P. v. Johnson

Filed 8/17/06 P. v. Johnson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Lealon Romain Johnson appeals his conviction, by jury, of four counts of robbery (Pen. Code, § 211),[1] two counts of kidnapping for the purpose of committing a felony (§ 209, subd. (b)(1)), three counts of forcible oral copulation (§ 288a, subd. (c)(2)), one rape (§ 261, subd. (a)(2)), and one forcible genital penetration with a foreign object. (§ 289, subd. (a)(1).) The jury further found that appellant personally used a firearm in committing each offense (§§ 12055, subd. (a)(1), 12022.53, subd. (b)), that he personally discharged a firearm during one of the forcible oral copulations (§ 12022.53, subd. (c)), and that he committed sex offenses against more than one victim. (§ 667.61 (a), (d)(2), (e)(5).) The trial court sentenced appellant to a total indeterminate term of 100 years plus life, and a determinate term of 72 years, 8 months.

Appellant contends the trial court erred when it refused to excuse a juror who waited until shortly before jury deliberations to disclose that he might be prosecuted for a misdemeanor boating violation. Appellant further contends the prosecutor committed misconduct during closing argument, that the trial court improperly admitted several items of evidence, that a pinpoint jury instruction was erroneously given, that the trial court erred in imposing "one-strike" sentences on five separate counts, and that the imposition of consecutive sentences was error under Blakely v. Washington (2004) 542 U.S. 296. Respondent concedes the error with respect to the "one-strike" sentences and we agree. We vacate the sentences on counts 5, 6 and 7 and the case is remanded for resentencing on those counts. In all other respects, the judgment is affirmed.

Facts

Mayra and Hector

Late on a Friday night in September 2003, Mayra J. and Hector G. were parked in the public lot at "Kiddie Beach" in Oxnard, chatting and eating some desert. Appellant, who was a stranger to both of them, suddenly opened the door on the passenger side of the truck, where Hector was sitting. Appellant pointed a silver automatic handgun at the couple, saying "Gimme everything you have. I have a gun." The couple gave him what little cash they had and both of their cell phones. Appellant ordered Mayra out of the truck, forced her to accompany him into the public men's restroom and then to orally copulate him. As she complied, appellant fired a shot from the handgun into the restroom wall.

Hector heard the shot as he waited outside, in the truck. Believing that appellant had shot Mayra, he sped out of the parking lot and drove to the nearby Port Hueneme police station where he reported the crimes.

Appellant took Mayra from the restroom to his car. He drove to a nearby strip mall and parked in an alley behind the shops. There, he forced Mayra to orally copulate him, raped and digitally penetrated her. Mayra eventually escaped from the car. She ran into an open pizza store where the manager allowed her to hide behind the counter while he summoned the police. Mayra told Port Hueneme police officer Rollen Burns that that she had been sexually assaulted by a black man in his 20s who carried a silver handgun and drove an older red car with a white leather interior.

Theresa and Michael

About one month later, around midnight on a Saturday night, Theresa K. and Michael A. walked from the navy base in Port Hueneme to a liquor store. They bought some alcohol and soft drinks at the store, then walked outside, to the opening of an alley, to mix drinks and hang out. Michael saw appellant drive into the parking lot in an older red car. Appellant got out of his car and approached them. He engaged in a little small talk, then pulled a silver automatic handgun from his pocket and demanded money. Theresa gave him $30 from her purse. Michael turned out his pockets to show he had no money. Appellant took Theresa's cell phone from Michael and then ordered both Michael and Theresa to walk further down the alley and into a more isolated alcove off the main alley. There, he told Michael to face a fence and then forced Theresa to orally copulate him, saying that he would shoot Michael if she did not. Appellant ejaculated in her mouth and Theresa spit it out onto the pavement. Appellant told them to wait where they were. He walked back down the alley in the direction from which he came.

As they were waiting in the alley, a police car drove by from the opposite direction. Theresa flagged it down. Port Hueneme police officer Robert Albertson drove toward Theresa and Michael. Theresa was sitting on her heels, sobbing. Michael was standing with his back to the alleyway. Officer Albertson told the couple he'd be right back, drove to the end of the alleyway, turned around and drove back. While turning around, he saw appellant getting into a red Monte Carlo that was parked in the lot. When he got back, Theresa and Michael explained they had been robbed and Theresa sexually assaulted by a black man in his 20s who had a silver handgun and who they'd seen getting out of a red car.

Albertson went down the alley toward the red car he'd seen earlier. It was still there, but appellant was nowhere to be found. Shining a flashlight in the car's windows, Albertson saw the handle of a silver handgun under the driver's seat.

Appellant was determined to be the car's owner. At about 4:30 a.m. the morning after Theresa's assault, he reported his car stolen from the street in front of his girlfriend's house. Theresa and Michael were driven to that address and identified appellant as the person who robbed and assaulted them. Appellant was arrested. DNA analysis confirmed that he was the source of sperm found inside Mayra's vagina and of the ejaculate that Theresa spat out in the alley. Appellant admitted that he owned the handgun found inside his car. That gun fired the bullet recovered from the men's room at Kiddie Beach.

The Defense

Appellant's defense at trial was consent. He testified that he met Mayra the previous weekend at a dance club.[2] In a subsequent telephone conversation, they agreed to meet at Kiddie Beach that Friday night. It was, appellant testified, Mayra's idea that he fire the gun inside the men's room and he did it because she asked him to.

Appellant was in the United States Navy, stationed at the base in Port Hueneme. He worked as a dental technician in the dental clinic on base. Theresa K. and Michael A. were members of the Air Force, temporarily stationed at the Port Hueneme base for training. She had been a patient at the dental clinic and met appellant there. Appellant testified that, when he saw Theresa with Michael A. outside the liquor store, he stopped to talk. They asked him if he could get them marijuana. They did not have any money and Theresa offered to give him oral sex in exchange for the drugs. Afterwards, appellant told them to wait while he went to get the drugs. While trying to start his car, he saw Officer Albertson drive by. He put his gun under the seat and walked back to his girlfriend's house.[3] When he returned later, the car was missing and he called the police to report it stolen.

Discussion

Juror Misconduct

On their juror questionnaires, prospective jurors were asked, "Have you, a family member, or a friend ever been accused of a sexual assault or any other crime?" Juror 10 answered, "No." After closing arguments had been completed but before the jury began to deliberate, Juror 10 disclosed that he had a boating accident about one month before trial and had recently been informed that he might be subject to prosecution for a misdemeanor because a small amount of fuel was released into the water. He did not believe the remote possibility of a prosecution would impact his impartiality in any way.

Defense counsel asked that Juror 10 be excused, explaining that he was "troubled" by the delayed disclosure of the incident and by his apparent belief that he would suffer no adverse consequences because "he would say what happened and be understood by everybody . . . ." Counsel thought the juror might have a pro-prosecution bias because he seemed to believe that honest people wouldn't be prosecuted.

The trial court found that Juror 10's answer on the questionnaire was truthful because the question asked whether he had been accused of a crime and "he hasn't been, because the matter apparently is sitting on somebody's desk in the D.A.'s office." It further found no "cause to dismiss this gentleman based upon the answers he's given the Court that he can be fair to both sides. I don't think the answers to the questions [showed bias] either way."

Appellant contends the trial court erred because Juror 10 "may have felt -- at either a conscious or unconscious level of his awareness -- that the District Attorney would act against him if the jury returned anything other than a guilty verdict." The argument is without merit.

"A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct." (In re Hitchings (1993) 6 Cal.4th 97, 111.) Juror misconduct raises a presumption of prejudice that may be rebutted by proof that no juror was actually influenced by the misconduct. (Id. at pp. 118-119.) In determining whether misconduct occurred, we accept the trial court's factual findings if supported by substantial evidence. We independently review the question of whether prejudice arose from any misconduct. (People v. Majors (1998) 18 Cal.4th 385, 417; People v. Nesler (1997) 16 Cal.4th 561, 582.)

Substantial evidence supports the trial court's finding that Juror 10 did not commit misconduct. He truthfully answered the questionnaire because, although he received a ticket for a boating-related violation, he had not been accused of a crime. (See e.g., People v. Majors, supra, 18 Cal.4th at pp. 419-420.) Moreover, the trial court correctly found there was no reasonable probability that Juror 10's infraction caused any actual prejudice to appellant. The juror was questioned directly on this point and testified that he had no serious concern about the matter and that it would not influence his deliberations. There was no misconduct and no error.

Prosecutorial Misconduct

Appellant contends the prosecutor committed misconduct during his closing argument because of a portion of the argument appealed to the passions or prejudices of the jury by capitalizing on their fear of crime. The contention has been waived because appellant did not object in the trial court. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Stansbury (1993) 4 Cal.4th 1017, 1056, revd. on other grounds, Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293].)

Had the issue been preserved for appellate review, we would reject it because the prosecutor did not engage in misconduct. His comments did not mischaracterize the evidence or misstate the law. (People v. Hill, supra, 17 Cal.4th at pp. 823, 829.) Nor did he, as appellant suggests, make an improper appeal to the passions or prejudices of the jury. (See, e.g., People v. Stansbury, supra, 4 Cal.4th at p. 1057 ["an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt."].) At about the mid-point in a long closing argument, the prosecutor noted that it had been difficult for the victims to testify in detail about the crimes committed against them, which they would remember forever.[4] This statement could not have been surprising to the jurors, since they watched the victims testify and must have noted their distress. Moreover, it is a fair rebuttal to appellant's defense of consent. (People v. Benavides (2005) 35 Cal.4th 69, 108.)

Evidentiary Rulings

1. Officer Albertson's Testimony.

Appellant contends the trial court prejudicially erred when it permitted Officer Albertson, the officer flagged down by Theresa K., to testify that, when Michael A. described appellant, the thought "clicked" in Albertson's mind that the description was similar to the one given by Mayra J. and that perhaps the two incidents were related. Appellant contends this testimony ought to have been excluded as hearsay. The contention has been waived because appellant did not object in the trial court. Had it not been waived, we would reject it because there is no reasonable probability that the officer's brief reference to his thought process prejudiced appellant. (Cal. Const., Art. VI, § 13; Pen. Code, § 1404; Code Civ. Proc., § 475.)

2. Title of Videotape.

A search of appellant's locker at the naval barracks disclosed a videotape entitled, "Sexual Assault: It Could Happen to You." Appellant and one of his co-workers testified that he had the tape because he had presented a lecture on the topic at work. He contends the title of the videotape should have been excluded from evidence pursuant to Evidence Code section 352 and that its use against him violated his First Amendment rights. The constitutional argument was not raised below and, as a consequence, has been waived. (People v. Saunders (1993) 5 Cal.4th 580, 590.) We reject the Evidence Code section 352 claim because there was no abuse of discretion. (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124-1125.) Although the evidence had only slight probative value, especially in light of appellant's explanation, it was also not unfairly prejudicial. There is no reasonable likelihood that the title of this videotape would have evoked a strong emotional bias against appellant as an individual or encouraged the jury to base its verdicts on improper or extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 960; People v. Karis (1988) 46 Cal.3d 612, 638.)

3. Mayra's Statements to the Nurse-Examiner.

Natalie Erickson, a nurse with 45 years' experience, conducted the sexual assault examination on Mayra J. As part of the examination, Erickson asked Mayra to describe the events that occurred. Mayra complied. Without objection, Erickson summarized Mayra's statements and opined that the results of her examination were consistent with those statements. On cross-examination, Erickson testified that Mayra's physical condition could also have been consistent with consensual sex. Appellant contends the trial court erred when it allowed Erickson to testify to Mayra's statements.

Again, this issue has been waived because appellant failed to object to the testimony in the trial court. Had it not been waived, we would reject it. Erickson was asked to provide her expert opinion on the question of whether Mayra's complaints were consistent with her physical condition. It was proper for Erickson to provide the jury with facts upon which she based her opinion. Those facts included a comparison of Mayra's physical condition with her description of the incident. (Evid. Code, § 801 subd. (b); People v. Montiel (1993) 5 Cal.4th 877, 918-919.) Moreover, Mayra had previously testified and been cross-examined on the same statements. There is no reasonable probability that Erickson's cumulative testimony was prejudicial to appellant.

4. Ineffective Assistance of Counsel.

Appellant contends he received ineffective assistance of counsel at trial because counsel failed to preserve his claims of evidentiary error. Trial counsel is not required to interpose meritless evidentiary objections. Counsel's failure to do so here does not amount to ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Majors, supra, 18 Cal.4th 385, 403.)

Instructional Error

Appellant was charged with kidnapping both Mayra J. and Theresa K. for purposes of committing a felony. The trial court instructed the jury in terms of CALJIC No. 9.52.1 on the elements of that offense. The instruction informed the jury that, "Kidnapping is the unlawful movement by physical force of a person without that person's consent for a substantial distance where the movement is not merely incidental to the commission of the crime and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of rape or oral copulation itself . . . . [¶] . . . . [¶] Brief movements to facilitate the crime of rape or oral copulation are incidental to the commission of the crime. On the other hand, movements to facilitate the crime that are for a substantial distance rather than brief are not incidental to the commission of the crime." The instruction then lists the five elements of the crime of kidnapping.[5] The trial court's next instruction informed the jury, "Where movement changes the victim's environment, it does not have to be great in distance to be substantial. It is the scope and nature of the movement which makes it substantial."

Appellant contends the second instruction was an improperly argumentative pinpoint instruction requiring reversal. We are not persuaded. First, as appellant concedes, the instruction is a correct statement of the law. Indeed, it is nearly a verbatim quote from our opinion in People v. Shadden (2001) 93 Cal.App.4th 164, 168. Second, the instruction is not argumentative. An argumentative instruction is an " 'instruction 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' (People v. Gordon (1990) 50 Cal.3d 1223, 1276 [270 Cal.Rptr. 451, 792 P.2d 251]; People v. Farmer (1989) 47 Cal.3d 888, 913-914 [254 Cal.Rptr. 503, 765 P.2d 940].)" (People v. Mincey (1992) 2 Cal.4th 408, 437, see also People v. Panah (2005) 35 Cal.4th 395, 486-487 [quoting People v. Mincey, supra].) The instruction at issue correctly informed the jury that movement could be substantial if it changed a victim's environment, even though the movement was not for a great distance. It did not refer to specific evidence or invite the jury to infer that any specific movement was substantial. The jury was still required to decide whether, for example, Theresa's movement from the opening of the alley to the alcove changed her environment by increasing the risk of harm to her, or was merely incidental to the forced oral copulation itself. There was no error.

Sentencing Error

1. Blakely Error.

Appellant contends the imposition of aggravated terms without jury findings violated his Sixth Amendment and due process rights under the federal constitution as construed by the United States Supreme Court in Blakely v. Washington, supra, 542 U.S. 296. He concedes that our Supreme Court has already held to the contrary in People v. Black (2005) 35 Cal.4th 1238, but raises the issue to preserve it for federal habeas review. We are, of course, constrained to follow Black. There was no Blakely error.

2. One-Strike Sentences.

The trial court sentenced appellant to a "one-strike" sentence of 25 years to life for the forcible oral copulation against Mayra J. that occurred in the men's room and three additional, consecutive one-strike terms of 25 years to life for the three sex offenses he committed against Mayra in the strip mall parking lot. Appellant was sentenced to a fifth, consecutive one-strike term of 25 years to life for the forcible oral copulation against Theresa K. (§ 667.61, subd. (g).) Although appellant concedes that he is subject to a one-strike term for the first offense against Mayra and a separate one-strike term for the offense against Theresa K., he contends the remaining three were error. Respondent correctly concedes the point.

Section 667.61, subdivision (g) provides that the one-strike term of 25 years to life "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." In People v. Jones (2001) 25 Cal.4th 98, our Supreme Court held that "the Legislature intended to impose no more than one such sentence per victim per episode of sexually assaultive behavior . . . that occur[s] during an uninterrupted time frame and in a single location. [¶] Accordingly, we conclude that, for purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if they were committed in close temporal and spatial proximity." (Id. at p. 107.)

Here, the second oral copulation, the digital penetration and the rape of Mayra occurred in a single location and in close temporal proximity. They could form the basis for only a single one-strike sentence pursuant to section 667.61, subdivision (g). These offenses were, however, distinct in time and location from the offense committed against Mayra in the men's room and, of course, from the offense committed against Theresa K.

We vacate the sentences on counts 5, 6 and 7, the offenses committed against Mayra and remand the case for resentencing on those counts. On remand, the trial court may impose a one-strike sentence as to only one of these three counts. With respect to the remaining counts, sentence "shall be imposed as authorized under any other law, including Section 667.6, if applicable." (§ 667.61, subd. (g).) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Edward F.Brodie, Judge

Superior Court County of Ventura

______________________________

Mark D. Lenenerg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Mayra attends college in San Francisco where she lives. On the weekend that appellant claimed to have met her in a Camarillo dance club, she was at work in a San Francisco restaurant. On the weekend she was assaulted by appellant, she was in Oxnard visiting family.

[3] Appellant testified that he carried a handgun because a former boyfriend of his then-girlfriend had threatened to kill him.

[4] The prosecutor noted that he was required to prove guilt beyond a reasonable doubt whenever the defendant invokes his right to trial. " I must bring in physical evidence, I must bring in witness testimony, I must bring in victims, unfortunately, in this type of case to come in to testify to their ordeal, their nightmare of what happened that night in their lives. [¶] It will never change. That is their history, not just someone taking the stand and telling you a story about what happened when they were at the fair last week. This is something that is impressed in their brains and hearts forever and it takes a lot of strength to get up on the stand and to testify and it's obvious because they broke down and they cried because it's not an easy job to come in here."

[5] This portion of CALJIC No. 9.52.1 provides, "In order to prove this crime, the following elements must be proved: [¶] 1. A person was unlawfully moved by the use of physical force; [¶]. . . . [¶] 2. The movement of the person was caused with the specific intent to commit rape or oral copulation, and the person causing the movement had that specific intent when the movement commenced. [¶] 3. The movement of the person was without that person's consent; [¶] 4. The movement of the person was for a substantial distance, that is, a distance more than slight, brief, or trivial; and [¶] 5. That movement substantially increased the risk of harm to the person moved, over and above that necessarily present in the crime of rape and oral copulation itself."