P. v. Slone

 

 

 

 

 

 

 

 

 

 

Filed 11/8/13  P. v. Slone CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   WALTER RAY SLONE,   Defendant and Appellant.

H038179      (Santa Clara County       Super. Ct. No. C1198487)

 

            A jury
convicted defendant Walter Ray Slone of:  (1) forcible rape (Pen. Code, § 261,
subd. (a)(2));href="#_ftn1" name="_ftnref1"
title="">[1]
(2) forcible sexual penetration (§
289, subd. (a)(1)(A)); (3) two counts of forcible oral copulation (§ 288a,
subd. (c)(2)); and (4) criminal threats (§ 422).  The jury also found true allegations that
defendant kidnapped the victim in the commission of the offenses.  (§ 667.61, subds. (b) & (e).)  Following a bench trial, the court found true
allegations that defendant had suffered two prior serious or violent felony
convictions within the meaning of the “Three Strikes Law.”  (§§ 667, subds. (b)-(i), 1170.12.)  The court sentenced defendant to an aggregate
term of 325 years to life, consecutive to 50 years. 

            On appeal,
defendant contends the trial court erred by excluding evidence of the victim’s
nonresponse to defendant’s question whether she was a virgin––a question
defendant contends is related to the victim’s credibility on the issue of
consent.  We conclude the trial court did
not abuse its discretion in excluding the evidence, and we affirm the judgment. 

>I.       >Factual
and Procedural Background

A.     >Facts

            Defendant,
a 37-year-old Walmart clerk, met the victim, Michelle Doe, at a bus stop in
January 2011.href="#_ftn2" name="_ftnref2"
title="">[2]  Doe, a 23-year-old foreign exchange student,
gave her phone number to defendant.  For
the next week, they exchanged text messages, became friends on Facebook, and
talked on the phone.  They then agreed to
go out together. 

            Defendant,
driving his girlfriend’s car, picked up Doe at her dorm on the evening of January 25, 2011.  They drove around to various destinations in
the San José area, and he bought an
alcoholic energy drink.  They stopped at
defendant’s uncle’s residence, where defendant continued to drink alcohol.  Doe had “just a sip or two” of an alcoholic
drink at his urging.  She let defendant
massage her shoulders, and they kissed once. 
Around 7:00 or 8:00 p.m., they left the uncle’s residence and
defendant, driving at high speed, took Doe to Oakland.  At that point, Doe began to become nervous
and uncomfortable. 

            They
stopped at several houses in the Oakland
area.  Doe asked defendant to take her
home, but he continued to drive around Oakland,
visiting various friends.  Defendant
bought more alcohol at a convenience store and told Doe to drink it.  She refused, and defendant drank it instead.  Doe wanted to escape, but she did not know
where she was.  Defendant again drove at
high speed on the freeway, and they stopped at another house.  Defendant pulled Doe’s hair because she
refused to drink the alcohol.  Around 11:00 p.m., Doe took over driving, and
they got back on the freeway.  Doe wanted
to drive back to San José, but defendant forced her to exit the freeway and
stop, whereupon he took over driving again. 
He again stopped at a house.  He
jumped over a fence and out of sight while Doe remained in the car.  Doe was very nervous and wanted to drive
away, but she did not know where they were, and she was afraid she would be
accused of stealing the car.  Defendant
returned to the car, continued to drink alcohol, and drove the car back towards
the freeway.  Before they got onto the
freeway, defendant opened the car door and vomited. 

            Around
midnight, defendant pulled off the freeway and drove into a mall parking
lot.  It was dark, and there were no cars
around.  As Doe was sitting in the
passenger seat, defendant grabbed her hair, slapped her on the face, and
grabbed her breast.  She struggled to get
away and told him he was hurting her.  He
told her to stop yelling, and he got out of the car. 

            Doe then
slid over to the driver’s seat and put the car into reverse.  The driver’s door was not completely closed,
and defendant hung onto it while the car was moving backward.  Doe shifted the car into drive and drove the
car forward, but the car struck something and she was forced to stop.  She attempted to move back towards the
passenger’s side to get out of the car, but defendant got into the car and
grabbed her arm.  She struggled to get out
of the car, and her jacket came off.  When
Doe reached back into the car to grab her handbag, defendant started driving
away.  He grabbed her arm, and she was
dragged along the side of the car, causing her to get back into the car.href="#_ftn3" name="_ftnref3" title="">[3] 

            As he was
driving, defendant grabbed Doe’s head, held it down, and told her not to scream.  He threatened to kill her if she disobeyed
him; she believed him.  He continued to
keep her head held down as he drove, and she could not see where they were
going. 

            Defendant
then drove into a second parking lot and parked in front of some bushes.  It was dark, and there were no cars or people
around.  Defendant forced Doe out of the
car by twisting her arm and pulled her onto the hood of the car.  He removed her skirt, pantyhose, and
underwear against her will.  She told him
she was menstruating, but he said he did not care.  While holding onto her neck with one hand, he
inserted his penis into her vagina against her will.  When Doe complained that she was cold, they
moved to the back seat of the car, and he continued to penetrate her against
her will, using both his penis and his fingers. 
He kept one hand on her neck to prevent her from escaping.  They moved back and forth between the hood of
the car and the rear seat.  During this
time, defendant forced Doe to perform oral sex on him, and he did so to her as
well.  At some point, he struck her buttocks
while penetrating her.  Defendant did not
ejaculate at any time during the assault. 


            After the
assault, defendant collected some of Doe’s clothes from outside the car, but he
left some of them behind.  With Doe in
the back seat, he drove to a third parking lot. 
The car had been damaged when Doe attempted to escape in the first
parking lot.  Defendant told Doe he
needed to repair the damage, and he got out of the car.  While he was outside the car, she put the car
into reverse, and the car ran over his foot. 
After the car had traveled some distance, she moved into the front seat
and drove away. 

            Doe called
911 while she was driving away, but she was unable to communicate her location
to the dispatcher.  She drove to a
7-Eleven and called 911 again.  Recordings
of both calls were admitted at trial.  Police
and the 7-Eleven attendant testified that Doe was wearing an oversized white
t-shirt and no shoes at the 7-Eleven.  The
car, parked in front of the store, had sustained damage to the front left fender,
and the front left tire had come off the rim. 


            After
police arrived, Doe was able to direct them to the parking lot where the
assault occurred; they found her underwear, skirt, and pantyhose on the ground.  Police then took her to the hospital, where
she was examined for several hours. 

            Doe had
approximately 30 bruises and scratches on various parts of her body, including
a bruise on her left buttock, several bruises and scratches on her arms,
scratches on both elbows, a scratch on her right knee, and a bruise on her left
shoulder blade.  She also had two
abrasions to her right knee, an abrasion on her neck, and the large toenail on
her right foot was pulled away from the skin. 
Doe stated that all these injuries occurred during the assault.  Doe was also given a “SART” examination.href="#_ftn4" name="_ftnref4" title="">[4]  Her vagina was suffering from tenderness, abrasions,
redness, and two lacerations.  The
injuries were consistent with penetration. 


            In a
statement to police, defendant admitted he had sex with Doe on the night in
question, but he claimed it was consensual. 
He speculated that Doe drove away angry because she discovered the car
belonged to his girlfriend. 

B.     >Procedural Background

            Doe first
testified at the preliminary hearing where defense counsel cross examined her about
her silence in response to defendant’s claim that he would not have sex with
her if she were a virgin:

            “[Question:]  At one point that evening or early morning,
Mr. Slone said to you that if you were a virgin, he wouldn’t have sex with you;
correct?

            “[Answer:]  Yes.

            “[Question:]  And you didn’t say anything back to him;
correct?

            “[Answer:]  Yes.

            “[Question:]  You didn’t tell him ‘Hey I’m a virgin’?

            “[Answer:]  Right.”

            Before
trial, the prosecution moved to exclude evidence of Doe’s nonresponse to
defendant’s question about her virginity. 
The prosecution relied on Evidence Code sections 782 (setting forth
procedures for the admission of evidence of a complaining witness’s sexual
conduct) and 352 (court may exclude evidence when its probative value is
substantially outweighed by its prejudicial effect on the trier of fact).  The court granted the motion on both
grounds. 

            The court
first applied Evidence Code section 352, stating, “I don’t believe that her
silence is particularly probative of anything, and it does, in my view, invite
the jury to speculate.  So I do think
that under a [section] 352 analysis, that the probative value is slight.  I think there’s a significant danger of
prejudice.  The jury could be focusing on
thinking of whether or not she’s a virgin or not a virgin.”  The court stated that the issue of whether
Doe was a virgin was irrelevant, and the court concluded, “So I think under a [section]
352 analysis, it’s—the prejudice outweighs the rather slight probative value
and will be excludable under those grounds.” 


            In applying
Evidence Code section 782, the court concluded that the evidence reflected the
victim’s sexual history, requiring the defense to follow the rule’s procedures
for admission of the evidence.  Since
defense counsel had not followed the required procedures, the court ruled the evidence
was excludable under that rule as well. 

>II.    >Discussion

            Defendant contends the trial
court erred by excluding evidence of Doe’s nonresponse to his question whether she
was a virgin.  Defendant argues this
evidence was probative of her consent because she could have discouraged him from
having sex with her by telling him she was a virgin.  Her failure to do so, defendant contends,
suggests the sex was consensual.  Furthermore,
defendant argues that the jury was unlikely to be confused or prejudiced by the
evidence, such that exclusion under Evidence Code section 352 constituted an
abuse of discretion. 

            Defendant
also contends the court erroneously applied Evidence Code section 782 because he
did not seek to ask Doe about her sexual conduct.  Defendant argues that he sought to ask Doe only
about her silence in response to defendant’s statement, not whether she was
actually a virgin.  Because Evidence Code
section 782 only applies to “evidence of sexual conduct,” defendant argues the
rule did not require him to adhere to its procedures for admission of the
evidence.  Alternatively, defendant
contends, if the rule did apply, then defense counsel provided ineffective
assistance of counsel by failing to seek admission of the evidence through the
required procedures. 

            Defendant
argues that the trial court’s errors constitute a violation of his federal
constitutional rights under the Fifth
Amendment right to due process and the Sixth Amendment right to present a
defense. 

A.    
Standards
of Review

            We review the trial court’s rulings
under Evidence Code sections 352 and 782 for abuse of discretion.  (People
v. Riggs (2008) 44 Cal.4th 248, 290; People
v. Bautista (2008) 163 Cal.App.4th 762, 782.)  We will not reverse the court’s rulings
unless defendant can show the court exercised its discretion in an arbitrary,
capricious, or patently absurd manner, resulting in a manifest miscarriage of
justice.  (People v. Jordan (1986) 42 Cal.3d 308, 316.)

            “To prevail on a claim of
ineffective assistance of counsel, a defendant must show both that counsel’s performance
was deficient and that the deficient performance prejudiced the defense.  [Citations.] 
Counsel’s performance was deficient if the representation fell below an
objective standard of reasonableness under prevailing professional norms.  [Citation.] 
Prejudice exists where there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.”  (People
v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688,
693-694.)  “ ‘Finally, prejudice must be
affirmatively proved; the record must demonstrate “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. 624.)  “It is the defendant’s burden on appeal [. .
.] to show that he or she was denied effective assistance of counsel and is
entitled to relief. [Citations.]  ‘[T]he
burden of proof that the defendant must meet in order to establish his [or her]
entitlement to relief on an ineffective-assistance claim is preponderance of
the evidence.’  [Citation.]”  (In re
Hill (2011) 198 Cal.App.4th 1008, 1016.)

B.     >Application of Evidence Code Section 352

            Evidence Code section 352 grants the
trial court discretion to exclude evidence if its probative value is
substantially outweighed by the probability that its admission will create a substantial
danger of undue prejudice, inter alia. 
The trial court found the probative value of Doe’s nonresponse to be
“slight,” while the prejudicial danger was “significant,” therefore warranting
exclusion.  We conclude the trial court did
not abuse its discretion.

            Defendant contends Doe’s nonresponse
was probative of her consent because if she did not want to have sex with him,
she simply could have told him she was a virgin.  This logic is based on a questionable
premise—that Doe actually believed he would decide not to have sex with her if
she told him she was a virgin.  The
record contains no evidence to support this premise.  By contrast, there are numerous reasons why a
jury would not have inferred such a premise, inferring instead that Doe did >not believe defendant’s claim.  She might have perceived his statement as a
disingenuous gambit designed to elicit details about her sexual history.  She may well have believed the opposite of
defendant’s claim—that if she told him she was a virgin, he would actually become
more intent on having sex with her.  Alternatively, she might have been so embarrassed
by his question that she did not think quickly enough to respond to it.  Or, perhaps she simply did not wish to
discuss intimate details of her sexual history with defendant.  For these reasons, we agree with the trial
court that the probative value of the evidence was slight.

            We also agree there was significant
danger that introducing evidence—whether directly or indirectly—about the
victim’s sexual history would prejudice the jury against the victim.  Some jurors might have viewed her nonresponse
as an implicit admission that she was not a virgin, leading to irrelevant and
impermissible speculation about her role in the assault.  (See People
v. Fontana (2010) 49 Cal.4th 351, 370 [evidence of prior sexual activity
“suggests a receptivity to the activity or is proof that the victim got what
she deserved—neither of which is a rational or permissible inference.”].)  The trial court could reasonably find that
the danger of such prejudice substantially outweighed the slight probative
value of the evidence.  The court
therefore did not abuse its discretion by excluding this evidence under
Evidence Code section 352.

C.     >Application of Evidence Code Section 782

            Evidence Code section 782 sets forth
procedures by which a defendant

may challenge
the credibility of a complaining witness by introducing evidence of the
witness’s sexual conduct.  “Before a defendant
may introduce evidence ‘of sexual conduct of the complaining witness . . . to
attack the credibility of the complaining witness,’ the defendant must obtain
the approval of the trial court by filing a motion and affidavit with an offer
of proof, after which the trial court may be required to hold a hearing out of
the presence of the jury to ‘allow the questioning of the complaining witness
regarding the offer of proof made by the defendant.’ ”  (People
v. Tidwell (2008) 163 Cal.App.4th 1447, 1454 (Tidwell).)  The trial court here
excluded the evidence in part because defendant did not follow that procedure.  Defendant argues that Evidence Code section
782 did not apply to the evidence at issue because Doe’s nonresponse to
defendant’s question about her virginity did not consist of evidence of her
“sexual conduct,” but merely the fact of her silence in response to defendant’s
question. 

            In Tidwell, a defendant sought to introduce allegedly false rape
complaints previously made by the victim. 
(Tidwell, supra, 163
Cal.App.4th at p. 1454.)  Although the
victim’s prior complaints pertained to her sexual conduct, the court of appeal
held that the procedure required under Evidence Code section 782 did not apply
because “the evidence that defendant sought to introduce was of complaints of
rape, not of sexual conduct.”  (>Ibid.) 
Relying on this analysis, defendant contends the court erred in
excluding the evidence at issue here.

            The Attorney General agrees that >Tidwell is on point.  Furthermore, the Attorney General concedes
that Evidence Code section 782 did not apply to Doe’s nonresponse.  The Attorney General argues, however, that
the evidence was nonetheless properly excluded under Evidence Code section 352,
and that even if the trial court had erred, the error would be harmless under >People v. Watson (1956) 46 Cal.2d 818.  We agree.

            As we conclude above, the trial
court did not err in applying Evidence Code section 352, so defendant’s claim
of error under Evidence Code section 782 is effectively moot.  However, as set forth below, even if the
court had erred in applying both rules, the error would have been harmless,
because defendant cannot show he was prejudiced.

D.    >Harmless Error and Ineffective Assistance of
Counsel

            Defendant contends the claimed errors
violated his federal constitutional
rights, requiring harmless error analysis under the standard set forth in >Chapman v. California (1967) 386 U.S. 18.  But “the admission of evidence, even if error
under state law, violates due process only if it makes the trial >fundamentally unfair.  [Citations.] 
Absent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson
test[.]”  (People v. Partida (2005) 37 Cal.4th 428, 436.)  (Italics in original.)  Defendant has not shown a level of fundamental
unfairness sufficient to demonstrate a violation of his federal due process
rights.  Similarly, with respect to the claimed
violation of his right to present a defense, “ ‘[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a defendant's right
to present a defense.’ [Citations.]”  (>People v. Fudge (1994) 7 Cal.4th 1075,
1102-1103.)  â€œ[T]he exclusion of defense
evidence on a minor or subsidiary point does not interfere with that
constitutional right.”  (>People v. Cunningham (2001) 25 Cal.4th
926, 999.)  Considered in the context of
all that occurred during the period defendant kidnapped and then raped the
victim in this case, the point at issue is properly characterized as “minor or
subsidiary.”  Therefore, assuming
arguendo that there was error, we apply the harmless error standard under >People v. Watson, supra, 46 Cal.2d at p.
836—whether it is reasonably probable a result more favorable to the appellant
would have been reached in the absence of the error.

            We conclude that a more favorable
result was not reasonably probable. 
First, for the reasons set forth above, it is unlikely a jury would have
been persuaded by defendant’s argument that Doe’s nonresponse constituted
evidence of consent.  Second, even if he
could have cast greater doubt on her credibility, the jury was unlikely to
ignore the abundant physical and objective evidence corroborating her testimony.  Doe suffered numerous bruises, abrasions, and
lacerations consistent with her testimony that defendant physically restrained
her, dragged her alongside the car, struck her, and penetrated her against her
will.  The damage to the car supported Doe’s
testimony that she had attempted to escape amidst dire circumstances, causing
her to collide with an unknown object, and subsequently, to drive a car without
a tire on one rim.  The jury heard the
sound of her voice in the recordings of two 911 calls immediately following the
assault.  Witnesses described her
vulnerable appearance at the 7-Eleven—wearing only an oversized t-shirt and no
shoes.  All of this physical and
objective evidence supported her version of events.  By contrast, in his statement to police,
defendant could not explain how the victim could have suffered such extensive
injuries during consensual sex.  Accordingly,
it is not reasonably probable that defendant would have enjoyed a more
favorable outcome had the jury heard the excluded evidence.

            By the same token, defendant’s claim
of ineffective assistance of counsel fails. 
First, it would have been futile for trial counsel to pursue admission
of the evidence under the procedures of Evidence Code section 782 since the
evidence was inadmissible under Evidence Code section 352.  “Counsel is not required to proffer futile
objections.”  (People v. Anderson (2001) 25 Cal.4th 543, 587.)  Defendant therefore cannot show any
deficiency in trial counsel’s conduct. 
Second, for the reasons set forth above, it is not reasonably probable
he would have achieved a more favorable outcome even if he had put Doe’s
nonresponse before the jury.  Defendant
therefore cannot establish prejudice under Strickland
v. Washington, supra, 466 U.S. 668. 

            Accordingly, we reject defendant’s
claims.

III.
Disposition

            The judgment is affirmed.

 

                                                            _______________________________

                                                            Márquez,
J.

 

 

 

 

            WE CONCUR:

 

 

 

 

 

 

            ______________________________

              Rushing, P. J.

 

 

 

 

 

 

 

            _______________________________

              Grover, J.