APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA323140).
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Ian King, an officer with the Los Angeles School District Police (LASPD), made a traffic stop late one night in early May 2007. Nicole D., the young woman driving the car King pulled over, had made an illegal U-turn. After ascertaining that Nicole was lost and uninformed about how police patdown searches should be conducted, King proceeded to conduct a full body search of the woman, including reaching inside her bra to "massage" her breasts, and digitally penetrating her vagina with each of his hands. This "search" was conducted on a public sidewalk, while King held both of Nicole's laced hands behind her back with one of his own. The entire search was conducted under the ruse that King needed to perform a field sobriety test on 21-year-old Nicole, who told him she had had one beer earlier, and that King also had to search Nicole's clothes and body for drugs and weapons. Nicole never said "no" to King, and did not try to leave or tell him to stop the search; she was afraid and did not know she could.
Marilyn E., a stranger to both King and Nicole, happened to drive by. She looked down a side street, where she saw a police officer arresting a young woman. The officer was using one of his hands to hold the woman's hands behind her back. His other hand was underneath the woman's dress. Troubled by what she saw, Marilyn circled back and drove by the scene, where she saw the officer still engaged in the same activity. Shortly thereafter, Marilyn and Nicole made independent 911 calls to report the incident. Each woman identified King as Nicole's assailant. King was tried and convicted on five counts of sexual assault.
On appeal, King contends: (1) he received ineffective assistance of counsel; (2) the trial court denied him the right to cross-examine witnesses, and failed properly to instruct the jury; (3) the evidence was insufficient to justify the guilty verdicts; and (4) the sentence imposed was unconstitutional and illegal. We affirm.
An information charged King with sexual battery by restraint (count 1; Pen. Code,*fn1 § 243.4, subd. (a)), unlawful genital penetration by a public official by threat of arrest or incarceration (§ 289, subd. (g); counts 2, 4), and unlawful sexual penetration accomplished by force or duress (§ 289, subd. (a)(1); counts 3, 5). King pleaded not guilty.
A jury convicted King on all five counts. King filed extensive posttrial motions seeking a new trial or acquittal. The motions were opposed, and a lengthy evidentiary hearing was conducted. Ultimately, the motions were denied.
The court denied probation, and sentenced King to 20 years in state prison: the upper term of 8 years on count 3, as the base count, plus the upper term of 4 years on count 1 (to run consecutively to count 3), plus the upper term of 8 years on count 5 (to run consecutively to counts 1 and 3). The sentences on counts 2 (upper term of 8 years) and 4 (upper term of 8 years) were stayed pursuant to section 654. King was ordered to pay certain fines and fees, and to register as a sex offender pursuant to section 290.
In May 2007, Nicole was 21 years old. She lived with her parents in Orange County, where she attended college full time. On May 2, 2007, Nicole drove her parents' black Mercedes to Los Angeles at about 8:00 p.m., for a date with David Gelb, whom she had been dating for about three months. They went out for dinner, during which Nicole drank one beer. After dinner, Nicole and David went to visit some friends, and stayed until midnight. Nicole drank one more beer during that visit.
Nicole and David went back to his neighborhood. He dropped Nicole off at her car, and she headed home by 1:00 a.m. She drove down La Brea to the Santa Monica (10) Freeway, but the eastbound on-ramp was closed. Nicole turned her car around, "got a little lost," and made an illegal U-turn. She was unfamiliar with the area, and did not know what street she was on. As she drove, Nicole noticed that a police car had begun to follow her. She became nervous. She drove back onto La Brea intending to take the westbound 10 freeway, then exit and get back on the freeway and head east when she could. As she entered the westbound on-ramp, Nicole saw that all eastbound lanes were closed, and exited at La Brea again. She drove south on La Brea, and turned on Adams. The police car was still following her.
Nicole did not see any open businesses where she could stop to ask for directions. She made an unlawful U-turn into the parking lot of a small grocery store. The police car followed her into the lot. As Nicole exited the lot, she made "direct eye contact" with the driver of the police car. As Nicole drove back onto Adams, the officer turned the flashing lights on his car, and pulled her over. He directed Nicole to drive forward and turn right at the next street or driveway, as he did not want to block traffic. Nicole made a right-hand turn at the next street, and parked at the curb. The officer, who was working alone, parked his patrol car at a staggered angle behind Nicole's.
Nicole was nervous. The officer asked Nicole if she was lost, and if she was from the area. She told him she was not. He asked why she was there. Nicole said she had been on a date with her boyfriend. The officer told Nicole she had made an illegal U-turn, and that he had run her plates. He asked Nicole for her I.D. Nicole handed him her driver's license, which he stuck into his belt. The officer was wearing a police uniform, with a badge and a name tag that said "King." At trial, Nicole identified appellant Ian King as the officer who had pulled her over early on the morning of May 3, 2007. Nicole believed King was an officer with the Los Angeles Police Department (LAPD).
King asked Nicole if she had been drinking. She said she had had one beer. Nicole had actually had two beers that evening-one at 9:00 p.m. and one at 11:00 p.m. Nicole did not tell King about the beer she had at dinner because she believed that alcohol had since been absorbed into her system. She was a little concerned that she had just turned 21 and had had beer, and that made her nervous about the situation in which she found herself. Nicole did not feel intoxicated.
King told Nicole he would have to perform a field sobriety test (FST). He went back to his patrol car for one or two minutes, leaving Nicole feeling "[s]cared and nervous." At one point, he pointed a spotlight at her. At trial, Nicole could not recall if the light bar on top of the police car or its headlights were on. She assumed King had a gun, but never saw one.
When King returned, he told Nicole to get out of her car, and had her stand on the sidewalk facing a building, with her back to the street. Nicole was wearing a dress that fell above her knees, a vest and leather jacket. King asked if Nicole had any weapons; she said no. He asked her to open her jacket so he could be sure. She did. He checked the pocket of her jacket and found a cell phone. At that moment, Nicole's boyfriend called.*fn2 She silenced the phone and put it back in her pocket.
King told Nicole he was going to "pat [her] down to make sure [she] didn't have any drugs or weapons." Before he began, King asked Nicole if she had "ever been searched by the LAPD before." She told him she had not. Nicole did not remember whether she told King he could pat her down, but she testified she "would have allowed a police officer to check [her] for weapons if that's what they wanted to do." She explained that's "just how [she] was raised, to just listen to authority, especially police officers, given [her] culture and religion." Nicole is Filipino and Catholic, and attended Catholic school for 13 years.
Nicole is five feet two inches, and weighs 107 pounds. King is five feet eleven inches, and weighs 200 pounds. King told Nicole to put her hands behind her back and interlace her fingers. King stood behind and slightly to the side of Nicole. He held both her hands behind her back with one of his hands as he began to pat her down. He maintained that stance and hold throughout the search. King began patting over the top of Nicole's clothes. At some point he "hit the wire area. Hit the bra." Nicole told him it was the underwire in her bra; King asked if he could check her breasts. Nicole did not know whether police officers were allowed to do such things. However, she did not feel as if she had a choice, and was not comfortable challenging or questioning King. She said yes.
King put his hand inside Nicole's bra. He began using a sort of "cupping massaging type . . . motion" on each breast, using both hands intermittently. Nicole estimated that King touched her breasts for about a minute in total. As King touched her breasts, Nicole "was hop[ing she] didn't get in trouble . . . [b]ecause [she] had had a beer at eleven o'clock." Nicole was uncomfortable and concerned that what King was doing "was really not okay," but she did not feel free to say no.*fn3
After he stopped touching her breasts, King reached around behind Nicole, over her clothes, to "check [her] panty line," then reached up inside her dress and began patting the skin in the area of her stomach. King then moved his hand down toward Nicole's panties and put his hand on top of her pubic bone and vagina, outside of her underwear. Nicole stood still. King then asked Nicole if it was "okay to search and [she] said it was okay." Nicole was uncomfortable and afraid. King then asked Nicole "if it was okay to search [her] vagina for drugs." She said "sure." King inserted a finger or two into Nicole's vagina, and began what felt like a "patting" or "digging" motion around the inside and entirety of Nicole's vagina. King used both hands at alternate times. While King was engaged in this activity, Nicole asked him if "people hide drugs in their vagina?" He said, "Yeah, people hide balloons."
At one point while King had his fingers inside her vagina, some lights passed by, which Nicole assumed belonged to a car. King removed his fingers. Nicole testified that King "kind of looked around. And he looked uneasy. But after the car passed by, he reinserted his fingers in [her] vagina and resumed searching" with his other hand. Nicole estimated that King's fingers were inside of her for about 30-45 seconds before the lights passed by, and then an additional 25-30 seconds after he reinserted them, for a total of about "a minute, a minute and a half."
After King removed his fingers he asked Nicole "if he could look inside of [her] vagina." Nicole did not know why she did this, but for some reason she began to lift her dress. Just then she saw lights, and another car passed by. For some reason, King decided not to peer inside Nicole's vagina. Instead, he searched her jacket pocket again, and recovered a mint wrapper.
King then conducted a "Horizontal Gaze Nystagmus" FST. King held a pen and a flashlight in one hand, which he waved from left to right, telling Nicole to follow with her eyes. When that test was done, Nicole asked King to show her to the freeway. He asked her, "How do you know I'm not going to arrest you or give you a ticket?" Nicole "stood there, hoping that he wouldn't give [her] a ticket with like a kind of a pleading look." She assumed she would not get a ticket because she was clearly not drunk and had no drugs. King said he would not give Nicole a ticket and agreed to lead her to the freeway. Reading the tag on his uniform, Nicole said, "Thank you, Officer King, for not giving me a ticket." King returned Nicole's driver's license, and drove behind her, directing her to the freeway entrance. At that point, Nicole was no longer afraid and did not think King would attack her or follow her home. King never searched Nicole's car or purse.
Once Nicole saw that King was not following her, she got off the freeway, and called her boyfriend for help with directions.*fn4 Nicole was "upset and still scared because . . . [she] was lost." She told David she had been pulled over and searched, but had not been given a ticket. Nicole did not disclose the details of what had happened with King because it "was kind of awkward," she "was embarrassed above all," and she and David had only been dating a short while.
Nicole then called her best friend, Jennifer Pablo, one of the people with whom she and David had spent time earlier that evening, and who was still with their other friends at the apartment they had visited. Nicole told Jennifer she had been pulled over, had been given a sobriety test and "got asked to be searched." Jennifer asked Nicole to explain what she meant by "searched." Nicole said: "`Well, actually, I wanted to ask you guys' . . . `this cop put his hands inside my vagina. I don't know if that was okay.'" Concerned, Jennifer immediately put the call on speakerphone so Nicole's other friends could hear. Another friend told Nicole what had happened to her was inappropriate, and she should report it; Nicole agreed to report the incident. At 1:38 a.m., Nicole called 411 for the LAPD number, and her call was transferred to 911.*fn5 A tape of that call played at trial reflects Nicole reported that, she had just been "stopped for a traffic incident and a police officer put his hands in [her] vagina and [she] need[ed] to know if this is okay or not.'"
At 1:45. a.m., Nicole was put in touch with LAPD Sergeant Ed Clark, whom she told about the incident with King. Nicole was interviewed by police officers at her home at about 3:00 a.m., and taken for a medical examination at about 11:00 a.m. Nicole told a nurse she had only had one beer to drink the night before. Nicole identified King in a photographic lineup.
On May 3, 2007, sometime after 1:00 a.m., Marilyn E. was driving west on Adams Boulevard, at a speed of about 20-25 miles per hour. Her attention was drawn to a side street where, about 18 feet from the corner, she saw a police officer arresting a young woman. The woman's legs were spread apart, and her hands were behind her back. The officer was holding the woman's hands behind her back with one of his hands; his other hand was underneath the woman's dress. Marilyn did not recall that the top bar light of the police car-which was parked behind a dark Mercedes-was turned on, or just its headlights or a spotlight.
Marilyn knew something was wrong. She had been arrested in the past, and knew male officers were not supposed to search female suspects. At first, Marilyn felt conflicted, "kind of scared" and reluctant to become involved. But, after she thought about it and drove a couple blocks further, she turned and circled back. She turned around on Adams, made a left turn on Redondo, and another left at Westhaven, the first stop. Marilyn did not recall which street she had seen the people on, so she drove down Westhaven, easing up at each corner to look down the block. Once she spotted the lights of the police car on Sycamore, she turned left and headed down that street, toward Adams. Marilyn drove by the police officer and the woman. As she drove by, the officer turned to look, and he and Marilyn made eye contact. At trial, Marilyn identified King as the police officer she had seen that night. As Marilyn drove by, King was still engaged in his search, with his hand under the woman's dress. However, when he and Marilyn made eye contact, King withdrew his hand and began conducting a normal patdown search. As Marilyn pulled up to the corner of Adams to make a left hand turn and leave the scene, she got the vehicle and license plate numbers of the patrol car and wrote them on her hand. Marilyn drove a few minutes to find a pay phone, and called 911. According to a transcript of that call, Marilyn told the 911 operator she had been driving "down Adams Boulevard and the street just before Redondo . . . there was an officer that pulled over a female. And she ha[d] on a short skirt and he was feeling all up underneath her dress. [Marilyn] went around the block again and came back. And he was still feeling all underneath her dress." Marilyn told the operator she "thought another officer female [sic] was supposed to come out and search a female." Marilyn's call was connected to LAPD Sergeants Clark and Carl Taylor at about 1:30 a.m.
At about 2:45 a.m., Marilyn was interviewed at the police station by Sergeant Taylor. She provided Sergeant Taylor with a description of the officer, and the license plate and vehicle numbers. Marilyn thought the patrol car she had seen belonged to the LAPD. Marilyn subsequently identified King in a photographic lineup.
3. The Investigation and LASPD Policy
After Sergeant Clark spoke with Nicole, he believed she had been assaulted by an LAPD officer. However, after checking the vehicle and license plate numbers Marilyn gave to Sergeant Taylor, Clark realized King was an LASPD officer, and he notified the chain of command in that agency. An LAPD team was assembled. The team included LAPD Detective David Cedeno, (Rape Special Section), and other members of the robbery/homicide division, which is responsible for handling high- profile sexual assault investigations, which this case promised to be because of the involvement of a police officer. King was arrested at LASPD headquarters at 6:45 a.m., at the end of his shift.
Stephen Dodson, Acting Deputy Chief of LASPD's South Bureau, testified about LASPD policy. The LASPD is responsible for providing police services for the Los Angeles Unified School District (LAUSD). King became an LASPD officer in January 2005. LASPD officers work one of three shifts: day watch (6:30 a.m. to 4:30 p.m.), midday (1:30 p.m. to 10:30 p.m.), or early morning watch (10:30 p.m. to 7:00 a.m.). Officers working "off hours," that is, when school is not in session, are responsible primarily for property protection, responding to silent alarms, responding to radio calls reporting activity at night on or near campuses, and to provide security for evening maintenance workers on LAUSD campuses. Depending on the day of the week and the shift, between 6 to 12 officers are on duty during evening hours. Officers working after dark generally work in pairs, and are not required to patrol alone. An officer patrolling alone is called an "L-car."
LASPD officers are empowered to enforce traffic laws if they see a violation. According to LASPD policy, an officer initiating a traffic stop is supposed to notify the dispatch center that he or she is making a traffic stop, which are characterized as "high" or "low" risk. An illegal U-turn is considered a low risk traffic stop. For such a stop, the officer would be required to identify his or her unit, a description of the stopped vehicle, and the number and a description of the occupants in that car. Once finished, the officer must "clear" the traffic stop: that is, notify dispatch the task is complete. At that point, the officer is to state the disposition, such as whether a traffic citation or warning was issued. "Clearing" the traffic stop, "lets [LASPD] know that the officer's completed what he was doing and that he's now available for radio calls."
According to his daily field roster, King, who was patrolling in an "L-car" during the early morning hours of May 3, 2007, placed himself at Dorsey High School, near Rodeo and Crenshaw Boulevards, at 1:07 a.m. King's log reflects that call was cleared at 1:25 a.m., and that he was at Emerson Middle School, on the westside, at 1:32 a.m. Witnesses at trial testified that the fastest estimated travel time between those two LAUSD campuses-12 miles apart from one another-was 7 to 12 minutes. King's log did not reflect that he made any traffic stops between 12:55 a.m. and 3:00 a.m., or that he had run any license plates or driver's licenses between those times.
Chief Dodson testified that an LASPD officer may conduct a field search, customarily referred to as a patdown or "cursory search." Once a suspect had been arrested, the officer would conduct a patdown search to see if the suspect has weapons before transporting him or her in an LASPD vehicle. If a person is detained for an investigation, and the officer believes he or she might be a threat or is armed, the officer may perform a patdown search for purposes of officer safety, but only if the officer has articulable facts that the person may be armed and dangerous. A cursory search involves running one's hands over a suspect's outer clothing. It does not involve any grabbing, or entry into the suspect's pockets. A cursory search of a woman the size of Nicole, wearing a dress and jacket, would take 15 to 20 seconds. If a male officer has a female in custody, or detains a female and needs to search for weapons, LASPD policy dictates that the officer handcuff the suspect and call for a unit with a female officer. A male may search a female suspect in an emergency situation if there is an immediate threat to the officer, and no female officer is available. On May 3, 2007, one of the two LASPD sergeants on duty and available during King's shift was female.
More invasive "booking" searches are conducted after suspects are arrested and transported to the police station. All such searches must be conducted by an officer of the same sex as the suspect. In addition, LASPD policy requires that "`all strip and visual body cavity searches shall have prior approval by the watch commander who shall evaluate the necessity of conducting each search case.'" If an officer believes contraband is secreted in a body cavity, a search warrant must be obtained and the prisoner transported to a medical facility where a body cavity search is performed by licensed medical personnel. All strip, visual and physical body searches are subject to the following requirements: "`(1) All persons present shall be of the same sex of the arrestee. (2) The search shall be conducted in "an area of privacy so that the search cannot be observed by persons not participating in the search." (3) Persons conducting the search "shall not touch the breasts, buttocks, or genitalia of the person being searched."'" It is a violation of LASPD policy for a uniformed LASPD officer to touch the breasts or place his fingers inside the vagina of a woman whom he has pulled over for a traffic violation. If an arrestee has a purse, it must be taken and searched immediately, to determine whether it contains deadly weapons or items of evidentiary value.
The Horizontal Gaze Nystagmus FST is one of a number of tests used by police officers to test an individual's sobriety. It is always used in conjunction with other FST's, because there are a variety of reasons one may have nystagmus.
LASPD officers are required to attend a police academy program, and to undergo additional post-academy field training. Each officer's training file should contain a receipt of his or her receipt of the LASPD Policy and Procedures Manual. The receipt in King's file reflected he had completed his training in early February 2005.
Guy Holloman was the LAPD criminalist assigned to this matter. He testified his tests revealed that no DNA linking King and Nicole was found on King's fingers, in his fingernail scrapings or his patrol car, or in Nicole's sexual assault kit. No epithelial cells from Nicole's vagina were found on the swabs.*fn6 Epithelial cells may be found on objects, such as a steering wheel, or on fingers. Holloman would have expected to find epithelial cells under King's nails if he used a digging motion with his finger in a vagina. However, a thorough washing of one's hands can remove epithelial cells. Holloman testified that DNA can be transferred by perspiration. An absence of DNA evidence does not mean no crime occurred.
4. Evidence of Uncharged Act
In 2006, Regina S. was a senior at University High School (UHS). King was the LASPD officer assigned to UHS at the time. In early April 2006, King requested permission from Regina's ceramics teacher to talk to Regina outside class. Regina, who had recently had an argument with an administrator regarding Regina's resistance to attending detention as punishment for her inability to arrive at school on time, thought King was there to discuss the tardiness problem. Regina had seen King around the school campus, but did not know him.
Regina walked with King toward his office, discussing the school's tardy policy. King mentioned that he knew Regina planned to attend the University of Arizona; Regina asked him how he knew that. King's office was located in a remote area of the basement of the main administration building, an area generally off-limits to students, commonly known as "the dungeon." They entered the office and King shut the door. Regina sat on a couch; King stood leaning against the desk, facing her.
Regina continued talking about the tardy policy. King cut her off, saying, "`This isn't about the tardy policy. This is about you and me. I've taken a personal interest in you.'" He told Regina not to think of him as a police officer, but to look at him as a friend. Regina felt confused and awkward. She responded: "`I don't think that's going to work. You're a police officer. We're not on that level.'" King asked Regina what her reputation at school was like, and whether she was a "slut" or a "whore." Shocked by the question, Regina told King she did not know or care what people thought of her. King asked her what the boys thought of her. Regina said she did not know; some people liked her, others didn't. King told her, "`They're lying to you. They think you're hot.'" Regina was shocked that a police officer could say such things to her.
King then asked Regina if she gave "blowjobs under the table." Regina asked King whether it was legal for him to ask her such a question. He said, "`Sure, you're 18.'" Regina had never disclosed her age to King. King continued "on about the blowjob thing."
King then starting talking to Regina about going to college in Arizona, how he knew her first choice had been the University of California, Santa Barbara, and asked her about her twin brother. Regina had no idea how King had obtained some of this information.
King then asked Regina to "stand closer" to him. She declined. He told her, "I know you have a belly button ring. Most girls would have shown it to me by now." Again, Regina wondered how King knew about her belly button ring, which she thought only her friends knew. In response, Regina said she was not "`most girls.'" King told Regina she was "`not anything like [he] expected.'" He "`thought [she was] fun and outgoing.'" Regina said she was, but "not in this situation," and reminded King he was a police officer and she was a student. King asked Regina again to show him her belly button ring; she declined again. When King asked a third time, Regina lifted her sweater "for a second," and sat back down. Regina never felt free to leave while she was in King's office.
Afraid of what King might do next, Regina suggested they go outside and said she had to get back to class. As he walked her back, King told Regina he was "just preparing" her for college because she would "get taken advantage of at Arizona." He asked Regina if she found him attractive. Regina told him it did not seem "`right between [them].'" King said it was "okay." He told Regina he had "`six weeks till [she] graduate[d],'" and he was "`going to make [her] like [him],'" and that Arizona was only "a short drive away." Before Regina reentered her class, King advised her not to "say anything to anyone because we don't want rumors going on about you." King kept Regina out of class for over 40 minutes. During their conversation, King told Regina he was smarter than her because "he had a lot of degrees in law," had several businesses and had attended USC. Regina reported the incident to the assistant principal of UHS. She never saw King again until she identified him at trial.
At about 9:00 p.m. on Memorial Day, someone claiming to be a lieutenant or detective phoned Regina at her parents' home. The caller asked Regina to describe the incident with King; she did. The caller told Regina that King had only had "good things to say" about her, and that "what [she] was doing was wrong." He told Regina she could "`forget about going to Arizona . . . because [she was] going to be here every two weeks in trial,'" and her "`college plans [would] be ruined.'" The caller said he wanted Regina to understand this would be one of the consequences if she went "`through with all this.'" Regina, who knew she was not "going through with anything," realized she was being pressured inappropriately. She told the caller to contact the principal of her school, and hung up.*fn7
A search of King's apartment subsequent to his arrest yielded photographs of Regina and her twin brother, personal information about Regina, including her place of birth, address and phone number, parents' ...