P. v. Douglas
Filed 2/26/10 P. v. Douglas CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. BRYAN ANTHONY DOUGLAS, Defendant and Appellant. | A123696 (Alameda County Super. Ct. No. C153466) |
A jury convicted defendant of 22 counts in connection with attacks on five women over a period of nearly 11 years, and he was sentenced to multiple life terms, and a separate aggregate determinate term, in state prison. On appeal, he claims instructional error and also argues that substantial evidence does not support four of his convictions. We reject his arguments and affirm the judgment.
I.
Factual and Procedural
Background
We summarize the relevant underlying facts, viewing the evidence as a whole and in the light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.)
A.Crimes Against Mallory Doe[1] (Counts 1 through 11)
In late July 2005, 16-year-old Mallory Doe was a runaway living at a hotel in Hayward. Around 3:00 a.m. on July 31, Mallory was working as a prostitute on International Boulevard and 49th Avenue in Oakland. She entered defendants car after he asked whether she was working. After first saying that he would take Mallory to her hotel room, defendant eventually said he wanted to take Mallory to a nice house in Hayward where he was house sitting. With Mallorys permission, defendant covered Mallorys eyes with a jacket so that she would not know where they were going and could not return to the home later to rob it.
After defendant and Mallory arrived at the Hayward house, defendant directed her to a guest room. Mallory put her purse on the bed, and when she turned around defendant was holding a knife that he put to her neck. Defendant told Mallory to put her hands behind her back and lie on the bed stomach first, and that he would stab her if she tried to get away. He taped her hands behind her back with duct tape and told her that he was going to have sex with her ten times and then let her go. Defendant then rolled Mallory onto her back, removed her jeans and underwear, and started fondling her vagina. He first forced her to orally copulate him, and then he raped her without using a condom.
Mallory started faking seizures, hoping that defendant would let her go, but he said he was going to do it to her seven more times before releasing her. Defendant took Mallory, with her hands still duct taped, to the bathroom to urinate. He then took her back to the bedroom, where he raped her again. He became frustrated that he could not ejaculate, and he made Mallory give him oral sex again until he either ejaculated or urinated on her.
Defendant then directed Mallory, who was naked and still had her hands tied behind her back, into the living room and put her on the couch. They sat on the couch and watched television for about three hours. Mallory testified that during this time, I was laying on him because I wasat that point, I didnt know what to do. I tried everything. So I was trying to maybe be nice, you know, and so I laid on him and I was so tired because I had been up for a whole day just crying and I went to sleep for like an hour. When Mallory woke up, defendant and she returned to the bedroom, where defendant raped her again.
At one point defendant tied Mallory with a rope to the headboard of a bed, and positioned her in such a way that she would strangle herself if she put her legs down, then told her he was going to get gas. Mallory tried to bite through the rope after she thought defendant had left. Defendant walked in, became angry that Mallory was trying to leave, and tightened the rope around her neck. Mallory passed out, and woke up to defendant shaking her and yelling at her. Defendant removed the rope from her neck, hands, and feet.
Defendant began acting meaner toward Mallory after she tried to escape, displaying his knife more often, grabbing her more, and screaming like he had personal hate toward Mallory. He tried to put his finger in her anus, but he stopped and became angry when Mallory threatened to defecate on him. He then raped Mallory again, and he ejaculated inside her. Mallory testified that defendant raped her [a]t least ten times over the two days he held her in the Hayward house.
Toward the end of Mallorys second day with defendant, defendant received a call on the houses telephone, and Mallory believed that the owner of the house was telling defendant that the owner was returning home. Defendant told her that he would take her where she wanted to go, and she said she wanted to be dropped off at a hospital. About an hour later, defendant put Mallorys pants on and started getting their things together. Mallorys arms were turning blue, and she could not feel her hands. Defendant stuffed tissue into her mouth and then placed duct tape on her eyes and mouth. He walked her to his car, placed her in the passenger seat with the back fully reclined, and began to drive. They drove for about 10 or 15 minutes, and defendant stopped the car at the end of a cul-de-sac on Thiel Road in Hayward. Defendant stabbed Mallory, pushed her out of the car, and drove away.
Around 10:30 p.m. on August 1, a man who lived nearby heard defendants car pull up and noticed a thumping noise, then heard the car drive away. He and other neighbors investigated, and they found Mallory lying on the ground bleeding, with her eyes and mouth covered with duct tape and her hands and ankles bound. A neighbor called 911, and paramedics arrived a short time later.
Mallory suffered three stab wounds above her left breast and one on her left thigh. She was taken by ambulance to Eden Medical Center in Castro Valley, where she underwent surgery and almost died. A genital exam on the morning after Mallory was taken to the hospital revealed four lacerations. Sperm captured from the crotch area of Mallorys jeans was used to create a DNA profile that matched defendants DNA profile.[2]
Defendant testified on his own behalf and denied guilt of any of the charged crimes. He acknowledged that he picked up prostitutes on International Boulevard in Oakland once or twice a week. As for his encounter with Mallory, defendant claimed that he picked her up as a prostitute around 5:30 a.m. on August 1, 2005, a day when he was house sitting for a friend who lived in Hayward. Mallory told defendant that she would perform oral and regular sex for about $50, and they drove from International Boulevard to a residential area, where they had sex in his parked car. Because it was getting light and residents were coming outside, defendant offered to drive Mallory to Hayward, where he would pay her an additional $50 to have sex with him again. Defendant brought Mallory to where he was house sitting, and they had sex in a back room of the house.
After having sex at the Hayward house, defendant and Mallory just kind of hung out a little bit and talk[ed], according to defendant. Mallory received a telephone call and told defendant she had to leave. Defendant drove Mallory to a motel in Hayward and dropped her off around 9:00 a.m., then returned to his friends house.
The jury convicted defendant of the following crimes in connection with the attack on Mallory Doe: five counts of forcible rape (Pen. Code, 261, subd. (a)(2)[3]counts 1, 3, 4, 6, 7), two counts of forcible oral copulation ( 288a, subd. (c)(2)counts 2, 8), one count of attempted sexual penetration by a foreign object ( 289, subd. (a)(1)count 5), one count of false imprisonment by violence ( 236count 9), one count of kidnapping ( 207, subd. (a)count 10), and one count of willful, deliberate, premeditated attempted murder ( 187, subd. (a), 664, subd. (f)count 11). With respect to the rape and oral copulation counts, the jury found true allegations under section 667.61 (commonly known as the one strike law), that defendant was armed with and personally used a dangerous or deadly weapon in the commission of the crimes ( 667.61, subd. (e)(4)), that defendant tied or bound the victim in the commission of the crimes ( 667.61, subd. (e)(6)), and that he committed specified sex crimes against multiple victims ( 667.61, subd. (e)(5)). With respect to the false imprisonment, kidnapping, and attempted murder counts, the jury found true the allegation that defendant personally used a deadly or dangerous weapon (a knife) ( 12022, subd. (b)(1)). With respect to the attempted murder count, the jury found true the allegation that defendant inflicted great bodily injury on Mallory ( 12022.7, subd. (a)).
B.Crime Against Jane Doe (Count 12)
Around 4:30 a.m. on April 2, 1995, Jane Doe was on International Boulevard near 18th Avenue waiting for a bus. She had worked as a prostitute in the past, but she was not working that night. Defendant drove past her a few times before driving up and asking if she wanted a ride. She at first declined, but later accepted because her bus had not arrived. Jane asked defendant to drive her to her home in Oakland, and he agreed and began driving in the direction of her home. He later changed direction, saying he needed to get gas; however, he passed a gas station without stopping. When Jane asked where defendant was going, he locked her door, put a knife to her ribcage, and drove to an isolated location.
Defendant parked and told Jane to remove her clothing. She at first refused, and defendant ripped off her pants. She complied by removing her blouse after defendant put his knife to her throat. He then raped her. Afterward, they struggled over Janes purse, and defendant forced her out of the car. Jane walked to a restaurant, and Oakland police officers were called.
Jane was taken to Highland Hospital, where a physical examination revealed an approximately one-half inch cut on her left cheek and scratches on the left side of her neck and on her right breast. Jane was crying, and she had four vaginal tears consistent with forcible intercourse. Sperm was captured from the crotch of Janes underwear, and its DNA profile matched that of defendant.
Defendant testified that he picked up Jane as a prostitute on the night in question, and that Jane told him she would charge $20 for oral sex and regular sex. She directed him to drive to a warehouse. When they arrived, Jane informed defendant that she could not perform oral sex, so defendant said he could not pay her the entire $20. The two had sex, and afterward she grabbed for his wallet and pulled a knife out of her purse. According to defendant, he grabbed the knife from Jane, pushed her out of the car, and drove away.
Defendant was convicted of one count of forcible rape ( 261, subd. (a)(2)count 12) in connection with the attack on Jane Doe. The jury also found true one strike allegations that defendant kidnapped the victim ( 667.61, subd. (d)(2)), that he was armed and personally used a dangerous or deadly weapon in the commission of the rape ( 667.61, subd. (e)(4)), and that he committed specified sex crimes against multiple victims ( 667.61, subd. (e)(5)).
C.Crimes Against Christina Doe (Counts 13, 14)
Around 3:00 a.m. on June 23, 2005, Christina Doe was alone on International Boulevard after failing to return to her residential drug treatment program following an approved outing. Defendant drove up and asked Christina if she wanted a ride. Christina at first declined, but later accepted defendants offer and got into his car. Defendant drove to an apartment complex, parked in a driveway behind the building, and told Christina to take off her pants. When she refused, he pulled out a knife and went to stab her. Christina grabbed the blade of the knife, seriously injuring her hand. She was able to open the car door, escape, then summon police after defendant drove away. Defendant denied ever seeing Christina before his arrest.
The jury convicted defendant of one count of assault to commit a designated forcible sex crime ( 220count 13) and one count of assault with a deadly weapon ( 245, subd. (a)(1)count 14) in connection with the attack on Christina. With respect to both counts, the jury found true the allegation that defendant personally used a deadly or dangerous weapon (a knife) ( 12022, subd. (b)(1)). With respect to the assault with a deadly weapon count, the jury also found true the allegation that defendant inflicted great bodily injury ( 12022.7, subd. (a)).
D.Crimes Against Van Doe (Counts 15 through 21)
Around midnight on September 15, 2005, Van Doe rode Bay Area Rapid Transit to the Fruitvale station in Oakland to meet a friend. Although she had worked as a prostitute in the past, she was not working as a prostitute that night. She walked toward a gas station on International Boulevard at 38th Avenue. When she arrived at the gas station, she asked the cashier behind a window for a bottle of soda. While the cashier went to retrieve a drink, defendant walked up to her, held a gun to her ribs, and told her if she screamed he would kill her. Defendant and Van got into defendants car, and they drove away.
Defendant drove Van to a different area of Oakland and parked so close to a fence that Van could not open the door to escape. He pressed his elbow to her neck, making it difficult for her to breathe, and he tied her wrists together behind her back with gauze. Defendant then threw Vans jacket over her head so she could not see and drove away.
After driving for about 20 or 30 minutes, defendant stopped at a house in Oakland and parked with the passenger side near a fence, such that Van could not get out of the car. Defendant removed Vans jeans and underwear. Defendant smelled Vans underwear. He ordered Van to orally copulate him, and she complied because she did not want to die. Defendant also orally copulated Van, digitally penetrated her, and raped her twice. Van also testified that she was forced to orally copulate defendant twice. Defendant eventually put Vans jeans back on her but did not return her underwear.
After defendant sexually assaulted Van, he placed her jacket over her head, drove her to another location near houses and a cemetery in Oakland, told her that he would kill her and her family if she told police what happened, and then dropped her off. Vans hands were still tied behind her back with gauze, and her hands were numb. She flagged down a motorist, who helped her remove the gauze. Van used the motorists cell phone to call her boyfriend, who took her to her house. She later decided to go to the hospital, where she reported that she had been raped.
A physical examination conducted at Highland Hospital revealed tenderness in Vans trachea and abrasions on her right wrist. Police collected the cloth that Van reported had been used to secure her wrists, and an officer observed red marks and indentations on her wrists. Vaginal swabs revealed sperm that had a DNA profile that matched defendants DNA profile.
A few months later, in the early morning hours of February 14, 2006, Van saw defendant in his car on International Boulevard in Oakland while she was working as a prostitute. Van recognized defendant as the person who had raped her, and she flagged down an Oakland police officer. She provided a description of defendants car and its license plate number to the officer, and that information led police to defendant. After defendant was arrested, police searched defendants residence and found Vans underwear in a plastic bag on the headboard of his bed.
Defendant testified that he picked up Van as a prostitute on the night in question at a fast food restaurant parking lot on International Boulevard. He drove her to an apartment complex parking lot, and after haggling over price he agreed to pay her $40 for oral and regular sex. After they had sex, defendant drove Van back to the fast food restaurant parking lot, and she got out of the car.
The jury convicted defendant of the following crimes in connection with the attack on Van: two counts of forcible rape ( 261, subd. (a)(2)counts 15, 20), three counts of forcible oral copulation ( 288a, subd. (c)(2)counts 16, 18, 19), one count of sexual penetration by a foreign object ( 289, subd. (a)(1)count 17), and one count of second degree robbery ( 211count 21). With respect to counts 15 through 20, the jury also found true one strike allegations that defendant (1) kidnapped the victim ( 667.61, subd. (d)(2)), (2) was armed with and personally used a dangerous or deadly weapon in the commission of the crimes ( 667.61, subd. (e)(4)), (3) tied or bound the victim in the commission of the crimes ( 667.61, subd. (e)(6)), and (4) committed specified sex crimes against multiple victims ( 667.61, subd. (e)(5)). With respect to those same counts, the jury also found true the allegation that defendant personally used a firearm ( 12022.5, subd. (a)(1), 12022.53, subd. (b)). With respect to the robbery count, the jury found true the allegation that defendant personally used a firearm ( 12022.5, subd. (a)(1), 12022.53, subd. (b)).
E.Crime Against Catrina Doe (Count 22)
Catrina Doe had worked as a prostitute for almost 20 years. Around 3:00 a.m. on February 14, 2006, she was on the corner of 28th and San Pablo Avenues in Oakland trying to make money to pay for crack cocaine. Defendant pulled up in a car, motioned for Catrina to come over to the drivers side, and told her to do something to prove she was not a police officer. Catrina exposed her breasts, then got into defendants car. Defendant and Catrina agreed that he would pay $20 for a sexual act, and that they would drive to her usual location on Chestnut Street. When they arrived, defendant said it looked like a setup to him, and said he would drive to a different location.
Defendant got on the freeway, which made Catrina nervous because she d[idnt] do freeways. He drove to a residential area in east Oakland and said they would do it in the car. Catrina told him, Money first. Defendant responded, Bitch, youll do whatever the fuck I say, at which point Catrina started to get scared. Defendant told her to take off her coat. Catrina told him that would be difficult because she was paralyzed on the right side of her body and that she usually did not take off her coat because she found it difficult to put it back on. Defendant helped her remove it. Defendant then told her to take off her clothes, and she removed one leg of her pants. Defendant pulled the back of her head down hard to his lap, forced her to orally copulate him, and ejaculated in her mouth. Catrina testified that she would not have allowed a customer to put his penis in her mouth without a condom or to ejaculate in her mouth. As Catrina was retrieving her coat from the back seat of defendants car, defendant slapped her hand and said, Get out of my car. I got a knife. Catrina got out of the car without her jacket, and defendant drove away.
Catrina screamed for help, and the police arrived after someone who lived nearby called 911. Catrina was taken to Highland Hospital. An oral swab from Catrina revealed sperm with a DNA profile that matched defendants DNA profile.
Defendant testified that he picked up Catrina as a prostitute on International Boulevard on the night in question. Catrina said that she would perform only oral sex, and after haggling over price Catrina accepted defendants offer to pay her $10. They drove to another location. As Catrina was performing oral sex, defendant felt her hand going down his leg toward his pants pocket where he kept his wallet. Suspecting that Catrina was trying to steal his wallet, defendant pushed her off him, told her to get out of the car, pushed her out, and drove away. He never paid her any money.
In connection with the attack on Catrina, the jury convicted defendant of one count of forcible oral copulation ( 288a, subd. (c)(2)count 22) and found true the one strike allegation that defendant committed specified sex crimes against multiple victims ( 667.61, subd. (e)(5)).
Defendant was sentenced to five consecutive life terms: life in prison with the possibility of parole on the attempted murder conviction (count 11), 15 years to life on the conviction of forcible oral copulation of Catrina (count 22) ( 667.61), and 25 years to life each on three convictions for forcible rape (of Mallory, Jane, and Van, counts 1, 12, 15), with a consecutive three years, four months in prison on the enhancement for count 15 ( 12022.53, subd. (b)). The trial court further sentenced defendant to the following determinate terms, to be served consecutively: the midterm of five years for the kidnapping of Mallory (count 10), one-third the midterm (16 months) for the assault on Christina (count 13), with an additional four months for the enhancement on that count. The court imposed the following determinate terms, to be served concurrently: the midterm of two years on the conviction for the false imprisonment by violence of Mallory (count 9) and the lower term of three years for the second degree robbery conviction (count 21).[4]
Defendant timely appealed.
II.
Discussion
A. No Reversible Error to Omit Instructions on One Strike Allegations.
Defendant first argues that the trial court committed prejudicial error by failing to instruct the jury on the elements of three of the four one strike allegations considered by the jury ( 667.61, subds. (d)(2), (e)(4), (5), (6)).[5] Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of a specified sexual offense and the People plead and prove one or more specified aggravating circumstances. (People v. Campbell (2000) 82 Cal.App.4th 71, 76; 667.61, subds. (a)-(e), (j).) The trial court has a sua sponte duty to instruct on the elements of one strike circumstances. (People v. Jones (1997) 58 Cal.App.4th 693, 709.) We will not reverse if we conclude that any error in failing to instruct the jury on the one strike allegations was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. 212, 220-221; People v. Jones, supra, at p. 709.) An error is harmless beyond a reasonable doubt where the jury necessarily resolved the factual question posed by the omitted instructions adversely to defendant under other, properly given instructions (People v. Marshall (1996) 13 Cal.4th 799, 852; People v. Jones, supra, at p. 709), or where a review of the entire record reveals that the jury would have returned the same verdict absent the error. (Washington v. Recuenco, supra, at p. 221.)
With these general principles in mind, we separately consider the four one strike allegations considered by the jury.
1. Kidnapping ( 667.61, subd. (d)(2))
A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence ( 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense of rape, oral copulation, or sexual penetration. ( 667.61, subd. (d)(2).) The second consolidated information included this allegation in connection with the forcible rapes of Jane Doe and Van Doe, the three counts of forcible copulation of Van, and the count of sexual penetration by a foreign object of Van.
As to each of the one strike kidnapping allegations, the verdict forms (for counts 12 and 15 through 20) included the following language (or language virtually identical thereto): We, the jury further find that in . . . the commission of the above offense said defendant, BRYAN ANTHONY DOUGLAS _________ DID/DID NOT kidnap the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the commission of that offense within the meaning of Penal Code Section 667.61(d)(2). The jury indicated, for each allegation, that defendant DID kidnap the victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.
Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3175, which provides that in order to prove the one strike kidnapping allegation, the People must prove beyond a reasonable doubt that: 1. The defendant took, held, or detained _____ <[victims name]> by the use of force or by instilling reasonable fear; [] 2. Using that force or fear, the defendant moved ____ <[victims name]> [or made (him/her) move] a substantial distance; [] 3. The movement of ____ <[victims name]> substantially increased the risk of harm to (him/her) beyond that necessarily present in the ____ <insert sex offense[s] from Pen. Code, 667.61(c)>; [] [AND] [] 4. _____ <[victims name]> did not consent to the movement(./
[] [AND [] 5. The defendant did not actually and reasonably believe that ____ <[victims name]> consented to the movement.[[6]]] [] Substantialdistance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of ____ <[the relevant sex offense]>. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement. (Original italics.)
Respondent argues, and we agree, that it was harmless error to fail to instruct the jury regarding the kidnapping one strike allegation. Although neither side raises this issue, we note that the jury was elsewhere correctly instructed, pursuant to CALJIC No. 9.50, on the elements of kidnapping. That instruction provides in relevant part: Every person who unlawfully and with physical force or by any other means of instilling fear, steals or takes, or holds, detains, or arrests another person and carries that person without her consent for a distance that is substantial in character, is guilty of the crime of kidnapping . . . .[7] The jury was further instructed on the factors to consider in considering whether a distance is substantial. We therefore reject defendants argument that jurors did not have sufficient guidance on determining whether other victims were moved a substantial distance or whether they were moved without their consent, as they were elsewhere correctly instructed that these were elements of the crime of kidnapping. (People v. Jones, supra, 58 Cal.App.4th at pp. 709-710 [The instructions on the substantive kidnapping offenses gave the jury sufficient guidance with respect to the simple kidnapping circumstance.].) Moreover, as respondent correctly notes, whether either Jane Doe or Van Doe was moved a substantial or only a slight or trivial distance was not an issue in the case. The victims and defendant all testified that defendant drove the victims some distance before their sexual encounters.[8] A review of the entire record reveals that the jury would have returned the same verdict absent the error, as there was overwhelming evidence that defendant moved Jane and Van without their consent a substantial distance by force or fear in the commission of the crimes against them. (Washington v. Recuenco, supra, 548 U.S. at p. 221.)
We also disagree with defendants argument that the prosecution appears to have inadvertently argued that the jury did not need to consider particular factual elements in the one-strike kidnapping enhancements. The prosecutor stated during his closing argument, without objection: Let me just show you what a verdict form is like so you understand it, and I do it in Vans case because theres so many clauses in her case. [] So, for example, this is count 18, this is the oral copulation. This is if you find the defendant guilty, it gives the language of what oral copulation is. The significance of the language is if it is at all different than the language in the jury instructions you get, because sometimes it is, you go by the jury instruction. Like the elements that I talked about. Thats the law that controls. So if youre reading this and go, oh, this word wasnt really in the jury instruction, then disregard it. [] So here you find him guilty of oral copulation, these are the clauses that you then make findings on. [] So, for example, the first clause, we the jury further find in the commission of the above offense said defendant, Bryan Anthony Douglas, did or did not kidnap the victim. If you find that there was kidnapping in her case, then you say did and not did not. Contrary to defendants argument, the prosecutor did not tell the jury that it was not to worry about the wording of the verdicts, just to look to the jury instructions, in effect telling jurors that they were to ignore language in the verdict forms if it did not appear in the jury instructions. Instead, the prosecutor was telling the jury to resolve any conflict between the wording of the jury verdict forms and the jury instructions by relying on the jury instructions. Although the jury was not specifically provided with instructions on the one strike allegations, it does not follow that they were led to believe that they could simply ignore the language of the verdict forms, as defendant apparently contends on appeal.
Finally, we disagree that failing to specifically instruct the jury that it must find the one strike kidnapping allegation true beyond a reasonable doubt was reversible error. The jury was instructed, pursuant to CALJIC 2.90 (Presumption of InnocenceReasonable DoubtBurden of Proof) that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. The instruction further defined reasonable doubt. The jury was elsewhere instructed that it was required to find other enhancementsincluding one of the one strike allegationstrue beyond a reasonable doubt. (CALJIC Nos. 17.16 [ 12022, subds. (b)(1), (2)], 17.19 [ 12022.5, subd. (a), 12022.53, subd. (b)] 17.19.1 [ 667.61, subd. (e)(4), use of a deadly weapon one strike enhancement].) Defense counsel likewise stressed during closing argument that defendant was presumed innocent until the contrary is shown by proof beyond a reasonable doubt as to each independent allegation or charge. (Italics added.) There was no suggestion in the jury instructions that the jury could find the one strike special circumstances for which it did not receive separate instructions true by a standard any less than beyond a reasonable doubt.[9] (People v. Kelly (1992) 1 Cal.4th 495, 525 [in evaluating instructions, question is whether there is reasonable likelihood that jury misunderstood the charge].) Moreover, as we have already concluded, the record reveals that the jury would have returned the same verdict absent any instructional error.
In short, the trial court did not commit reversible error by failing to instruct the jury on the kidnapping one strike allegations.
2. Tying or binding ( 667.61, subd. (e)(6))
A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence ( 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant engaged in the tying or binding of the victim during the crimes. ( 667.61, subd. (e)(6).) The second consolidated information included this allegation in connection with the five forcible rapes and two forcible oral copulations of Mallory Doe, as well as the two forcible rapes, three forcible oral copulations, and sexual penetration of Van Doe.
As to each of the one strike tying or binding allegations, the verdict forms (for counts 1 through 4, 6 through 8, and 15 through 20) included the following language: We, the jury further find that in the commission of the above offense said defendant, BRYAN ANTHONY DOUGLAS _____ DID/DID NOT tie or bind the victim, within the meaning of Penal Code Section 667.61(e)(6).[10] The jury indicated, for each allegation, that defendant DID tie or bind the victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.
Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3182, which provides that if the jury finds a defendant guilty of the charged crime, it must next determine whether the People have proved beyond a reasonable doubt the additional allegation that the defendant tied or bound [the victim] during the commission of the crime. If there is an issue as to whether the tying or binding occurred in the commission of a particular offense, CALCRIM 3261 (In Commission of Felony) is to be used. (Bench Notes to CALCRIM No. 3182 (Fall 2009 ed., vol. 2).) We agree with respondent that the error in omitting these instructions was harmless beyond a reasonable doubt. CALCRIM No. 3182 does not provide any legal instruction beyond what jurors in this case were asked on the relevant verdict forms to determine. There can be no serious dispute that, assuming the jury believed Mallorys and Vans versions of events (which it is clear from the jurys verdicts that they did), there was overwhelming evidence that they were tied or bound in the commission of the crimes against them. Mallory testified that defendant bound her hands with duct tape, and that they remained bound the entire time she was in the house with defendant; the people who found her after she was dumped out of defendants car likewise saw that her hands were bound with tape, and her eyes were covered. Van testified that defendant bound her hands with medical gauze, and police observed red marks and indentations on her wrists. We conclude that the jury would have returned the same verdict absent the error, as there was overwhelming evidence that defendant bound Mallory and Van in the commission of the sexual crimes against them.[11] (Washington v. Recuenco, supra, 548 U.S. at p. 221.)
People v. Campbell, supra, 82 Cal.App.4th 71, upon which defendant relies, is not to the contrary. The court there reversed an order setting aside a tying or binding allegation, concluding that covering a victims eyes with opaque tape constituted tying and binding for purposes of the statute. (Id. at pp. 76, 79-80.) The court focused on the fact that the circumstances that subject perpetrators of certain sexual offenses to an enhanced sentence under section 667.61, subdivision (e) (such as using a deadly weapon or committing the offense during a burglary) all increase the victims vulnerability, and covering a victims eyes had that same effect. (Campbell at pp. 77-78.) In rejecting defendants vagueness challenge to section 667.61, subdivision (e)(6), the court concluded: A reasonable and practical construction of the phrase tying or binding necessarily includes only those actions which render a victim more particularly vulnerable, whether by restricting her or his freedom of movement or by depriving her or him of one or more senses. (Campbell at p. 80, fn. omitted.) The court did not hold, as defendant suggests on appeal, that a trial court is under an obligation to instruct the jury that it must determine whether a victim was in fact rendered more particularly vulnerable. Indeed, the court recognized that where, as here, a victims hands are bound, the increased vulnerability of [the] victim . . . is immediately clear. (Id. at p. 78, italics added.)
The verdict forms demonstrate that the jury necessarily found the tying or binding allegations true. Overwhelming evidence supports the findings, and defendant does not argue otherwise. The fact that the jury was not given an instruction on this one strike allegation was harmless beyond a reasonable doubt.
3. Multiple victims ( 667.61, subd. (e)(5))
A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence ( 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant has been convicted in the present case of committing those specified offenses against more than one victim. ( 667.61, subd. (e)(5).) The second consolidated information included this allegation in connection with all forcible rape, forcible oral copulation, and sexual penetration counts against defendant as to victims Mallory, Jane, Van, and Catrina.
As to each of the one strike multiple victim allegations, the verdict forms (for counts 1 through 4, 6 through 8, 12, 15 through 20, and 22) included the following language: We, the jury further find that said defendant, BRYAN ANTHONY DOUGLAS _____ HAS/HAS NOT been convicted in these proceedings of committing an offense specified in subdivision (c) of Penal Code 667.61 against more than one victim, within the meaning of Penal Code Section 667.61(e)(5). The jury indicated, for each allegation, that defendant HAS been convicted of committing the offenses against more than one victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.[12]
Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3181, which provides: If you find the defendant guilty of two or more sex offenses, as charged in [the relevant counts], you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. From the jurys verdict finding defendant guilty of the charged sexual offenses against Mallory, Jane, Van, and Catrina, it necessarily followed that the multiple victim circumstance ( 667.61, subd. (e)(5)) applied (People v. Jones, supra, 58 Cal.App.4th at p. 710), and the jury specifically so found. Defendant does not argue to the contrary. Instead, relying on People v. Guerra (2009) 176 Cal.App.4th 933, he argues that [j]uries are entitled to render inconsistent verdicts, even if [they are the] result of compromise or lenity. In Guerra, defendant was convicted of sexual crimes against his daughter and one of her friends, but the jury found not true the enhancement allegations that defendant committed offenses against more than one victim. (Id. at p. 936.) When the jury returned its verdict, the trial court questioned the foreperson about the inconsistency of convicting defendant of crimes against two victims but finding not true the multiple victim one strike allegation. (Id. at pp. 936-938.) After the foreperson stated that jurors had misunderstood how to fill out the form, the trial court directed jurors to reconsider the findings on the one strike allegations, and the jury thereafter found true the enhancement allegations. (Id. at pp. 938-940.) The appellate court reversed the true findings on the one strike allegations, concluding that it was error for the trial court to direct the jury to reconsider its verdict. (Id. at pp. 942, 945 [[T]he state has no remedy when a jury acquits in the teeth of both law and facts. ].)
Even though it was possible that the jury might render inconsistent verdicts and findings here, it did not do so. The jurys verdict of guilt on all counts necessarily established the factual predicate for the finding that defendant was convicted of the enumerated offenses against more than one victim. Therefore, [t]he factual issue posed by the omitted instruction necessarily was resolved adversely to defendant under other properly given instructions. [Citations.] (People v. Marshall, supra, 13 Cal.4th at p. 852.) [O]nce the jury found defendant guilty of an underlying substantive sexual offense against [four] of the victims, logically it should also have found the related multiple victim circumstance true. But we fail to see anything wrong with this. (People v. Jones, supra, 58 Cal.App.4th at p. 712 [harmless error not to instruct jury on multiple victim circumstances].) Any error in failing to give an instruction on the multiple victim one strike circumstance here, or failing to specifically instruct the jury that it had to determine the truth of the circumstance beyond a reasonable doubt, was harmless beyond a reasonable doubt.
4. Deadly weapon use ( 667.61, subd. (e)(4))
A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence ( 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.8. ( 667.61, subd. (e)(4).) The second consolidated information included this allegation in connection with all forcible rape, forcible oral copulation, and sexual penetration counts against defendant as to victims Mallory, Jane, and Van. The jury was correctly instructed, pursuant to CALJIC No. 17.19.1 (Personal Use of Firearm or Deadly WeaponSex Crimes), that if it found defendant guilty on the relevant counts, it must determine beyond a reasonable doubt whether defendant was armed with and personally used a firearm or a deadly weapon during the commission of the crimes. The jury found true each one strike deadly weapon allegation.
Defendant acknowledges that the jury was correctly instructed on this one strike allegation. He argues that should this court vacate the other one strike enhancements, making it necessary to rely on the deadly weapon use allegation to uphold defendants life sentences, it should order that the determinate term imposed for the enhancement on count 15 be stayed because the one strike enhancement would take priority. ( 667.61, subd. (f).) Because we do not find it necessary to strike the other one strike enhancements, we need not consider defendants argument.
B. No Error to Omit Mayberry Instruction.
Defendant next argues that the trial court had a sua sponte duty to instruct the jury, pursuant to People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), that it should find defendant not guilty if he held a reasonable and good faith but mistaken belief that his victims consented to engage in sexual intercourse.[13] We disagree.
In the absence of a request for a particular instruction, a trial courts obligation to instruct on a particular defense arises only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citations.] (People v. Dominguez (2006) 39 Cal.4th 1141, 1148 [defendant not entitled to Mayberry instruction].) Here, defendant satisfies neither prong of this test. He testified that Mallory, Jane, Van, and Catrina were working as prostitutes when he picked them up, and that they consented to engage in sexual acts with him.[14] The defense did not claim that the victims had refused consent to any of the described sexual acts but that defendant reasonably believed they had consented, defense counsel did not argue this theory to the jury, and defendant did not request a Mayberry instruction or object to its omission. Defendant claims on appeal that it appears he relied on the belief-as-to-consent defense at trial, yet he points only to his testimony that the victims actually consented, not that their conduct led him to believe that they had consented when they in fact had not. The fact that the prosecution listed the instruction in the proposed jury instructions filed with the trial court does not establish that defendant relied on the defense, as the prosecutor may have included the request only out of an abundance of caution. (People v. Williams (1992) 4 Cal.4th 354, 363, fn. 8 [prosecutor requested Mayberry instruction but did not object when trial court refused to give it].) In short, defendant did not rely on a Mayberry defense at trial. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.)
As for the second prong of the test, there was no substantial evidence supporting a Mayberry defense. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.) A Mayberry instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not. (People v. Williams, supra, 4 Cal.4th at p. 362.) In Williams, defendant testified that the victim initiated sexual contact and willingly had intercourse with him, testimony which, if believed, established actual consent. (Ibid.) The victim testified that defendant raped her after he prevented her from leaving a hotel room, punched her in the eye, pushed her onto the bed, and ordered her to disrobe. (Ibid.) The Williams court concluded that there was no substantial evidence of equivocal conduct warranting a Mayberry instruction, because the wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victims] conduct. (Williams at p. 362.)
The Mayberry defense has both a subjective and an objective component. (People v. Williams, supra, 4 Cal.4th at p. 360.) In order to satisfy the subjective component, a defendant must present evidence of the victims equivocal conduct that showed why he had an honest and good faith, albeit mistaken, belief as to consent. (Id. at pp. 360-361.) In order to satisfy the objective component, the defendant must show that his mistake was reasonable under the circumstances. (Id. at p. 361.) [R]egardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. (Ibid.)
In arguing that a Mayberry instruction was required here, defendant relies on the following passage from Williams: We note for the guidance of the lower courts that there may be cases, as in Mayberry, in which there is evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, but also evidence that this equivocal conduct occurred only after the defendants exercise or threat of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. ( 261, subd. (a)(2); [citations].) No doubt it would offend modern sensibilities to allow a defendant to assert a claim of reasonable and good faith but mistaken belief in consent based on the victims behavior after the defendant had exercised or threatened force violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another. [Citations.] However, a trier of fact is permitted to credit some portions of a witnesss testimony, and not credit others. Since a trial judge cannot predict which evidence the jury will find credible, he or she must give the Mayberry instruction whenever there is substantial evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, despite the alleged temporal context in which that equivocal conduct occurred. The jury should, however, be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (People v. Williams, supra, 4 Cal.4th at p. 364, original italics.)
Defendant apparently contends that, even though his victims testified that he used force, violence, duress, menace, or fear of immediate and unlawful bodily injury ( 261, subd. (a)(2)) against them, it was up to the jury to decide whether defendant nonetheless had a good faith but mistaken belief that they consented to sexual acts with him. A review of the relevant evidence as to each of the victims he admitted picking up does not support this argument:
Mallory Doe: Mallory testified that defendant held her against her will over two days, during which time he bound her hands behind her back with duct tape and did not remove the tape the entire time she was with him, tied her up with rope, threatened her with a knife and later stabbed her, and forced her to have sex with him and to orally copulate him. By contrast, defendant testified that he picked up Mallory as a prostitute, paid her to have sex with him, then just kind of hung out a little bit and talk[ed] at the home where he was house sitting, before dropping her off at a Hayward motel without incident. As in Williams, these wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victims] conduct. (People v. Williams, supra, 4 Cal.4th at p. 362.)
On appeal, defendant points to Mallorys testimony that at one point during her captivity, she was trying to maybe be nice to defendant because she did not want him to stab her or tape her mouth with duct tape again, as he had previously done when she was crying too much when [she] was talking shit to him. Assuming that defendant subjectively believed that Mallory consented to be with him at this point, defendant did not meet the objective component of Mayberry, because his belief was not a reasonable one under the circumstances. (People v. Williams, supra, 4 Cal.4th at pp. 360-361.) Mallory testified that at the time she tried to be nice, she was naked on the couch with her hands duct taped behind her back. At this point in her ordeal, defendant had already raped her twice and forced her to orally copulate him twice, and she was doing anything she could to get him to release her and to prevent him from hurting her more. There was no substantial evidence justifying a Mayberry instruction based on the evidence presented regarding Mallory.
Jane Doe: Jane testified that she accepted a ride with defendant because her bus had not arrived, and that he drove her against her will to an isolated location, ripped off her pants, and forced her at knifepoint to have sex with him. Defendant testified that he picked up Jane as a prostitute and that she agreed to have sex with him, but that he forced her out of his car after she tried to take his wallet. He focuses on appeal on the reasons it was reasonable to conclude, contrary to Janes testimony, that she was working as a prostitute on the night in question, but does not point to any equivocal conduct by Jane as to the sexual acts in which they engaged. He also acknowledges that he used force against Jane, but that he did so only after she tried to take his wallet and pulled a knife out of her purse. This use of force, if believed, was not relevant to a determination of whether Jane consented to have sex with defendant. And again, as in Williams, defendants and Janes wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [Janes] conduct. (People v. Williams, supra, 4 Cal.4th at p. 362.)
Van Doe: Van testified that defendant forced her at gunpoint into his car, drove her to another location, tied her wrists together behind her back, and raped her and forced her to orally copulate him. Defendant claimed that he picked up Van as a prostitute, drove her to another location, and paid her to have sex with him, and then drove her back to where he had picked her up without incident. Again, there was no middle ground from which defendant could argue he misinterpreted the victims conduct. (People v. Williams, supra, 4 Cal.4th at p. 362.) Defendant suggests on appeal that perhaps the jury believed that defendant picked up Van as a prostitute and did not use a gun or force until after he drove her to a secluded location. Even if this scenario had any evidentiary support in the record (which it does not), it does not amount to substantial evidence of Vans equivocal conduct regarding the sexual acts in question.
Catrina Doe: The evidence regarding Catrina Doe provides a perhaps somewhat closer question. Catrina acknowledged that she was working as a prostitute on the night in question. She testified that after she asked defendant for payment before they had a sexual encounter as they had agreed, defendant told her, Bitch, youll do whatever the fuck I say, helped her take off clothing that she told him she did not usually remove because of a disability, grabbed the back of her head hard and forced her to orally copulate him without using a condom, ejaculated in her mouth (something she would not have allowed a customer to do), then said he had a knife and forced her out of the car. Defendant claimed that Catrina started to orally copulate him as they had agreed, but that he pushed her out of the car after she tried to take his wallet.
Defendant argues on appeal that [t]he evidence presented did not preclude a belief on appellants part that he was only taking what was paid for, notwithstanding the fact that he testified at trial that he never paid Catrina. Had the jury credited defendants testimony regarding Catrina, the evidence would have supported a defense of actual consent to oral copulation. Although Catrina testified that defendant helped her out of her clothing, which might support an inference that he reasonably believed he was facilitating the sexual encounter they had previously agreed to, she also testified that this happened right after he threatened her. He also grabbed the back of her head hard in order to force her to orally copulate him. A review of all the relevant testimony leads us to conclude that substantial evidence did not support a Mayberry instruction under the circumstances.[15]
The most that could be said for defendants testimony [about Mallory, Jane, Van, and Catrina], if credited, is that the victim[s] actually consented, not that he mistakenly believed [they] had done so. Accordingly, there being no evidence defendant relied on a mistake-of-fact defense nor any substantial evidence to support such a defense [citation], the trial court did not err by failing to instruct the jury, sua sponte, with the Mayberry mistake-of-fact instruction. (People v. Dominguez, supra, 39 Cal.4th at p. 1149.)
C. Substantial Evidence Supports Defendants Convictions.
Defendant claims that insufficient evidence supports four of his convictions. When reviewing a claim of insufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139.) We must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment the existence of every fact that the jury could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314.) Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (Ibid.) We consider defendants arguments in turn.
1. Kidnapping of Mallory Doe
Defendant first challenges the sufficiency of the evidence supporting his conviction for kidnapping Mallory Doe. ( 207, subd. (a)count 10.) As the jury was instructed, conviction of kidnapping requires proof that (1) a person was unlawfully moved by use of force or any other means of instilling fear, (2) the movement was without her consent, and (3) the person was moved a substantial distance. (CALJIC No. 9.50; ¼/textarea>
Notes