P. v. Ayala

Filed 10/23/06 P. v. Ayala CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ruben David Ayala was convicted by jury of forcible rape with great bodily injury (Pen. Code, §§ 261, subd. (a)(2); 12022.8)^[1] and unlawful sexual intercourse with a minor under the age of 16 (§ 261.5, subd. (d)) with special findings that he inflicted great bodily injury (§12022.7). Sentenced to 13 years state prison, he appeals contending, among other things, that the trial court committed evidentiary and instructional error. We affirm.

Facts

On August 9, 2002, 14-year-old Jennifer B. phoned a "party line," similar to an internet chat room, and spoke to appellant. Appellant, age 27, identified himself as Eric and gave Jennifer his telephone number. Jennifer called appellant that evening, said that she was 15 years old, and exchanged addresses. Appellant said that he was 18 years old.

The next day, appellant picked Jennifer up, drove her to the beach, and walked her to a dunes area. Appellant touched her breasts, but Jennifer said that she did not want to have sex. Appellant pushed Jennifer down, straddled her, and called her "a little bitch." He pulled down her underwear as she kicked and struggled, and put his penis in her vagina. This caused vaginal bleeding. Jennifer managed to kick him off but appellant reinserted his penis and ejaculated. On the ride home, appellant was concerned that Jennifer could get pregnant and suggested that she get a "72-hour pill." Appellant said that he had lied, that his name was Ruben, and that he was 24 years old. Appellant called Jennifer a "little 'ho" and drove off.

On Monday, August 12, 2003, appellant telephone Jennifer and asked if she wanted to go to a medical clinic. Appellant drove Jennifer to an Oxnard clinic and told her to use a false name, address, phone number, and birth date. Appellant left while she was talking to a counselor.

On February 3, 2004, Jennifer told her mother that she had been raped and was pregnant. Jennifer gave the police appellant's address, his telephone number, his license plate number, and identified appellant in a photo lineup.

On July 31, 2004, Jennifer made a monitored phone call to appellant. Appellant denied knowing her and hung up. Oxnard Police Department detectives went to appellant's house later that day and interviewed him. Appellant denied knowing Jennifer or having sex with her. When appellant turned and ran, the officers arrested him.

At trial, it was stipulated that Jennifer gave birth to a baby girl on September 2, 2003, and that DNA tests showed, to a 99.9 percent probability, that appellant was the father of the baby.

Appellant defended on the theory that the sex was consensual. He claimed that Jennifer told that him she was 18 years old.

Great Bodily Injury

Appellant argues that the trial court erred in instructing that rape resulting in pregnancy is great bodily injury within the meaning of sections 12022.7 and 12022.8. The jury received a CALJIC 17.20 instruction which stated that the term " '[g]reat bodily injury'. . . means a significant and substantial physical injury." The trial court also gave Special Instruction No. 1, modeled after People v. Sargent (1978) 86 Cal.App.3d 148, which stated: "The bodily injury involved in a pregnancy . . . is significant and substantial. Pregnancy can not be deemed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or

damage. . . . Major physical changes take place at the time of pregnancy. It involves significant bodily impairment primarily affecting a woman's health and well being. Pregnancy can have one of three results -- childbirth, abortion, or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a woman's body. A miscarriage speaks for itself."

Appellant did not object, waiving any claim of instructional error. (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Catlin (2001) 26 Cal.4th 81, 149.) Appellant's assertion that the instruction prejudiced his constitutional right to a fair trial was also waived. (See e.g., People v. Farnam (2002) 28 Cal.4th 107, 165 [constitutional claims forfeited by failing to raise claim at trial]; People v. Bolin (1998) 18 Cal.4th 297, 326.)

Waiver aside, the jury was correctly instructed that pregnancy resulting from rape constitutes great bodily injury. (People v. Sargent, supra, 86 Cal.App.3d at p. 151.) "Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse. [Citations.]" (People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1131.) Because the instruction was a correct statement of the law based on the facts presented, it follows that trial counsel was not ineffective in failing to object to the instruction. "Defense counsel is not required to advance unmeritorious arguments on the defendant's behalf. [Citations.]" (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)

Although the California Supreme Court has granted review to consider whether a rape victim's pregnancy and abortion constitutes great bodily injury (People v. Cross (2005) 134 Cal.App.4th 550, review granted March 1, 2006, No. S139791), there is no reason to deviate from the holding in People v. Sargent, supra, 86 Cal.App.3d at page 151: "Pregnancy cannot be termed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or damage. . . It involves a significant bodily impairment primarily affecting a woman's health and well being. It is all the more devastating when imposed on a woman by forcible rape."

Directed Verdict

Appellant argues that Special Instruction No. 1 lightened the prosecutor's burden of proof and was the functional equivalent of a directed verdict. We disagree. The instruction was a definitional instruction and stated that pregnancy "amounts to significant and substantial bodily injury." " 'In instructing a jury it is proper for a trial court to explain and define terms which might otherwise lead to confusion.' [Citation.]" (People v. Dimitrov (1995) 33 Cal.App.4th 18, 26.) Here the special instruction stated that pregnancy by rape constitutes a significant and substantial bodily injury. It did not direct the jury to return a true finding on the great bodily injury enhancement. (See e.g., People v. Runnion (1994) 30 Cal.App.4th 852, 856-857 [instruction that "firearm" includes "handgun" not a directed verdict on firearm enhancement]; People v. Brown (1988) 46 Cal.3d 432, 443 [instruction that "Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers" not a directed verdict on special circumstance allegation].

In People v. Villarreal (1985) 173 Cal.App.3d 1136, an assault victim suffered broken teeth and multiple bone fractures, was hospitalized five days, and underwent surgery. The trial court instructed: " 'A bone fracture constitutes a substantial and significant physical injury within the meaning of Penal Code section 12022.7.' " (Id., at p. 1139.) The Court of Appeal held that the instruction "was properly given because a bone fracture, under the circumstances of this case, as a matter of law, '. . . constitutes a substantial and significant injury within the meaning of Penal Code section 12022.7' ." (Id., at p. 1139-1140.)

Our courts have held that rape resulting in pregnancy constitutes great bodily injury. (People v. Sargent, supra, 86 Cal.App.3d at p. 151; People v. Superior Court (Duval), supra, 198 Cal.App.3d at p. 1131.) The special instruction was proper because, under the circumstances of this case, the forcible rape caused the victim to suffer substantial bodily injury. Unlike People v. Villarreal, supra, the jury was not instructed that pregnancy, as a matter of law, constitutes a substantial and significant injury with the meaning of section 12022.7. (See People v. Nava (1989) 207 Cal.App.3d 1490, 1498 [distinguishing People v. Villarreal, supra, on the ground that a broken bone does not, as a matter of law, always constitute great bodily injury].

The special instruction was given in conjunction with CALJIC 17.20 which stated: "If you find the defendant guilty, you must determine whether the defendant personally inflicted great bodily injury on Jennifer B[.] in the commission of the crime. 'Great bodily injury,' as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. The People have the burden of proving the truth of this [great bodily injury] allegation. If you have a reasonable doubt that it is true, you must find it to be not true." Based on the instructions given, the jury was free to determine whether Jennifer suffered a significant or substantial physical injury.

We conclude that the alleged error in giving Special Instruction No. 1 was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 9, 18 [144 L.Ed.2d 35, 47, 53]; People v. Flood (1998) 18 Cal.4th 470, 502-503.) The evidence showed that Jennifer was a virgin, that appellant raped and impregnated Jennifer, that she suffered from vaginal bleeding and bruises as a result of the rape, and that she had a long, difficult and painful childbirth. Rape resulting in a torn hymen is a significant physical injury within the meaning of section 12022.7. (People v. Williams (1981) 115 Cal.App.3d 446, 454-455.)

The evidence was overwhelming and clearly supported the great bodily injury enhancement. The alleged instructional error, if any, was harmless and did not deny appellant a fair trial. (People v. Flood, supra, 18 Cal.4th at pp. 502-503.)

Nonspouse Victim

Appellant argues that the evidence fails to show that Jennifer was "not the spouse of the perpetrator" within the meaning of section 261 and section 261.5. In order to convict for rape or unlawful sexual intercourse with a minor, the prosecution had to prove that Jennifer was not married to appellant. (CALJIC 10.00 & CALJIC 10.40.2.)

Jennifer's unmarried status was established by circumstantial evidence. (See e.g., People v. Prieto (2003) 30 Cal.4th 226, 245.) Jennifer was a 14-year-old virgin, lived with her mother, and met appellant on a phone party line the day before the rape. It was uncontroverted that she did not know appellant's true name or age until after the rape. Substantial evidence supported the finding that Jennifer was a date-rape victim and not married to appellant.

Miranda

Appellant argues that the trial court erred in finding that appellant was not in custody when the police interviewed him at his house. Advisement and waiver of Miranda rights (Miranda v. Arizona, (1966) 384 U.S. 436) are required only when a person is subjected to a custodial interrogation. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.) "Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] . . . Although no one factor is controlling, the following circumstances should be considered: '(1) [W]hether the suspect has been formally arrest; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.' [Citation.]" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)

After Jennifer made a monitored call, Detectives Giles and Detective Whitney went to appellant's residence with a third officer. Appellant answered the door and agreed to step outside and talk. Appellant denied knowing Jennifer. When asked if he had sex with a girl on the beach, appellant stepped backwards and ran. The officers detained appellant and advised him of his Miranda rights, which appellant refused to waive.

Substantial evidence supported the finding that appellant's statements were free, voluntary, and not the product of a custodial interrogation. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) Appellant agreed to speak to the officers, was free to leave, and was not handcuffed or restrained. There was no evidence of police intimidation, coercion or deception. Nor was the questioning lengthy, abusive, or deceitful. A reasonable person, under the same circumstances, would have felt at liberty to not talk to the officers. (Id., at p. 402.) "Absent 'custodial interrogation,' Miranda simply does not come into play. [Citations.]" (People v. Mickey (1991) 54 Cal.3d 612, 648.)

Prior Conviction

Appellant complains that the prosecution used a prior misdemeanor conviction for impeachment purposes. The trial court, over appellant's objection, found that a prior conviction for unlawful sexual intercourse with a 14-year-old (§ 261.5, subd. (d)) was a moral turpitude offense and was admissible to impeach appellant if he testified. There was no abuse of discretion. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

In criminal cases, past conduct that evidences dishonesty or moral turpitude may be used to impeach a witness if it has some logical bearing on the witness's veracity. (People v. Wheeler (1992) 4 Cal.4th 284, 295-297; People v. Castro (1985) 38 Cal.3d 301, 316.) Unlawful sexual intercourse with a minor is a moral turpitude offense and may be used for impeachment purposes. (See People v. Fulcher (1987) 194 Cal.App.3d 749, 753-754 [prior misdemeanor conviction for statutory rape demonstrates moral turpitude]; see also People v. Chavez (2000) 84 Cal.App.4th 25, 28-30 [misdemeanor sexual battery a crime of moral turpitude]; People v. Massey (1987) 192 Cal.App.3d 819, 823 [lewd touching of a child].)

Here the prior conviction was based on a sex offense committed less than a year before Jennifer's rape. The trial court reasonably concluded that the prior conviction was relevant, not remote in time, and had probative value. It implicitly considered the traditional factors governing the relevancy of a prior conviction, i.e., (1) the extent to which the prior conviction reflected adversely on appellant's veracity; (2) the remoteness of the prior conviction; (3) the similarity between the impeachment conviction and the crimes charged; and (4) and the likelihood appellant would not testify out of fear of being prejudiced if the prior conviction came to light. (People v. Beagle (1972) 6 Cal.3d 441, 453.) The court was not required to explicitly state that it had considered each of those factors in determining that the prior conviction was admissible. (People v. Garcia (1998) 201 Cal.App.3d 324, 330-331.)

Appellant argues that the trial court failed to expressly find that the probative value of the prior conviction evidence outweighed the potential for prejudice. (Evid. Code, § 352.) Before trial, the trial court found that the prior conviction, "subject to a 352 analysis, of course, would be admissible to impeach the defendant, should he testify." The trial court stated that it was "a tentative ruling. We can revisit it if the facts turn out to be different."

Before appellant was cross-examined, counsel reargued the admissibility of the misdemeanor conviction. The trial court stated: "We've covered this before on a tentative basis. The case is clear that this kind of a prior conviction does tend to show moral turpitude; that it is admissible to impeach the defendant . . . . I think it does have also some relevance to perhaps offer other explanations for some of the things that Mr. Ayala has testified that he did, the reasons that he did that. So it is admissible to impeach."

After appellant testified, that the trial court "noted that I had neglected to put on the record my 352 determination. You all had agreed that that could wait a while. My determination is that the probative value of the defendant's prior conviction substantially outweighs any prejudicial effect it might have here in this case. I think it's important for the jurors to know about that prior to properly evaluat[e] Mr. Ayala's credibility."

The trial court clearly understood and fulfilled its responsibilities under Evidence Code section 352. (People v. Garceau (1993) 6 Cal.4th 140, 182.) "[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so." (People v. Williams (1997) 16 Cal.4th 153, 214.)

Appellant asserts that the trial court erred in overruling his hearsay objection because Evidence Code section 788 only provides that felony convictions are admissible. (In People v. Wheeler (1992) 4 Cal.4th 284, 300, our Supreme Court held that evidence of a misdemeanor conviction, whether documentary or testimonial, is hearsay. The court stated: "Our holding is a narrow one, confined to the specific issue whether under current law a misdemeanor conviction is admissible as direct evidence of criminal conduct. Nothing in the hearsay rule precludes proof of impeaching misdemeanor misconduct by other, more direct means, including a witness's admission on direct or cross-examination that he or she committed such conduct." (Id., at p. 300, fn. 14.)

That procedure was followed here. On cross-examination, appellant admitted that he had a prior conviction for sexual intercourse with a girl under the age of 16. (§ 261.5, subd. (d).) Appellant stated that he was mistaken about the girl's age, and on redirect, stated that "I made a mistake and took responsibility for that." The trial court gave a limiting instruction.^[2]

The alleged error, if any, in questioning appellant about the prior conviction was harmless. (See People v. Lang (1989) 49 Cal.3d 911, 1011-1013 [erroneous admission of prior convictions harmless; prosecution presented strong case and defendant's credibility otherwise suspect].) Jennifer identified appellant by name, phone number, address, license plate number, the color of his vehicle, and in a photo lineup. Recorded phone calls were made to appellant and DNA tests established that appellant was the father of the child. At trial, appellant admitted lying to Jennifer and to the police. He was also impeached by his out-of-court statements.

Sentencing Hearing

Appellant finally argues that the trial court erred in not granting his request to appoint new counsel. Appellant retained Attorney David Follin to represent him at trial and was dissatisfied with the outcome.

After the verdict was entered on March 22, 2005, the matter was calendared for sentencing. At the April 27, 2005 sentencing hearing, appellant requested a continuance to review the probation report, schedule a psychological exam, and because his parents planned to hire a new attorney. The trial court, over the prosecution's objection, continued the hearing to June 30, 2005, but warned: "If new counsel is to substitute in, that counsel is going to have to do so with the understanding that the Court is going to proceed with [appellant's] sentencing."

On June 30 2005, appellant appeared with Attorney Follin and requested that the public defender be appointed. Appellant said that he no longer had "faith" in counsel and that his family had not hired a new attorney.

The trial court found that it was a delay tactic, that Attorney Follin was ready to proceed with the hearing, and that a continuance would prejudice the prosecution and inconvenience the victim and witnesses who were there to address the court.

Appellant stated that he wanted to represent himself. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).) After the trial court advised him of the dangers and disadvantages of self-representation, appellant said that he wanted to be represented by the public defender. The trial court denied the request because the public defender declared a conflict before trial.

The trial court granted appellant two recesses to fill out a waiver of counsel form and discuss the matter with his family.^[3] When appellant was questioned about his decision to represent himself and potential prison terms, appellant stated that he wanted an attorney "to look at my best interests." The trial court denied the request.

Appellant argues that a criminal defendant may discharge retained counsel with or without cause at any time. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) The trial court, however, may deny the request where the defendant is attempting to discharge his attorney to delay the proceedings. (Id., at p. 153.)

That is the case here. Appellant changed attorneys four times before trial, was granted a two month continuance for sentencing, and was warned that he had to be ready for sentencing on June 30, 2005. Appellant requested appointment of the public defender, knowing that the public defender had already declared a conflict, and vacillated on his Faretta request. Appellant claimed that he had lost "faith" in his attorney but there was no evidence that Attorney Follin was unable to represent appellant or proceed with the sentencing hearing.

The trial court did not abuse its discretion in denying appellant's request for new counsel or, in the alternative, to represent himself. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.) The record clearly shows that the request for new counsel was untimely, brought in bad faith, and intended to further delay the proceedings. "[V]acillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 22.)

Appellant's remaining arguments have been considered and merit no further discussion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

James Cloninger, Judge

Superior Court County of Ventura

______________________________

Robert C. Kasenow, II; Wallin & Klarich, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated.

^[2] The jury was instructed: "Evidence has been introduced for the purpose of showing that a witness engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may consider in weighing the testimony of that witness." (CALJIC 2.23.1.)

^[3] Appellant filled out and signed a "Waiver of Attorney" but stated that he wanted a lawyer.