P. v.
Filed 11/6/13 P. v. Moore CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EARL KEVIN
MOORE,
Defendant and Appellant.
A133224
(Alameda County
Super. Ct. No. CH49975A)
This
case involves sexual conduct that began as a consensual encounter, but then
became non-consensual when Earl Kevin Moore wanted the victim to engage in
sexual conduct with another woman. The
victim did not want to do this, and appellant forced her to do so, despite her
resistance. The defense consisted of
appellant’s testimony that the entire encounter was consensual.
Moore
was charged with two counts of forcible
oral copulation in concert (Pen. Code, § 288a, subd. (d)(1)),
foreign object (§ 289, subd. (a)(1)(A)), and attempted rape by a foreign object
in concert (§ 264.1, subd. (a)). A jury
found Moore guilty on all four counts and Moore was sentenced to a prison term
of 60 years to life.
On
appeal, Moore alleges the following errors:
(1) the court improperly allowed testimony concerning prior instances of
non-consensual sexual activity; (2) the court improperly responded to a
question by the jury during deliberation, removing an element of the count of
attempted rape by a foreign object in concert from the jury’s consideration;
(3) the court erred by failing to hold a hearing pursuant to
continuance, at sentencing, so that retained counsel could replace his
appointed counsel; and (4) the sentence included two five-year enhancements for
prior convictions, pursuant to section 667, subdivision (a)(1), even though
only one enhancement was authorized, because the prior convictions were not
brought and tried separately.
The
People concede the sentencing error that Moore alleges and we strike one of the
two five-year enhancements.
We
conclude that in responding to the jury’s query concerning the count of
attempted rape with a foreign object in concert, the court erred and removed an
element of that count from the jury’s consideration. Because we are unable to conclude that,
absent the error, the jury would have convicted Moore on this count beyond a
reasonable doubt, we must reverse Moore’s conviction on the count of attempted
rape with a foreign object in concert.
Because the sentence for that count was concurrent with the sentence on
another count, our decision does not affect Moore’s aggregate sentence.
We
find no merit in Moore’s other assertions of error.
Moore
has also filed a petition for writ of habeas corpus, alleging ineffective
assistance of counsel. Because Moore
fails to make a prima facie showing of prejudice, we have denied his petition
in a separate order.
On
January 11, 2011, the People filed an information charging Moore with two
counts of forcible oral copulation in concert (§ 288a, subd. (d)(1
with a foreign object (§ 289, subd. (a)(1)(A)) (count three); and attempted
rape by a foreign object in concert (§ 264.1, subd. (a)) (count four).
The
information also alleged prior convictions for the following violations: (1) possession for sale of a controlled
substance (Health & Saf. Code, § 11351); (2) possession for sale of a
controlled substance (Health & Saf. Code, § 11378); (3) accessory
after the fact (§ 32); (4) voluntary
manslaughter (§ 192, subd. (a)); (5) voluntary manslaughter (§ 192,
subd. (a)); (6) commercial burglary (§ 469); (7) possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a)); and (8) false
personation (§ 529). The allegations of
convictions for voluntary manslaughter carried subsidiary allegations of prior
separate prison terms, without remaining free of custody for five years following
release (§ 667.5); of being serious felonies within the purview of section 667,
subdivision (a)(1); and of being prior strikes, requiring sentencing pursuant
to sections 1170.12, subdivision (c)(2), and 667, subdivision (e)(2). The allegation of a prior conviction for
commercial burglary also carried a subsidiary allegation of a prior prison
term, without remaining free of custody for five years following release.
Testimony
before a jury commenced on May 2, 2011.
On May 9, 2011, the jury found Moore guilty on all counts as
charged.
Moore
waived trial by jury on the prior offenses and on May 10, 2011, the court found
true the allegations of prior convictions for voluntary manslaughter (fourth
and fifth alleged prior convictions).
At
the sentencing hearing on July 28, 2011, Moore requested a continuance because
he had hired an attorney to replace his appointed counsel and the new attorney
was unavailable. The court denied the
motion as untimely. The court then
denied Moore’s Romero motion to
strike the prior convictions found true by the court. The court imposed sentence as follows: (1) 25 years to life on count one, plus five
years for each of the two prior manslaughter convictions, pursuant to section
667, subdivision (a)(1); (2) 25 years to life on count two, plus five years for
each of the two prior manslaughter convictions, to be served concurrently with
the sentence on count one; (3) 25 years to life on count three, plus five years
for each of the two prior manslaughter convictions, to be served consecutively
to the sentence on count one; and (4) 25 years to life on count four, plus five
years for each of the two prior manslaughter convictions, to be served
concurrently with the sentence on count three.
The aggregate sentence was 70 years to life.
On
August 10, 2011, the court amended the sentence to strike the additional
five-year enhancements for the two prior convictions from the sentences for
counts two, three, and four, resulting in an aggregate sentence of 60 years to
life.
On
September 6, 2011, Moore filed a timely notice of appeal.
A. The Prosecution Case
1. The Victim’s Account
Moore
and the victim, A. Doe, had known each other for several months before the events
at issue in this case. On September 24,
2010, shortly before midnight, Doe phoned Moore after she had had an argument
with her boyfriend. Moore drove to a
location in Richmond, where they had agreed to meet, and picked her up. Moore asked Doe for oral sex, but Doe said she
would not do this in the car, and agreed to go with Moore to a residence in
Fremont.
Moore
drove with Doe to the home of Lashonda Pleas. When they arrived, Moore, Doe, and Pleas went to
an upstairs bedroom. Pleas left to go to
a store and, while she was gone, Moore and Doe had consensual sex. Pleas then returned.
Doe
told Moore and Pleas that she could not have sex with Pleas present. Moore told Doe, “You got to do her. You have to go down on her.†Doe refused, but Moore pushed her back on the
bed as she tried to get up and told Doe that she and Pleas were going to “doâ€
each other. As he held Doe down on the
bed, Moore told Pleas to open Doe’s legs and Pleas tried unsuccessfully to do
so. Moore then maneuvered Doe’s legs up
and back while Doe was “hollering and screaming and fighting.†Pleas then placed her mouth on Doe’s
vagina.
Pleas’s
two sons, who were in the residence, heard the screaming and forced open the
door to the bedroom. Moore told the
young men that “everything is all right†and as Moore and Pleas talked with
them, Doe dressed and ran outside. Doe
used her cell phone to leave messages with several people. One of these people was Wanda Lattier, who
testified that in the voicemail message, Doe sounded scared, said she was with
a man named “Kevin,†and gave a car license number.
Pleas
then came outside and told Doe that everything would be all right. Pleas asked if Doe smoked crack and Doe said
that she did. Pleas offered to make Doe
a crack pipe and Doe went back into the house, and returned with Pleas to the
bedroom. Doe then smoked crack cocaine
from a pipe that Pleas constructed. Doe stated
that she was not surprised that crack was there because Moore had previously
told her that he was selling or using it.
As
Doe smoked, Moore told her that he would make her have sexual contact with Pleas. Doe refused and threw the pipe. Moore told Doe that she was being
disrespectful and pushed her back onto the bed.
Doe was “fighting and wrestling,†saying “Please don’t do it. Please stop.â€
Moore pulled Doe’s pants down from the back and inserted three fingers
into Doe’s anus, telling her she was going to “do it.†As Moore did this, Pleas positioned her
vagina close to Doe’s face. Doe
experienced pain from Moore’s fingers in her anus and she was “hollering and
screaming, telling him, no.†Eventually,
against her will, Doe put her mouth on Pleas’s vagina. After Doe told Moore that she had done so,
Moore told her that she would have to continue and that he was going to be
forced to kill her because she was fighting him.
During
the struggle, Moore began to stuff Doe’s shirt into her mouth because she was
yelling. He hit her on the side of her
face and told her to be still. Moore
told Pleas to get a rope and Pleas brought a cell phone charger cord. Moore threw it and said he had asked for
rope. Moore then told Pleas he was going
to “stick something in her†and directed her to find something. Pleas came back with a plastic water
bottle. Moore then tried to insert the
bottle into Doe’s vagina, but was unsuccessful because Doe kept her legs
tightly closed. Doe continued to scream
and begged Moore to let her go.
Pleas’s
sons again came into the room and asked what was happening. Doe gathered her things, begged the sons to
call the police, and went into a bathroom, where she saw that her face was
bleeding. Doe then ran out of the
house. She saw a car pulling into a
nearby driveway and she asked the owner to call the police, which he did. One of Pleas’s neighbors, Kevin Kohn,
identified himself as the owner of the car and confirmed that he called the
police for Doe, who appeared very upset.
Police
Officer Lindsay Snyder responded to the call and described Doe as being
“visibly upset, crying.†Doe gave
limited answers and was “hysterical.â€
2. Doe’s Injuries
The
jury was shown photos, taken of Doe after the police came, depicting injuries
to Doe’s face and eyes and bruises on an arm.
Doe testified that Moore caused these injuries.
Betty
Noey, a registered nurse, examined Doe on September 25, 2010. Noey observed redness on Doe’s left upper arm
and bruising on her right thigh and left inner leg. There was tenderness on multiple areas of
Doe’s head, and swelling of her right cheek.
The right part of Doe’s nose was swollen and there was a suction injury
on her left cheek. There was also
tenderness on the right side of the neck. The vaginal examination showed a white
discharge.
During
the examination, Doe related sexual acts that included penetration of the anus
with the fingers, and attempted penetration of the anus with the penis. She did not have signs of bruising or bleeding
at her anus, but that did not mean she could not have been penetrated with
fingers.
3. Pleas’s Account
Pleas,
who had entered a plea to reduced charges in exchange for truthful testimony,
testified that she had been involved in a sexual relationship with Moore for
six years. She described Moore as an
abuser who would physically assault her.
Moore had punched her, slapped her, kicked her, and twice had tried to
run her over with his car. Moore
threatened to kill her if she left him.
Pleas’s
description of the incident was consistent with Doe’s regarding the use of
force and Doe’s repeated refusal to participate in oral sex with Pleas. After Moore and Doe arrived at her residence,
she went to the store. When she
returned, Moore wanted Pleas to perform oral sex on Doe, and when Doe said she
did not do that with women, Moore tried to pry open her legs. Moore eventually maneuvered Doe’s legs over
her head and Pleas complied with Moore’s direction to perform oral sex on
Doe.
When
Pleas’s sons broke into the room, Moore told them he was not hitting Pleas. Doe then left. Pleas went outside, saw that Doe was upset, and
they discussed smoking crack. Doe
returned to the house, where Moore gave her crack.
After
Doe smoked the crack, Moore told her that she was going to perform oral sex on Pleas. Doe refused, but Moore put Doe’s head between
Pleas’s legs. Doe was crying and Moore
put his fingers in Doe’s anus. Doe asked
Moore to stop and seemed to be in pain.
Pleas
testified that Moore told her to get a bottle, but did not say why he wanted
it. She gave him a bottle and then left
the room. When Pleas returned, Doe was
on the floor and Moore was on top of her.
It appeared to Pleas that Doe and Moore were struggling. Doe was crying and Moore told her to be
quiet. One of Pleas’s sons returned to
the room and Doe left the house.
Pleas
stated that she did not want to have sexual contact with Doe, but complied with
Moore’s demands because she was afraid of him, stating that “[Moore] hits me
and yells . . . if I say no.â€
During their relationship, Moore had asked other women to have sexual
contact with Pleas. On more than five
occasions, Moore forced a woman named Kimberly, now deceased, to engage in oral
sex with Pleas. Pleas and Kimberly would
refuse, but Moore would beat them with a belt or would throw objects at
them. With other women, Moore would
offer them drugs and then ask them to perform oral sex on Pleas. If a woman refused, Moore would slap her and
on “a couple†of occasions, Moore forced the women to do what he wanted. Pleas believed that when Moore and Doe first
had sex, it was consensual, but that the later sexual activity was
nonconsensual.
Pleas’s
son heard yelling and screaming from his mother’s bedroom that night and forced
open the door, concerned for his mother’s safety.
He told the police he did not want
to testify against Moore because of concerns for the safety of his family. He was afraid of Moore because Moore had
bragged to him of murdering someone. The
son denied seeing another woman in the room with Moore and his mother. He saw the other woman only later, after the
police arrived.
B. The Defense Case
Moore
testified on his own behalf. He admitted
that he had prior convictions for possession of a controlled substance for sale
and that he had sustained two convictions for voluntary manslaughter. He described the facts of the manslaughter
offenses as occurring during a struggle with two men who were armed.
Moore
admitted that he had had a sexual relationship with Pleas. He stated that on five occasions a third
person was involved in sexual relations with him and Pleas. Kimberly and Doe were among the other parties
involved.
On
the day of the incident he met with Doe and took her to Pleas’s house in
Fremont. On the way there they were
drinking and Doe was concerned about how she could smoke crack because she had
lost her pipe. Doe also agreed to
perform oral sex on Moore during the drive to Fremont. When they arrived at Pleas’s house, Moore, Pleas
and Doe went upstairs into the bedroom. Pleas
then left to go to a store. While Pleas
was out, Moore and Doe had sex.
After
Pleas returned, Doe smoked crack and Moore asked Doe if she was ready to have
sex again. Doe said that she was ready
and Moore positioned her on the bed with her legs pulled back. Pleas then began to perform oral sex on Doe,
while Doe performed oral sex on Moore.
No physical confrontation occurred at this point.
Doe
then smoked some more crack, after which Doe and Moore engaged in vaginal
sex. Moore asked Pleas for some lotion
and began rubbing it into Doe to prepare her for anal sex. While Moore penetrated Doe’s anus with his
finger to lubricate her, he asked Doe to perform oral sex on Pleas, but Pleas
said she was not ready yet. Pleas moved
down on the bed so that Doe’s head was between her legs and Moore asked Pleas
if Doe had performed oral sex. Pleas
said that Doe had not, but Doe said that she had.
Moore
denied that he hit Doe or forced her to have sex. Instead, he encouraged her to have sexual
contact with Pleas by offering her more crack.
Moore then penetrated Doe’s anus with his penis, but Doe said it hurt
and she leapt off the bed and started to put her clothes on. When she was partially dressed, Moore pulled
her down to the floor with him and asked her to allow him to have sex with her
again. Doe asked for more crack and
Moore said he would get it, but Doe started “hollering.â€
Pleas’s
sons, who were intoxicated, forced the bedroom door open and Moore told them
that everything was all right and left the bedroom to talk with them on the
stair landing. Moore said that he and Pleas’s
sons remained on the landing, talking, for a “couple hours at least.â€
Pleas
left the house to go to the store again and Moore returned to the bedroom and
asked Doe if she wanted to finish having sex.
Doe asked Moore if he had more crack and Moore told her to wait until Pleas
returned. When Pleas returned, Moore
told Doe she would have to wait for crack because he didn’t have any more. Doe then “got hostile†and said she was
leaving. Moore gathered her clothes and
pushed them into her hand and Doe “started flailing with both hands†at him. Moore struck out at her “out of reflex†and
hit her once in the face with his fist.
Doe then went into the bathroom and dressed.
When
Doe left the bathroom, Moore told her he would take her back to Richmond. As they were walking out of the house, Doe
“took off to the right and started yelling, help, help, somebody help me.â€
Non-Consensual Sexual Activity
Moore
contends that the trial court erred in allowing the prosecution to question Pleas
concerning instances in which Moore would force other women, including a woman
named Kimberly, to have sexual contact with Pleas, against the will of both Pleas
and the other woman.
A. Legal Standard
Evidence
Code section 1101, subdivision (a), provides that evidence of a person’s
character, including “evidence of specific instances of his or her conduct,†is
“inadmissible when offered to prove his or her conduct on a specified
occasion.†However, Evidence Code
section 1101, subdivision (b), provides:
“Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim consented) other than his
or her disposition to commit such an act.â€
An
exception to the prohibition of using specific instances of conduct to prove a
defendant’s disposition to commit an unlawful sexual act of which he or she is
accused is provided in Evidence Code section 1108, subdivision (a): “In a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if
the evidence is not inadmissible pursuant to Section 352.â€
“The
admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be
proved or disproved; (2) the tendency of the uncharged crime to prove or
disprove the material fact; and (3) the existence of any rule or policy
requiring the exclusion of relevant evidence, e.g., Evidence Code section 352.†(People
v. Sully (1991) 53 Cal.3d 1195, 1224.)
We
review for abuse of discretion a trial court’s ruling under Evidence Code
sections 1101 and 1108. (
862; People v. Loy (2011) 52 Cal.4th
46, 61.)
B. Background
During
in limine proceedings, the prosecutor informed the court and the defense that Pleas
had informed him about other occasions when Moore had forced women to have
sexual contact with Pleas, becoming violent if the women refused. Pleas had informed him that a woman named
Kimberly, now deceased, was one of the women that Moore coerced. Defense counsel objected to the admission of
this evidence, stating that “it is a reach to use [Evidence Code section] 1108
for unknown people at unknown times and unknown locations without a specific
victim or person.†The trial court ruled
that evidence of prior occasions when Moore coerced women to have sex with Pleas
would be relevant and admissible under Evidence Code section 1108.
At
trial, Pleas testified that on five or more occasions, Moore forced Kimberly to
engage in sexual acts with Pleas, becoming violent if either Kimberly or Pleas
refused to perform the acts he directed.
Pleas also testified that Moore acted similarly with other women as
well, on a total of more than 12 occasions.
After
Pleas testified and before the case was submitted to the jury, the trial court,
after consultation with counsel, decided to admit the evidence under Evidence
Code section 1101, subdivision (b), to show common plan, rather than under
section 1108. The jury was ultimately
instructed that they could consider the evidence for the limited purpose of
deciding whether or not the defendant had a plan to commit the alleged
offenses. In evaluating this evidence,
the jury was instructed to consider the similarity between the uncharged acts
and the charged offenses.
C. The Trial Court Did Not Abuse Its Discretion
Moore
first argues that Pleas’s testimony about uncharged acts was improperly
admitted because “the principal reason for admitting the evidence . . . was to
bolster the prosecution witnesses’ credibility by telling the jury that [Moore]
engaged in this type of conduct with other women.†Citing the general rule that Evidence Code
section 1101, subdivision (b), does not permit “introduction of uncharged prior
acts solely to corroborate or bolster
the credibility of a witness†(People v.
Brown (1993) 17 Cal.App.4th 1389, 1397), Moore concludes that “the
prosecution improperly used a witness to bolster her own credibility under the
guise of section 1101, subdivision (b) ‘common plan’ evidence.â€
We
find Moore’s argument unpersuasive. If
the jury had otherwise been inclined to disbelieve Pleas, Moore fails to
explain how the prior acts evidence would have tended to rehabilitate her
testimony in the eyes of the jury. Also,
if the prior acts evidence was indeed probative for an issue before the jury,
then whether or not it tended to corroborate or bolster the credibility of a
witness, it was not introduced solely
for that effect and the general rule that Moore cites does not come into play.
Perhaps
recognizing that his first argument fails if the prior acts evidence was indeed
probative for showing a common plan, Moore attempts to persuade us that it was
not probative, contending: “The basic
question for the jury was whether [the sexual activity] was consensual (albeit
unsatisfying due to the scarcity of the promised cocaine) or violently
non-consensual. The uncharged acts did
not assist the jury due to the lack of certainty [as to whether those acts were
‘sexual offenses’ as required by Evidence Code section 1108].â€
Pleas’s
testimony could not have made it more clear that Moore, on a number of
occasions, enticed a woman, with the promise of drugs, to have sexual relations
with him in the presence of Pleas, during which he would demand that the woman
have sexual contact with Pleas and that, if the woman refused, he would slap
her and, at least sometimes, force her to do what he wanted. This is exactly the scenario that Doe
described and both relevant and highly probative to the question of whether
Moore was following a common plan that resulted in the charged sexual offenses,
or whether all the sexual activity was consensual. Whether or not the prior acts could have been
admitted under Evidence Code section 1108 is simply not relevant to whether
they were probative, under Evidence Code section 1101, subdivision (b), as
evidence of a common plan.
Finally,
Moore argues that the prejudicial effect of the prior acts evidence outweighed
its probative value and that, under Evidence Code section 352, the evidence should
not have been admitted.
name="_ftnref2" title="">[2] Moore’s argument depends on his prior
contention that the prior acts evidence had little, if any, value in
demonstrating a common plan, a contention we have rejected. Moreover, the prejudicial effect of this
evidence was primarily cumulative, because the jury heard other evidence of
criminal behavior, including drug and manslaughter charges, and Pleas’s
testimony about Moore’s use of force and threats of force against her.
We
discern no abuse of discretion by the trial court in admitting the prior acts
evidence under Evidence Code section 1101, subdivision (b), to show a common
plan. The evidence was probative as to
whether Moore was following a common plan, making it material to the question
of consent, and not unduly prejudicial—satisfying the three principal factors
used to determine the admissibility of prior acts evidence.
A. B
Count
four of the information charged Moore with the attempted rape by foreign object
(a violation of section 289, subdivision (a)(1)(A)), a water bottle, acting in
concert with another person, a violation of section 264.1, subdivision (a),
which provides: “The provisions of Section
264 notwithstanding, in any case in which the defendant, voluntarily acting in
concert with another person, by force or violence and against the will of the victim,
committed an act described in Section 261, 262, or 289, either personally or by
aiding and abetting the other person, that fact shall be charged in the indictment
or information and if found to be true by the jury, upon a jury trial, or if
found to be true by the court, upon a court trial, or if admitted by the
defendant, the defendant shall suffer confinement in the state prison for five,
seven, or nine years.†Charging Moore
under section 264.1, subdivision (a), exposed Moore to a greater term of
imprisonment than would a charge under section 289, subdivision (a)(1)(A).
The
trial court instructed the jury that in order for them to find Moore guilty on
count four, “the People must prove that [Moore] personally committed attempted
rape by foreign object and acted with someone else who aided and abetted its
commission.†The court also instructed
the jury concerning battery and simple assault as lesser included crimes of
count four.
On
May 9, 2011, the second day of deliberation, the jury asked the court for a
reading of Pleas’s testimony concerning the water bottle. The court stated that it would ask the
reporter to prepare to do so. The jury then
asked the court to define “acting in concert.†The court directed the jury to the instruction
already given. This was followed by a
more specific question from the jury: “
‘If Pleas did not aid and abet in concert on count 4 but [Moore] did do the
act, is he guilty or not guilty?’ †The
trial court stated: “I think the best
answer I can give you is that, Pleas’s participation or lack thereof does not
have any bearing on [Moore’s] guilt or lack of guilt for that offense. The basis for his—or your finding as to
whether he has any culpability for that offense would be based simply on what
you believe or not about the testimony of what he did or did not do.†Defense counsel did not object to the trial
court’s answer.
The
jury continued its deliberations and, about an hour and a half after being told
that Pleas’s participation was irrelevant, informed the court that it no longer
needed to hear a reading of Pleas’s testimony and had reached a verdict. The jury found Moore guilty of all four
counts.
Moore
contends that we must reverse the conviction on count 4 because the trial court
erred in its instruction to the jury concerning the effect of Pleas’s
participation, or lack thereof, on Moore’s culpability for count four.
B. Legal Standard
“[A]n erroneous
instruction that omits an element of an offense is subject to harmless error
analysis under Chapman v. California
(1967) 386 U.S. 18.†(
643, 663 (Gonzalez).) “In such cases, ‘the harmless-error inquiry
[asks]: Is it clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the
error?’ †(Ibid.) “Instructional error
as to the elements of an offense is not waived by trial counsel’s failure to
object.â€
v. Mason (2013) 218 Cal.App.4th 818, 823.)
When
the jury is given correct instructions and is then instructed in a way that
tends to override the correct instruction by eliminating an element, a court
will consider the prejudicial effect of the error “in the context of cases
dealing with the failure to instruct on all elements of an offense.†(Gonzalez,
supra, 54 Cal.4th at p. 662.) “[T]here is no category of instructional
error more prejudicial than when the trial judge makes a mistake in responding
to a jury’s inquiry during deliberations.â€
(People v. Thompkins (1987)
195 Cal.App.3d 244, 252-253.)
C. Instructional Error Occurred and was not Harmless
After properly
instructing the jury, the jury asked the court if Moore could be found guilty
on count four even if “[Pleas] did not aid and abet in concert.†The court told the jury that “Pleas’s participation
or lack thereof does not have any bearing on [Moore’s] guilt or lack of guilt
for that offense.†This contradicted the
court’s previous instruction that in order to find Moore guilty on count four,
the jury must find that he “acted with some else who aided and abetted its
commission.â€
The
statutory language of section 264.1, “acting in concert,†requires the
participation of more than one person.
(See People v. Calimee (1975)
49 Cal.App.3d 337, 341 [“The obvious purpose of the section is to provide
increased punishment where there is a gang sexual assault and to insure that
those who participate in such assaults, either by personally engaging in the
ultimate sexual act or by voluntarily helping others to accomplish it, receive
the enhanced punishment.â€] By telling
the jury that it could find Moore guilty on count four without regard to what Pleas
did or did not do, the court removed the element of “acting in concert†from
the jury’s consideration.
The
People argue that the court’s response to the jury’s query “was correct in the
sense that the jury could find [Moore] guilty on count four of the core offense
of attempted rape by a foreign object irrespective of Pleas’s participation.†This begs the question. Count four was not the “core offense,†attempted
rape by foreign object (§ 289, subd. (a)(1)(A)), but attempted rape by
foreign object in concert (§ 264.1,
subd. (a)). While it is true that the
jury had to find that Moore attempted a violation of section 289, subd.
(a)(1)(A), and that Pleas’s actions were irrelevant to that part of its
determination, the query to the court was about count four, which also required
a finding of acting in concert, for which Pleas’s actions were crucially
relevant.
Here,
the instructional error removed an element of the charged crime from the jury’s
consideration. Because of this error, we
must reverse unless we are satisfied that, absent the error, it is clear beyond
a reasonable doubt that a rational jury would have found Moore guilty on count
four.
Pleas
testified that Moore asked her for a water bottle, without telling her what he
wanted it for, and that she picked one up from the floor, handed it to him, and
left the room. If the jury believed Pleas’s
testimony, then the jury could rationally conclude that Pleas did not aid and
abet the attempted rape with the water bottle.
Doe
testified that Moore asked Pleas for something with which to penetrate her and Pleas
brought him an empty water bottle from the bathroom. If the jury believed Doe’s testimony, then the
jury could rationally conclude that Pleas aided and abetted the attempted rape
with the water bottle.
The
People argue that “[t]here is no reasonable probability that a juror who found
that the attempted rape occurred, could have concluded that the handing or
receiving of the bottle was not a direct act towards its commission.†We agree, but the People continue: “Even if Pleas did not testify that she
provided the water bottle with the specific intent to aid an attempted rape,
the fact is that the jury must have credited [Doe’s] testimony, and Pleas’s
testimony shows that she knew that when she provided the water bottle [Moore]
was attempting a forcible sexual offense.â€
Here we must disagree. The jury
certainly credited Doe’s testimony that an attempted rape with the water bottle
occurred, but Doe’s and Pleas’s testimony diverged concerning what Moore said
when he asked for the water bottle. A
rational jury could credit Pleas’s account over Doe’s, or conclude that Doe’s
account of what Moore said was subject to reasonable doubt. A rational jury could also conclude that if
Moore did not convey to Pleas his intent to rape Doe with the water bottle,
that Pleas could reasonably not have known that intent. Even though Moore was forcing Doe to commit
sexual acts, he had not, prior to asking Pleas for a water bottle, attempted to
penetrate Doe with a foreign object, and a jury could reasonably conclude that Pleas
had no reason to divine Moore’s intent from the simple request of a water
bottle. The jury’s questions to the
court suggest that this was the path of reasoning that some of its members were
following before the court informed them that Pleas’s participation was not
relevant.
The
jury’s questions to the court indicated that the jurors were having difficulty
determining whether Pleas acted innocently in handing Moore the water bottle,
or whether she acted as an aider and abettor.
They requested that Pleas’s testimony about the water bottle be re-read
to them. Before that testimony was
re-read, the court told the jury that what Pleas did or did not do was
irrelevant to the question of Moore’s guilt on count four and the jury very
quickly reached a verdict without a re-reading of Pleas’s testimony. On these facts, it is not clear beyond a reasonable doubt, that a rational jury would
have found Moore guilty on count four absent the
The
conviction of Moore on count four is reversed.
Failure to Hold a Marsden
In
Marsden, the California Supreme Court
recognized that “the decision whether to permit a defendant to discharge his
appointed counsel and substitute another attorney during the trial is within
the discretion of the trial court, and a defendant has no absolute right to
more than one appointed attorney.†(
The Marsden court also held
that when the defendant moves to replace his appointed counsel with another
appointed counsel, “the trial court cannot thoughtfully exercise its discretion
in this matter without listening to his reasons for requesting a change of
attorneys.†(Ibid.) The opportunity
provided a defendant to state his or her reasons for requesting a change of
attorneys is now referred to as a Marsden
hearing.
Moore
contends that when he requested a continuance of his sentencing hearing so that
newly retained counsel could represent him instead of his appointed counsel,
the court should have conducted a Marsden
hearing, but failed to do so. Because of
this alleged error, he asks us to reverse his sentence and remand for a
proceedings.
A. Background
The
jury returned its verdict on May 9, 2011.
About two and a half months later, on July 28, 2011, the court conducted
a sentencing hearing. For the first time
Moore then requested a continuance so that a privately retained attorney,
rather than appointed counsel, could represent him in connection with
sentencing and a motion for a new trial.
Moore stated that his new attorney would not be available until the
following week.
The
court pointed out to Moore that “it doesn’t make sense to have an attorney
represent you at a sentencing hearing in a case that he or she had no contact
or didn’t try. And a person coming into
the situation not knowing what happened at the trial and not having been at the
trial would not really be in a position to make arguments to someone like me that
would be very beneficial.â€
The
court also noted that Moore had had two and a half months to file a
continued: “So I can’t simply sit here
and let someone in your position show up on the day of sentencing . . . and say
I want some time when you’ve had two and a half months. I mean the verdict was handed down by the
jury on May 9th. Today’s July 28th. So we’re closer to three months than we are
two. [¶]
And during that entire time, I’m sure this has been something that has
been on your mind and that you’ve thought about and talked to family members
about it. And you’ve had plenty of time
to make efforts to get counsel to represent you.â€
The
court denied Moore’s request for a continuance.
B. Moore Was not Entitled to a Marsden Hearing
The
People contend that “there is no duty to hold [a Marsden] hearing when a defendant seeks to discharge appointed
counsel and to substitute retained
counsel,†relying on People v. Courts
(1985) 37 Cal.3d 784 (Courts).
The
defendant in Courts was represented
by appointed counsel. (
The defendant attempted to obtain the services of an attorney for the
upcoming trial, but lacked sufficient funds.
(Ibid.) The defendant made a continuing effort to
gather sufficient funds. (
counsel informed the court that the defendant wanted a continuance in order to
hire private counsel. (
it was ‘too late for coming into court . . . to be asking for another attorney’;
[defendant] could not ‘wait to the last minute and say [he wanted] a
continuance.’ †(Id. at p. 788.) The defendant shortly thereafter did retain
private counsel, the motion for a continuance was renewed, and the court again
denied the motion. (Id. at pp. 788-789.) At a
later hearing, the prosecutor made a reference to Marsden and the Courts
court observed: “[R]eliance on
substitution of appointed counsel for
another appointed counsel, was
inapposite. The standards for evaluating
such requests are quite different than those used in the retained counsel
context.†(Id. at p. 795, fn. 9.)
We
agree with the People that Courts
supports the proposition that Marsden
is not implicated when a defendant seeks to substitute retained counsel for
appointed counsel. Moore, however,
argues to the contrary, citing People v.
Lucky (1988) 45 Cal.3d 259 (Lucky).
In
Lucky, the defendant contended that
when his appointed counsel informed the court that defendant was considering
retaining private counsel, the court had a duty to conduct a
supra, 45 Cal.3d at p. 280.) The court ruled that “since defendant never
moved for the discharge or substitution of his court-appointed attorney, and
declined several opportunities afforded him by the court to state any grounds
for dissatisfaction with [appointed counsel], the trial court was under no duty
to make any further inquiries.†(
What
Moore relies upon in Lucky is the
fact that the defendant was considering retaining private counsel and that the
court observed: “[A] trial court’s duty
to permit a defendant to state his reasons for dissatisfaction with his
attorney arises when the defendant in some manner moves to discharge his
current counsel.†(Lucky, supra, 45 Cal.3d
at p. 281, fn. omitted.) Moore concludes
from this that “the desire to discharge appointed counsel is subject to
defendant wants to replace such counsel with another appointed attorney or with
an attorney who is privately retained.â€
We
cannot regard Lucky as silently
overriding Courts. In Lucky,
the issue was whether or not the defendant had, in some manner, moved to
discharge appointed counsel. The court
held that he had not, and, thus, Marsden
was not implicated. The fact that
defendant was considering retaining private counsel was not a material fact
that helped the court reach that conclusion.
The facts and issues here, and in Courts,
are different. Moore, as did the
defendant in Courts, actually
retained private counsel and sought a continuance so that retained counsel
could represent him in subsequent proceedings.
In this situation, Courts observed
that Marsden did not apply because it
was limited to the case in which the defendant seeks to substitute appointed
counsel for another appointed counsel.
We
conclude that because Moore sought to replace appointed counsel with retained
counsel, reliance on Marsden is
inapposite, just as it was in Courts. Thus, the court was under no duty to hold a
abused its discretion when it denied his request for a continuance and we do
not reach that issue.
Section
667, subdivision (a)(1), provides: “In
compliance with subdivision (b) of Section 1385, any person convicted of a
serious felony who previously has been convicted of a serious felony in this
state or of any offense committed in another jurisdiction which includes all of
the elements of any serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for each
such prior conviction on charges brought and tried separately. The terms of the present offense and each
enhancement shall run consecutively.â€
The
court imposed two five-year enhancements pursuant to section 667, subdivision
(a)(1), for Moore’s two manslaughter convictions. The information admitted into evidence
concerning the manslaughter convictions shows that Moore was charged with both
homicides in one proceeding. Because
these two serious felonies were not “brought and tried separately,†Moore
contends that the court erred by imposing two five-year enhancements pursuant
to section 667, subdivision (a)(1), instead of a single five-year enhancement. The People concede the sentencing error and
we agree.
As
a remedy, Moore asks us to simply strike one of the five-year enhancements
imposed pursuant to section 667, subdivision (a)(1). The People argue that “[s]ince the court
ordered that other priors be stricken, and its decision could have been
influenced by the fact that it imposed more than one five-year term, the matter
should be remanded for resentencing.â€
Although
the court did strike the remaining prior offenses alleged in the information
for sentencing purposes, we find nothing in the record indicating that the
court contemplated using them to enhance Moore’s sentence. Moreover, we find no requests by the
prosecution at sentencing that the remaining prior offenses be used to enhance
Moore’s sentence. We conclude that there
is no need to spend judicial resources on a resentencing hearing. Accordingly, we strike the five-year
enhancement added to the sentence for count one for prior offense five. The five-year enhancement for prior offense
four remains.
In
addition to Moore’s direct appeal, he has filed a petition for writ of habeas
corpus, alleging ineffective assistance of defense counsel at trial. This issue is presented in a writ petition
because it is supported by declarations and a police report that are not a part
of the trial record.
A. Background
In
his opening statement, Moore’s counsel stated:
“In our society there are people that you love to hate. . . . [Moore] is one of those people.†Counsel then summarized for the jury the
factual background of Moore’s two prior manslaughter convictions.
When
Moore testified at trial, his counsel asked him about two prior convictions for
possession for sale of controlled substances in 1987. Moore admitted these convictions and, on
further questioning, briefly described the facts underlying the
convictions. Counsel then asked Moore
about his two manslaughter convictions in 1990.
Moore admitted these convictions and, on further questioning, provided
his account of the events that led to those convictions. The prosecutor, on cross-examination,
returned to the manslaughter convictions and questioned Moore extensively. Much of the prosecutor’s questioning
concerned the nature and extent of the gunshot wounds suffered by the two
victims.
Moore’s
defense counsel, in a declaration accompanying Moore’s petition, states that he
believed the facts of the prior convictions would be admissible
the “tactical decision that it would be best for the defense if I introduced
the facts during my opening statement and asked Moore about the facts instead
of having the prosecutor elicit the facts for the first time on
cross-examination.â€
B. Legal Standard
“A
convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.†(Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
A
defendant shows deficient performance by counsel by establishing that
“counsel’s representation fell below an objective standard of reasonableness,â€
measured by “prevailing professional norms.â€
(Strickland,
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.†(Id.
at p. 694.)
“An
appellate court receiving [a petition for writ of habeas corpus] evaluates it
by asking whether, assuming the petition’s factual allegations are true, the
petitioner would be entitled to relief.
[Citations.] If no prima facie
case for relief is stated, the court will summarily deny the petition.†(People
v. Duvall (1995) 9 Cal.4th 464, 474-475.)
C. Moore Fails to Make a Prima Facie Showing of Prejudice
Moore’s
primary charge of deficient representation is that, under the mistaken belief
that the underlying facts of Moore’s prior convictions would be admissible,
defense counsel disclosed those facts in his opening statement and then
questioned Moore about them, leading to an aggressive cross-examination. Moore also contends that defense counsel (1)
did not adequately investigate and prepare for Moore’s testimony about his
prior convictions; (2) did not object to questions that the prosecutor asked
Moore during cross-examination about the prior convictions—questions that Moore
now characterizes as improper and misleading; and (3) did not object to
cross-examination concerning Moore’s use of multiple aliases, dates of birth,
and social security numbers. Moore
claims both that (1) laying the facts of the prior convictions before the jury,
which was not necessary, prejudiced Moore’s case; and (2) the cumulative effect
of all of defense counsel’s alleged failures to meet professional norms
prejudiced Moore’s case.
We
need not determine whether defense counsel’s representation was actually
deficient and fell below prevailing professional norms because we conclude that
Moore has failed to make a prima facie showing of a reasonable probability that
the outcome of his trial would have been different had the jury not heard the
factual background of Moore’s prior convictions and the prosecutor’s cross-examination
about those facts and Moore’s use of aliases.
Moore’s
current case concerned sexual offenses that occurred in 2010 and his
manslaughter convictions occurred in 1990.
The underlying facts of the manslaughter convictions had nothing to do
with the facts of the present case.
Although those facts and Moore’s use of aliases did not help him, we
fail to see how they substantially added to Moore’s problem of convincing the
jury that his account was credible. That
Moore had two manslaughter convictions and prior drug convictions would have
come to the jury’s attention in any case.
Consent
and coercion were the issues before the jury and Doe’s credibility would have
been the jury’s primary focus. Doe’s
testimony was corroborated by Pleas on all material issues, except for what
Moore said that prompted Pleas to hand him the water bottle. While there were discrepancies and
inconsistencies between Doe’s and Pleas’s testimony, jurors understand that
witnesses do not have perfect memories and observe events from different
perspectives.
Doe’s
credibility was also enhanced by the testimony of other witnesses. Pleas’s son was so alarmed by the yelling and
screaming from his mother’s bedroom that he forced open the door. Lattier confirmed that Doe had left a
voicemail message in which she sounded scared, said she was with a man named
“Kevin,†and gave a car license number.
Kohn, who called the police for Doe after she fled Pleas’s house, said
that Doe appeared to be very upset.
Snyder, a police officer who responded, said that Doe was visibly upset and
crying.
We
find no reasonable probability that the jury did not accept Moore’s account
because their deliberations were contaminated by impermissible character
assessments prompted by the underlying facts of the prior convictions or
Moore’s use of aliases. Besides the
convincing, corroborated testimony of Doe, the jury had additional reasons to
disbelieve Moore.
First,
Moore’s account did not include Doe leaving Pleas’s house and then returning
after Pleas talked to her. However, it
was while Doe was outside that she left Lattier a voicemail message. Thus, Moore’s account conflicted not only
with Doe’s and Pleas’s testimony, but with Lattier’s as well.
Second,
Moore stated that after Pleas’s sons broke into the room, he talked with them
on the stair landing for at least two hours.
This account conflicted not only with the testimony of Doe and Pleas’s,
but with that of Pleas’s son.
Third,
Moore stated that he hit Doe in the face once with his fist, out of reflex
after she started flailing at him. While
this may have explained the swelling of Doe’s right cheek and swollen nose, it
did not explain all of nurse Noey’s observations, which included redness on
Doe’s left upper arm, bruising on her right thigh and inner leg, and tenderness
on multiple areas of her head.
Finally,
Moore’s account was that Doe “got hostile†after she realized that Moore could
supply no more crack and, after leaving the house, began yelling for help. Moore significantly failed to explain why Doe
would make false accusations of various sexual assaults simply because she was
angry that he had no more drugs to provide her.
His account conflicts with that of Kohn and Snyder, who found Doe to be
upset, not angry.
There
was no reasonable probability that, absent the testimony that Moore has called
into question, the jury would have reached a different outcome. Moore has failed to make a prima facie
showing of prejudice and we have denied his petition for writ of habeas corpus
in a separate order.
The
judgment of the trial court is amended as follows: (1) the conviction and sentence on count
four, a violation of section 264.1, subdivision (a), is reversed; and (2) the
five-year enhancement to count one, imposed pursuant to section 667,
subdivision (a)(1), for prior offense number five, is stricken. The judgment of the trial court is otherwise
affirmed.
_________________________
Brick,
J.*
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
unless otherwise indicated.
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.â€
