Filed 2/23/21 P. v. McKenzie CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302242
(Super. Ct. No. GA101998)
Plaintiff and Respondent, (Los Angeles County)
v.
RONALD MELVIN
MCKENZIE,
Defendant and Appellant.
Ronald Melvin McKenzie appeals from the judgment
after a jury convicted him of five counts of lewd acts on a child
(Pen. Code,1 § 288, subd. (a); counts 2–5 & 19), four counts of
possession of child pornography with a prior conviction requiring
registration under the Sex Offender Registration Act (§ 311.11,
subd. (b); counts 6–9), and four counts of oral copulation or sexual
penetration of a child under 10 years old (§ 288.7, subd. (b);
counts 10, 13, 15, & 17). The jury also found true an allegation
1 Statutory references are to the Penal Code.
that McKenzie had previously been convicted of child molestation
(§ 647.6). The trial court sentenced him to 15 years to life in
state prison plus eight years.
McKenzie contends the judgment should be reversed
because: (1) the prosecutor committed misconduct, (2) the trial
court denied him the right to stipulate to and sanitize his prior
conviction, and (3) these errors, considered cumulatively, denied
him a fair trial. He also contends the convictions on counts 7–9
must be vacated. We vacate McKenzie’s convictions on counts 7–
9, and otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
McKenzie sexually abused his daughter for more
than four years, beginning when she was five years old. He put
his tongue in her mouth. He sucked on her breasts and licked
her vagina. He took pictures of her naked body, made her watch
pornography, and forced her to orally copulate him.
Police arrested McKenzie and searched his computer.
They extracted hundreds of images of child pornography from the
computer, including dozens showing him engaged in sexual acts
with his daughter. They also found pornographic images on his
cell phone, including one showing a man’s hand digitally
penetrating his daughter.
Prosecutors charged McKenzie with five counts of
lewd acts on a child, four counts of possession of child
pornography with a prior, and four counts of oral copulation or
sexual penetration of a child. They also alleged that McKenzie
had previously been convicted of child molestation, an offense
that required him to register as a sex offender. (See § 290, subd.
(b).)
2
Prior to trial, defense counsel requested bifurcation
on the issue of whether McKenzie had suffered a prior conviction
that required him to register as a sex offender, and suggested
that he would waive jury trial on the issue. The trial court said
that bifurcation was not permitted because the conviction was an
element of possession of child pornography with a prior, and
asked if McKenzie wanted to stipulate to the conviction instead.
Defense counsel asked to discuss the matter with McKenzie. The
court said that he could do so and told the prosecutor to “[f]inish
your proof up to the point of proving up the prior . . . . [¶] And
then we’re going to . . . pause for a moment and let [counsel] talk
to [McKenzie].”
When testimony resumed, the prosecutor asked a
detective if he had asked McKenzie if he was required to register
as a sex offender. Defense counsel objected. During a conference
at sidebar, the trial court told the prosecutor, “I thought we had
agreed that before you went into this, you were going to give
[defense counsel] an opportunity to talk to [McKenzie].” Defense
counsel reiterated that he wanted to speak with his client. The
court then clarified to the prosecutor: “This is what I was trying
to convey, imperfectly. What I wanted you to do was finish the
examination with this officer up to the point where . . . you’re
planning on proving up the prior . . . . Then we were going to
stop.”
The prosecutor responded that any “stipulation would
have to include that [McKenzie is] a 290 registrant. And [defense
counsel] has already indicated to me that [he] will not stipulate to
anything that . . . include[s] that language. So . . . there’s no need
to have a conversation because I’m not going to stipulate without
it.”
3
Defense counsel disagreed that McKenzie was
unwilling to stipulate to the prosecutor’s proposed language, and
again stated his desire to discuss the issue. After their
discussion, counsel said that McKenzie would stipulate to his
prior conviction. The prosecutor proposed that McKenzie
stipulate that he “has a prior conviction that required him to
register . . . as a sex offender” pursuant to section 290. When the
trial court asked whether McKenzie would accept the proposed
stipulation, he did not respond. The court concluded that the
parties could not agree, and the detective’s testimony resumed.
The prosecutor asked the detective if he had spoken
with McKenzie about his prior conviction that required him to
register as a sex offender. The detective said that he had, and
that McKenzie admitted to him that he was convicted of
molesting his then-girlfriend’s daughter in 1990. The trial court
admonished the jury that it could consider the detective’s
testimony solely to determine whether McKenzie had previously
been convicted of an offense requiring him to register as a sex
offender.
Jurors convicted McKenzie of all charges, and found
true the allegation that he was previously convicted of child
molestation. The trial court sentenced him to 15 years to life in
state prison on his oral copulation or sexual penetration
convictions, a consecutive eight years on the lewd act convictions,
and a concurrent six years on the child pornography convictions.
DISCUSSION
Prosecutorial misconduct
McKenzie contends the prosecutor committed
misconduct when he asked about McKenzie’s prior child
molestation conviction before McKenzie had the opportunity to
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confer with counsel, in violation of the trial court’s order. This
contention lacks merit.
“‘A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct.’” (People v.
Friend (2009) 47 Cal.4th 1, 29 (Friend).) “‘[S]uch 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.]’” (Ibid.) “‘Under state law,
a prosecutor who uses such methods commits misconduct even
when those actions do not result in a fundamentally unfair trial.’
[Citation.]” (Ibid.) Misconduct is prejudicial under state law “if
there was a ‘reasonable likelihood of a more favorable verdict in
the absence of the challenged conduct’ and under federal law if
[it] was not ‘harmless beyond a reasonable doubt.’ [Citation.]”
(People v. Rivera (2019) 7 Cal.5th 306, 334.)
There was no misconduct here. The prosecutor’s
question did not deny McKenzie the opportunity to stipulate to
and sanitize his prior conviction; as we explain in the section
below, he was not entitled to do so. But even if we assume
misconduct, it was not prejudicial. Defense counsel objected to
the question as soon as the prosecutor asked it, and before the
detective could answer, minimizing any potential for harm.
Moreover, the prosecutor asked the detective the same question—
without objection—after McKenzie had conferred with counsel. It
was only after this question that the detective told jurors about
McKenzie’s prior conviction. McKenzie does not explain why the
former question was unduly prejudicial while the latter question
and answer were not.
5
Stipulation to prior conviction
McKenzie next contends the trial court erred when it
denied his request to stipulate to “a prior conviction that required
him to register under section 290” and instead permitted the
prosecutor to present testimony about his child molestation
conviction to the jury. But McKenzie did not respond when the
court asked whether he would stipulate that he has a prior
conviction that requires him to register as a sex offender. He
thus cannot now claim that the trial court erred. (People v. Perez
(1979) 23 Cal.3d 545, 549, fn. 3 [doctrine of invited error prevents
party from asserting error when their “‘own conduct induces the
commission of error’”].)
Even if he could, a trial court cannot enforce a
proposed stipulation over the prosecutor’s objection. (People v.
Rogers (2013) 57 Cal.4th 296, 329.) And “[a] prosecutor is not
required to stipulate to the existence of any elements of the crime
[they are] attempting to prove where the stipulation will impair
the effectiveness of the . . . case.” (People v. Robles (1970) 2
Cal.3d 205, 213.) Here, a prior conviction for a crime requiring
registration pursuant to section 290 is an element of possession of
child pornography with a prior. (See § 311.11, subds. (a) & (b).)
And child molestation is a crime requiring registration. (See
§ 290, subd. (c).) The prosecutor was thus not required to accept
any proposed stipulation from McKenzie.
This case is unlike People v. Sapp (2003) 31 Cal.4th
240 and People v. Valentine (1986) 42 Cal.3d 170, on which
McKenzie relies. In each of those cases, the defendant’s status as
an ex-felon was an element of the charged offense. (Sapp, at p.
260; Valentine, at p. 176.) Because “only the fact, [and] not the
nature, of any prior ‘conviction’ [was] an ‘element’ of the . . .
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charge” (Valentine, at p. 177), the defendants were permitted to
stipulate to their prior convictions “without specifying the nature
of the felon[ies] committed” (Sapp, at p. 262). Here, in contrast,
the nature of a defendant’s conviction is a “critical element” of
section 290. (People v. Cajina (2005) 127 Cal.App.4th 929, 933.)
It was thus necessary for jurors to know that McKenzie had been
convicted of an offense requiring him to register as a sex offender.
(Id. at p. 934.)
Cumulative prejudice
McKenzie next contends the cumulative prejudice of
the prosecutor’s misconduct and the trial court’s error in refusing
his request to stipulate to and sanitize his prior conviction
requires reversal. But the prosecutor’s misconduct was
nonprejudicial, and the court’s refusal of his request was not
error. McKenzie’s claim of cumulative prejudice accordingly fails.
(People v. Koontz (2002) 27 Cal.4th 1041, 1094.)
Counts 7 through 9
Finally, McKenzie contends, and the Attorney
General concedes, that his convictions on counts 7 through 9
must be vacated because possession of multiple images of child
pornography constitutes a single violation of section 311.11,
subdivision (b). We agree. (People v. Manfredi (2008) 169
Cal.App.4th 622, 633-634; People v. Hertzig (2007) 156
Cal.App.4th 398, 401-404.) Because McKenzie simultaneously
possessed the images that formed the bases of counts 6 through
9, only one conviction is allowed. (Manfredi, at p. 624.)
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DISPOSITION
The convictions on counts 7 through 9 are vacated.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
8
Michael D. Abzug, Judge
Superior Court County of Los Angeles
______________________________
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Blythe J. Leszkay and Peggy Z.
Huang, Deputy Attorneys General, for Plaintiff and Respondent.