P. v. Yogerst
Filed 3/2/07 P. v. Yogerst CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY YOGERST, Defendant and Appellant. | D046810 (Super. Ct. No. SCD186966) |
In re MARK ANTHONY YOGERST on Habeas Corpus. | D049341 |
APPEAL and petition for writ of habeas corpus from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.
A jury convicted Mark Anthony Yogerst of one count of rape of an unconscious person, in violation of Penal Code[1]section 261, subdivision (a)(4) (hereafter section 261(a)(4) (count 1), and one count of rape of an intoxicated person in violation of section 261, subdivision (a)(3) (hereafter section 261(a)(3) (count 2). The court sentenced him to the upper prison term of eight years on each count, but stayed the sentence on count 2 under section 654.
On appeal, Yogerst contends (1) the court prejudicially erred by not allowing the defense to present 11 photos taken at a party three months before the incident to impeach the victim, Lindsay F.; (2) the court prejudicially erred in instructing the jury with CALJIC No. 2.03 (consciousness of guilt), lightening the prosecution's burden of proof; (3) the court's reprimand of a group of Yogerst's supporters in the jury's presence impugned the defense and deprived him of a fair trial; (4) the evidence was insufficient to support a conviction of rape of an intoxicated person, and thus the court improperly denied Yogerst's section 1118.1 motion for acquittal on count 2; alternatively, conviction on count 1 ( 261(a)(4)) can stand, but conviction on count 2 ( 261(a)(3)) must be vacated because rape can be committed in various ways; (5) the court committed Blakely[2]error by sentencing Yogerst to the upper terms in both counts in violation of his right to a jury trial and proof beyond a reasonable doubt; and (6) the court abused its discretion by sentencing Yogerst to the aggravated upper term in both counts.
We reverse Yogerst's conviction of count 2 (rape of an intoxicated person) because he cannot be lawfully convicted of both count 1 (rape of an unconscious person) and count 2 based on the single act of sexual intercourse for which he was prosecuted. We also reverse the sentence on the ground the court's imposition of the eight-year upper term sentence on each of the two counts based on judicial fact finding denied Yogerst his federal constitutional rights to a jury trial and proof beyond a reasonable doubt. We otherwise affirm the judgment and remand the matter for further proceedings.
In his petition for writ of habeas corpus,[3]Yogerst contends he was deprived of his right to a fair trial and due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when the court (1) reprimanded a group of his supporters in the jury's presence, suggesting they were trying to influence or harass the jury; and (2) failed to mask in the jury's presence its contempt for the partying and drinking of Yogerst and his friends. We deny the petition.
FACTUAL BACKGROUND
Lindsay F. and her roommate, Shiva R., shared an apartment and worked for the same employer, (Corporation). Lindsay testified that outside company group events, she never had dinner or went to a movie with Yogerst, a former Corporation employee who played on the company softball team, and they had not dated. At the time of trial in this matter (May 2005), Lindsay had known Yogerst about one-and-a-half years. She had previously interacted with him about eight times, and they had a "good social friendship."
On Thursday, October 14, 2004, with Shiva's assistance, Lindsay organized an after-work "happy hour" get-together at the Carriage House. Lindsay prepared an e-mail invitation, and Shiva selected the names of the recipients and sent out the email. Yogerst, who had attended similar events, was on the invitation list.
Lindsay arrived at the Carriage House at around 5:45 p.m., and Yogerst arrived at about 6:00 p.m. Yogerst bought shots of whiskey for a few people, and someone handed one of the shots to Lindsay, who drank it. Yogerst later handed at least two vodka tonics to her.
During the evening, Yogerst came up to Lindsay and licked her neck three or four times during the evening. She did not like it, and each time she walked away from him. Lindsay testified she drank "pretty stead[il]y" throughout the evening and had her last drink at around 9:30 p.m.
At around 10:00 p.m., when everyone was getting ready to leave the Carriage House, Shiva and Lindsay asked the group whether they wanted to go over to their apartment to sing karaoke. Their apartment had two master bedrooms, each with its own bathroom. Most of the people did not want to go. Yogerst and one of Lindsay's coworkers, Dominic Zullo, indicated they intended to go over to the apartment.
Lindsay told Shiva she did not want to be left alone with Yogerst. Lindsay and Shiva left the Carriage House at around 10:30 p.m. Shiva testified that although Lindsay was not "completely slurring" her words, she was not speaking clearly.
Lindsay got into her car and drove away. She testified she felt "very woozy" and had a "swaying feeling." After pulling over to sit back and "get stamina," Lindsay drove home, entered her apartment, changed her clothes for bed, locked the bedroom door, and went to bed at around 11:23 p.m.
Shiva drove her own car and followed Yogerst and Zullo to a burrito shop. About 45 minutes later, they went across the street to an Irish pub. At around 1:30 a.m., they drove from the pub to Lindsay and Shiva's apartment, and arrived there between 1:45 and 1:55 a.m.
In the apartment, Shiva found that Lindsay's bedroom door was locked. Shiva knocked on the door for about a minute, loudly calling her name to try to wake her up. Yogerst also knocked on Lindsay's door and called her name. When Lindsay did not respond, Yogerst suggested that they unlock the door. Shiva gave Yogerst a bobbie pin, which he used to try to pick the lock. When this failed, Yogerst worked on the lock with a small screwdriver for 15 to 20 minutes and finally opened the door. During this time, Yogerst continued to drink beer.
Shiva went into Lindsay's bedroom first. Lindsay was asleep on the bed, wearing a tank top and shorts. With Yogerst standing at the foot of the bed, Shiva called Lindsay's name and shook her in an attempt to wake her, but she did not respond. Shiva lifted one of Lindsay's arms and then let it drop, but Lindsay still did not respond. Shiva, Yogerst and Zullo commented on how asleep Lindsay was. Yogerst said, "Wow, she's passed out."
Shiva, Yogerst and Zullo decided to go upstairs and sing karaoke, and Shiva was the last one to leave Lindsay's room. She shut the door, but did not lock it.
When Shiva started to lead Yogerst and Zullo up the stairs to the loft, Yogerst said he had to go to the bathroom. Shiva told Yogerst to use her bathroom, and then she and Zullo went up to the loft, where they stayed for about 20 minutes. When Shiva noticed that Yogerst had not rejoined them, she and Zullo went downstairs to look for him. Because Yogerst was not in any of the open rooms, Shiva concluded he had gone into Lindsay's room. She went to Lindsay's door, which she had left unlocked, and found it was locked.
Shiva lightly knocked on Lindsay's door and called Yogerst's nickname, "Diablo." After a few seconds, Yogerst unlocked and opened the door, and Shiva asked him, "What are you doing?" Yogerst replied, "Oh, I can hear you guys singing Karaoke and it was loud, so I'm just going to pass out in here."
Shiva looked behind Yogerst, who was dressed, and saw that Lindsay was still asleep in the same position on the bed. Shiva had forgotten that Lindsay had told her that she did not want to be alone with Yogerst. Shiva told Yogerst to leave the door open. Shiva and Zullo went into Shiva's room and watched television. It was almost 3:00 a.m., about 15 minutes after they left Yogerst in Lindsay's room. Shiva and Zullo then went to bed.
Lindsay testified that after she went to bed, the next thing she became aware of was that she was awoken by her head being pounded against the wall. She opened her eyes and looked at her alarm clock. It was 3:12 a.m. She looked up and saw Yogerst on top of her having intercourse with her. They were face to face. Yogerst's face "turned completely white," and Lindsay screamed, "What the hell are you doing?" and "Get the fuck off me." Her shorts were hanging off her right ankle, and her top was around her neck. Yogerst, who was naked, was not wearing a condom. Lindsay testified it was her practice to always make use of a condom when she engaged in sexual intercourse.
Yogerst got up and moved away from Lindsay, who immediately wrapped herself in a blanket, screaming, "What the hell were you thinking?" and "Get the hell out of here." Yogerst tried to talk to her and told her they had been talking for 30 minutes.
Lindsay dressed extremely quickly, ran to her door, unlocked it and walked to Shiva's room. Yogerst was backing up toward the front door, motioning to Lindsay not to go to Shiva's door. Lindsay knocked on the door and called Shiva's name. Yogerst walked backwards out the front door and left. When Shiva did not respond, Lindsay returned to her bedroom, in shock, feeling confused about why Yogerst had been in her room, and how he got in.
Shiva testified she had heard the knocking at her bedroom door and heard Lindsay say her name. She got out of bed and walked to Lindsay's room. Lindsay was sitting on the bed wrapped in a blanket, shaking and looking very upset. Shiva asked her, "What's wrong?" Lindsay replied, "Oh, my God. I just woke up and my head was banging against the wall and [Yogerst] was having sex with me."
That morning, Friday, October 15, Lindsay spoke to a friend about what had happened. That night, she spoke to several of her friends about it, and they were extremely concerned. By Sunday evening, her friends convinced her to go to the hospital. Lindsay went with her friends to the hospital to find out whether she was pregnant or had some disease. At the hospital, a nurse called 911 and handed the telephone to Lindsay. Lindsay reported to the 911 dispatcher what had happened to her. Shortly thereafter, a police officer contacted Lindsay at the hospital, and she gave a statement to the officer. A nurse from the Sexual Assault Response Team examined Lindsay. Lindsay later gave a statement to a police detective, who suggested that she make a taped telephone call to Yogerst to try to get him to admit what he had done. About a week later, Lindsay made the pretext call to Yogerst.
B. The Defense
Yogerst testified that he had worked for Corporation from 1986 to 1996 and continued to attend Corporation social events. He met Lindsay in the summer of 2003 and attended numerous social events which she also attended. Before October 15, 2004, he never had sex with her, dated her, or had any romantic involvement with her. His contact with her had "pretty much" always been in a group setting. However, he was attracted to her to "some degree," and he believed the attraction was mutual. Yogerst and Lindsay attended a birthday party at Zullo's house in July 2004 and that night Yogerst and Lindsay drank, kissed each other's necks, rubbed each other, and sat in each other's laps. Lindsay wrote "I love Diablo" on his arm, and he wrote "Enter here" on her upper thigh.
In late September 2004, after a night of drinking at two bars, Lindsay, Shiva, Yogerst and another man went to Lindsay and Shiva's apartment, where they played a drinking game. After Shiva went to bed, the others tried to get her to come back out, and Lindsay suggested they unlock Shiva's door. Lindsay used a coat hanger and opened the door. After they all partied some more, Shiva went back to bed. After the others again played a drinking game, Lindsay took Yogerst up to the loft where they sang. After several minutes, at around 3:00 a.m., Lindsay went downstairs, saying she would be back in a minute. When she did not return, Yogerst went downstairs to look for her, and found her sleeping in Shiva's room. Yogerst, who had consumed "quite a bit" of alcohol, went to sleep in Lindsay's room. When he woke up at 6:30 a.m., Lindsay was asleep in the bed with him. Yogerst got up and left.
Yogerst also testified that during the evening of October 14, 2004, at the Carriage House, he consumed five or six beers and three or four shots of alcohol, and spoke to Lindsay at least 10 times. When he bought drinks for her that evening, she did not seem intoxicated, he did not intend to get her drunk, and he did not put any type of sedative in the drinks. Yogerst was "pretty sure" he did not lick Lindsay's neck that evening, but he had previously kissed her neck.
At around 10:00 p.m., Yogerst left the Carriage House with a group of people that included Lindsay, Shiva, Zullo and a few others. Lindsay did not seem drunk at all, and she did not appear to be angry at him. She just said she did not want to go out to eat with them.
At around 1:30 a.m., after eating at a Mexican restaurant and drinking at an Irish pub, Yogerst, Shiva and Zullo went to Lindsay and Shiva's apartment. Shiva knocked on Lindsay's bedroom door and called her name but got no response. Shiva suggested they get some beers and pick Lindsay's lock like they did Shiva's lock two weeks earlier. Shiva got a screwdriver and they all tried to open the lock but could not get it open. They drank some more beer, tried to open the lock with a small eyeglass screwdriver and a coat hanger, but stopped trying after about 20 minutes.
Shiva and Zullo went up to the loft to sing karaoke. Yogerst did not want to do karaoke, so he stayed in the living room. He had to use the bathroom, so he went to Lindsay's room to try to open her door again. It opened "kind of rough." He walked into the bedroom, closed the door without locking it, and used the bathroom. Yogerst then sat on Lindsay's bed and asked whether she was awake and ready to party. Lindsay responded with a moan. Within about 30 seconds, Yogerst heard a knock at Lindsay's door. He opened the door and Shiva and Zullo asked him what he was doing in there, and Shiva asked why the door was locked. Yogerst said he went to use the bathroom and sat on the bed to ask Lindsay whether she wanted to party. He also said he did not know why the door was locked. Yogerst did not see Shiva lift up and drop Lindsay's arm.
Shiva told Yogerst to leave Lindsay's door open if he was going to stay there. All three walked out of Lindsay's bedroom, went into Shiva's room, and sat on her bed watching television. After a few minutes, Yogerst said he was tired and was going to sleep. He remembered someone saying it was 2:30 a.m.
Yogerst walked back to Lindsay's room, shut the door, and lay on her bed fully clothed and on top of the covers. He did not lock the door, and he intended to go to sleep. Yogerst testified he had had 12 or 14 drinks that night, and he was intoxicated. Lindsay woke up a little, and they engaged in chit-chat. He asked her if she knew who he was, and she said, "Yes, it's Diablo." At first he was concerned she was too sleepy to know what was going on, but he knew she was fully awake when she started talking to him and said his name.
Yogerst testified that Lindsay then put her arm on his chest and kissed him. They began to fondle each other. Yogerst pulled Lindsay's shorts down and pushed her tank top up, and she helped him remove his pants and shirt. They began to have sexual intercourse, and she did not say anything when he entered her. He stated she was moaning and "seemed like she was enjoying the moment." She did not appear to be passed out, unconscious or intoxicated. He never asked her whether he should use a condom. He did not have a condom, and he did not ask her whether she had a condom available.
After about five or six minutes, Lindsay suddenly started yelling at him. She said, "What the hell are you doing? Get the fuck off me [and] get the hell out of my room." He was "shocked a little bit." When he tried to talk to her, Lindsay said, "No, I don't want to talk with you. I don't want to talk with you. I don't. No, I don't want you around." Yogerst stood up and put on his pants and shirt. Lindsay reached for her clothes, got up and opened the door. Yogerst followed her out and she led him to the front door. He left the apartment because she told him to leave.
Two weeks later, Yogerst talked with Lindsay on the telephone. She asked him about what had happened at her apartment.
On cross-examination, Yogerst admitted he had never previously kissed Lindsay in a romantic way, and they had never had private moments together. His contact with her had "pretty much" always been in a group setting.
Dr. Mark Kalish, a physician and surgeon who specializes in psychiatry, testified as a drug and alcohol expert. He testified about how alcohol alters a person's perception and ability to retain memories. Alcohol consumption can cause amnesia. In response to a hypothetical question, Kalish opined that a person who has consumed six drinks during an evening and slept for almost four hours would be difficult to awaken. He reviewed the police reports, the preliminary hearing transcript and other documents relating to this case. Given the drinking pattern that Lindsay described, Kalish would not expect her to have alcohol-induced amnesia. Lindsay's blood alcohol level of 0.05 at around 3:00 a.m. would have been too low. Kalish also discussed the so-called date rape drugs, Rophynol and GHB, and stated that, based on the description of how Lindsay was feeling─a little wavy and seeing light tracers─he could not conclusively state that she was under the influence of such drugs.
Janet Baz testified she was at the happy hour at the Carriage House. She saw Lindsay walking around the bar and did not believe Lindsay was severely intoxicated in the bar or outside when they left. David Dray, Michael Watorski and Nicole Smith, who are friends of Yogerst, testified that he was honest.
C. Prosecution's Rebuttal
Zullo testified that he spoke with Yogerst on October 16, 2004, and asked him what had happened in Lindsay's apartment during the early morning hours. Yogerst told Zullo that he and Lindsay had been rubbing each other and fooling around when she suddenly changed her mind, became upset, and said, "What's going on?" Yogerst did not tell Zullo that he was having sexual intercourse with Lindsay before she became upset.
Detective Mike Holden, who was the investigating officer assigned to this case, testified that he interviewed Zullo twice in November 2004. In both interviews, Zullo said that Yogerst had indicated that he had not had sex with Lindsay.
DISCUSSION
I. APPEAL
A. Exclusion of Photographs
Yogerst first contends the court prejudicially erred by not allowing the defense to present 11 photographs, 10 of which were taken at a party three months before the incident, for the purpose of impeaching the victim, Lindsay, and showing Yogerst's state of mind. He also contends the court's exclusion of this evidence "impinged greatly" upon his Sixth Amendment right to present a defense, and deprived him of his constitutional rights to due process and a fair trial. We reject these contentions.
1. Background
In a motion in limine, defense counsel asked the court to admit into evidence 11 photographs of Yogerst and Lindsay, 10 of which were taken at a July 2004 birthday party held for Yogerst and others about three months before he committed the sexual act (in October 2004) for which he was convicted in this matter. Defense counsel asserted that the photographs depicted Yogerst and Lindsay "sitting on each other's laps, hugging each other, writing on each other's bodies with a marker (including the phrase 'I [love] Diablo,' which [Lindsay] wrote on [Yogerst's] arm), [Yogerst] licking [Lindsay's ear/face area, and [Lindsay] licking [Yogerst's] forehead." The defense claimed the photographs were relevant (1) to impeach Lindsay's preliminary hearing testimony that she had never flirted with Yogerst, and (2) to show Yogerst's state of mind regarding whether Lindsay consented to the sexual intercourse.
The court denied Yogerst's in limine request, finding that (1) the photographs were not relevant because identity was not an issue; (2) the photographs were taken several months prior to the October 2005 incident and thus lacked probative value; (3) the term "flirt" as used in the preliminary hearing was vague and thus the photographs were not relevant to impeach Lindsay's testimony; and (4) the photographs were not relevant on a state of mind theory. The court reiterated its ruling on the photographs when it revisited the issue during the trial.
Later in the trial, after Lindsay testified she felt uncomfortable when Yogerst licked her neck on October 14, 2004, defense counsel again asked the court whether he could present the photographs. Defense counsel argued that one of the photographs showed Yogerst either licking her hair or sticking his tongue out near her ear, and Lindsay "appear[ed] to be OK with it." Asserting that "my whole case is gutted if I don't get to show some of these photographs," defense counsel stated that Yogerst's defense was that he and Lindsay had engaged in consensual sex and, although Lindsay was a "pretty good witness," the jury would not be "so apt to believe her" if the defense could show that she had lied on the stand when she testified she was uncomfortable with Yogerst licking her neck. Counsel added, "That's why I say it's pure impeachment and, again, state of mind."
After reviewing the photographs, the court selected three photographs that seemed to be relevant and ruled it would allow them to be admitted into evidence. The court noted that one of the photographs depicted Yogerst posing with his tongue out, another photograph of Yogerst showed the same type of activity, and the third photograph was the one that the defense specifically requested. When the court indicated that defense counsel could ask Lindsay about the photographs on recross-examination, defense counsel responded, "You better believe I will."
On recross, Lindsay testified the three photographs were taken at a joint birthday party for Yogerst, Zullo and another man in July 2004. She described the three photographs and testified that in one of them, which was marked as defense exhibit "A," she was sitting on a chair with Yogerst in her lap, his tongue was sticking out by her right eye, and one of her fingers was in her mouth. She stated the photograph marked as defense exhibit "B" showed Yogerst sitting on a couch with his arm around a female, and the third photograph (defense exhibit "C") showed Shiva on the left and Yogerst on the right with his tongue sticking out.
On redirect, after defense counsel published the photographs to the jury, Lindsay testified with respect to the first photograph (defense exhibit "A") that Yogerst "kind of jumped" into her lap before the picture was taken and she was aware the picture was being taken, but she was not aware that Yogerst was sticking his tongue out toward the side of her head while that picture was being taken. On recross, she testified that if she had known he was doing that, "I probably would have felt more uncomfortable," and added that it was inappropriate for him to stick his tongue out next to her face.
2. Applicable Legal Principles
"A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.]" (Id. at p. 9.)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, italics omitted.)
Errors found under the rules of evidence, which do not implicate federal constitutional rights, are reviewed under the so-called Watson standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable in light of the entire record that defendant would have received a more favorable outcome in the absence of the error. (People v. Vasquez (2006) 39 Cal.4th 47, 66.)
3. Analysis
Yogerst claims that by excluding the photographs from evidence, the court erroneously prevented him from impeaching Lindsay with respect to her preliminary hearing testimony that she had not flirted with him, and also infringed upon his right to prevent his defense that the sexual intercourse at issue in this case was consensual. However, as already discussed, the court allowed the jury to see three photographs, one of which showed Yogerst sitting on Lindsay's lap during a party, sticking his tongue out toward the right side of her head, and Lindsay sticking one of her fingers in her mouth. The court allowed defense counsel to cross-examine Lindsay regarding these photographs.
The record also shows Yogerst testified that during the party, he and Lindsay kissed each other's necks, rubbed each other, and sat in each other's laps. He stated that Lindsay wrote "I love Diablo" on his arm, and he wrote "Enter here" on her upper thigh. Yogerst also testified about his state of mind, stating he was attracted to Lindsay and believed the attraction was mutual.
We conclude the court did not abuse its discretion by excluding some of the photographs the defense sought to introduce into evidence. In light of the foregoing trial record, the court was well within its discretion under Evidence Code section 352 to limit the number of photographs taken at an unrelated event that the defense was permitted to introduce into evidence.
We also conclude the numerical limit imposed by the court on Yogerst's use of the photographs at trial did not violate his constitutional rights, including the right to present a defense. The California Supreme Court has explained that, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (People v. Hall (1986) 41 Cal.3d 826, 834.) Here, the record shows that Yogerst presented a vigorous defense based on his claim that Lindsay consented to have sexual intercourse with him and that he had an adequate opportunity to challenge her credibility.
B. Claim of Instructional Error (CALJIC No. 2.03)
Yogerst also claims the court prejudicially erred in instructing the jury with CALJIC No. 2.03 regarding consciousness of guilt, thereby lightening the prosecution's burden of proof. We reject this claim.
1. Background
Over a defense objection, the court instructed the jury under CALJIC No. 2.03 as follows: "If you find that, before this trial, [Yogerst] 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."
2. Analysis
Yogerst asserts the court's giving of CALJIC No. 2.03 was erroneous and prejudicially undermined his credibility, which was "central to this case and on which his defense largely turned." He states "[t]he judge's giving this instruction is a prime example of misconstruing testimony to suggest a theory of consciousness of guilt." He also asserts the court's error prejudicially impacted his constitutional rights to due process, to present a defense, and to testify on his own behalf. We reject these assertions.
CALJIC No. 2.03 "states that the defendant's 'willfully false' statement about the charged crime may show 'a consciousness of guilt,' but is 'not sufficient by itself to prove guilt.'" (People v. Stitely (2005) 35 Cal.4th 514, 555.) The California Supreme Court has consistently upheld the giving of CALJIC No. 2.03 where it was supported by the evidence. (People v. Stitely, supra, 35 Cal.4th at p. 555; People v. Arias (1996) 13 Cal.4th 92, 141; People v. Turner (1994) 8 Cal.4th 137, 202, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Kelly (1992) 1 Cal.4th 495, 531.)
Here, the evidence supported the giving of CALJIC No. 2.03. Detective Holden testified that he interviewed Zullo twice in November 2004, and in both interviews Zullo said that Yogerst had indicated to him that he did not have sex with Lindsay. From this testimony and Lindsay's testimony that Yogerst was having sexual intercourse with her when she was awakened in the early morning hours of October 15, 2004, by the banging of her head against the wall, a rational jury could reasonably find that Yogerst had made a willfully false statement to Zullo and could thus reasonably draw an inference that Yogerst's statement showed a consciousness of guilt. We conclude the court did not err in giving CALJIC No. 2.03.
C. Claim that the Court Impugned the Defense
Yogerst also claims on appeal that the court's reprimand of a group of Yogerst's supporters in the jury's presence impugned the defense, manifested an underlying prejudice against the defense, and deprived him of a fair trial and due process. This claim is unavailing.
1. Background
After the prosecutor presented his closing argument, and following a break, the court directed the audience to leave and informed the jury that the bailiff had reported that members of the audience during the break were discussing various aspects of the case and the prosecutor's argument and that members of the jury may have been present at the time this occurred. The court inquired whether any of the jurors had heard any of that discussion in the hallway. None of the jurors responded. The court reminded the jury that it had instructed the attorneys to advise the parties and their witnesses not to have any discussion of the case where members of the jury could overhear such a discussion.
The court then told the jury: "And for the record, there are members of the audience . . . today who were here at the time I gave that instruction. So, the court's extremely concerned about this. I'm concerned that there may be an attempt to influence the members of the jury panel either by discussions in the hallway or by intimidation, by flooding the courtroom full of people, so to speak." (Italics added.)
The court again inquired whether any of the jurors had overheard the discussion in the hallway, and asked whether any of them were influenced in any way. When no one responded, the court directed the bailiff to bring the audience back into the courtroom.
In the presence of the jury, the court then stated to the audience: "Ladies and gentlemen, those of you who are in the audience, I will advise you at this point in time─and some of you were present when I gave this advisal [sic] at the start of the trial─there is to be no discussion ─absolutely no discussion concerning any aspect of this case, including, but not limited to, commenting on jury instructions, the argument of counsel or any evidence that was presented in this case anywhere where a member of the jury panel or the alternate jurors could potentially hear that conversation. To do so is nothing less─and I mean nothing less than an attempt to intimidate the members of the jury panel and to interfere with the judicial process. If it comes to my attention that anyone violates that directive from the court, I will deal with it appropriately. And I am very serious about it."[4] (Italics added.)
After defense counsel presented his closing argument, and following a lunch recess, defense counsel stated to the court outside the presence of the jury: "[Y]ou told the audience you thought they were trying to intimidate the jury. And I just don't think . . . there's any proof of that, even if they were talking. I think it's . . . stupidity. I don't think it was any intent for them to influence the jury." Yogerst's counsel also told the court that "the jury's going to look at that, hear that, and impugn that to [Yogerst] or myself, which, of course, if it's directed toward me, it's going to come back on [Yogerst]."
Continuing his remarks outside the presence of the jury, defense counsel then asked for a mistrial, stating: "[B]ased on all that, Your Honor, with the lack of proof . . . that the jury even heard anything, which you asked them, and they all said no, but that you turned right around and told the audience, in front of the jury, that you thought they were trying to intimidate the jury, I'm going to have to ask for a mistrial at this point." (Italics added.) The court denied the request for a mistrial, stating to defense counsel, "I think you're playing to the audience at this point in time. And you've made your record, for whatever value you might think the record has under the circumstances. I would just say, for the record, that he that protesteth too much does so from a guilty conscience." (Italics added.)
After the prosecutor's rebuttal argument, outside the presence of the jury, the court indicated it would admonish the jury and stated to defense counsel: "[S]ometimes the only way to impact this cheering section of spectators that have come to cheer the defendant on is to be very clear and very blunt with them as to what they can do and what they cannot do. And that's exactly what the court did. And I'll tell you again, he that protesteth so much only [does] so from a guilty conscience." (Italics added.) The court observed, "I'm sitting up here on the bench; I'm watching their demeanor, their attitude and their appearance. These spectators─the vast majority of them, with the exception of maybe five─and quite frankly, I calculate the number of spectators at approximately 30. During your closing argument, there was a bunch of bobbing heads just nodding up and down constantly to your closing argument. [] . . . They're doing this in front of the jury panel after I told people not to do anything." Defense counsel assured the court that neither he nor Yogerst had anything to do with it.
Prior to giving the concluding instructions, the court admonished the jury: "I . . . admonish you at this time that the members of the jury panel and the alternates are not to be influenced by the court's comments concerning spectator actions that occurred in the hallway or the court's admonition to the spectators or the court's inquiry of the members of the jury panel and the alternates."
2. Applicable legal principles
"We review a trial court's ruling on a motion for mistrial for abuse of discretion. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 128.) A motion for a mistrial "should only be granted when a defendant's 'chances of receiving a fair trial have been irreparably damaged.' [Citation.]" (Id. at p. 128.)
"A fair trial in a fair tribunal is a basic requirement of due process." (In re Murchison (1955) 349 U.S. 133, 136.) "The trial judge is under a duty to preserve order in his courtroom. [Citations.] This includes the responsibility to guard against . . . any conduct calculated to obstruct justice. [Citations.] He is required to see that the accused receives a fair and impartial trial as guaranteed by the state and federal Constitutions. [Citation.]" (People v. Slocum (1975) 52 Cal.App.3d 867, 883.)
"A trial court commits misconduct if it 'persists in making discourteous and disparaging remarks to a defendant's counsel . . . and utters frequent comments from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense . . . .' [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1107.)
3. Analysis
We reject Yogerst's claim of prejudicial judicial misconduct and deem the trial court's action one of exercising its reasonable control of the trial. The court was informed that during a break observers of the trial were discussing the case and the prosecutor's closing argument in the hallway and that members of the jury may have overheard the discussion. The court told the jury it was "concerned that there may be an attempt to influence the members of the jury panel either by discussions in the hallway or by intimidation, by flooding the courtroom full of people, so to speak." (Italics added.) The court properly asked the jurors whether any of them had overheard any part of those hallway discussions.
To protect Yogerst's rights to due process and a fair trial, the court properly addressed the members of the audience after they were brought back into the courtroom and admonished them in the presence of the jury that they were not to engage in any discussion concerning any aspect of this case anywhere where a member of the jury panel or the alternate jurors might overhear such discussion. The court's comment that "[t]o do so is nothing less─and I mean nothing less than an attempt to intimidate the members of the jury panel and to interfere with the judicial process," served to convey to the audience the seriousness of the court's concerns. The court had not told the audience in front of the jury that it thought they were trying to intimidate the jury, as Yogerst's trial counsel claimed.
The court properly admonished the jury "not to be influenced by the court's comments concerning spectator actions that occurred in the hallway or the court's admonition to the spectators or the court's inquiry of the members of the jury panel and the alternates." The admonition included no negative reference to Yogerst or his trial counsel.
In response to defense counsel's request for a mistrial, the court twice commented that "he that protesteth too much does so from a guilty conscience." Although these comments were gratuitous and demeaning, they were made outside the presence of the jury and thus could not have had an impact on the jury's verdicts. In sum, we reject Yogerst's claim that the court deprived him of a fair trial and due process by engaging in judicial misconduct.
D. Sufficiency of the Evidence (Count 2) and Multiple Rape Convictions
Yogerst next contends the evidence was insufficient to support his conviction of rape of an intoxicated person in violation of section 261(a)(4) (count 2), and thus the court improperly denied his section 1118.1 motion for acquittal on that count. Alternatively, he contends his conviction of rape of an unconscious person as charged in count 1 ( 261(a)(4)) can stand, but his conviction on count 2 ( 261(a)(3)) must be vacated because rape can be committed in various ways. For reasons we shall discuss, we conclude that Yogerst's conviction of both count 1 and count 2 was unlawful, and his conviction of count 2 must be reversed.
Subdivisions (a)(3) and (a)(4) of section 261 provide: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [] . . . [] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. [] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. . . ." (Italics added.)
Subdivisions (a)(3) and (a)(4) of section 261 do not define separate crimes, and one act of sexual intercourse committed under the circumstances set forth in both of those subdivisions can result in only one rape offense. (See People v. Lohbauer (1981) 29 Cal.3d 364, 371 [the subdivisions of former section 261 "'do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape'"]; People v. Collins (1960) 54 Cal.2d 57, 59[5]["The subdivisions of [former] section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape"]; People v. Craig (1941) 17 Cal.2d 453, 455 ["Under [former section 261], but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances" specified in the subdivisions set forth in that section]; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, 7, p. 321 [the circumstances under which rape may be committed as set forth in section 261 "are not separate crimes; hence, one act of intercourse results in only one punishable offense of rape, even though it may come within more than one subdivision"].
Here, Yogerst was convicted of two separate rape offenses─one for violation of section 261(a)(3) (count 1), and the other for violation of section 261(a)(4) (count 2)─ based on one act of sexual intercourse with the victim . Under the foregoing case authorities, however, Yogerst could lawfully be convicted of only one rape offense based on that act. (See People v. Lohbauer, supra, 29 Cal.3d at p. 371; People v. Collins, supra, 54 Cal.2d at p. 59; People v. Craig, supra, 17 Cal.2d at p. 455; 2 Witkin & Epstein, Cal. Criminal Law, supra, Sex Offenses and Crimes Against Decency, 7, p. 321.)
The People's reliance on the Court of Appeal's decision in People v. Battilana (1942) 52 Cal.App.2d 685, is misplaced. Battilana held that "an assailant may be guilty of two separate offenses of rape as provided by the third and fourth subdivisions of [former] section 261." (Battilana, supra, 52 Cal.App.2d at p. 692.) The holding in Battilana, however, is contrary to the Supreme Court's decisions (discussed, ante) in People v. Craig, Collins, and Lohbauer.
Yogerst challenges the sufficiency of the evidence supporting his conviction for rape of an intoxicated person (count 2: 261(a)(4)) and seeks dismissal with prejudice of that count both on the ground of insufficiency of the evidence and on the alternative ground that his conviction of that count is barred by his conviction of rape of an unconscious person as charged in count 1. However, we need not determine whether Yogerst's conviction of count 2 is supported by sufficient evidence. We conclude that because Yogerst was properly convicted of count 1, his conviction of count 2 was unlawful under the authorities discussed, ante, and thus cannot stand. Accordingly, his conviction of count 2 must be reversed.
E. Blakely Error
Yogerst next claims the court committed Blakely error by sentencing him to the eight-year upper term in violation of his federal constitutional rights to a jury trial and proof beyond a reasonable doubt.[6] In light of the United States Supreme Court's recent decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], we conclude the court's imposition of the eight-year upper term sentence on count 1 based on judicial factfinding denied Yogerst his federal constitutional rights to a jury trial and proof beyond a reasonable doubt, and thus the matter must be remanded for resentencing.
1. Background
Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the sentencing court is required to impose the middle term unless it finds, by a preponderance of the evidence, that "there are circumstances in aggravation or mitigation of the crime." ( 1170, subd. (b);[7]see also Cal. Rules of Court,[8]rules 4.420(a) & (b).[9]) "Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." (Rule 4.420(b).) "Generally, determination of the appropriate term is within the trial court's broad discretion. [Citations.]" (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) A single aggravating factor is sufficient to impose an aggravated upper prison term where the aggravating factor outweighs the cumulative effect of all mitigating factors. (People v. Nevill (1985) 167 Cal.App.3d 198, 202.) The sentencing court need not list all applicable aggravating factors (ibid.) or state reasons for rejecting mitigating factors. (People v. Combs (1986) 184 Cal.App.3d 508, 511.)
Rape, as defined in section 261, is punishable by imprisonment in the state prison for three, six, or eight years. ( 264, subd. (a).)
Here, the court indicated at the sentencing hearing that it had read the probation officer's report, the defense statement in mitigation in support of Yogerst's request for probation, a psychological evaluation, and the 43 letters submitted by his supporters. The probation officer noted that Yogerst had no prior criminal record and recommended that he be sentenced to the lower prison term of three years as to each of the two counts and that the sentence as to count 2 be stayed under section 654.
The court denied Yogerst's request that he be granted probation. Finding that the circumstances in aggravation outweighed those in mitigation, the court sentenced Yogerst to the upper prison term of eight years on each count, but stayed the sentence on count 2 under section 654. The court cited three aggravating circumstances: (1) the victim, Lindsay, was particularly vulnerable (rule 4.421(a)(3)); (2) the manner in which Yogerst carried out the crime indicated planning, sophistication, or professionalism (rule 4.421(a)(8)); and (3) Yogerst took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(11)).
2. Analysis
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court held that that California's determinate sentencing law (DSL), by placing sentence-elevating fact finding within the trial judge's province, violates a criminal defendant's right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the Federal Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.) Cunningham explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 868.) Quoting Blakely, supra, 542 U.S. at pages 303-304 for the proposition that "'the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,'" the Cunningham court concluded that "[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum." (Cunningham, supra, 127 S.Ct. at p. 868.)
Here, the jury's verdict alone limited the permissible sentence on count 1 to the middle term of six years. ( 264, subd. (a); see Cunningham, supra, 127 S.Ct. at p. 868.) The additional judicial fact finding, however, resulted in the upper term of eight years on count 1 in violation of Yogerst's right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.) Accordingly, we must reverse that disposition and remand this matter for further proceedings not inconsistent with this opinion and Cunningham.
F. Claim of Abuse of Discretion in Sentencing
Last, Yogerst contends the court abused its discretion by sentencing him to the aggravated upper term of eight years on both counts. Specifically, Yogerst maintains that (1) the court's findings at the sentencing hearing regarding the three aggravating circumstances on which it relied to impose the upper term─the particular vulnerability of the victim, the planning and sophistication of the crime, and Yogerst's taking advantage of a position of trust─were not supported by the evidence, and (2) the court's decision to sentence Yogerst to the upper term was arbitrary and capricious because it was based on its own disapproving views of the lifestyles of Yogerst and his friends.
Because we have already determined the sentence must be reversed in light of Cunningham, supra, 127 S.Ct. 856, and the matter must be remanded for further proceedings and resentencing, we conclude the issue of whether the court abused its discretion in sentencing Yogerst to the upper term is moot.
II. HABEAS PETITION
Paralleling a portion of his appeal, Yogerst contends in his habeas petition that he was deprived of his right to a fair trial and due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when the court engaged in judicial misconduct by (1) reprimanding a group of his supporters in the jury's presence; (2) failing to "mask" in the jury's presence its "contempt" for Yogerst's and his friends' partying and drinking; and (3) referring to Yogerst's lifestyle as "debauchery" during the sentencing hearing. We reject these contentions.
In support of his petition, Yogerst has submitted several declarations[10]in support of his contentions that the court engaged in objectionable conduct that affected the fairness of the trial and the propriety of the sentence.
For reasons already discussed, we have concluded that the record shows the court did not "reprimand" Yogerst's supporters in the audience, but rather properly admonished them that they were not to engage in any discussion concerning any aspect of this case anywhere where a member of the jury panel or the alternate jurors might overhear such discussion. The court later instructed the jury "not to be influenced by the court's comments concerning spectator actions that occurred in the hallway or the court's admonition to the spectators or the court's inquiry of the members of the jury panel and the alternates." The record shows the admonition included no negative reference to Yogerst or his trial counsel. As already discussed, the court's remarks to defense counsel that "he that protesteth too much does so from a guilty conscience," while gratuitous and unnecessary, were made outside the presence of the jury and thus could not have affected the jury's verdicts.
During the sentencing hearing, the court considered a letter submitted by one of the jurors in this case, who criticized the "other party-going people" around Yogerst whose "teasing and free nature . . . certainly helped provide an environment in which actions and feelings could be mistaken, with unfortunate results." In response to that letter, the court stated that "during the trial, as the testimony unfolded, there was one word that came to my mind as I listened to all the testimony, and that word is debauchery, D-E-B-A-U-C-H-E-R-Y."[11] The court also stated, "And to me, at least, that term pretty much sums up the behavior of some of the people that led up to the event the occurred, and that led up to the victimization of the victim in this case."
The court's use of the term "debauchery" during sentencing does not constitute judicial misconduct in light of the undisputed evidence of the heavy drinking that occurred during the hours that preceded the rape in question, as well as Yogerst's own testimony that (1) he had previously kissed Lindsay's neck, "rubb[ed] on [her]" and written the words "Enter here" under her skirt on her upper thigh at another party that involved drinking, and (2) he had consumed about 14 drinks and was intoxicated the night he entered Lindsay's bedroom and had sexual intercourse with her.
DISPOSITION
The petition is denied. The judgment is reversed in part and affirmed in part. Yogerst's conviction of rape of an intoxicated person (count 2: 261(a)(3)) and his sentence are reversed. His conviction of rape of an unconscious person (count 1: 261(a)(4)) is affirmed. The matter is remanded for resentencing proceedings not inconsistent with this opinion and Cunningham, supra, 127 S.Ct. 856.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
