P. v. Kennaley

Filed 9/29/06 P. v. Kennaley CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant Mark Adam Kennaley of felony assault with intent to commit rape and misdemeanor indecent exposure. (Pen. Code, §§ 220, 314, subd. (1) [all further section references are to this code].) The court sentenced defendant to the aggravated term of six years in prison on the assault conviction and imposed a one-year county jail term for indecent exposure, which was stayed pursuant to section 654. The court also imposed a consecutive eight-month prison term for an earlier drug offense for which defendant had been on probation at the time of the assault. Defendant appeals his conviction for assault and indecent exposure upon claims of evidentiary, instructional and sentencing errors. We reject the claims and affirm the judgment.

facts

Melanie S., age 27, went to a mini-market at a gasoline station in Fairfield on October 23, 2003, at approximately 1:00 a.m., to buy a snack. Defendant was also at the store. The store’s surveillance videotape shows defendant enter the store as Melanie is starting to leave. The videotape shows defendant walking into the store and behind an aisle but then immediately following Melanie outside when she departs. Defendant did not purchase anything or approach the counter. At trial, defendant testified that he stopped at the store after seeing a movie and “looked around a little bit to see if there was anything [he] wanted to buy, and then [he] noticed that [he] didn’t have any money, well, but a couple dollars, maybe” and left.

Defendant testified that he then saw Melanie for the first time outside the store, despite the videotape showing him passing within six feet of her when entering the store. Defendant testified that he decided to call a friend “to see if they [sic] were doing anything,” and asked Melanie if the phones worked. According to defendant, Melanie did not respond and he walked toward the phones, but then decided against making the call because he had to work the next morning. Defendant said Melanie did speak, but not to him. He said that she was yelling, but only to herself. Defendant testified that he went straight home after his stop at the store.

Melanie and other witnesses provided a starkly contrasting account of events. According to Melanie, defendant accosted her outside the store, and asked her if she “want[ed] to make some money.” Melanie understood defendant to be “solicit[ing] [her] for sex,” and said “no.” The store cashier testified that he saw defendant converse with Melanie and saw her backing away from defendant, talking loudly. The cashier “went outside to make sure that she was all right.” The cashier heard Melanie say “no” a couple times, and defendant looked over at the cashier and left. The cashier testified that Melanie then walked away, and defendant drove his car in the same direction.

Melanie testified that defendant followed her in his car, and again propositioned her. Melanie said “no” and defendant drove away. Melanie tried to get his car’s license plate number. She then went to telephone the police at a pay phone near McDonald’s. As Melanie was placing the call, defendant came up and hung up the phone.[1] Melanie was scared of defendant and walked away from him. Defendant followed her, punched her in the head, grabbed her arm, and struck her again. He stopped hitting Melanie and returned to his car, and Melanie ran away. Defendant chased her down and kicked her in the back. Melanie told defendant: “stop, don’t hurt me,” and he replied: “[y]ou are going to get hurt,” and pulled his penis from his pants. Defendant said, “You are going to give me some,” according to Melanie’s later statement to the police. Melanie screamed and a neighbor came to her aid.

The neighbor, Benjamin A., testified that he was asleep when he heard “banging” and Melanie calling his name. Benjamin said he heard a man say, “give it up or I’m going to beat the [___] out of [you].” Benjamin went outside and Melanie’s attacker ran away. The man ran toward McDonald’s and Benjamin heard a car start. Melanie was crying and told Benjamin that the man had tried to rape her, and Benjamin telephoned the police. Benjamin testified that he debated about calling the police because he had a conviction for commercial burglary and knew that a warrant had been issued for his arrest on a parole violation. Benjamin did call the police and provided a statement, but he used a false name. By the time of trial, Benjamin had served time for his parole violation.

Benjamin was cross-examined on whether he actually saw Melanie’s attacker. Benjamin testified that he did see the assailant, and made an in-court identification of defendant. Benjamin said he could not remember whether he told the police that he saw the assailant, and may not have provided that information because he “didn’t want to get into trouble” and go back to prison. The police officer who interviewed Benjamin testified that the witness said he could not identify Melanie’s attacker because it was very dark. The officer noted, however, that the area was actually “fairly lit.” Benjamin, for his part, insisted at trial that defendant was the assailant: “I swear this is the man I saw.”

The police questioned defendant the same morning as the reported assault. Officer Dennis Flores testified that a police briefing informed him of a possible sexual assault by a “white male between 20 and 30 years of age” with a ponytail and hazel eyes driving a “Lincoln Continental-type vehicle” with “front-end damage, possibly tan in color.”[2] A vehicle matching that description was familiar to Officer Flores, and the officer soon located it on his patrol. Officer Flores found defendant, an approximately 20-year-old white male with hazel eyes and a ponytail, driving a boxy Lincoln of a faded “silver or beige color” that had front-end damage. Defendant’s license plate number was 3KBN208.[3] The officer told defendant that the police were investigating a possible assault and asked him if he had been at the mini-market at about 1:00 that morning, and defendant said yes. Defendant was asked “if he had any contact with a female under any circumstances during that time,” and defendant said “no.” The officer told defendant that the store had a surveillance camera, and defendant then admitted that he had seen a girl but “that he didn’t do anything to her.” Defendant said he heard the girl “yelling something” but never spoke to her. The officer asked defendant what the girl was yelling, and defendant said he could not remember.

Melanie tentatively identified defendant as her attacker during a photographic lineup. Melanie said she believed defendant was her assailant, but was not positive. At trial, Melanie explained that she could not be sure about the photograph, but was certain that the defendant sitting in court was the man who attacked her.

Defense counsel called Melanie’s grandmother to the witness stand. The grandmother, Dorothy S., raised Melanie, and Melanie still lived with Dorothy. Defense counsel asked if the witness had ever heard Melanie talk to herself, and the witness said no. The store clerk had testified that he frequently saw Melanie talking to herself. The clerk thought that Melanie “has a kind of a strange affect when she talks.” The clerk also said that Melanie came into the store “quite a bit” in the early morning hours between midnight and 5:00 a.m. Benjamin, the neighbor, testified that he knew Melanie because she would walk down the streets picking up money. When Dorothy was asked if Melanie frequently walks around at night, Dorothy replied, “[s]ometimes she walks.” Asked if Melanie’s walks are late at night, Dorothy said, “[n]o, not too late.” Objections were lodged and sustained when counsel questioned Dorothy about Melanie’s medical history, employment status, whether Melanie frequents drive-up windows when she is walking around, and what Melanie does when she walks at night. The court also sustained an objection when defense counsel asked if Melanie had been attacked or assaulted before the incident on trial.

Defense counsel asked Melanie if she ever walks around at night, and she said no. When asked what she was doing on the morning of the reported assault, Melanie said she went to the store to buy crackers and exchange quarters for a roll of pennies (Melanie earlier testified that she collects coins). Melanie conceded that she walked to the store. Melanie also admitted returning to the mini-market the night following the reported assault. The court sustained an objection to defense counsel’s question asking if Melanie “ever stood at drive through windows waiting for people to drop change.” Melanie denied talking to herself.

Out of the presence of the jury, defense counsel asked to call Deputy District Attorney John Ellis as a witness. Defense counsel said that Ellis had related conversations in which Melanie and Dorothy told Ellis that Melanie “walked around all night, late at night, almost every night,” and the defense wanted to use Ellis to establish inconsistencies in the women’s testimony. The prosecutor at trial objected and the court sustained the objection, finding the proffered evidence to be cumulative.

Defendant testified in his own defense. He denied propositioning Melanie, following her, hitting her, or doing anything to her. He admitted a prior felony conviction for possessing marijuana for sale.

discussion

Defendant argues that the credibility of Melanie, the complaining witness, was suspect because Melanie may have a mental disability, and the trial court erred in limiting cross-examination of Melanie and her grandmother about Melanie’s behavior, employment status, and medical history that sought to prove a disability. In a similar vein, defendant argues that the court erred in excluding proffered testimony inconsistent with statements by Melanie and her grandmother about whether Melanie walks around at night. Defendant also claims instructional and sentencing errors. We find no errors.

A. Evidentiary rulings limiting questions on cross-examination as irrelevant and cumulative.

On relevancy grounds, the court sustained objections to questions by defense counsel asking Melanie if she “ever stood at drive through windows waiting for people to drop change” or had been attacked or assaulted before the incident on trial. The court also sustained relevancy objections when counsel questioned Melanie’s grandmother about Melanie’s medical history, employment status, whether Melanie frequents drive-up windows when she is walking around, what Melanie does when she walks at night, and if Melanie had previously been attacked or assaulted.

On appeal, defendant argues that the court’s evidentiary rulings violated his constitutional rights by denying him meaningful cross-examination of the complaining witness and her grandmother. Defendant notes that the store clerk testified that Melanie walked at night, talked to herself, and “has kind of a strange affect when she talks.” Defendant argues that this evidence suggested that Melanie has a mental disability that impacted her capacity to perceive, recollect, or communicate, and thus her credibility. The argument is untenable.

It is true, as defendant argues, that “the mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall, or describe the events in question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592.) This principle is sound, but it has no application here. There is no factual basis for asserting that Melanie suffered from a mental disorder, much less one that affected her capacity to perceive, recollect, or communicate. Melanie was a coherent witness who reported to the police, and provided trial testimony, on specifics of the crime including a detailed description of defendant and his vehicle. Those descriptions accurately described defendant’s eye color as hazel and recalled his license plate number within a single character. As the People properly note, the evidence that Melanie walked at night, talked to herself and “has kind of a strange affect when she talks” is not particularly probative of a mental disorder, especially one affecting the witness’s credibility. A trial court retains discretion to restrict “cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v. Frye (1998) 18 Cal.4th 894, 946.) Cross-examination about Melanie’s activities, employment status, and medical history were of marginal relevance.

Defendant relies upon People v. Anderson (2001) 25 Cal.4th 543 (Anderson) for the proposition that cross-examination about a witness’s clinical history is proper. The reliance is misplaced, as Anderson is far from an endorsement of such cross-examinations. In Anderson, our Supreme Court found that a trial court acted properly in sustaining a relevancy objection when defense counsel asked a murder witness if she had ever been in therapy. (Id. at p. 578-579.) Other evidence had established that the witness was delusional; the witness insisted that her imaginary son was present at the murder. (Id. at p. 571.) The court nevertheless held that evidence of the witness’s psychological therapy was not relevant to her credibility about the murder. (Id. at p. 579.) “It is a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. ‘A person’s credibility is not in question merely because he or she is receiving treatment for a mental health problem.’ “ (Ibid.) Alternatively, the court stated that “[e]ven if examination of a witness about treatment for mental illness might sometimes be relevant, here[,] evidence that [the witness] had received therapy would have added little to the specific evidence, largely undisputed, that she had significant fantasies.” (Ibid.) The court noted that it was sufficient that defense counsel was allowed to cross-examine the witness about “the specific delusions that might impair the accuracy of her testimony. Nothing more was necessary.” (Ibid.)

Here, as in Anderson, defense counsel was free to test the witness’s perception of the events at issue. Nothing more was necessary. While using a few lines from Anderson on his behalf, defendant overlooks Anderson’s holding that the clinical history of a delusional witness was irrelevant. (Anderson, supra, 25 Cal.4th at p. 579.) Defendant fails to distinguish that holding and explain why a witness who possibly talks to herself is subject to cross-examination on her clinical history while a witness who invents an imaginary child is not.

Defendant also fails to establish any constitutional violation in the trial court’s exclusion of Deputy District Attorney Ellis’s cumulative testimony that Melanie walked at night. The store clerk testified that Melanie walks up and down the street “all the time” and frequents the store between midnight and 5:00 a.m. Defendant testified that he “always see[s] [Melanie] out at nighttime walking around.” When defense counsel asked Melanie if she “ever walk[s] around at night,” she said no. But Melanie admitted walking to the store on the night of the reported assault, and the following night. Melanie’s grandmother testified that Melanie “sometimes” walks around at night but “not too late.”

The court excluded, as cumulative, the proffered testimony of Deputy District Attorney Ellis that Melanie and the grandmother told Ellis that Melanie “walked around all night, late at night, almost every night.” Defendant argues on appeal that exclusion of this testimony prevented him from impeaching Melanie’s inconsistent statement about walking at night, and from introducing evidence of unusual behavior that would have brought Melanie’s mental state into question. The court did not abuse its discretion in excluding the evidence. The proffered testimony was cumulative.

Melanie admitted walking to the store at night, and Melanie’s grandmother conceded that Melanie walks at night. The only disputed point was not whether Melanie walks at night, but the characterization of those walks. Defense counsel relied upon the testimony of the store clerk and defendant to suggest an aimless wandering. Melanie denied that suggestion by saying that she does not just “walk around,” and explained that she walks with a purpose and destination. The proffered testimony that Melanie walks around at night would have added nothing new to the state of the evidence. Moreover, any proclivity for night walks is not proof of a mental illness affecting the witness’s ability to perceive, recall, or describe the events in question.

In any event, even if the trial court erred in limiting cross-examination or excluding the proffered testimony, the error was harmless. Contrary to defendant’s claim, his conviction does not rest upon Melanie’s credibility. Melanie’s testimony found support in numerous physical details, including her near perfect recapitulation of defendant’s license plate number. Her testimony was also corroborated by independent witnesses. The store clerk saw Melanie back away from defendant, loudly telling defendant “no.” Melanie’s exchange with defendant was sufficiently worrisome that the clerk “went outside to make sure that she was all right.” The clerk then saw defendant drive away, in the direction Melanie walked. Shortly afterwards, a neighbor heard a man threaten and beat Melanie. At trial, the neighbor identified defendant as the assailant. The jury thus had far more than Melanie’s testimony in deciding defendant’s guilt or innocence.

B. Jury instructions.

Defendant claims that the court erred in instructing the jury with CALJIC Nos. 2.03 and 2.62. Defendant did not object at trial to these instructions, thus forfeiting his claim on appeal. We also conclude that the jury was properly instructed, and any instructional error was harmless.

The court administered CALJIC No. 2.03, as follows: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

Defendant argues that the record does not support giving this instruction because there was no evidence that he made a false pretrial statement. Defendant misreads the record. The prosecution presented evidence that defendant initially denied having any contact with a woman at the mini-market on the night of the reported assault--a denial he later recanted.

Officer Flores testified that, when first questioned about activities at the store, defendant denied having “any contact with a female under any circumstances.” According to Officer Flores, it was only after defendant was told that the store had a surveillance camera that defendant admitted having verbal contact with Melanie. At trial, defendant admitted verbal contact and said the contact consisted solely in his asking her about the working order of a pay phone he thought about using but ultimately did not use. Defendant also tried to explain Officer Flores’s testimony about an initial denial of contact with Melanie. Defendant said Officer Flores did not ask about “any contact with a female under any circumstances,” but instead asked if defendant had a “confrontation” with anyone. Defendant testified that it was to this latter question about a confrontation to which he answered “no.”

Defendant relies upon his own testimony, to the exclusion of Officer Flores’s, in arguing that there was no factual basis for the CALJIC No. 2.03 instruction. Defendant maintains that his trial testimony provided the “full version” of his conversation with Officer Flores. Defendant seems to think that his testimony negated Officer Flores’s account of the initial denial of contact because defendant explained that Officer Flores did not really ask if defendant had “contact” but asked if defendant had a “confrontation.” But Officer Flores’s testimony clearly presented a conflict in the evidence that was not reconciled by defendant’s attempt to explain it away. Officer Flores testified that defendant “answered ‘no’ to the simple question if he had any contact with a female under any circumstances” at the store on the night in question. This testimony provided evidence of a false pretrial statement and CALJIC No. 2.03 was properly administered to guide the jury’s determination as to whether “the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried.”

Defendant’s challenge to CALJIC No. 2.62 is similarly unavailing. The jury was instructed as follows: “In this case the defendant has testified to certain matters.

If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence, and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.

The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential elements [sic] of the crime and the guilt of the defendant beyond a reasonable doubt.

If a defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.” (CALJIC No. 2.62.)

Defendant argues that there was no factual predicate for the instruction because he explained or denied everything that was within his knowledge. Again, defendant misreads the record. While defendant provided testimony on many subjects that denied or explained much of the prosecution’s evidence, not all matters were covered. For example, the prosecution presented evidence that Melanie was able to recall defendant’s license plate number to within a single character. Defendant offered no explanation for why a stranger would know this information. On appeal, defendant maintains that his testimony compelled an “inference” that Melanie was familiar with defendant and his vehicle. His testimony was far less compelling than he represents. Defendant testified only that he worked in the area and regularly parked near the store frequented by Melanie. That testimony does nothing to explain Melanie’s memorization of his license plate number.

In any event, any error in giving the disputed jury instructions was harmless. CALJIC No. 2.03 charged the jury with evaluating whether defendant made a false pretrial statement, and clearly advised the jury that even a false pretrial statement was insufficient to prove guilt. (CALJIC No. 2.03.) CALJIC No. 2.62 likewise does not direct the jury to draw an inference of guilt but merely allows consideration of a defendant’s failure to explain or deny prosecution evidence as tending to prove the truth of the evidence. (CALJIC No. 2.62.) The jurors were also given CALJIC No. 17.31, stating that they were to “disregard any instruction which applies to a state of facts which you determine does not exist.” “While such an instruction does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction.” (People v. Saddle (1979) 24 Cal.3d 671, 684.)

Here, there was no prejudicial effect given the strong evidence of guilt. The complaining witness provided a detailed account of the assault and forcefully identified defendant as her assailant. Her testimony was supported and corroborated by independent witnesses, a 911 telephone call, and store surveillance videotape. Any instructional error was harmless.

C. Sentencing

Defendant challenges the trial court’s imposition of an aggravated prison term for assault. Defendant contends that our Supreme Court erred in People v. Black (2005) 35 Cal.4th 1238, in concluding that the federal constitutional right to a jury trial on factfinding as announced in Blakely v. Washington (2004) 542 U.S. 296 does not apply to the imposition of an aggravated prison term under California’s determinate sentencing law. Defendant concedes that we are bound by Black, and states the claim only to preserve it for further and federal court review. We are so bound, and thus deny defendant’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

disposition

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P.J.

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Rivera, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] Officer Greg Hurlbut testified that the McDonald’s pay phone was “where we received the 911 call from [Melanie].” No additional evidence was admitted to verify the telephone call. Out of the presence of the jury, defense counsel objected to further reference to the call because no evidence of the call was produced in pretrial discovery. The prosecutor represented that there was no recording of a 911 call “because nobody ever said anything.”

[2] The police officer who took Melanie’s statement, Officer Greg Hurlbut, confirmed that Melanie provided the suspect’s description used by Officer Flores. According to Officer Hurlbut, Melanie had described her assailant’s car as “a large tan vehicle.” Officer Hurlbut said the details about the possible make of the vehicle and its front-end damage were not obtained from Melanie. But Melanie testified that she told the police that the vehicle was a Lincoln Continental, and noticed its front-end damage when it was parked at the mini-market.

[3] Melanie provided substantially the same license plate number to the police during their investigation: 3KBM208.