeited his claim that the exclusion of this evidence violated his constitutional
rights . . . .” (Daniels, at p. 320, fn. 10.)
In his opening and reply briefs, defendant asserts that his trial attorneys were
constitutionally ineffective for failing to raise the constitutional grounds he asserts on
appeal. To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].)
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at
p. 104.) To show prejudice, defendant must show a reasonable probability that he would
have received a more favorable result had counsel’s performance not been deficient.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The likelihood of a
different result must be substantial, not just conceivable.” (Richter, at p. 112, italics
added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220
Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one. In particular, a court need not
37
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
Here, we turn directly to prejudice. The Watson standard for harmless error is
substantially the same as the prejudice prong of Strickland. (People v. Ocegueda (2016)
247 Cal.App.4th 1393, 1407, fn. 4 (Ocegueda).) For all of the same reasons we
discussed ante in our Watson analysis, we conclude that, even if defendant’s trial
attorneys’ performance was deficient for failure to raise the constitutional grounds upon
which he relies on appeal, he was not prejudiced as a result.
IV. Refusal to Allow Defense Expert Northom to Testify
A. Additional Background
The defense sought to call Shon Northom, a criminal defense attorney, to testify
concerning the physical characteristics of methamphetamine in response to the testimony
of Hass, the prosecution’s narcotics expert who testified in the prosecution rebuttal case.
The prosecutor objected to Northom’s proposed testimony, asserting that, while
Northom was a defense attorney and previously was a deputy district attorney, he had no
law enforcement experience. Thus, the prosecutor maintained the Northom was not an
“appropriate expert witness in the subject.”
Defendant’s trial counsel noted that Hass was expected to testify that
methamphetamine shards are not sharp. Counsel asserted that Northom’s experience was
extensive. He was a criminal defense attorney. He handled cases involving
methamphetamine and was very familiar with methamphetamine of all types. He was a
Sacramento County district attorney for eight years, specifically handling cases involving
methamphetamine in the narcotics unit. He also prosecuted methamphetamine cases in
Tehama County. He provided monthly training to law enforcement concerning narcotics,
38
and he attended the monthly narcotics “TAGME” meetings, “which are the same
meetings on the CV of Detective Hass, which he only has 20 hours of and Mr. Northom
has many more hours and much more experience than that.”16 Northom had also
prosecuted thousands of cases and handled hundreds more as a defense attorney.
According to counsel, Northom was very familiar with methamphetamine and its
appearance.
The prosecutor again objected to Northom’s proposed testimony, asserting that he
had no investigatory experience and no academic experience related to sales of narcotics.
Trial counsel represented that Northom had extensive experience in training as well as
prosecuting cases involving crystal methamphetamine. He had also handled it, had been
involved in clandestine lab cases, and he had trained police officers. Counsel asserted
that Northom had trained many police officers, “and he may have trained Detective
Hass.” Counsel then suggested an Evidence Code section 402 hearing.17 Counsel further
emphasized the limited nature of Northom’s proposed surrebuttal testimony. He was
only being offered to testify as to the “quality and nature and the substance itself, . . . the
characteristics of the crystal methamphetamine . . . .” Northom’s proposed testimony
16 Detective Hass testified that he participated in 20 hours of training at Tehama and
Glenn Methamphetamine Enforcement, or TAGME. He acknowledged that, in his
experience, district attorneys sometimes taught sessions at the training programs he
attended.
17 Defendant’s trial counsel likely intended to request an Evidence Code section 802
hearing rather than an Evidence Code section 402 hearing. Evidence Code section 802
provides,: “A witness testifying in the form of an opinion may state on direct
examination the reasons for his opinion and the matter (including, in the case of an
expert, his special knowledge, skill, experience, training, and education) upon which it is
based, unless he is precluded by law from using such reasons or matter as a basis for his
opinion. The court in its discretion may require that a witness before testifying in the
form of an opinion be first examined concerning the matter upon which his opinion is
based.” (Italics added.)
39
was limited to a description of the physical characteristics of crystal methamphetamine.
Counsel further stated that Detective Hass was specifically asked, “whether or not he
could get a puncture wound from crystal meth, from shards from glass, and he said no.
Mr. Northom can say otherwise, from training and experience. And he has handled more
meth I’m sure than him, and he has been part of many of the same things he has.”
The court refused to allow Northom’s testimony. The court was “not persuaded
that Mr. Northom has the same expertise or greater of Detective Hass; also, that the
narrow issue on which Northom is being proffered warrants the consumption of time in
that what would need to be gone into so the jury could assign weight to his testimony
would devolve into a trial on the expertise of Mr. Northom.” (Italics added.) The court
later continued: “The Court is ruling in light of the extensive cross-examination of
Detective Hass by the defense; concerned under 352, the undue consumption of time to
litigate the qualifications of Mr. Northom. The Court does see a distinction between Mr.
Northom and his experience and Detective Hass, between a deputy district attorney and
20-year plus law enforcement officer who has worked with the task force in the capacity
of investigating crimes rather than litigating them. And so the Court is going to preclude
the witness.” The court again repeated its opinion that allowing Northom to testify would
result in undue litigation concerning Northom’s qualifications, and that the consumption
of time would outweigh the probative value of the evidence proffered.
After a recess, following an invitation by the court to do so, the defense came back
with additional information. Trial counsel indicated that Northom had indeed worked on
buy-bust operations, and had been the head of several of them. According to counsel,
Northom had extensive experience running narcotics investigations.
The court remained unpersuaded. The court seemed to suggest that the defense’s
cross-examination of Hass was sufficient evidence on the subject for the jury’s
consideration.
40
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion in precluding Northom
from testifying as to the physical characteristics of methamphetamine. This evidence was
relevant to prove whether Jane Doe’s throat injuries were caused by an assault by
defendant or instead by swallowing crystal methamphetamine, the latter being the
defense theory. Defendant emphasizes that Hass testified about the physical
characteristics of methamphetamine and that the issue was obviously relevant, and asserts
that the defense should have been permitted to present its own expert on the subject.
Defendant also emphasizes that the physical characteristics of methamphetamine are
beyond the common experience of jurors such that an expert’s testimony would be of
assistance. Defendant asserts that the court was wrong to exclude Northom’s testimony
because he may not have had equivalent experience to that of Hass; defendant argues
there is no requirement of equivalent expertise. Defendant further asserts that the trial
court abused its discretion in disallowing Northom’s testimony under Evidence Code
section 352 based on undue consumption of time. According to defendant, he was denied
his right to present a defense, and was denied due process and a fair trial. Defendant
asserts that this error was prejudicial under any standard. Again, defendant asserts that,
to the extent that counsel failed to preserve the constitutional claims for appellate review,
he was denied the constitutionally effective assistance of counsel.
As we shall explain, we conclude the trial court abused its discretion by precluding
this testimony. However, the error was harmless and nonprejudicial.
C. Analysis
The trial court was not persuaded as to Northom’s experience as it related to the
basis for his proffered testimony. However, we conclude that the offer of proof
established that Northom was sufficiently qualified to testify concerning the physical
characteristics of crystal methamphetamine. He had spent years as a narcotics
prosecutor, and thereafter worked as a defense attorney, in both roles participating in
41
numerous cases involving methamphetamine. He taught educational programs
concerning narcotics to law enforcement. He was very familiar with methamphetamine
and its appearance. He had handled crystal methamphetamine, had been involved in
clandestine lab cases, and supervised buy-bust operations and had experience running
narcotics investigations.
We conclude that, like Williams, Northom had “ ‘ “special knowledge, skill,
experience, training, or education” in a particular field [so as] to qualify as an expert
witness [citation] and to give testimony in the form of an opinion.’ ” (Vang, supra, 52
Cal.4th at p. 1044, citing Evid. Code, §§ 720, 801.) To be sure, Northom’s background,
training and experience was different from that of Hass, but it was more than sufficient to
support the proffered testimony. Moreover, as asserted by defendant, “ ‘ “ ‘[w]here a
witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to
the jury, the question of the degree of his knowledge goes more to the weight of the
evidence than to its admissibility.’ ” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 536,
quoting People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
Northom’s very limited expert opinion was proffered as the “quality and nature
and [methamphetamine] itself, . . . the characteristics of the crystal
methamphetamine . . . .” This is related to “a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a).) Moreover, this evidence was plainly relevant to a disputed fact of
consequence at defendant’s trial. (Evid. Code, § 210.)
As with Williams’s proffered testimony, it cannot be said that Northom’s
testimony “ ‘ “ ‘would add nothing at all to the jury’s common fund of information,’ ” ’ ”
or that “ ‘ “ ‘ “the subject of inquiry is one of such common knowledge that [those with]
ordinary education could reach a conclusion as intelligently as the witness.” ’ ” ’ ”
(Brown, supra, 59 Cal.4th at p. 101.)
42
The Attorney General asserts that the trial court was properly concerned with the
undue consumption of time in litigating Northom’s qualifications. We cannot agree that
either the consideration of Northom’s qualifications or the presentation of his substantive
testimony would have consumed an undue amount of time within the meaning of
Evidence Code section 352. The trial court was offered Northom’s curriculum vitae.
Based on the curriculum vitae, the offer of proof and the prosecution’s opposition, it is
clear that any time consumed examining Northom about his expertise would have been
neither lengthy nor “undue.” Indeed, there was simply only so much the prosecution
could elicit in an effort to undermine the breadth of his experience.
The Attorney General further asserts that the court properly excluded Northom’s
testimony based on its limited probative value given the facts that the actual
methamphetamine at issue was never recovered, and because Hass had already agreed
that it was hypothetically possible for methamphetamine to puncture a plastic baggie.
Again, we disagree. The evidence was relevant and highly probative of defendant’s
position that Jane Doe sustained the injuries to her throat from swallowing crystal
methamphetamine. Moreover, Northom would essentially offer testimony diametrically
opposed to that of Hass, leaving the jury to make its determination.
We conclude that the trial court abused its discretion in preventing the defense
from presenting Northom’s relevant and limited testimony.
D. Prejudice
Hass testified that he had never heard of anyone getting a cut by touching a
methamphetamine shard. He acknowledged that crystal methamphetamine can have an
appearance like shards of glass, although he further testified that, while it appears hard,
“you can break it.” However, Hass also acknowledged on cross-examination that
different people preparing methamphetamine attain different results, and while some may
prepare methamphetamine that appears hard but is flaky, “other times it can be much
harder.” He also testified that, while he had not encountered methamphetamine that was
43
hard enough to puncture a plastic baggie, he was not inclined to say that it could never
happen.
The evidence established that Jane Doe sustained abrasions to the inside of her
throat. She testified, albeit in sensational fashion, that defendant caused her injuries by
putting his hands down her throat and pulling out scar tissue from inside her throat. An
officer who collected swab samples from defendant testified that defendant’s fingernails
were “pretty long.” The abrasion to Jane Doe’s soft pallet towards the back of her mouth
was consistent with having been inflicted by a fingernail. A DNA sample found
underneath defendant’s left fingernails was from a female consistent with Jane Doe’s
profile.
In closing argument, addressing great bodily injury, trial counsel argued that
defendant had not reached six or seven inches down Jane Doe’s throat and cut her with
his nails. Rather, according to counsel’s arguments, it was more reasonable to conclude
that defendant was simply trying to get his drugs back after Jane Doe swallowed them.
Counsel argued that Jane Doe sustained injuries to her throat because, as the evidence
established, she had a condition known as Barrett’s esophagus which caused “previous
problems with indigestion and GERD such that her throat had preexisting injury. She
would be more subject to this type of an injury.” Counsel further argued: “You heard
testimony from [defendant] about this being glass. The type of methamphetamine it is. It
is a very sharp. [sic] It is different than most methamphetamine, powder
methamphetamine.” Counsel emphasized that Hass had been shown photographs of
methamphetamine in which the drug looked like shards of glass. Counsel argued that,
while Hass testified that the methamphetamine looked sharp but could be easily crushed,
the reality was that the shards of methamphetamine “can certainly poke through a bag,
and they can certainly cause an injury to your throat.” Counsel continued: “[t]hese are
just many different forms of ice, of glass, some are thin shards, some are thick shards,
some are big ones. For them to say there’s no way that that injury was caused by this, is
44
not consistent with what we know about crystal methamphetamine, and Officer Hass had
to agree with.”
Thus, the defense challenged Hass’s testimony on the sharpness and solidity of
crystal methamphetamine. Through cross-examination, the defense elicited an
acknowledgement from Hass that some pieces of crystal methamphetamine can be much
harder than other pieces. The defense also elicited testimony from Hass that,
theoretically, crystal methamphetamine could pierce a plastic bag. The defense also
argued that Jane Doe sustained her injuries not from defendant putting his fingers far
down her throat, but instead from the sharp methamphetamine, either when she
swallowed it or when defendant caused her to gag it back up.
Furthermore, Northom’s testimony would not have addressed any other injury
sustained by Jane Doe such as the injury she sustained from hitting her head on the
pavement.
Given the jury’s rejection of the sexual assault charges, and the lack of an apparent
reason for sticking one’s hand into someone’s mouth other than the reason defendant
testified about, we conclude that it is not reasonably probable that defendant would have
obtained a more favorable result had the trial court not precluded Northom’s testimony
about the physical characteristics of crystal methamphetamine and the aspects of Hass’s
testimony with which he disagreed. (Watson, supra, 46 Cal.2d at p. 836.) The jury’s
verdicts and great bodily injury findings were consistent with defendant’s own testimony.
E. Constitutional Claims and the Ineffective Assistance of Counsel
As he did with regard to the exclusion of Williams’s proffered testimony,
defendant asserts that his trial counsel were ineffective for failing to argue the applicable
constitutional grounds with regard to the exclusion of Northom’s testimony. Specifically,
he asserts that his trial attorneys were constitutionally ineffective for failing to argue that
the court’s ruling denied him a meaningful opportunity to present a defense on the great
bodily injury enhancement, and deprived him of his rights to due process and a fair trial.
45
Again, by “failing to object below, defendant forfeited his claim that the exclusion
of this evidence violated his constitutional rights . . . .” (Daniels, supra, 176 Cal.App.4th
at p. 320, fn. 10.)
We turn directly to prejudice once again. (See Strickland, supra, 466 U.S. at
p. 697.) And again, we note that the Watson standard for harmless error is substantially
the same as the prejudice prong of Strickland. (Ocegueda, supra, 247 Cal.App.4th at
p. 1407, fn. 4.) For the same reasons we discussed in our Watson analysis in this
Discussion part, we conclude that, even if defendant’s trial attorneys’ performance was
deficient for failure to raise the constitutional grounds upon which he relies on appeal, he
was not prejudiced as a result.
V. Prosecutorial Misconduct in Closing Arguments
and Ineffective Assistance of Counsel
A. Additional Background
1. Remarks Regarding Search Warrant Affidavit
As noted, Gregory obtained a search warrant looking for communications between
defendant and C.J., the female friend defendant went to visit before the incident
underlying the charged offenses. In the defense closing argument, trial counsel pointed
out that Gregory stated in his affidavit that defendant’s pants and underwear were all the
way down. Counsel argued this was “completely false,” as demonstrated by Lefkowitz’s
trial testimony. Counsel further argued: “How is it that this man and this detective used
his powers to get a search warrant, convince the judge to do so by telling information that
was false? We know that it’s false because we heard Officer Lefkowitz testify. So when
he signed that affidavit, it was false.” Counsel also emphasized that Gregory claimed in
his affidavit that there were six different Facebook messages between defendant and C.J.
during the relevant time, but, according to the evidence produced at trial, there were only
two. Counsel posed a question; how could Gregory offer information in his affidavit
46
seeking a search warrant that was wrong? Counsel then furnished his own answer:
“They’re liars.”
In his rebuttal closing argument, the prosecutor told the jury: “There was some
discussion about the search warrants somehow containing false information. Ladies and
Gentlemen, if a search warrant is containing false information, and the probable cause is
not there because of the officer’s lied [sic] or were incredible sloppy, [sic] the evidence
gets suppressed.” (Italics added.) Defendant’s trial counsel objected and requested a
sidebar, asserting that it was inappropriate for the prosecutor to say that the defense could
have had the evidence suppressed. However, counsel did not provide a legal reason for
why the argument was improper. Nor did counsel request a curative instruction. The
court overruled the objection, ruling that the remark was fair comment “to the inference
that [the defense] raised in [its] closing argument, and the search warrant was likely
insufficient, and the officer lied in obtaining it.”
2. Remarks Regarding the Voluntariness of Jane Doe’s Testimony
In his closing argument, trial counsel noted that a criminal defendant has every
right not to testify. He stated of defendant: “He didn’t have to get up there and talk to
you. Not only did he get up there and talk to you, he came and physically showed you
what happened between him and the police.”
The prosecutor in rebuttal stated: “a moment ago [trial counsel] pointed out that
[defendant] didn’t have to talk to you, didn’t have to come and tell his story. That’s
absolutely true. But neither did Jane Doe. She didn’t have to come and testify. We can’t
throw her in jail if she refuses. So she came here and had the courage to sit on the stand
and look at you and tell you her story.” (Italics added.) No objection was made to these
remarks.
3. Remarks Raising the Possibility of Other Victims
During redirect examination, Dr. Atwal described sexual predation. She stated:
“Sexual predation is being a sexual predator. So, for example, Harvey Weinstein has
47
been in the news. So there’s all of these individuals that are coming out saying that he
exploited them sexually. So multiple victims over the span of a long period of time is a
definition of a sexual predator.” During his recross-examination, the prosecutor asked
Dr. Atwal, “Harvey Weinstein got away with it for some 30 years, didn’t he?”18
In an apparent effort to address Dr. Atwal’s testimony that defendant showed no
signs of sexual predation, the prosecutor sought to present testimony by Gregory in
rebuttal eliciting that in the course of his work, he found that in some cases, the accused’s
family and friends had no idea about the acts the accused had committed. The court
conducted an Evidence Code section 402 hearing and ultimately precluded the evidence
on Evidence Code section 352 grounds.
In closing argument, defendant’s trial counsel contrasted this case with Harvey
Weinstein’s, stating, “in [Weinstein’s] case there’s over 40 people now that have come
out, and you know what it is? Everybody knew.” Counsel continued: “Now, that means
that their theory saying that oh, no other sex cases, that friends and family do not know
about it. How is it that this man has no red flags? They want you to believe that he goes
from 0 to 60 just like that because he had a little bit of alcohol in him, because his wife
just had a baby, and because he couldn’t have sex with [C.J.]. So then he just went and
turned into a violent rapist, kidnapper and rapist. No precursors for that. No other
allegations ever made. Nobody in his family or friends ever would think that he did it.
[¶] They want you to believe that he’s a violent rapist when he has nothing in his history
that would indicate anything of the sort. And then he’s suggesting well, the only way we
would know, is if he had been arrested or charged before. So we don’t know, but we do
18 In his appellate briefing, defendant asserts that the prosecutor was the first to mention
Weinstein and he did so by way of this question. However, the record demonstrates that
Dr. Atwal mentioned Weinstein during redirect examination by defendant’s trial counsel
as indicated ante, and the prosecutor’s question was posed to Dr. Atwal thereafter.
48
know. We do know because you heard everything about [defendant]. [¶] You don’t
think if he had any incidents before, sexual or violent or otherwise you would have heard
about it? Of course you would have, but there isn’t.”
In his rebuttal argument, the prosecutor responded to Dr. Atwal’s testimony about
sexual predators having a pattern and trial counsel’s closing argument. He stated: “They
groom people. Just because there haven’t been any identified or come forward or there’s
been no other arrests or prosecutions, doesn’t mean there’s not more victims out there.
It’s possible that we just haven’t found them yet. We know this from Dr. Atwal’s -- when
Dr. Atwal talked about Harvey Weinstein, we know this from Jerry Sandusty. [sic] We
know about this from Bill Cosby, everyone. There’s some of their closest friend [sic] are
shocked when they discover what these people are capable of.” (Italics added.)
Defendant’s trial counsel did not object to these remarks.
B. Defendant’s Contentions
Defendant asserts that the prosecutor committed misconduct during his rebuttal
closing argument when he: (1) discussed the search warrant affidavit because he
discussed matters not in evidence, misstated the law, and improperly vouched for the
prosecution’s witnesses; (2) praised Jane Doe for voluntarily testifying because he argued
matters not in evidence in order to improperly vouch for her credibility and he misstated
the law; and (3) raised the possibility that defendant had sexually victimized other people
and thus argued facts not in evidence, invited the jurors to speculate, and appealed to the
passions and prejudices of the jurors.
C. Standards Governing Prosecutorial Misconduct
“The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
49
even when those actions do not result in a fundamentally unfair trial.’ ” (People v.
Parson (2008) 44 Cal.4th 332, 359; see also People v. Centeno (2014) 60 Cal.4th 659,
674.)
“[T]he prosecutor has a wide-ranging right to discuss the case in closing argument.
He [or she] has the right to fully state his [or her] views as to what the evidence shows
and to urge whatever conclusions he [or she] deems proper.” (People v. Lewis (1990) 50
Cal.3d 262, 283.) “ ‘ “[A] prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is
also clear that counsel during summation may state matters not in evidence, but which are
common knowledge or are illustrations drawn from common experience, history or
literature.” [Citation.] “A prosecutor may ‘vigorously argue [the] case and is not limited
to “Chesterfieldian politeness” ’ [citation] . . . .” ’ [Citation.] Nevertheless, ‘[a]
prosecutor is prohibited from vouching for the credibility of witnesses or otherwise
bolstering the veracity of their testimony by referring to evidence outside the record.
[Citations.] Nor is a prosecutor permitted to place the prestige of [the prosecutor’s]
office behind a witness by offering the impression that [the prosecutor] has taken steps to
assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution witnesses are
based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,” [the prosecutor’s] comments cannot be
characterized as improper vouching.’ ” (People v. Ward (2005) 36 Cal.4th 186, 215,
italics added.)
D. Forfeiture
The Attorney general asserts that defendant forfeited his claims of prosecutorial
misconduct by failing to object and, in the one instance where he did object, by failing to
request an admonition. “ ‘As a general rule a defendant may not complain on appeal of
50
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.’ ” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
“[T]rial counsel’s failure to object in a timely manner to asserted prosecutorial
misconduct . . . results in the forfeiture of the claim on appeal.” (People v. Dykes (2009)
46 Cal.4th 731, 757 (Dykes), citing People v. Stanley (2006) 39 Cal.4th 913, 952
(Stanley).)
Defendant’s trial attorneys did not object to the prosecutor’s rebuttal arguments
indicating that they could not “throw [Jane Doe] in jail” if she refused to testify and
raising the possibility that defendant had other, unknown sexual assault victims. As such,
defendant forfeited any claims of prosecutorial misconduct in connection with these
arguments. (Dykes, supra, 46 Cal.4th at p. 757; Stanley, supra, 39 Cal.4th at p. 952.)
With regard to the prosecutor’s discussion about the search warrant affidavit, trial
counsel objected and argued to the trial court that the prosecutor’s remark was “a
completely inappropriate comment for him to say that we could have, and it could have
been suppressed. [¶] First of all, we got that document the day before. It was the last
discovery we have, and I’m just -- clearly, I mean, there’s -- it’s an improper argument.”
Trial counsel did not give a specific legal reason why the comment was inappropriate or
improper. “Counsel has an obligation to state the ‘specific ground for an objection in
order to preserve the issue for appeal.’ ” (People v. Reyes (2016) 246 Cal.App.4th 62, 77,
quoting People v. Thomas (2012) 54 Cal.4th 908, 938 & citing Stanley, supra, 39 Cal.4th
at p. 952.) By merely objecting on the grounds of “inappropriate comment” and
“improper argument,” defendant forfeited the particular arguments he makes on appeal.
(People v. Fernandez (2013) 216 Cal.App.4th 540, 560-561 [the defendant appropriately
concedes that, “by objecting only one time each on the vague ground of ‘improper
argument’ during the prosecutor’s initial and rebuttal closing arguments,” he forfeited his
claim of prosecutorial misconduct].)
51
We do not agree with defendant’s argument on appeal that raising an appropriate
and specific objection would have been futile, excusing defendant from making the
specific legal objection or requesting an admonition. (See Hill, supra, 17 Cal.4th at
p. 820.) Trial counsel had a sidebar conference with regard to this particular remark by
the prosecutor and thereby had the opportunity to make the specific nature of the
objection, including its constitutional dimension, known. By specifically explaining the
legal basis for the objection – arguing facts not in evidence -- the argument should have
triggered different thinking and a different ruling the trial court. We do not agree that a
timely and specific objection would have been futile.
E. Ineffective Assistance of Counsel
Defendant asserts that, to the extent that his prosecutorial misconduct claims are
forfeited, he was denied the constitutionally effective assistance of counsel. We conclude
defendant has failed to satisfy his burden of proof.
1. Remarks Regarding Search Warrant Affidavit
a. Deficient Performance
The Attorney General asserts that the prosecutor’s “brief comment about the
search warrant was proper.” The Attorney General asserts that the comment was directly
responsive to defense arguments, and referenced the “commonly understood idea that
defendants have various legal options to challenge the veracity of police conduct.”
In arguing to the jury that, “if a search warrant is containing false information, and
the probable cause is not there because of the officer’s lied [sic] or were incredible
sloppy, [sic] the evidence gets suppressed,” the prosecutor improperly argued facts not in
evidence. There was nothing before the jury concerning the circumstances under which
evidence will be suppressed. It is true that “ ‘[c]ounsel may argue facts not in evidence
that are common knowledge or drawn from common experiences.’ ” (People v. Mendoza
(2016) 62 Cal.4th 856, 908, quoting People v. Young (2005) 34 Cal.4th 1149, 1197;
accord, Hill, supra, 17 Cal.4th at p. 819.) But as our high court recently observed,
52
“ ‘[F]acts are deemed within the common knowledge of the jury only if they are matters
of common human experience or well known laws of natural science.’ ” (People v.
Rodriguez (May 21, 2020, S251706) ___ Cal.5th ___, ___ [2020 Cal. Lexis 3152, *11-
12; 2020 WL 2563833, *4] (Rodriguez), quoting People v. Love (1961) 56 Cal.2d 720,
732, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2
& citing People v. Davis (2013) 57 Cal.4th 353, 360.)19 The standards applicable to
traversing search warrants and the circumstances under which evidence will be
suppressed are not matters commonly known by lay jurors. Indeed, it can be argued that
the movies, television and the media often misstate the law on such matters as the
suppression of evidence in criminal cases.
Moreover, the prosecutor’s statement – “if a search warrant is containing false
information, and the probable cause is not there because of the officer’s lied [sic] or were
incredible sloppy, [sic] the evidence gets suppressed” – suggested that a court had already
reviewed the matter and because the jury heard evidence from defendant’s Facebook
account that was the fruit of the search warrant, a judge had already determined
Gregory’s veracity.
Beyond the record lacking evidence explaining the process for traversing search
warrants and the judicial determination as to Gregory’s veracity implied by the
prosecutor, the prosecutor’s statement was also misleading on the law. “A defendant has
a limited right to challenge the veracity of statements contained in an affidavit of
probable cause made in support of the issuance of a search warrant. The trial court must
19 While our high court recently discussed the prohibition against arguing facts not in
evidence in Rodriguez, the prohibition is not new. Indeed, the California District
Attorney’s Association ethics manual references this prohibition. It warns: “Referencing
to facts not in evidence also constitutes misconduct. ‘[S]uch statements tend to make the
prosecutor his own witness – offering unsworn testimony not subject to cross-
examination.’ ” (CDAA (2016) Professionalism, A Sourcebook of Ethics and Civil
Liability Principles for Prosecutors, Ch. X, p. 16.)
53
conduct an evidentiary hearing only if a defendant makes a substantial showing that (1)
the affidavit contains statements that are deliberately false or were made in reckless
disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements
are excised, are insufficient to support a finding of probable cause. Innocent or negligent
misrepresentations will not support a motion to traverse.” (People v. Scott (2011) 52
Cal.4th 452, 484 (Scott), citing Franks v. Delaware (1978) 438 U.S. 154, 154-156 [57
L.Ed.2d 667] & People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.) “[T]he
defendant must make his showing by a preponderance of the evidence, and the affidavit
is presumed valid.” (Scott, at p. 484.) In other words, no evidence is suppressed if
misrepresentations are innocent or negligent. Nor is evidence suppressed if the warrant
can be corrected to omit intentionally false information and probable cause remains.
While the prosecutor briefly mentioned “and the probable cause is not there,” his
comment was misleading as to the “correct and retest” mechanism in the law. Even if
there had been a motion to traverse, a trial court could have found Gregory lied and still
not suppressed the evidence. Indeed, it does not appear that whether both the defendant’s
pants and underwear were down when he came out of the bushes was material enough to
have vitiated the probable cause for the warrant. Indeed, under such circumstances a
defendant may opt not to move to traverse a warrant and as a consequence, there would
have been no pretrial determination about Gregory’s veracity by the trial court
whatsoever.
Thus, the prosecutor’s statement both argued facts not in evidence and was a
misleading on the law. We conclude that there appears to be no satisfactory explanation
for counsel’s failure to register these specific objections or to request an admonition.
(See Ledesma, supra, 43 Cal.3d at p. 218.) Therefore, we conclude that defendant’s trial
attorneys’ performance was deficient for failure to register a specific objection on these
grounds to the prosecutor’s statement and request an admonition.
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b. Prejudice
We conclude, however, that defendant was not prejudiced as a result of his
attorneys’ deficient performance in this regard.
The remark was isolated and had little relevance to any issue the jury was required
to resolve. The trial court instructed the jury that the attorneys’ remarks are not evidence
(CALCRIM Nos. 104, 222), and that the jury alone must judge the credibility of the
witnesses (CALCRIM Nos. 105, 226). “The jury is presumed to have followed the trial
court’s instructions in the absence of any indication it was unwilling or unable to do so.”
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 196.)
Moreover, the jury’s verdict on the charged sex offense further shows the
prosecutor’s comment did not prejudice defendant. The credibility contest here was
between Jane Doe and defendant. Gregory’s testimony had no impact. The jury rejected
the sex offenses, so whether defendant was seen with both his pants and underwear down
turned out to be of no consequence. Indeed, Lefkowitz told the jury defendant’s
underwear was not down. In the end, the jury returned an assault verdict that was
consistent with defendant’s own testimony and reflected a rejection of the prosecution’s
central theory. And as we have noted, the kidnapping and false imprisonment
convictions were supported by Lefkowitz’s testimony concerning where he saw
defendant and Jane Doe emerge from the bushes relative to the street and her condition at
the time.
We conclude that defendant has not shown there is a reasonable probability he
would have received a more favorable result had trial counsel provided specific
objections to the prosecutor’s improper remarks. (Strickland, supra, 466 U.S. at pp. 693-
694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) Therefore, defendant has failed to show
prejudice.
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2. Remarks Regarding the Voluntariness of Jane Doe Testimony
a. Deficient Performance
In rebuttal, the prosecutor argued: “a moment ago [trial counsel] pointed out that
[defendant] didn’t have to talk to you, didn’t have to come and tell his story. That’s
absolutely true. But neither did Jane Doe. She didn’t have to come and testify. We can’t
throw her in jail if she refuses. So she came here and had the courage to sit on the stand
and look at you and tell you her story.” (Italics added.)
This statement argues facts not in evidence. There is no evidence indicating
whether Jane Doe appeared pursuant to a subpoena compelling her appearance or
whether she appeared voluntarily. Nor is there evidence indicating Jane Doe knew she
had a choice not to testify. And there was no evidence in the record indicating the
prosecutor could not “throw her in jail” if she refused to appear or testify. To be sure,
Code of Civil Procedure section 1219, subdivision (a), shields sexual assault victims from
contempt for refusing to testify.20 But that provision in law is beyond common
knowledge.
The prosecutor’s argument was clearly improper. And there appears to be no
satisfactory explanation for counsel’s failure to object. (See Ledesma, supra, 43 Cal.3d
at p. 218.) Trial counsels’ performance in failing to object to the remark was deficient.
The Attorney General asserts that the remarks addressed by the prosecutor were
directly responsive to trial counsel’s closing argument, in which he “lauded [defendant]
for taking the stand.” The Attorney General asserts that the prosecutor merely reminded
the jury that, to the extent that defendant deserved credit for his willingness to testify, so
20 Code of Civil Procedure section 1219, subdivision (b), provides in pertinent part: “a
court shall not imprison or otherwise confine or place in custody the victim of a sexual
assault . . . for contempt if the contempt consists of refusing to testify concerning that
sexual assault . . . .”
56
too did Jane Doe. To an extent this is true. However, the prosecutor exceeded merely
responding, permissibly, to trial counsel’s argument by arguing facts not in evidence.
b. Prejudice
Defendant has failed to establish prejudice. To say that it took courage to testify is
both a fair comment on the evidence and a statement of the obvious. The fleeting
comment concerning the prosecutor’s inability to compel Jane Doe’s testimony was
inconsequential. It is not reasonably probable that, had trial counsel objected, defendant
would have achieved a more favorable result.
Defendant emphasizes the concerns regarding Jane Doe’s credibility, including her
criminal history and her denial of part of that history, her drug use, and evidence relevant
to her character for dishonesty offered by Imogean. Defendant maintains that the
prosecutor’s remark, and indeed each of his remarks cited by defendant, shored up Jane
Doe’s otherwise questionable credibility. The Attorney General responds that trial
counsel cross-examined Jane Doe extensively on her criminal history, drug use, and prior
inconsistent statements. The defense also presented evidence addressed to Jane Doe’s
credibility and honesty. We are of the opinion that the prosecutor’s remark did not
significantly impact Jane Doe’s credibility. Again, even with the prosecutor’s improper
remarks, the jury’s verdicts indicated it rejected much of Jane Doe’s testimony. Instead,
it returned verdicts that are consistent with defendant’s own testimony and other evidence
the jury heard.
Defendant has failed to establish there is a reasonable probability he would have
received a more favorable result had trial counsel objected to the prosecutor’s improper
argument. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at
pp. 217-218.)
57
3. Remarks Suggesting Defendant Had Other Victims
a. Deficient Performance
The third instance of prosecutorial misconduct is the most disturbing. In rebuttal,
the prosecutor argued: “They groom people. Just because there haven’t been any
identified or come forward or there’s been no other arrests or prosecutions, doesn’t mean
there’s not more victims out there. It’s possible that we just haven’t found them yet. We
know this from Dr. Atwal’s -- when Dr. Atwal talked about Harvey Weinstein, we know
this from Jerry Sandusty. [sic] We know about this from Bill Cosby, everyone. There’s
some of their closest friend [sic] are shocked when they discover what these people are
capable of.” (Italics added.)
In Fuiava, supra, 53 Cal.4th 622, upon which defendant relies, our high court
concluded a number of prosecutorial misconduct claims were forfeited. (Id. at pp. 726-
729.) But the court went on to say: “we take this opportunity to comment on an aspect
of the prosecutor’s penalty phase closing argument that, although forfeited as a basis for
reversal on appeal, warrants condemnation. In two instances the prosecutor improperly
suggested to the jury that it speculate regarding aspects of defendant’s violent criminal
history that were not presented at the trial—by describing defendant as a ‘killing
machine’ (although there was no evidence that defendant had killed anyone other than
Deputy Blair), and then, with regard to defendant’s victims, asking that the jury speculate
‘How many others are there?’ ” (Id. at pp. 728-729, italics added.) “Certainly a
prosecutor should not invite the jury to speculate . . . .” (People v. Yeoman (2003) 31
Cal.4th 93, 149.)
There was no evidence presented at trial about other victims. But the prosecutor’s
comment implied facts not in evidence and invited the jury to speculate that defendant
might have committed other acts of sexual misconduct for which he was not
apprehended. In short, the prosecutor invited the jury to speculate that defendant was a
sexual predator in a league with Harvey Weinstein, Jerry Sandusky, or Bill Cosby.
58
“ ‘While counsel is accorded “great latitude at argument to urge whatever conclusions
counsel believes can properly be drawn from the evidence [citation],” counsel may not
assume or state facts not in evidence [citation] or mischaracterize the evidence.’ ”
(People v. Collins (2010) 49 Cal.4th 175, 209, quoting People v. Valdez (2004) 32
Cal.4th 73, 133-134.) The remarks amounted to a sort of burden shifting, imposing on
defendant the burden of proving that there were not other victims out there.21
We consider these remarks to be highly improper and, like our high court in
Fuiava, we condemn such arguments. And we discern no satisfactory explanation for
counsel’s failure to object. (See Ledesma, supra, 43 Cal.3d at p. 218.) Accordingly, we
conclude that defendant’s trial counsel’s performance was deficient for failing to object
to these remarks.
b. Prejudice
The remarks at issue, as improper as they were, were addressed solely to the sex
assault theory of the case. The jury rejected the prosecution’s theory that defendant
committed the offenses for the purpose of raping Jane Doe, and instead returned verdicts
that were consistent with defendant’s testimony about retrieving his methamphetamine
and other evidence not related to the prosecutor’s improper comment. We conclude there
is not a reasonable probability that defendant would have received a more favorable
result had trial counsel’s performance not been deficient in failing to object to these
obviously improper remarks. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma,
supra, 43 Cal.3d at pp. 217-218.)
21 Under Evidence Code section 1108, the prosecution can introduce evidence of other
acts of sexual misconduct, but the burden is on the prosecution to establish such acts by a
preponderance of the evidence. (See CALCRIM No. 1191; People v. Phea (2018) 29
Cal.App.5th 583, 608-609.)
59
4. Prosecutorial Misconduct - Cumulative Prejudice
In assessing the prejudice of multiple instances of prosecutorial misconduct, “we
consider the cumulative effect of [the] misconduct because the number and gravity of
incidents ‘raises the strong possibility the aggregate prejudicial effect of such errors was
greater than the sum of the prejudice of each error standing alone.’ ” (People v. Woods
(2006) 146 Cal.App.4th 106, 117, quoting Hill, supra, 17 Cal.4th at p. 845.) Thus, where
we are considering the forfeited contentions of prosecutorial misconduct under the
framework of ineffective assistance of counsel, we may also consider the cumulative
effect of counsel’s deficient performance. (See generally People v. Smithey (1999) 20
Cal.4th 936, 1017-1018 [considering the cumulative effect of the defendant’s ineffective
assistance of counsel claims and prosecutorial misconduct claims].) As to each of
defendant’s three claims of ineffective assistance of counsel based on failure to object to
prosecutorial misconduct, we have determined that defendant has failed to establish he
was prejudiced by any deficient performance. We further conclude “defendant’s claim
based upon the cumulative effect of ineffective assistance of counsel also must fail.” (Id.
at p. 1017.) Again, the jury rejected the prosecution’s attempt to convince the jury the
crimes here were sexually motivated. Ignoring the prosecutor’s overtures, the jury
returned verdicts consistent with defendant’s own testimony and other evidence in the
case unrelated the prosecutor’s misconduct.
VI. Cumulative Error
Defendant asserts that the cumulative effect of the errors he alleges prejudiced
him, mandating reversal. We reject this contention. The premise behind the cumulative
error doctrine is that, while a number of errors may be harmless taken individually, their
cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-
1237, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176.) Any of
the potential errors identified above “were harmless, whether considered individually or
collectively. Defendant was entitled to a fair trial but not a perfect one.” (People v.
60
Cunningham (2001) 25 Cal.4th 926, 1009.) We have found no prejudice when
considering defendant’s claims separately. Viewed cumulatively, our conclusion is the
same. Defendant was not deprived of a fair trial.
VII. Section 654
A. Defendant’s Contentions
Defendant asserts that the trial court erred in failing to stay punishment for simple
assault pursuant to section 654. He asserts that the simple assault was part of the same
course of conduct that resulted in the kidnapping conviction and under the prosecution’s
theory of the case, the kidnapping and assault were both committed as the means of
accomplishing rape. Defendant further asserts that the jury acquitted him of the offenses
prosecuted under the sex assault theory, embracing defendant’s theory that he had
grabbed Jane Doe and put his fingers down her throat in an effort to retrieve his
methamphetamine.
B. Section 654 Sentencing Principles
Section 654, subdivision (a), provides in part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
“Section 654 precludes multiple punishments for a single act or indivisible course of
conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “ ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331, 336
(Correa).) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’
which were independent of and not merely incidental to each other, he may be punished
for each statutory violation committed in pursuit of each objective, ‘even though the
61
violations shared common acts or were parts of an otherwise indivisible course of
conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
When section 654 applies, the trial court must impose a sentence and then stay the
execution of that sentence, the stay to become permanent upon defendant’s service of the
portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v.
Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Alford (2010) 180 Cal.App.4th
1463, 1469; People v. Salazar (1987) 194 Cal.App.3d 634, 640; People v. Niles (1964)
227 Cal.App.2d 749, 755-756; 1 Couzens et al., Sentencing Cal. Crimes (The Rutter
Group 2018) § 13:10, p. 13-51.) A concurrent sentence is still punishment; thus, it is
improper to run the sentence concurrently. (Duff, at p. 796; Alford, at p. 1468; Couzens,
at p. 13-51.)
C. Analysis
We conclude that the concurrent sentence imposed on count 2, simple assault, was
an illegal sentence. The trial court should have imposed sentence on that count, but
stayed execution of the sentence pursuant to section 654.
The prosecution argued that defendant kidnapped and assaulted Jane Doe to rape
her. The defense argued defendant had a different reason for his conduct. Given the
jury’s verdicts, we agree with defendant that the jury embraced his theory that he grabbed
Jane Doe and put his fingers down her throat to retrieve his methamphetamine. The
evidence upon which the jury necessarily based its verdict concerning the movement of
Jane Doe established that the asportation element of the kidnapping was done to facilitate
defendant’s attempted retrieval of the methamphetamine. Thus, the evidence upon which
the jury based its verdict with regard to the kidnapping and assault, established that these
actions were incident to defendant’s one objective—to retrieve his methamphetamine—
and therefore he may be punished for the most serious of these two offenses, but not both.
(§ 654; Correa, supra, 54 Cal.4th at p. 336.) We discern no evidence, consistent with the
jury’s verdict, that supports the conclusion that defendant had a separate intent or purpose
62
in kidnapping and assaulting Jane Doe. Accordingly, we will order execution of the
sentence imposed on count 2 be stayed pursuant to section 654.
VIII. Ability to Pay Fines and Fees
At sentencing, the trial court expressed concern about defendant’s ability to pay
fines and fees, and therefore elected to “order the minimal amount for the restitution fine
under . . . Section 1202.4(b),” or $300, and a parole revocation fine in the same amount
pursuant to section 1202.45. The court also ordered a $40 court operations assessment
under section 1465.8 and a $30 conviction assessment pursuant to Government Code
section 70373 as to each of defendant’s three convictions. The court ordered victim
restitution in the amount of $150. The court found defendant lacked the ability to pay for
the presentence investigation report fee.
Defendant asserts that remand is required for the trial court to hold a hearing on
his ability to pay the restitution fine (§ 1202.4, subd. (b)), the court operations assessment
(§ 1465.8), and the conviction assessment (Gov. Code, § 70373). Defendant relies on
Dueñas, supra, 30 Cal.App.5th 1157, decided almost exactly one year after defendant’s
sentencing, which held due process requires the trial court to stay execution of restitution
fines, as well as court operation and conviction assessments, until it has held a hearing
and determined the defendant has the present ability to pay.
We are of the opinion that Dueñas was wrongly decided and hold that defendant
was not entitled to an ability to pay hearing. (People v. Kingston (2019) 41 Cal.App.5th
272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, review granted, Nov. 26,
2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019)
39 Cal.App.5th 917, 923-929.)
DISPOSITION
The conviction of felony false imprisonment (§ 236, subd. (a)) and the true finding
on the personal infliction of great bodily injury enhancement allegation (§ 12022.7, subd.
(a)) attached to the felony false imprisonment conviction are reversed and the sentences
63
imposed thereon vacated. Execution of the six-month sentence imposed on count 2,
assault (§ 240), is stayed pursuant to section 654. As so modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
64