P. v. Brownlee

Filed 10/24/06 P. v. Brownlee CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. David M. Mintz, Judge. Reversed.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Michael Brownlee challenges his false imprisonment by violence, criminal threats, and forcible rape convictions on the grounds that permitting the jury to consider prior uncharged sexual assaults violated due process, the trial court erred by refusing to reread the cross-examination requested by the jury, and violated due process by imposing upper, full, consecutive terms on the basis of facts found by the court, rather than the jury. We conclude the jury’s consideration of evidence of a prior sexual assault by appellant did not violate due process. However, the court’s error in refusing to reread the cross-examination testimony, as requested by the jury, requires reversal.

BACKGROUND AND PROCEDURAL HISTORY

Seventeen-year-old Andria R. ran away from a foster home with her infant daughter and began working as a prostitute. Her pimp introduced her to appellant, who attempted to persuade her to work for him as a prostitute. Andria stayed with appellant for about three days, during which he twice raped her.

The jury at appellant’s first trial could not reach a decision. The trial court declared a mistrial. The prosecutor filed an amended information that deleted two forcible rape counts, one pertaining to Andria and one to a second victim.

The jury at appellant’s retrial convicted him of false imprisonment by violence or menace, criminal threats, and two counts of forcible rape. The jury also found that appellant used a knife in the commission of one of the rapes and in making the criminal threat. The trial court sentenced appellant to prison for 29 years.

DISCUSSION

1. The jury’s consideration of evidence of a prior sexual assault by appellant did not violate due process.

Over appellant’s objection, the trial court permitted the prosecutor to introduce evidence of an uncharged sexual assault on S.B. The victim of that assault testified that in 2000, when she was 15, appellant picked her up on the street and took her to a motel. Initially, appellant was nice to her, but became angry with her after she declined his request to work for him as a prostitute. He beat and threatened her, and then raped her repeatedly. He continued to insist she was going to work for him. When he sent her out on the street with another woman to “turn tricks,” she jaywalked to attract the attention of some passing police officers, to whom she revealed her plight.

The jury was instructed with CALJIC No. 2.50.01 regarding the consideration of the prior sexual offense.

Appellant contends that permitting the jury to consider evidence of a prior sexual assault under Evidence Code section 1108 and CALJIC No. 2.50.01 violates due process because it permits the jury to consider propensity evidence as “a critically important link in the evidentiary chain proving his guilt.” Appellant challenges neither the exercise of the trial court’s discretion to exclude the evidence under Evidence Code section 352 nor the adequacy of the instruction.

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). Our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta).) It has also ruled that CALJIC No. 2.50.01, a cautionary instruction explaining the application of Evidence Code section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford).) In light of Falsetta and Reliford, appellant’s contention has no merit.

2. The trial court erred prejudicially by refusing to reread any of Andria’s cross-examination when the jury requested it.

During deliberations, the jury sent the trial court the following note: “We would like to see the transcripts on Andria R. testimony regarding the second allegation of rape and the questions asked by both counsels. TIMELINE. Middle of direct after the fight and before the pink outfit. Cross would have started at the end of first day and start of second day.”

In the presence of the prosecutor, the trial court telephoned defense counsel, who was appearing in a different courthouse. They discussed the jury’s note off the record. On the record, defense counsel objected to the court reporter’s proposed read back: “It appears as though only the prosecutor’s direct examination would be proposed to be read back. And my objection is that although I did not specify the 17th [date of second rape], there was cross-examination questions dealing with the rape. And I think that would be more responsive to the jury’s question.” The court overruled the objection, saying, “The question was very specific. They wanted information and testimony regarding the, quote, second allegation of rape. Though you cross-examined generally about rapes, the question wants information specifically to the second incident. There was no cross that limited it in that manner. Your cross was much more general and did not refer to the second allegation of rape.”

The trial court suggested that defense counsel wanted all of Andria R.’s testimony reread. Defense counsel replied, “Not necessarily, because there were [sic] cross-examination in other areas, such as where she was. How she was being held. Was she beaten, et cetera. But I did ask specific questions with regard to her being raped and what did she do immediately after that. And those are the areas that I would be requesting to be read back to the jury, in conjunction with the testimony that is proposed, which is only the direct examination by the prosecutor.” The court did not modify its original determination.

The trial court subsequently assembled the jury in the courtroom. Before the court reporter began rereading testimony, the court addressed the jury:

“My understanding of the question is that you wanted specific testimony about the second allegation of rape and did not want all of the testimony of Andria R. The court reporter has reviewed the transcript with the attorneys. The only testimony that specifically concerns the second alleged rape is on direct, questions asked by Ms. Batten. She has prepared that and she will read to you that read back. If there is any other part of the testimony -- cross, direct or any other part -- that you would like to have read back, then I’m going to need you to submit another question. We’ll be happy to do that. What I’ll do is have her read back the testimony that I believe is responsive to your question. If that’s what you’re looking for, that’s fine. If there is additional testimony that I did not get and that you wanted, we’re happy to read that back for you as well. Just prepare another question after you hear the readback [sic] if there’s more that you want.”

Appellant contends that the trial court’s refusal to provide a rereading of pertinent portions of the cross-examination violated his rights to due process and trial by jury, in that the rereading was unfair and did not comport with the jury’s request.

Under Penal Code section 1138,^[1] the jury has a right to rehear testimony on request during its deliberations. (People v. Frye (1998) 18 Cal.4th 894, 1007.) Section 1138 is primarily concerned with the jury’s right to be “apprised of the evidence upon which they are sworn conscientiously to act.” (People v. Butler (1975) 47 Cal.App.3d 273, 283-284.) A violation of section 1138 also implicates a defendant’s right to a fair trial. (People v. Frye, supra, 18 Cal.4th at p. 1007.)

The jury’s question specifically asked for testimony about the second rape and “questions asked by both counsels.” It specifically referred to the cross-examination, which, as noted in the question, began at the end of the first day of testimony and resumed at the start of the next day. The trial court overlooked the second part of the request and the specific “timeline” and restricted read back to matters limited to the second rape. This disregarded the jury’s specific request for a rereading of the cross-examination. Even if the court’s restrictive construction of the question were justified, its recall of the cross-examination was incorrect. Defense counsel asked several questions specifically directed to the second rape: whether appellant struck Andria at the time of the second alleged rape; whether she told the police that appellant slapped her repeatedly about her head and body during the rape on the 17th;^[2] whether she showered or “clean[ed] up” after the second rape; and whether appellant touched her breasts with his mouth at the time of the second rape. Moreover, most of the cross-examination, although not specifically directed to the second alleged rape, was pertinent to all of the charges because it pertained to and challenged Andria’s credibility regarding the entire sequence of events, including both rapes. It clearly fell within the jury’s request for a rereading of the cross-examination and was essential to provide a fair presentation of the evidence, rather than a one-sided version. Accordingly, the court erred by refusing to reread any cross-examination.

A conviction will not be reversed for a violation of Penal Code section 1138 unless appellant establishes prejudice. (People v. Frye, supra, 18 Cal.4th at p. 1007.) Although a violation of the statute is reviewed according to the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, a violation of appellant’s federal constitutional right to a fair trial is reviewed according to the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Robinson (2005) 37 Cal.4th 592, 635-636.)

Clearly, a statutory violation occurred. It is less clear whether federal constitutional error occurred. The constitutional right implicated is the right to a fair trial. (People v. Frye, supra, 18 Cal.4th at p. 1007.) A fair trial is an aspect of due process. To find a denial of due process, we must find that the absence of that fairness fatally infected the trial. (Lisenba v. California (1941) 314 U.S. 219, 236.) The acts complained of must be of such quality as necessarily prevents a fair trial. (Ibid.) Determining whether the error fatally infected the trial is virtually coextensive with determining prejudice. It requires consideration of virtually all of Andria’s testimony, especially the portion reread and the cross-examination the court refused to have reread, along with other considerations.

On direct examination, Andria testified she absconded from a group foster home in San Bernardino on February 10, 2004. She took her two-year-old daughter with her. She called her friend Vanessa, who picked her up at a motel. Andria left her daughter with the mother of Vanessa’s pimp, K.D., and began working for K.D. as a prostitute. K.D. beat Andria. Andria used “quite a lot” of marijuana and methamphetamine during this time.

K.D. introduced Andria to appellant. Appellant was friendly, nice and respectful. Andria had decided to give up prostitution and go to her mother’s home, but agreed to take on one final client. She asked appellant to drive her to the client, but changed her mind and asked appellant to drive her and her baby to her mother’s home. Appellant said he had to pick up something, and stopped at a motel. Andria did not object, as she needed to change the baby’s diaper and did not want to be rude. In appellant’s room, they had a long, friendly conversation while waiting for the delivery of a pizza. When appellant asked Andria to work for him as a prostitute, she declined. Appellant became confrontational and insisted she would work for him.

Appellant began to touch Andria. As he removed her trousers and underwear, she said, “No.” He pushed her down onto the bed and held a knife near her head. He penetrated her vagina with his penis, then stopped, saying she smelled. When he told her to douche in the bathroom, she complied. No additional sexual contact occurred that day. Appellant told Andria he would beat her badly if she made noise or tried to run away. He claimed that friends down the hall would keep an eye on her when he was gone.

The next day, appellant slapped Andria’s face twice after they argued. She kicked him in the stomach several times. Later, appellant demanded that Andria work for him as a prostitute, pushed her to the ground, and briefly had intercourse with her. The next day, Andria agreed to work for appellant because she thought she could escape. Appellant gave Andria clothing to wear and dropped her off on the street with a mobile phone. She called her boyfriend, a friend, her father, and her mother. She eventually called appellant to pick her up. He shouted at her for failing to make any money. During the ride back to the motel, Andria’s mother returned her call. Andria told her mother she had dialed the wrong number, but appellant took the phone and had a friendly conversation with Andria’s mother. After Andria gathered her belongings at the motel, appellant dropped her and her daughter off at a supermarket. Andria’s mother picked her up and took her to a police station.

Andria told the police that appellant raped her four times. She admitted this was a lie she told to make appellant look worse.

On cross-examination, Andria testified regarding her drug use immediately before meeting appellant. She admitted that one effect of methamphetamine use was an inability to remember clearly. When she met appellant, she was either high or just coming down. She also had had little sleep. She admitted she lied to the police regarding the number of times she was raped. She repeated this lie to a nurse who conducted a sexual assault examination. She admitted she made up some things and did not “come clean” to the police.

Andria also admitted she lied to the police when she told them appellant slapped her repeatedly on her head and body, as he only slapped her twice, and only on the face. She was confronted with her prior inconsistent testimony that appellant did not beat her at all.

Defense counsel confronted Andria with numerous other prior inconsistent statements. He asked her about her prior statements regarding whether she was going to leave her daughter with appellant while she visited her final client. Her explanation for her prior testimony regarding whether she was willing to leave her daughter with appellant contradicted her testimony at the second trial that she was not willing to do so. Counsel also cross-examined Andria regarding her prior inconsistent testimony about the time she arrived at the motel with appellant. At the second trial, she testified they arrived in the dark, a little before dawn. Previously, she testified it was around 2:00 p.m. and was “clearly afternoon.” She also made a prior inconsistent statement about whether appellant told her she could not leave the motel. Defense counsel also asked Andria about the inherent contradiction between her professed rush to reach her mother’s home and her willingness to visit appellant’s motel room and sit for a prolonged period of time conversing and waiting for a pizza.

Andria testified on cross-examination she did not shower at all during her time with appellant. The examining nurse, Angela Hernandez, testified that Andria told her appellant forced her to shower after the first rape. She also testified that she was with appellant in the motel room for “more than a couple hours” before he touched her, which contradicted her statement to the police that appellant raped her as soon as they got to his motel room.

Andria also testified on cross-examination that she did not attempt to call anyone or leave the motel room in appellant’s absence and that she saw police officers on the night she went out to work for appellant but did not seek their help.

The contrast between Andria’s testimony on direct examination and cross-examination could hardly have been more stark. Although the record does not indicate the specific pages or lines reread to the jury, it is reasonable to infer from the court’s comments to counsel and the jury that the court reporter reread only Andria’s brief direct testimony regarding the second rape. If so, the jury reheard only Andria’s relatively polished telling of the facts tending to establish the elements of rape, without any reminder of her numerous prior inconsistent statements, her admission she lied to the police and nurse regarding the number of rapes, the number of times and places appellant hit her, and other matters uncovered on cross-examination that created significant doubt about her credibility. Had the jury asked solely for Andria’s testimony on direct examination regarding the second rape, this one-sided rereading would probably have been acceptable. However, the jury also requested cross-examination, which was effectively denied by the trial court.

Any attempt to assess the prejudicial effect of the court’s error by reviewing the entire transcript and weighing the evidence is inherently inaccurate, or at least potentially so, in that the jury did not simply hear all of the evidence and evaluate it. It heard a portion that was favorable to the prosecution twice, thereby emphasizing that portion, without the balancing effect of the requested cross-examination. This error is thus not comparable to evaluating the sufficiency of the evidence or the harmfulness of an evidentiary error. Nor can the mere fact that the jury did not inform the court that it misunderstood the request or ask for additional rereading resolve the issue of prejudice. The rereading of Andria’s direct testimony was inherently one-sided and therefore tended to be highly persuasive in the prosecution’s favor. Its receipt could have swayed the jury and led them to conclude they did not require the counterbalancing cross-examination they originally requested. Because Andria’s credibility was crucial to the jury’s determination of appellant’s guilt, we must conclude that the failure to reread the cross-examination fatally infected appellant’s trial with unfairness, i.e., constituted federal constitutional error.

Accordingly, respondent bears the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. 18, 24.) It has not satisfied this burden. Indeed, respondent’s brief did not even address the prejudicial effect of the error. Given the inconsistent statements, contradictions, and implausibilities elicited on cross-examination, and the crucial role of credibility in this trial, we conclude there is ample reason to believe the court’s failure to reread the requested cross-examination contributed to the verdict. Accordingly, we reverse the judgment with respect to all counts, as Andria’s credibility was heavily damaged with respect to every charge by the cross-examination the trial court failed to reread. We therefore do not address the sentencing issue raised by appellant.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] Penal Code section 1138 states, “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

^[2] Appellant was charged with one rape on February 16, 2004 and one on February 17, 2004.