P. v. Cline

 

 

 

 

 

 

 

 

 

 

Filed 8/8/13  P. v. Cline CA4/2

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   FRANK CLINE, JR.   Defendant and Appellant.

E056489   (Super.Ct.No. SWF1100953)   OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Kelly L.
Hansen, Judge.  Affirmed as modified with
directions.

John L. Dodd, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and Melissa Mandel and Eric A. Swenson,
Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Frank Cline, Jr., while drunk, kissed
his 14-year-old cousin; he then ran his hand up her leg, touched her crotch,
and tried to move her underwear out of the way.

After a jury trial, defendant was found guilty of
a lewd and lascivious act on a child aged 14 or 15.  (Pen. Code, § 288, subd. (c)(1).)  In addition, although he was found not guilty
of felony sexual battery with restraint
(Pen. Code, § 243.4, subd. (a)), he was found guilty of the lesser
included offense of misdemeanor battery (Pen. Code, §§ 242, 243, subd.
(a)).  He admitted one “strike” prior.  (Pen. Code, §§ 667, subds. (b)-(i),
1170.12.)

Defendant was sentenced to a total of six years
in prison, along with the usual fines and fees.

Defendant now contends that the trial court erred
by admitting a police officer’s testimony that it is common for there to be
discrepancies in the stories given by child sexual abuse victims, because they
are traumatized.  We will reject this
contention and affirm the conviction.

Defendant also contends that the trial court
erred by limiting his presentence conduct credit to 20 percent.  According to defendant, he is entitled to
credit on a “two-for-two” basis under a version of Penal Code section 4019 that
was enacted after the crimes were committed.

The People concede that the trial court erred by
limiting defendant’s credit to 20 percent. 
According to the People, however, defendant is entitled to credit only
on a “two-for-four” basis, because the “two-for-two” version of Penal Code
section 4019 does not apply to crimes committed before its enactment.

We will hold that the “two-for-two” version of
Penal Code section 4019 does not apply. 
Accordingly, defendant is entitled to some additional credit, but not as
much as he is seeking.

I

FACTUAL BACKGROUND

Given defendant’s contentions on appeal, an
exhaustive review of the evidence is not necessary.  Rather, we provide a brief summary, with
particular emphasis on the discrepancies between the victim’s various accounts
of the crimes.

Jane Doehref="#_ftn1" name="_ftnref1" title="">^[1] and defendant are cousins.  On the night of March 1-2, 2011, Jane and her older brother were at
defendant’s house.  Jane was 14;
defendant was 37.  Defendant was “very
drunk.”

A.        Jane’s Testimony at
Trial.

At trial, Jane testified that she and defendant
were alone in a bedroom together because he was helping her get the DVD player
and television to play a movie.

When defendant finished fixing the DVD player, he
put his arm around the back of Jane’s head so she could not get away and tried
to kiss her.  She moved her head, and he
“barely” managed to kiss her upper lip.

Defendant left the room.  Jane lay down on a bed and watched the movie.

About 10 minutes later, defendant came back in
and sat or lay on the bed, to Jane’s left. 
He ran his left hand up her right leg. 
Twice, she pushed his hand away, but each time he put his hand back even
higher; the third time, it ended up under her shorts, just touching the crease
between her thigh and the outer lip of her vagina.  Defendant tried to move her underwear out of
the way.

Jane got up, ran out to the kitchen, where her
brother was, and told him she wanted to leave.

B.        Jane’s Statement to the
Police the Next Day.

On March
2, 2011, a patrol deputy interviewed Jane.

Jane said that defendant sat on the bed, then
tried to kiss her.  Immediately
afterward, in “a flowing moment,” his hand went up her leg.  She did not say that in between, he left the
room and came back.  She said that she
pushed his hand away; she did not say that he kept putting it back.

Jane got up; she and defendant both went out to
the kitchen, where her brother was.  She
watched defendant and her brother play games for a while.  Then her brother asked her if she wanted to
leave.

C.        Jane’s Forensic
Interview Two Weeks Later.

On March
17, 2011, a member of the Riverside County Child Assessment Team
(RCCAT) conducted a forensic interview of Jane.   A detective observed the interview via
closed-circuit television.

Jane said that, immediately after entering the
bedroom, defendant tried to kiss her. 
Next, he fixed the DVD player; then he lay on the bed and ran his hand
up her leg.  Once again, she did not say
that defendant left the room and came back.

Jane was not sure whether defendant was to her
left or to her right.  She explained,
“ . . . I don’t really remember any of the images that
much.”

Jane said that, the first time defendant touched
her leg, his hand went up to “the crease of [her] vagina.”  She pushed his hand away, and he put it back,
but lower — on her thigh.  “He only got
to do it twice.”

She got up, went to her brother, and told him, “I
want to go home.”

II

TESTIMONY REGARDING
DISCREPANCIES IN CHILD VICTIMS’ ACCOUNTS

Defendant contends the trial court erred by
admitting a detective’s testimony that there are commonly discrepancies between
the accounts given by child sexual abuse victims and that this is because they
are traumatized.

A.        Additional Factual and
Procedural Background.

Detective Kim Judge  had been assigned to investigating sex crimes
for six years.  She had investigated over
100 sex crimes involving children.  She
testified that, whenever the victim of a sex crime was a child, it was
customary to conduct a forensic interview of the victim.  She had observed Jane’s forensic interview.

During the detective’s direct examination, there
was this exchange:

“Q.  BY
[PROSECUTOR]:  When you’re testifying in
these cases involving child sex victims, is it common for there to be some
discrepancies in their story from the time they are initially interviewed until
the trial?

“[DEFENSE COUNSEL]:  Objection. 
Relevance.  Speculation.  Improper opinion.

“THE COURT: 
Overruled.

“THE WITNESS: 
Absolutely.

“Q.  BY
[PROSECUTOR]:  And why is that?

“[DEFENSE COUNSEL]:  Objection.

“THE COURT: 
Overruled.

“THE WITNESS: 
They are usually traumatized . . . during the first interview,
and then even a lot of times . . . it could even be six months, a
year when things come up that they remember that they didn’t initially because
they were traumatized.

“Q.  BY
[PROSECUTOR]:  Okay.  And I’m not asking you if it ever means
people are telling the truth or lying. 
I’m just asking:  Does that happen
in these types of cases involving child sex victims?

“THE WITNESS: 
Yes.”

On cross-examination, Detective Judge admitted
that “some people give inconsistent statements because they are lying[.]”

In closing argument, when discussing the
different accounts Jane had given, the prosecutor stated:  “And Detective Judge said, look, based on her
experience in dealing with these types of cases for the last six years, she
expects there to be some slight discrepancies. 
She expects it.  Because when
you’re talking about the initial disclosure on the day of an incident, there is
still emotions, there’s trauma, and there’s a patrol deputy who isn’t trained
in the way that she is . . . . 
And it’s not surprising to her at all. 
And in most of her cases you get that slight change.”

B.        Analysis.

Defendant argues that the detective essentially
rendered an inadmissible opinion that the victim was telling the truth.

“[G]enerally a lay witness may not express an
opinion about the veracity of another person’s statement
. . . . 
[Citations.]”  (>People v. Houston (2012) 54 Cal.4th
1186, 1221.)  “[T]he reasons are
several.  With limited exceptions, the
fact finder, not the witnesses, must draw the ultimate inferences from the
evidence.  Qualified experts may express
opinions on issues beyond common understanding [citations], but lay views on
veracity do not meet the standards for admission of expert testimony.  A lay witness is occasionally permitted to
express an ultimate opinion based on his perception, but only where ‘helpful to
a clear understanding of his testimony’ [citation], i.e., where the concrete
observations on which the opinion is based cannot otherwise be conveyed.  [Citations.] 
Finally, a lay opinion about the veracity of particular statements does
not constitute properly founded character or reputation evidence [citation],
nor does it bear on any of the other matters listed by statute as most commonly
affecting credibility [citation].  Thus,
such an opinion has no ‘tendency in reason’ to disprove the veracity of the
statements.  [Citations.]”  (People
v. Melton (1988) 44 Cal.3d 713, 744; accord, People v. Sergill (1982) 138 Cal.App.3d 34, 39–40.)

Here, however, the detective did >not testify that the victim was telling
the truth.  Indeed, she conceded that
discrepancies in an alleged victim’s story could
mean that he or she was lying.  She
merely testified it was common for
there to be discrepancies in an alleged victim’s story and that this was >usually because the alleged victim was
initially traumatized.  This testimony
was not speculative.  The detective did
not purport to read Jane’s mind.  Rather,
her testimony was rationally based on her personal perception of over 100
investigations of alleged sex crimes against children, which typically included
forensic interviews of the alleged victims. 
Moreover, it was helpful to a clear understanding of her testimony,
because it would not have been practical for her to discuss in detail every one
of these prior investigations.

This testimony did not invade the province of the
jury, because the detective did not claim to know whether Jane was, in fact,
telling the truth.  (See >People v. McDonald (1984) 37 Cal.3d 351,
370-371 [expert testimony regarding the weaknesses of eyewitness identification
does not “‘invade the province’ or ‘usurp the function’ of the jury”],
overruled on other grounds in People v.
Mendoza (2000) 23 Cal.4th 896, 914.) 
In any event, the Supreme Court has stated:  “It is a truism that it is for the jury to
determine credibility.  Questions that
legitimately assist the jurors in discharging that obligation are proper.  The ‘legal cliché used by many courts, [that
evidence] would “invade the province” or “usurp the function” of the jury’ is
. . . ‘“so misleading, as well as so unsound, that it should be
entirely repudiated.  It is a mere bit of
empty rhetoric,” and “remains simply one of those impracticable and
misconceived utterances which lack any justification in principle.”’  [Citation.]” 
(People v. Chatman (2006) 38
Cal.4th 344, 380.)

The challenged evidence was analogous to testimony
regarding child sexual abuse accommodation syndrome (CSAAS).  “ . . . â€˜CSAAS cases
involve expert testimony regarding the
responses of a child molestation victim. 
Expert testimony on the common reactions of a child molestation victim
is not admissible to prove the sex crime charged actually occurred.  However, CSAAS testimony “is admissible to
rehabilitate [the molestation victim’s] credibility when the defendant suggests
that the child’s conduct after the incident — e.g., a delay in reporting — is
inconsistent with his or her testimony claiming molestation.  [Citations.]”’  [Citations.]” 
(People v. Perez (2010) 182
Cal.App.4th 231, 245.)  Here, similarly,
the defense strategy was to argue that the discrepancies between the victim’s
accounts meant that she was lying.  The
evidence was relevant to partially rehabilitate the victim by indicating that
there could be alternative reasons for any discrepancies.

As the Supreme Court has observed, “[t]here is a
difference between asking a witness whether, in his opinion, another is lying
and asking that witness whether he knows of a reason why another would be
motivated to lie.”  (People v. Chatman, supra,
38 Cal.4th at p. 381.)  Here, the
detective was not asked whether the victim was lying, but rather, whether she
knew of a reason why there would be discrepancies in the victim’s story.

We therefore conclude that state law did not
require the trial court to exclude this evidence.  We further conclude that the admission of the
evidence did not violate due process.

III

PRESENTENCE
CONDUCT CREDIT

Defendant was arrested on September 20,
2011.  He was sentenced on June 12,
2012.  Thus, he had 268 days of actual
presentence custody.  The trial court
awarded him 54 days of presentence conduct credit pursuant to Penal Code
section 4019, commenting, “That’s [a] 20 percent limitation because of the
strike offense.”

Defendant contends that the trial court erred by
limiting his presentence conduct credit to 20 percent.  The People concede the error.  We agree. 
When a defendant has a strike prior, postsentence conduct credit is
limited to 20 percent (Pen. Code, §§ 667, subd. (c)(5), 1170.12, subd.
(a)(5)), but not presentence conduct credit (Pen. Code, § 4019; >People v. Thomas (1999) 21 Cal.4th 1122,
1125-1127).

The parties disagree, however, regarding the
correct amount of credit.  After the crimes were committed, but before
defendant was sentenced, Penal Code section 4019 was amended so as to provide
for a more generous measure of custody credit.

Defendant’s crimes were committed on March 1-2,
2011.  At that time, Penal Code section
4019 provided “two-for-four” credit — two days of conduct credit for every four
days of actual presentence custody. 
(Pen. Code, former § 4019, subds. (b), (c), (f), Stats. 2010, ch.
426, § 2.)

On April 4, 2011, however, the Legislature
amended Penal Code section 4019 so as to provide “two-for-two” credit — two
days of conduct credit for every two days of actual presentence custody.  (Pen. Code, former § 4019, subds. (b),
(c), (f), Stats. 2011, ch. 15, § 482.)  The Legislature specified that this amendment
“shall apply prospectively and shall apply to prisoners who are confined
. . . for a crime committed on or after October 1, 2011.  Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior
law.”  (Pen. Code, § 4019, subd.
(h), Stats. 2011, ch. 39, § 53.)href="#_ftn2"
name="_ftnref2" title="">^[2]

Defendant argues that, as a matter of statutory
construction, the amendment must be construed as applying to him.  He argues that the second sentence of Penal
Code section 4019, subdivision (h), which states, “[a]ny days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the
prior law,” necessarily implies that any days earned on or after October 1, 2011 shall be calculated at the rate
required by the amended statute.

This argument has been rejected in every
published case that has ever considered it. 
(People v. Rajanayagam (2012)
211 Cal.App.4th 42, 52-53; People v.
Ellis (2012) 207 Cal.App.4th 1546, 1552-1553; People v. Kennedy (2012) 209 Cal.App.4th 385, 399-400.)  We adopt the reasoning of those cases, but
especially the following language from Rajanayagam:

“‘“‘It is an elementary rule of construction that
effect must be given, if possible, to every word, clause and sentence of a
statute.’  A statute should be construed
so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant, and so that one section will
not destroy another unless the provision is the result of obvious mistake or
error.”’  [Citations.]  Therefore, we cannot read the second sentence
to imply any days earned by a defendant after October 1, 2011, shall be
calculated at the enhanced conduct credit rate for an offense committed before
October 1, 2011, because that would render the first sentence superfluous.

“Instead, another well established rule of
statutory construction supports our interpretation of subdivision (h).  ‘“A statute is passed as a whole and not in
parts or sections and is animated by one general purpose and intent.  Consequently, each part or section should be
construed in connection with every other part or section so as to produce a
harmonious whole.  Thus, it is not proper
to confine interpretation to the one section to be construed.”’  [Citations.]

“ . . . [S]ubdivision (h)’s first
sentence reflects the Legislature intended the enhanced conduct credit
provision to apply only to those defendants who committed their crimes on or
after October 1, 2011.  Subdivision (h)’s
second sentence does not extend the enhanced conduct credit provision to any
other group, namely those defendants who committed offenses before October 1,
2011, but are in local custody on or after October 1, 2011.  Instead, subdivision (h)’s second sentence
attempts to clarify that those defendants who committed an offense before
October 1, 2011, are to earn credit under the prior law.  However inartful the language of subdivision
(h), we read the second sentence as reaffirming that defendants who committed
their crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law. 
[Citation.]  To imply the enhanced
conduct credit provision applies to defendants who committed their crimes
before the effective date but served time in local custody after the effective
date reads too much into the statute and ignores the Legislature’s clear intent
in subdivision (h)’s first sentence.”  (>People v. Rajanayagam, >supra, 211 Cal.App.4th at
pp. 52-53, fn. omitted.)

Defendant also argues that he is entitled to the
benefits of the amendment as a matter of equal protection, because “all persons
serving time after October 1, 2011 are similarly situated with respect to
earning conduct credits, without regard to the date of the offense.”  (Capitalization and boldface omitted.)

This argument has been rejected by the California
Supreme Court, as well as in every other published case that has considered
it.  (People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9; People v. Rajanayagam, supra,
211 Cal.App.4th at pp. 54-56; People v.
Verba (2012) 210 Cal.App.4th 991, 995-997; People v. Kennedy, supra,
209 Cal.App.4th at pp. 395-399; People v.
Ellis, supra, 207 Cal.App.4th at
pp. 1549-1552.)

In Lara,
the defendant argued that the Legislature denied equal protection by making the
amended version of Penal Code section 4019 prospective only.  (People
v. Lara, supra, 54 Cal.4th at
p. 906, fn. 9.)  The Supreme
Court responded: 
“ . . . â€˜â€œ[T]he obvious purpose”’ of a law
increasing conduct credits ‘“is to affect the behavior of inmates by providing
them with incentives to engage in productive work and maintain good conduct
while they are in prison.”  [Citation.]  “[T]his incentive purpose has no meaning if an
inmate is unaware of it.  The very
concept demands prospective application.”’ 
[Citation.]  Accordingly,
prisoners who serve their pretrial detention before such a law’s effective
date, and those who serve their detention thereafter, are not similarly situated
with respect to the law’s purpose. 
[Citation.]”  (>Ibid.)

We also adopt the reasoning stated in >Verba:

“[A] statute’s . . . operative date
. . . is set by the Legislature in its discretion.  [Citation.] 
The exercise of that discretion is subject to rational basis
review.  [Citations.]”  (People
v. Verba, supra, 210 Cal.App.4th
at p. 996.)

“We can envision several legitimate reasons for
making the increased level of presentence conduct credit applicable only to
those who commit their crimes on or after October 1, 2011.

“ . . . [T]he Legislature’s
decision to increase the amount of presentence conduct a defendant could earn
‘was intended to save the state money.’ 
[Citation.]  The Legislature may
have decided that the nature and scope of the fiscal emergency required
granting an increase in the level of conduct credits but only at a time after
the effective date of the amendments.  A
slightly delayed operative date, the Legislature may have believed, struck a
proper, rational balance between the state’s fiscal concerns and its public
safety interests.

“A related justification for the prospective
application of increased conduct credits lies in the Legislature’s right to
control the risk of new legislation by limiting its application.  ‘Requiring the Legislature to apply
retroactively any change in the law benefitting criminal defendants imposes
unnecessary additional burdens on the already difficult task of fashioning a
criminal justice system that protects the public and rehabilitates criminals.’  [Citation.]

“In addition, the Legislature could have
rationally believed that by tying the increased level of conduct credits to
crimes committed on or after a future date, it was preserving the deterrent
effect of the criminal law as to those crimes committed before that date.  [Citations.] 
To reward an inmate with enhanced conduct credits, even for time spent
in presentence custody after the effective date of the statute, arguably weakens
the deterrent effect of the law as it stood when the inmate committed the
crime.  We see nothing irrational or
implausible in a legislative conclusion that individuals should be punished in
accordance with the sanctions and given the rewards in effect at the time they
committed their offense.  Such a
punishment scheme also avoids ‘sentencing delays and other manipulations.’  [Citation.]” 
(People v. Verba, >supra, 210 Cal.App.4th at
pp. 996-997.)

We therefore conclude that defendant is entitled
to presentence conduct credit only under the version of Penal Code section 4019
that was in effect when the crimes were committed.  It provided “two-for-four” credit, and
defendant had 268 days of actual custody; thus, he was entitled to 134 days of
credit.  The trial court awarded him only
54 days.  We will modify the judgment to
award him an additional 80 days.

IV

DISPOSITION

The judgment is modified to award defendant 134
days (rather than 54 days) of presentence conduct credit.  As so modified, the judgment is
affirmed.  The superior court clerk is directed
to prepare an amended sentencing minute order and an amended abstract of
judgment reflecting this modification and to forward a certified copy of the
new abstract to the Department of
Corrections and Rehabilitation. 
(Pen. Code, §§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

                                                                                    RICHLI                                       

                                                                                                                        Acting
P. J.         

 

We
concur:

 

 

 

KING                                         

                                                     J.

 

 

 

 

CODRINGTON                         

                                                      J.