IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
June 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
VERNON LEE BELTON, JR., DEFENDANT AND APPELLANT.
Super. Ct. No. 06F04904
The opinion of the court was delivered by: Hoch, J.
P. v. Belton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Vernon Lee Belton, Jr., armed with a handgun and accompanied by two other men, committed a home invasion robbery in North Sacramento. Finding the victim alone in her bedroom, defendant struck her in the head with the handgun and then raped and attempted to sodomize her.
Defendant was convicted of first degree burglary, first degree robbery, attempted sodomy, assault with intent to commit sodomy, and two counts of forcible rape. The jury also found that defendant personally used a firearm during the commission of these offenses, and that he raped the victim during the commission of a burglary. The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life, plus a consecutive determinate term of 21 years four months, and imposed other orders.
On appeal, defendant contends that the trial court violated his constitutional rights in a number of ways. First, he claims that the trial court excused two jurors without good cause during the course of deliberations. Second, he asserts that the trial court "effectively coerced" the jury to reach a verdict. Third, defendant contends that his statement to police should have been excluded because the police did not stop the interrogation after he "unambiguously" invoked his right to counsel. Fourth, defendant asserts that the trial court failed to instruct the jury on the specific intent necessary to convict him of attempted sodomy and assault with intent to commit sodomy. Disagreeing with each contention, we affirm the judgment. Defendant also claims that the trial court erred by imposing fees without finding defendant had the ability to pay. We find this claim has been forfeited.
Late at night in September 2003, J.W. and her boyfriend C.T. were drinking Hennessy, smoking marijuana, and watching cartoons at their apartment in North Sacramento. C.T. "sold drugs and shot dice" as a means of generating income and occasionally sold drugs out of the apartment. After watching cartoons, C.T. and J.W. had unprotected sex in their bedroom. A short time later, C.T. answered a knock at the front door and told J.W. that he was going to the mini-mart to get a Swisher cigar and not to close the front door because the lock was broken. J.W. remained in bed and fell asleep.
She awoke about 30 minutes later to loud rustling noises coming from inside the apartment. By the time she opened her eyes, defendant and two other men were standing over her bed. Defendant was armed with a handgun, wore a black ski mask that covered his nose and mouth, and had dreadlocks. He grabbed J.W., who remained unclothed, and threw her on the ground, demanding: "Where's the money at, bitch?" J.W. responded that she did not have any money, prompting defendant to strike her in the head with the handgun and insist: "I'm not playing with you. Where's the money at?" Bleeding from the head, J.W. curled up in the fetal position and told defendant that she had $100 in a skirt that was in the closet. One of the other men took the money from the skirt and said: "I got the money. Let's go." Defendant's accomplices then left the bedroom and continued to ransack the apartment.
Defendant remained in the bedroom and sexually assaulted J.W. He first tried to sodomize her. When that was unsuccessful, he flipped J.W. onto her back and raped her, penetrating her vagina with his penis several times over the course of three to four minutes. The assault came to an end when the other men returned to the bedroom and told defendant several times: "[C.T.] is coming. [C.T.] is coming." Defendant then "finished," pulled up his pants, and went to the bathroom before leaving the apartment. J.W. believed that defendant used a condom during the assault, but also heard a "pop" sound, which she believed to be the condom breaking.
While defendant and the other robbers were still inside the apartment, C.T. was outside enlisting the assistance of his neighbor, J.J. He told J.J. that something strange was going on at his apartment and that he needed to find a gun. J.J. then walked to a corner of the apartment complex with a clear view of the apartment and saw a young African-American man leaving the apartment. This man had dreadlocks and was holding a handgun. Deciding to patrol the neighborhood, J.J. went back to his house to get his truck. As he pulled out of the apartment complex gate, he saw the same man, accompanied by several others, in a car pulling out of another nearby apartment complex. J.J. followed in pursuit, chasing the car down Howe Avenue at a high rate of speed. When the pursued vehicle turned onto Auburn Boulevard, it lost control and crashed into a fence. J.J. then drove back to the apartment complex to pick up C.T.
Meanwhile, J.W. came out of the apartment and told C.T. what happened. She then went to his mother's apartment across the street to call 911. At this point, J.J. drove C.T. to the crash site, dropped him off, and then found a police officer to flag down. By the time the police officer arrived at the crashed vehicle, the occupants had fled the scene.
J.W. was taken to UC Davis Medical Center, where a sexual assault examination was performed. Back at her apartment, police collected a used and torn condom that was discovered on the bathroom floor. Police also collected evidence from the crashed vehicle, which was a rental car that had been rented to Kenneth Hill, defendant's former cell mate. Hill and defendant were released from jail about two weeks prior to the home invasion robbery and sexual assault.
Defendant was not identified as a suspect until April 2006. Shortly thereafter, J.W. picked defendant out of a photo line-up, stating: "Probably [defendant], but I'm not positive. I'm basing that on his eyes because I never saw the lower half of his face. His eyes were real small and kind of almond shaped. [Defendant] looks like the guy who sexually assaulted me." Police then questioned defendant and obtained a sample of his DNA. Defendant admitted to having sex with J.W., but claimed that he met her at the mini-mart and that she invited him into the apartment to smoke marijuana. According to defendant, after they smoked the marijuana they had consensual sex, at which point three men broke into the apartment and started to hit defendant, prompting him to flee from the apartment.
Defendant's DNA was a match for that collected from semen samples taken from J.W.'s anal and vaginal areas. Defendant's DNA was also a match for that collected from the torn condom found on the bathroom floor. Defendant's DNA also matched that collected from a cigarette, a red hat, and a white t-shirt found in the crashed vehicle.
I Removal of Two Jurors
Defendant contends that the trial court violated his constitutional rights to due process and a fair trial by dismissing two jurors during deliberations "even though neither juror failed to or was unable to deliberate." We disagree.
Trial Court Proceedings
After two full days of deliberations, the jury sent the trial court a note advising that they were unable to reach a decision. In response, the trial court sent the jury a questionnaire asking with respect to each count: (1) the number of votes taken; (2) when the last vote was taken; and (3) the numerical breakdown of the jury on its first and last vote. The jury responded that it had taken a single vote that morning, and that the numerical breakdown was six-five-one as to each count.
When the foreperson returned the questionnaire, she advised the bailiff of her concern that three of the jurors were "trying to rush through everything" and were not "taking their obligation seriously." The trial court then questioned the foreperson, who explained that Juror No. 12 "seemed biased" because she stated, "'not guilty'" when she first entered the deliberation room. The foreperson also explained that this juror, a high school biology teacher, "seem[ed] to be in a hurry and wanting to get this trial over with," repeatedly commenting that she "stays up until 11:00 at night [correcting paperwork] and then has to be back at the high school at 6:30 in the morning to drop off the paperwork." The foreperson also complained that Juror No. 6 asked the other jurors whether they were being paid for their jury service. When several jurors answered that they were being paid, he responded that it was "not fair," and that he did not seek to be excused for economic hardship because "he wanted to see what it was like" to be on a jury.*fn1
The trial court then questioned Juror No. 6. When asked whether he was being paid by his employer for his jury service, the juror responded that he was not. And when asked whether that created a hardship, the juror responded: "Kind of, yes, since it has been going on for so long. If it continues, it will." The trial court then asked how he supported himself without this source of income. The juror answered: "I get help from whoever I can." When asked whether he was thinking about how he was going to pay his bills, the juror responded: "Well, right now I don't have too many bills to pay, but, kind of, yeah."
The following exchange then took place: "[Trial court:] So if you were to -- if the jury were to need to deliberate for another week -- you kind of put your teeth together. [¶] [Juror No. 6:] Yeah. [¶] [Trial court:] I have to mark things on the record. [¶] [Juror No. 6:] Yeah, it is kind of inconvenient. But if I'm needed, I guess I can do it. [¶] [Trial court:] Well, could you promise us that you can continue to deliberate without thinking about 'I want to hurry and get this over with?['] [¶] [Juror No. 6:] Umm. A hundred-percent truthfully, no, probably not." The trial court then asked: "Can you promise us not to think about when will this be over, meaning deliberations, if I were to send you back into the jury deliberation room?" The juror answered: "No, I can't."
The trial court also questioned Juror No. 12. The juror confirmed that she had been staying up late correcting papers and getting up early to return them to the high school before returning to the court to continue deliberations. She denied making any statement that she wanted to "get this over with." She also stated that she was committed to participating in deliberations, discussing the evidence with the other jurors, and allowing each juror to participate in deliberations "[r]egardless of how long it takes." The trial court decided not to remove Juror No. 12 from the jury.
The trial court then called Juror No. 6 back into the courtroom and asked two questions in order to "make sure" that continued participation would not result in a hardship. First, the trial court asked: "Can you focus on the evidence regardless of how long jury deliberations take?" He responded: "No." Second, the trial court asked: "Can you put aside your concern regarding the time it is taking and your not getting paid and your bills and focus just on the evidence?" He responded: "No, ma'am." Defense counsel objected to the removal of this juror, but candidly stated: "I think those were clear answers, unfortunately." The trial court then removed Juror No. 6 from the jury, replaced him with an alternate, and instructed the jury that deliberations must begin anew.
The jury deliberated for the remainder of the day. That night, Juror No. 12 left a voicemail for the trial judge asking to be removed as a juror. She explained in a "tired" voice: "[H]aving just arrived home now at 8:20, I want to see if it is still possible to be excused. [¶] Going into class, going through the paperwork, notes from my substitute, I am losing my sub next week. He's been a long-term biology sub, but I will no longer have him, and that will be a hardship to my students, really, more than me. I can go the nighttime, but with losing him, it is going to be more difficult for the 156 students I have in my class. [¶] Anyways, I am not a quitter, but I was thinking if this goes another week or two, then it is going to be really detrimental."
The next day of trial, the trial court again questioned Juror No. 12. After explaining to the juror that it had "no idea" how long deliberations would take, the trial court asked whether she knew about the extra work she would be doing for her students when she was initially questioned during voir dire. The juror responded that she knew she would be required to make lesson plans for her substitute, but explained that she was fortunate to have had a substitute with a biology major for the previous three weeks. However, now she was going to lose this substitute, and would be required to devise lesson plans "as if the person knows nothing about biology."
The trial court then asked whether, given the current situation, she would be able to concentrate on the evidence and fully participate in the deliberations with the other jurors. The juror provided an equivocal response, stating, "[o]f course I could," but also explaining that it would cause her "a lot of stress and pressure" and "would be very, very difficult." The trial court then explained that the juror needed to be clear: "[I]f you say, 'It's going to be difficult, but I will do it,' then my obligation under the law is to leave you on this jury. If you say, 'I am not a quitter. I know it's going to be difficult, but given the situation, I'm not going to be able to concentrate. I am going to be thinking about when it's going to be over because of the duty I have to my students,' then the law would provide differently." The juror then unequivocally stated that she would not be able to concentrate and deliberate as a juror. She then broke into tears and said: "I'm not a quitter. I don't want to not be here. I'm trying to -- I thought I could at one time, but . . . I've got three kids of my own and I have no clean laundry. It's just so many things. So I'm trying to -- I want to do the best for everything and I'm not doing well with anything."
The trial court removed Juror No. 12 and replaced her with an alternate. The jury was again instructed to begin deliberations anew. The jury reached a verdict after roughly seven hours of deliberations.
Penal Code section 1089 provides the trial court with authority to discharge a juror who, upon good cause shown, is found to be unable to perform his or her duty.*fn2 Because a juror possesses a duty to deliberate (see People v. Cleveland (2001) 25 Cal.4th 466, 485), a finding of financial or personal hardship that would cause the juror to feel pressure to bring deliberations to a speedy close renders the juror unable to perform his or her duty and thus subject to discharge and substitution under section 1089. (People v. Earp (1999) 20 Cal.4th 826, 892-893 (Earp); People v. Lucas (1995) 12 Cal.4th 415, 489 (Lucas); see also People v. Fudge (1994) 7 Cal.4th 1075, 1099-1100 (Fudge).)
We review the trial court's decision to discharge a juror under the deferential abuse of discretion standard, and will uphold the decision unless it falls outside the bounds of reason. (Earp, supra, 20 Cal.4th at p. 893; Lucas, supra, 12 Cal.4th at p. 489; see also People v. Halsey (1993) 12 Cal.App.4th 885, 892 [noting few cases have found an abuse of discretion].) "The substitution of a juror for good cause pursuant to section 1089, even after deliberations have commenced, '"does not offend constitutional proscriptions."' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 820-821.) However, in order to protect a defendant's constitutional rights to due process and to a fair trial, "a juror's inability to perform as a juror must be shown as a 'demonstrable reality.'" (Id. at p. 821; see also People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
In Lucas, supra, 12 Cal.4th 415, our Supreme Court upheld the discharge of a juror prior to penalty phase deliberations in a capital murder trial where it "seemed likely the penalty trial would require the juror to cancel her vacation." (Id. at p. 487.) Even though the juror stated that this would "not impact her deliberation," the trial court relied on her "demeanor and distress" and the fact that she brought up the problem of losing her vacation several times. (Id. at pp. 487-488.) Finding no abuse of discretion, the court explained: "Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary. She had repeatedly brought the problem of the vacation to the court's attention, exhibiting concern and agitation over it. The court determined that the juror's demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation. [Citation.] We also observe that the juror would have felt some pressure to bring the penalty deliberations to a speedy close in order to preserve her planned vacation." (Id. at p. 489.)
Similarly, in Fudge, supra, 7 Cal.4th 1075, our Supreme Court upheld the discharge of a juror during guilt phase deliberations of a capital murder trial where the juror anticipated starting a new job and experienced anxiety over certain paperwork she needed to complete to terminate her old position. (Id. at pp. 1099-1100.) Shortly after deliberations began, the juror sent the trial court a note indicating that the impending start date of her new job would make deliberations inconvenient and might impact her decision. But when the trial court questioned her, she stated that her anxiety over the new job would not affect her deliberations. The trial court decided not to discharge her from the jury. (Id. at p. 1098.) Later in the deliberations, after the juror again asked to be removed, the trial court again questioned her, and she reaffirmed that her anxiety would not affect her deliberations. (Ibid.) The trial court then allowed her to call her employer, who informed her that she would be required to complete certain paperwork in order to terminate her old position. (Id. at pp. 1098-1099.) After the phone call, she stated that her anxiety over this paperwork would affect her deliberations, and the trial court removed her. Our Supreme Court found no abuse of discretion. (Id. at pp. 1099-1100; see also Earp, supra, 20 Cal.4th at p. 893 [upholding trial court's decision to discharge juror where the juror's "employer had stopped paying her for jury service one month earlier and she had used her own vacation time during the month to continue to serve on the jury"].)
We find no abuse of discretion in this case. As a preliminary matter, the trial court properly called Juror No. 6 and Juror No. 12 in for questioning after being informed by the foreperson that these jurors were attempting to "rush through" the deliberations and were not "taking their obligation seriously." (See People v. Keenan (1988) 46 Cal.3d 478, 532 ["the court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute"].) With respect to Juror No. 6, the foreperson stated that he complained about not being paid for his jury service. With respect to Juror No. 12, the foreperson stated that she "seem[ed] to be in a hurry and wanting to get this trial over with," and repeated several times that she was staying up late correcting paperwork for her students. These reports raised the possibility that these jurors had either a financial or personal hardship that might cause them to feel pressure to bring deliberations to a speedy close, which would render them unable to perform their duty as jurors. (See Earp, supra, 20 Cal.4th at pp. 892-893; Lucas, supra, 12 Cal.4th at p. 489.)
Removal of Juror No. 6
The trial court's decision to remove Juror No. 6 was not an abuse of discretion. This juror unequivocally stated that he would not be able to put aside his concern about not being paid and focus on the evidence. This statement, relied upon by the trial court, constitutes substantial evidence that Juror No. 6 was unable to perform his duty as a juror, and thus establishes good cause for removal as a "demonstrable reality." (People v. Wilson (2008) 43 Cal.4th 1, 26 ["The demonstrable reality test 'requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established'"].)
Nevertheless, defendant argues that the trial court inappropriately continued to question Juror No. 6 after he assured the court "that although the situation was 'inconvenient,' he was still able to fulfill his duties as a juror, and would be able to do so even if the deliberations took another week." Not so. As defendant acknowledges, the trial court's inquiry into possible grounds for removal of a juror "should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court's instructions or otherwise committed misconduct, and that no other proper ground for discharge exists." (People v. Cleveland, supra, 25 Cal.4th at p. 485, italics added.)
Here, as in Lucas, although the juror expressed an ability to continue deliberations ("I guess I can do it"), he also clenched his jaw at the prospect of continued deliberations, which the trial court noted for the record. Then, he could not "truthfully" state that he would be able to continue to deliberate without thinking that he wanted to "'hurry and get this over with.'" Based on Juror No. 6's demeanor and inability to promise to deliberate without wanting to bring deliberations to a speedy close, the trial court appropriately continued the inquiry. This, combined with his later unequivocal statement that he would not be able to put aside his concern about not being paid and focus on the evidence, supports the trial court's decision to remove him from the jury.
Removal of Juror No. 12
We also conclude that the trial court did not abuse its discretion by removing Juror No. 12 from the jury. Much like the juror in Fudge, supra, 7 Cal.4th 1075, 1099-1100, Juror No. 12 initially stated that she was committed to participating in deliberations despite the fact that she was staying up late correcting papers and getting up early to return them to the high school. Satisfied by this response, the trial court decided not to remove her from the jury. However, the situation changed when she discovered that her current substitute teacher would no longer be available. After leaving a voicemail asking to be removed, the trial court again called her in for questioning. This time, after some initial equivocal responses ("of course [she] could" concentrate on the evidence and participate in deliberations, but it would cause her "a lot of stress and pressure" and "would be very, very difficult") and further questioning, she unequivocally stated that she would not be able to concentrate and deliberate as a juror. She then broke into tears. We conclude that Juror No. 12's demeanor and unequivocal statement that she would not be able to concentrate and deliberate as a juror established good cause for removal as a demonstrable reality.
Nevertheless, defendant complains that the trial court "'kind of laid out two paths and after laying out the two paths, she then took the path of being excused,'" referring to this statement: "[I]f you say, 'It's going to be difficult, but I will do it,' then my obligation under the law is to leave you on this jury. If you say, 'I am not a quitter. I know it's going to be difficult, but given the situation, I'm not going to be able to concentrate. I am going to be thinking about when it's going to be over because of the duty I have to my students,' then the law would provide differently." Contrary to defendant's argument, we do not believe that this statement amounted to the trial court putting words into the juror's mouth. The juror's previous answers were subject to two interpretations, and the trial court simply asked her to clearly state which one she meant. In any event, even if she had stuck to her initial position that she would be able to continue to participate in deliberations, the trial court would have been justified in removing her based on her "demeanor and distress" displayed when she broke down during questioning. (See Lucas, supra, 12 Cal.4th at p. 488.)
Finally, defendant's reliance on People v. Delamora (1996) 48 Cal.App.4th 1850 (Delamora) is misplaced. There, the Court of Appeal found an abuse of discretion where the trial court removed two jurors after more than three days of deliberation "without any inquiry" about whether they would be willing to deliberate longer even if their employers would not pay them. (Id. at p. 1855.) The court noted, "[a]lthough a trial court does not abuse its discretion when it discharges a juror because of problems related to the juror's employment, the employment problem must be real and not imagined," and explained, "where, as here, there is no evidence at all to show good cause (because no inquiry of any kind was made), the procedure used was by definition inadequate." (Id. at pp. 1855-1856.) Unlike Delamora, the trial court in this case extensively questioned both Juror No. 6 and Juror No. 12 concerning the perceived hardship. These jurors were not removed until the trial court was convinced that such a hardship existed.
We conclude with respect to both jurors that the hardship was not imagined, but was instead shown to be a demonstrable reality.
II 56Coercion of Jury
Defendant also asserts that his constitutional right to due process was violated when the trial court "effectively coerced the jury into reaching verdicts." Specifically, he asserts that the trial court failed to address the jury's indication of deadlock, removed a defense-oriented juror, failed to remind the jurors to stick to their conscientiously-held opinions, and informed the jurors brought in for questioning that they would be required to deliberate regardless of how long it took to render a verdict. Together, argues defendant, these "statements and actions implicitly told the jury that it must reach a verdict."
As we have already indicated, following the jury's indication of deadlock, the trial court asked the jury for the number of votes taken, the time of the last vote, and the numerical breakdown. The jury responded that it had taken a single vote that morning, and that the numerical breakdown was six-five-one as to each count. At this point, the trial court was required to investigate the hardships addressed in the previous section of this opinion.
After removing and replacing Juror No. 6, the trial court instructed the jury that deliberations must begin anew because the alternate juror "must participate fully in the deliberations that lead to any verdict" and both "[t]he People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict." The trial court further explained: "Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place." Defense counsel did not object to this instruction, nor request that the trial court address the jury's prior indication of deadlock. Then, after removing and replacing Juror No. 12, the trial court again instructed the jury to begin deliberations anew. Defense counsel again did not object to this approach. Nor did counsel ask the trial court to address the previous indication of deadlock.
Because defendant did not object to the trial court's approach with respect to instructing the jury following the removal of Juror No. 6 and Juror No. 12, he has forfeited his claim that it implicitly coerced a verdict. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.) And while he did object to the removal of these jurors, we have already held that these jurors were properly removed.
In any event, no impropriety occurred. Section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." "The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment 'in favor of considerations of compromise and expediency.' [Citation.]" (People v. Breaux (1991) 1 Cal.4th 281, 319.) "The question of coercion is necessarily dependent on the facts and circumstances of each case." (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
Here, when the jury indicated deadlock, the trial court appropriately inquired about the number of votes taken and the numerical breakdown. (See People v. Carter (1968) 68 Cal.2d 810, 815.) Upon discovering that a single vote had been taken after a relatively short period of deliberation, the trial court was justified in requiring the jury to continue deliberating. (See People v. Rodriguez (1986) 42 Cal.3d 730, 774-777 [finding no abuse of discretion in requiring the jury to continue deliberating after it indicated deadlock after 18 days of deliberation].) However, the trial court also discovered that two jurors were suffering hardships that required their removal from the jury, and properly instructed the jury to start their deliberations from the beginning. (People v. Collins (1976) 17 Cal.3d 687, 693-694, overruled on other grounds in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) This instruction in no way indicated that the trial court would refuse to release the jury until verdicts were reached.
Moreover, because the jury was starting its deliberations anew, there was no need to address the prior indication of deadlock. Nor do we believe that the trial court's questions to Juror No. 6 and Juror No. 12 indicated that the trial court intended to require the jury to deliberate until it reached a verdict. Instead, the trial court candidly acknowledged that it did not know how long deliberations would last, and simply sought to find out whether jurors' personal situations would allow them to focus on the evidence and participate in deliberations regardless of how long they lasted. Because deliberations can end in a deadlock as well as a verdict, this statement cannot be construed as informing the jurors that they would be required to deliberate until they rendered a unanimous verdict.
III Admission of Defendant's Statement to Police
Nor did the trial court violate defendant's constitutional rights by admitting his statement to police into evidence. Contrary to defendant's argument on appeal, he did not unambiguously invoke his right to counsel, and thus the police were not required to stop the interrogation.
Defendant was arrested and interrogated by police in June 2006. At the start of the interrogation, defendant was advised of his right to remain silent, to have an attorney present during questioning, and to have such an attorney appointed if he could not afford to retain counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).) Defendant acknowledged that he understood these rights and began answering questions.
At first, defendant claimed to "know nothing" about the home invasion robbery that occurred in September 2003. Defendant admitted to knowing C.T., claiming to be "good friends" with him. However, he denied knowing J.W., stating that he saw her only once while he and C.T. were drinking and shooting dice at C.T.'s apartment. When detectives asked whether he had ever had sex with J.W., defendant responded: "Hell, no." One of the detectives then asked defendant if he knew why she would pick him out of a lineup and accuse him of being one of three individuals who broke into her home and robbed her. Defendant responded: "No. I only seen her one time and -- and can't call it. I -- anything ya'll need from me. Ya'll can get it from me. Prove it wasn't me."
The detectives then confronted defendant with the details of the crimes: "[J.W.] says that three guys, one of them being you, forced their way into their apartment" and "two of the guys robbed her and you raped her." Defendant called this a "crazy-assed story." The detectives continued: "But she picked you right out of the lineup" and "said she'll never forget your eyes even though you had a mask on, that covered your nose and mouth." They also explained that J.W. had stated that defendant was carrying a handgun during the robbery and "pistol-whipped her with it." Detectives then told defendant that his DNA matched that collected from semen found the night of the assault. Defendant repeatedly denied involvement. As an explanation for his semen being found at the crime scene, defendant stated: "Man, me being a young man, only part of being a player, living the fast life out there, man, you fuck broads every day."
One of the detectives then told defendant that he would be charged with rape and home invasion robbery. Defendant responded: "I'll get a lawyer. I don't know what you're talking about. Honest-to-God I don't know." The detective continued: "Now is the time to tell us what happened." Defendant answered: "I don't know what you're talking about so ain't no time to tell nothing, because I don't want -- don't know nothing." The detective interrupted with: "You had nothing to do with it?" Defendant responded: "I'll go to trial, fight it all the way out. I'll win -- because I had nothing to do with that. I don't know nothing, so I don't know what you guys talking about."
Questioning continued. And defendant steadfastly denied involvement in the crimes, stating at one point: "I don't know what you're talking about. That wasn't me. I didn't do it. Shh. So you guys say I'm -- you guys say I'm responsible for something I don't know nothing about. Hey, I guess I got to fight it in court. Sorry. If that's what you guys say, that's what you guys say. I'm -- I'm denying it, because I didn't do it." At another point, defendant stated: "I didn't do it, period, point blank. We can go to court, or we can go to trial." Detectives then took a saliva sample from defendant, stopped the interrogation, and left the room.
A short time later, defendant knocked on the interrogation room door and told another detective that he wanted to talk to his previous interrogators, stating: "I want to tell them the truth." Defendant then admitted to having sex with J.W., but claimed that the sex was consensual. According to defendant, he met J.W. at the mini-mart and then went back to her apartment to smoke marijuana. After smoking the marijuana, they had sex in J.W.'s bedroom, at which point three men broke into the apartment. The men punched and kicked defendant in the face and one of them chased defendant out of the apartment. Defendant also claimed that he did not know J.W. prior to meeting her at the mini-mart, and never saw her again after being chased out of her apartment.
Defendant argues that the detectives should have stopped the interrogation after he stated: "I'll get a lawyer. I don't know what you're talking about. Honest-to-God I don't know." According to defendant, this was an unambiguous invocation of his right to have an attorney present during questioning. We disagree.
"To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent." (People v. Stitely (2005) 35 Cal.4th 514, 535, citing Miranda, supra, 384 U.S. at pp. 444, 467-473, 478-479 [16 L.Ed.2d at pp. 706-707, 719-723, 726].) "If at any point in the interview the suspect invokes the right to remain silent or the right to counsel, 'the interrogation must cease.' [Citation.] But, as the high court has stated, an officer is not required to stop questioning a suspect when 'a suspect makes a reference to an attorney that is ambiguous or equivocal.' [Citation.] The suspect 'must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'" (People v. Bacon (2010) 50 Cal.4th 1082, 1105, quoting Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371].)
In People v. Davis (2009) 46 Cal.4th 539 (Davis), defendant was interrogated concerning the kidnapping and murder of 12-year-old Polly Klaas. After about an hour of questioning, the interrogators, Officer Pelton and FBI Agent Taylor, accused defendant of abducting the girl and alluded to certain trace evidence and DNA evidence. Defendant stood up and responded: "'Well then book me and let's get a lawyer and let's go for it, you know.'" (Id. at pp. 550, 586-587.) Defendant then stated that he resented being accused of the abduction and remarked, "'let's shit or get off the pot.'" (Id. at p. 587.) Agent Taylor then stated, "'It's going to happen,'" prompting defendant to respond: "'Well, let's go for it. That's the end, the end.'" Defendant was then asked whether he still wanted to talk, to which he replied: "'Get real. You think I should?'" Officer Pelton answered: "'That's up to you.'" Defendant responded: "'Fuck.'" He then sat down and continued to answer questions.
Our Supreme Court held that these comments "were not an unambiguous invocation of the right to 'immediate presence of an attorney.'" (Davis, supra, 46 Cal.4th at p. 588, quoting People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.) Instead, the court considered defendant's statement ("'book me and let's get a lawyer and let's go for it'") to be a challenge to his interrogators, which he employed as an interrogation technique, and not as a means of invoking the right to have an attorney present during questioning. (Ibid.) The court also contrasted this ambiguous statement with a statement made later in the interrogation, in which "defendant blurted out, 'get me a lawyer,' and said he was 'over and done' answering any questions." (Ibid.) Unlike the first statement, this latter statement was a "clear invocation of his constitutional rights to counsel and to remain silent," and the interrogation was properly ended at that point. (Ibid.; compare People v. Jablonski (2006) 37 Cal.4th 774, 810-811 ["'I won't say anything until I see my lawyer'" is an unambiguous request for the immediate presence of an attorney] with People v. Gonzalez, supra, 34 Cal.4th at pp. 1119, 1126 ["'if for anything you guys are going to charge me I want to talk to a public defender'" is not an unambiguous request for the immediate presence of an attorney].)
In this case, after detectives confronted defendant with the details of the crimes, explained that semen containing his DNA was found at the crime scene, and told him that he would be charged with rape and home invasion robbery, defendant stated: "I'll get a lawyer." Like the statement in Davis, this statement was not an unambiguous request for the immediate presence of an attorney before defendant would answer any more questions. It was a challenge. Defendant was telling the detectives that if he were charged with these crimes, he would get a lawyer to defend against them at trial. Indeed, within seconds of making the statement, defendant stated: "I'll go to trial, fight it all the way out. I'll win -- because I had nothing to do with that." And while he repeated the challenge twice more ("I guess I got to fight it in court" and "we can go to trial"), at no point did defendant request the immediate presence of an attorney.
We conclude defendant did not unambiguously invoke his right to have an attorney present during questioning. Therefore, the detectives were not required to stop the interrogation and defendant's entire statement to police was properly admitted into evidence.
IV Jury Instructions
We also reject defendant's assertion that the trial court deprived him of his constitutional right to due process by instructing the jury with standard jury instructions on sodomy, attempted sodomy, and assault with intent to commit sodomy. He did not object to these instructions at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We find no conceivable error, much less a miscarriage of justice.
Trial Court's Jury Instructions
The trial court instructed the jury on the crime of attempted sodomy with CALCRIM No. 460.*fn3 This instruction begins: "To prove that the defendant is guilty of attempted sodomy, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing sodomy; and [¶] 2. The defendant intended to commit sodomy." Then, after defining "direct step," including the fact that such a step "indicates a definite and unambiguous intent to commit sodomy," the instruction explains: "To decide whether the defendant intended to commit sodomy, please refer to the separate instructions that I will give you on that crime."
The trial court instructed the jury on the crime of assault with intent to commit sodomy with CALCRIM No. 890.*fn4 This instruction begins: "To prove that the defendant is guilty of [assault with intent to commit sodomy], the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force to a person; and [¶] 5. When the defendant acted, he intended to commit sodomy." Then, after defining "willfully," "application of force," and "apply force," the instruction explains: "To decide whether the defendant intended to commit sodomy, please refer to the earlier definition of sodomy."
Between these instructions, the trial court instructed the jury on the crime of sodomy with CALCRIM No. 1030. This instruction begins: "The crime of sodomy by force or fear has the following elements: [¶] 1. A male person committed an act of sodomy with another person; [¶] 2. The other person did not consent to the act; and [¶] 3. The male person accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone."
The instruction then further defines each element: "Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] An act is accomplished by force if a person uses enough physical force to overcome the other person's will. [¶] 'Duress' means a direct or implied threat of force, violence, or danger that causes a reasonable person to do or submit to something that she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant. [¶] 'Menace' means a threat, statement or act showing an intent to injure someone. [¶] An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it."
Finally, the instruction explains: "The male person is not guilty of forcible sodomy or attempted sodomy if he actually and reasonably believed that the other person consented to the act. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty."
The trial court further instructed the jury that the crime of sodomy required a "general criminal intent," while the crimes of attempted sodomy and assault with intent to commit sodomy required a "specific intent" that was explained in the instructions for those crimes.
Defendant argues that the foregoing instructions failed to adequately inform the jury on the specific intent necessary for the crimes of attempted sodomy and assault with intent to commit sodomy because these crimes require not only the specific intent to commit the underlying sex act, but also the specific intent to do so without the victim's consent. While defendant is correct in his description of the specific intent required (see People v. Davis (1995) 10 Cal.4th 463, 509 [an "'essential element'" of assault with intent to commit sodomy is "'the intent to commit the act against the will of the complainant'"]), we conclude that the instructions as a whole properly informed the jury of the required specific intent. "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from [one] particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)
Here, the attempted sodomy instruction (CALCRIM No. 460) explained: "To decide whether the defendant intended to commit sodomy, please refer to the separate instructions that I will give you on that crime." Then, the sodomy instruction (CALCRIM No. 1030) defined the "crime" of sodomy as requiring three elements: (1) a male person committed an act of sodomy with another person; (2) the other person did not consent to the act; and (3) the male person accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. Then, the assault with intent to commit sodomy instruction (CALCRIM No. 890) also referred the jury to "the earlier definition of sodomy" in deciding whether defendant intended to commit sodomy. Thus, the jury would reasonably have understood that in order for defendant to have committed the crimes of attempted sodomy and assault with intent to commit sodomy, he would have to intend not only to commit an act of sodomy, but also to intend to do so without the victim's consent. (See People v. Dillon (2009) 174 Cal.App.4th 1367, 1378-1379.)
Defendant cannot be heard to complain about jury instructions that accurately set forth the law with respect to the elements of sodomy, attempted sodomy, and assault with intent to commit sodomy.
V Imposition of Fees
Finally, defendant claims that the trial court erred by imposing booking, classification, and crime prevention program fees without finding that he had the ability to pay such fees. Defendant has forfeited this claim of error by failing to object at sentencing.
"In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Walker (1991) 54 Cal.3d 1013, 1023 ["'The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had'"]; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].) This forfeiture doctrine applies to claims that a fee was improperly imposed, not because it was unauthorized by statute, but because the trial court failed to find an ability to pay. (People v. McCullough (2011) 193 Cal.App.4th 864; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) Accordingly, defendant's claim has been forfeited.
The judgment is affirmed.
We concur: ROBIE, Acting P.J. BUTZ,J.