>P. v. Flynn

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/15/13  P. v. Flynn CA5

 

 

 

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   RICKY MARSHALL FLYNN,   Defendant and Appellant.

F062483   (Super. Ct. No. BF130203A)     >OPINION

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County.  Michael E. Dellostritto, Judge.

            Randy S. Kravis,
under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Jennevee H. DeGuzman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

           

            A jury convicted appellant Ricky Marshall Flynn of forcible
sodomy, lewd or lascivious acts with a minor, and assault with intent to commit
oral copulation by force.  He contends
his convictions should be reversed because the trial court (1) erred in
excluding prior statements made by the victim regarding sexual activity, which
were offered to challenge the victim’s credibility and as an explanation for
the physical state of the victim, (2) erred in excluding evidence of the
victim’s reputation for defiance and violence, (3) had a sua sponte duty to
instruct the jury on the lesser included offense of nonforcible sodomy, (4)
erred in refusing a special instruction that addressed Flynn’s police interview
and its admissibility, and (5) abused its discretion when it denied a motion
for a mistrial. 

Flynn also asks this court to
correct the abstract of judgment, which fails to state the breakdown of the
aggregate amount of fees imposed at sentencing, and to review the school
records of the victim to determine if the trial court released all documents
referencing dishonesty, sexual activity, violent activity, illicit drug use,
lack of sobriety, or other misbehavior.

            We conclude
the trial court erred prejudicially in excluding the victim’s prior statements
about sexual activity.  Consequently, we
will reverse the convictions for forcible sodomy and assault with intent to
commit oral copulation by force.  We have
reviewed the school records of the victim and conclude that all appropriate
records were released to the defense.  The
other issues raised by Flynn are moot because of our reversal of two of the
convictions.        

FACTUAL AND PROCEDURAL SUMMARY

            A.A. was
born in February 1995.  In November 2009 A.A.
was 14 years old and was living with Aaron, who was not related to her biologically.  Aaron had raised A.A. and she viewed him as a
father.  A.A.’s mother (mother) lived
with A.A.’s grandmother (grandmother).  Also
living with grandmother were mother’s infant daughter, A.A.’s aunt and her two
sons, who were eight and 10 in November 2009, and Flynn and his son, who was
about 12 at the time. 

            Around 5:00 p.m. on the night of November 24, 2009, A.A. was dropped off at her
grandmother’s house.  She had planned to
spend Thanksgiving with her family and spend a few nights at her grandmother’s house.
 A.A.’s mother and Flynn arrived around 7:00 p.m. 
Later that evening, A.A. was in the garage with her mother, grandmother,
Flynn, and the other children.  After grandmother
and the other children left to go to bed, mother began drinking beer.  Flynn was drinking hard liquor, and A.A. was
drinking some beer.

            Eventually,
mother took her infant daughter and left to go to sleep in the living room,
which left Flynn and A.A. alone in the garage. 
Flynn and A.A. talked about various things, including Flynn’s desire to
obtain custody of two of his other children and an upcoming birthday party for
his daughter.  A.A. drank some of the
hard liquor Flynn was drinking.  She was not
sure if she was intoxicated but admitted at trial that she had more to drink
than she initially told police. 

            At some
point, Flynn told A.A. he wanted to show her something.  The testimony about Flynn’s subsequent actions
with A.A. came solely from A.A.  She
testified he picked her up and carried her from the garage, through the house,
and into his bedroom.  When they got to
Flynn’s bedroom, he showed her the bottles of alcohol in his closet.  Flynn then pushed A.A. onto his bunk bed; she
hit her head as she fell back onto the bed.

            With one
hand, Flynn held both of A.A.’s hands; with his other hand, he removed her
shorts and underpants and his own clothes. 
Flynn placed his fingers in her vagina and his thumb in her anus.  He then placed his penis in her vagina and
had intercourse with her for about 20 minutes. 
Flynn ejaculated and A.A. felt semen running down her legs.  Immediately thereafter Flynn penetrated her
anus with his penis.  This made A.A. jump
up and move because it hurt.  Following
that Flynn wanted A.A. to suck his penis and tried to place his penis in her
mouth, but she kept her mouth closed.  In
addition to these acts, Flynn squeezed A.A.’s breasts and kissed her on the
lips. 

            Throughout,
A.A. asked Flynn to stop.  She did not
try to fight back.  She did not try to
scream because Flynn told her not to “or else.”  She claimed she kicked the wall that separated
Flynn’s bedroom from her grandmother’s bedroom about 10 to 20 times hoping it
would wake her or A.A.’s two cousins.  None
of them woke up. 

            Flynn
eventually stopped the assault and told A.A. not to say anything about it.  A.A. told Flynn she was going to the living
room to lie down, but instead went to the bathroom and washed her vaginal
area.  She then got dressed.

            When A.A.
walked into the living room, she was crying and it woke her mother; mother then
asked A.A. why she was crying.  A.A. told
her it was because she missed her friend, R.P. 
A.A. claimed she lied to her mother because she saw Flynn in the
kitchen.  A.A. then used the cordless telephone
to call Aaron and apologize for an argument the two had had the day before.  She did not tell Aaron about the
assault. 

            A.A. then
went to the empty master bedroom, opened a window, and took down the
screen.  When Flynn saw her, he asked
what she was doing.  She stated she just
wanted some air.  Flynn reminded her not
to tell anyone about the incident because it would put him “in prison for seven
years behind bars.”

            A.A. then
took the cordless telephone into the garage. 
She tried calling her friend R.P. but was unable to reach her.  She called another friend who got R.P. on the
line.  R.P. asked what was wrong; A.A.
told her that Flynn had raped her.  R.P.
gave A.A. the number of a taxi service so she could call for a ride and leave her
grandmother’s house.  A.A. went into her
grandmother’s bedroom and took money from her purse to pay for the taxi, called
the taxi, and then went outside to wait.

            R.P. testified
that when A.A. called, she (A.A.) was crying. 
When R.P. asked what had happened, A.A. said Flynn had touched her.  When A.A. went outside to wait for the taxi,
she called R.P. and R.P. stayed on the phone until the taxi arrived. 

            When the
taxi arrived, A.A. directed the driver to R.P.’s house.  The driver noticed A.A. was crying and asked
what was wrong.  She said she had been
raped by her uncle.  The driver allowed her
to use his cell phone and she called Aaron’s mother and told her what Flynn had
done.  The taxi driver then pulled into a
parking lot and called the police.

            The taxi
driver was Charles Turner.  When he
pulled up to grandmother’s house, A.A. quickly jumped into the cab.  She was crying and seemed “hysterical.”  Turner asked what was wrong; A.A. said she
just needed to leave.  Turner drove off
but then pulled into a parking lot and refused to drive further until A.A. told
him what was wrong.  She told him a
relative had raped her.  Turner
remembered hearing A.A. complain of pain.

            Police Officers
John Rodrigues and Jared Ashby arrived and arranged for an ambulance to take A.A.
to the hospital.  Aaron’s mother arrived
and accompanied A.A. in the ambulance.

            Daniel
Goguen and Felipe Hernandez were the paramedics who took A.A. to the hospital.  Goguen thought A.A. appeared hysterical; he
noticed a smell of alcohol on her breath. 
Goguen and Hernandez helped A.A. onto the gurney because she appeared
unsteady on her feet.  Once on the
gurney, A.A. complained of vaginal and lower stomach pain.

            Officer
Timothy Diaz went to grandmother’s house to meet with Flynn.  Flynn appeared sober and no more nervous than
anyone else being interviewed by the police. 
Diaz informed Flynn that A.A. claimed she had been sexually assaulted by
him (Flynn).  Flynn responded by stating
he had seen her leave the house in a taxi.

            Once they
arrived at the hospital, Goguen collected the disposable linens and blankets
from the gurney.  He had A.A. wipe her
vaginal area with gauze.  He and
Hernandez placed all these items into a bag provided by the police and gave the
bag to Rodrigues and Ashby.

            Before A.A.
left in the ambulance, Rodrigues and Ashby also collected from A.A. the
clothing she had been wearing at the time of the assault; she was carrying it
with her in the taxi.  They booked the
clothing and bag of linens into the property room as evidence.

            At the
hospital, A.A. underwent a sexual assault exam, often referred to as a SANE
exam.  Nurse Karen Baughman performed the
exam.  Baughman first obtained a history
of the incident from A.A.  A.A. admitted
to having had some beer and complained of pain to her vaginal and rectal areas.
 Baughman first testified that A.A. told
her she had showered after the incident; later, Baughman testified A.A. denied
showering.

            Baughman
asked A.A. various questions about the incident.  A.A. said Flynn did not hit her, punch her,
choke her, or threaten her with any kind of weapon.  She stated Flynn held her arms over her head
while she was lying on the bed.  She said
Flynn did not threaten any of her family members, but he did tell her not to
scream.  Flynn did not force her to drink
any alcohol or to take any drugs.

            Baughman
next conducted a physical exam of A.A.; she observed redness around the vaginal
and anal areas and found two scratches on the labia minora.  In Baughman’s opinion, this was consistent
with vaginal and anal penetration, although the redness to the anus could have
been caused by something other than
penetration of a penis.  Baughman,
however, acknowledged that the physical evidence was consistent with either consensual
or nonconsensual sexual activity.  There
were no red marks or bruises on A.A.’s wrists or arms. 

            Baughman
also found a hair in A.A.’s cervix and unusual white secretions in her
vagina.  Baughman swabbed A.A.’s mouth,
vagina, and anus, collected a sample of what she suspected was semen from A.A.’s
leg, and took a blood sample to test A.A.’s alcohol level.  Baughman turned these items over to Officer
Kejan Gavin, who booked them into evidence.  Following the exam, Baughman gave A.A. a shot
for sexually transmitted diseases, an antibiotic, and contraception pills; no
pain medication was given or prescribed.

            Nurse
Mercedes Shriver examined Flynn.  She
swabbed his penis, scrotum, and mouth, and collected pubic hair samples and
nail clippings from him.  Shriver turned
over the samples to the police and they were booked into evidence.

            Carol
Williams, a biological fluids analyst, analyzed the samples collected from A.A.
and Flynn.  Williams found nothing of
note on A.A.’s rectal swabs.  There was
no semen or sperm on A.A.’s lip and mouth swabs.  On A.A.’s vaginal swabs, she found semen, but
no sperm.  There also were white blood
cells found on the vaginal swab, indicating a long-term infection.

Williams testified that a normal
male has a “very good chance” of having sperm on his penis.  Sperm may be present from night emissions,
preejaculate, or left over and draining from the last ejaculate.  On Flynn’s penile swabs, she found semen and
epithelial cells.  Epithelial cells are
found everywhere on a person’s body and are not “much value.”  No semen or sperm was found on Flynn’s
bedding or A.A.’s clothing.

            Tammi Noe,
a DNA analyst, analyzed A.A.’s and Flynn’s swabs.  On the gauze wipe from A.A.’s leg, Noe found the
DNA was predominantly A.A.’s; a minor portion of DNA found on the gauze was a
partial profile and inconclusive, but Flynn fit within the partial profile.  The penile swab contained sperm from Flynn;
there was no mixed DNA in the portion of the swab that had sperm.  There was a mixture of epithelial cells from
two people on the other portion of the penile swab -- one was Flynn and the
other had a “high probability” of A.A. being a “contributor.”  On A.A.’s vaginal swab, two DNA profiles were
found -- one belonging to A.A. and one to an unidentified contributor.

            Flynn was
charged with (1) rape, a violation of Penal Code section 261, subdivision
(a)(2) (count 1), (2) forcible acts of sexual penetration, a violation of former
Penal Code section 289, subdivision (a)(1) (count 2), (3) forcible sodomy, a
violation of former Penal Code section 286, subdivision (c)(2) (count 3), (4) lewd
or lascivious acts with a minor, a violation of Penal Code section 288,
subdivision (c)(1) (count 4), and (5) assault with intent to commit oral
copulation by force, a violation of former Penal Code sections 220, subdivision
(a) and 288a, subdivision (c)(2) (count 5).

            >Evidence
Code Section 782href="#_ftn1"
name="_ftnref1" title="">^[1]> Hearing      

            Prior to
trial, Flynn filed a series of motions seeking to admit evidence to attack A.A.’s
credibility and her claim that he forcibly and sexually assaulted her and to
provide an alternative explanation for her physical state.  Specifically, he filed motions to admit
sexual conduct evidence of the complaining witness and evidence demonstrating
A.A.’s dishonesty.  Flynn also argued in
his motions that denying his motions would constitute prejudicial error of
constitutional magnitude.  The
prosecution filed counter motions to exclude all the evidence Flynn sought to
admit. 

            Among the
evidence Flynn sought to use to attack A.A.’s credibility were prior false statements
made by A.A. that she had been raped by a boy named Patrick, her own father,
and by Flynn in the past.  Flynn also sought
to attack A.A.’s credibility with prior statements made by A.A. that she had
engaged in sex with several different boys, had become pregnant twice and had had
abortions in September or October 2009, and had posted multiple entries on her
MySpace page about having engaged in sexual activity.  Flynn provided multiple MySpace and social
media postings from A.A. claiming to have engaged in multiple sex acts.   

            This
information was sought to be introduced to attack A.A.’s credibility because she
had told officers she was a virgin until Flynn assaulted her the night of
November 24, 2009; yet, she made numerous statements about having engaged in sexual
activity prior to the incident. 

            Flynn maintained
the statements of prior sexual conduct went to A.A.’s credibility and were
outside the scope of a section 782 hearing.  Specifically, Flynn argued three theories for
admissibility of A.A.’s statements about sexual activity.  First, to the extent A.A. did engage in
sexual activity with others, the statements attacked her credibility because
she was maintaining to police that she was a virgin and had not engaged in any
sexual activity until attacked by Flynn. 
Second, to the extent A.A.’s statements about engaging in prior sexual
activity were false, they cast doubt on her credibility in that they demonstrated
a pattern of lying about sexual activity. 
Third, evidence that A.A. had engaged in sexual activity with another
shortly before the incident with Flynn was admissible as a possible source of
the redness and scratches on her.

            Flynn contended
section 782 was inapplicable because he did not want to admit evidence of prior
sexual activity in order to attempt to show that A.A. consented to the incident
with him.  To the extent A.A. falsely accused
people of raping her, the evidence would discredit her testimony by showing her
willingness to accuse people falsely of sexual activity with her.  To the extent her statements about engaging
in sexual activity with various people were true, the evidence would discredit
her testimony of being a virgin and offer an explanation for the redness and
scratches on her.  

            Flynn also
sought to admit evidence of instances of other dishonesty by A.A., her history
of consuming alcohol, and her reputation for defiance.  Again, Flynn argued this evidence would attack
A.A.’s credibility.

            The trial
court held an evidentiary hearing during which A.A. testified.  She reiterated that she had been a virgin
until the incident with Flynn, denied ever stating to anyone she had been raped
or had engaged in sex, and denied posting information about engaging in sex or
having been raped on her MySpace page. 

            Flynn
presented evidence from three witnesses, all of whom had heard A.A.’s multiple
claims of having been raped by several different men.  The witnesses also could have testified to
the multiple postings they had seen on A.A.’s MySpace page where she bragged
about engaging in sex and to the multiple statements that had been made to them
by A.A. about different partners with whom she claimed to have engaged in sex.  One witness could have testified to overhearing
A.A. “screaming” at one young man on the phone, yelling “I just gave you my
virginity and you don’t want to be with me.” 
A.A. was crying and screaming during this telephone call. 

            The trial
court denied Flynn’s motion in large part. 
The trial court denied the request to present any evidence that A.A. had
engaged in any prior sexual encounters or any evidence of the multiple
statements made by her about having engaged in sexual activity on the grounds
that any evidence of A.A. “engaging in any sort of sexual activity  … would be improper under the law.”  The trial court denied the defense’s request
to admit into evidence multiple pages from A.A.’s MySpace page.  The trial court denied the request to present
character evidence of a nonsexual nature.  The request to present evidence of the
multiple false accusations of rape made by A.A. also was denied, except as to
one such claim not involving Flynn.  The
trial court also denied the motions pursuant to section 352, finding that the
presentation of the proffered evidence would result in the undue consumption of
time.

            >Trial

The trial began on February 24,
2011.  During the trial, the defense
renewed its request to admit all the evidence it had sought to admit in the
pretrial motions, and the trial court again denied the request.  Flynn sought to impeach A.A.’s credibility in
numerous ways.  The trial court allowed
testimony that A.A. had gone to a store with friends to shoplift a bottle of
alcohol.  A.A.’s grandmother testified
that she was a light sleeper, the acoustics in the house were such that noises
would echo throughout the house, she did not hear any noises during the time A.A.
stated she was being assaulted by Flynn, and A.A. had been known to lie. 

On March 10, 2011, the defense
moved for a mistrial based upon references by the prosecution in its opening
statement to Flynn’s pretrial statement, which the prosecution did not attempt
to introduce into evidence.  The motion
was denied.

When the trial court addressed the
jury instructions to be given, defense counsel was asked, concerning the
forcible sodomy charge, if the only lesser included offense instructions being
requested were attempted sodomy and simple battery.  Defense counsel responded, “Yes.”  The trial court then followed up this inquiry
with “All right.  And any other lesser
included offenses that might apply should the evidence have supported them,
you’re waiving; is that correct?”  Defense
counsel responded, “I waived it, yes.”  Later,
after closing arguments, defense counsel stated, “we’re not waiving any
objections to instructions.”  

            After the
jury retired to deliberate, it sent a series of notes and questions to the
trial court before returning a verdict.  On
March 15, 2011, the jury sent a note asking to review the testimony of A.A.’s aunt
and A.A.’s friend, R.P.  The trial court
responded it would be available first thing the next morning.  On March 16 the jury asked to adjourn for the
day for a “cooling off period from heated discussion.”  On March 17, the jury sent a note asking that
the “attourney’s argue ‘consent.’”  (>Sic.) 
On March 18 the jury sent a note stating it wanted the attorneys “to
focus on the evidence that supports consent or evidence that supports the lack
of consent.”  On March 22, 2011, after approximately
six days of deliberations, the jury sent a note stating it had reached a
verdict on counts 3, 4, and 5 but was deadlocked and unable to reach a verdict
on counts 1 and 2.

            The jury
convicted Flynn of count 3, forcible sodomy, count 4, lewd acts with a minor,
and count 5, assault with intent to commit oral copulation by force.  A mistrial was declared as to the other two
counts.

            Following
the verdict, the defense filed a notice of
intent to move for a new trial at sentencing.  On April 22, 2011, the trial court denied the
motion, sentenced Flynn to 14 years in state prison, and imposed various fines
and penalty assessments. 

>DISCUSSION

Flynn contends the trial court
erred when it excluded (1) prior statements made by the victim regarding sexual
activity, and (2) evidence of the victim’s reputation for defiance and violence.  Flynn also claims the trial court (1) had a
sua sponte duty to instruct the jury on the lesser included offense of nonforcible
sodomy, (2) erred in refusing a special instruction that addressed Flynn’s
police interview and its admissibility, and (3) abused its discretion when it
denied a motion for a mistrial.  Flynn
also asks this court to correct the abstract of judgment, which fails to state
the breakdown of the aggregate amount of fees imposed at sentencing, and to
review the school records of the victim to determine if the trial court
released all documents referencing dishonesty, sexual activity, violent
activity, illicit drug use, lack of sobriety, or other misbehavior. 

I.          Evidentiary Rulings

False Statements of Sexual
Conduct

Sections 782 and 1103, subdivision
(c) specify when and under what circumstances evidence of a victim’s prior
sexual behavior can be admitted in a trial of sexual assault charges.  (People
v. Chandler (1997) 56 Cal.App.4th 703, 707 (Chandler).)  “The Legislature
added section 782 and amended section 1103 to prevent a rape victim from being
questioned extensively about any prior sexual history without a showing such
questioning was relevant.  (>California Rape Evidence Reform:  An Analysis of Senate Bill [>No.] 1678
(1975) 26 Hastings L.J. 1551, 1555-1556.) 
The Assembly Criminal Justice Committee reasoned the fear of personal
questions deterred victims from filing complaints and resulted in a low
percentage of reported rapes.  (>Id. at p. 1554.)”  (People
v. Casas (1986) 181 Cal.App.3d 889, 895.)

            Section 1103, subdivision (c)(1) provides
that a defendant cannot introduce opinion evidence, reputation evidence, and
evidence of specific instances of the alleged victim’s previous sexual conduct
with persons other than the defendant to prove the victim consented to the
sexual acts alleged.  In adopting this section,
the Legislature recognized that evidence of the alleged victim’s consensual
sexual activities with others has little relevance to whether consent was given
in a particular instance.  (>Chandler, supra, 56 Cal.App.4th at p. 707.)


While strictly precluding admission
of the victim’s past sexual conduct for purposes of proving consent, section
1103, subdivision (c)(4) and (5) allow the admission of evidence of prior
sexual history to challenge the credibility of the victim.  (Chandler,
supra, 56 Cal.App.4th at p. 707.)  Section
782 and 1103 protections do not apply when “the victim’s sexual conduct is
relevant to the victim’s credibility.”  (>People v. Bautista (2008) 163
Cal.App.4th 762, 782.)  Where prior
sexual conduct in the form of false statements or complaints about sexual
activity is sought to be introduced as impeachment, not to prove the victim’s
willingness to engage in sexual conduct, the provisions of section 782 do not
apply.  (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456 (>Tidwell).)href="#_ftn2" name="_ftnref2" title="">^[2]    

The trial court’s evaluation and
concern with prejudice to the victim must be weighed against the due process
right of the defendant to present all relevant evidence of significant
probative value.  (People v. Northrop (1982) 132 Cal.App.3d 1027, 1042.)  “A trial court’s ruling on the admissibility
of prior sexual conduct will be overturned on appeal only if appellant can show
an abuse of discretion.”  (>Chandler, supra, 56 Cal.App.4th at p.
711.)

            Here, Flynn
largely argued at trial, and maintains in this appeal, that the primary reason
to admit A.A.’s various statements and postings about engaging in sexual
activity is that they were false.  The
evidence of A.A.’s numerous false statements about engaging in sexual activity
and numerous false accusations of having been raped allows the jury to draw a
conclusion about A.A. based not on sexual conduct but on her stating as true
something that was false.  “The fact that
a witness stated something that is not true as true is relevant on the
witness’s credibility whether she fabricated the incident or fantasized
it.”  (People v. Franklin (1994) 25 Cal.App.4th 328, 335 (>Franklin).)

            That the
trial court allowed minimal other evidence about A.A., such as her shoplifting
escapades, does not mean that evidence of multiple prior false statements of
rape and sexual activity should have been excluded.  The other impeaching evidence was not of the
same force and effect as the multiple false statements by A.A. regarding prior
sexual activity.  A.A.’s veracity was the
crucial issue in this case and “a prior false complaint establishes an instance
of dishonesty on the very issue hotly disputed .…”  (Tidwell,
supra, 163 Cal.App.4th at p. 1458.) 


            Several
witnesses and A.A.’s own MySpace and social media postings demonstrated that A.A.
made numerous statements detailing supposed sexual activity and accused multiple
people of criminal conduct in relation to sexual activity with her.href="#_ftn3" name="_ftnref3" title="">^[3]  These statements were highly relevant and established
numerous instances of dishonesty by A.A. on the very issue that was disputed at
trial.  (Tidwell, supra, 163 Cal.App.4th at p. 1458.)  Flynn was entitled to present this evidence
to the jury and to have the jury evaluate the credibility of A.A.’s testimony about
what happened with respect to the charges filed against him in light of A.A.’s
demonstrated pattern of lying about sexual events and activities.

            A.A.’s
testimony about the incident and the circumstances surrounding the alleged
forcible sodomy and assault with intent to commit oral copulation by force is
somewhat inconsistent with the forensic evidence, thus creating an issue of
credibility.  The complete lack of any
sperm, semen, or male epithelials on the anal, mouth, and lip swabs taken of A.A.
creates doubt about the truth of A.A.’s testimony regarding the incident.  This makes the excluded evidence probative.

The trial court’s exclusion of A.A.’s
prior false statements regarding sexual activity and her MySpace postings because
it believed this evidence was “improper under the law” was a mistake.  Likewise, the trial court’s exclusion of the
evidence because Flynn had failed to produce evidence that A.A. actually had engaged
in all the sexual activity she claimed missed the point of the proffered
evidence.  The prior false statements and
MySpace postings were admissible to challenge A.A.’s veracity and credibility
and not excludable from evidence by section 782.  (Tidwell,
supra, 163 Cal.App.4th at p. 1458; Franklin,
supra, 25 Cal.App.4th at p. 335.) 

            The trial
court also excluded the evidence because of concerns about a potential undue
consumption of time.  We note the
reporter’s transcript was over 3,000 pages. 
The testimony at the evidentiary hearing encompasses only a small
fraction of the trial transcript. 
Moreover, the trial court could have limited the number of witnesses who
testified regarding A.A.’s prior statements and accusations to a reasonable
number if Flynn had attempted to present a great number of witnesses, thus
preventing any undue consumption of time. 
(People v. Cudjo (1993) 6
Cal.4th 585, 609.)

As the jury is the finder of fact,
it is the jury’s job to weigh the credibility of witnesses and draw reasonable
inferences from the evidence.  (See >People v. Hamlin (2009) 170 Cal.App.4th
1412, 1463.)  A.A.’s numerous false
statements that she had been raped by several different people, her false
claims of having been pregnant and undergone abortions, her false claims of
having engaged in sexual relations with at least three different boys, and her
MySpace postings were all relevant to show that A.A. frequently made detailed
false statements about sexual activity.  The
evidence tended logically and by reasonable inference to prove the issue upon
which it was offered and was not merely cumulative of the other impeaching
evidence, which was unconnected to sexual comments or actions.  (People
v. Harris (1998) 60 Cal.App.4th 727, 739-741.)

Alternatively, the various MySpace
postings and statements made by A.A. regarding sexual activity potentially were
relevant for another reason -- to attack her credibility when she testified she
was a virgin.  Whether A.A. was or was
not a virgin at the time of the incident with Flynn does not affect her status
as a victim.  However, once A.A. has portrayed
herself as a virgin and wrapped herself in a halo of innocence, then her past
statements and MySpace postings become relevant to challenge her credibility around
statements about sexual activity in a case where A.A.’s credibility is the key
issue.  (§§ 770, 1235; >People v. Johnson (1992) 3 Cal.4th 1183,
1219.)

We thus conclude the trial court
abused its discretion when it excluded the evidence. 

Other Conduct Evidence Properly
Excluded

The trial court did not err,
however, in excluding testimony that A.A. acts “horny and flaunts herself” when
she drinks alcohol, that she had spiked adults’ drinks so she could slip out to
meet boys, or that she engaged in “groping” with boys.  These actions were offered in an attempt to
show that A.A. willingly engaged in sexual conduct with Flynn.  California’s rape-shield statute provides
that in prosecutions for rape and other sex offenses, “opinion evidence,
reputation evidence, and evidence of specific instances of the complaining
witness’ sexual conduct” cannot be introduced by the defendant “in order to
prove consent by the complaining witness.” 
(§ 1103, subd. (c)(1).)

Nor did the trial court err in
excluding other evidence about A.A.’s nonsexual traits that Flynn sought to
introduce.  Evidence that A.A. had been
disciplined in school for fighting, that she would sneak away from home and urge
R.P. to do the same, that she had a reputation as a “spitfire,” and similar
actions unrelated to engaging in sexual acts simply were irrelevant to the
issues and would only invite speculation. 
(People v. Thornton (2007) 41
Cal.4th 391, 444; People v. Scheid (1997)
16 Cal.4th 1, 13.)

           

Prejudice

Having
concluded it was an abuse of discretion to exclude evidence, we assess whether
the exclusion was prejudicial.  We
conclude it was prejudicial as to the forcible sodomy and assault with intent
to commit oral copulation by force convictions, but not as to the conviction
for lewd and lascivious conduct.   

We first reject the People’s
contention that Flynn has forfeited any constitutional claims by failing to
assert them in the trial court.  The
written motion filed by Flynn seeking to admit the evidence the trial court
ultimately excluded specifically asserted a violation of constitutional rights
would result from exclusion.  

Flynn was charged with five counts;
the jury convicted on three of the five counts and was unable to reach a
verdict on the remaining two offenses.  Prior
to reaching its verdict, the jury sent a series of notes and questions to the
trial court before returning a verdict. 
On March 15, 2011, the jury sent a note asking to review the testimony
of A.A.’s aunt and of A.A.’s friend,
R.P.   On March 16 the jury asked to
adjourn for the day for a “cooling off period from heated discussion.”  On March 17, the jury sent a note asking that
the “attourney’s argue ‘consent.’”  (>Sic.) 
On March 18 the jury sent a note stating it wanted the attorneys “to
focus on the evidence that supports consent or evidence that supports the lack
of consent.”  On March 22, 2011, after approximately
six days of deliberations, the jury sent a note stating it had reached a
verdict on counts 3, 4, and 5 but was deadlocked and unable to reach a verdict
on counts 1 and 2.

Clearly, the jury did not accept at
face value all of A.A.’s testimony and was focused on whether or not A.A. had
consented.  Minors cannot legally consent
to sexual intercourse.  Even in sexual
offenses against minors, however, there is a distinction between whether the
acts were performed against the will of the minor or with the willing and
voluntary participation of the minor. 

In People v. Young (1987) 190 Cal.App.3d 248, the defendant was
convicted of the forcible rape of a child under the age of 14 years.  At the time of the offense, Penal Code section
261 defined rape “as an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator ‘[w]here it is accomplished against a
person’s will by means of force or fear of immediate and unlawful bodily injury
on the person or another.’”  (>Young, at p. 257; see Stats. 1980, ch.
587, § 1, p. 1595.)  The decision of the appellate
court stated:  “Where … the alleged
victim is a child below the age of legal consent, whether the child has the
capacity to ‘consent’ to an act of sexual intercourse within the meaning of [Penal
Code] section 261.6 will usually be a question of fact.  When it is charged that an act is against the
will of a person, ‘“consent is at issue.”’ 
[Citation.]”  (>Young, at p. 257.)  The appellate court further stated that “in
any sexual intercourse case involving a child-victim under the age of 14 … a
defendant is subject to conviction of violations of [Penal Code] sections 261.5
(unlawful sexual intercourse with female under age 18) and 288, subdivision (a)
(lewd or lascivious acts with child under age 14) even where the child consents
to the sexual intercourse.”  (>Id. at p. 257, fn. 2.)  The appellate court thus properly recognized
that a defendant might violate Penal Code section 261.5 without also violating Penal
Code section 261, and that although a minor cannot give legal consent to sexual
intercourse, he or she voluntarily and willingly can participate in the act and
thus actually consent within the meaning of Penal Code section 261.6.

The evidence against Flynn on the
forcible sodomy and the assault with intent to commit oral copulation by force
charges was entirely A.A.’s testimony; there was no physical evidence
connecting Flynn to these offenses.  The anal
swab of A.A. turned up no sperm or epithelial cells from Flynn; the same was
true of the lip and mouth swab of A.A. 

While the entire prosecution case
against Flynn on the forcible sodomy and assault with intent to commit oral
copulation by force counts hinged solely on A.A.’s testimony and her
credibility as a witness, the conviction for lewd and lascivious conduct did
not.  The swab of A.A.’s leg contained her
DNA and a partial DNA profile that fit Flynn’s DNA profile, and the swab of
Flynn’s penis revealed his DNA and a DNA profile in which A.A. was a likely
contributor.  The physical evidence
demonstrated that, at a minimum, Flynn’s penis came into contact with A.A.’s
skin; consequently, the physical evidence supported the Penal Code section 288,
subdivision (c)(1) offense.

The lewd and lascivious count did
not allege it was committed by use of force, duress, or violence; the forcible
sodomy and assault with intent to commit oral copulation by force alleged the
acts were committed by use of force.  As
demonstrated by the jury’s questions, whether A.A. was a willing participant
(consent) was the crucial issue in the case. 


Here, there were six days of deliberations,
a failure to convict on all charges, questions from the jury seeking
clarification around the concept of consent, and a lack of physical evidence
supporting the counts 3 and 5 offenses. 
This was a close case.  (>People v. Markus (1978) 82 Cal.App.3d
477, 480.)  The closeness of the case and
the crucial issue of the credibility of A.A., combined with a lack of any substantial
physical evidence to support the forcible sodomy and assault with intent to
commit oral copulation by force, convince us the erroneous exclusion of the
impeaching evidence was prejudicial on these two counts. 

We recognize that the trial court
eventually allowed Flynn to present evidence of one false accusation by A.A.
against one person, which Flynn’s defense counsel ultimately did not use.  This does not dissuade us from our conclusion
that exclusion of the evidence sought to be admitted by Flynn was
prejudicial.  One false statement about
sexual activity, if raised in cross-examination, does not convey the same
impression of A.A. as the entire body of the evidence excluded by the trial
court.  The jury may have received a
significantly different impression of A.A., and specifically her truthfulness
when speaking of sexual incidents, if the erroneously excluded evidence had been
admitted.  (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) 

The proffered evidence about A.A.
presents a very different image of A.A. than that presented to the jury during
the trial and calls into doubt her credibility around what happened in the
incident with Flynn.  Evidence
establishing A.A. had a pattern of lying about, or seriously embellishing,
incidents of sexual conduct, combined with a lack of physical evidence tied to
Flynn, may have caused a reasonable jury to reach a different outcome on the
forcible sodomy and assault with intent to commit oral copulation by force counts. 

We conclude there is prejudice whether
the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 or the reasonably probable
standard of People v. Watson (1956)
46 Cal.2d 818 is applied.  We thus will
reverse the convictions on counts 3 and 5.

II.        Lesser Included Instruction Issue Moot

            In light of
our reversal of the counts 3 and 5 convictions, the issue of whether the trial
court sua sponte should have instructed on a lesser included offense to the
count 3 offense is moot.  Presumably, in
any retrial of this offense, defense counsel affirmatively will request and the
trial court will instruct on any lesser included offenses. 

III.       Special Instruction and Mistrial

In related arguments, Flynn
maintains the trial court erred when it denied his request for a special
instruction that only the prosecution could offer into evidence his pretrial
statement to the police.  He also contends
the trial court erred when it denied his motion for a mistrial after both the
prosecution and defense mentioned the pretrial statement in opening arguments,
but the statement never was admitted into evidence.  As the only conviction that we are upholding
is the conviction for lewd and lascivious behavior, we assess Flynn’s claims
only in relation to that conviction.

Assuming arguendo> there was error, any error was
harmless.  The remarks about Flynn’s
pretrial statement made in opening argument were brief.  The prosecutor stated Flynn denied
inappropriate acts with A.A. when he spoke with officers.  The defense responded that rather than a
denial, Flynn’s statement was that he could not remember what had happened that
evening.  Nothing in the comments about Flynn’s
pretrial statement, whether it be a denial or an inability to remember, was
prejudicial to Flynn.  Certainly, the
jury understood Flynn was denying criminal liability by virtue of his not
guilty pleas.  The trial court instructed
the jury that statements made by the attorneys were not evidence.  We presume the jury followed the
instructions.  (People v. Bennett (2009) 45 Cal.4th 577, 612.)

Under the circumstances, neither
the failure to issue a special instruction nor the denial of the mistrial motion
was prejudicial. 

IV.       School Records

            Prior to
trial, Flynn requested the trial court review in camera A.A.’s school records
and disclose to the defense any records establishing dishonesty, sexual
activity, violent activity, illicit drug use, lack of sobriety, or any other
misbehavior.  The trial court conducted
an in camera review and disclosed two pages to the defense.

            We have
reviewed the school records and confirm that the trial court disclosed to the
defense all appropriate documents. 

V.        Abstract of Judgment

            Flynn contends the abstract of
judgment should be corrected to specify the basis for the penalty assessments
imposed pursuant to Penal Code section 290.3. 
The People agree.  A detailed
recitation of the fees and fines must be set forth in the abstract of
judgment.  (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)

            Any errors
in the abstract of judgment can be corrected on remand.

DISPOSITION

            The count 3
conviction for forcible sodomy (Pen. Code, § 286, subd. (c)(2)) and the
count 5 conviction for assault with intent to commit oral copulation by force (Pen.
Code, §§ 220, subd. (a) and 288a, subd. (c)(2)) are reversed.  In all other respects, the judgment is
affirmed.  The matter is remanded to the
trial court for preparation of a revised abstract of judgment and further
proceedings. 

 

                                                                                                            _____________________

CORNELL, J.

 

 

WE CONCUR:

 

 

_____________________

LEVY, Acting P.J.

 

 

_____________________

PEÑA, J.